THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 245/2024
In the matter between:

MINISTER OF HOME AFFAIRS FIRST APPELLANT
DIRECTOR -GENERAL OF THE DEPARTMENT
OF HOME AFFAIRS SECOND APPELLANT

and

VINDIREN MAGADZIRE FIRST RESPONDENT
ZIMBABWE IMMIGRATION FEDERATION
NPC SECOND RESPONDENT

Neutral citation: Minister of Home Affairs and Another v Vindiren Magadzire and
Another (245/2024 ) [2025] ZASCA 81 (6 June 2025)
Coram: MOCUMIE, MBATHA and UNTERHALTER JJA and DAWOOD
and MODIBA AJJA
Heard : 13 May 2025
Delivered : This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal
website and released to SAFLII. The date and time for hand -down of the judgment
is deemed to be 11h00 on 6 June 2025.
Summary: Judicial review – final relief in one review – interim relief pending
another review – overlapping grounds of review and orders – redundancy – interim
relief as discretionary relief – mootness – res judicata – issue estoppel .
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ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Collis and
Malindi JJ and Motha AJ , sitting as a court of first instance ):
The appeal is dismissed with costs, including the costs of two counsel.
























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JUDGMENT

Unterhalter JA ( Mocumie, Mbatha JJA and Dawood, Modiba AJJA
concurring ):

Introduction
[1] Since 2000, a substantial number of Zimbabwe nationals have come to South
Africa . Some claim the protection of South Africa as refugees and asylum seekers;
some have left Zimbabwe complaining of systemic discrimination; and others are
likely to be economic migrants. The South African authorities lacked the
administrative capacity to d etermine the status of so many migrants , and to make
decisions concerning their rights. From 2009, the first appellant, the Minister of
Home Affairs (the Minister) has exercised powers under s 31(2) of the Immigration
Act 13 of 2002 (the Immigration Act) to permit some 180 000 undocumented
Zimbabweans to remain lawfully in South Africa. This was done under successive
permitting regimes, the most recent of which is the Zimbabwe Exemption Permit
(ZEP , and in the plural ZEPs ).

[2] In November 2021, the Minister announced that he would not be extending
the ZEP regime, and ZEPs were due to expire on 31 December 2021. On 29
December 2021, however, the Minister issued Immigration Directive No 1 of 2021
extending the ZEPs for a further 12 months to permit holders to apply for visas under
the Immigration Act. This extension was preceded by an announcement issued by
the Cabinet, on 24 November 2021, that the ZEP dispensation would not be
renewed. A grace period of 12 months would be given t o allow Zimbabwe nationals
who had enjoyed exemptions under the ZEP regime to regularise their status in terms
of the Immigration Act, hence the Immigration Directive No 1.

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[3] The respondents, Mr Magadzire and the Zimbabwe Immigration Federation
NPC brought proceedings in the high court (Gauteng Division, Pretoria) to review
the decision of the Minister not to renew the ZEP regime . Mr Magadzire is a
Zimbabwean who lives and works in South Africa. The Zimbabwe Immigration
Federation NPC (the Federation) is a voluntary association of ZEP holders and their
immediate family members. The proceedings in the high court were brought in the
interest s of Mr Magadzire and the Federation , its members, and in the public interest.
I shall refer to the respondents collectively as the Federation .

[4] The Federation’s application was brought in two parts. Part B sought to
review and set aside the decision of the Minister taken in terms of s 31(2) (d) of the
Immigration Act not to extend the exemptions granted to Zimbabwean nationals
under s 31(2) (b). In addition, the Federatio n prayed that the matter be remitted back
to the Minister to reconsider whether to grant an extension of the exemptions, to do
so observing procedural fairness in terms of ss 3 and 4 of the Promotion of
Administrative Justice Act 3 of 2000 (PAJA); and while doing so, interdicts were
sought , in essence, to ensure that ZEP holders continue to secure the benefits of the
exemptions that they once enjoyed. I shall refer to this relief as the original Part B
relief. In Part A, the Federation sought interim relief, pending the outcome of the
original Part B relief. In essence, an interim interdict was sought to prevent the arrest
or deportation of ZEP holders, to prevent them from being dealt with as undesirable
persons or illegal foreigners under the Immigration Act, and to permit ZEP holders
to enter and exit South Africa without detriment. I shall refer to this relief as the Part
A relief.

