MUSAKWA J: This is an
application to strike out the appeal noted by the respondents in case number
'CIV 'A'503/10 for being void.
The first respondent
previously declared the applicant a prohibited person in terms of s 21 as read
with s 22 (1) of the Immigration Act [Cap
4: 02]. The applicant lodged an appeal with the Magistrates Court. The
appeal was upheld on 23 June 2010. It is against the decision of the
Magistrates Court that the first respondent noted an appeal with this court.
The
grounds of appeal in the notice in contention are as follows:-
“1. The learned Magistrate erred in law in finding
that the Respondent's status as a prohibited person be set aside and that his
deportation be declared null and void.
2.
The
learned Magistrate erred in law in finding that Respondent had acquired
domicile and was therefore protected from being declared a prohibited person in
terms of section 14 (1) of the Immigration Act [Chapter 4:02].”
In
seeking to have the above-cited notice of appeal struck off, the applicant
contends that there is no provision to appeal against the decision of the
Magistrates Court when one has regard to s 21 (3) of the Immigration Act. It is
also contended that the respondents should have sought a referral of the issue
relating to domicile to the Supreme Court.
The applicant also raises
issue with the respondents' failure to provide security for costs as prescribed
in Order 31 Rule 2 (b) of the Magistrates Court (civil) Rules, 1980.
In an opposing affidavit
deposed to by Prosper Kambarami, it is contended that the High Court has
jurisdiction to hear the appeal. It is further contended that the Magistrates
Court may, on its own accord refer a question of law for determination by the
Supreme Court. There was no response to the allegation of failure to provide
security for costs.
In support of this
application, Mr Kanengoni submitted
that they sought the striking off of the notice of appeal because the appeal
process is taking too long. This has created uncertainty on the part of the
applicant as he has to plan his life. Mr Kanengoni
also submitted that the appeal is defective as no security for costs was
furnished.
On the other hand, Ms Chihuri for the respondents did not make
submissions. She chose to abide by the heads of argument filed of record.
Section 21 (1), (2) and
(3) of the Immigration Act reads as follows:-
“(1) Subject to subsection (2), subsection (2)
of section eighteen and section twenty-two, any person
whoreceives notice in writing in terms of paragraph (a) of subsection
(4) of section eight that leave to enter Zimbabwe has been refused or
that he is a prohibited person, may appeal to the nearest magistrates court
against the refusal of leave to enter Zimbabwe or the allegation that he is a
prohibited person, as the case may be.
(2)
An appeal in terms of subsection
(1) shall be noted—
(a) where the person is in Zimbabwe
when he receives the notice referred to in that subsection, not laterthan three
days, Saturdays, Sundays and public holidays excluded, after receiving such
notice;
(b) where the person is outside
Zimbabwe when he receives the notice referred to in that subsection, notlater
than ten days, Saturdays, Sundays and public holidays excluded, after receiving
such notice.
(3)
A magistrates court—
(a) may, of its own motion, and
shall, at the request of the appellant or of an immigration officer, reserve
for the decision of the Supreme Court any question of law which arises upon an
appeal heard before suchmagistrates court; and
(b) shall state such question in
the form of a special case for the opinion of the Supreme Court and
transmitsuch special case to the registrar thereof;and for the purpose of
paragraph (a) a question of domicile shall be treated as a question of
law.”
The contention by the
applicant is that there is no right of appeal against the decision of the
Magistrates Court following a determination made in terms of s 21. As can be
noted from subs(s) (3), the appellant or an immigration officer may state a
case arising from such appeal for determination by the Supreme Court.
In
support of the contention that no appeal lies against the decision of the
Magistrates Court, counsel for the appellant cited the Supreme Court decision inBhekav Disablement Benefits Board 1994 (1) ZLR 353 (S). In that case the
Supreme Court had to decide on the import of a provision in the State Services
(Disability Benefits) Act [Cap 16:05]
which is almost similarto that in s 21 (3) of the Immigration Act. In that
regard s 13 (4) thereof states that:-
“Where in the opinion of the Appeal Board any matter to be determined by it
rests wholly or partly on apoint of law, the Appeal Board may on application by
the appellant or the Board state a case for the determination of such question
of law by the Supreme Court.”
