Court name
Supreme Court of Zimbabwe
Case number
SC 4 of 2003
Civil Appeal 158 of 2002

Registrar General of Citizenship v Todd (58/02) (SC 4 of 2003, Civil Appeal 158 of 2002) [2003] ZWSC 4 (26 February 2003);

Law report citations
Media neutral citation
[2003] ZWSC 4













REPORTABLE
(4)


Judgment
No. SC 4/03


Civil
Appeal No. 158/02








THE
REGISTRAR GENERAL OF CITIZENSHIP





v
JUDITH GARFIELD TODD








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, ZIYAMBI JA & MALABA JA


HARARE,
JANUARY 21 & FEBRUARY 27, 2003








S
J Chihambakwe
,
for the appellant





B
Elliot
,
for the respondent





MALABA
JA: This is an appeal from a judgment of the High Court dated
7 May 2002 declaring that the respondent was a citizen
of
Zimbabwe and directing the appellant to renew her Zimbabwe passport
within fourteen days of the submission by her of an application
for
such renewal. The appellant was ordered to pay the costs of the
application which had been made by the respondent.





The
facts of the case are these. The respondent was born in the then
Southern Rhodesia on 18 March 1943. Her parents,
Sir
Reginald Stephen Garfield Todd and Lady Jean Grace Isabel Todd, were
born in New Zealand on 13 July 1908 and 3 April
1911
respectively. They were citizens of New Zealand who came to
this country as missionaries in 1943 and settled at Dadaya
Mission
where the respondent was born. She became a citizen of Zimbabwe by
birth.






On
1 December 1984 the Citizenship of Zimbabwe Act [
Chapter 4:01]
(“the Act”) came into operation. The Act provided in s 9(1)
that no citizen of Zimbabwe, who was of full age and sound
mind was
entitled to be a citizen of a foreign country. It was provided in
s 9(7), as amended by s 3 of the Citizenship
of Zimbabwe
Amendment Act No 12 of 2001, that:





“A
citizen of Zimbabwe of full age who –





(a) at
the date of commencement of the Citizenship of Zimbabwe Amendment Act
2001, is also a citizen of a foreign country; or







(b) …






shall
cease to be a citizen of Zimbabwe six months after that date unless,
before the expiry of that period, he has effectively renounced
his
foreign citizenship in accordance with the law of that foreign
country and has made a declaration confirming such renunciation
in
the form of and manner prescribed.”





The
form in which the declaration confirming the renunciation of the
citizenship of the foreign country was to be made was prescribed
in
the Citizenship of Zimbabwe (Renunciation of Foreign Citizenship)
Regulations 2001 (SI 217/01). The date of commencement
of the
Citizenship of Zimbabwe Amendment Act was 6 July 2001 and the
period of six months thereafter was to expire on 6 January
2002.





It
so happened that on a date not disclosed in the papers but before
6 January 2002, the respondent submitted an application
to the
appellant through the Bulawayo Office for the renewal of her Zimbabwe
passport. The appellant, through his officers, refused
to renew the
passport, alleging that the respondent was a citizen of New Zealand
by descent and demanded that she should renounce
the foreign
citizenship before her Zimbabwe passport could be renewed. The
respondent vehemently denied that she was a citizen
of New Zealand by
descent, arguing that she could not renounce what she did not
possess.





On
4 January 2002 the respondent made an application to the High
Court, in which she cited the appellant as the first respondent
and
the Minister of Home Affairs as the second respondent. The relief
sought against the respondent and the Minister of Home Affairs
jointly and severally was an order to the effect that:






“1. The
provisions of s 7 of the Citizenship of Zimbabwe Act
[
Chapter 4:01],
as amended by s 3 of the Citizenship of Zimbabwe Amendment Act
(No 12/2001) do not apply to the applicant.






