FAISAL MUHAMMAD

AND

SHEIKH ABDUL SALAM

versus

PRINCIPAL DIRECTOR OF IMMIGRATION

and

CO-MINISTERS OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 14 March 2011

E. Mugwadi with S. Takundwa, for the applicants

Miss S. Kundai, for the respondents

            MUTEMA J: The applicants who are father and son hail from Pakistan. They came to Zimbabwe sometime in 2008 as investors. On 3 October, 2008 they were granted an investment licence by the Zimbabwe Investment Authority (ZIA). Their investment vehicle is styled Tonia Investments (Pvt) Ltd in which they hold 50% shareholding each. That investment licence was to endure up until 2 October 2010. It was renewed on 8 October 2010 to run for another 2 years up to 7 October 2012. In the investment licence the description of the investment is given as, “Manufacture of blankets, overalls, socks and jeans.’’ Under description and value of assets invested or to be invested it is written:  Foreign Currency injection US$200 000: Capital Equipment from Abroad US$450 000-00.’’

The licence stipulated that the investment assets described at their estimated value were to be invested within 2 years of approval unless otherwise agreed to by Zimbabwe Investment Authority.  Incorporated in the licence are special conditions one of which states:

“1. This licence is issued on the express condition that the Company/Applicant will only   

      engage in the activity(ies) stated in the licence and for no other purpose without the  

      written consent of Zimbabwe Investment Authority.”

The current registered office of the company is 24 South Avenue, Harare. The company has what it termed an outlet shop at number 31 Cameron Street, Harare.

On the strength of being approved investors the first applicant, his wife and three children, and I presume the same obtains in respect of the second applicant, had been granted residence permits on 8 July, 2009 enduring from 1 July, 2009 to 30 July 2010. Buoyed by the renewal of the

investment licence on 8 October, 2010 alluded to suprathe applicants applied for residence permit extension. The date for the application is not disclosed but on 3 January, 2011 the principal director for immigration wrote to both applicants stating:

 “Thank you for application for an extension of the Residence permit.

I regret to advise that, after careful consideration, it has been decided that no further extension of the Permit will be allowed.

It is now necessary that the above named should go with this letter to his nearest Immigration Office so that departure arrangement may be made.’’

On 2 February 2011 the applicants were issued with a Notice to visitor by the immigration department valid from 2 February 2011 to 1 March 2011 advising them to report to immigration at Harare Airport to leave the country.

On 7 February, 2011, the applicants’ legal practitioners wrote to the principal director of the department of immigration appealing to the same official against his/her decision to refuse residence permit extension and requiring applicants to depart from the country on or before 1^stMarch, 2011. The applicants wanted the principal director to reverse his/her earlier decision and grant them extension of their residence permits for the same duration as their investment licence by Zimbabwe Investment Authority.

The papers do not ventilate what fate befell the appeal but presumably it was turned down for on 24 February, 2011 the applicants’ legal practitioners lodged an appeal to the Co-Ministers of Home Affairs appealing against the principal director of immigration’s decision not to extend

their investor’s residence permits. On 28 February, 2011 the Secretary for Home Affairs wrote to the applicants’ legal practitioners acknowledging receipt of the appeal and advising that the Co-ministers were still considering the appeal and that if further assistance was required they should approach the department of immigration with a copy of the letter.

            Then on 7 March 2011 the applicants lodged an urgent chamber application in this court seeking a Provisional Order whose interim relief sought is couched in these terms:

            “ INTERIM RELIEF SOUGHT

Pending the determination of this matter, it is ordered that:

1.         First Respondent be and is hereby ordered to issue Applicants with Provisional Restriction

Notices valid for (90) ninety days and renewable until this matter is finalised.

2.    First respondent be and is hereby ordered not to interfere with the business operations of the applicant (sic) until this matter is finalised.

3.    First respondent, his officials or assigns be and are hereby interdicted from deporting or detaining applicants and members of their families that is to say wives and minor children”.

The applicants contend that to date the total value of their investment stands at US$98 450-00 excluding “the almost US$45 000-00”  put into infrastructural development projects such as the outlet sales shop constructed at number 31 Cameron Street. In January 2010 immigration officials impounded first applicant and his family’s passports without reason until 5 February, 2011.It is due to this passport impound that the applicants failed to meet the threshold of the Zimbabwe Investment Authority licence to invest US$200 000-00 and capital equipment from abroad worth US$450 000-00 as first applicant could not travel outside the country without a passport.

The respondents deny that the alleged passports were impounded and aver that it is the first applicant who surrendered his wife’s and children’s passports as surety. They contend that applicants are failed investors hence the refusal to renew their residence permits. Applicants were accorded several opportunities since 2008 to implement their investment project to no avail. The so-called factory at 24 South Avenue is not a factory and the area is zoned for retail and not manufacturing. Applicants, contrary to their investment licence terms focused on retail via the sales shop at 31 Cameron Street.

