This matter was heard on 24 March 2011. On 31 March 2011,
this court issued an order in the following terms:
“IT IS DECLARED THAT:
1. The applicant is a citizen of Zimbabwe by birth in
terms of section 5 of the Constitution of Zimbabwe.
2. The provisions of section 9(7) of the Citizenship of
Zimbabwe ...
This matter was heard on 24 March 2011. On 31 March 2011,
this court issued an order in the following terms:
“IT IS DECLARED THAT:
1. The applicant is a citizen of Zimbabwe by birth in
terms of section 5 of the Constitution of Zimbabwe.
2. The provisions of section 9(7) of the Citizenship of
Zimbabwe Act [Chapter 4:01], insofar as it relates to citizenship by birth, are
ultra vires the powers vested in the
Parliament of Zimbabwe in terms of section 9 of the Constitution of Zimbabwe
and are in consequence of no force and effect.
ACCORDINGLY IT IS ORDERED THAT:
1. The first respondent shall, within 14 days of the date
of this order, renew the applicant's Zimbabwe passport.
2. The first respondent shall pay the applicant's costs of
suit.”
The following are the reasons why this court granted the
relief sought.
The facts of this matter are that the applicant's father
was born in Mozambique in 1941. He came to Zimbabwe in about 1955 when he was
still young and lived most of his life in Zimbabwe. At some stage he became a
citizen of Zimbabwe. He died in Harare on 8 February 2008. The applicant's
mother was born in Zimbabwe. She was a citizen of Zimbabwe by birth. She lived
all her life in Zimbabwe and died in Harare on 18 April 2008.
The applicant was born in Zimbabwe on 29 April 1967. He
is the holder of a Zimbabwe National Identity document. On 19 June 2000, the
applicant was issued with a Zimbabwe passport on the basis that he was a
Zimbabwean citizen. The passport expired on 18 June 2010 when the applicant was
in Canada where he is living and working. Before its expiry, the applicant
submitted an application form to renew his Zimbabwe passport. He submitted the
form to the first respondent through the Zimbabwe Embassy in Canada.
The first respondent has refused to grant the application
for a renewal.
The first respondent's reasons for adopting the stance
which he has taken with the applicant may be summarised as follows. Firstly, he
argues that contrary to section 9(1) of the Citizenship of Zimbabwe Act
[Chapter 4:01], the applicant was a dual citizen of Zimbabwe and Mozambique and
that as a consequence, and in terms of section 9(7) of the Citizenship of
Zimbabwe Act [Chapter 4:01], the applicant has lost his Zimbabwe citizenship.
Secondly, he argues that before the applicant is entitled to apply for a new
Zimbabwe passport, he has, in the first instance, to renounce Mozambique
citizenship in terms of Mozambican law. Then, in accordance with the provisions
of section 14(1)(b) of the Citizenship of Zimbabwe Act [Chapter 4:01], he has
to apply to the second respondent to be restored as a Zimbabwe citizen in terms
thereof. Furthermore, that in this instance, the applicant will have
restoration of citizenship by registration and not by birth. The applicant, it
is argued, will suffer no prejudice by being a citizen of Zimbabwe by
registration rather than by birth. Only if and when the said application is
approved will the first respondent recognize the applicant as a citizen of
Zimbabwe.
The first respondent's third argument appears to be that
the law relating to citizenship which applies to the applicant's case is that
contained in Chapter II of the Constitution of Zimbabwe as set out in the
Schedule to the Zimbabwe Constitution Order (SI 1979/1600) as amended but only
up to and including Constitution Amendment No.14 of 1996). The first respondent
would appear to consider that in dealing with the applicant's case, the
provisions of Constitution Amendment No.19 (Act 1 of 2009) are not relevant. The
first respondent appears to imply that if the applicant becomes a citizen of
Zimbabwe, again, he concedes that he would be obliged to issue the applicant
with a new Zimbabwe passport.
Initially, counsel for the respondents made detailed
submissions in line with the above summary, in opposition of the application.
Her submissions were also in line with the heads of argument filed on behalf of
the respondents. She highlighted that despite his protestation and claims to
the contrary, the applicant is a citizen of Mozambique and that as he had not
proved that he had renounced his Mozambican citizenship he had fallen foul of
Zimbabwean law which prohibited dual citizenship. She submitted that he had,
therefore, by operation of law, lost Zimbabwean citizenship. As a result, the
first respondent was entitled to refuse to renew his Zimbabwe passport on the
ground that he also held Mozambican citizenship by descent, which citizenship
he had not renounced. However, when the court asked her to make submissions
regarding the effect of this court's decision in Ricarudo Manyere v Registrar
General of Citizenship and Minister of Home Affairs HH87-02, a matter in which the facts are on all fours with the
facts of the present matter and which was cited in the applicant's heads of
argument, she readily conceded that the opposition mounted by the respondents
in this matter cannot be sustained.
The court was of the view that the concession,
though belated, was properly made. The following are the reasons why the court
was of the view that the concession was properly made, and, further to that,
that the applicant had laid sufficient basis to justify the granting of the
order which he sought and which the court proceeded to grant soon after (a few
days after) the hearing….,.