2. Consequently,
the provisions of the Citizenship of Zimbabwe (Renunciation of
Foreign Citizenship) Regulations 2001 (Statutory Instrument
217/2001)
do not apply to the applicant and the applicant is not obliged to
comply with the said Regulations.





3. The
applicant is a citizen of Zimbabwe and will, after 6 January
2002, automatically remain a citizen of Zimbabwe.





ACCORDINGLY
IT IS ORDERED THAT:






1. The respondents shall continue
to recognise the applicant as a citizen of Zimbabwe after 6 January
2002 and afford her the
rights and protection as a citizen of
Zimbabwe.





2. The
first respondent shall renew the applicant’s Zimbabwe passport
within fourteen days of the submission of an application by
the
applicant for such renewal.





3. The
respondents shall pay the applicant’s costs of suit.”








The
founding affidavit deposed to by the respondent in support of her
application shows that she strongly objected to being told
that she
was a citizen of New Zealand by descent. She said she had
never claimed citizenship of that country and had no intention
of
doing so in future. She declared that she has always been a
Zimbabwean citizen who had fought for human rights and the liberation
of her country. She said it was demeaning of her personally and a
compromise of her Zimbabwean citizenship to be required to fill
in a
form declaring that she had renounced citizenship of a foreign
country when she had never become its citizen. It was her
contention
that what she had acquired by virtue of her birth to
parents who were citizens of New Zealand was a mere claim to
New Zealand
citizenship. She said that s 9(7) of the Act
did not apply to a citizen of Zimbabwe with a claim to citizenship of
a foreign
country.





The
notice of opposition filed on behalf of the appellant and the
Minister of Home Affairs indicated that they both opposed the
application. It was stated therein that the affidavit deposed to by
the appellant was on behalf of both of them. The appellant
did not
deny in the opposing affidavit that the application by the respondent
for the renewal of her Zimbabwe passport was refused
on the ground
that she was a citizen of New Zealand by descent. He insisted
that the respondent was a citizen of New Zealand
by descent and
that she was required to effectively renounce the citizenship of that
foreign country before her Zimbabwe passport
could be renewed. He
said he was merely enforcing the law of the land.





The
application and the relief sought show that two issues were placed
before the court
a quo
for determination. The first issue was whether or not the
respondent was a citizen of New Zealand by descent at the date
of
commencement of the Citizenship of Zimbabwe Amendment Act, that is
to say, 6 July 2001. The second was whether or not the
refusal
by the appellant to renew the respondent’s Zimbabwe passport was
lawful.





I
take the first issue. The learned judge could not grant or dismiss
the application for the declaratory orders sought by the
respondent
without first deciding whether or not she was a citizen of
New Zealand by descent. The learned judge did not, however,
call for the production of the relevant statutes of New Zealand
for examination and decision on the question of whether the
respondent was a citizen of New Zealand by descent. She
accepted the respondent’s
ipse
dixit
that she was not
a citizen of New Zealand by descent.





One
would have expected the learned judge to grant the respondent the
relief she had applied for once she found that she was not
a holder
of New Zealand citizenship by descent. The judgment shows that
the declaration she made was that the respondent was
a citizen of
Zimbabwe. That was a misdirection on the part of the learned judge
because the respondent’s Zimbabwe citizenship
per
se
was not in issue.
What was in issue was whether she held the citizenship of
New Zealand.





In
the light of the misdirection by the court
a
quo
, we have to answer
the question whether the respondent was a citizen of New Zealand
at the date of commencement of the Citizenship
of Zimbabwe Amendment
Act 2001.





The
British Nationality and New Zealand Citizenship Act 1948 (“the
1948 Act”), which came into effect on 1 January
1949, provides
the answer. Section 16 provided that:





“(1) A
person who was a British subject immediately before the date of the
commencement of this Act shall on that date become a
New Zealand
citizen if he possesses any of the following qualifications, that is
to say –






(a) that he was born within the
territories comprised at the commencement of this Act in New Zealand
and would have been a New Zealand
citizen if section six of this
Act had been in force at the time of his birth;





(b) …





(c) …







(2) A person who was a British
subject immediately before the commencement of this Act shall on that
date become a New Zealand
citizen if at the time of his birth
his father was a British subject and possessed either of the
qualifications specified in paragraphs
(a) and (b) of the last
preceding subsection.”





