BERRY (NEE NCUBE) & ANOR v CHIEF IMMIGRATION OFFICER & ANOR

CONSTITUTIONAL COURT, HARARE

[Opposed Application CCZ 4-16]

February 18, 2015 and June 15, 2016

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI, GWAUNZA, GOWORA, HLATSHWAYO, PATEL AND GUVAVA JJCC AND MAVANGIRA AJCC

Constitutional law  –  Freedom of movement  –  Application in terms of section 85 (1) of the Constitution of Zimbabwe, 2013  –  Freedom of movement protected by section 66  –  Whether Zimbabwean citizen’s freedom of movement infringed by refusal to grant foreign spouse residence in Zimbabwe.

Constitutional law  –  Immigration Act [Chapter 4:02]  –  Prohibited immigrant  –  Whether status of prohibited immigrant is altered by citizen spouse’s right to freedom of movement under section 66 of the Constitution of Zimbabwe, 2013.

Constitutional law  –  Interpretation  –  Doctrines of “ripeness” and constitutional “avoidance”  –  Meaning of.

The first applicant was a Zimbabwean citizen by birth. She was married to the second applicant, an American citizen. The second applicant was deemed to be a “prohibited” person in terms of the Immigration Act [Chapter 4:02], having been convicted, in the United States, of an offence involving possession of dangerous drugs. On account of being a “prohibited” person, the husband had been asked to leave Zimbabwe and had left. The first applicant approached the court in both her own interest and that of her husband seeking an order to the effect that her fundamental right to freedom of movement and residence, guaranteed under s 66 of the Constitution of Zimbabwe, 2013 had been violated by virtue of the respondents’ refusal to grant her husband entry into and residence in Zimbabwe.

Held, that the status of being a prohibited person, being one imposed automatically by law, does not change to that of being a non-prohibited person, merely by marriage to a Zimbabwean citizen. Accordingly, the respondents’ refusal to grant the husband  –  a prohibited person  –  entry into and residence in Zimbabwe did not infringe the citizen spouse’s freedom of movement and residence.

Held, further, that the applicants could not challenge, on a constitutional basis, the conduct of the respondents without challenging the constitutional validity of the law upon which that conduct was premised.

Held, further, that the failure of the applicants to challenge the constitutional validity of the law upon which the respondents’ conduct was based brought to mind the doctrines of “ripeness” and constitutional “avoidance”. The concept of ripeness embraces that of constitutional avoidance and refers to the general principle that where it is possible to decide any case without reaching a constitutional issue, that is the course to be followed.

Cases cited:

Edwards v Chief Immigration Officer 2000 (1) ZLR 485 (S), referred to

Hambly v Chief Immigration Officer (3) 1998 (2) ZLR 285 (S), referred to

Jonasi-Ogundipe v Chief Immigration Officer & Ors 2005 (1) ZLR 396 (S), referred to

Kenderjian v Chief Immigration Officer 2000 (1) ZLR 697 (S), referred to

National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SA 1 (CC); 2000 (1) BCLR 39; [1999] ZACC 17, applied

Rattigan & Ors v Chief Immigration Officer & Ors 1994 (2) ZLR 54 (S), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 66, 85, 85 (1)(a), 85 (1)(b)

Dangerous Drugs Act [Chapter 15:02]

Immigration Act [Chapter 4:02], ss 4, 8 (4)(a), 14, 14 (1)(e)(i), 14 (2), 15 (2), 17, 21 (1)

Marriage Act [Chapter 5:11]

Immigration Regulations, 1998 (SI 195 of 1998), ss 15, 16 (1)(a), 55-59

Book cited:

Du Plessis M, Penfold G and Brickhill J Constitutional Litigation (1st edn, Juta & Co Ltd, Cape Town, 2013) at p 19

L Madhuku, for the applicants

O Zvedi, for the respondents

GWAUNZA JCC:

This is an application in terms of ss 85 (1)(a) and 85 (1)(b) of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.

In their heads of argument, the applicants submit that they have abandoned paras 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now “fundamentally focused” on an infringement of the first applicant’s constitutional right to freedom of movement, which is protected under s 66 of the Constitution.

The applicants accordingly seek the following relief:

1. A declaratur to the effect that the first applicant’s fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents’ refusal to grant the second applicant entry into and residence in Zimbabwe, and

2. An order compelling the respondents to:

(i) permit the second applicant’s entry into Zimbabwe, and

(ii) grant the second applicant’s a “spousal” residence permit.

The background to the matter is as follows. The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter sometime in August 2011 entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant’s stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant. During this period, the two applicants solemnised their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe. This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a 30 day extension on his holiday visa whilst his application for a residence permit was being considered.

On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of s 14 (1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to s 17 of the Act.

The second applicant chose the former option and on 2 June 2014 left for South Africa together with his wife. Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the prohibition notice, which appeal was duly noted in the Magistrates Court, in terms of s 8 of the Act. The Court on 20 June 2014 ruled in favour of the second applicant and set aside the prohibition notice in question. The applicants were informed by their legal practitioners of this development and on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe. Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent’s officers, on the basis that he was still a prohibited person despite the setting aside of the prohibition order. The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent’s officers. She proceeded on 18 July 2014 to file an application before this Court, challenging the respondent’s decision to declare the second applicant a prohibited person, and denying him entry into this country. Before the matter was heard on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.

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