Court name
Supreme Court of Zimbabwe
Case number
SC 26 of 2004
Civil Application 317 of 2003

Ngaru v Chief Immigration Officer and Another (17/03) (SC 26 of 2004, Civil Application 317 of 2003) [2004] ZWSC 26 (02 June 2004);

Law report citations
Media neutral citation
[2004] ZWSC 26
















REPORTABLE ZLR (29)


Judgment No. SC 26/04


Civil Application No.
317/03








MARCIA SALOME MUSAMBAKAMWE
NGARU v (1) CHIEF IMMIGRATION OFFICER
& (2) THE
MINISTER OF HOME AFFAIRS








SUPREME COURT OF ZIMBABWE


CHIDYAUSIKU CJ, SANDURA
JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA


HARARE, MARCH 9 &
JUNE 3, 2004








G Mitha-Valla, for
the applicant





C R Mudenda, for
the respondent









GWAUNZA JA : The applicant alleges that her constitutional right
to freedom of movement, guaranteed in terms of s 22(1) of the
Constitution, has been violated by the respondents’ denial to her
husband, an alien, of a residence permit. She accordingly
prays for an order:



  1. that her
    right to reside in Zimbabwe with her non-citizen husband be
    recognised;



  2. that the respondents be restrained from unduly interfering with her
    right; and



  3. that the respondents pay the costs of the application.








The facts of the case are common cause. The applicant is a citizen
of Zimbabwe. She married one Leopold Alain Sitchet-Njanko
(“Leopold”)
a citizen of Cameroon, on 28 December 2001, at
Bulawayo. At the time of the marriage, Leopold was attached to
Zimrights, Bulawayo
Branch, as a Project Advisor, and was under the
employ of a German organization called Weltfriedensdienst e.V.
(“WFD”). He
was then on a Temporary Employment permit which was
due to expire on 16 March 2002. On 27 December 2001, the Regional
Representative
of WFD – Southern African Office addressed a letter
to the first respondent seeking, on behalf of Leopold, an extension
of his
temporary employment permit. On 9 April 2002, a letter
turning down the application for a temporary employment permit was
received
from the first respondent. In the letter the first
respondent directed that Leopold should “go with this letter to his
nearest
Immigration Office so that departure arrangements may be
made.” Thereafter several appeals were made, without success, to
the
first respondent to reverse his decision not to extend Leopold’s
work permit. In one of the appeals, the applicant added her
entreaties to those of WFD and her husband. Following the last of
the letters of rejection received from the first respondent,
the
applicant consulted a legal practitioner who, on 9 August 2002, wrote
a letter to the first respondent, demanding that the latter
allow
Leopold to reside and work in Zimbabwe, failing which recourse would
be had to legal action. In the letter, the legal practitioner
stressed the applicant’s entitlement to reside in the country with
her spouse.






Having received no
response to this letter, the applicant and her husband jointly and
successfully sought a provisional order restraining
the respondents
from deporting Leopold from Zimbabwe. The order, which was granted
on 9 August 2002 was later extended pending
the outcome of this
application. This was on 24 September 2003. In the meantime, on 8
October 2002, a child was born to the applicant
and her husband.





The application is
opposed by the respondents. They argue, firstly, that the
applicant’s husband was declared a prohibited immigrant
in terms of
s 14(1)(g) of the Immigration Act, [Chapter 4:02], and
secondly, that the applicant’s rights to reside with her husband in
Zimbabwe have to be weighed against those of State Security
and that
“in these circumstances” the applicant’s rights cannot be
deemed to be absolute. The respondents have attached to
their
opposing affidavit the order signed by the second respondent on 11
September 2002 declaring Leopold an undesirable inhabitant
of or
visitor to Zimbabwe. They have also attached a certificate signed
on the same date, by the second respondent in terms of
s 22(2) of the
Immigration Act [Chapter 4:02], to the effect that it was not
in the public interest for him (the Minister) to disclose the reasons
why he deemed Leopold to be
an undesirable inhabitant of or visitor
to Zimbabwe.





