ZIF ZEP Case - Part A Arguments Series - Episode 2_DHA counsel tries to block Part A

Summary of ZIF Case, Part A Arguments

1. Parties and Context

Applicants: Vindiren Magadzire (ZEP holder) and the Zimbabwe Immigration Federation (representing ZEP holders).

Respondents: South African government entities, including the Minister of Home Affairs.

Core Issue: The Minister’s decision not to extend the Zimbabwe Exemption Permit (ZEP) beyond 30 June 2023, risking deportation of approximately 178,000 ZEP holders.

2. Relief Sought (Part A)
An interim interdict to:
Prohibit arrests, detentions, or deportations of ZEP holders.
Prevent enforcement of Immigration Act provisions (Sections 29, 30, 32) against ZEP holders.
Allow ZEP holders to enter/depart South Africa under Section 9 of the Immigration Act.

3. Applicants’ Key Arguments
(a) Ultra Vires Challenge
The Minister acted beyond his powers under Section 31(2)(b) of the Immigration Act.
Section 31(2)(b) permits granting exemptions based on "special circumstances" and withdrawing rights only for "good cause." The Minister failed to demonstrate "good cause" for terminating ZEP.
The decision was framed as a non-extension rather than a withdrawal, circumventing statutory safeguards.

(b) Irrationality and Procedural Unfairness
The decision lacked rationality, as it ignored the original purpose of ZEP (addressing Zimbabwe’s socio-economic instability) and failed to link termination to improved conditions in Zimbabwe.
No meaningful consultation with ZEP holders, violating procedural fairness.

(c) Constitutional Rights Violations
Termination jeopardizes ZEP holders’ rights to dignity (Section 10), equality (Section 9), family life, children’s best interests (Section 28), education (Section 29), and freedom of movement (Section 21).
Children of ZEP holders, many born in South Africa, face displacement and disruption to schooling.

(d) Irreparable Harm
Deportation would sever familial, economic, and social ties. ZEP holders risk losing jobs, businesses, and property.
Immigration system delays and inefficiencies prevent timely visa applications, leaving no viable alternatives.

(e) Balance of Convenience
Harm to ZEP holders (rights violations, displacement) outweighs administrative burden on the state.
Previous extensions (December 2021 to June 2023) show the state can maintain the status quo.

4. Respondents’ Counterarguments
The decision was a policy choice within executive discretion, insulated from judicial review.
Sufficient time (18 months via extensions) was given for ZEP holders to apply for mainstream visas.
Parallel litigation (HSF/CORMSA case) addresses similar issues, risking contradictory rulings.
No imminent harm: Immigration officers retain discretion under Section 34 to avoid mass deportations.

5. Court’s Findings
(a) Prima Facie Right
Strong prospects of success in Part B review:
The Minister’s reliance on Section 31(2)(b) was legally flawed; termination required "good cause," which was not demonstrated.
Decision implicated constitutional rights, warranting judicial scrutiny.

(b) Irreparable Harm
Objective evidence showed deportation would uproot families, disrupt education, and destroy livelihoods.
Children’s best interests (Section 28) were paramount and threatened.

(c) Balance of Convenience
Preserving ZEP holders’ rights outweighed administrative inconvenience to the state.
Previous extensions proved feasibility of maintaining the status quo.

(d) No Alternative Remedy
Systemic delays in visa processing and lack of consultation rendered existing remedies ineffective.

6. Order

Interim Interdict Granted:
ZEP holders protected from arrest, detention, or deportation.
ZEP holders permitted to enter/depart South Africa under existing permits.
Part B Review: Applicants must file main review within 12 months.

Costs: Reserved for Part B.

Conclusion
The court emphasized constitutional protections and procedural fairness, ruling that the Minister’s decision posed grave risks to ZEP holders’ rights. The interim interdict ensures stability pending a full review of the decision’s legality and rationality.

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