Judges in the Gauteng High Court in Pretoria blasted Home Affairs Minister Aaron Motsoaledi for engineering "a storm in a teacup" and wasting taxpayers' money in the contentious Zimbabwe Exemption Permit (ZEP) case. 

However, the Department of Home Affairs, through advocate William Mokhare, hit back at the three High Court judges.

Mokhare accused the court of being "hellbent on protecting its judgment" by asking why the minister was appealing against the 28 June ruling that found the decision to end the ZEP on 31 December was unlawful and unconstitutional because Motsoaledi did not consult with permit holders before making the decision. 

On Thursday, the Helen Suzman Foundation (HSF) called Motsoaledi "contemptuous" to the judges for not giving an undertaking that he would adhere to the court-ordered 12-month extension from 28 June so that none of the 178 000 ZEP beneficiaries would be impacted by the minister's decision to terminate the special permits on 31 December - pending a "fair process" that complies with the law and consults all affected people. 

Moreover, the foundation wants Motsoaledi to personally pay the costs of Thursday's application for "abusing taxpayers' money" – a request that was seemingly supported by Judge Mandlenkosi Motha.

Motha asked why the minister was appealing against the 28 June judgment if he intended to extend the ZEP termination deadline should the need arise.

This led to a fiery exchange between Motha and Mokhare, who claimed the judge wanted to deny Motsoaledi's right to appeal a court decision.

Advocate Carol Steinberg, representing the HSF, said their fresh court application arose from the response that the Department of Home Affairs gave in a 29 August letter.

In the letter, they stated that the minister would not give any assurances because he wanted to appeal the court's order, which – the department's lawyers said – was granted "through the backdoor" and in violation of the separation of powers doctrine.

On 16 October, the same judges dismissed Motsoaledi's application for leave to appeal against the judgment, with the minister indicating the following day in a media release that he would take his fight to the Supreme Court of Appeal.

Essentially, Motsoaledi is arguing in his court papers that – as per the provisions of Section 18 of the Superior Courts Act – judges' final rulings are suspended pending the outcome of an appeal, and Home Affairs was not obliged to enforce the order because it infringed on the government's prerogative.

Steinberg asserted: "It is a deeply contemptuous accusation that, somehow, you [the three judges] smuggled something through the back door. I'm not sure what that means."  

She added that Motsoaledi, and not the state, should personally pay the court's costs, including the cost of three advocates, for not guaranteeing adherence to the order.

Motha asked Mokhare why Motsoaledi if he would extend the ZEP cut-off date to next year, was taking the court's ruling on appeal when the order already gave the minister a year to complete the lawful consultation process – using the state's money for his legal challenges.

"I'm not begrudging [the minister's] right to take it on appeal. But I'm just saying – in terms of costs, [he is using] taxpayers' money. It is mindboggling; why appeal something he is already doing?" Motha said.

Motha's questions drew the ire of Mokhare, who charged that the court was trying to dissuade Motsoaledi from exercising his rights. 

"That is why the minister's appeal is grounded on the separation of powers doctrine, not on extension periods and so on. And we also take issue with the fact that we seem to have this supposition that this court is hellbent [on protecting] its judgment that it must not be taken on appeal. 

"Because you're at pains to say, why appeal? And that gives us the impression that the minister must not appeal, and that's why there is even an ask for punitive costs order and all those types of things," Mokhare charged.

Meanwhile, Steinberg argued it would be too late for permit beneficiaries to sort out their lives if the order is suspended pending the minister's appeals, which, if unsuccessful, would have resulted in thousands of "vulnerable" people being deported for not possessing the correct papers to be in South Africa.

"It is why I say this is a storm in a teacup: The court has said a few times that this is an interim order, everyone agrees that interim orders are not suspended [pending an appeal]. All we are saying is, please tell the minister it is an interim order, and it is not suspended," Steinberg said.

Her views were supported by Judge Gcina Malindi, who said: "I also think that it [Motsoaledi refusing to give an undertaking] is a storm in a teacup." 

Home Affairs director-general Livhuwani Makhode, in an affidavit he deposed on behalf of Motsoaledi and the department, said the appeal application would not "breach the protections afforded to ZEP holders," but the court and the foundation could not tell the government what to do. 

Makhode said the minister "will not shirk his statutory responsibility," saying Motsoaledi was prepared to extend the ZEP deadline "should a need arise."

Makhode stated: "The undertaking sought by the [Helen Suzman Foundation] is to the effect that the minister ought not to exercise his executive functions as entrusted by the Immigration Act. The undertaking sought is tantamount to restraining the exercise of statutory power within the exclusive terrain of the executive branch of government."

The court reserved judgment.