MAVANGIRA
J: The applicant is a Nigerian immigrant who is in Zimbabwe. He was arrested on
6 February 2012 by Immigration officers. On 14 February 2012 he filed this
urgent chamber application in which he seeks the following relief by way of
Provisional Order:
"INTERIM RELIEF
Pending the return day, it is hereby
ordered that:
1. First
respondent be and is hereby ordered to release applicant forthwith from
detention upon the granting of this order."
The
final relief sought by the applicant is in exactly the same terms as for the
interim relief.
I dismissed the application with
costs on 5 March. My reasons have been requested. These are they.
The
applicant's contention is that he was arrested and detained on undisclosed
allegations. He further contends that whereas in terms of s 8(1) of the
Immigration Act [Cap 4:02] the first
respondent is entitled to detain him for fourteen days where he has reasonable
suspicion that he might have committed an offence against the laws of Zimbabwe,
in casu no reasonable suspicion has
been substantiated by the first respondent for the arrest and detention of the
applicant. He therefore regards his arrest and detention as unlawful. He therefore
contends that the relief that he seeks is justified by these circumstances. The
applicant further proffers an explanation for the delay of seven days from the
time of his arrest to the time of the filing of this application. He stated
that he was during that intervening period trying to engage the first
respondent, in vain.
The
applicant's case has been aptly summarised in the respondents' heads of
argument in the following terms:
1. He is a foreign investor who is in Zimbabwe
on the strength of a valid foreign
investor licence.
2. He
was unlawfully arrested and detained by the first respondent without reasonable
suspicion and without being given any explanation or interview.
3. He
was under threat from deportation at the instance of the first respondent.
4. He
had done nothing wrong to deserve the actions by the first respondent.
The
first respondent's case in opposing the application has also been aptly
summarised as:
1. The
applicant was invited to the respondent's offices for an interview.
2. After
the realisation that the applicant was out of status he was informed and
immediately arrested and detained for further inquiries in terms of s 8(1) of
the Immigration Act.
3. At
the time of his arrest the applicant had no valid permit, no valid PRN
(Provisional Restriction Notice) and no valid Foreign Investor Licence.
4. After
further inquiries the first respondent has found that the applicant is a
prohibited person who has a previous deportation record and that the term
"foreign investor" does not describe him or is not applicable to him as he is
only a director of a company and not a shareholder as alleged.
5.
The applicant may have been allowed
entry to Zimbabwe and granted a previous permit by error or by oversight; as
such, the first respondent has the right to remove and deport the applicant
from Zimbabwe in terms of the Act.
Was the arrest and
detention of the applicant lawful?
When
the applicant was invited for an interview at the first respondent's offices,
justification or reasonable suspicion that the applicant had contravened the
Immigration Act was based on the fact that on completing his application form for
a residence permit the applicant had lied under oath and stated or written that
he had only entered Zimbabwe for the first time in 2006, yet the Immigration
Department records show that the applicant was once deported on 15 June 2005. Having
been thus deported the applicant became and was a prohibited person. Section 15
(2) of the Immigration Regulations, 1998 provides:
"(2)
An applicant for a residence permit shall satisfy the Chief Immigration Officer
that he is of good character and is not a prohibited person".
The
applicant has not shown that he was in possession of any legal document
allowing him to remain in the country. The applicant has not stated that after
the 2005 deportation the Minister has in terms of s 16 of the Act issued an
exemption certificate for his readmission. Section 16 of the Act provides as
follows:
16 Exemptions by
Minister from section 14
(1) Notwithstanding anything to the contrary
in this Act, the Minister may, by order in writing, exempt any
person described in subs (1) of section fourteen from
the provisions of that subsection subject to such terms and conditions as he
may fix:
Provided that, if the Minister exempts any person
described in para (e) of subs (1) of section fourteen, the
exemption shall only apply in respect of such offences as are specified in the
order.
(2) The Minister may at any time, by notice
in writing to the person concerned, cancel any order in terms of subs (1) and
thereafter the provisions of section fourteen to which the order relates
shall apply to that person.
Furthermore, in para 6.3 of the first
respondent's heads of argument the following submission is made:
"Even
where applicant was allowed in by error or by oversight, to enter into the
country and issued with an initial investor permit, the first respondent can
still withdraw such and remove the applicant out of Zimbabwe in terms of s 4 of
the Immigration Act. Because of the 2005 deportation record applicant is a
prohibited person in terms of s 14 (1) (i) of the Act and should not be
readmitted into the country without an exemption certificate from the Minister
in terms of s 16 of the Immigration Act."
No submission to
the contrary was made by Mr Nyandoro
in respect of this submission either. Rather Mr Nyandoro was at pains urging the court to disregard the first respondent's
supplementary affidavit in opposition of the application. The first
respondent's intention therein was to rectify an earlier statement that the
applicant had been deported twice before and to state that the correct position
was in fact that he had been deported only once in the past. The effect of
acceding to Mr Nyandoro's submission
would be for the first respondent's case to be that the applicant had returned
to Zimbabwe after having previously been deported from Zimbabwe on two
occasions and not once only. It was not
stated what prejudice would be occasioned to the applicant by this correction
of facts. It would appear that it could only occasion fairness, if at all, to
the applicant, but certainly not prejudice. Either way, the applicant still
faces the hurdle of the statutory onus placed on him to satisfy the first
respondent that he is not a prohibited person.
The
first respondent's legal practitioner cited MUSAKWA J in Nasvin Enendu v Chief
Immigration Officer & The Co-Ministers of Home Affairs HC 6996/11 where
at p 4 of the judgment he stated:
"It
is not a legal requirement that he should have been notified in writing that he
is a prohibited person".
No
submission to the contrary was made by Mr Nyandoro.
The applicant's arrest and detention cannot, in my view, be said to be unlawful
in the circumstances. The first respondent's reasonable suspicion has been
substantiated.
It appears to me that in the
circumstances discussed above the application cannot succeed and that costs
must follow the cause. It was for these reasons that I dismissed the
application with costs.
Hamunakwadi, Nyapadi & Nyambuya,
applicant's legal practitioners
The Civil Division of The Attorney General's Office, first
respondent's legal practitioners.
