MAVANGIRA
J: On 17 February 2011 a consent order was issued by this court in HC1151/11 in
the following terms:
“IT IS ORDERED:
That first
respondent be and is hereby ordered to reconsider applicant's husband
application (sic) for an extension of
his Provisional Restriction Notice for a further 90 days.
That in the event
of the first respondent declining to extend the applicant's husband permit (sic) and applicant's husband appealing
to the Second Respondent. First Respondent be and is hereby ordered to release
the applicant's husband from Harare Remand Prison until the determination
of applicant's husband appeal (sic) by the Second Respondents.
That the Notice to
Prohibited Person be suspended.
That each party
pays its own costs”.
The applicant has now filed this
urgent chamber application and contends that the first respondent has complied
with the first part of the consent order and has since declined to extend her
husband's permit. Her husband has appealed against the decision. Despite such
appeal being made she contends, the first respondent has refused to release her
husband. She contends that in terms of the consent order quoted above, and in
view of the first respondent's refusal to release her husband, this court
should now order the first respondent to so release her husband.
The applicant thus seeks a Provisional
Order in the following terms:
“TERMS OF FINAL ORDER SOUGHT
That you show cause why a final order
should not be made in the following terms:-
1.
That First Respondent be committed to prison for
ninety days for his contempt of this honourable Court particularly his defiance
and contempt of this Honourable Court's Consent Order in Case No. HC 1151/11
granted on 16 February 2011. (sic)
2.
That the first respondent pays the costs of this
application on an attorney/client scale. (sic)
INTERIM RELIEF
GRANTED
Pending the final
determination of this matter, the applicant is granted the following relief:-
(a)
That within twelve hours of the service of this Order
upon the First Respondent to show cause why a Final Order should not be made in
terms of the Final Order sought herein.
(i)
First Respondent is ordered to release the applicant's
husband Emmanuel Chimaobi Udoh from Harare Remand Prison immediately. (sic)
(ii)
That this order shall be effected on First Respondent
by the applicant's legal practitioners by service on the Director of the Civil
Division of the Attorney-General's Office or on the first respondent
personally”. (sic)
It
is noted that whilst the applicant cited the first respondent as the
“Principal
Chief Immigration Officer,” opposing papers filed on behalf of the first
respondent cite the first respondent as being the “Principal Director of
Immigration”. At the hearing, and in answer to the court's question, the
respondents' legal practitioner advised that there is no entity or persona styled the “Principal Chief
Immigration Officer” but there is a Principal Director of Immigration. Note is
also taken of the fact that in the consent order in HC 1151/11 the first
respondent therein was cited as being the “Principal Chief Immigration
Officer”. Mr Dodo who appears for the
respondents in the instant matter also appeared for the same respondents in
that matter.
Mr, Chingore for the applicant submitted that the consent order creates
no confusion and that its terms were consciously agreed to by the parties who
anticipated that in the event of the first respondent declining the applicant's
husband's application, there may be filed an appeal against such a decision. He
submitted that the parties agreed that in the event of such appeal being filed,
the first respondent would release the applicant's husband from Harare Remand
Prison pending the determination of the appeal. Furthermore, he submitted, it
was agreed that the “Notice To Prohibited Person” in terms of which the
applicant's husband was arrested and incarcerated was suspended.
Mr.
Chingore further submitted that
subsequent to the consent order being granted on 16 February 2011, the
applicant submitted an application to the first respondent on 17 February 2011.
On 21 February 2011 the first respondent wrote the letter already quoted above
in which he referred to “your recent application for a residence permit …” and
advised that the application “has been refused.” He submitted that this
application was made in terms of the consent order; that when it was declined
and an appeal was made, it became incumbent upon the first respondent to
release the applicant's husband as anticipated by the terms of the consent
order. He also submitted that the first respondent had no justification at all
for not releasing the applicant's husband in the circumstances and was
therefore in contempt of court. The Provisional Order sought must therefore be
granted.
