This was one of the arguments by Motsoaledi and the
Department of Home Affairs' director-general in a court challenge by the Helen
Suzman Foundation which is being heard in the Gauteng High Court in Pretoria.
During the economic and political strife in Zimbabwean in
2008 and 2009, many of the country's nationals fled to South Africa.
The South African government at the time decided to create
a blanket exemption so Zimbabweans could get permits to live and work in the country
legally.
The permits were effectively extended by creating another
permit over the years and have since become known as the Zimbabwean Exemption
Permit (ZEP).
In December 2021, Motsoaledi announced the termination of
the ZEP, effectively announcing no further exemption would be created for
holders and their children.
This decision was challenged by the foundation, which
argued in court Motsoaledi's decision was procedurally unfair and irrational.
It said he did not consider the impact this would have on
ZEP holders, and it infringed on their rights.
On Wednesday, advocate Ismail Jamie SC, for the minister
and director-general, dismissed the issues raised by the foundation and
premised the respondents' arguments around the fact the decision made was a
policy decision.
Jamie argued such a policy decision was not up for judicial
scrutiny and only the policy's implementation could be challenged in a court of
law.
In terms of the implementation, he said this was ongoing as
ZEP holders were given until June 2023 to regularise their stay in South Africa
by applying for other visas or asking to be exempt from the expiration of the
ZEP.
Jamie added giving a blanket exemption to Zimbabwean
nationals entering South Africa in the 2000s was a policy decision based on the
issues in the neighbouring country at the time.
Similarly, the decision to not create a further exemption
was also based on policy, which he said was based on rational reasons that
included budgetary constraints, improvements in conditions in Zimbabwe, and a
backlog in the asylum system.
The decision was also placed under the spotlight on whether
Motsoaledi terminated the ZEP or if it expired because of the effluxion of
time.
It was argued the minister did not decide to terminate the
ZEP but extended its validity to help holders get their affairs in order.
Motsoaledi said this decision did not remove the rights of
ZEP holders but rather conferred them.
This argument also centred around whether the court
challenge was premature as the extension granted has yet to expire.
Jamie conceded Motsoaledi did not decide to create another
exemption and said this was not a legal decision but a policy one.
He reiterated there was no legal obligation to create the
blanket exemption in the first place, nor the exemptions that followed, and
ultimately ended with the ZEP, which was set to expire at the end of 2021.
The foundation took the matter to court, seeking a
declaration of invalidity and that Motsoaledi's decision be reviewed and set
aside. News24
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