Section
six, which is referred to in s 16 was to the effect that every
person born in New Zealand after the commencement
of the 1948
Act became a New Zealand citizen by birth.





Section 3
of the 1948 Act defined a “British subject” as:





“1. Every
person who under this Act is a New Zealand citizen or who under
any enactment for the time being in force in any
country mentioned in
subsection three of this section is a citizen of that country.”





Amongst
the countries mentioned in subs (3) of s 3 of the 1948 Act
was “Southern Rhodesia”.





At
the time of her birth, the respondent’s father was a British
subject so she too became a British subject because she was born
in
“Southern Rhodesia”. Her father was also a citizen of
New Zealand in addition to being a British subject. As
she was
born of a British subject who was a citizen of New Zealand the
respondent automatically became a citizen of New Zealand by
descent
in terms of s 16(2) of the 1948 Act. Citizenship of
New Zealand by descent was conferred upon the respondent
by
operation of law. She did not have to take any steps to claim it.
The only step she could have taken was the renunciation
of that
citizenship.





Section 21
of the 1948 Act gave the respondent the right, on attainment of full
age, to make a declaration in the prescribed
manner, renouncing her
citizenship of New Zealand by descent. It is, however, clear
from the averments in the founding affidavit
that the respondent did
not renounce her citizenship of New Zealand by descent.





The
1948 Act was amended by the Citizenship Act of 1977 (“the 1977
Act”). Section 13(2) of the 1977 Act protected the
respondent’s citizenship of New Zealand by descent, in that it
provided that a person who, by virtue of the 1948 Act, was
immediately before its commencement a New Zealand citizen by
descent was to be deemed to be a New Zealand citizen by descent.





The
respondent had a right under s 15 of the 1977 Act to renounce
the citizenship of New Zealand by descent. She did
not
exercise that right.





New Zealand
passed the Citizenship Amendment Act 2000 (“the 2000 Act”), which
provided in s 4 that the citizenship of
any New Zealand
citizen by descent that had lapsed before its commencement was
reinstated with effect from the time it lapsed.
There is no
evidence at all of the respondent’s citizenship of New Zealand by
descent having lapsed at any time before the commencement
of the 2000
Act. Even if it had lapsed, the citizenship was reinstated.





New Zealand
also passed the Citizenship Amendment Act (No 2) 2001 (“the
2001 Act”), which again provided in s 10
that the citizenship
of any New Zealand citizen by descent which had lapsed before
its commencement was reinstated with effect
from the time it lapsed.
It is clear that there has been a deliberate policy to protect the
citizenship of New Zealand acquired
by descent automatically by
the first generation born outside New Zealand.





It
is also clear from the relevant statutes of New Zealand that the
appellant was correct when he alleged that the respondent
was a
citizen of New Zealand by descent at the date of commencement of
the Citizenship of Zimbabwe Amendment Act 2001.





The
learned judge should have found in favour of the appellant on the
question whether or not the respondent was a citizen of New Zealand
by descent. She should have dismissed the application in respect of
the declaratory order sought.





The
appeal must succeed on the question of whether or not the respondent
was a citizen of New Zealand by descent at the date
of
commencement of the Citizenship of Zimbabwe Amendment Act 2001. The
order of the court
a quo
declaring the respondent a citizen of Zimbabwe has to be set aside.





I
must add a word about the order the appellant is seeking in the event
of being successful in this appeal. He prays that the order
of the
court
a quo
be set aside and substituted with an order that:






“1. The applicant lost
Zimbabwean citizenship by operation of law as she failed to renounce
her New Zealand citizenship in terms
of s 9 of the Zimbabwe
Citizenship Act. Accordingly the applicant is not entitled to a
Zimbabwean passport.”