In opposing this application the first
respondent contends, in one breath, that the Consent Order has been
“religiously complied with”. He contends that the Consent Order compelled him
to reconsider the applicant's husband's application for extension of his
provisional restriction notice. However, since there was an application of
“spousal residence permit” that was already lodged and pending, it was only
proper that that application be finalised. This was done and on the basis of
the evidence gathered by the first respondent's officials in Gweru, the
application was declined as it had no merit. The applicant's husband was
advised accordingly. It is stated in the opposing affidavit that it is denied
that the first respondent failed to comply with the Consent Order as he in fact
went a step further by concluding the application for spousal residence permit
extension. This, it is stated, is an application that had been pending since
2007 and had not been finalised because the applicant and her husband failed to
avail themselves for the process to be concluded. Efforts to locate the
applicant's husband at the given address in Harare had proved futile. The
applicant's husband was then only arrested in KweKwe in November 2010 and by
then, he had, by operation of law, become a prohibited person and he was
notified of this status in terms of s 14(1) (i) of the Immigration Act, (“the
Act”). This notification was held in abeyance by the Consent Order but after
the application for residence permit extension failed, it came into operation
as the applicant's husband is a prohibited person by virtue of operation of
law. It is for these reasons, it was contended that he remains in detention.
The first respondent also contends
that the applicant has not correctly interpreted the Consent Order and as a
result, she finds herself in the predicament in which she now is. He contends
that there is no legal provision, statutory or otherwise, which compels him to
release the applicant's husband pending conclusion of his appeal by the second
respondents and which provides that a person in the applicant's husband's
position may remain in the country pending the determination of the said
appeal. In the opposing affidavit it is stated that the process of the
applicant's husband's removal from the country has since commenced in line with
the provisions of s 8(2)(a)(b) of the Act and that the applicant is thus
misleading the court when she alleges that the first respondent has failed to
comply with the Consent Order.
In the next breath, the submission was
made by Mr Dodo that when the terms
of the Consent Order were agreed upon, he, (Mr Dodo) was under a misapprehension as to how the first respondent
conducted its business or operations. It was only at a later stage that he was
made to realise that the consent order or the terms thereof ought not to have
been agreed to by or on behalf of the first respondent. He has since been given
instructions to apply for the consent order to be set aside.
At
the hearing Mr Dodo submitted that as
the first part of the Consent Order requires the first respondent to reconsider
the applicant's husband's application for extension of the Provisional
Restriction Notice, such reconsideration could only be done if an application
had been made with the first respondent. He submitted that no such application
was made. He submitted that the second part of the Order does not refer to any
Provisional Restriction Notice but to a permit and that as the first respondent
issues various types of permits, it is not clear as to what permit the second
part of the order is referring to. As no application was made for a Provisional
Restriction Order and consequently no such application was declined by the
first respondent, the provisions of the Consent Order were thus not triggered
into operation. It was submitted that the application which the first
respondent considered and determined was an application for a residence permit
and that such application was not made pursuant to the consent order. It (the
application), had been made in 2007 and the first respondent's letter dated 21
February 2011 was in response to the 2007 application. It was submitted that in
the circumstances, the Consent Order places the first respondent under no
obligation to release the applicant for these stated reasons.
It was further submitted that the law
regarding permits is very clear. If an application for a permit is turned down
and an appeal is noted, the first respondent is not under any obligation to
release the applicant. The only obligation on the first respondent is not to
deport the applicant until the appeal is determined.
Mr Dodo
also submitted that an application in terms of the first part of the Consent
Order is made in terms of s 45 of the Immigration Regulations and it relates to
persons like the applicant's husband whom the first respondent suspects to be
prohibited immigrants. It was for this reason that the first respondent did not
have a problem agreeing to the terms of the consent order as long as it was
based on his interpretation. He submitted that the first respondent would not
have consented to the release of the applicant's husband pending determination
of an appeal against the dismissal of an application for a permit, which is
precisely the application which he turned down. The reason for this is that the
applicant's husband had been on the run for more than a year and had not
regularised his papers with the first respondent until he was arrested. The
first respondent is entitled in terms of the Act, to keep him in custody until
his appeal is heard. He submitted that in terms of s 9(1) and (2) of the
Immigration Act, the applicant's husband could have approached the relevant
authorities to arrange for his release but he has not done so. He will thus be
kept in custody until his appeal is determined.
