2023-06-29

High Court ruling: termination of the ZEP is unlawful, unconstitutional, and invalid.

The Zimbabwean Exemption Permit (ZEP) termination was recently extended to the end of December this year by the Department of Home Affairs. The High Court has set the decision to terminate the ZEPs aside.

The court has ruled:
- The ZEP termination deadline is extended for 12 months, and if the termination still goes ahead, the deadline will be at least June 2024.
- The matter has been sent back to the minister for reconsideration following a fair process.

What does this mean?
- The termination of ZEP has not been stopped. 
- The High Court found grave procedural aspects in the decision, as well as a limitation on the rights of  the ZEP holders. The Minister failed to consult with the ZEP holders prior to making the decision.
- The termination is unlawful as it now stands. It could mean the procedural defects corrected could revive the termination of the ZEP. The court ordered that the matter go back to the minister for reconsideration following a fair process.
- Once the fair process is followed the minister can still terminate the ZEPs.

What were the problems with the decision to terminate the ZEPs?
The minister was obligated to give the ZEP holders and other affected parties a reasonable opportunity to make representations about the decision, which he did not do. The minster consulted after the decision was taken. The court added that the decision had to be rational and reasonable.

The Helen Suzman Foundation which brought the matter to court argued that the decision affected the right to dignity of the ZEP holders and the children. The Court added that the right would encompass the right to employment opportunities, access to health, education and protection from deportation. The Court found that the minister’s decision was an unjustified limitation of rights.

The termination of the ZEP is not gone. The minister can decide to end the termination of the permits or make sure the correct procedure is followed and revive the termination.