Supreme Court could reshape the legal status of Zimbabweans in SA

In a landmark ruling that could reshape the legal status of thousands of Zimbabwean nationals in South Africa, the Supreme Court of Appeal (SCA) has rejected an appeal by the Minister of Home Affairs against a High Court order concerning the controversial termination of the Zimbabwe Exemption Permit (ZEP) programme.

The decision affirms the Johannesburg High Court's 2023 ruling, which set aside former Home Affairs Minister Aaron Motsoaledi's attempt to cancel the ZEP scheme - a special dispensation that has allowed nearly 180,000 Zimbabweans to live and work legally in South Africa for over a decade.

Friday's SCA judgment also clears the way for the Zimbabwean Immigration Federation to return to court with a critical constitutional argument: that the authority to extend or terminate the ZEP regime lies solely with Parliament, not with the Minister of Home Affairs.

The ZEP programme was introduced to regularise the status of Zimbabwean nationals who fled political and economic turmoil in their homeland. The permits have been extended several times since 2009, but Motsoaledi announced their termination in 2021, sparking legal challenges from advocacy groups.

The Johannesburg High Court ruled in 2023 that the minister's decision to end the programme had been procedurally unfair and ordered him to reconsider it following a proper consultation process.

Counsel for the Home Affairs ministry told the SCA that the order was already being implemented and that the minister was following a fair process. However, the Zimbabwean Immigration Federation is pushing for a broader constitutional interpretation - arguing that the minister lacks the legal power to limit or terminate the permits in a way that infringes on rights held by permit holders and their children.

The SCA's ruling did not decide whether the federation's constitutional argument is valid - only that the minister cannot prevent the federation from pursuing it in court.

In its written judgment, Judge of Appeal David Unterhalter highlighted that the federation's legal challenge was distinct from that of the Helen Suzman Foundation (HSF), which had previously won a final court order halting the termination of ZEPs. While the HSF pursued a final judgment, the federation initially sought only an interim interdict, intending to argue the constitutional question later.

The minister's lawyers had argued that the interim interdict was now redundant, since a final order had already been granted. But Unterhalter dismissed that view, writing that the federation raised "distinctive grounds of review" that were not addressed in the HSF's case - specifically the question of constitutional rights and the separation of powers.

"If the federation's argument were accepted," the judge wrote, "it would not permit the minister to terminate the ZEP regime. That is a remedial outcome of a considerably more far-reaching kind."

The ruling paves the way for a new round of litigation, with potentially sweeping implications for immigration policy and the rights of non-citizens in South Africa. If the federation's case is successful, it could set a precedent requiring legislative - not executive - decisions on special immigration dispensations that affect constitutional rights.

For now, ZEP holders remain in legal limbo - protected by interim court orders, but still uncertain about their long-term status.

The Department of Home Affairs has not yet commented on the SCA ruling.