The first applicant is Dodhill (Pvt) Ltd, a company with limited liability duly registered in accordance with the laws of Zimbabwe. The second applicant is the director and shareholder of the first applicant.

The first respondent is the Minister of Lands and Rural Resettlement, cited in his capacity as the acquiring authority and is responsible for the administration and implementation of the Land Acquisition Act [Chapter 20:10] and other allied pieces of legislation currently in force.

The second respondent is Nyasha Chikafu who is, in terms of the Land Acquisition Act [Chapter 20:10], the beneficiary of subdivision 1 of Dodhill in Chegutu District, Mashonaland West Province; which, incidentally, the applicants claim to have legitimate right over.

For purposes of this judgment, I will refer to the property in question as Dodhill Farm.

THE BACKGROUND

From the papers filed of record, coupled with the submissions made by the two legal practitioners representing the applicants and the second respondent, there are conflicting perceptions as regards the current status of Dodhill Farm.

The applicants feel very strongly that annexure '2' confirms their legitimate possession of the property.

Annexure '2' is a court order which was consented to at a time when the other portions of the property were voluntarily conceded to the State for purposes of agricultural resettlement following the formal gazetting of the applicants farm in January of 2005.

The second respondent's position is that following the promulgation of the constitutional amendment number 17/05, Dodhill Farm was properly allocated to her by the first respondent.

I accept the position adopted by the second respondent, that, annexure '2' was overridden by the subsequent promulgation of constitutional amendment number 17/05 which culminated in the introduction of, inter alia, section 16B(2)(a)(i) of the Constitution which conferred the ownership of the farm in question firmly in the hands of the first respondent.

I will therefore proceed on the basis that Dodhill Farm was indeed allocated to the second respondent.

APPLICANTS CASE

The applicants case is predicated upon the mandament van spolie.

Their argument is, that, on the evening of Thursday 5th day of February 2009, the second respondent, without the applicants prior knowledge and consent, summarily entered Dodhill Farm and set up a camp near the main security gate housing the applicants residence, barns, and other buildings. A tent was put up as well as a makeshift shelter. The allegations went further to say, that, the second respondent introduced or brought with her some youth who camped in the premises.

On 20 February 2009, the second respondent summarily, and without the consent of the applicants, commenced ploughing in the applicants fields where tobacco had just been harvested and on which the applicants had intended to plough an onion crop, in conformity, with the applicants programme of rotational cultivation.

The applicants outlined other incidents which amounted to the second respondent's summary occupation of Dodhill Farm.

The applicants sought the services of the police to have the status quo ante restored - but to no avail.

According to the applicants, when the second respondent was confronted, she said she had a right to occupy Dodhill Farm on the strength of her offer letter, a copy of which is marked annexure '3' in the papers filed of record.

THE SECOND RESPONDENT'S CASE

The second respondent's response to the allegations of unlawful dispossession were basically three-pronged, viz;

(i) Lack of urgency in this matter;

(ii) Lack of locus standi on the party of the applicants in bringing this application; and

(iii) In the alternative, a complete denial of the allegations levelled against her by the applicants.

In order for one to effectively deal with the second respondent's two main defences, one must consider whether the allegations by the applicants are true or not. If they are not, the two main defences would fall away.

If the allegations are found to be true, the court must then proceed to deal with those allegations in so far as they impact on the defences of lack of urgency and locus standi on the applicants.

THE ALLEGATIONS BY THE APPLICANTS

In her notice of opposition, the second respondent has emphasized the point that the ownership of Dodhill Farm now vests in the first respondent and the fact that her offer letter authorizes her to stay on the farm in question to carry out agricultural activities.

I wish to re-affirm the accepted legal position, that, in applications for a spoliation order, the question of ownership of the property in issue does not arise. As I will demonstrate later in this judgment, lawfulness to possession of the farm is equally irrelevant.

There are numerous aspects which can be gleaned from the second respondent's notice of opposition which confirm the allegations levelled against her, not only on a balance of probabilities but beyond reasonable doubt.

(i) Firstly, despite her attempt to paint the picture that the applicants consented to her occupation of the farm, the second respondent gives a completely different picture when she states:

“…,. Applicants seem to be complaining, that, I should have sought their permission first before ploughing and that they wanted to plant onions on the land which I ploughed. I am advised, which advise I accept, that, I have the lawful authority to carry out agricultural activities at the farm in the form of an offer letter. Since applicants do not own the farm, there is no reason at all for me to seek their permission to do that which is lawful.

In any event, the applicants have no right whatsoever to continue carrying out agricultural activities at the farm since doing so amounts to a criminal offence. I intend to allow applicants to finish harvesting their crops before I commence to prepare the land…,.”…,.

In my view, the above averments confirm the point made by the applicants, that, the second respondent simply moved onto Dodhill Farm without their consent, because, in her view (of course as advised by her counsel), the applicants have no right to be on the farm.

It is inconceivable, that, given her perception of the law, as advised by her counsel, the second respondent would have sought the consent of the applicants before occupying the disputed property.

Further, in her affidavit, the second respondent confirms, that, there were fights between her own employees and those of the applicants which culminated is some employees being arrested by the police from Chegutu.