[5] The Minister filed an answering affidavit opposing the application. The
Director General, Mr Makhode, who deposed to this affidavit, made the following
plain: ‘This affidavit deals only with the interim relief sought in Part A . . .’. When
the matter came before a full bench of the high court, it was set down for hearing
before the same court as another application which has now resulted in a judgment
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in Helen Suzman Foundation v Minister of Home Affairs (Helen Suzman ).1 It is
common ground before us that in Helen Suzman the applicants in that case sought
to review th e same decision of the Minister that is challenged in th e application
brought by the Federation . The applicant s in Helen Suzman prevailed. The high
court made an order, in sum : to declare unlawful, review and set aside the decision
of the Minister to terminate the ZEP regime; to remit the matter to the Minister for
reconsideration, following a fair process; and pending the conclus ion of that process
and the Minister’s further decision within 12 months, ZEP ho lders would enjoy
protections akin to the interim relief sought in the Part A relief in the Federation’s
application . I shall refer to this order as the HSF order.

[6] What precisely occurred before the high court when the Helen Suzman and
the Federation applications were called is not a matter of record before us. However,
the following is clear from the judgment given by the high court (per Collis, Malindi
JJ and Motha AJA) in th e appeal now before us . The Federation, at the
commencement of the proceedings, sought to move for final relief on the basis that
the Federation waived its right to the record under Rule 53, and was willing to
proceed on the papers as they stood. The Minister opposed this. His counsel
contended that , as I have obser ved, the answering affidavit was framed to be
responsive to the Part A relief; that the Minister wished to file further affidavits to
deal with the original Part B relief, and the Minister would be prejudiced if he could
not do so. The high court ruled, after a short adjournment, that it would only hear
the Part A relief.

[7] That was understandable, given the stance of the Minister. But it is also
common ground before us that the high court proceeded to hear the Federation
application in the motion court wee k that the same court heard the Helen Suzman

1 Helen Suzman Foundation & Another v Minister of Home Affairs and Others (32323/2022 ) [2023] ZAGPPHC 490
(28 June 2023) .

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application. That was an application for final relief to review and set aside the
Minister’s decision not to extend the ZEP regime. The relief sought by the applicants
in Helen Suzman was ultimately granted by way of the HSF order.

[8] What the high court did not explain in its judgment in Helen Suzman , nor in
the judgment now on appeal before us , was what would transpire if it were to grant
final relief in Helen Suzman , and the Part A relief to the Federation. That is precisely
what occurred. In Helen Suzman , we were informed by counsel for the Minister , the
Minister sought leave to appeal. This was refused, as was the Minister’s petition to
this Court. The HSF order made in Helen Suzman is thus being implemented, and,
as a result, the M inister is following a fair process, we were told, to reconsider his
refusal to extend the ZEP regime. Pending this, ZEP holders enjoy the protections
extended by the HSF order , akin to the Part A relief sought in the Federation ’s
application . The same court also granted the interim relief sought by the Federation :
being the Part A order. The judgments in both cases were handed down on the same
day, 28 June 2023, by the same court . The Minister sought leave to appeal the Part
A order. The high court refused leave to appeal. The Minister petitioned this Court
for special leave, which leave was granted.

[9] The principal contention advanced before us by the Minister was this. The
HSF order is final relief. Efforts to appeal the HSF order have been exhausted, and
the order is in effect. This means that the Minister’s decision not to extend the ZEP
regime has been set aside. There is no point in the Federation’s Part B relief. This
relief seeks to review and set aside the very same decision that was reviewed and set
aside in the HSF order. Once that is so, the Part A order cannot be sustained because
it is inter im relief granted pending the set down for hearing of the Part B relief. The
Part B relief cannot be litigated because it has been secured u nder the HSF order. In
sum, once the high court had decided to grant the HSF order it could not make the
Part A order, and hence the Part A order cannot stand . This Court should, on appeal,
set it aside , and replace it with an order dismissing the Part A application, with costs.
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Furthermore, t he HSF order also protects those persons on behalf of whom the
Federation’s application was brought , whilst the Minister reconsiders his decision
and pursues a fair process . The Minister argued that the Part A order should not have
been granted by the high court, and invoked mootness, res judicata , and issue
estoppel as the basis for this argument. I will reference the Minister’s argument as
the redundancy argument .

