The termination of the Zimbabwe Exemption Permit Program has been the most contentious immigration issues of the year.  In November of 2021 the Government announced that it would not be continuing with the Program, a move which put the future of over 170 000 Zimbabweans into question.

Several groups have challenged the decision and taken the matter to court. The matter has been set down for hearing next month. A lot has been said in the media about the unlawfulness of the Governments decision with some challenging the morality of the decision. The overarching reaction has been emotional and highly charged, as evidenced by the public spat between the Minister and one of the attorneys representing the applicants.

For us as immigration law consultants, this case presents an opportunity to test the limits of judicial review principles as they apply to executive or policy decisions. At the heart of this decision is the question, “can a policy decision be reviewed by the court’s and if so are there any limits on such review”. The answer to this question is critical in understanding the nature of the dispute and the possible fate of more than 170 000 recipients of the Zimbabwe Exemption Permit.

A preliminary point to be made is that this commentary does not in any way seek to pre-empt the court process under way. It is more an analysis of how our judiciary has dealt with similar issues in the past.  A review of the history and jurisprudence in relation to such matters can be rather eye opening.

Both cases brought by the Helen Suzman Foundation and the Zimbabwe Immigrants Federation, challenge the Governments decision under the Promotion of Administrative Justice Act (“PAJA”). PAJA is the legislative instrument that seeks to give effect to the constitutionally guaranteed right to administrative action that is lawful, reasonable and procedurally fair (section 33). Without going into the details of public administrative law principles,  the first question to answer in every case involving the exercise of public power is whether the action constitutes administrative action.

There are three branches of Government that exercise public power, namely; the Executive, the Legislature  and the Judiciary. Each branch acts as check and balance to the abuse of public power by any of the other two branches. Each branch must be careful not to wade into another branches` sphere of authority. The principle of separation of powers guides how and when a branch of Government can perform its checks and balance function.

Within the realm of the executive branch, it is accepted that there are acts which in themselves are administrative in nature, such as the decision to issue or reject a visa. There are those that are political or policy related which do not rise to the level of administrative action.  In President of RSA v SARFU  the Constitutional Court noted that the focus of an enquiry as to whether conduct is administrative action is not on the  branch of Government acting, but the nature of the power the actor is exercising. The court further stated that tasks of formulating policy and initiating legislation are constitutional responsibilities of the executive branch and cannot be considered as administrative action.

An analysis of other landmark cases, Fedsure Life Assurance v Greater Johannesburg Transitional Metropolitan  and Pharmaceutical Manufacturers Association of SA: In re Exparte President of RSA, shows that the implementation of legislation is  an important factor in determining  whether action is administrative.

The decision to issue a dispensation permit to Zimbabweans or any of the other recipients of special permits, is in our view, a political or policy making decision. There was and is no statutory instrument which states that the Government must issue such permits. The Immigration Act 13 of 2022 (“Immigration Act”) does not have a section dealing with special permits. This was a Government policy initiative aimed at achieving the articulated policy objectives.

The Governments policy objectives are detailed in the White Paper on International Migration (“White Paper”). They locate these policy interventions within the context of the labour migration patterns of Southern Africa that have been part of the regions history. The White Paper states the objectives as being  to outline how south Africa can manage international migration in a way which aligns to and advances African-centred foreign policy, and contributes to continental efforts to ease the movement of Africans in Africa. It also proposes as pragmatic approach which balances acceptance of the reality that some economic migration to South Africa is inevitable, with the need to ensure unemployed, poor and working class South Africans are the primary beneficiaries of employment and other economic opportunities.“

The White Paper goes on to assess the impact of dispensation permits and accepts that they have  been very effective. It further states that the SA visa regime should be expanded  to carefully manage economic migration from its neighbours, having due regard to the short and longer term socio-economic impact in South Africa and migrant home countries. It concludes by making recommendations on three SADC visas along the same lines as the Zimbabwe Special Permit and Lesotho Special Permit and other amnesties.  In essence the Government policy projected the end of the special permits and the creation of a new SADC visa to replace them.

Viewed in this context, the decision to withdraw the Zimbabwe Exemption Permit falls outside the ambit of administrative action. The decision was made by cabinet, acting as the executive authority and was announced by the Minster in the Presidency, not the Minster of Home Affairs acting in terms of the authority granted to him by the Immigration Act.

In the Helen Suzman Foundation case, the submission is made that they do not seek to challenge the decision, but rather the manner in which the decision was arrived at and the procedures in place to give effect to the decision. In our view, this approach is one that is sound in law, having regard to the available jurisprudence on the subject. Was it rational to terminate the special permit project without making provision for the envisaged SADC permit? Is it rational not to include accompanying dependents in the transitional arrangements in place?  Should another extension be given, but with clear guidelines on the proposed SADC visa and when it would be implemented to coincide with the termination of the special permits?

Challenging the decision in its entirety wades into the realm of separation of powers, where the courts are weary to tread. In the more recent OUTA case involving E-tolls, the Constitutional Court found in favour of the National Treasury and held that beyond the common law, separation of powers is a vital tenet of constitutional democracy. Courts must refrain from entering into the exclusive terrain of the executive and legislative branches of Government, unless the intrusion is mandated by the Constitution. This decision highlights the courts hesitation in making decisions that would have the effect of usurping the executives political authority and mandate. There has to be exceptional circumstances to warrant such an intrusion.

Whether the challenges to the decision to revoke the Zimbabwean Exemption Permit constitute such exceptional circumstances remains to be seen and will be for the court to decide. What is certain is that when all is said and done the principle of separation of powers will be put to the test.

Author: Munyaradzi Nkomo