If the second respondent had occupied the farm in question by consent there would have been no cause to have such running battles on the farm between the two groups of employees.

All in all, I am satisfied, that, a cursory perusal of the second's respondent's affidavit lends credence to the allegations raised by the applicants. I have absolutely no doubt in my mind, that, the second respondent acted in the manner complained of by the applicants....,.

LOCUS STANDI

The issue of locus standi on the part of the applicants cannot be looked at in a vacuum. It must be looked at in the light of the legal position governing the principle of the mandament van spolie.

THE LEGAL POSITION

There can be no doubt, that, spoliation, as a remedy, has its core value or objective, protection to possession of property against unlawful dispossession.

This is a remedy that has been recognized in our jurisdiction and beyond for over decades.

In dealing with the principles of spoliation, I find the views of HERBSTEIN J quite apposite when the learned judge stated:

“…,. Two allegations must be made and proved, namely;

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.”

See Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230E…,.

In Amler's Precedents of Pleadings, 3rd Edition LTC HARM and JH HUGO, Butterworths…, it is stated:

“Unlawfulness in this context means, a dispossession without plaintiff's consent or due legal process.”

This time honoured principle of our law has been enunciated in a plethora of cases in our jurisdiction and beyond: see, for example; Nino Bonino v De Lange 1906 TS 120…,.; Silo v Naude 1929 AD 21; Mutsotso and Others v Commissioner of Police and Anor 1993 (2) ZLR 329 (H); Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

In the classic and leading case of Nino Bonino v De Lange 1906 TS 120 INNES CJ…, had this to say:

“It is a fundamental principle, that, no man is allowed to take the law into his own hands; no one is permitted to dispossess another forcibly or wrongfully and against his consent of the possession of property, whether movable or immovable. If he does so, the court will summarily restore the status quo ante, and will do that as a preliminary to any enquiry or investigation into the merits of the dispute.”

In Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) REYNOLDS J remarked as follows:

“Lawfulness of possession does not enter into it. The purpose of the mandament van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these objectives, it is necessary for the status quo ante to be restored until such time as a competent court of law assesses the relative merits of the claims of each party….,. The lawfulness or otherwise of the applicants possession of the property does not fall for considerations at all. In fact, the classic generalization is sometime made, that, in respect of spoliation actions…, even a robber or thief is entitled to be restored possession of the stolen property.”…,.

Counsel for the second respondent passionately argued, that, the applicants had no locus standi to bring an application for spoliation.

The main thrust of his argument was, that, because the applicants had exceeded the 45 and 90 day statuary maximum periods which allows them to remain on the farm and the homestead respectively (section 3 of Gazetted Land (Consequential Provisions) Act [Chapter 20:28]), therefore, the applicants must not be protected by this court.

In counsel's view, which borrowed heavily from the position adopted by my learned brother UCHENA J in the case of Andrew Roy Ferrera and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08, if this court accepted locus standi on the part of the applicants, then, the court would be sanctioning an illegal stay on Dodhill Farm by the applicants since the applicants are occupying that farm in complete violation of the law.

There was also an attempt by the second respondent's counsel to seek to rely on the decision by their Lordships in one of the much celebrated land cases in this country, viz Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04.

Simplified, the argument, as put forward by the second respondent's counsel, was that because the applicants hands are tainted with their illegal occupation of Dodhill Farm, the court could not entertain them let alone grant them an order that would perpetuate their continued stay on the farm.

The applicants counsel held a different view.

She argued, that, once the applicants possession is established and there is proof of dispossession without reference to due process, the applicants locus standi, is thereby established.

I agree with this position.

The position adopted by the second's respondent's counsel is fraught with so many challenges.

Firstly, his approach would be an attempt to re-define the very basic requirements of a mandament van spolie which is not concerned with the legality or otherwise of the possession itself: see the remarks of REYNOLDS J in Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H).

I am fully cognisant of other decisions from South Africa which have attempted to shift from the orthodox approach in dealing with spoliation matters.

One such matter is the case of Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250…, where VAN DEN HEEVER J stated as follows:

“Moreover, the rule that goods dispossessed against the will of the possessor must be restored forthwith, is not an absolute one.

The reason for the rule is, according to the authorities, certainly not because the fact of possession is elevated to a right stronger than plenum dominimum, but, to discourage breaches of the peace by self help in the case of disputes.

Despite generalizations that even the thief or robbers entitled to be restored to possession, I know of no instance where our courts, which disapprove of metaphorical grubby hands, have come to the assistance of an applicant who admits that he has no right vis-a-vis the respondent to the possession he seeks to have restored to him.”…,.

Commenting on Parker v Mobil Oil Southern Africa (Pvt) Ltd 1979 (4) SA 250 and another similarly decided case of Coetzee v Coetzee 1982 (1) SA 933, the learned judge, MAKARAU J, in the recent case of Shiriyekutanga Bus Service v Total Zimbabwe remarked as follows:

“With respect, the weight of authority appears to be against the learned judge. It has not been established as part of our law in any other decided case that an application for spoliation order has to show some reasonable or plausible claim to the property despoiled.