[10] The Federation contends that the Minister’s appeal should be dismissed. First,
it submits that the Part A order is not appealable. Second, if it is appealable , the
redundancy argument is flawed because the cause of action that the Federation will
pursue in Part B is distinctive, and does not replicate what was decide d in the Helen
Suzman case. Further, the apparent identity of the relief secured by the HSF order
and the original Part B relief no longer holds. Since the HSF order was handed down,
the Federat ion has amend ed its Part B relief. We were furnished with a copy of the
amend ed notice of motion. The amended Part B relief , although it retains a prayer
to review and set aside the decision of the Minister not to extend the ZEP regime,
now also seeks declaratory relief that this decision of the Minister is
unconstitutional. Counsel for the Federation explained that the basis of this
declarator is that the Minister does not enjoy the power to undo or revise the
protections that ZEP holders have enjoyed over a long period – only Parliament may
do so. This is so in virtue of the constitutional rights of ZEP holders, and the
exclusive competence of Parliament to abridge these rights. In addition, Part B of
the Federation’s application raises an issue of law that formed no part of the Helen
Suzman case. The issue is this. Section 31(2) (b)(ii) of the Immigration Act permits
the Minister to withdraw a right ‘for good cause’. The Minister, so it will be
contended in Part B, did not establish the jurisdictional fact of good cause to enjoy
the power to bring to an end the dispensation of exemption enjoyed by ZEP holders.
The Minister thus acted ultra vires in doing so. And would continue to do so, if,
following the implementation of the HSF order, he was again to seek to decide to
revoke the exemption dispensation. In sum, the Federation submits that both as to
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the cause of action it relies upon in Part B and the amended relief it now seeks, Part
B concerns live issues for the high court to determine that were not decided in the
Helen Suzman case. Hence, the Part A order continues to enjoy efficacy and has no
redundancy , notwithstanding the HSF order.

Appealability
[11] I turn first to the question as to whether the Part A order is appeal able. In
Lebashe ,2 the Constitutional Court decided that an interim interdict may be
appealable, even if it lacks the attributes identified in Zweni ,3 if the interests of
justice so dictate. Quite what this capacious criterion entails is a work in progress.
In this matter, the Part A order does not meet the test in Zweni: it may be altered by
the high court; it is not predicated on any definitive determination of the rights and
obligations of the parties; and it does not dispose of the main issues that now fall for
decision under the amended relief sought in Part B. Howeve r, I am nevertheless of
the view that it would be in the interests of justice for this Court to entertain this
appeal. That is so because the principal ground of appeal raised by the Minister poses
a somewhat novel question as to whether the high court could have made the Part A
order, in the face of what it ordered in the Helen Suzman case. If we do not resolve
this question, the parties will be left in some doubt as to whether the Part A order
can be enforced. This uncertainty would be prejudicial both to the Minister and the
Zimbabwean nationals on whose behalf the Federation brought its application. For
these reaso ns, the Pa rt A order is appealable, and I do so find.

The Part A order
[12] I recall that the redundancy argument proceeds from the premise that the Part
A order should not have been granted by the high court because it is predicated upon
the Part B relief which cannot be litigated because it was determined in the Helen

2 United Democratic Movement and Another v Lebahse Investment Group (Pty) Ltd and Others [2022] ZACC 34;
2022 (12) BCLR 1521 (CC); 2023 (1) SA 3 53 (CC) paras 43 -45.
3 Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 532J -533A .
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Suzman case by the very same court that granted the Part A order. The Minister
sought to advance this argument under different propositions of law. The Part A
order was said to be moot, alternatively the relief should not have been granted by
reason of the doctrines of res judicata or issue estoppel.

[13] None of these legal characterisation s has purchase. If the Part A order had
become moot because it was overtaken by the HSF order, that would be a basis for
us to decline to entertain the Minister’s appeal. Res judicata also cannot be relied
upon. The parties in the Helen Suzman case are not the same as those who brought
the proceedings in the Federation’s application. There may be some question as to
whether the HSF order is in rem . But as I shall explore in what follows, the
Federation is not seeking the same thing on the same grounds as th at which was
sought in the Helen Suzman case.4 Res judicata is thus not a defence that was
available to the Minister to preclude the high court from giving the Part A order.
Nor is it available on appeal. So too, issue estoppel does not arise: the parties are not
the same, and there remain issues for determination in Part B that are distinctive.

[14] The difficulty that has arisen in this case is attributable to the disposition of
the Federation’s application and the Helen Suzman case by the high court. The
Minister made it clear at the commencement of the hearing of the Federation’s
application that his answering affidavit served only to deal with the order sought by
the Federation in Part A , and that it would be prejudicial to the Minister were the
high court to entertain the final relief sought by the Federation in Part B. This much
is clear from the judgment of the high court. Once the high court decided that it
would proceed only with Part A of the Federation’s application, it should have given
some consideration to the question as to what consequences would result should it
transpire that the Federation secured an order under Part A, and the applicants in the
Helen Suzman case obtained fin al relief. Since both applications were set down

4 African Farms and Townships Ltd v Cape Town Municipality 1963 (2) 555 (A) at 562A .
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before the same court , in the same week, there was reason to expect such
consideration. What transpired is simply that the high court handed down judgment
in both cases on the same day. It would have been prudent, even if consolidation
was not ordered, to have considered the question of interim relief in both cases, and
when Part B of the Federation’s case was ripe, then to have he ard both cases
together. Regrettably, that did not happen, and we must determine the legal
consequences of the grant of the Part A order and the HSF order.

