DISTRIBUTABLE
(84)
Judgment
No. SC 101/02
Civil
Appeal No. 158/02
(1) THE
REGISTRAR GENERAL OF CITIZENSHIP
(2) THE
MINISTER OF HOME AFFAIRS v
JUDITH
GARFIELD TODD
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, MALABA JA & GWAUNZA AJA
HARARE,
OCTOBER 21 & NOVEMBER 14, 2002
S
Chihambakwe,
for the appellants
A
P de Bourbon SC,
for the respondent
CHIDYAUSIKU
CJ: The first appellant refused to renew the respondents
Zimbabwean passport because, according to him, the respondent
had
failed to renounce her entitlement to New Zealand citizenship,
which entitlement, he alleges, is derived from the New Zealand
Citizenship Act.
The
respondent successfully applied in the High Court for an order
compelling the first appellant to issue a passport to her.
The
first appellant was dissatisfied with that decision and noted an
appeal to this Court.
At
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
determines
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
terms of
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
quo
resolved that issue in favour of the respondent and the appellants
now appeal against that judgment.
In
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.
It
has been suggested that only expert evidence can determine the
respondents status in terms of the New Zealand Citizenship
Act.
I think it
is nonsensical to suggest that this Court is not competent to
interpret a New Zealand statute without the assistance
of an
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.
Mr Chihambakwe
is simply seeking a postponement to enable him to place before this
Court the New Zealand Citizenship Act. The provisions
of that
statute are critical to determination of the substantive issue in
this matter.
The
respondent will not, in any way, be prejudiced by such a postponement
as she has been issued with a Zimbabwean passport.
The granting
of an application for postponement is in the nature of an indulgence
to be granted or refused at the discretion of
the Court see
Schapiro
v Schapiro
1904 TS 673; DAnos
v Heylon Court (Pty) Ltd
1950 (2) SA 40; Prinsloo
v Saaiman
1984 (2) SA 56.
In the case
of Madnitsky
v Rosenberg
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
partys
non-preparedness has been fully explained; where his unreadiness to
proceed is not due to delaying tactics; and where justice
demands he
should have further time for the purpose of presenting his case. If
the above requirements are met, such postponement
should be granted.
Mr Chihambakwe
has attributed the difficulty of obtaining the evidence he requires
to the fact that he has to rely on third parties to supply him
with
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
demands
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.
In
my view, this is a proper case for the Court to grant a postponement
to enable the appellants to place before this Court the
relevant
statute determining the respondents New Zealand status, which
has an effect on her Zimbabwean citizenship.
In the
result, the matter is postponed sine
die.
The appellants will bear the wasted costs.
MALABA
JA: I agree.
GWAUNZA
AJA: I agree.
Chihambakwe,
Mutizwa & Partners,
appellants' legal practitioners
Gill,
Godlonton & Gerrans,
respondent's legal practitioners