The learned judge seems to suggest, that, the court determining an application for a spoliation order will look into but possession of the applicant: see Coetzee v Coetzee (supra).

I hold a different opinion, and do so with the greatest of respect and due deference to the learned judge.

The decided cases referred to by GUBBAY CJ in Botha and Another v Bennet (supra) are quite clear that the court does not at all look into the juridical nature of the possession claimed.

The doctrine of stare decisis binds me to follow the decision in Botha and Another v Bennet (supra) and Coetzee v Coetzee (supra) HH64-08.”...,.

I entirely associate myself with the position adopted by the learned judge MAKARAU J, that, in an application for spoliation order, an applicant does not have to prove some reasonable or plausible claim to the property, let alone the legality or otherwise of his possession of the property in question.

With extreme due deference to the learned judge UCHENA J, I do not agree with the approach he seems to have adopted in Andrew Roy Ferreira and Katambora Estates (Pvt) Ltd v Bessie Nhandara HC3995/08 when he made a finding, that, because the applicant in that case had defiantly continued to be on the farm in question, therefore, he could not be granted spoliation.

In my view, the learned judge prematurely dealt with the rights of the parties to the farm when, in fact, this was not the issue at stake.

It does seem to me, that, all the learned judge was supposed to consider was whether or not the applicant had been in peaceful and undisturbed possession of the farming land prior to the alleged dispossession and not to consider who was legally supposed to have been in possession of the farming land at the time of the alleged dispossession by the offeree.

In any event, such an approach, in my view, went against the weight of decades of precedent in spoliation matters.

The second challenge which is apparent from the position adopted by the second respondent's counsel is the failure to appreciate, that, by denying the applicants locus standi, the court will be sanctioning and encouraging self-help exercise by those in the position of the second respondent.

In my view, such a position would be tantamount to perpetuating an infraction of the law to the dispossession by the second respondent without following due process of law.

I hold a very strong view, that, it was certainly not the intention of the legislature to give those armed with offer letters, like the second respondent, powers of evicting defiant former farm owners like the applicants.

Such a scenario would create chaos in our farms.

Our courts must be careful not to encourage lawlessness in our farms by subtley condoning, by implication or inference, the conduct of land beneficiaries who believe they have a legitimate right to occupy land which hitherto belonged to those farm owners who choose to stubbornly or defiantly remain on the farm at a time they should have vacated.

It is not a question of weighing who, between the former owner and a beneficiary, has a preferred or a more appealing right. It is simply a question of encouraging due process of law.

This is not achieved by giving court orders which give the impression offerees can themselves carry out eviction processes.

The legislature was quite conscious, that, there would be defiant former farm owners who would endeavour to continue with farming operations after the lapse of the 90-day statutory period.

In its wisdom, the legislature created a specific procedure to deal with such errant or defiant farmers. This procedure is well spelt out in the Gazetted Lands (Consequential Provisions) Act: see sections 3-5 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

My brother judge, HUNGWE J, correctly summed up the procedure when he stated:

“There is a specific procedure for eviction in respect of land acquired in terms of the Gazetted Lands (Consequential Provisions) Act [Cap 20:28]. The right to claim eviction is only exercisable by the acquiring authority. That process is not initiated by a beneficiary under the land reform programme or by an officer of the acquiring authority.”

See Pondoro (Pvt) Ltd and Another v Nemakonde and Anor HH18-08.

Consistent views were also echoed by my brother judge, BHUNU J, when he stated:

“Although the applicant is entitled to occupy the land, he is not entitled to evict the former owner…, because he does not own the land and has not, at any stage, acquired possession.

It is now settled law, that, a lessee who has not acquired vacant possession cannot evict anyone from the property. It is the prerogative of the acquiring authority to evict the first respondent.”

See Zakeyo Mereki v Bell In (Pvt) Ltd and Deputy Sheriff Harare (N.O.).

I note with extreme discomfort, that, the second respondent's counsel has referred to Airfield Investments (Private) Limited v (1) The Minister of Lands, Agricultural and Rural Resettlement; (2) The Minister of Justice, Legal and Parliamentary Affairs; (3) The Member in Charge, Chegutu Police Station; (4) The Attorney General of Zimbabwe; and (5) R Sango SC36-04 as authority for the proposition that the applicants have no locus standi in this case.

With respect, that case has been quoted out of context.

That case is quite distinguishable from the instant case. In that case, the focus was on considering the requirements of an interim interdict as opposed to the instant case which is primarily focused on considering the requirements of a mandament van spolie.

These two principles are quire distinct and cannot be mistaken for each other.

Counsel for the second respondent also argued, that, according to his understanding, section 16B of the Constitution of Zimbabwe, as well as section 3 of the Gazetted Lands (Consequential Provisions) Act have taken away the remedy of spoliation from our common law.

I have painstakingly perused the cited sections. I do not agree with such sentiments.

In the final analysis, I am more than satisfied, that, the applicants have locus standi to bring this action, and, having accepted their allegations against the second respondent, I am inclined to grant the provisional order sought in terms of the papers filed.

This trial is concerned with the identification of the correct house between two of the three houses that are eligible to ascend to the Nyajina Chieftainship of the vaZumba clan in the Uzumba Maramba Pfungwe district of Mashonaland East province of Zimbabwe.