A perusal of the papers placed before
the court shows the following sequence of events. On 17 February 2011 the
Consent Order already quoted above was issued. On 21 February 2011 the
Principal Director of Immigration wrote a letter to the applicant's husband. It
reads:-
“I refer to your
recent application for a Residence Permit to the Principal Director.
I regret to advise
you that your application has been refused. In terms of s 19(2) b of the
Immigration Regulations 1998. (sic).
Please bring this
notification letter together with your passport to the nearest Immigration
Office to finalise on departure arrangements”
On
22 February 2011 the applicant's legal practitioner wrote to the
respondents legal
practitioners in the following terms:-
“We refer to the
above matter in which an order was granted by Consent on 16 February
2011.
We would have
thought as clearly expressed by the Honourable Justice BHUNU, now that
the file for Mr Emmanuel Udoh has been found he would by now have been
released. The application was for him to be released immediately and
not whenever your client wants.
It is a week since
the order was granted and as expressed on the phone yesterday there is no legal
basis to continue detaining Emmanuel Udoh at all.
The basis upon
which he was purportedly detained at Harare Central Remand Prison was the
Notice to Prohibited Person which was suspended by consent.
The detainee should
have been released immediately on his wife's application for a Permit on
a Provisional Restriction Notice whilst the Department of Immigration was
processing his permit and we understand this application was done on 17
February 2011.
It can not
surely take a week to process our client's Provisional Restriction Notice.
Unless therefore our client is released on a Provisional Restriction Notice by
close of business on 22 February 2011 we have been instructed to proceed
with an Urgent Application for contempt of Court”. (sic)
On
23 February 2011 the respondents' legal practitioner responded to the
applicant's legal practitioner
as follows:-
“We regret to say
your interpretation of the consent order is materially different from ours.
Our understanding
of the order is that once the file was located (even though our client insists
it never went missing as you allege or at all) it had to process your
application. As it were, our client has processed yours application in terms of
the Consent (Order) and found it devoid of ment (sic) (merit) and dismissed it.
In the circumstances our client is convinced that he has religiously complied with
the Consent Order and is not in contempt as you allege or at all. We hope this
clears things up”.
On 24 February 2011 the applicant's
legal practitioner wrote a letter to the second respondents on behalf of the
applicant's husband, appealing to them to exercise their discretion in the
applicant's husbands' favour and order the Department of Immigration to grant
him an extension of his permit on the grounds stated in the letter. They also
wrote a letter to the respondent's legal practitioners on 1 March 2011 and
stated the following:
“We refer to the
above matter and advise that your client the first respondent declined to
extend our client's permit.
Our client has
since appealed to the second respondent. We enclose copy of our client's letter
of appeal a copy of which was served on both first and second respondents.
Since our client has appealed against first respondent's refusal to extend the
permit kindly instruct your client to immediately release our client as
ordered in para 2 of the Consent Order. (sic).
We thought your
client would by now have complied with para 2 of the Order. Since it was
served early on 28 February 2011. (sic) Unless your client immediately releases
our client our instructions are to proceed with an application for contempt.
(sic) There certainly can be no
different interpretation of paragraphs 2 of the Order as that seems clear” (sic).
The
first respondent appears to be rather equivocal or ambiguous in his
stance.
In one breath it is claimed that the order or the terms thereof ought not to
have been agreed to as it is not in tandem with how the first respondent's
affairs are run. In another/the next breath it is contended that the first part
or the first paragraph of the order was consciously and properly agreed to, as
it is in accord with Immigration laws. In yet the next breath it is claimed
that the first respondent has religiously complied with the Consent Order.
Against this ambiguousness is the fact that in his letter of 21 February 2011
the first respondent referred to the applicant's husband's “recent
application”. He did not refer to an application made in 2007 which he now
seeks to portray as the application which he considered and determined.
Furthermore, in that letter, the first respondent advised the applicant's
husband to bring the letter together with his passport to the nearest
Immigration Office “to finalise on departure arrangements”. This latter part of
the letter would seem to indicate a number of possibilities. One would be that
the first respondent did not anticipate an appeal by the applicant's husband.
