No. SC 101/02
Appeal No. 158/02
REGISTRAR GENERAL OF CITIZENSHIP
MINISTER OF HOME AFFAIRS v
COURT OF ZIMBABWE
CJ, MALABA JA & GWAUNZA AJA
OCTOBER 21 & NOVEMBER 14, 2002
for the appellants
P de Bourbon SC,
for the respondent
CJ: The first appellant refused to renew the respondents
Zimbabwean passport because, according to him, the respondent
failed to renounce her entitlement to New Zealand citizenship,
which entitlement, he alleges, is derived from the New Zealand
respondent successfully applied in the High Court for an order
compelling the first appellant to issue a passport to her.
first appellant was dissatisfied with that decision and noted an
appeal to this Court.
the hearing of this matter the appellants applied for a postponement
to enable them to place before the Court expert evidence
on the law
of New Zealand on citizenship. They tendered the wasted costs.
The respondent opposed the application, essentially
on the ground
that the appellants have had ample time to secure such evidence and
there was need for finality in this case.
It is quite
apparent from the record that New Zealand does have a
Citizenship Act. It is this Citizenship Act that really
the status of the respondent vis-à-vis
New Zealand. If the respondent, in terms of the New Zealand
Citizenship Act, is a citizen of New Zealand then, in
s 9 of the Zimbabwe Citizenship Act [Chapter 4:01]
(the Act), she has to renounce the citizenship of New Zealand or
lose her Zimbabwean citizenship. If, in terms of the New Zealand
Citizenship Act, the respondent is merely entitled to citizenship of
New Zealand, as opposed to being a citizen, then the issue
before this Court is whether the respondent is required, in terms of
s 9 of the Act, to renounce that entitlement or lose Zimbabwean
citizenship. The court a
resolved that issue in favour of the respondent and the appellants
now appeal against that judgment.
my view, the critical issue is the status of the respondent in terms
of the New Zealand Citizenship Act and not the Registrar
Generals interpretation of that Act, which could be correct or
incorrect. The Court can only determine the respondents status
upon examination of the New Zealand Citizenship Act. That Act
has to be placed before the Court.
has been suggested that only expert evidence can determine the
respondents status in terms of the New Zealand Citizenship
I think it
is nonsensical to suggest that this Court is not competent to
interpret a New Zealand statute without the assistance
expert on New Zealand law. The enactment of s 25 of the
Civil Evidence Act [Chapter 8:01]
did not render this Court incompetent to interpret foreign statutes.
is simply seeking a postponement to enable him to place before this
Court the New Zealand Citizenship Act. The provisions
statute are critical to determination of the substantive issue in
respondent will not, in any way, be prejudiced by such a postponement
as she has been issued with a Zimbabwean passport.
of an application for postponement is in the nature of an indulgence
to be granted or refused at the discretion of
the Court see
1904 TS 673; DAnos
v Heylon Court (Pty) Ltd
1950 (2) SA 40; Prinsloo
1984 (2) SA 56.
In the case
1949 (2) SA 392 it was held that a court should be slow to refuse to
grant a postponement of a trial where the true reason for a
non-preparedness has been fully explained; where his unreadiness to
proceed is not due to delaying tactics; and where justice
should have further time for the purpose of presenting his case. If
the above requirements are met, such postponement
should be granted.
has attributed the difficulty of obtaining the evidence he requires
to the fact that he has to rely on third parties to supply him
such evidence and to the long distance between Zimbabwe and
New Zealand. The application for a postponement in this case
is certainly not a delaying tactic because, as I have said, the
respondent does have as of now a Zimbabwean passport. Justice
that the Court should familiarize itself with the provisions
of the relevant New Zealand statute in order to determine this
matter properly. The appellants have tendered wasted costs.
my view, this is a proper case for the Court to grant a postponement
to enable the appellants to place before this Court the
statute determining the respondents New Zealand status, which
has an effect on her Zimbabwean citizenship.
result, the matter is postponed sine
The appellants will bear the wasted costs.
JA: I agree.
AJA: I agree.
Mutizwa & Partners,
appellants' legal practitioners
Godlonton & Gerrans,
respondent's legal practitioners