THE PLEADINGS

On 26 August 2005, the plaintiff issued summons out of this court seeking an order setting aside the appointment of the first defendant as Chief Nyajina-designate; directing that the second and third defendants take into account and abide by the values, traditions, and customary principles of succession of the VaZumba people in selecting a chief and a declaratur that the next chief be selected from the Mukonde house.

The first defendant filed his plea on 28 October after the second and third defendants had filed their joint plea on 24 October 2005.

The pre-trial conference was held on 17 January 2006 and the parties filed a joint pretrial conference minute which referred two issues to trial.

I set down the matter for trial on 19 April 2006 for 22 May 2006.

In the meantime, on 2nd May 2006, the first defendant filed a court application, case number HC2427/2006, to amend his plea. It was opposed by the plaintiff on 17 May 2006. 

The result was that the trial was postponed indefinitely pending the determination of the application.

The first defendant proceeded to file his answering affidavit on 24 May 2006 and his heads of argument on 3 November 2006. The plaintiff filed his heads on 23 November 2006.

I consolidated the opposed application and the trial and set both for 22 May 2007.

At the conclusion of the oral submissions on the interlocutory matter, I granted the amendment and indicated that my reasons for doing so would appear in this judgment.

CASE NO. HC2427/06

The first defendant sought to amend his plea to reflect the averment that Nyamukapa of the Mukonde House had acceded to the chieftainship. The amendment would have the effect of demonstrating that the Mukonde House had acceded to the chieftainship four times and not three times as averred in the plaintiff's declaration.

He averred that he only accessed the documents, which showed that Nyamukapa was a chief, after the pre-trial conference had been held.

He prayed for the grant of the amendment on the basis that it was not driven by bad faith; would not cause injustice to the plaintiff; would not prevent, but, would provide a full inquiry into the disputed issue; and was not excipiable as in Cross v Ferreira 1950 (3) SA 443 (C).

The plaintiff opposed it on the basis that it was driven by bad faith.

The bad faith arose from the admission by the first defendant, at the meeting held on 15 October 2003, that, the Kawoko House had acceded to the chieftainship four times while the other two Houses had done so three times apiece, respectively....,.

Order 20 Rule 132 and 135(3) of the Rules of Court gives this Court a wide discretion to allow amendments at any stage of the proceedings for the purpose of determining the real controversy between the parties.

See also The Civil Practice of the Superior Courts in South Africa, 3rd edition by HERBSTEIN and Van WINSEN…,; Moolman v Estate Moolman and Another 1927 CPD 27; Shill v Milner 1937 AD 101…,; Angelique Enterprises (Pvt) Ltd v Albco (Pvt) Ltd 1990 (1) ZLR 6 (H)…,: and Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S)…,.

I was satisfied that the amendments were not driven by bad faith;

(i) Firstly, because in his plea the defendant had disputed the number of turns that the plaintiff averred his House had acceded to the throne; and

(ii) Secondly, the first issue referred to trial also sought a determination of the number of turns that each House had had on the throne.

While the first defendant was at the meeting of 15 October 2003, he was absent at the meeting of 28 January 2005.

In my view, no injustice would be caused to the plaintiff by the amendment, which would provide a platform for a full enquiry into the disputed issue of the number of turns that the Mukonde House acceded to the chieftainship. I saw no prejudice to the plaintiff's case from the amendments sought, especially in the light of the fact that the onus of proof lay on the defendant to show that Nyamukapa was a chief.

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

The plaintiff's only witness, Mr E.W. Turina (Turina) said he was the Chief Executive Officer of the plaintiff at the time of the purchase of US$750,000 from the defendant. He had, however, left the employ of the plaintiff in June 2006.

Mr Turina's evidence was, in the main, a confirmation of what was already contained in the pleadings.

He said due to the scarcity of foreign currency, the plaintiff had reached an agreement with the defendant whereby bids from the plaintiff would be given preferential treatment.

He confirmed, that, the information on the allocations was done telephonically and that once an allocation (ie the initial US$150,000 rising to $250,000) was made, the plaintiff was required to pay the equivalent in Zimbabwe dollars within twenty-four hours (24) hours.

The arrangement had worked well from January 2005 until August 2005 when the defendant failed/neglected to disburse US$750,000 to the plaintiff's customers/suppliers despite the fact that the plaintiff had paid the defendant the equivalent in Zimbabwe dollar as per the standing arrangement.

The Zimbabwe dollars had been paid in three transfers on 1, 11, and 19 August 2005. This was to cater for the increased weekly allocation of US$250,000.

He said when the first allocation was not released, after payment of the equivalent Zimbabwe dollars, the plaintiff had asked for an explanation but was promised that the money would be released.

The same had happened with respect to the two subsequent payments.

After failure by the defendant to forward payment to its suppliers, the plaintiff had then borrowed money from other sources so as to meet supplier requirements. This had led to the withdrawal of invoices from the defendant, which invoices were produced as exhibits 1, 2 and 3.

