These are the reasons.
The appellant, who is a Nigerian national, filed an urgent
chamber application before the High Court seeking an order for his immediate
release from detention at the instance of the respondents. After hearing the parties, the High Court
dismissed the application with costs.
Against that decision the appellant noted an appeal to this
Court.
The background to this matter is as follows.
The appellant, a Nigerian national residing in Zimbabwe,
was arrested by immigration officials on 6 February 2012 in terms of section
8(1) of the Immigration Act [Chapter 4:02] (“the Immigration Act”)
which allows an immigration officer to arrest any person whom he suspects, on
reasonable grounds, to have entered or to be in Zimbabwe in contravention of
the Immigration Act and to detain such person for a period not exceeding
fourteen days for purposes of making enquiries on the status of such
person. Following such arrest, the
appellant filed an urgent chamber application with the High Court in which he
challenged the legality of his arrest and sought an order for his immediate
release from detention.
In his papers before the High Court, the appellant averred
that he was in Zimbabwe on the basis of an investor permit and that he was a
shareholder of Ideal Clothing Manufacturing (Pvt) Ltd, a company incorporated
according to the laws of Zimbabwe. The appellant attached, as an annexure, a
copy of an investor permit issued on 8 May 2007 by the Zimbabwe Investment
Authority. In the circumstances, he submitted that no reasonable suspicion for
his arrest and detention had been shown, and, consequently, an order for his
immediate release was justified.
In his opposing papers in the court a quo, the first
respondent opposed the application on the basis, firstly, that although the
appellant had previously been issued with an investor permit this had expired
in 2008 and had not been renewed, and, secondly, that the appellant had been
staying in the country on the basis of a Provisional Restriction Notice which
had also since expired. Since the appellant had no valid residence permit
allowing him to stay in the country he was therefore out of status. The first
respondent further averred that it had also been discovered that the appellant
had previously been deported twice from Zimbabwe in June 2005 and June 2009 and
was therefore a prohibited immigrant. Given these circumstances, it was the
first respondent's submission that the appellant had been lawfully arrested and
detained pending finalisation of further inquiries.
In his answering papers, the appellant accepted that his
investor permit had indeed expired in 2008 and that he only renewed it on 14
February 2012 - shortly after his arrest. He also admitted that the Provisional
Restriction Notice allowing him to stay in the country had expired on 20
January 2012 but stated that efforts to extend the same were frustrated by the
respondents who insisted they wanted to know the outcome of his application for
a permanent residence permit before any further extension. He denied having
been deported either in 2005 or 2009.
What happened thereafter is pertinent as one of the grounds
of appeal is predicated thereon.
The appellant filed his heads of argument on or about 22
February 2012. The first respondent, on the other hand, filed his heads on 27
February 2012. In the heads, the first respondent sought the leave of the court
to file a supplementary affidavit in order to deal with some of the averments
made by the appellant in the answering affidavit. The first respondent also
filed with the court the supplementary affidavit in question and in his notice
of filing indicated that the affidavit was in response to new issues raised
which required clarification by him. In the main, the first respondent sought
to produce a record in the Immigration Deportation Book to confirm that the
appellant had been deported in 2005 and that when he came back into the country
he was allowed entry in error as it was not appreciated then that he was a
prohibited person.
At the hearing of the application, the court a quo admitted
the supplementary affidavit. Having done so, the court then accepted that the
appellant, having been deported from Zimbabwe on 15 June 2005, had become a
prohibited person. The court also found that the appellant had not been in
possession of any legal document such as would allow him to remain in the
country. In the circumstances, the court found that the arrest of the appellant
and his subsequent detention had been lawful. Consequently, the court dismissed
the application with costs.
It is against that order that the appellant appealed to
this Court.
In his notice of appeal, the appellant attacked the
decision of the court a quo on
several grounds, some of which are not clear. The grounds are:
“1. The court a quo erred in allowing first respondent in
filing supplementary affidavit (sic) which 1st respondent filed and
issued on the 27th day of February 2012 before getting leave of the
court to file the same on the 29th day of February 2012 which was
the date of the hearing. This is contrary to the rules of the court a quo.
2. The court a quo further erred in allowing 1st
respondent to file heads of argument which were mainly premised on
supplementary affidavit which were improperly filed by 1st
respondent.
3. The 1st respondent (sic) erred in condoning
the improper filing of supplementary affidavit by 1st respondent
which affidavit raised completely new grounds.
4. The court a quo erred in dismissing appellant's
application despite the fact that 1st respondent lied to the court a
quo that appellant was living on the strength of an expired investor permit
which he never bothered to renew.
5. The court a quo, in dismissing appellant's application
despite the fact that 1st respondent further lied to the court that
appellant was arrested and detained because his Provisional Restriction Notice
expired and was out of status when Annexure “C” to 1st respondent's
notice of opposition shows that appellant was arrested on allegations of
re-entering the country after having been deported. It therefore follows that 1st
respondent never advised appellant of the charge of being out of status as
required at law.
