REPORTABLE (4)

Judgment No. SC 4/03

Civil Appeal No. 158/02

THE REGISTRAR GENERAL OF CITIZENSHIP

v JUDITH GARFIELD TODD

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JA & MALABA JA

HARARE, JANUARY 21 & FEBRUARY 27, 2003

S J Chihambakwe, for the appellant

B Elliot, for the respondent

MALABA JA: This is an appeal from a judgment of the High Court dated 7 May 2002 declaring that the respondent was a citizen of Zimbabwe and directing the appellant to renew her Zimbabwe passport within fourteen days of the submission by her of an application for such renewal. The appellant was ordered to pay the costs of the application which had been made by the respondent.

The facts of the case are these. The respondent was born in the then Southern Rhodesia on 18 March 1943. Her parents, Sir Reginald Stephen Garfield Todd and Lady Jean Grace Isabel Todd, were born in New Zealand on 13 July 1908 and 3 April 1911 respectively. They were citizens of New Zealand who came to this country as missionaries in 1943 and settled at Dadaya Mission where the respondent was born. She became a citizen of Zimbabwe by birth.

On 1 December 1984 the Citizenship of Zimbabwe Act [Chapter 4:01] (“the Act”) came into operation. The Act provided in s 9(1) that no citizen of Zimbabwe, who was of full age and sound mind was entitled to be a citizen of a foreign country. It was provided in s 9(7), as amended by s 3 of the Citizenship of Zimbabwe Amendment Act No 12 of 2001, that:

“A citizen of Zimbabwe of full age who –

(a) at the date of commencement of the Citizenship of Zimbabwe Amendment Act 2001, is also a citizen of a foreign country; or

(b) …

shall cease to be a citizen of Zimbabwe six months after that date unless, before the expiry of that period, he has effectively renounced his foreign citizenship in accordance with the law of that foreign country and has made a declaration confirming such renunciation in the form of and manner prescribed.”

The form in which the declaration confirming the renunciation of the citizenship of the foreign country was to be made was prescribed in the Citizenship of Zimbabwe (Renunciation of Foreign Citizenship) Regulations 2001 (SI 217/01). The date of commencement of the Citizenship of Zimbabwe Amendment Act was 6 July 2001 and the period of six months thereafter was to expire on 6 January 2002.

It so happened that on a date not disclosed in the papers but before 6 January 2002, the respondent submitted an application to the appellant through the Bulawayo Office for the renewal of her Zimbabwe passport. The appellant, through his officers, refused to renew the passport, alleging that the respondent was a citizen of New Zealand by descent and demanded that she should renounce the foreign citizenship before her Zimbabwe passport could be renewed. The respondent vehemently denied that she was a citizen of New Zealand by descent, arguing that she could not renounce what she did not possess.

On 4 January 2002 the respondent made an application to the High Court, in which she cited the appellant as the first respondent and the Minister of Home Affairs as the second respondent. The relief sought against the respondent and the Minister of Home Affairs jointly and severally was an order to the effect that:

“1. The provisions of s 7 of the Citizenship of Zimbabwe Act [Chapter 4:01], as amended by s 3 of the Citizenship of Zimbabwe Amendment Act (No 12/2001) do not apply to the applicant.

2. Consequently, the provisions of the Citizenship of Zimbabwe (Renunciation of Foreign Citizenship) Regulations 2001 (Statutory Instrument 217/2001) do not apply to the applicant and the applicant is not obliged to comply with the said Regulations.

3. The applicant is a citizen of Zimbabwe and will, after 6 January 2002, automatically remain a citizen of Zimbabwe.

ACCORDINGLY IT IS ORDERED THAT:

1. The respondents shall continue to recognise the applicant as a citizen of Zimbabwe after 6 January 2002 and afford her the rights and protection as a citizen of Zimbabwe.

2. The first respondent shall renew the applicant’s Zimbabwe passport within fourteen days of the submission of an application by the applicant for such renewal.

3. The respondents shall pay the applicant’s costs of suit.”

The founding affidavit deposed to by the respondent in support of her application shows that she strongly objected to being told that she was a citizen of New Zealand by descent. She said she had never claimed citizenship of that country and had no intention of doing so in future. She declared that she has always been a Zimbabwean citizen who had fought for human rights and the liberation of her country. She said it was demeaning of her personally and a compromise of her Zimbabwean citizenship to be required to fill in a form declaring that she had renounced citizenship of a foreign country when she had never become its citizen. It was her contention that what she had acquired by virtue of her birth to parents who were citizens of New Zealand was a mere claim to New Zealand citizenship. She said that s 9(7) of the Act did not apply to a citizen of Zimbabwe with a claim to citizenship of a foreign country.