Such a stance however, would be contrary to the (agreed) terms of the Consent
Order in terms of which an appeal was in fact anticipated. Another possibility
would be that to the first respondent it did not matter whether the applicant's
husband appealed against the determination made by him. He had no interest in
the second part of the consent order which anticipated an appeal. It is highly
improbable, in my view, that by referring to a recent application in his letter
of 21 February 2011 the first respondent meant an application made four years
earlier in 2007. In fact the first respondent's legal practitioner's letter of
23 February 2011 clearly stated that the applicant's husband's application was
processed in terms of the Consent Order, was found devoid of merit and was
dismissed. The letter stated that the first respondent is convinced that he has
religiously complied with the Consent Order and that he is not in contempt of
court as alleged or at all. No mention is made of any appeal having been made
by the applicant's husband.
When mention was made in the letter of
1 March 2011, of the applicant's husband's appeal, the letter was not responded
to. The aspect of the consequence of such appeal in terms of the Consent Order
thus appears to have been deliberately avoided by the first respondent or his
legal practitioners in any correspondence they exchanged with the applicant's
husband's legal practitioners. The stances which the first respondent has now placed
before the court, especially regarding the second part of the consent order in
which reference is made inter alia,
to an appeal, was never expressed to the applicant's husband or his legal
practitioner before this hearing. What is apparent from the correspondence is
that the first respondent was keen to deport him immediately upon the
determination of his application.
For the above reasons I find
persuasive Mr Chingore's submission
that the parties have always been clear as to what application the first
respondent was to reconsider and determine. Furthermore, that they have always
been clear that the appeal referred to or anticipated in the first part of the
Consent Order is an appeal against the determination made in terms of the first
part of the Consent Order.
It follows therefore, in my view, that
the first respondent having complied with the first part of the Consent Order
as he confirms that he did and the applicant's husband having appealed against
the determination made in terms thereof, the first respondent must now, in
compliance with the second part or paragraph of the order, release the
applicant's husband from Harare Remand Prison pending the determination of his
appeal. Subparagraph (i) of para (a) of the interim relief must therefore succeed.
I am however, of the view that the
final relief sought in the Provisional Order sought cannot be granted. Rule
39(1) of the Rules of this Court, requires personal service of process in
relation to a claim for an order affecting the liberty of a person, on such
person. The rule has not been complied with. It appears to me that if the court
were to grant the Provisional Order as phrased, the court would have, without
justification, allowed the applicant to circumvent compliance with rules 39 (1)
and 388. After a Provisional Order has been granted, the applicant is required
to serve on the respondent the Provisional Order so granted and does not serve
the application on which the Provisional Order was based. Rule 39 is very
specific in its requirement for personal service of process in relation to a
claim for an order affecting the liberty of a person. There can be no doubt in
my view that proceedings for contempt of court fall into this classification.
In addition to this, rule 388 provides clearly and in peremptory terms that the
institution of proceedings for contempt of court shall be made by court
application.
After
the court raised the issue with the applicant's husband's legal practitioner
during the hearing he requested that the hearing be adjourned to enable service
to be effected in compliance with the requirements of rule 39(1). The request
was declined as such service ought to be made before the court hears a matter
in which such service is required, In any event, this non compliance, coupled
with the additional and equally significant non compliance with r 388 militated
against the granting of such request. The applicant has in my view not laid the
foundation for the granting of the Provisional Order with final relief in the
terms sought as quoted above. I therefore decline to entertain the application
for a Provisional Order insofar as it relates to the final order sought. The
applicant is at liberty if he so wishes, to seek such relief, but he must do so
in compliance with the relevant rules.
Mr.
Dodo went to great lengths addressing
the court on the reasons why or how the consent order in HC1151/11 was granted
in the terms in which it is phrased. He also addressed the court at length
about the undesirability of the terms of the consent order to the first
respondent. Those issues are certainly not before this court. What is before
this court is a consent order issued by this court more than a month ago in
HC1151/11. The relief now sought before this court arises from the said consent
order. Whatever intentions the first respondent has about it, the consent order
is extant.
For the above reasons an Order was
issued on 29 March 2011 in which the relief granted was to order the immediate
release of the applicant's husband from Harare Remand Prison by the first
respondent with the first respondent being ordered to pay the applicant's
costs.
Chingore
& Associates, applicant's legal practitioners
The
Civil Division of the Attorney General's Office, respondents' legal practitioners
