Court name
Supreme Court of Zimbabwe
Case number
SC 13 of 2005
Civil Application 312 of 2001

Jonasi-Ogundipe v Chief Immigration Officer and Others (12/01) (SC 13 of 2005, Civil Application 312 of 2001) [2005] ZWSC 13 (01 June 2005);

Law report citations
Media neutral citation
[2005] ZWSC 13
















REPORTABLE ZLR
(12)


Judgment
No. SC 13/05


Civil
Application No. 312/01











NOMSA
JONASI-OGUNDIPE v (1) CHIEF IMMIGRATION OFFICER (2) MINISTER
OF HOME AFFAIRS (3) THE ATTORNEY GENERAL








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
ZIYAMBI JA & GWAUNZA JA


HARARE,
FEBRUARY 8 & JUNE 2, 2005








S
Machiridza
, for the
applicant





CR
Mudenda
, for the
respondents









GWAUNZA JA: The applicant is a
Zimbabwean citizen, married to one Samson Olugbenga Ogundipe,
(‘Samson’) who is a Nigerian national.
Samson was declared a
prohibited immigrant and deported from Zimbabwe on 9 May 2001. The
applicant contends that the deportation
of her husband constitutes a
contravention of her right to freedom of movement as enshrined in s
22(1) of the Constitution of Zimbabwe.
This right has been
interpreted in a long line of cases
1
to include the right of a Zimbabwean spouse to reside in Zimbabwe
with her alien husband.



The applicant accordingly seeks
an order in these terms:



“1. That applicant’s right
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. That
by virtue of the Applicant’s right under s 22(1) of the
Constitution of Zimbabwe to have her husband residing with her in
any
part of Zimbabwe:






2.1 first
respondent issue to Samson Ogundipe within 30 days hereof such
written authority as is necessary to enable him to travel
back to
Zimbabwe and to stay in Zimbabwe on the same standing as any alien
who is a permanent resident.






2.2 first
respondent consider Samson Ogundipe’s application for permanent
residence status.





3. That
the costs of this application are to be borne by the first
respondent.”











The
background to the matter is as follows:






The applicant met Samson in 1994.
He had entered Zimbabwe on a visitor’s permit the same year.
The two got married in 1996.
The applicant asserts but has tendered
no proof thereof, that at the time of their marriage, Samson was
lawfully in Zimbabwe.
In other words, it is the applicant’s
submission that his visitor’s permit had been extended or renewed
after the lapse of its
initial period of validity. Since temporary
visitors’ permits are endorsed on the visitor’s passport, all it
would have taken
would have been for the applicant to submit the
relevant pages of Samson’s passport to prove her assertions. She
has not done
so and implores the Court to accept this fact on the
strength of her word.






Be
that as it may, the applicant now concedes that after their marriage
in 1996, Samson had stayed in Zimbabwe with her, without a
valid
permit as required by the Immigration Act [Chapter 4:02]. It is
submitted on her behalf that she and her husband had assumed,
erroneously, that their marriage had regularised Samson’s stay in
the country.





It
is not in dispute that immigration officials came across documents
pertaining to Samson’s application for a residence permit,
at the
office or home of a fellow Nigerian who was subsequently deported.
The discovery of these papers resulted in Samson being
tracked down
and deported for being in the country illegally. The appellant has,
it seems, decided to abandon the fiction that
Samson had at some
point after the marriage, gone back to Nigeria, and attempted to
apply for a residence permit from there.





This,
however, does not protect the applicant from the adverse inferences
that the respondent urges this Court to draw from her and
Samson’s
deceitful conduct. The conduct translated to a letter written by
the applicant to the Chief Immigration Officer, in
April, 2001 and an
application for a visitor’s permit signed by Samson on 9 April
2001. In both these documents, the applicant
and Samson
deliberately misrepresented facts – in effect lied – that Samson
had gone back to Nigeria at some ungiven date, and
was applying, with
the support of the applicant, for a residence permit.





The
true position as revealed in the papers before this Court is that
Samson continued to stay in Zimbabwe despite the expiry of his
visitor’s permit issued in 1994, before his marriage to the
applicant. He was an illegal immigrant at the time of the marriage,
and he remained in Zimbabwe illegally for five years after the
marriage. Whether or not the parties truthfully laboured under the
misconception that their marriage had “naturalised” Samson, the
fact remained that until his deportation, no serious effort had
been
made by him or the applicant to obtain a residence permit for him.





Five
months after his deportation, the applicant launched these
proceedings. In paragraph 2.2 of her heads of argument, it is
argued
thus:





“Applicant
submits that the deportation and endorsement of her husband’s
passport infringes on her constitutional rights and negates
the
purpose of having a marriage …”








The
applicant argues in addition that her husband “became ‘eligible’
for consideration as a prohibited person in any event after
the
marriage date and thus the status of a prohibited person could not
attach (to him)”.





I
am not persuaded by these contentions.





