MTSHIYA
J: This is an urgent application filed by the applicant on behalf of Ezenwafor Patience Onyeka, a minor child
aged 16 years (the minor girl child) seeking the following relief:
"TERMS OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not be
made
in the following terms:-
a)
The decision of the immigration officer to deny the
extension of Ezenwafor Patience Onyeka's temporary permit is hereby stayed
pending the hearing and determination of the application for review.
b)
This order shall remain in operation notwithstanding
the noting of an appeal.
c)
Respondent must pay the costs of this application.
INTERIM RELIEF
Pending
determination of this matter, the applicant is granted the following relief:
1.
Respondent and all those acting through him are
interdicted from causing the arrest and/or detention of Applicant and/or
Ezenwafor Patience Onyeka and/or the deportation of Ezenwafor Patience Onyeka
pending the hearing and determination of the application for review."
On 26 March 2012
the above relief was amended, through leave of court, to read as follows:
"TERMS OF FINAL ORDER SOUGHT
That
you show cause to this Honourable Court why a final order should not be made in
the following terms:-
a.
The decision of the immigration officer to deny the
extension of Ezenwafor Patience Onyeka's temporary permit is hereby stayed
pending the hearing and determination of the application for review.
b.
This order shall remain in operation notwithstanding
the noting of an appeal.
c.
Respondent must pay the costs of this application.
INTERIM RELIEF
Pending determination of this
matter, applicant is granted the following relief:
1.
Respondent and all those acting through him are
interdicted from causing the arrest of applicant in connection with the facts
arising from the application for review in HC2958/12 pending the hearing and
determination of the application for review."
The
above relief was dictated by a supplementary affidavit sworn to by the
applicant on 21 March 2012. The
affidavit was not formally filed in court but was merely presented at the
hearing without opposition. The
supplementary affidavit reads as follows:
"I JEROME OKEKE hereby
make oath and say that:
1.
The facts hereunder are true and correct according to
the best of my knowledge and belief.
Where I rely on legal contentions, I do so on the advice of my legal
practitioner, which advice I believe to be correct.
2.
I make this affidavit in my capacity and further to the
founding affidavit made in this application.
3.
This further affidavit has been necessitated by further
developments that have occurred since this application was filed.
4.
In particular, Ezenwafor Patience Onyeka left Zimbabwe
on 18 March 2012 and is currently in Nigeria.
5.
Representative of respondent continue to attend upon my
home at Borrowdale Brooke Estate in search of me. On 20 March 2012, I received a telephone call
from my gardener informing me that four armed police had attended upon my
residence at about 0230 hours in search of me.
The officers were led by Detective Murimbo.
6.
In response to this attempt to arrest me, I approached
respondent through a letter drawn by my legal practitioners dated 20 March
2012, a copy of this letter is attached hereto and marked "C1". This letter was consequent to a telephone
call that had been made by my legal practitioners to the offices of respondent
wherein an undertaking was made to furnish the offices of respondent with all
information that was required of me. I
addressed a similar letter to the Officer-In-Charge (CID Law and Order) at
Harare Central Police Station, a copy of which is attached and marked "C2".
Prior
to this application, namely on 8 March 2012, the applicant had filed an urgent
application (HC 2711/12) on behalf of the minor girl child for the following
relief:
"TERMS OF THE FINAL ORDER SOUGHT
That
you show cause why an order in the following terms should not be made;
1.
First respondent, his officials and/or assigns be
interdicted from arresting, detaining or deporting Ezenwafor Patience Onyeka
with passport No. A03296082 from Zimbabwe till finalization of applicants'
applications for the inclusion of Ezenwafor Patience Onyeka as his dependant
and the other one for her exemption from being deported from Zimbabwe both
filed with the Chief Immigration Officer and Co-Ministers of Home Affairs on
the 6 day of March 2012 respectively.
INTERIM RELIEF
Pending
the return day, it is hereby ordered that:
1.
First respondent
shall extend days of stay of Ezenwafor Patience Onyeka with Passport Number
A03296082 pending finalization of first applicant's two applications filed with
the Chief Immigration Officer and Co-Minister of Home Affairs respectively."
The
application was placed before me on 9 March 2012. I went through the application and made the
following endorsement(s) on it:
"Matter
does not meet the requirements of urgency:
a) applicant has since 20/10/11 been aware of
her situation/predicament
b) applicant knew her stay would require
extension from 25/2/12.
c) applicant admits to remaining in the country
illegally.
d) applicant only started seriously addressing
the matter on 5/3/12."
On
the same day on which I made the above endorsement(s), the applicant's then legal practitioners (Messrs Hamunakwadi,
Nyandoro & Nyambuya) had written to my clerk in the following terms:
"We write this
letter at the instance of our client of the above reference matter. We have since been advised by the Registrar
that our client's matter has been allocated before His Lordship Justice MTSHIYA
for his perusal and consideration. We
have however been occasioned to write this letter by new circumstances which
makes the case very, very urgent in that despite the fact that our client has
the present matter seized within the domain of the court; first respondent's
office is pressing upon our client to have the young girl deported forthwith.