6. The court a quo erred in dismissing appellant's
application despite the fact that 1st respondent's failed to produce
evidence to substantiate the allegation that appellant was indeed interviewed
and he admitted to the allegations of having once been deported.
7. The court a quo further erred in dismissing appellant's
application despite the fact that 1st respondent lied to the court a
quo that appellant was deported in June 2009 from Zimbabwe when there was
overwhelming evidence that appellant was in Zimbabwe in 2009.
8. The court a quo erred in dismissing appellant's
application despite the sudden change made by 1st respondent in the
supplementary affidavit that he made a mistake in saying June 2009 instead he
wanted to say 2005 (sic). With respect,
a supplementary affidavit cannot be allowed to raise new grounds at law.
9. The court a quo erred in dismissing appellant's
application despite the fact that 1st respondent lied to the court a
quo that appellant had no legal standing to apply for a permanent residence
permit despite the fact that 1st respondent made appellant to pay
statutory fees for the same.
10. The court a quo erred in dismissing appellant's
application despite the fact that 1st respondent acknowledge ( sic)
in his paragraph 8 of the Notice of Opposition that they forced appellant to
append his thumb to notification papers against the will of appellant. In
essence, evidence gathered illegally for purposes of lawful process (sic) is
inadmissible.
11. The court a quo erred in making a finding that
applicant lied under oath and stated or written (sic) that he had only entered
Zimbabwe for the first time in 2006. This is a clear misdirection on the part
of the court a quo given that applicant clearly stated in the affidavit that he
first came to Zimbabwe in 2006 as an investor and not as an ordinary visitor.
With respect, it is a matter of fact that applicant first came to Zimbabwe in
2006 as an investor.
12. The court a quo further erred both at law and facts
(sic) when it relied on a photocopied immigration record that showed that
applicant was deported twice from Zimbabwe in 2005 and 2009 without being shown
an original copy of the same. In essence, the photocopied immigration record
shows 2005 and 2009 but 1st respondent did not sufficiently explain
to the court a quo what led to the inclusion of 2009 as the year that applicant
was also deported. With respect, no reasonable court applying its mind could
rely on a photocopied record without having to demand sight of the original
one.
13. The court a quo further erred in making a finding that
applicant's lawyer could not produce legal proof that applicant was never
deported in 2005 when applicant's lawyer submitted that the passport used by
the applicant had since been submitted to Nigerian authorities upon expiration
and the same has since been retrieved from the same which clearly shows that
applicant was never deported on 15 June 2005.”
The above grounds of appeal are repetitive in some
instances and vague in others. They have not been set forth clearly and
concisely and generally are inelegantly worded. This notwithstanding, it seems
to me that the issues raised are quite narrow and that this appeal can be
disposed of on a consideration of just two issues. These are;
(i) Firstly, whether the court a quo properly admitted
the first respondent's supplementary affidavit which contained damning evidence
against the appellant; and
(ii) Secondly, whether at the time of his arrest on 6
February 2012, the respondent had reasonable suspicion that the appellant was
not lawfully in Zimbabwe. Put another way, the second issue is whether as at
the date of his arrest, on 6 February 2012, the appellant was legally entitled
to remain in Zimbabwe….,.
Turning to the second issue that arises from the papers,
that is, whether the respondents had reasonable suspicion to arrest and detain
the appellant, it is clear from the papers that at the time of his arrest, the
appellant was not the holder of any permit such as would have allowed him to
lawfully remain in the country.
Although in his founding affidavit he stated that he had an
investor permit and a Provisional Restriction Notice, these had expired as at
the date of his arrest. It is also clear that the appellant only acquired a new
investor permit after his arrest on 14 February 2012. His Provisional Restriction
Notice had expired on 28 January 2012. His previous residence permit had
expired on 26 June 2011.
Most importantly, however, the respondents formed the
impression that the appellant had previously been deported twice from Zimbabwe,
although subsequent investigations revealed that he had been deported only
once. The records from the Immigration Department clearly confirm, as found by
the court a quo, that the appellant had been deported from Zimbabwe in June 2005.
He had thereafter managed to make his way back into Zimbabwe and in his application
for a residence permit indicated that he first came to Zimbabwe in 2006 as an
investor. He did not disclose the fact that he had been deported in June 2005….,.
The appellant was out of status at the date of his arrest
and clearly was a prohibited person as defined in section 14(i) of the
Immigration Act [Chapter 4:02]. In particular, section 14(i) of the Immigration
Act [Chapter 4:02] provides that any person who has entered or remained in
Zimbabwe in contravention of the Act is a prohibited person. As found by the
court a quo, his arrest and
subsequent detention cannot, in these circumstances, be said to have been
unlawful.
In the result, the court unanimously agreed that
the appeal lacked merit and the appeal was therefore dismissed with costs. 