SCA sends home affairs minister packing in ZEP appeal
The Supreme Court of Appeal has rejected an appeal by the minister of home affairs against the Johannesburg high court order on Zimbabwe Exemption Permits (ZEPs), which give about 180,000 Zimbabweans a special dispensation to lawfully remain in South Africa.
The judgment also clears the path for the Zimbabwean Immigration Federation to return to court and argue that it is only parliament, and not the home affairs minister, which can decide whether to extend the ZEP regime.
In 2023, the Johannesburg high court set aside a decision by former minister Aaron Motsoaledi to terminate the ZEP regime and to reconsider his decision, following a fair process.
The SCA's judgment on Friday said that counsel for the minister told the court that 'the order is being implemented, and ... the minister is following a fair process'. But the federation wants to go back to court to argue that ZEP-holders and their children enjoy constitutional rights in South Africa. If these are to be limited, only parliament may do so — 'by enacting a law of general application,' says the SCA's judgment.
The SCA did not give a view on whether that argument was correct, but it rejected an appeal by the minister that would have prevented the federation from ever making it.
When the high court gave its order, the federation was one of the parties in the litigation, along with the Helen Suzman Foundation (HSF). Theirs were two separate cases, which were heard together. While the federation and the HSF both wanted similar orders, at that time, from the high court, their grounds were different. And while the HSF asked the court for a final order, the federation only sought an interim interdict — it wanted to argue its main case at a later date. The court gave a final order, as sought by the HSF, and also the interim interdict sought by the federation.
The minister had already tried, and failed, to appeal against the HSF order.
In this case, the minister approached the SCA on appeal, saying the interim interdict was 'redundant' since the court had already granted a final order to the HSF.
In Friday's judgment, the SCA disagreed. Judge of Appeal David Unterhalter said the federation's case 'raised distinctive grounds of review', which laid the basis for an argument that was not raised or argued earlier — about the powers of the minister when there were constitutional rights at stake.
If the federation's argument was to be accepted, it 'would not permit the minister to terminate the ZEP regime'.
'That is a remedial outcome of a considerably more far-reaching kind because it reaches into the future and is not based on a reconsideration,' said Unterhalter. The redundancy argument could therefore not hold, he said.
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TimesLIVE
19 hours ago
- TimesLIVE
SCA sends home affairs minister packing in ZEP appeal
The Supreme Court of Appeal has rejected an appeal by the minister of home affairs against the Johannesburg high court order on Zimbabwe Exemption Permits (ZEPs), which give about 180,000 Zimbabweans a special dispensation to lawfully remain in South Africa. The judgment also clears the path for the Zimbabwean Immigration Federation to return to court and argue that it is only parliament, and not the home affairs minister, which can decide whether to extend the ZEP regime. In 2023, the Johannesburg high court set aside a decision by former minister Aaron Motsoaledi to terminate the ZEP regime and to reconsider his decision, following a fair process. The SCA's judgment on Friday said that counsel for the minister told the court that 'the order is being implemented, and ... the minister is following a fair process'. But the federation wants to go back to court to argue that ZEP-holders and their children enjoy constitutional rights in South Africa. If these are to be limited, only parliament may do so — 'by enacting a law of general application,' says the SCA's judgment. The SCA did not give a view on whether that argument was correct, but it rejected an appeal by the minister that would have prevented the federation from ever making it. When the high court gave its order, the federation was one of the parties in the litigation, along with the Helen Suzman Foundation (HSF). Theirs were two separate cases, which were heard together. While the federation and the HSF both wanted similar orders, at that time, from the high court, their grounds were different. And while the HSF asked the court for a final order, the federation only sought an interim interdict — it wanted to argue its main case at a later date. The court gave a final order, as sought by the HSF, and also the interim interdict sought by the federation. The minister had already tried, and failed, to appeal against the HSF order. In this case, the minister approached the SCA on appeal, saying the interim interdict was 'redundant' since the court had already granted a final order to the HSF. In Friday's judgment, the SCA disagreed. Judge of Appeal David Unterhalter said the federation's case 'raised distinctive grounds of review', which laid the basis for an argument that was not raised or argued earlier — about the powers of the minister when there were constitutional rights at stake. If the federation's argument was to be accepted, it 'would not permit the minister to terminate the ZEP regime'. 'That is a remedial outcome of a considerably more far-reaching kind because it reaches into the future and is not based on a reconsideration,' said Unterhalter. The redundancy argument could therefore not hold, he said.
TimesLIVE
a day ago
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Governing body wins fight to change apartheid-era school name
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The Supreme Court of Appeal has upheld a Bellville school's decision to change its name from DF Malan High School to DF Akademie to distance itself from its apartheid past, despite objections from some parents. A Full Bench of the Supreme Court of Appeal (SCA) has dismissed a review application by four parents and found the school governing body (SGB) of DF Malan High School in Bellville, Western Cape, acted within its powers to rename the school in line with its values of inclusivity and academic excellence. This means the Afrikaans-medium school's name can be changed to DF Akademie, as suggested in May 2021. The voting for a new name took place in October 2021. Of the 3,466 votes received, the overwhelming majority, namely 85%, proposed DF Akademie. The litigation stems from Barend Rautenbach, Johan Smit, Francois Malan and Barend de Klerk taking umbrage against the SGB's decision after a consultative process in May 2021, to change the name of the school. 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A departmental circular, while instructing governing bodies to submit names to the provincial education department to enable it to check whether other schools bore the same name, expressly stated that a governing body's authority to change a school's name was beyond question. The Fedsas circular reminded governing bodies that changing a school's name was a sensitive matter and cautioned that wide consultation with all stakeholders, including parents, teachers, learners and the broader community, had to inform any decisions regarding a school's symbols, including its name, motto or emblem. Varied responses It was then suggested that the governing body create an ad hoc steering committee to oversee the consultation process and advise on potential new names or symbols. On 22 June 2020, the governing body wrote to all parents, students, alumni, and school staff on its database, informing them of its decision to begin a process to reconsider the school's name and symbols. 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They claimed SGBs did not have the authority to change a school's name, that the SGB departed from the procedure it originally shared with the school community, stifled debate and failed to properly consult on the name change. The SCA judgment dismissed the complaints. 'I find that in changing the school's name, the governing body was acting within the ambit of its implied powers in terms of the Schools Act; that the procedure it adopted to consult interested parties was comprehensive, fair and rational; and that the decision to change the school's name was taken with due regard to, and rationally connected to the information before it. The appeal must therefore fail,' it read. DM