This
Court is unable to grant to the appellant the order declaring that
the respondent lost her Zimbabwe citizenship. The situation
being
considered is that which existed at the time the respondent made the
application to the High Court for the determination of
her rights
under the Citizenship of Zimbabwe Act. She made the application two
days before the expiry of the period within which
she was required to
have effectively renounced her New Zealand citizenship by
descent. The period could not have expired whilst
the court was
considering the application.





In
my view, the institution of the proceedings had the effect of
stopping the running of the period of renunciation of the
respondent’s
foreign citizenship pending the final resolution of
the issues raised by the application. At the time the application
was made,
the respondent had not lost her Zimbabwe citizenship
because the expiry of the period of six months from the date of
commencement
of the Citizenship of Zimbabwe Amendment Act 2001, which
would have brought about the loss of her Zimbabwe citizenship, had
not occurred.
Consequently, the respondent has two days from the
date this judgment is handed down within which to effectively
renounce her New Zealand
citizenship by descent if she is
desirous of retaining her Zimbabwe citizenship.





I
turn now to consider the question of the lawfulness of the
appellant’s refusal to renew the respondent’s Zimbabwe passport.

A Zimbabwe passport is ordinarily issued to a citizen of Zimbabwe.
At the time the appellant refused to renew the respondent’s
passport she was a citizen of Zimbabwe. She would only have lost
her Zimbabwe citizenship after the expiry of the six month period
on
6 January 2002 without her having effectively renounced the
New Zealand citizenship and submitted the relevant renunciation
of foreign citizenship declaration form.





As
a citizen of Zimbabwe the respondent was entitled to a Zimbabwe
passport. The refusal to renew her Zimbabwe passport on the
ground
that she also held New Zealand citizenship by descent which she had
not renounced when in fact the period within which she
was required
to do so had not expired was unlawful. The learned judge was
correct in deciding that the respondent was entitled
to a Zimbabwe
passport. She is entitled to that passport until she loses Zimbabwe
citizenship in terms of s 9(7) of the Act.
As the respondent
has two days within which to effectively renounce her New Zealand
citizenship by descent and retain her
Zimbabwe citizenship this Court
cannot grant the appellant the order that she is not entitled to a
Zimbabwe passport.





It
must follow that the appeal against that part of the court
a quo’s
order directing the appellant to renew the respondent’s Zimbabwe
passport must fail. We were told in the course of the hearing
of
the appeal that the appellant has complied with the order. That was
the proper thing to do in the circumstances.





For
the avoidance of doubt, the respondent has two days, from the handing
down of this judgment, within which to renounce her New Zealand
citizenship in accordance with the New Zealand Citizenship Act.
In the event of her failure to do so, she will lose her Zimbabwean
citizenship by operation of the law.





The
following conclusion is reached –





The
appeal succeeds with costs in respect of the question whether the
respondent is a citizen of New Zealand by descent.
The order
of the court
a quo
declaring the respondent a citizen of Zimbabwe is set aside and in
its place is substituted the following –





“The
application for an order that the provisions of s 9(7) of the
Citizenship of Zimbabwe Act [
Chapter 4:01]
as amended and the Citizenship of Zimbabwe (Renunciation of Foreign
Citizenship) Regulations 2001 (Statutory Instrument 217/2001)
do not
apply to the applicant and that she was automatically to remain a
citizen of Zimbabwe after 6 January 2002 is dismissed
with
costs.”





The
appeal against the order directing the appellant to renew the
respondent’s Zimbabwe passport is dismissed with costs.








CHIDYAUSIKU
CJ: I agree.








ZIYAMBI
JA: I agree.








Civil
Division of the Attorney-General’s Office
,
appellant's legal practitioners


Gill,
Godlonton & Gerrans
,
respondent's legal practitioners