MUTEMA J: The applicants who are
father and son hail from Pakistan.
They came to Zimbabwe
sometime in 2008 as investors. On 3 October, 2008 they were granted an
investment licence by the Zimbabwe Investment Authority (ZIA). Their investment
vehicle is styled Tonia Investments (Pvt) Ltd in which they hold 50%
shareholding each. That investment licence was to endure up until 2 October
2010. It was renewed on 8 October 2010 to run for another 2 years up to 7
October 2012. In the investment licence the description of the investment is
given as, “Manufacture of blankets, overalls, socks and jeans.'' Under
description and value of assets invested or to be invested it is written: Foreign Currency injection US$200 000:
Capital Equipment from Abroad US$450 000-00.''
The licence stipulated that the
investment assets described at their estimated value were to be invested within
2 years of approval unless otherwise agreed to by Zimbabwe Investment Authority.
Incorporated in the licence are special
conditions one of which states:
“1. This licence is issued on the
express condition that the Company/Applicant will only
engage in the activity(ies) stated in the licence and for no other
purpose without the
written consent of Zimbabwe Investment Authority.”
The current registered office of the
company is 24 South Avenue,
Harare. The company has what it
termed an outlet shop at number 31
Cameron Street, Harare.
On the strength of being approved
investors the first applicant, his wife and three children, and I presume the
same obtains in respect of the second applicant, had been granted residence
permits on 8 July, 2009 enduring from 1 July, 2009 to 30 July 2010. Buoyed by
the renewal of the
investment licence on 8 October,
2010 alluded to supra the
applicants applied for residence permit extension. The date for the application
is not disclosed but on 3 January, 2011 the principal director for immigration
wrote to both applicants stating:
“Thank you for application for an extension of
the Residence permit.
I regret to advise that, after
careful consideration, it has been decided that no further extension of the
Permit will be allowed.
It is now necessary that the above
named should go with this letter to his nearest Immigration Office so that
departure arrangement may be made.''
On 2 February 2011 the applicants
were issued with a Notice to visitor by the immigration department valid from 2
February 2011 to 1 March 2011 advising them to report to immigration at Harare Airport
to leave the country.
On 7 February, 2011, the applicants'
legal practitioners wrote to the principal director of the department of
immigration appealing to the same official against his/her decision to refuse
residence permit extension and requiring applicants to depart from the country
on or before 1st March, 2011. The applicants wanted the principal
director to reverse his/her earlier decision and grant them extension of their
residence permits for the same duration as their investment licence by Zimbabwe
Investment Authority.
The papers do not ventilate what
fate befell the appeal but presumably it was turned down for on 24 February,
2011 the applicants' legal practitioners lodged an appeal to the Co-Ministers
of Home Affairs appealing against the principal director of immigration's
decision not to extend
their investor's residence permits.
On 28 February, 2011 the Secretary for Home Affairs wrote to the applicants'
legal practitioners acknowledging receipt of the appeal and advising that the
Co-ministers were still considering the appeal and that if further assistance
was required they should approach the department of immigration with a copy of
the letter.
Then
on 7 March 2011 the applicants lodged an urgent chamber application in this
court seeking a Provisional Order whose interim relief sought is couched in
these terms:
“
INTERIM RELIEF SOUGHT
Pending the determination of this
matter, it is ordered that:
1. First Respondent be and is hereby
ordered to issue Applicants with Provisional Restriction
Notices valid for (90)
ninety days and renewable until this matter is finalised.
2. First respondent be and is hereby ordered
not to interfere with the business operations of the applicant (sic) until this
matter is finalised.
3. First respondent, his officials or assigns be
and are hereby interdicted from deporting or detaining applicants and members
of their families that is to say wives and minor children”.
The applicants contend that to date
the total value of their investment stands at US$98 450-00 excluding “the
almost US$45 000-00” put into infrastructural
development projects such as the outlet sales shop constructed at number 31
Cameron Street. In January 2010 immigration officials impounded first applicant
and his family's passports without reason until 5 February, 2011.It is due to
this passport impound that the applicants failed to meet the threshold of the
Zimbabwe Investment Authority licence to invest US$200 000-00 and capital
equipment from abroad worth US$450 000-00 as first applicant could not travel
outside the country without a passport.
The respondents deny that the
alleged passports were impounded and aver that it is the first applicant who
surrendered his wife's and children's passports as surety. They contend that
applicants are failed investors hence the refusal to renew their residence
permits. Applicants were accorded several opportunities since 2008 to implement
their investment project to no avail. The so-called factory at 24 South Avenue is
not a factory and the area is zoned for retail and not manufacturing.
Applicants, contrary to their investment licence terms focused on retail via
the sales shop at 31 Cameron
Street.
The Court conducted an inspection in loco at 24 South Avenue as well as at 31 Cameron Street.
The following observations were made.
at 24 South Avenue
It is located at the back of a retail
shop. Comprises two rooms-one small (the factory) and one big (the warehouse).
Access to the premises is via a sanitary lane. The two rooms are being leased
from one Unas Mahomed Hosein Meman at a rental of $500-00 per month. In the
small room were 8 sewing machines with some workers sewing bedsheets.