In interpreting the
provision in the State Services (Disability Benefits) Act GUBBAY CJ had this to
say at 356:-
“This provision
envisages that where a matter brought before the Appeal Board concerns a point
of law, the Supreme Court becomes involved in an advisory capacity if a case is
stated to it. The application to state a case must be made to the Appeal Board
by either the appellant or the Board. Once made, the Appeal Board is vested
with a discretion whether to grant or refuse the application. Obviously it will
not state a case if of the opinion that the point of law is of a trivial nature
or one directly covered by judicial authority. Nor will it state a case
meromotu. What is plain is that the application to the Appeal Board must be
made during the hearing of the matter and precede its determination of the
appeal. It cannot be moved once the appeal has been upheld or dismissed. Upon
referral, the Supreme Court sits as a court of first instance and does not
exercise appellate jurisdiction. See McTaggart v Disabled Benefits Board 1975
(1) RLR 53 (A). After the stated question of law has been answered, the hearing
before the Appeal Board is resumed. It is that body which must then render its
decision on the appeal before it.
No
such application was made to the Appeal Board, either on behalf of the
appellant or the Board. Consequently access to this court under s 13(4) was
lost.
Mr
Mutsonziwa, who appeared for the so-called appellant, correctly conceded that
the decision of the Appeal Board was final and that the present appeal had been
improperly enrolled. He sought to argue, however, that in the exercise of this
court's inherent jurisdiction it should set aside the decision of the Appeal
Board and remit the appeal to it, thereby enabling the appellant to present the
requisite application under s 13(4).”
Applying the reasoning in
Bheka's case, it follows that, if the
respondents had a point of law that required determination, they ought to have
stated their case through the immigration officer. This, they should have done
at the time of hearing of the appeal before the Magistrates Court. They cannot
seek to do so by way of appeal which they have noted.Their failure to exercise
such an option means they forfeited that right and cannot do so by way of
appeal. It therefore means that the appeal noted is a nullity and should be
struck out.
On the issue of security
for costs, Order 31 Rule 2 of the Magistrates Court(Civil) Rules provides that-
“An
appeal shall be noted by—
(a)
the delivery of notice; and
(b)
unless the court of appeal otherwise directs, giving security for—
(i) the
respondent's costs of appeal to the amount of one hundred dollars;
(ii) the costs of the preparation of a
copy of the record to the amount estimated by the clerk of the court:
Provided that a clerk of the court may, in
his discretion, accept a written undertaking from theappellant to pay for the
costs of the preparation of the record.”
The rules are silent on what happens when an appellant
does not furnish security for costs. It does not follow that where an appellant
fails to furnish security for costs, the appeal should be dismissed. In this
respect see Order 33 r (1) of the Magistrates Court (Civil) Rules which states
that-
“Except as is otherwise provided in these
rules, failure to comply with these rules or with any request made in pursuance
thereof shall not be a ground for judgment against the party in default.”
Contrast this
provision with Rule 36 of the Rules of the Supreme Court which provides that-
'(1) If an appellant who is required to
furnish security for the respondent's costs of appeal fails to furnish such
security within the period prescribed in subrule (5) of rule 46, the respondent
may forthwith give notice to the appellant that, on the date specified in the
notice, being not less than five days after service of the notice, he will
apply to a judge for dismissal of the appeal by reason of such failure, and for
such other order specified in the notice as he may require.”
In the absence of such a provision in the Magistrates
Court (Civil) Rules it means then that a respondent can apply for an order to
compel an appellant to furnish security for costs. In this respect see Order 33
Rule (2) of theMagistrates Court (Civil) Rules which states that:-
“Where any provision of these rules or any
request made in pursuance of any such provision has not been fully complied
with, the court may on application order compliance therewith within a stated
time.”
The applicant did not seek an order compelling the
respondents to furnish security for costs. Therefore it would not be competent
to strike out a notice of appeal on that basis.
In the result, it is ordered as follows:
1. The
Notice of Appeal filed by the respondents in Civ 'A'503/10 be and is hereby
struck out.
2. The
respondents shall pay the applicant's costs.
NyikaKanengoni&Partners, applicant's
legal practitioners
Civil Division of the Attorney-General's Office, respondents' legal
practitioners