[15] The essential complaint of the Minister is that the high court could not, and
most certainly should not, have made the Part A order, if it was to make a final order
in the Helen Suzman case to review and set aside the Minister’s decision to terminate
the ZEP regime. In OUTA ,5 the Constitutional Court offered cautionary words as to
the grant of injunctive relief that restrains the exercise of executive or legislative
competence. The case before us is very different, but the cautionary warning remains
salient. An interim interdict is a discretionary remedy. Where an interim order
sought at the instance of litigants in case A would be entirely redundant because a
final order granted (or to be granted) in case B would entirely dispose of the final
relief that was ultimately to be sought in case A, there would be strong reasons for
a court to decline to grant an interim order. That would be so, even if the
requirements of res judicata or issue estoppel are not met. First, there would be no
apprehension of irreparable and imminent harm if the interim interdict were not to
be granted in case A because the remedy in case B would likely cure any such
apprehension. Second , there would , in addition, be reason in case A to exercise the
court’s discretion against the grant of interim relief because it would serve no
purpose.

[16] The question is whether the grant of the Part A order by the high court is a
case of such redundancy. I have set out above the essential features of the

5 National Treasury v Opposition to Urban Tolling Alliance [2012] ZACC 18; 2012 (6) SA 223 (CC) ; 2012 (11)
BCLR 1148 (CC) (OUTA ) para 65 .
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Federation’s cause of action. I recall that the Federation invokes the constitutional
rights of ZEP holders and contends that the Minister’s decision to terminate the ZEP
regime is ultra vires . We do not have the benefit of the papers that served before the
high court in Helen Suzman . However, the judgment in Helen Suzman does traverse
the grounds upon which the decision of the Minister was claimed to be reviewable ,
and which led the court to review and set aside the Minister’s decision.

[17] In essence, the case made out by the applicants to the satisfaction of the high
court in Helen Suzman was predicated upon three grounds of review. First, the
Minister’s decision was procedurally irrational because, as the court held, ‘the
Minister not only failed to invite representation but also failed to consider any
representations before taking the de cision’ . Second, the Minister failed to assess the
impact of a decision to terminate the ZEP regime upon the constitutional rights of
ZEP holders, their families, and children. The court found no evidence that the
Minister had done so, and hence concluded that the Minister had failed to take
account of relevant information and had acted unreasonably. Third, the court held
that the termination of the ZEP regime affected the constitutional rights of ZEP
holders to dignity (encompassing the right to health, education, and protection from
deportation) and the rights of their dependent children. No adequate case had been
made out by the Minister for the limitation of these rights, and hence the court
concluded that ‘the Minister’s decision is an unjustified limitation of rights which is
unconstitutional and invalid in terms of s 172(1) of the Constitution and must be
reviewed and set aside ’. I shall refer to these findings of the high court in Helen
Suzman as the HSF review findings.

[18] There is some overlap between the case for review that is advanced by the
Federation in its founding affidavit and the review that found favour with the high
court in Helen Suzman , and led that court to make the HSF review findings. The
Federation’s founding affidavit has a section headed ‘Part B: Grounds of Review’.
There t he Federation relies upon the Minister having acted in a procedurally
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irrational and unfair manner; the Minister’s failure to take into account relevant
considerations and his consideration of irrelevant considerations. These grounds of
review cover similar territory to those that are to be found in the HSF review
findings. The Federation’s review also invokes the constitutional rights of ZEP
holders and their dependent children.

[19] However, the Federation’s review also raised distinctive grounds of review
that do not figure in the HSF review findings. First, it contends that the Minister
acted ultra vires his powers under s 31(2) (b)(ii) of the Immigration Act in
terminating the ZEP regime because good cause is a jurisdictional fact necessary for
the exercise of this power and it was lacking. Since the circumstances prevailing in
Zimbabwe have not materially changed, there was no good cause established for the
Minister to terminate the protections afforded by the ZEP regime , and there is no
reason to suppo se that this will change in the foreseeable future. Second, the
Minister made an error of law in that his decision was based upon the belief that
after 31 December ZEP holders would be requ ired to leave South Africa. However,
those ZEP holders who fled Zimbabwe and would qualify as refugees enjoy the
protection of the principle of non-refoulement and may not be deported to
Zimbabwe. The Minister’s decision was thus, it is contended, vitiated by a material
error of law. These grounds of review have no analogue in the HSF review findings.