This will
clearly prejudice our client's rights and his application would be of academic
and of empty standing. In the
circumstances; we humbly implore this Honourable Court to regard our matter
exceedingly urgent for we believe that our client has an arguable case and this
matter cannot wait not to be heard today.
We therefore ask your office to place this letter before His Lordship MTSHIYA
for appropriate advice and direction.
We
submit that the above is in order and we are guided accordingly."
As
already stated above, I had refused to have the matter set down because of lack
of urgency. However, on 14 March 2012,
the applicant, again on behalf of the minor girl child and through different
legal practitioners, (Messrs Mtombeni, Mukwesha Muzawazi & Associates)
filed this urgent application. The
application was again placed before me and I made the following endorsement(s)
on it:
"1. Matter is not urgent; and
2.
Notwithstanding the review application filed on
14/03/12, there is nothing that
persuades me to change what I said in HC2711/12 (ie an
application by the same applicant on the same subject). In the meantime I want to believe the review
application has also been placed before the law enforcement arms of the state."
The review
application referred to above was attached to this application. The relief
sought therein reads as follows:-
"It
is ordered that:
1.
The decision of the immigration officer, Mr Charamba,
is hereby set aside.
2.
Ezenwafor Patience Onyeka's temporary permit is hereby
extended pending the determination of applicant's decision to first respondent
to include her as one of his dependents on his residence permit in terms of s
16(1)(b) of the Immigration Regulations.
3.
Respondent pay the costs of this application".
The
matter did not end there.
On
16 March 2012 the applicant's new legal practitioners, Messrs Mtombeni,
Mukwesha Muzawazi and Associates, addressed a letter to the Registrar, for the
attention of my clerk, in the following terms:
"We respectfully
request that you place this letter before His Lordship, Justice MTSHIYA.
We refer to the
above urgent chamber application which was filed with the High Court on 15
March 2012.
We note that
pursuant to perusing the papers in respect of this urgent chamber application,
His Lordship is of the view that no urgency was disclosed and that His Lordship
has endorsed the papers accordingly.
We seek leave to
present oral argument before His Lordship on this point as we are of the view
that His Lordship may be persuaded to revisit his view on the matter. As held in Church of the Province of Central Africa v Diocesan Trustees, Diocese
of Harare 2010 (1) ZLR 346(H), the endorsement that the matter is not
urgent reflects the prima facie view
of the court on the papers without the benefit of oral argument form the
parties. Until the matter has been fully
argued orally and a determination made thereafter, His Lordship is not functus officio and can hear oral
argument on the issue of urgency.
We are happy to
appear before His Lordship forthwith to present oral argument on the issue of
urgency."
I
acceded to the request and directed that the matter be set down for 23 March
2012. On the set down date, Mr Zuze, from the instructing firm of legal
practitioners, applied for a postponement because Advocate Mahere, who had been instructed, was engaged elsewhere. The application was not opposed and I allowed
it. I then postponed the matter to 26
March 2012.
On
26 March 2012 I heard oral arguments from both Advocate Mahere for the applicant, and Ms Hove, for the defendant. I
then postponed the matter, to 29 March 2012, pending the filing, on or before
that date, of heads of argument by both parties.
The
applicant duly filed his heads of argument on 27 March 2012, followed by
supplementary heads of argument on 30 March 2012. I only received the respondent's heads of
argument late in the morning on 30 March 2012.
However, the said heads from the respondent appear to have been filed on
28 March 2012 and served on the applicant on 29 March 2012 through Advocates Chambers
Before
the parties presented oral arguments on 26 March 2012, the following documents
had also found their way into this case. These are:-
1.
Respondent's opposing affidavit filed on 22 March 2012;
and
2.
Notice of opposition - filed on 23 March 2012 but
relying on opposing affidavit already filed on 22 March 2012.
The
issue before me right now is to determine whether or not this application (i.e
HC 2959/12) is urgent. In making a
determination on that issue, I must, as far as is possible, avoid delving into
the merits of the matter.
It
is clear from all the applications referred to above that in his founding
affidavits, the applicant specifically states that he filed the applications
on behalf of the minor girl child with a view to regularizing the minor girl
child's illegal stay in Zimbabwe as from 25 February 2012.
Admittedly,
in making the applications the applicant sought to drag in the issue of his own
personal liberty as shown in casu
from both his founding affidavit and the relief sought - particularly from the import
of the amended provisional order. In
para 12 of his founding affidavit the applicant states:
" 2. Applicant is likely to be arrested and charged
for assisting the minor child to
remain in Zimbabwe on the face of a decision
that is grossly irregular and is
the subject of an application for review.
3.