Mr. Turina confirmed, that, before he left the employ of the plaintiff, in 2006, negotiations for settlement were in progress and that the defendant had indicated that it would secure the US dollars at a later stage for the plaintiff or reimburse the plaintiff in Zimbabwe dollars.

He said some of the discussions were not directly conducted with him.

He had, however, later learnt, that, the defendant was not going to pay the US$750,000.

It was his view, that, once the plaintiff effected payment of the equivalent Zimbabwe dollar amount of the allocated foreign currency “the contract was completed.”

He said the company had opted to wait because the Zimbabwe dollar had become worthless.

Mr Turina stuck to his story under cross-examination.

The defendant also called only one witness, a Mr B. Musoso (Musoso).

The witness said he was employed by the defendant as its Head of Treasury Operations. He said the Treasury Division was responsible for settlement and payment of allocations. The auction system, he said, was run by a separate unit which was responsible for the allocations. The role of his department was to communicate with companies and advise them on foreign exchange rates.

He was aware of a list of special allotees who received payment on a weekly basis. These were companies considered key to the national economy. These included the plaintiff.

He said there were thirty-six (36) companies on the special list and the allocations were made by the auction unit. Some of these were Boc Gases, Quest Motors, Unilever, Olivine Industries, Dunlop, National Oil Company of Zimbabwe (NOCZIM) and the fertilizer companies.

Mr. Musoso said there were no formal contracts with the companies on the special list.

The role of his department was to effect payment when funds were made available.

The witness said his department dispatched foreign exchange quotations to various interested companies. The quotations were meant to enable companies to mobilize the necessary funds before allocations were made. He said payment to allotees depended on instructions from what he called “the front office” and the availability of foreign currency.

He said the non-availability of foreign currency explained why the three payments made by the plaintiff, in August, were not honoured.

Mr. Musoso said when the auction system ceased, in August 2005, there were many unpaid beneficiaries from the special list and the defendant decided to reimburse them in Zimbabwe dollars.

He said he had heard that the plaintiff wanted reimbursement in US dollars instead of the Zimbabwe dollar. It was his evidence, that, in reimbursing beneficiaries, the defendant did not take into account the devalued value of the Zimbabwe dollar because there was no financial obligation: “We were just returning whatever had been paid,” he said.

Under cross examination, Mr. Musoso maintained, that, the successful execution of the arrangement relied solely on the availability of foreign currency.

In addition to Mr. Musoso's evidence, the defendant also relied on responses by Dr G. Gono (Governor of the Reserve Bank of Zimbabwe) and Patience Aisam (Manager Compliance–Treasury Division) to the plaintiff's interrogatories filed on 29 September 2009.

Both responses to interrogatories were filed on 17 November 2009.

In his response, Dr Gono stated that he had, upon the specific request and representations from the plaintiff, advised that he would endeavour to source foreign currency for the plaintiff in the amounts mentioned (i.e initially US$150,000 rising to US$250,000).

He said this was in recognition of the strategic role played by the plaintiff in the national economy.

There was, however, no formal binding agreement.

He said he had indeed been advised that “the plaintiff had made payments totaling Z$13,535,110 being the quoted equivalent at the auction rate of US$750,000”, now being claimed by the plaintiff.

However, he said “due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency not only to the plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

It was his evidence that his officers had informed him, that, during August 2005, no disbursements were made to any applicant for foreign currency under the auction system.

In response to the plaintiff's interrogatories, Miss Patience Aisam confirmed, that, from “14 January 2005 to August 2005, she would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising it that its application for foreign currency allocation had been approved.”

She also confirmed, that, the approved amounts were US$150,000 per week from 14 January 2005 to mid-June 2005. Thereafter, the amount was increased to US$250,000 per week….,.

The main issue, in my view, is whether by allocating to the plaintiff US$150,000 and later US$250,000, from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty four (24) hours, of the Zimbabwe dollar equivalent at the defendant's instruction.

In interrogating that issue, one has to consider the following undisputed facts:-

(a) Every week, Patience Aisam, of the defendant, would telephone the plaintiff to advise on what had been allocated to the plaintiff and what had to be transferred through a Commercial Bank in Zimbabwe dollars - in fact, it was confirmation of the sale to the plaintiff of the allocated amount, in this case US$250,000.

(b) Upon advise from Patience Aisam, the plaintiff would, within twenty four (24) hours, transfer the Zimbabwe dollar equivalent. Indeed, in response to the interrogations, the Governor of the Reserve Bank of Zimbabwe says:

“I am advised that during the month of August 2005, plaintiff made payment totaling Z$13,535,110 being the quoted equivalent, at the auction rate, of US$750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

This is supported by paragraph 4 of the defendant's plea which reads:

“The defendant admits that the sums of money, as set out in paragraph 2 of the plaintiff's further particulars, were deposited with the defendant. The amounts would have exchanged for US$750,000 once this money had been successfully sourced by the defendant. The foreign currency was not availed to the plaintiff because the defendant was unable to mobilize the same.”

It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable.

My view is simply that the allocation was only made against funds that were already available from the auction.

Patience Aisam states:

“I confirm that during the period referred to, that is to say, from about the 14th January 2005 to August 2005 (the month of August included) I would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising that its application for foreign currency had been approved.”

