Minister of home affairs Aaron Motsoaledi lost his application to appeal against the judgment that required him to go back to the drawing board on the Zimbabwe exemption permits (ZEP) regime. The high court in Pretoria ruled on Monday that his application for leave to appeal had no reasonable prospects of success.
The court found crucial to determining whether there were prospects for a successful appeal was the quality of the evidence before the court — on what the minister had taken into account when he made the decision to terminate the ZEP regime, which allows about 178,000 permit holders to lawfully be in South Africa.
Yet throughout the litigation, Motsolaedi had not submitted an affidavit to court, and instead it had been the director-general of home affairs who had deposed to affidavits.
“What renders the minister’s application destined for failure is the minister’s failure to depose to an answering affidavit in the review proceedings. Only the minister, as the decisionmaker, could give evidence as to what passed through his mind,” said the court.
The court also rejected the argument by the minister’s legal team that his decision was not subject to review under the Promotion of Administrative Justice Act (Paja) since it was not administrative in nature but was an executive decision and therefore only reviewable by a court if it was irrational in law.
This was relevant because it was common cause — both sides agreed when the case was heard — the minister had not consulted those who would be affected by his decision before it was taken. The minister argued he had consulted after the decision was taken, and this was good enough for a rational decision in law.
The court said its judgment had found the minister’s decision flawed both in terms of Paja and on the basis of rationality.
“The minister does not attempt to deal with and answer the judgment’s reasoning set out from paragraphs  to  where the judgment sets out the minister was not only obliged to consult beforehand under section 3 of Paja and that it is so required even under the principle of legality that the procedure to be followed by the minister had to be rational.”
Unless Motsoaledi successfully petitions the Supreme Court of Appeal, it means he will have to consider afresh the ZEP regime after a fair process, which would include consulting those affected.
The decision means, pending a further decision by the minister, current ZEPs are deemed to remain valid. ZEP holders will continue to enjoy the legal protections they have and may not be ordered out or detained on the grounds that their permits are not valid.