1.
GWAUNZA
JCC:
This is an application in terms of subsections 85(1)(a) and 85(1)(b)
of the Constitution
of Zimbabwe
Amendment (No.20/2013) (“the Constitution”).
The first applicant is acting in both her own interest and that of
her husband who is the second applicant.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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 Act.
7.
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 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.
8.
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.
9.
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.
10.
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 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 subs (1) of section
4 of the Act)
that simply does not exist as part of the various paragraphs and
subsections of section
14.
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).”
11.
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 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……” (my emphasis)
12.
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.”
13.
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 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 Act.
14.
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 Act.
This notice fully complied with section
8(4)(a) of the Act.
15.
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.
16.
Section
8(4(a)
of the 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 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 Act,
which I have cited below (sic)
17.
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.
18.
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.
19.
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?
20.
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.
21.
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)…”
22.
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.”
23.
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.
24.
Significantly, the second applicant was already a prohibited person
at the time he married the first applicant.
25.
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.
26.
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.
27.
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.
28.
This is a matter that the Supreme Court has decisively determined in
a number of cases.
29.
In the case of Nomsa
Jonasi-Ogundipe vs 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.'”
30.
The wife in the Edwards
case
was, like the applicant's husband in
casu,
a prohibited person in terms of section
14 of the 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 para (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.”
(my emphasis) (See also Kenderjian v Chief immigration Officer 2000
(1) ZLR 697 (S)).
31.
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.
(ii)
Has the applicant's fundamental right to freedom of movement been
violated, as alleged?
32.
I will now turn to the second issue for determination, which is
whether or not the respondents refusal to grant the second applicant
– a prohibited person - entry into Zimbabwe, violated the first
applicant's fundamental right to freedom of movement and residence.
33.
Numerous authorities have determined that this right includes the
right of a Zimbabwean citizen married to an alien spouse, to reside
with him or her in Zimbabwe (See
among others, Rattigan & Ors v Chief Immigration Officer &
Ors 1994
(2) ZLR 54 (S);
Hambly v Chief Immigration Officer 1998
(2) ZLR 285 (S)).
However, where the alien spouse is, like the second applicant in
casu,
a prohibited person, different considerations apply. The second
applicant was a prohibited person at the time of his marriage to the
first applicant. Accordingly, the issue of whether or not the first
applicant's right to freedom of movement has been violated in the
manner alleged, cannot be determined independently of the fact that
her alien spouse was a prohibited person at the time that the two
contracted their marriage.
34.
According to the applicants 'there
is no doubt'
that the first applicant's constitutional right to freedom of
movement and residence has been infringed by the refusal of the
respondents to grant her alien husband a residence permit. While
conceding that the right to freedom of movement is not absolute, the
applicants contend that in this case the infringement of the right
was not reasonably justifiable in a democratic society, as envisaged
under section 86 of the Constitution. They concede that the
Immigration Act 'qualifies' as a law of general application but
contend that the real issue is whether, and I quote from their heads
of argument:
“the
conduct of the respondents, purportedly carried out in terms of the
Immigration Act (Chapter 4:02), was fair, reasonable, necessary and
justifiable in a democratic society based on openness, justice, human
dignity and freedom?”
35.
I find the reasoning of the applicants to be somewhat confusing. The
conduct complained of was done, (and
not 'purportedly' so),
in terms of a law of general application. Specifically the conduct
amounted to enforcement of section
17 of the Act
which stipulates as follows:
“Subject
to this Act -
(a)
a prohibited person shall
not
enter or remain in Zimbabwe;
(b)
an immigration officer shall
refuse a prohibited person leave to enter Zimbabwe, and if he has
entered Zimbabwe, such person shall
forthwith
depart Zimbabwe.” (my emphasis)
36.
As is abundantly evident, this provision is not only clear in its
meaning, it is expressed in peremptory terms. The provision allows no
discretion on the part of the respondents in terms of whether or not
to enforce it against any particular prohibited person. In other
words the provision does not exempt from its operation any class of
prohibited persons. The strict application of this provision by the
respondents is what the applicants refer to as 'conduct'
that violated the first applicant's fundamental right to freedom of
movement.
37.
Significantly, the applicants do not challenge the constitutional
validity of section 17 of the Immigration Act. They simply contend,
without providing a legal basis for it, that the respondents should
have used some type of discretion, and allowed the second applicant
entry into Zimbabwe. Nor do the applicants allege that in applying
the law in question, the respondents employed means or a modus
that went beyond what the provision mandates, to violate the first
applicant's fundamental rights. The applicants, therefore, mere
fact of the respondents doing their job, in other words, the
respondents actions in properly applying an unchallenged law that
falls under their direct responsibility.
38.
On these grounds, the applicants seek a declaratur
to the effect that the first applicant's fundamental right to
freedom of movement has been violated. To support their case, they
proffer detailed arguments that would, in my view, have been more
appropriate to a challenge of the constitutional validity of the
provision in question. Or, perhaps, the respondents conduct based on
a perceived misinterpretation thereof.
