Ngoako Moropene
The recent High Court judgment that set aside the Minister of Home Affairs’ decision to terminate the Zimbabwean Exemption Permit (ZEP) programme has sparked anxiety.
This especially on whether the minister’s powers to deal with the ZEP were stripped by virtue of the order, and whether the court’s decision was in breach of the doctrine of separation of powers in our constitutional democracy.
The decision was the outcome of the application by the Helen Suzman Foundation for the court to set aside the minister’s decision on September 2 last year to terminate the ZEP programme (affecting 178 000 holders who would no longer have the right to live, work and study in South Africa under the Immigration Act), and to refuse any further exemptions.
Subsequently, the minister extended a grace period to June 30 this year, but remained adamant that his decision to end the ZEP programme remained unchanged.
The Constitution of the Republic of South Africa provides that “there shall be a separation of powers between the Legislature (Parliament), the Executive (the Cabinet) and the Judiciary (the courts), with appropriate checks and balances to ensure accountability, responsiveness and openness.
The doctrine of separation of powers is the yardstick for good governance in our constitutional democracy.
None of the branches or arms of the government is enjoined with the powers to usurp the function of the other in our constitutional democracy. Thus, for example, the judiciary cannot do what is reserved for the executive to do based on the constitutional powers vested solely in the executive.
Should any of the other branches or arms of the government usurp the function(s) of the other branch or arm of the government, that will be reviewable under the constitutional principle of legality.
No branch or arm of the government can exercise powers that it doesn’t have under the law.
In the ZEP judgment, the questions were: Did the minister exercise his powers within the bounds of the law when dealing with the ZEP saga? Was the minister’s decision to terminate the ZEP programme reviewable under the Promotion of Administrative Justice Act, the principle of legality and a constitutional infringement? And does the decision of the court breach the doctrine of separation of powers, by usurping the function of the minister?
The minister’s decision is reviewable under the act, the principle of legality and also as a constitutional infringement.
The decision of the court in granting the Helen Suzman Foundation a favourable outcome is beyond reproach and therefore does not in any way interfere with the executive, nor does it usurp the functions of the executive or the minister.
The decision amounts to a command for checks and balances to be effectively realised and for the minister to be restrained from exercising unchecked draconian powers that were not envisaged in the Constitution.
The exercise of draconian powers, in this instance, is a simple failure to consult properly within the realm of Section 33 of the Constitution when taking an administrative decision.
Section 33 deals with just administrative action, and states that everyone has the right to administrative action that is lawful, reasonable and procedurally fair. Anyone adversely affected by a decision has the right to be given written reasons.
In addition, national legislation must be enacted to give effect to the rights, and must provide for the review of administrative action by a court or, where appropriate, an independent and impartial tribunal; impose a duty on the state to give effect to the rights in subsections (1) and (2); and promote an efficient administration.
The question must be asked whether the court overstepped the mark in setting aside the minister’s decision as unlawful, or when making a ruling ordering the minister to consult ZEP civil society groups, and members of the public, among others, within 12 months from the date of the order?
It is clear that the court did not interfere with the minister’s executive powers to fulfil the obligations vested upon him to implement the Immigration Act and, by extension, the immigration policy of the country.
The court’s decision was a fulfilment of the constitutional obligation for checks and balances as required in the doctrine of separation of powers in the constitutional democracy, fostering accountability, responsiveness and openness or transparency in the administrative decision taken by the administrative authority.
The minister’s administrative decision must be in keeping with the prescripts of the law and must always be fair, just, equitable and free from discrepancies.
The judgment found that the minister’s decision was made without prior notice or proper consultation with ZEP holders and the public, and an invitation for representation was made after the minister’s decision had long been taken or announced.
While the minister had publicly announced the decision to terminate the programme, the director general of his department stated in an answering affidavit that no such decision by the minister had been taken.
The answering affidavit was not accompanied by a confirmatory affidavit by the minister.
Furthermore, the judgment found that the minister’s decision was procedurally unfair, procedurally irrational and reviewable under the act, principle of legality and constitutional infringement due to the absence of any prior consultation process with the affected ZEP holders, civil society group.
Advocate Moropene is from Lembede Tambo Pitje Chambers in Pretoria.
Cape Times