Immigration officials are already searching for me in
order to cause my arrest and detain the minor child. They have since attended upon my home and
workplace in order to so detain me.
4.
There is a real risk and possibility that my rights and
those of the minor child as amplified in the application for review will be
violated irremediably if the effect of the decision is not suspended on an
urgent basis pending the hearing and determination of the application for
review."
Supporting
her argument with a number of authorities, Advocate Mahere for the applicant, stated that the matter was urgent because
the applicant's liberty was at stake mainly because of his failure to
pay a bribe. In her opening
statement in the applicant's Heads of argument filed on 27 March 2012, she
states:
"These heads of
argument are filed in support of an urgent chamber application which seeks
to safeguard applicant from the rash and unreasonable interference with his
liberty by respondent. It is
submitted that the office of respondent cannot improperly, on the back of
malice and corruption, deny the minor child who was being looked after by
applicant an extension and then use this as a basis to arrest him for harboring
the minor illegally." (my own underlining)
The
above statement creates the impression that this application was filed by the
applicant on his own behalf solely to protect his own liberty. That, as already shown, is not the correct
position. The application was filed on behalf of the minor girl child.
Ms
Hove for the respondent submitted
that the issue of the liberty of the applicant should be delinked from the main
application which he made on behalf of the minor girl child. I agree.
As
already stated this application and the other applications referred to above
were dictated by the need to regularize the minor girl child's illegal stay in
Zimbabwe. That is what created the
purported urgency. The minor girl child,
as confirmed by the applicant in his supplementary affidavit, has since removed
herself from the jurisdiction of this court.
It is also curious enough that the applicant only 'learnt' about the
minor girl child's departure. This is so
because on 20 March 2012 the applicant's then legal practitioners, Messrs
Puwayi Chiutsi Legal Practitioners advised the respondent as follows:
"Most
importantly, however, our client was not harbouring the minor, we attach hereto
an affidavit as annexure 'A' obtained by our client indicating that the minor
child had run away from our client's house several days before she left, this can be
independently verified."
In
their submissions, both parties' counsel referred me to relevant authorities on
the issue of urgency. Advocate Mahere correctly cited the case of Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H) where, in part,
CHATIKOBO J said:
"What
constitutes urgency is not only the imminent arrival of the day of
reckoning. A matter is also urgent, if
at the time the need to act arises, the matter cannot wait."
My
endorsement on this application on 15 March 2012 indicating that the matter is
not urgent was based on the guiding principles on the issue of urgency such as those
spelt out in the Kuvarega case, supra. My position is even further strengthened now
by the fact that the minor girl child, on whose behalf the application was
made, left the Zimbabwe on 18 March 2012.
That completely removes whatever urgency might have attached to the
application made on her behalf.
I
totally agree with Advocate Mahere
that the applicant's liberty should not be interfered with without due
process. However, in the circumstance of
this case I find the attempt by the applicant to confuse the application he
filed on behalf of the minor girl child with his own agenda. He claims to do so
purely on the reasoning that the facts arising from the application for review
are the cause of his intended arrest. He also brings in the alleged issue of
corruption which, if at all it happened, he must have been aware of when he
filed the first urgent application on 8 March 2012. He remained silent.
He
states in his own affidavit in the review application that the evil called
corruption became evident to him in February 2012. He only chose to reveal it
in these papers on 13 March 2012 - notwithstanding the fact that he believed
that failure to pay a bribe was the reason for his failure to help the minor
girl child.
Surely
and in line with the principles in Kuvarega, supra, that, in my view, was the
time to act. The first urgent application field on 8 March 2012 was silent on
that yet the applicant believed that if he had acquiesced, the minor girl
child's visa would have been extended. My view is that a crisis requiring
urgent attention had arisen even as early as 20 October 2011.
The
applicant, instead of dragging the issue of his own liberty into an application
which he has categorically stated that he is filing on behalf of the minor girl
child, is, in my view, fully entitled, if he indeed believes that his liberty
is being illegally threatened, to independently file an application on his own
behalf to protect his own liberty. The
applicant's attempt to link his own issue(s) to a matter whose purported
urgency he knows has fully disappeared, is not acceptable. The main purpose for which he filed this application, as can be discerned from the original
provisional order, has been overtaken by events.
This
application, as implied in the applicant's heads of argument, is not predicated
on seeking to safeguard the applicant "from the rash and unreasonable
interference with his liberty by the respondent." It is basically an application which was made
on behalf of the minor girl child - the purpose being to regularize her illegal
stay in Zimbabwe as from 25 February 2012 when her Visa certificate
expired. The review application clearly
confirms that position.
In
view of the foregoing, my finding is that this application is not urgent and
cannot therefore be allowed to jump the queue.
The
application is dismissed with costs.
Mtombeni, Mukwesha, Muzawazi and Associates , applicant's legal
practitioners
The Civil Division of
the Attorney General, respondent's legal practitioners
