WeeklySA_AdminOVERREACH: The interim interdict caused serious harm and implicated the doctrine of the separation of powers
By Monk Nkomo
The interim court interdict granted against the Minister of Home Affairs, Aaron Motsoaledi, regarding the termination of the Zimbabwe Exemption Permit (ZEP) system about three months ago, encroached on the exercise of statutory powers assigned to him, implicated the doctrine of the separation of powers and disrupted the enforcement of immigration laws.
The decision by the Full bench of the High Court in Pretoria to grant this interim order on June 28 this year, amounted to a clear case of judicial overreach in circumstances where the court was ill equipped to make such a decision.
These submissions are contained in an application for leave to appeal by Tommy Makhode, Director General of the Home Affairs department who, together with the Minister, are seeking an order to argue their case in the Supreme Court of Appeal.
The Full bench had ruled that the termination of the ZEP by Motsoaledi was unlawful and set it aside following a challenge by the Helen Suzman Foundation (HSF).
The three judges ruled that the matter be referred back to the Minister to conduct a proper public participation process. The Minister made his intentions clear after this judgment that he was going to appeal the ruling.
The HSF, however brought an application seeking an order to enforce the interim order arguing that the Minister’s application for leave to appeal had no prospects of success.
In their response challenging the HSF’s application for the interim interdict to be enforced, Makhode submitted in his affidavit that the undertaking sought by the HSF from the Minister was that he should not exercise his executive functions as entrusted by the Immigration Act. ‘’ The undertaking sought is tantamount to restraining the exercise of statutory power within the exclusive terrain of the executive branch of government.’’
This undertaking was also disruptive of the executive functions conferred by law on the Minister and implicated the tenet of the division of powers.’’ Although the Minister has applied for leave to appeal the court’s judgment and orders, such an application for leave to appeal is on a different footing in that it challenges the court’s judgment and orders on the basis that it disrupts the executive functions conferred by law on the Minister.’’
The respondents in the matter includes Motsoaledi, Makhode and the All Truck Drivers Forum and Allied South Africa.
The HSF are seeking an interim enforcement of the interim court order and not a final order. ‘’ The court lacks jurisdiction to grant that order by virtue of section 18 (2) of the Superior Courts Act,’’ according to Makhode. The essence of the HSF application was to have ZEP holders accorded permanent residency in the country through ‘’ the back door’’ without any challenge to the Immigration Act and Regulations. He asked the court to dismiss their application.
The ZEP holders were at all times aware that this program was temporary. It was also made clear at all relevant times to those who had applied for exemptions that the exemption regime for qualifying Zimbabwean citizens was never meant to be permanent. All ZEP holders were forewarned that the regime would come to an end at some point in the future.
According to Makhode, this was an express condition of the ZEPs, which all ZEP holders accepted as is evident from the fact that no challenge was brought to the temporary nature of the ZEPs or its predecessors by those who sought to benefit from the regime at the time.
Makhode submitted that the decision taken by the Minister not to extend the ZEP, involved the weighing of policy considerations that fell within the domain of the executive.
The judgment dealt with matters relating to a sacrosanct principle of separation of powers. The Minister had provided his reasons for taking issue with the court’s judgment and orders. ‘’ The courts are not immune to criticism in a constitutional democracy.’’
The DG denied that the Minister had refused all future extensions of the ZEPs saying instead, three directives were issued in 2021 when the validity of ZEPs were extended to 31 December, 2022. A further directive extending the validity of the ZEPs was from 31 December 2022 to 30 June 2023.
The most recent directive extended the validity of the ZEPs to 31 December 2023. ‘’Given the history of the extensions, it is inconceivable that the Minister’s mind is shut to possible future extensions.’’
The HSF sought to vary the interim order of the court. They were effectively seeking the restraint of the exercise of statutory power within the exclusive terrain of the executive branch of government in perpetuity.
‘’ This is notwithstanding the express time limitation of the ZEPs from inception and the fact that ZEPs were issued with an express condition that holders were not eligible for permanent residence irrespective of their length of stay in the country. The ZEP program has always been temporary in nature.’’
The interim interdict by the Full Bench, Makhode, submitted, was appealable as it was in the interests of justice to do so. It encroached on the exercise of statutory powers assigned to the Minister, implicated the doctrine of the separation of powers.
‘’ Furthermore, its harm is serious, immediate, ongoing and irreparable. It disrupts the enforcement of immigration laws.’’
The matter was argued virtually this week by lawyers representing both parties and judgment was reserved.