In the warehouse were:
- .
bundles of fabrics material for making bed sheets.
- 3
bundles of fabric material for making worksuits/overalls
- blankets
- 44
bundles of rexin material for upholstering chairs, sofas and baby cots
covers,
- 20
bundles of fabric material for making ladies suits.
- 100
finished bomber jackets
- 35
boxes of shirts imported from Bangladesh, each box
containing 30/40 shirts
- 20 bundles
of blanket material
- 5 x
2,3 m bed sheets
Applicants do not know
whether there exists a permit from the city council authorising the operation
of a factory on the premises.
at 31 Cameron Street
On the outside wall it is written:
Rida
Fabrics
Bedsheet
Curtaining
Mandy
Peticoat
Polycotton
Inside are:
·
cash
register
·
finished
bedsheets and pillows on shelves
·
blankets
·
material
for making baby waterproofs
·
material
for petticoat lace
·
5
suitcases displayed for sale
·
finished
worksuits
·
several
bundles of fabric material for bedsheets
·
several
bundles of mandy fabric for making school uniforms
·
bundles
of fabric material for making petticoats
·
bundles
of material for upholstery (sofas and chairs)
·
bundles
of material for making school uniform shirts
·
bundles
of material for making kitchen tables cover cloths
·
bundles
of material for making aprons
·
bundles
of material for making curtains
·
bundles
of rexin material
·
a
shop retail licence from the city council to sell class 7 items only ie.
textiles and fabrics
The foregoing observations compelled
the first respondent to refuse to renew the applicants' residence permits and
the first respondent said it is a mystery why Zimbabwe Investment Authority
renewed the applicants' investment licence when it was clear that not only were
the applicants not complying with the terms and conditions of their investment
licence but were deviating from the first special condition without the written
consent of Zimbabwe Investment Authority. The applicants could not profer a
plausible reason for this deviation.
I found it unnecessary to deal with
the merits of the matter because the application can simply be disposed of on
the issue of urgency. In this regard, the words of CHATIKOBO J.
in Kuvarega v. Registrar-General &
Another 1998(1) ZLR 188(HC) at 193 bear useful repetition for clarity. He
said,
“There is an allied problem of
practitioners who are in the habit of certifying that a case is urgent when it
is not one of urgency. What constitutes urgency is not only the imminent
arrival of the day of reckoning; a matter is urgent, if at the time the need to
act arises, the matter cannot wait. Urgency which stems from a deliberate or
careless abstention from action until the deadline draws near is not the type
of urgency contemplated by the rules. It necessarily follows that the
certificate of urgency or the supporting affidavit must always contain an
explanation of the non-timeous action if there has been a delay. Those who are
diligent will take heed. Forewarned is forearmed.”
In casu, if
what the applicants allege is true, viz that immigration officials impounded
their passports for 13 months without reason from January 2010 to 5 February
2011 thereby scuttling the fulfilment of the terms and conditions of their
investment licence, it is a wonder why the applicants sat back unperturbed
doing nothing about it. The papers do not say why the applicants remained in
this near catatonic state.
Whilst their passports were still
under impound the applicants were able to apply to Zimbabwe Investment
Authority for extension of their investment licence but on 31 January, 2011
they were written letters being advised that their application for residence
permit extension had been refused. In
the letters the applicants were directed to go with the letters to the nearest
immigration office so that departure arrangements could be made. They did not
approach the court on an urgent basis. In fact they did nothing. On 2 February,
2011 the applicants were served with a Notice to Visitor for departure expiring
on 1 March, 2011. Instead of approaching this court on third time the need to
act arose, the applicants decided that the matter could still wait. They
embarked on an apparently futile exercise of appealing to the same official who
had refused to grant extension of their residence permits. That was on 7
February 2011. It was only on 28 February, 2011 that the applicants lodged an
appeal to the co-minister of Home Affairs who on the same date advised
applicants to approach the immigration department with a copy of the
acknowledgement of receipt of the appeal for further assistance. Applicants
argued that this letter of acknowledgement of the appeal constituted an
instruction by the co-ministers to immigration to allow applicants to remain in
the country pending determination of the appeal by use of the words “ For
further assistance please approach the department of immigration with a copy of
this letter,” which instruction immigration are disobeying. Looking at the
ordinary grammatical meaning of the wording employed I am unable to glean such
meaning as contended for by the applicants.
It was only on 7 March, 2011 that
this application was filed in this court on purported urgency- some 5 days
after the expiry of the Notice to Visitor period. Neither the certificate of
urgency nor the founding affidavit contains any explanation for the delays at
each and every stage when the need to act arose alluded to supra. The urgency claimed by the applicants is not one
contemplated by the rules of court but is one which stems from a deliberate or
careless abstention from action until the deadline had passed-something akin to
shutting the stable door after the horse had bolted.
In view of the foregoing reasons the
application is found not to be urgent. It must await its turn in the queue. In
the result the application is dismissed with costs.
Mugwadi &
Associates, applicants'
legal practitioners
Civil
Division of the Attorney-General's Office. respondents' legal practitioners
