UNDERSTANDING THE LEGAL DOCTRINE OF NON REGRESSION – SOUTH AFRICA
By Benjamin Kinichi
ZIF Chairperson
TO: All ZEP Holders

In South African law, there exists a fundamental principle: public administrators cannot take away an existing right and replace it with a lesser right without lawful justification.
This principle is rooted in:

• The doctrine of non regression, and
• The constitutional guarantee of administrative justice under Section 33 of the Constitution, together with the Promotion of Administrative Justice Act (PAJA).

Courts have consistently held that rights once conferred cannot be arbitrarily diminished. This principle has now been crystallized and concretely affirmed in the ZEP litigation, particularly through the Helen Suzman Foundation order (June 2023), the Magadzire (ZIF) interim order, and the Supreme Court of Appeal judgment (June 2025).

1. CRYSTALLISED RIGHTS OF ZEP HOLDERS (AS CONFIRMED BY COURT ORDERS)
South African courts have already recognized and protected the rights of ZEP holders in binding court orders. These protections are not abstract; they are enforceable legal rights presently in operation:
1. Protection from Arrest, Detention, and Deportation Courts ordered that no ZEP holder may be arrested, detained, or deported merely because their exemption documentation has lapsed.
2. Protection from Being Treated as “Illegal” ZEP holders may not be declared illegal foreigners or undesirable persons solely due to their ZEP status.
3. Right to Enter and Exit South Africa ZEP holders retain the right to travel in and out of South Africa, provided general entry requirements are met, without prejudice due to permit status.
4. Continuation of Lawful Presence The courts confirmed that ZEP holders continue to enjoy lawful presence and associated protections pending proper reconsideration by the Minister.
5. Preservation of Status Quo Pending Lawful Process A core judicial principle established: The purpose of the orders is to preserve the status quo and protect rights until a lawful, fair, and constitutional decision is made.


2. CONSTITUTIONAL STATUS OF ZEP RIGHTS
The courts have gone further than procedural protections; they have recognized the constitutional dimension of ZEP holders’ rights:
• ZEP holders enjoy rights to dignity, family life, education, movement, and protection against arbitrary deportation.
• The termination of ZEP was found to limit constitutional rights unjustifiably, rendering the decision invalid.
Critically, the High Court held: The Minister’s decision was an unjustified limitation of rights and unconstitutional.
3. CONFIRMATION BY THE SUPREME COURT OF APPEAL (2025)
The SCA judgment in Minister of Home Affairs v Magadzire & ZIF confirms and strengthens these protections:
1. Existing Protections Remain in Force The SCA confirmed that ZEP holders continue to enjoy protections equivalent to the interim interdicts granted, including protection from deportation and adverse immigration consequences.
2. Recognition of Ongoing Constitutional Questions
   The Court explicitly recognized that:
   • ZIF’s Part B raises live constitutional issues, including whether the Minister can lawfully remove long standing protections at all.
   • The question of whether ZEP rights can be revoked without “good cause” or beyond ministerial power remains unresolved and central.
3. Potential Constitutional Right to Remain
The SCA acknowledged that ZIF’s case includes the argument that: ZEP holders may enjoy constitutional rights to remain in South Africa that only Parliament—not the Minister—can lawfully limit. This is a critical evolution of the legal position and directly supports the doctrine of non regression.

4. LEGAL DOCTRINE OF NON REGRESSION APPLIED TO ZEP HOLDERS
With these court orders, the doctrine of non regression is no longer theoretical—it is now factually and legally grounded in the ZEP context.
1. Established Position
ZEP holders have:
• Lived, worked, and studied lawfully for over a decade
• Built families, businesses, and social ties
• Been repeatedly granted and extended legal protection by the state
2. Legal Consequence
This creates a constitutional floor of protection that cannot be reduced arbitrarily. Any attempt to:
• downgrade status,
• withdraw protections, or
• replace existing entitlements with lesser rights
must satisfy:
• Legality (Section 1(c))
• Administrative justice (Section 33 & PAJA)
• Rationality and procedural fairness
• Justification under Section 36 (limitations clause)
Failure to meet these requirements makes the decision invalid.
5. KEY LEGAL PRINCIPLES (CONSOLIDATED)
Constitutional
• Section 33: Lawful, reasonable, procedurally fair administrative action
• Section 7(2): Duty to respect, protect, promote, fulfil rights
• Section 1(c): Rule of law and legality
Statutory (PAJA)
Decisions must be:
• Rational
• Fair
• Based on relevant considerations
• Not arbitrary or regressive
Judicial Principles
• Doctrine of Non Regression
• Presumption Against Diminution of Rights
• Protection of accrued and exercised rights
6. APPLICATION TO ZIF PART B (PERMANENT SOLUTION)
The ZIF Part B case now stands on strong constitutional and judicial footing:
1. Already Established
• The Minister’s prior decision was unlawful and unconstitutional
• ZEP holders’ rights are recognized and protected by court order
• Protections are actively in force
2. To Be Determined (Part B)
• Whether the Minister ever had power to terminate ZEP (ultra vires)
• Whether there was “good cause” as required by law
• Whether ZEP holders’ rights can be removed only by Parliament
• Whether a permanent or constitutionally protected status must follow
3. Strategic Implication
Part B is not starting from zero; it builds on:
• Existing judicial protections
• Established constitutional violations
• Recognition of entrenched rights
7. RISKS FOR THE STATE (LEGAL CONSEQUENCES)
If government attempts to downgrade ZEP rights:
• The decision is reviewable under PAJA
• It may be declared unlawful, unconstitutional, and invalid
Courts may:
• Reinstate rights
• Extend protections
• Impose structural remedies
8. CONCLUSION: A POSITION OF LEGAL STRENGTH
ZEP holders are not in a position of uncertainty; they are in a position of recognised and court protected rights. In summary:
• Your rights are already protected by court order
• Those protections align with the doctrine of non regression
• The Constitution prohibits regression without lawful justification
• Part B seeks to convert these protections into a permanent solution

In short:
The law does not permit regression.
The courts have already intervened to prevent it.
And Part B is the legal pathway to secure it permanently.

Drafted by Benjamin Kinichi
For and on behalf of
Zimbabwe Immigration Federation NPC https://zif.org.za
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