It is important to note that Patience Aisam spoke of an “approved allocation and not successful bid.” This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Patience Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff, is, in my view, very remote.

In addition to the above, it is important to determine at what stage a contract would be concluded between the parties.

The scenario in the operation was as follows:

(a) The Governor agreed to accord the plaintiff special treatment.

(b) The Governor allocated a specific amount to the plaintiff on a “permanent” basis.

(c) Patience Aisam would confirm the allocation and indicate the Zimbabwe dollar component to be paid within 24 hours; and

(d) The plaintiff would, within 24 hours, comply and then forward a list of its customers to the defendant for disbursement of funds.

The above scenario clearly fits into counsel for the plaintiff's submission, that, there were initially two contractual events (ie the Governor's undertaking and then the actual allocation accompanied by compliance on the part of the plaintiff).

I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.

The existence of the contract is further strengthened by the fact, that, the defendant admits, that, in August 2005, the plaintiff bought from it US$750,000 for a sum of Z$13,535,110.

However, what the defendant is now saying is simply this:-

“Yes, you bought US$750,000 but give us time to mobilise it. We seem to have sold you what we did not have at the time.”

The defendant then places before the plaintiff two choices, namely, reimbursement in the actual amount paid in Zimbabwe dollars or waiting until it mobilizes the amount of foreign currency already purchased by the plaintiff.

That, in my view, is not to deny contractual obligation.

The plaintiff elected to wait until litigation became the only option.

The plaintiff's election is based on the basis that devaluation has rendered the Zimbabwe dollar worthless.

The defendant's witness confirmed, that, the refund was to be the actual Zimbabwe dollar paid without taking into account the issue of inflation and devaluation.

It would, in the circumstances, be unreasonable to fault the plaintiff's election to await payment of what it actually purchased.

The promise made by the Deputy Governor of the defendant was not disputed in evidence.

It was, in my view, not a novation of the earlier arrangements - but a confirmation of same.

In his submissions, counsel for the defendant merely stated:

“(vii) He believed that foreign currency was available for the simple reason that quotations for payment of Zimbabwe dollars were sent to plaintiff and the plaintiff paid on them.”

The above is in line with paragraph 5(b) of the plea which reads:-

“(c) The defendant denies that it has refused to compensate the plaintiff and avers that it has offered to refund the defendant what it paid as has been done with other companies who faced the same fate. The plaintiff has refused to be compensated in local currency and insisted on payment of US$750,000.

Wherefore, the plaintiff tendering to refund the defendant the amount it paid, with interest at the prescribed rate of 30% per annum, otherwise prays for the dismissal of the plaintiff's claim with costs.”

Having determined that the defendant was contractually obliged to pay the plaintiff the sum of US$750,000 which the plaintiff purchased, as agreed between the parties, it would be unreasonable to allow the defendant to dictate to the plaintiff the form of settlement the plaintiff should accept.

That being the case, the plaintiff's claim for specific performance is unassailable.

The defendant accepted the plaintiff's election for specific performance ie by giving the plaintiff two choices – whereby the plaintiff elected to await payment of the purchased foreign currency.

That position has not changed.

The fact that other companies accepted refunds in Zimbabwe dollars has no bearing on the agreement between the parties herein.

The defendant is estopped from abandoning its obligation.

In International Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H) the late ROBINSON J, in dealing with the issue of specific performance, had this to say:-

“I would wind up by saying, that, if the right of specific performance is to be shown to have real meaning to businessmen; then, the loud and clear message to go out from the courts is: businessmen beware. If you fail to honour your contracts, then, don't start crying if, because of your failure, the other party comes to court and obtains an order compelling you to perform what you undertook to do under your contract.

In other words, businessmen who wrongfully break their contracts must not think they can count on the courts, when the matter eventually comes before them, simply to make an award of damages in money, the value of which has probably fallen drastically compared to its value at the time of the breach.

Businessmen at fault will therefore, in the absence of good grounds showing why specific performance should not be decreed, find themselves ordered to perform their side of the bargain - no matter how costly that may turn out to be for them…,.”

I agree with the above.

Accordingly, the sanctity of contractual arrangements should continue to be protected by courts of law.

In view of the foregoing, I find in favour of the plaintiff and order as follows:-

1. The defendant be and is hereby ordered to pay the plaintiff the sum of US$750,000 together with interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment; and

2. The defendant be and is hereby ordered to pay costs of suit.

In their heads of argument, the applicants submit that they have abandoned paragraphs 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now 'fundamentally focused' on an infringement of the first applicant's constitutional right to freedom of movement, which is protected under section 66 of the Constitution.

The applicants accordingly seek the following relief:

1. A declaratur to the effect that the first applicant's fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents refusal to grant the second applicant entry into and residence in Zimbabwe; and

2. An order compelling the respondents to:

(i) Permit the second applicant entry into Zimbabwe; and

(ii) Grant the second applicant a 'spousal' residence permit.

The background to the matter is as follows:

The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter, sometime in August 2011, entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant's stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit, the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant.

During this period, the two applicants solemnized their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe.

This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a thirty day extension on his holiday visa whilst his application for a residence permit was being considered.

