In 2009, the Minister of Home Affairs introduced the Zimbabwean Dispensation Permit (now the Zimbabwean Exemption Permit, “ZEP”) in terms of section 31(2) (b) of the Immigration Act. The purpose of the permit was to deal with the influx of economic migrants coming from Zimbabwe and to exercise control over the number of illegal immigrants in the country. For over 14 years, the ZEP has been renewed several times, in 2014 (Zimbabwean Special Permit) and finally Zimbabwean Exemption Permit in 2017. Over 178,000 Zimbabweans have applied through this process.
On 24 November 2021, The Department of Home Affairs issued a gazette notice that the ZEP would come to an end on 30 June 2023 and that all holders are to apply to be documented under the Immigration Act or Refugee Act 130 of 1998 or face deportation. In the recent case of Helen Suzman Foundation v Minister of Home Affairs (32323/2022), the Helen Suzman Foundation challenged the Minister’s decision to terminate the ZEP.
In terms of the Promotion and Access to Justice Act 3 of 2000 (“PAJA”), “administrative action” is defined in section 1. “administrative action” means any decision taken, or any failure to tak a decision, by— (a) an organ of state, when— – exercising a power in terms of the Constitution or a provincial constitution; or – exercising a public power or performing a public function in terms of any legislation; or (b) a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision, which adversely affects the rights of any person and which has a direct, external legal effect.
In Minister of Defence and Military Veterans v Motau and Other (2014) ZACC 18, the Court set out the seven elements of administrative action as follows:
“there must be (a) a decision of an administrative nature; (b) by an organ of state or a natural or juristic person; (c) exercising a public power or performing a public function; (d) in terms of any legislation or an empowering provision; (e) that adversely affects rights; (f) that has a direct, external legal effect; and (g) that does not fall under any of the listed exclusions.”
The Court further explained that in terms of the Act, the administrative action must be procedurally fair. Section 3 of the PAJA sets the criteria:
(1) Administrative action which materially and adversely affects the rights or legitimate expectations of any person must be procedurally fair.
(2) (a) A fair administrative procedure depends on the circumstances of each case. (b) In order to give effect to the right to procedurally fair administrative action an administrator, subject to subsection (4), must give a person referred to in subsection (1)— (i) adequate notice of the nature and purpose of the proposed administrative action;
(ii) a reasonable opportunity to make representations (iii) a clear statement of the administrative action;
(iv) adequate notice of any right of review or internal appeal, where applicable; and (v) adequate notice of the right to request reasons in terms of section 5.
The Court found that the Minister had taken administrative action in that he, a natural person, with authority over the immigration and asylum systems, had taken a decision to terminate the ZEP (which had been authorised by section 31(2) (b) and (d) of the Immigration Act) and that such decision would directly affect ZEP-holders. The Court found that the Minister had not followed the process set out in terms of section 3 of PAJA in that he failed to give adequate notice of the proposed administrative action but published gazette notices after the decision had already been taken. Evidence showed that the Minister had internal discussions and engagements but never with the public or those directly affected.
The Minister further failed to allow those affected by the decision an opportunity to make representations or meaningfully engage on the proposed action. The Court held that the Minister failed to consider the rights of the ZEP-holders and the effect the decision would have on them, their children and their livelihoods.
Accordingly, the Court found the Minister’s decision to terminate the ZEP to be unlawful, unconstitutional and invalid and ruled that that decision was set aside and sent back to the Minister to reconsider, allowing the ZEP-holders, civil society organisations and the public to make representations. The Court further extended the ZEP for an additional twelve months. This court case is significant in reminding administrative bodies and authorities of their constitutional duty to ensure fairness in their exercise of public power as envisaged in section 33 of the Constitution.