Court name
Supreme Court of Zimbabwe
Case number
SC 63 of 2003
Civil Application 220 of 2003

Mudyanduna v Mukombero and Others (20/03) (SC 63 of 2003, Civil Application 220 of 2003) [2004] ZWSC 63 (12 May 2004);

Law report citations
Media neutral citation
[2004] ZWSC 63










REPORTABLE
(57)











Judgment
No. SC 63/03


Civil
Application No. 220/03














ROSA
MUDYANDUNA v





(1) OWEN
VINCENT MUKOMBERO (2) CHIEF IMMIGRATION
OFFICER & (3) THE MINISTER
OF HOME
AFFAIRS











SUPREME
COURT OF ZIMBABWE


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


HARARE,
NOVEMBER 6, 2003 & 13 MAY 2004








C
Chinyama
,
for the applicant





C
R Mudenda
,
for the respondents








GWAUNZA
JA: The applicant alleges that her right to freedom of movement,
guaranteed under s 22 of the Constitution of Zimbabwe
has been
violated by the first, second and third respondents’ refusal to
grant her husband a permanent residence permit. The
husband is a
Nigerian national. The applicant therefore seeks an order:






(a) declaring
that her rights

under s 22 (1) of the Constitution of Zimbabwe, to freedom of
movement, have been contravened by the actions of the first and
second
respondents;






(b) compelling the first
respondent to issue her husband, within thirty days hereof, such
written authority as is necessary to enable
him to remain and work in
Zimbabwe on the same standing as any permanent resident; and






(c) that the costs of the
application be borne by the first respondent.









The
application is opposed by the respondents, who charge that the
applicant’s marriage to her alien husband was one of convenience,
entered into solely for the purpose of ensuring that the said husband
evaded immigration laws in terms of which he had already been
denied
an employment permit. They also aver that the interests of the
State (in denying the applicant’s husband a residence permit)
take
precedence over the applicant’s rights and that, in any case, a
1996 amendment to the Constitution had “disapproved” Court
judgments that had granted the same relief as that being sought
in
casu.






The
following facts are either common cause or not disputed. The
applicant was born in Shurugwi and is a citizen of Zimbabwe.
On
3 August 2001 she contracted a civil marriage with Kingsley
Madueke, (“Kingsley”) a Nigerian national, at Harare.
Prior to
this marriage Kingsley had, in 2000, visited Zimbabwe for the first
time and unsuccessfully applied for an employment permit.
He went
back to Nigeria but, before doing so, had met and befriended the
applicant. According to the applicant, the two maintained
contact
through the telephone while Kingsley was in Nigeria. In this way,
their contact developed into a love relationship, which
culminated in
Kingsley’s return to Zimbabwe on 26 July 2001, on a visitor’s
permit. The applicant avers that during their telephonic
communication, the two agreed to marry and proceeded to make plans
for this eventuality. As a result, within days of Kingsley’s
arrival in Zimbabwe he paid
lobola
to the applicant's parents, thereby marrying her according to custom.
The two then solemnised their marriage according to civil
rights as
already indicated, on 3 August 2001.






On 20 August 2001 Kingsley
submitted an application for a residence permit. On 12 November
2001 he received notification from
the Department of Immigration that
his application had been turned down.






He was advised in the same letter
that the relevant Immigration regulations did not oblige the
Immigration office to give reasons
for its refusal to grant the
residence permit. He could, however within twenty-one days appeal
against such refusal, to the Chief
Immigration Officer. He did not
do this however, but left it to the applicant to take up the matter
on his behalf. She wrote
a letter dated 4 October 2002 to the
second respondent “appealing” against his office’s refusal to
grant her husband the residence
permit in question. She stated in
that letter that as a Zimbabwean citizen it was her right to be
allowed to live with her husband
in Zimbabwe. By letter addressed
to the applicant and dated 9 May 2003, the Secretary for Home Affairs
advised her that the appeal
to the Minister had been unsuccessful.
No reasons for the Minister’s decision were given, nor did the
Minister declare Kingsley
a prohibited immigrant.






The
applicant was aggrieved by the decision and decided to take the
matter first to the High Court and then having withdrawn that
application, to this Court. Another application filed on an urgent
basis in the High Court, in which the applicant sought to bar
the
respondents from deporting her husband pending the decision of this
Court
in
casu
,
was ruled not to be urgent. It would appear this matter was, at the
time this application was argued before this Court, still
pending.







It is not disputed that the
applicant bore a child on 22 April 2003. The respondents
initially disputed that the child was
fathered by Kingsley but as
indicated below, later withdrew the allegation.






