Home Affairs Minister Aaron Motsoaledi says the Gauteng High Court in Pretoria had no right to "interfere" with the government's decision to terminate 14-year-old Zimbabwe Exemption Permits (ZEPs).
However, through his advocate, William Mokhare, he added that he was open to extending the 31 December deadline for the special permits, which granted legal status to around 178 000 Zimbabweans living in South Africa.
Motsoaledi is applying for leave to appeal the High Court's 28 June ruling that found the minister's decision to end the ZEPs "unlawful, unconstitutional, and invalid".
The court extended the permits for 12 months from 28 June, pending the conclusion of a "fair process" that includes an adequate public participation process the court found had not been done before the 7 June gazette for the ZEP termination.
The June judgment followed the Helen Suzman Foundation's application to set aside Motsoaledi's announcement to discontinue the special permits, which began in 2009.
During a virtual hearing on Monday, Mokhare told the High Court that Motsoaledi agreed that the ZEP issue was "not only a matter of great importance and considerable public significance, but…a matter that raises huge constitutional implications".
Mokhare said its importance entailed the government's prerogative to deal "with the acceptance of foreigners within its own borders" – factors, Mokhare contended, that included "asylum, immigration, refugee, economic, political, and socioeconomic considerations".
He recalled that the reasons for the special dispensation was political and economic "instability" in Zimbabwe, which caused "strain" on South Africa due to "the influx" of citizens in the country's northern neighbour.
"The only way the minister's decision could be attacked is whether the minister's decision is rational. Rationality is a low-threshold type of review because it is more linked to the principle of deference, where the courts are loathed to interfere with executive decision-making, particularly where it is more linked to policy," Mokhare said, adding that policy was not a "specialised terrain" of the courts.
"If the court finds that the initial decision, which was to give reprieve on a temporary basis for Zimbabweans because of the situation in their country, then the court cannot interfere with the decision to terminate if the executive [the government] concludes that those conditions are no longer prevalent. And therefore, this dispensation must come to an end."
But Mokhare said Motsoaledi was not opposed to extending the deadline.
"Nothing prevents the minister from always looking at the conditions prevalent at the time and [taking] a decision that does not adversely affect the ZEP members."
However, the Helen Suzman Foundation – through its advocate, Carol Steinberg – asserted that Motsoaledi's application should be dismissed. Steinberg said the minister should be given a "punitive costs order" because his appeal had "no prospects of success" at the Supreme Court of Appeal.
"A mere possibility of success, an arguable case, or one that is not hopeless is not enough. In short, our argument is that there are actually zero prospects of success in this case," Steinberg asserted.
She added that the 178 000 people affected by Motsoaledi's decision to terminate the permits had an "iron-clad right" to be heard before regulations were put in place.
"In law, there is a watertight obligation to hear what affected people have to say before a decision impacting on their lives is made. It is the first principle of natural justice. It is [not in doubt] that the minister did not, in fact, hear from the affected people before making the [termination] decision. He called for representations later," Steinberg said.
"There is no court in South Africa that will ever say that the minister is entitled to make a decision – which profoundly impacts on the lives of many, many people – without hearing from them first," she added.
Her views were supported by advocate David Simonsz, who represented the Consortium for Refugees and Migrants in South Africa. Simonsz said no one – including the High Court – wanted to interfere with the government's work.
He added that the Department of Home Affairs had to use the court-ordered 12-month extension to do a proper public participation process.
"What the minister should do is take the opportunity afforded to him by this court to follow a lawful process and make whatever decision he chooses to make – once he takes into account the just and proper submissions and representations of those affected. That is the proper way forward," Simonsz argued.
But Mokhare dismissed the argument that there was no public consultation, saying the law allowed participation whether before or after a decision is taken and that the government had solicited views and opened visa applications for existing ZEP holders, who would not be affected by the December deadline should it arrive without their applications being finalised.
"The point here is that we say there was [consultation] – there was [consultation] adapted to the circumstances of the case. We submit that there are prospects of success on the merits."
The High Court reserved judgment.