The Role of the Judiciary in Protecting the Right to Administrative Action for Non‑Citizens

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After more than a decade of living in South Africa, roughly 178 000 Zimbabwean Exemption Permit (ZEP) holders’ lives were upended when the Department of Home Affairs (DHA) announced that the ZEP would be terminated.

This was done without prior notice to or consultation with ZEP holders or the South African public at large. The ZEP has existed since 2009, providing lawful residence in South Africa to Zimbabwean nationals fleeing their country’s political and economic collapse. The Helen Suzman Foundation successfully challenged the termination on administrative law grounds at the Pretoria High Court, which found the termination unconstitutional due to the lack of fair process.

Since the decision whether to grant or withdraw the ZEP lies solely in the discretion of the Minister of Home Affairs (Minister), who is appointed by a government unelected by ZEP holders, the judiciary takes on a uniquely protective role when adjudicating such a case. In this regard, the ZEP case is a noteworthy example of the judiciary balancing two things. First, the judiciary’s constitutionally mandated role to uphold the right to just administrative action, which the South African Constitution extends to citizens and non‑citizens alike. Second, the judiciary’s duty to display an appropriate level of deference to the role of the executive within the decision‑making process.

The vulnerability of ZEP holders

ZEP holders are a particularly vulnerable group given the legal nature of their permits and their political relationship to the decision-makers who govern them. Despite having been renewed several times, the ZEP remains a temporary means of lawful residence in South Africa. What’s more, a condition of the ZEP is that the years spent in South Africa as one of its holders cannot count towards an application for permanent residence. This makes ZEP holders even more vulnerable than their refugee counterparts, whose permits do allow for eventual permanent residency.

“…the courts as the ‘ultimate guardians’ of the Constitution and is mandated to intervene when rights violations have occurred”.

Moreover, decisions regarding ZEP holders’ lives are in the hands of political decision‑makers and a governing party unaccountable to ZEP holders. This is because the right to vote in South Africa is reserved for citizens who have access to political accountability because they play a direct role in electing officials to power. However, for non‑citizens, the judiciary is often their only line of defence against rights abuses by the state.

The judiciary’s role in protecting ZEP holders

In Glenister II, the Constitutional Court established the courts as the ‘ultimate guardians’ of the Constitution and is mandated to intervene when rights violations have occurred.  In Doctors for Life, Ngobo CJ (as he was then) at paragraph 33 went on to state that ‘it is in the performance of this that courts are more likely to confront the question of whether to venture into the domain of other branches of government and the extent of such intervention’. This sentiment echoes the preferred definition of deference that Hoexter and Pennfold have endorsed as the ‘articulation of principles to guide judicial intervention and non-intervention in administrative law’.

Although the judicial debate regarding deference is wide-ranging, it becomes more nuanced when one considers groups of individuals – like non‑citizens – who have guaranteed access to the judiciary alone. Nonetheless, the judiciary must ensure that they do not overstep into the terrain of the executive in their attempt to remedy violations of administrative rights.

Yet, when one considers that non-voters, in principle, have no access to the political mechanisms that hold the executive accountable, the judiciary’s role is more pronounced in mitigating an overconcentration of power within the executive by engaging their legitimate role in the judicial review process.

Deference and Administrative Justice

In the ZEP judgment, the court considered the DHA’s argument that it would be violating the separation of powers doctrine by setting aside and remitting the decision to terminate the ZEP back to the Minister. This is because the DHA argued that the power to grant and/or terminate exemption permits lies solely with the Minister. However, the court disagreed because the Minister’s powers are necessarily constrained by the constitutional imperative to make decisions that give effect to the right to just administrative action. Further, when a court has made a finding that a constitutional right has been unjustifiably infringed, it cannot avoid its institutional responsibility ‘to grant just and equitable remedies’.  In the ZEP case, that remedy was simply to give the Minister another chance at making his decision in a procedurally fair manner.

If the courts are able to uphold this precedent and conduct judicial review proceedings with an appreciation of how the executive is constrained by the principles of administrative justice, concerns about deference need not stand in the way of the judiciary protecting non‑citizens from state decision‑making that adversely affects their rights. Such an approach to deference ensures that constitutional values and rights will be advanced for marginalised individuals who have been excluded from having their voices heard by other branches of government.