The
applicant denies her marriage was one of convenience and avers that
at the time she married her husband, she had no knowledge
of him
having previously and unsuccessfully applied for an employment
permit. She took offence at the respondents’ allegation
that
Kingsley was not the father of the child that she bore on 22 April
2003. She avers she had not been able to obtain a birth
certificate
for the child, due to the fact that its father, Kingsley's, passport,
had been impounded by the second respondent. With
the consent of the
respondents, the applicant’s counsel, Mr
Chinyama
submitted
to
the

Court
a birth confirmation record issued by the Harare Central Hospital,
which showed that the applicant had indeed given birth to
a baby boy
on the date in question. The certificate also gives the applicant’s
married name as “Madueke”. In the light
of this evidence the
respondents’ counsel withdrew the allegation concerning the
paternity of the child.






It is argued on behalf of the
applicant that contrary to the respondents’ assertions, the
marriage between her and Kingsley was
entered into with the parties’
mutual intention to stay together as husband and wife. The
marriage, it is also contended, was
in any case valid at law and
could only be set aside through divorce. The applicant contends in
addition that the child born of
the marriage was further proof of the
parties’ intention to contract a valid marriage. Also, that the
courts generally lean in
favour of a marriage from which a child has
been born. Lastly, the applicant contends in response to the
respondents’ assertion
that the rights of an alien are not
absolute, that her application was not premised on the rights of an
alien, but on her fundamental
right as a citizen wife, to freedom of
movement.





In
this respect Mr
Chinyama
for the applicant, contends as follows in his heads of argument:






“The
point made by the applicant here is that, the refusal by the
respondents to give a permanent residence permit to Kingsley Madueke,
her husband circumscribe (
sic)
her fundamental right as a citizen to freedom of movement. If her
husband is ordered to leave the country, the applicant’s right
to
live in Zimbabwe will be directly affected in that in order for her
to maintain the marriage, she has to follow her alien husband.
Her
husband’s fate in the country has a bearing on her freedom of
movement. Applicant and her husband share the common desire
to
establish matrimonial (a) bode in Zimbabwe … .”









Apart from the
allegation, now withdrawn, that Kingsley was not the father of the
applicant’s child, the respondents advanced three
grounds for the
argument that the marriage between the applicant and Kingsley was one
of convenience
viz
-






(i) that the applicant’s
husband was of no fixed abode and that the parties did not live
together as husband and wife;







(ii) that it was “impossible”
for all customary rites and a marriage to be solemnised within a
period of eight days; and







(iii) that the applicant is far
older than her husband.









The
respondents also allege that the applicant’s husband has gone
underground and that there is no document to explain his presence
in
Zimbabwe.





The
applicant disputes the first two grounds, and puts the respondents to
the proof thereof. The ground concerning the difference
in the
applicant’s and Kingsley’s ages – (the applicant being five
years older) was raised for the first time in the respondent’s
heads of argument. The applicant thus did not have an opportunity
to respond to it.





It
is an established principle of our law that a marriage will be
regarded as one of convenience if:






(i) it was entered into primarily
for a purpose extraneous to marriage, for instance to evade
immigration laws; and







(ii) there was no intention on
the part of the couple concerned to live together as man and wife.







(See Jesse
v Chief Immigration Officer & Ors

1996 (2) ZLR 720 (H),
Rattigan
& Ors v Chief Immigration Officer & Ors
1994
(2) ZLR 54(S), and
Hambly
v Chief Immigration Officer
1995
(2) ZLR 431 (H)). The Court held in
Jesse
v Chief Immigration Officer & Ors supra

that the second ingredient is as important as the first and both must
be proved. This Court re-stated this position in
Kohlhaas
v Chief Immigration Officer and Anor

1997 (2) ZLR 441 (S) at 445 F-G, 1998 (6) BCLR 751 where it was
stated:





“Each
ingredient is of equal importance. Proof of the first alone will
not suffice (to establish that the marriage is one of convenience).”




It is also
trite that the
onus
of proving, on a balance of probabilities, that a marriage is one of
convenience lies on the party who so alleges.
In
casu
such
onus
rests on the

respondents.
The applicant avers the respondents have not discharged this
burden.






I will now turn to the evidence
placed before the court and determine whether or not the respondents
have discharged this burden and
proved their case on a balance of
probabilities.