On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of section 14(1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to section 17 of the Immigration Act.

The second applicant chose the former option, and, on 2 June 2014, left for South Africa together with his wife.

Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the Prohibition Notice, which appeal was duly noted in the Magistrates Court, in terms of section 8 of the Immigration Act.

The Court, on 20 June 2014, ruled in favour of the second applicant and set aside the Prohibition Notice in question. The applicants were informed by their legal practitioners of this development, and, on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe.

Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent's officers, on the basis that he was still a prohibited person - despite the setting aside of the Prohibition Order.

The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent's officers. She proceeded, on 18 July 2014, to file an application before this Court, challenging the respondent's decision to declare the second applicant a prohibited person, and denying him entry into this country.

Before the matter was heard, on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.

I consider it pertinent, at this juncture, to address the parties submissions regarding the effect of the order of the Magistrates Court setting aside the first Prohibition Notice issued against the second applicant.

As already stated, the second applicant chose the option to leave the country, and did so, on the basis of the Prohibition Notice dated 2 June 2014.

A look at this Notice, which cites two provisions falling under section 14 of the Immigration Act, shows that the first respondent's officers were required to delete whichever of the two provisions did not apply in any particular case.

This was not done.

While clearly the second provision cited would not have been applicable to the circumstances of the second applicant, the first provision is not fully legible and seems to refer to a paragraph (i.e. paragraph (1) of subsection (1) of section 4 of the Immigration Act) that simply does not exist as part of the various paragraphs and subsections of section 14 of the Immigration Act.

The applicants challenged the Notice primarily on this point, stating as follows in their grounds of appeal in the lower court:

“The order of prohibition is invalid at law as it is not supported by the cited provisions of the Immigration Act (Chapter 4:02).”

The applicants accordingly sought an order setting aside the Prohibition Notice.

This ground of appeal had merit in view of section 8(4)(a) of the Immigration Act which reads as follows:

“When —

(a) Leave to enter Zimbabwe is refused or any person is informed, for the first time, that he is a prohibited person in terms of this Act, notice in writing specifying the provision of this Act under which leave to enter Zimbabwe is refused or the person is a prohibited person, as the case may be, shall be given to the person concerned:

Provided that…,.”…,.

The Magistrate's full reasons for the order he made, setting aside the impugned Notice, were not part of the record before this Court. Only the actual order of the Court has been provided, and it simply reads:

“The immigration appeal is upheld and the prohibition be and is hereby set aside.”

Despite the lack of reasons for this order, its correctness cannot be doubted. This is because the Notice in question, as already mentioned, did not correctly cite the section of the Immigration Act by virtue of which the second applicant was a prohibited person. The Notice, therefore, did not comply with section 8(4)(a) of the Immigration Act.

As indicated above, the applicants understood the order setting aside the Prohibition Notice to mean that there were no longer any legal impediments to the second applicant's return to Zimbabwe.

The respondents took a different view of the matter.

They contend, that, the Magistrate's Court's decision was based on a technicality rather than on the merits. This, in their view, meant that the lower Court did not make a determination to the effect that the second applicant was not a prohibited person, nor that such status be set aside.

The respondents attached to their opposing papers another Prohibition Notice dated the same day, 30 June 2014, declaring that the second applicant was a prohibited person in terms of section 14(1)(e)(i) of the Immigration Act.

This notice fully complied with section 8(4)(a) of the Immigration Act.

I find the respondents submissions, on the import of the Magistrates Court's order setting aside the Prohibition Order, to have merit.

The applicants challenged the Prohibition Notice, of 2 June 2014, largely on technical grounds. There can be no disputing the fact that the Notice in question was fatally defective, that is, a nullity. However, it appears that the applicants laboured under the misconception, that, the setting aside of the Prohibition Notice had the effect of opening the way to the second applicant to re-enter Zimbabwe.

Section 8(4(a) of the Immigration Act makes it clear, that, the Notice does not confer the status of prohibited person on the recipient. All that it does is formerly inform the person of the section of the Immigration Act under which he was a prohibited person, that is, a person not eligible to enter Zimbabwe.

This is to be contrasted with the situation referred to in section 14(2) of the Immigration Act which reads as follows;

“A person shall be declared to be a prohibited person in terms of subparagraph (iii) of paragraph (e) of subsection (1) by notice in writing served on him, or, if his whereabouts are unknown or he has departed from Zimbabwe, by notice in the Gazette.”

The second applicant's prohibited person status derived from the law, that is, section 14(1)(e)(i) of the Immigration Act, which I have cited below (sic).

The respondents are therefore correct in the assertion, that, the second applicant maintained the status of prohibited person despite the setting aside of the Prohibition Notice. That being the case, the respondents were properly within their rights to issue another Notice clearly setting out the basis for such a status.

The applicants, albeit challenging it in casu, did not appeal to the Magistrates Court (this would be in terms of section 21(1) of the Immigration Act) against the allegation in the second Notice, that he was a prohibited person.

As indicated above, the second applicant has however been allowed to re-enter and stay in Zimbabwe pending the determination of this matter.

