BALANCING ACT: THE RULE OF LAW’S CHECK ON AUTHORITY IN SOUTH AFRICA

On 29 November 2021 – a day that most Zimbabwean nationals living in South Africa rue – a directive was issued by the Director-General of the Department of Home Affairs (DHA) confirming the Minister’s decision that there would be no further extensions to the holders of Zimbabwean Exemption Permits (ZEP’s). This Minister’s initial directive incorporated a “grace period” of 12 months, affording ZEP holders a limited period to legalise their status in South Africa through alternative means. Further grace periods were subsequently granted, the latest one having being due to end on 31 December 2023. 

The directive issued by the Minister was unsurprisingly challenged, arguably the biggest one coming from the Helen Suzman Foundation. A formal court application was initiated in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA), such legislation prescribing that any administrative act which materially or adversely affects the rights or legitimate expectations of any individual (or group of individuals) must be procedurally fair.

The  main thrust of this legal challenge was two-fold:

1.               It was argued that no attempt was made by the Minister to assess the impact of his decision on ZEP holders, many of whom had established their livelihoods within the Republic. This was supported by the fact that no public comment had been sought prior to the directive being issued.

2.               In addition, it was further and perhaps more pertinently argued that the Minister's decision amounted to an unjustified limitation of the rights of ZEP holders and their children, such rights being entrenched in the Constitution.

In consideration of the prevailing evidence before it, the High Court declared the Minister’s directive to be invalid, unconstitutional and unlawful; referring the matter back to the DHA for reconsideration in accordance with the principles prescribed by PAJA and the Constitution.

While the matter remains contentious, and it is not yet certain whether or not the DHA will challenge the court’s ruling in this regard, it is a timely example of the South African judicial system applying the rule of law without fear, favour or prejudice – an important check on the application of administrative authority in South Africa.

We trust that you found this article informative, please email info@hjwattorneys.co.za for assistance with all of your legal queries.

This article is provided for informational purposes only and should not be substituted for legal advice on any specific matter. Any opinions expressed herein are subject to the law as at the time of writing and will change in accordance with any change in the law. We recommend that you contact HJW Attorneys at info@hjwattorneys.co.za directly for advice applicable to your specific matter.