The
applicant’s evidence is that she entered into the marriage with
Kingsley, fully intending to live with him as husband and wife.
On
the evidence before the Court, she did cohabit with Kingsley, and
proceeded to bear him a child. This would tend to disprove
the
respondents’ allegation that Kingsley is of no fixed abode and that
therefore the parties do not live together as husband and
wife. The
respondents have not revealed the nature of the investigations that
they allege established this fact, save for a registered
envelope
addressed to the applicant’s husband, which was returned
undelivered and with the notation “unclaimed” on it. The
respondents have not indicated what the contents of the returned
envelope were. The applicant denies knowledge of the “unclaimed”
item and avers she was never approached by immigration officials over
her husband’s whereabouts. Her evidence is simply that
he has not
gone underground.




I
take the view that Kingsley’s disappearing act, if such it was, was
related more to his expired visitor’s visa (and therefore
fear of
discovery), than the fact that his marriage to the applicant was one
of convenience. That he may not have been found at
home by
immigration officers, and that he did not claim a registered article,
do not of themselves suggest that he and the applicant
did not live
together as husband and wife.







The other
ground cited by the respondents for their assertion that the marriage
was one of convenience was that it was simply “impossible”
for
the two to have attended to all the preliminary details related to
the marriage ceremonies – one customary, one civil – that
were
conducted within a space of eight days after Kingsley’s return to
Zimbabwe. I am not persuaded there is merit in this argument.
The
applicant’s assertion that these details were negotiated over the
telephone while Kingsley was still in Nigeria is not, in
my view,
farfetched. In this era of advanced communication technology, it is
quite possible, with speed and ease, to communicate
and even exchange
documents with someone in another country. While it may be the norm
that marriages, especially where they entail
the observance of
customary rites, take time to arrange, there is nothing unusual in
parties intending to marry but separated geographically,
attending to
these arrangements through the telephone or other means of modern
communication. Nor is it a requirement that these
matters be
attended to physically by one or the other of the parties.




Whatever the
respondents’ view of this arrangement, there is
in
casu

a marriage certificate attesting to the fact that a marriage was
indeed solemnised between the applicant and Kingsley. There is
a
supporting affidavit from her brother to the effect that
lobola
was charged and paid by Kingsley as part of the customary marriage
ceremony. I do not understand the respondents to say the marriage
certificate itself is a forgery. The assumption therefore is that
the respondents accept that the applicant and her husband did
go
through the motions that are requisite for the solemnisation of a
valid civil marriage. That they did so in my view negates
the
argument that it was not possible to arrange for such a ceremony in
the space of eight days. In any case, the period within
which a
marriage is arranged and contracted is not the decisive factor in the
determination of whether or not such a marriage was
one of
convenience. It is rather, the purpose for which it is contracted,
and what happens thereafter. There is evidence
in
casu

in the person of the child born to the two that the parties
thereafter lived together as husband and wife.



There
is authority to the effect that the presumption in favour of a valid
marriage (
semper
praesumitur pro matrimonio
)
is strengthened where a child has been born to the parties concerned.
For then an additional consideration comes into play, and
that is
the legitimacy of the child. In
Jesse
v Chief Immigration Officer supra

the learned judge observed that the courts will not lightly assume
that a marriage is one of convenience, especially where there
is a
child of the marriage and a consequence of declaring the marriage
invalid would be to make the child illegitimate





Although
only raised in the respondents’ heads of argument, the fact that
the applicant is some five years older than her husband
is contended
by the respondents to be a further indication of the marriage having
been one of convenience. This argument I find
has no merit, since
it is premised only on the societal perception and attitude that a
man must be older than his wife, not the other
way round. Although
admittedly not the norm, there are likely to be many marriages in
Zimbabwe, and elsewhere, in which the man
is younger than his wife.
That
per se does
not suggest that the marriage was entered into for reasons other than
those for which marriages are normally contracted. Conversely,
the
fact that a man marries a woman who is younger than him does not by
that fact alone establish that such marriage is not one of
convenience. It is conceivable that some such marriages may indeed
be marriages of convenience.



When
all is told, I find that the respondents have failed to discharge the
onus
of proving that the two ingredients of a marriage of convenience
exist
in casu.
I am satisfied the marriage was not contracted for a purpose
extraneous to marriage, and that the parties went into it with the
full intention of living together as husband and wife.





Does
this then entitle the applicant to the relief sought?






The
respondent’s counsel correctly acknowledges the fact that our
courts have in a number of decisions recognised and upheld the
constitutional right of a female citizen of Zimbabwe to have her
husband reside with her in Zimbabwe, unless the marriage is one
of
pure convenience. See among others
,
Rattigan & Ors v Chief Immigration Officer & Ors
1994
(2) ZLR 54 (S),
Hambly
v Chief Immigration Officer
1995,
(2) ZLR 431 (H),
Salem
v Chief Immigration Officer & Anor

1994 (2) ZLR 287 (S). I have already found that the marriage
in
casu
was not one of convenience, a finding which, on the authority of the
cases cited, would entitle the applicant to the relief sought.