[20] It might be thought that these distinctive grounds of review should make no
difference because the original Part B relief set out in the Federation’s notice of
motion is very similar to the relief ultimately granted by the high court in Helen
Suzman. However, the distinctive grounds of review, and, more generally the
invocation of the constitutional rights of the ZEP holders, ha ve provided a
springboard for the Federation’s amended notice of motion. As I have explained, the
relief now sought by the Federation includes a prayer for a declarator that the
decision not to extend the exemptions granted to Zimbabwean n ationals under
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s 31(2) (b) of the Immigration Act is unconstitutional, invalid, and of no force or
effect . I will refer to this as the declaratory relief.

[21] The declaratory relief is predicated upon the proposition that the Minister
does not enjoy the power to decide whether to extend the ZEP regime. ZEP holders
and their dependents enjoy constitutional rights to remain in South Africa, and the
limitation of t hose may only be effected by Parliament enacting a law of general
application. Furthermore, the ultra vires challenge holds that the Minister not only
lacked the power to terminate the ZEP regime when he did, but would continue to
suffer this disability in the future. The declaratory relief has remedial entailments
that are altogether different from the relief that was granted in Helen Suzman . The
HSF order remit ted the matter back to the Minister for reconsideration, and to do so
following a fair process. The premise of the HSF order is that it is open to the
Minister to exercise his powers under the Immigration Act to decide whether or not
to extend the ZEP regime. The declaratory relief, by contrast, is predicated upon the
proposition that the Minister ca nnot exercise this power; and no point would be
served in sending the matter back to the Minister. Rather, the ZEP holders enjoy
constitutional rights to remain in South Africa that only Parliament can abridge.
Further, the ultra vires challenge , if accepted, 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 upon a
reconsideration by the Minister of his decision to terminate the ZEP regime.

[22] Thus both the cause of action relied upon by the Federation, as also the
declaratory relief now sought by it, render Part B of its application distinctive. The
redundancy argument accordingly cannot hold. It may be said (counsel for the
Minister did not advance this proposition in oral argument) that the amendment of
the Federation’s notice of motion occurred after the interim order was made by the
high court, and hence its enlarged remedial remit cannot provide a basis to defend
the interim order that was made when the Part B relief in the Federation’s notice of
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motion largely mimicked the relief granted in Helen Suzman . Such a contention is
unavailing because the declaratory relief is, in part, based upon the distinctive
features of the Federation’s cause of action, and more generally, the invocation of
constitutional rights, which though common to those relied upon in Helen Suzman,
can be put to support a different remedial outcome.

[23] Had the high court raised the issue with the parties as to whether an interim
interdict should be issue d, given the outcome that might result in Helen Suzman , it
would have been entirely permissible for the Federation to raise the declaratory
relief that it has ultimately sought. The high court simply did not raise the matter
with the parties. That omission does not prevent this Court from considering whether
the interim relief was properly granted on the basis that the Federation’s application
raised issue s and was capable of supporting relief that is distinctive of the Helen
Suzman decision. The Part A order was not redundant when granted, nor has it
become so, because it pends final relief in Part B, based on grounds, not determined
in the Helen Suzman judgment . I caution that, in rejecting the redundancy argument ,
I should not be understood to make any finding as to the prospects that the grounds
advanced by the Federation in support of its declaratory relief will succeed. The
Minister did not seek to make any case before us as to whether the high court was
incorrect to conclude that the Federation had established a prima facie right, though
open to some doubt. The Federation’s Part B case awaits the adjudication of the high
court in due course.

[24] For these reasons, the Minister’s appeal must fail. The following order is
made:
The appeal is dismissed with costs, including the costs of two counsel.

______________________
D N UNTERHALTER
JUDGE OF APPEAL
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Appearances

For the appellant: W R Mokhare (with him T Mokhatla)
Instructed by: Denga Attorneys, Johannesburg
Webbers Attorneys Inc., Bloemfontein

For the respondent s: T Ngcukaitobi SC (with him N Chezi -Buthelezi and
N Ka -Siboto)
Instructed by: Mabuza Attorneys, Johannesburg
MM Hattingh Attorneys Inc., Bloemfontein .