In
the absence of any proof that Samson was in Zimbabwe lawfully at the
time of the marriage, I find that he was at that time an illegal
immigrant. In terms of s 14(1)(i)of the Immigration Act, [Chapter
4:02] that fact,
per
se
, rendered him a
prohibited person. The section reads as follows:





“(1) Subject
to this Act, the following persons are prohibited persons –





(a) – (h) …





(i) any person
who has entered or remained in Zimbabwe in contravention of this Act
or a repealed Act, whether or not he has been
prosecuted for such
contravention”.








The
relevant part of the Act is s 29(1), which provides that no alien
shall enter, be or remain in Zimbabwe unless he is in possession
of a
valid permit or visitors entry certificate.





My
interpretation of Sub-section(1)(i) above is that one does not need
to be formally declared a prohibited person, for him to be
one. He
becomes one by the mere fact of being in Zimbabwe in contravention of
the Act. In
casu,
the applicant’s husband was a prohibited person from before his
marriage to the applicant. He remained a prohibited immigrant
until
the day he was deported. The endorsement of his passport merely
confirmed this reality. His marriage to the applicant did
not
convert his status from prohibited to non prohibited person. To
attain the latter status, he would still need the requisite
permit.
This point was stressed by this Court in
Edwards
v Chief Immigration Officer

2000(1) ZLR 485(S) at 487 E-F where GUBBAY CJ quoted, with
approval, the following passage in the High Court case involving
the
same parties(HB 107/96):





“In
the absence of authority to the contrary, I find that marriage,
per
se
, does not entitle
an alien wife of a Zimbabwe citizen to reside in the country without
the relevant permit issued in terms of the
provisions of the
Immigration Act and Regulations”.








The
alien
wife
in the Edwards case was, like the applicant’s husband in
casu,
a prohibited person in terms of s 14 of the Act.





In
the same judgment, the learned Chief Justice addressed the same
argument being advanced by the applicant, that is, that as a spouse,
her husband was protected from being declared a prohibited person by
virtue of s 15(2) of the Immigration Act. The learned Chief
Justice
stated as follows at page 489 E-F:





“It
is implicit that s 15(2) classifies persons or classes of persons who
are not regarded as prohibited persons under s 14. Thus
the
actuality of being a prohibited person at the date of her marriage to
a citizen of Zimbabwe effectively disqualified the appellant
from
becoming a non-prohibited person under para (d) to s 15 (2) of the
Act. A contrary interpretation would give rise to the ability
of a
prohibited person to evade the restriction against entry or removal
from Zimbabwe by marriage to a Zimbabwean citizen”.





It
is contended for the applicant that the case at hand is
distinguishable from Edwards’ case. I do not agree. As long as
it
is accepted that in
casu
the applicant’s husband was a prohibited person at the time of his
marriage to her, the case is not distinguishable from Edwards’
case,
supra.





What has to be
determined now is whether the fact of her husband being a prohibited
immigrant has the effect of negating the applicant’s
entitlement to
have him reside with her in Zimbabwe. In other words how are the
State’s interests in deciding who does or does
not stay within its
borders, to be balanced against the constitutional right of a
Zimbabwean citizen’s right to freedom of movement,
in particular
the right to have her spouse reside with her in Zimbabwe.





This
is a matter that this Court has already had occasion to address. (See
Kenderjian v Chief
Immigration Officer

2000 (1) ZLR 697 (S),
Edwards
v Chief Immigration Officer

supra
and
Bhatti & Anor v
Chief Immigration Officer & Anor
2001
(2) ZLR 114(H)).





The
following passage in
Bhatti’s
case (
supra)
at p 123 F is in my view particularly instructive:





“To hold that
aliens absolutely cannot be deported from Zimbabwe if they are
married to, or are children of, citizens is to completely
ignore the
complex relationships and responsibilities that both national and
international law impose on the aliens themselves, the
States of
origin and residence and the citizens of the State of residence,
which one learned author has expressed thus:





‘The admission
of aliens into a State immediately calls into existence certain
correlative rights and duties. The alien has rights
to the
protection of the local law. He owes a duty to observe that law and
assumes a relationship towards the State of his residence
sometimes
referred to as ‘temporary allegiance’.





The
State has the right to expect that the alien shall observe its laws
and that his conduct shall not be incompatible with the good
order of
the State and of the community in which he resides or sojourns. It
has the obligation to give him that degree of protection
for his
person and property, which he and his State have the right to expect
under local law, under international law, and under
treaties and
conventions between his State and the State of residence. Failure
of the alien or of the State to observe these requirements
may give
rise to responsibility in varying degrees, the alien being amenable
to the local law or subject to expulsion from the State,
or both, and
the State being responsible to the alien or to the State of which he
is a national”:
Hackworth,
Digest of International Law
(1943),
vol 5 pp 471-472 quoted in Dixon & McCorquodale, Cases and
Material on International Law, Blackstone Press Ltd, London,
1991 p
428”.