The
respondents, however, give two other grounds for opposing the relief
sought by the applicant. It is contended for the respondents
firstly, that the legal status of the applicant’s husband has not
changed by virtue of his marriage to the applicant, and that
therefore he is an alien subject to the restrictions imposed on such
people. Secondly, it is contended that even if the marriage
in
question was not one of convenience, the
Rattigan
and
Salem
decisions
supra
have been “disapproved” by s 8(1) of the Constitution of Zimbabwe
Amendment Act No. 14 of 1996. This amendment, it is argued,
is
couched in such a way as to deny both men and women citizens the
right to confer residency on their foreign spouses.





I
will consider these arguments separately.





It
is not in dispute that the applicant’s husband was denied the
residence permit that he applied for after his marriage to the
applicant. It is also not in dispute that the reasons for such a
denial were not disclosed to him. Apart from the
declarator
concerning the infringement of her constitutional right to freedom of
movement, the applicant now petitions this Court for the same
relief
that was denied her husband, but she does so on a different basis
altogether.





The
applicant’s entitlement under s 22 (1) of the Constitution is,
in terms of subs (3) para (a) of the same section,
not
absolute. Her enjoyment of the right in question can be restricted
in the interests of defence, public safety, public order,
public
morality or public health. This means that her entitlement must be
balanced against these State interests. It is contended
for the
respondents that the right of a State to regulate the entry and
residence of aliens within its borders is a principle of
international law and that at times the interests of the State in
protecting its citizens take precedence over individual
constitutional
rights.






The
question therefore is whether the interests of the State
in
casu
are such as to
take precedence over the applicant’s right to freedom of movement.







There is nothing in the papers
before the Court to indicate that the applicant and her husband were
advised that the refusal by the
respondents to grant the latter a
residence permit was linked to the need to protect any State
interest. The issue was raised for
the first time in the
respondents’ opposing affidavit. The only communication received by
the applicant directly from the Minister’s
office, before then, was
a letter from the Secretary of Home Affairs, which read as follows;






“Please
be advised that the appeal for resident (
sic)
for Kingsley Madueke has been unsuccessful. The Minister of Home
Affairs has not approved the appeal. By this letter the Chief
Immigration Officer is being informed of this decision.”







Subsection
(3) of s 14 of the Immigration Act [Chapter 4:02] confers on an
immigration officer the power to apply to the third
respondent, who
is the responsible Minister, for a declaration that an alien is a
prohibited person. This he does where in his
opinion the alien in
question is likely to become a “public charge” by reason of
infirmity or lack of means to support himself.
In terms of subs (4)
of the same section the immigration officer is obliged to notify the
alien concerned of his intention
to apply to the Minister and to give
him an opportunity to make any representations.

Neither the applicant nor the respondents assert any of this was done
in respect of Kingsley. As a result, there is no evidence
to
suggest that the Minister declared Kingsley a prohibited immigrant,
nor that he caused written notice of this fact to be transmitted
to
Kingsley, as required by subs (6) of s 14 of the Act.
Such a certificate from the Minister would have given an indication
of the basis upon which Kingsley was considered to be an undesirable
visitor to the country.






Further
to the letter from his office, the Minister did not, as required in
terms of s 22(2) of the Act, issue a certificate
stating that
the disclosure of his reasons for dismissing the appeal for a
residence permit would not be in the public interest.






The sum effect of all this was to
leave it to the applicant, her husband, and ultimately this Court, to
speculate as to what the interest
was that the State sought to
protect by denying the applicant’s husband a residence permit.





It
is trite, as contended for the respondents, that a sovereign State
can exclude aliens for any or for no reason at all. See
Maluleke
v Minister of Internal Affairs
1981
(1) SA 707 (BSC). I am, however, satisfied, on a proper
interpretation of s 22(3)(a), that where such exclusion has the
direct consequence of interfering with a constitutional right enjoyed
by one of the State’s own citizens, such denial must be shown
to
have been justified in the interests of defence, public safety,
public order, public morality or public health.



As
long as the interest that the State seeks to protect by excluding the
applicant’s husband has not been disclosed, the Court is
not in a
position to be able to balance such interest against a constitutional
right, properly proven as the applicant’s has been
in
casu
, in order to
arrive at an informed determination on the matter.






