CHEDA J: This
is an application for a confirmation of Provisional Order issued at this court by
my brother NDOU J on the 8th day of December 2008. The provisional order is couched as follows:
“INTERIM RELIEF GRANTED
Pending the
return day, Applicant is hereby granted the following interim relief:-
(a)
1st and 2nd Respondents be and
are hereby interdicted and prohibited from taking any action whatsoever to
effect the deportation of the Applicant from Zimbabwe and in particular shall
not arrest or cause the arrest, detention and forced removal of Applicant
and/or any member of Applicant's immediate family from Zimbabwe, and where such
action had already been taken, 1st and 2nd Respondents be
and are hereby ordered and directed to immediately re-admit Applicant back into
Zimbabwe on such temporary terms as may be appropriate in the circumstances and
to renew such permit from time to time pending and until finalization of this
matter by this Honourable Court.
(b)
Service of this Order shall be effected by Applicant's
legal practitioners upon the Principal Immigration Officer in Bulawayo
or a responsible person at the Bulawayo
office for and on behalf of 1st Respondent, and upon 2nd
Respondent by the Deputy Sheriff of the High Court in terms of the rules of
this Honourable Court.”
The
genesis and historical background as well as the facts of this case are
captured below. Applicant was born in Zimbabwe in
1970 and is therefore a Zimbabwean by birth.
He completed his secondary education in Zimbabwe
and went on to study for a Bachelor of Commerce degree in South Africa, thereafter joined a firm of
Chartered Accountants, Deloitte and Touché in Bulawayo.
In 2004 he left for Australia. Upon arrival in Australia he was granted an
indefinite stay and was issued with an Australian passport thereby becoming an
Australian citizen. He, infact, elected
to become an Australian. However, upon
acquiring the Australian citizenship he did not surrender his Zimbabwean
passport to the Zimbabwean Authorities as Zimbabwe's laws do not permit dual citizenship.
Applicant returned to Zimbabwe on the
6th day of April 2007 using the Zimbabwean passport and declared that
he was coming back as a returning resident.
Since his arrival he continued to use his Zimbabwean passport which he did
on 22 occasions, the latest being on the 29th day of November 2007. He
first used his Australian passport on the 2nd day of August 2007 and
has done so on 33 occasions. Applicant
was using his passports interchangeably, that is as and when it was convenient
for him.
Applicant
has argued that he is a Zimbabwean and therefore he has not lost his domicile
of origin as he still has an immovable property in Zimbabwe and continues to pay rates
and taxes like all Zimbabweans. He
further argued that the reason why he declared that he was a returning resident
was as a result of the advice from a friend.
This excuse with all due respect does not make sense. Applicant is an educated and professional
person, in my view, there is no way he would seek advice on such an important issue
from a friend and not from a lawyer.
On
the other hand, first Respondent's argument is that applicant has not been
honest, in that, he misrepresented facts when he declared that he was a returning
resident, yet, infact and in truth he was now an alien in terms of Zimbabwe's
laws by virtue of the fact that he had now acquired Australian citizenship and
his passport was stamped the words “indefinite stay.”
The
question which falls for determination is whether or not applicant has now lost
his domicile of origin to Zimbabwe. Perhaps, the first question to ask is, what
is domicile? According to Chamber Concise
Dictionary 1988, Domicile is defined as
“a dwelling place, one's legally recognized
place of residence.”
It
is therefore a term used to define one's status, capacity and rights. Every person has a domicile, it can either be
a domicile of origin or of choice.
Basically
everybody is born with a domicile, being that of origin which he/she can later
change by choice. Domicile of origin is
that which he/she is invested at birth.
He retains it until he chooses another, which becomes his domicile of
choice, see Encyclopaedia of the Laws of England
vol. 4, Sweet and Maxwell, 1897 p 339-344.
Domicile of choice was described in the leading and celebrated English
case of Udny v Udny (1869, L. R., H.
L. SC 441) where Lord Westbury stated:
“Domicile of
choice is a conclusion or inference which the law derives from the fact of a
man fixing voluntarily his sole or chief residence in a particular place, with
the intention of continuing to reside there for an unlimited time----. There must be a residence freely chosen, and
not prescribed or dictated by any external necessity, such as the duties of
office, the demands of creditors, or relief from illness and it must be
residence fixed, not for a limited period or particular purpose, but, general
and indefinite in its future contemplation.”
The question which falls for
determination is whether or not applicant lost his domicile of origin or not
when he acquired the Australian citizenship?