The
applicant takes issue with the second respondent’s failure to
disclose the reasons why her husband was deemed to be an undesirable
inhabitant of or visitor to Zimbabwe. She asserts that without
knowledge of those reasons, this Court will not be able to determine
“whether to uphold my right to reside in this country with my
husband, or not to uphold it on the basis that my husband is a threat
to good order or security.” She then prays for an order
compelling the respondents to disclose to the Court the evidence they
relied on for the decision to declare him an undesirable inhabitant
of or visitor to Zimbabwe. She contends as follows in paragraph
6
of her answering affidavit:



“… I am advised and verily believe that whilst the ministerial
certificate bars the disclosure of the reasons to the public,
it does
not bar the disclosure of the reasons in court. I respectfully aver
that this Honourable Court may make arrangements for
the evidence
upon which the Minister relied in coming up with his decision to be
adduced in camera and all necessary measures may be
taken to ensure that that evidence remain undisclosed to members of
the public.”









Section 14 of the
Immigration Act, [Chapter 4:02] deals with the circumstances
under which a person will be deemed to be a prohibited person.






Section 22(2) of the
Immigration Act [Chapter 4:02] upon which the second
respondent relied for not disclosing the reasons for deeming Leopold
an undesirable immigrant or visitor to
Zimbabwe provides as follows:



“(2) No information or reasons on which a decision in terms of s
14 or a decision to withdraw or cancel a permit was made may
be
disclosed in any court if the Minister certifies that its disclosure
is not in the public interest, and no court may question
the adequacy
of the grounds for any such decision.”






The latter
part of the subsection cited above is at variance with s 18(12) of
the Constitution, which reads as follows:



“(12) Notwithstanding anything contained in subsection (4), (10) or
(11), if in any proceedings before such court or other adjudicating
authority as is referred to in subsection (2) or (9), including any
proceedings by virtue of s 24, a certificate in writing is produced
to the court or other authority signed by a Minister that it would
not be in the public interest for any matter to be publicly
disclosed,
the court or other authority shall make arrangements for
evidence relating to that matter to be heard in camera and shall take
such
other action as may be necessary or expedient to prevent the
disclosure of that matter.”






In Hambly
v Chief Immigration Officer
(1) 1995 (2) ZLR 264 (H) the court
considered these two provisions and held that because of s 18(12) of
the constitution, the Minister’s
certificate could not lawfully bar
the disclosure of the reasons to the court.







Ms Mitha-Valla, for the applicant, submits that the
applicant is unable, because of the non-disclosure of the reasons for
denying her husband a residence
permit, to discharge the onus
that she bears, of proving that the interference with her rights was
not reasonably justifiable in a democratic society. The fact
that
such onus lies on an applicant in matters such as these was
stressed by this Court in Kenderjian v Chief Immigration Officer
2000 (1) ZLR 697 where GUBBAY CJ said at 700 B-C:



“It follows that the crucial question to be decided is whether the
applicant has been able to show that such interference, under
the
authority of s 17 (a) of the Act, is not reasonably justifiable in a
democratic society.”





This dictum
is cited with approval in the recent case of Bhatti & Anor
v Chief Immigration Officer & Anor
2001 (2) ZLR 114 (H).
In that case, HLATSHWAYO J suggests the proper approach to be adopted
involves two stages of enquiry, the
first being the “rights (to
freedom of movement) as defined in the Rattigan line of cases,
taking into account whether the marriage is one of convenience or
not.” The second stage of the inquiry, according
to the learned
judge, is the qualification of such a right.







If this principle is applied to the circumstances of this case, it
is evident that in casu the first stage of the enquiry does
not come into play. This is because at no time was it alleged by
the respondent against the
applicant that her marriage to Leopold was
one of convenience. What is relevant here is the second stage, which
is the determination
of whether or not the applicant’s right should
be qualified by the public interest limitations outlined in para (a)
of s 22 (3)
of the Constitution.






There is, in my view, merit in the applicant’s contention that
unless the Court is made privy to the Minister’s reasons for
declaring the applicant’s husband an undesirable inhabitant of or
visitor to Zimbabwe, and has the opportunity to hear the applicant’s
submissions in light of such reasons, it will not be able to
determine whether the interference with the applicant’s right to
freedom
of movement has a constitutional basis; in other words,
whether such interference is reasonably justifiable in a democratic
society.







I am therefore satisfied this is a proper case for this Court to
invoke s 18(12) of the Constitution.







It is in the premises ordered as follows:







That the Registrar of this Court shall make arrangements for the
second respondent to appear before this Court on a suitable date
and
give evidence in camera on why the applicant’s
husband, Leopold Alain Sitchet-Njanko, was deemed to be an
undesirable inhabitant of or visitor to Zimbabwe.










CHIDYAUSIKU CJ: I agree.











SANDURA JA: I agree.















ZIYAMBI JA: I agree.











MALABA JA: I agree.











Kantor & Immerman, applicant’s legal practitioners



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