It
is submitted for the respondent that the applicant’s husband was
declared a prohibited immigrant and deported because he had
defied
the laws of the country by staying for a period in excess of five
years without a valid residence permit. He, in other words,

breached the duty imposed on an alien to observe the laws of his host
country and conduct himself in a manner compatible with the
good
order of the State. I am satisfied his conduct constituted a threat
to public order.





As
indicated, it is the State’s interests in the light of such conduct
that must now be balanced against the applicant’s entitlement
to
have her husband stay with her in Zimbabwe. In arguing against the
applicant’s entitlement, it is contended for the respondent,
correctly, that the right to freedom of movement is not absolute,
since it is subject to the public interest limitations stipulated
in
paragraph (a) of s 22(3) of the Constitution, so long as these
restrictions are reasonably justifiable in an democratic society.
3
Specifically, the applicant’s right to reside with her foreign
spouse must be balanced against the public interest considerations
that dictated the deportation of her husband. (See Bhatti’s case,
supra.)





This
principle was re-stated in more categoric terms in
Kenderjian’s
case (
supra)
where it was stated as follows at page 701 E-F:





“The removal
of prohibited persons – which one can understand as being
considered necessary in a situation as serious as this one
– is a
prerogative of the State. It is my belief that the restriction upon
the use of such prerogative by the rights safeguarded
under s 22 of
the Constitution, should only be sanctioned in well defined cases.
This is not one of them. A contrary decision
by this Court would
set a dangerous precedent in which the existence of a genuine
marriage to a citizen of Zimbabwe could be relied
upon to place an
alien guilty of committing the most serious of crimes beyond the
reach of the immigration authorities.”








Even
though the applicant’s husband did not commit a ‘most serious’
crime – indeed he was not even prosecuted – I am satisfied
the
principle applies with equal force in c
asu.
I say so because, in my view, his conduct was aggravated by the
actions of his wife, who is the applicant. By the same actions,
which, I find, invite some censure, the applicant also jeopardized
her chances of succeeding in this application. Instead of
encouraging
her husband to go back to Nigeria and submit his
application for a residence permit from there (thereby submitting
himself to the
law), the applicant actively and knowingly aided and
abbetted him in his continued defiance of the law. When discovery
was imminent,
she sought to mislead the authorities by creating,
through the letter already referred to, the fiction that Samson was
properly applying
for a residence permit from outside Zimbabwe. Her
actions were therefore no different from those of one who seeks to
defeat the
ends of justice.




Having
realized the futility of trying to circumvent the law, the applicant
now turns to the same law for relief that in effect would
restore to
her husband the same privilege - that is, residency in Zimbabwe -
that he had with her help, illicitly enjoyed before
he was deported.
It does not in my opinion, augur well for the maintenance of law and
public order that citizens feel they can
on one hand exhibit disdain
for the law and on the other and when it suits them, turn back to the
same law to seek protection of
their rights. In the case at hand, I
have no doubt that but for her dishonest conduct, and barring any
other undesirable circumstances,
the applicant’s efforts to secure
her husband’s lawful residence in Zimbabwe would have stood a
better chance of success.





When
the law as outlined above is applied to the circumstances of this
case, I find that the scales tilt in favour of considerations
of
public interest. Like in the
Kenderjian’s
case, the State in
casu
exercised its prerogative to remove a prohibited immigrant from the
country. On the basis of that authority, I am not persuaded
this
case is one that is so “well defined” as to justify restriction
on the use of such prerogative, by the rights safeguarded
under s 22
of the Constitution.





The application
must therefore, on that ground, fail.





The respondents
made a half hearted attempt to oppose the application on the ground
that the marriage of the applicant and her husband
was one of
convenience. However the evidence used to support this allegation
is the same evidence that the respondents knew, and
the Court has
accepted, to be false. The applicant has admitted she and her
husband stayed together as man and wife for five years
after their
marriage under the supposed mistaken belief that the marriage had
legalised his stay in Zimbabwe. This effectively
removes the basis
of the respondents’ assertion that by her admission, the applicant
and her husband had never stayed together
as husband and wife, and
had therefore, contracted a marriage of convenience. Thus the
respondents, had they been inclined to pursue
this ground of
objection, would not have been able to prove it.





In the final
analysis, I find that the applicant has failed to prove her case.





Accordingly, the
application is dismissed with costs.








SANDURA  JA: I
agree.











ZIYAMBI JA: I
agree.








Muzangaza
Mandaza & Tomana
,
applicant’s legal practitioners


Attorney-General’s
Office,
respondent's
legal practitioners






1
See
among others
Rattigan
& Ors v Chief Immigration Officer & Ors
1994(2)
ZLR 54(S),
Hambly
v Chief Immigration Officer (3)
1998
(2) ZLR 285 (S) and
Salem
v Chief Immigration officer & Anor
1994(2)
ZLR 287 (S)




3
Bhatti
& Anor v Chief Immigration Officer & Anor
2001(2)
ZLR 114(H)