The Court conducted an inspection in loco at 24 South Avenue as well as at 31 Cameron Street. The following observations were made.

at 24 South Avenue

It is located at the back of a retail shop. Comprises two rooms-one small (the factory) and one big (the warehouse). Access to the premises is via a sanitary lane. The two rooms are being leased from one Unas Mahomed Hosein Meman at a rental of $500-00 per month. In the small room were 8 sewing machines with some workers sewing bedsheets.

In the warehouse were:

• . bundles of fabrics material for making bed sheets.
• 3 bundles of fabric material for making worksuits/overalls
• blankets
• 44 bundles of rexin material for upholstering chairs, sofas and baby cots covers,
• 20 bundles of fabric material for making ladies suits.
• 100 finished bomber jackets
• 35 boxes of shirts imported from Bangladesh, each box containing 30/40 shirts
• 20 bundles of blanket material
• 5 x 2,3 m bed sheets

Applicants do not know whether there exists a permit from the city council authorising the operation of a factory on the premises.

at 31 Cameron Street

On the outside wall it is written:

            Rida Fabrics

            Bedsheet

            Curtaining

            Mandy

            Peticoat

            Polycotton

Inside are:

• cash register
• finished bedsheets and pillows on shelves
• blankets
• material for making baby waterproofs
• material for petticoat lace
• 5 suitcases displayed for sale
• finished worksuits
• several bundles of fabric material for bedsheets
• several bundles of mandy fabric for making school uniforms
• bundles of fabric material for making petticoats
• bundles of material for upholstery (sofas and chairs)
• bundles of material for making school uniform shirts
• bundles of material for making kitchen tables cover cloths
• bundles of material for making aprons
• bundles of material for making curtains
• bundles of rexin material
• a shop retail licence from the city council to sell class 7 items only ie. textiles and fabrics

The foregoing observations compelled the first respondent to refuse to renew the applicants’ residence permits and the first respondent said it is a mystery why Zimbabwe Investment Authority renewed the applicants’ investment licence when it was clear that not only were the applicants not complying with the terms and conditions of their investment licence but were deviating from the first special condition without the written consent of Zimbabwe Investment Authority. The applicants could not profer a plausible reason for this deviation.

I found it unnecessary to deal with the merits of the matter because the application can simply be disposed of on the issue of urgency. In this regard, the words of CHATIKOBO J. in Kuvarega v. Registrar-General & Another 1998(1) ZLR 188(HC) at 193 bear useful repetition for clarity. He said,

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules. It necessarily follows that the certificate of urgency or the supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay. Those who are diligent will take heed. Forewarned is forearmed.”

In casu, if what the applicants allege is true, viz that immigration officials impounded their passports for 13 months without reason from January 2010 to 5 February 2011 thereby scuttling the fulfilment of the terms and conditions of their investment licence, it is a wonder why the applicants sat back unperturbed doing nothing about it. The papers do not say why the applicants remained in this near catatonic state.

Whilst their passports were still under impound the applicants were able to apply to Zimbabwe Investment Authority for extension of their investment licence but on 31 January, 2011 they were written letters being advised that their application for residence permit extension  had been refused. In the letters the applicants were directed to go with the letters to the nearest immigration office so that departure arrangements could be made. They did not approach the court on an urgent basis. In fact they did nothing. On 2 February, 2011 the applicants were served with a Notice to Visitor for departure expiring on 1 March, 2011. Instead of approaching this court on third time the need to act arose, the applicants decided that the matter could still wait. They embarked on an apparently futile exercise of appealing to the same official who had refused to grant extension of their residence permits. That was on 7 February 2011. It was only on 28 February, 2011 that the applicants lodged an appeal to the co-minister of Home Affairs who on the same date advised applicants to approach the immigration department with a copy of the acknowledgement of receipt of the appeal for further assistance. Applicants argued that this letter of acknowledgement of the appeal constituted an instruction by the co-ministers to immigration to allow applicants to remain in the country pending determination of the appeal by use of the words “ For further assistance please approach the department of immigration with a copy of this letter,” which instruction immigration are disobeying. Looking at the ordinary grammatical meaning of the wording employed I am unable to glean such meaning as contended for by the applicants.

It was only on 7 March, 2011 that this application was filed in this court on purported urgency- some 5 days after the expiry of the Notice to Visitor period. Neither the certificate of urgency nor the founding affidavit contains any explanation for the delays at each and every stage when the need to act arose alluded to supra. The urgency claimed by the applicants is not one contemplated by the rules of court but is one which stems from a deliberate or careless abstention from action until the deadline had passed-something akin to shutting the stable door after the horse had bolted.

In view of the foregoing reasons the application is found not to be urgent. It must await its turn in the queue. In the result the application is dismissed with costs.

Mugwadi & Associates,applicants’ legal practitioners

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