NDOU J: The
applicant seeks a provisional order in the following terms:-
“Terms of the final order sought:
That you show cause to the honourable court why a final order
should not be granted on the following terms:
1.
That
the continued detention of the applicant be and is hereby declared unlawful.
2.
That
the applicant be released forthwith from [sic]
3.
That
the 2nd respondent should pay for the costs of suit.
Interim relief granted
Pending the determination of this matter, the applicant is
granted the following relief:-
1.
The
applicant be and is hereby released from custody.
2.
That
the 2nd respondent should pay for the costs of this application.”
The salient facts are the following. The applicant is a Nigerian national. On 8 May 2010 the Immigration Officers under
the 2nd respondent embarked on an operation to arrest illegal
immigrants. In the course of the
operation the 2nd respondent's officers got to a house in Montrose,
Bulawayo where the applicant and three other Nigerians were arrested on a
suspicion that they were prohibited persons pursuant to the provisions of
section 8(1) of the Immigration Act [Chapter 4:02] “The Act”. After the officers of the 2nd
respondent conducted interviews with these Nigerian nationals, one had in his
possession valid documents permitting him to remain in Zimbabwe and he was
accordingly released. That was not the case
with the applicant and the two others.
They were informed that they were being arrested for being in the
country without legal authority and they were to be deported from the
country. The applicant was served with a
“notice to a prohibited person” on 17th May 2010. Not amused by the turn of events, the
applicant launched this application on 20 May 2010. The applicant was detained
for three (3) days at Donnington Police cells.
Thereafter he was removed and detained at Bulawayo Remand Prison. The 2nd respondent derives its
authority to arrest and detain the applicant from section 8(1) supra.
The 2nd respondent issued an order declaring applicant a
prohibited person in terms of section 14(1)(i) of the Act in that applicant has
remained in Zimbabwe in contravention of section 29(1)(a) of the Act. The latter provision prohibits the presence in
Zimbabwe of any alien who is not in possession of a permit allowing him to
remain here. In casu, the applicant was allowed to remain in Zimbabwe on the
strength of a provisional restriction notice issued to him by 2nd
respondent on 24 December 2008. In terms
of section 43(1) Immigration Regulations of 1998 he was required to comply with
conditions for a consideration of the issue of a residence permit to him. This provisional restriction notice has been
extended at regular intervals by the 2nd respondent in terms of
section 45(2) of the Immigration Regulations, supra.
The applicant, according to the 2nd
respondent, failed to comply with the requirements for consideration for the
issue of a residence permit and should, therefore, be removed from the
country. In short, as the applicant was
claiming consideration for issue of a residence permit on the basis of a
marriage to a Zimbabwean wife, he was required to submit a certified copy of
such marriage. Since 2008 he has failed
to do so according to the 2nd respondent. In any event, the mere production of a
marriage certificate by an alien who claims to be married to a Zimbabwe citizen
does not by itself entitle applicant to have a right of residence in
Zimbabwe. The applicant has to satisfy
the Principal Director Immigration that his marriage to a Zimbabwe citizen is a
genuine one before consideration can be given to granting him a residence
permit. Be that as it may, no copy of a
marriage certificate was filed in this application. No wife was found at applicant's residence at
the time of his arrest. No wife has made
representations to 2nd respondent following his arrest as one would
naturally expect. Even in this
application, the applicant did not file a supporting affidavit of a wife. None of his in-laws appeared before the 2nd
respondent to make representations on his behalf. In his papers, the applicant does not even
state the names of his wife. It is not
surprising that the 2nd respondent opined that there is no such wife
or marriage. Or if the applicant is
married to a Zimbabwe citizen, the marriage is one of convenience as described
in section 3 A (1)(a) and (b) of the Act.
Permanent residence can only be
granted to persons who have been resident in Zimbabwe for a period of not less
than five(5) years on a permit held by them as provided in section 17(1)(a) and
(b) of the Immigration Regulations, supra. The exception being persons who apply for
permanent residence as investors which is not the case with applicant. In his papers, the applicant could not be
eligible for consideration for permanent residence. The 2nd respondent also found that
a fraudulent stamp was used to extend the applicant's provisional and
restriction notice to 27 May 2010. From
the foregoing, the applicant has failed to establish one of the requirements of
the interdict i.e. a clear right and show an infringement of such right or at
least a well grounded apprehension of such infringement – Mabhodo Irrigation Group v Kadye
& Ors HB-8-03; Setlogelo v Setlogelo 1914 AD 221 at 227 and Zimbabwe Music Rights Association v Zimbabwe Broadcasting Corporation
HH-468-88. The applicant has failed to
establish a clear or prima facie right.
Accordingly, the application is
dismissed.
Webb, Low & Barry, applicant's legal practitioners
Civil Division, Attorney-General's Office, 1st
respondent's legal practitioners