The respondent has therefore not
persuaded this Court that the State’s interest, whatever its
nature, should take precedence over
the applicant’s individual
right to freedom of movement.





The
respondents contend finally that the
Rattigan
and
Salem
cases
supra
have been “disapproved” by s 8(1) of the Constitution of Zimbabwe
Amendment (No. 14) Act 1996, which came into force on
6 December
1996. It amended 22(3)(d) of the Constitution, which now reads as
follows:







“… Nothing contained in or
done under the authority of any law shall be held to be in
contravention of subsection (1) (i.e. the right
to freedom of
movement) to the extent that the law in question makes provision for
…







(i) the imposition of
restrictions on the movement or residence within Zimbabwe of any
person who is neither a citizen of Zimbabwe
nor regarded by virtue of
a written law as permanently resident in Zimbabwe; or







(ii) excluding or expelling from
Zimbabwe any person who is not a citizen of Zimbabwe;







whether or not he is married or
related to another person who is a citizen of or permanently resident
in Zimbabwe.”









The
amendment does not affect those who got married before December 1996.






This
Court has had occasion to consider the meaning and effect of this
amendment in
Kohlhaas v
Chief Immigration Officer & Anor supra
.
Whatever the intention of the legislature had been, GUBBAY CJ ruled
that the new s 22(3)(d) did not nullify the
Rattigan
and
Salem
decisions
supra.
The learned author of the LRF publication “
Constitutional
Law of Zimbabwe
”,
G Linington, in my view correctly summarises the Court’s
reasons for such a finding as follows at p 380:





“This
was because both of those cases (i.e.
Rattigan
and Salem)
were concerned with the right to freedom of movement of the citizen
spouses. It was their rights that were being threatened.
They had
the right to live in Zimbabwe and these would be contravened if they
were forced to leave Zimbabwe in order to be with their
foreign
spouses. The foreign spouses did not themselves have a
constitutional right to live in Zimbabwe. That they were able
to do
so was entirely due to the fact that their expulsion would
effectively interfere with the mobility rights of their Zimbabwean
marriage partners. In the
Kohlhaas
case GUBBAY CJ said the effect of the amendment is merely to re-state
the law in relation to the rights of non-citizens. It leaves
untouched the rights of a citizen spouse.”









On
the authority of the above and by the same token, the rights of the
applicant
in casu,
to freedom of movement which is represented in one respect by the
right to have her alien husband stay with her in Zimbabwe, have
not
been affected by the constitutional amendment in question.





It
is pertinent at this juncture to mention that some of the
respondents’ averments suggest a failure to separate the
applicant’s
rights from those of her husband. It is for instance
argued that the applicant has come to this Court with dirty hands,
since she
knew that her husband had been denied residence and was
therefore a prohibited immigrant. Marrying and co-habiting with a
prohibited
immigrant is not in itself an offence. The applicant has
not been shown, on the one hand, to have committed an offence or
otherwise
fallen foul of the law, and on the other, to have attempted
to seek the protection of the law. What the applicant seeks to do
in casu
is to assert her constitutional right to freedom of movement. That
the assertion of such a right has the effect of granting to
the
husband the same relief that he had, on his own endeavour, failed to
secure does not, in my view, make her hands dirty. She
can thus not
be said to have “dirty hands” in the sense that it is generally
understood.






In all the circumstances,
therefore, I am satisfied the applicant has proved her case and is
entitled to the relief sought. It is
accordingly ordered as follows
-






1. The rights of the applicant
under s 22(1) of the Constitution of Zimbabwe to freedom of movement,
that is to say, the right to
reside in any part of Zimbabwe has been
contravened by the actions of the first and second respondents.







2. By virtue of the applicant’s
right under the aforementioned s 22(1) to have her husband residing
with her in any part of Zimbabwe,
it is hereby ordered that -







(a) The first respondent issue to
Kingsley Madueke, within thirty days hereof, such written authority
as is necessary to enable him
to remain in Zimbabwe on the same
standing as any permanent resident;







(b) The said Kingsley be accorded
the same rights as are enjoyed by all permanent residents of
Zimbabwe, including the right to engage
in employment or other
gainful activity in any part of Zimbabwe and that the first
respondent impose no restriction upon such right;
and







(c) The costs of this
application shall be paid by the respondents jointly and severally
the one paying the others to be absolved.








CHIDYAUSIKU
CJ: I agree.











SANDURA  JA:
I agree.











CHEDA
JA: I agree.











MALABA
JA: I agree.














Messrs
Chinyama & Partners,
applicant’s
legal practitioners


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