This
is an application in terms of sections 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.
In
their heads of argument, the applicants submit that they have
abandoned paragraphs 2, 3 and 4 ...
This
is an application in terms of sections 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.
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 [Chapter
4:02].
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 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].”
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 [Chapter
4:02]…,.
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
against
the allegation in the second notice, that he was a prohibited person
(this would be in terms of section 21(1) of the Immigration Act). 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
[Chapter
4:02].
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 487 E-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…,.:
“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.
(ii)
Has the applicant's fundamental right to freedom of movement been
violated, as alleged?
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.
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.
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?”
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 Immigration 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.”…,.
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.
Significantly,
the applicants do not challenge the constitutional validity of
section 17 of the Immigration Act [Chapter
4:02].
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, take
issue with the 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.
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.
I
am not persuaded that the applicants, in the circumstances of this
case, can properly impugn the strict application of section 17 of the
Immigration 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”,
First
Ed….,.
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.“…,.
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
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.
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….,.
In
all respects, therefore, I find that the application lacks merit and
ought to be dismissed….,.
It
is accordingly ordered as follows:
The
application be and is hereby dismissed.