In my view, there are basically three issues before this Court, namely:

(i) Whether or not the second applicant's status, of being a prohibited person, was negated by his subsequent marriage to the first applicant;

(ii) Whether or not there has been any infringement of the applicants fundamental right to freedom of movement as alleged; and

(iii) Whether the applicants are entitled to the relief sought.

(i) Was the second applicant's status of being a prohibited person negated by his marriage to the first applicant

In this respect, it is pertinent to note, that, the second applicant was convicted by a court in the United States of America after being found in possession of dangerous drugs, and sentenced to pay a fine. Therefore, by operation of law, (that law being section 14(1)(e)(i) of the Immigration Act), he automatically became a prohibited person, a status that the Minister would simply be required to confirm through the issuance of a Notice to that effect.

This is clear from a reading of that section, which defines a prohibited person, inter alia, as follows:

“(e) Any person who, not having received a free pardon, has been convicted in Zimbabwe or elsewhere of—

(i) Any offence specified in Part I of the Schedule; or

(ii)…,.

(iii)…,.”

Paragraph 12 of Part 1 of the Schedule specifies the offence relevant to the second applicant as follows:

“12. Dealing in or being in possession of dangerous or habit-forming drugs or being in possession of any pipe or other utensils used in connection with the smoking of such drugs in contravention of any enactment.”

The second applicant became a prohibited person by law, after he disclosed that he was once convicted in the United States of America of being found in possession of dagga and sentenced to pay a fine of USD$1,000.

It is not in dispute that dagga is classified as a dangerous or habit forming drug in terms of the Dangerous Drugs Act [Chapter 15:02].

The second applicant was, therefore, already a prohibited person when he first entered the borders of Zimbabwe, notwithstanding the fact that the Minister did not then issue a Notice to that effect. It hardly needs mentioning, that, the Minister can only issue such Notice if his attention is drawn to the applicant's conviction for any of the offences specified in section 14(e) of the Immigration Act.

Significantly, the second applicant was already a prohibited person at the time he married the first applicant.

The first respondent readily accepts, that, the initial admission of the second applicant into Zimbabwe was allowed in error, and seems to suggest that he was allowed entry into this country because his conviction was deliberately not disclosed at that stage. Be that as it may, the second applicant, as already indicated was, by operation of law, a prohibited person.

This then raises the question of whether, by marrying a Zimbabwean woman, the second applicant was divested of his prohibited person status?

Not having challenged the constitutionality or otherwise of sections 14(1)(e)(i) and 17 of the Immigration Act the applicants, therefore, do not dispute that the second applicant became a prohibited person by operation of law.

Indeed, and as already pointed out, the second applicant has not appealed against the declaration of his prohibited person status that is contained in the second Prohibition Notice of 30 June 2014.

His argument is basically, that, because of his marriage to the first applicant, he should be spared, or be exempted from, the consequences that flow from one's status as a prohibited person, and be allowed to stay with her in Zimbabwe.

This is a matter that the Supreme Court has decisively determined in a number of cases.

In the case of Nomsa Jonasi-Ogundipe v Chief Immigration Officer and 3 Others SC13-05 the learned judge had this to say in relation to facts similar to those in casu:

“…, one does not need to be formally declared a prohibited person for him to be one. He becomes one by the mere fact of being in Zimbabwe in contravention of the Act.

In casu, the applicant's husband was a prohibited person from before his marriage to the applicant. He remained a prohibited immigrant until the day he was deported. The endorsement of his passport merely confirmed this reality. His marriage to the applicant did not convert his status from prohibited to non-prohibited person. To attain the latter status, he would still need the requisite permit.

This point was stressed by this Court in Edwards v Chief Immigration Officer 2000 (1) ZLR 485 (S) at 487E-F where GUBBAY CJ quoted, with approval, the following passage in the High Court case involving the same parties (HB107-96):

'In the absence of authority to the contrary, I find that marriage, per se, does not entitle an alien wife of a Zimbabwean citizen to reside in the country without the relevant permit issued in terms of the provisions of the Immigration Act and Regulations.'”

The wife in Edwards v Chief Immigration Officer 2000 (1) ZLR 485 (S), was, like the applicant's husband in casu, a prohibited person in terms of section 14 of the Immigration Act.

In that judgment, the learned Chief Justice addressed the same argument being advanced by the applicant, that, as a spouse, her husband was protected from being declared a prohibited person by virtue of section 15(2) of the Immigration Act. The learned Chief Justice stated as follows at page 489E-F:

“It is implicit that section 15(2) classifies persons or classes of persons who are not regarded as prohibited persons under section 14. Thus, the actuality of being a prohibited person at the date of her marriage to a citizen of Zimbabwe effectively disqualified the appellant from becoming a non-prohibited person under paragraph (d) to section 15(2) of the Act. A contrary interpretation would give rise to the ability of a prohibited person to evade the restriction against entry or removal from Zimbabwe by marriage to a Zimbabwean citizen.”…,.

See also Kenderjian v Chief immigration Officer 2000 (1) ZLR 697 (S).

Thus, the issue of whether or not the parties marriage had the effect of negating the prohibited person status of the second applicant is one that is answered in the negative.

This point is accordingly decided against the applicants.