Section 3 of the
Immigration Act [Chapter 4:02] states:
“3.
Domicile
(1) Subject to this
section, a person shall be regarded, for the purposes of this Act, as being
domiciled in a country if—
(a) he
resides permanently in that country; or
(b) that
country is the country to which he returns as a permanent resident.
(2) A person who resides in Zimbabwe by virtue of the fact
that—
(a) he has been allowed to
enter or remain in Zimbabwe
through error, oversight, misrepresentation or a contravention of this Act or a
repealed Act; or
(b) it
has not been discovered that he is a prohibited person or an alien;
shall not acquire a domicile in Zimbabwe.”
Further
section 3 subsection 4 reads:
4. “Subject to subsection (5)—
(a) a person shall, for
the purposes of this Act, lose his domicile in Zimbabwe if he—
(i)
has voluntarily departed from and resides outside Zimbabwe with the intention of making his home
outside Zimbabwe;
or
(ii)
is absent from Zimbabwe for a continuous period of
seven years or such longer period as the Minister may, at his request, fix
before the expiry of that period:
Provided that the Minister may, in special
circumstances, fix a longer period in terms of this subparagraph after the
expiry of the period of seven years;
(b) the fact that a person
has taken up residence outside Zimbabwe shall be prima facie evidence of his intention of making his home outside
Zimbabwe and the onus of proving otherwise shall be on the person who (sic) status is in question;
(c) the fact that a person
who was domiciled in Zimbabwe has made any statement, whether for the purposes
of this Act or any other enactment or otherwise, to the effect that he is no
longer a resident or no longer regards himself as a resident of Zimbabwe shall
be prima facie evidence that he has
lost his domicile in Zimbabwe.”
It is clear therefore that a subject can lose his/her
domicile of origin by either voluntary departure from Zimbabwe and residence outside Zimbabwe with an intent of making his home
outside Zimbabwe or
alternatively, is absent from Zimbabwe
for a continuous period of seven years.
Applicant was away for a period of two years only, therefore the
alternative is not subject to debate. The
question here is the nature of his departure and his
intention when he did so. The intention of a subject can either be
express or implied by his actions.
Applicant voluntarily departed to Australia. Upon arrival he chose and assumed Australian
citizenship. He resided and undertook
his studies there. His intention was not
expressed. It can only be read from his
conduct, that is,
(1)
his voluntary departure from Zimbabwe, and
(2)
his election to assume Australian citizenship coupled
with his physical presence thereat for an indefinite period.
In Fenner v Fenner 1943 SR188
at191, Tredgold J in dealing with the question of the determination of
intention in the question of domicile stated,
“The
determination of a man's intention must be a subjective question. It may be evidenced by outward circumstances
but must be decided on the simple fact of his state of mind.”
Applicant's conduct in my opinion can only lead to one and only irresistible
conclusion being that he intended to abandon his domicile of choice. In other words he had a definite intention (animus manendi) to permanently
remain in Australian as opposed to a “floating intention”, being the desire to
return to his domicile of origin upon the happening of a certain event as
observed by Lord Westbury supra.
Applicant has argued that he is a
Zimbabwean by birth and that despite his voluntary departure he had always
maintained contacts with Zimbabwe
namely that he did not relinquish his shares at Deloitte and Touché and that he
did not sell his house at Fortunes Gate, Bulawayo. While this, may be so, but, this is nothing
more than a moral argument as the issue of ownership of assets in Zimbabwe is not
proof that a subject who
has voluntarily departed
from Zimbabwe
and assumed a foreign citizenship has not lost his domicile of origin. It is common international commercial
practice that one can have assets in various countries without assuming
domicile of the said countries.
Further, applicant has been
dishonesty since his arrival in Zimbabwe. He holds both Zimbabwean and Australian passports
and was using them only when it was convenient for him to do so. He
also lied about the reasons for his arrival in Zimbabwe, that is, that he was a
returning resident when he knew fully well that he was now a holder of
Australian passport. His use of these
passports interchangeably was not by accident, but, a well thought out plan
clearly designed to contravene the Immigration Act and thus to dupe the
authorities.
In light of the above, I find that
applicant lost his domicile of origin and assumed his domicile of choice, being
Australia.
Accordingly, the Provisional Order
issued by this Honourable Court on the 8th December 2008 be and is
hereby discharged.
Messrs Joel Pincus, Konson and Wolhuter, applicant's legal
practitioners
Civil Division,
Attorney General' Office, respondents' legal
practitioners