39.
I am not persuaded that the applicants in the circumstances of this
case, can properly impugn the strict application of section
17 of the Act,
more so, in a constitutional case that alleges the infringement of a
fundamental right of the prohibited person's Zimbabwean spouse. In
this respect, I find the following excerpt from the book
“Constitutional
Litigation”
1st
Ed. at page 19 by the learned authors Max du Plessis, Glenn Penfold
and Jason Brickhill, to be eminently apposite:
“The
quintessential example of a constitutional matter is one that
involves the direct application of the Bill of Rights, that is, a
constitutional challenge to law or conduct based on an unjustified
infringement of a fundamental right. This includes challenges to the
constitutionality of:
(i)
An Act of Parliament, a local government by law or conduct
of a State functionary;
and
(ii)
a rule of the common law or customary law.” (my emphasis)
40.
In my view, one cannot impugn, on a constitutional basis “conduct”
that constitutes a proper, lawful application of the law, without
challenging the constitutional validity of the same law, or actions
premised on a misinterpretation of it.
That
being the case, I hold that the declaratur
that the applicants seek lacks a proper constitutional basis. Such a
declaratur
would, in any case, have had the undesirable effect of introducing
chaos and confusion in the application of the provision in question.
This
is because the respondents would be faced with the dilemma of not
knowing when and on what basis to exempt any particular prohibited
person from the operation of what clearly is a peremptory, (and
unchallenged), provision of the Immigration Act.
(iii)
Whether the applicants are entitled to the relief sought
41.
I turn now to deal with the last issue for determination which is
whether or not the applicants are entitled to the relief sought. In
addition to the declaratur
referred to, which I have determined has been improperly sought
before this Court, the applicants also seek an order compelling the
respondents to allow the second applicant entry into Zimbabwe, and,
in addition, grant him a spousal visa.
42.
The order relating to the granting of leave to enter Zimbabwe would
be a consequence of the declaratur
that the applicants have unsuccessfully sought. It therefore suffers
the same fate. I should mention in this connection that the second
applicant seems to have eschewed the procedure laid down in the
Immigration Act and regulations (Statutory Instrument 195/1998) for
challenging, through an appeal to the Magistrates Court, the issuance
of the second notice that declared him to be a prohibited person. The
immigration regulations set out in detail the procedures for such an
appeal, including the referral by the magistrate concerned, of any
point of law, to the Supreme Court for determination (see sections
55-59).
Instead, the applicants chose to mount this constitutional challenge,
which I have determined to be ill-conceived.
43.
As for a spousal residence permit, the papers before the court allude
to the fact that the second applicant properly filed an application
before the Chief Immigration Officer, for a residence permit as a
spouse of a Zimbabwean citizen. This would have been in terms of
sections 15 and 16 (1)(a) of SI 195/1998. The respondents submit that
the application is still pending determination although it has been
'stalled'
by the second applicant's refusal to 'observe
due process.'
There is nothing on record to suggest that the applicants dispute
this assertion.
44.
The provisions of the Act and regulations make it clear that the
process of applying for and being issued with, a spousal residence
permit, is involved and requires the consideration, by the Chief
Immigration officer, of numerous issues. The applicants in effect
seek an order that would result in this Court interrupting a
statutory process commenced by the appropriate immigration
authorities to receive and determine an application for a residence
permit by an alien spouse. Such order would in addition, compel the
respondents to grant the permit sought without fully assessing the
second applicant's suitability for it, based on the requirements
mandated by the Immigration Act. The impropriety of such an order
hardly needs any emphasis. Due process needs to, and must be,
followed.
45.
In both the issue of the second applicant's failure to appeal
against the notice of prohibition, and his request for an order
compelling the respondents to grant him a spousal permit I find that
alternative remedies were not exhausted. This is a circumstance that
brings to mind the doctrines of “ripeness”
and constitutional “avoidance.”
The former concept is said to encompass the latter and has been
described in these terms:
“… the
concept of ripeness also embraces the general principle that where it
is possible to decide any case, civil or criminal, without reaching a
constitutional issue, that is the course that should be followed.”
(See the South African case National Coalition for Gay and Lesbian
Equality and Others v Minister of Home Affairs and Others 2000
(2) SA 1 (CC)).
46.
I find this to be a doctrine that could properly be invoked against
the applicants in respect of this aspect of the application.
In
all respects therefore, I find that the application lacks merit and
ought to be dismissed. As is the usual norm in constitutional
applications, where no strong case has been made for it, no order as
to costs will ensue.
It
is accordingly ordered as follows:
The
application be and is hereby dismissed.
CHIDYAUSIKU
CJ: I agree
MALABA
DCJ: I agree
ZIYAMBI
JCC: I agree
GOWORA
JCC: I agree
HLATSHWAYO
JCC: I agree
PATEL
JCC: I agree
GUVAVA
JCC: I agree
MAVANGIRA
AJCC: I agree
Mundia
and Mudhara, applicants legal practitioners
Attorney-General's
Office, respondents legal practitioners