The notice of opposition filed on behalf of the appellant and the Minister of Home Affairs indicated that they both opposed the application. It was stated therein that the affidavit deposed to by the appellant was on behalf of both of them. The appellant did not deny in the opposing affidavit that the application by the respondent for the renewal of her Zimbabwe passport was refused on the ground that she was a citizen of New Zealand by descent. He insisted that the respondent was a citizen of New Zealand by descent and that she was required to effectively renounce the citizenship of that foreign country before her Zimbabwe passport could be renewed. He said he was merely enforcing the law of the land.

The application and the relief sought show that two issues were placed before the court a quo for determination. The first issue was whether or not the respondent was a citizen of New Zealand by descent at the date of commencement of the Citizenship of Zimbabwe Amendment Act, that is to say, 6 July 2001. The second was whether or not the refusal by the appellant to renew the respondent’s Zimbabwe passport was lawful.

I take the first issue. The learned judge could not grant or dismiss the application for the declaratory orders sought by the respondent without first deciding whether or not she was a citizen of New Zealand by descent. The learned judge did not, however, call for the production of the relevant statutes of New Zealand for examination and decision on the question of whether the respondent was a citizen of New Zealand by descent. She accepted the respondent’s ipse dixit that she was not a citizen of New Zealand by descent.

One would have expected the learned judge to grant the respondent the relief she had applied for once she found that she was not a holder of New Zealand citizenship by descent. The judgment shows that the declaration she made was that the respondent was a citizen of Zimbabwe. That was a misdirection on the part of the learned judge because the respondent’s Zimbabwe citizenship per se was not in issue. What was in issue was whether she held the citizenship of New Zealand.

In the light of the misdirection by the court a quo, we have to answer the question whether the respondent was a citizen of New Zealand at the date of commencement of the Citizenship of Zimbabwe Amendment Act 2001.

The British Nationality and New Zealand Citizenship Act 1948 (“the 1948 Act”), which came into effect on 1 January 1949, provides the answer. Section 16 provided that:

“(1) A person who was a British subject immediately before the date of the commencement of this Act shall on that date become a New Zealand citizen if he possesses any of the following qualifications, that is to say –

(a) that he was born within the territories comprised at the commencement of this Act in New Zealand and would have been a New Zealand citizen if section six of this Act had been in force at the time of his birth;

(b) …

(c) …

(2) A person who was a British subject immediately before the commencement of this Act shall on that date become a New Zealand citizen if at the time of his birth his father was a British subject and possessed either of the qualifications specified in paragraphs (a) and (b) of the last preceding subsection.”

Section six, which is referred to in s 16 was to the effect that every person born in New Zealand after the commencement of the 1948 Act became a New Zealand citizen by birth.

Section 3 of the 1948 Act defined a “British subject” as:

“1. Every person who under this Act is a New Zealand citizen or who under any enactment for the time being in force in any country mentioned in subsection three of this section is a citizen of that country.”

Amongst the countries mentioned in subs (3) of s 3 of the 1948 Act was “Southern Rhodesia”.

At the time of her birth, the respondent’s father was a British subject so she too became a British subject because she was born in “Southern Rhodesia”. Her father was also a citizen of New Zealand in addition to being a British subject. As she was born of a British subject who was a citizen of New Zealand the respondent automatically became a citizen of New Zealand by descent in terms of s 16(2) of the 1948 Act. Citizenship of New Zealand by descent was conferred upon the respondent by operation of law. She did not have to take any steps to claim it. The only step she could have taken was the renunciation of that citizenship.

Section 21 of the 1948 Act gave the respondent the right, on attainment of full age, to make a declaration in the prescribed manner, renouncing her citizenship of New Zealand by descent. It is, however, clear from the averments in the founding affidavit that the respondent did not renounce her citizenship of New Zealand by descent.

The 1948 Act was amended by the Citizenship Act of 1977 (“the 1977 Act”). Section 13(2) of the 1977 Act protected the respondent’s citizenship of New Zealand by descent, in that it provided that a person who, by virtue of the 1948 Act, was immediately before its commencement a New Zealand citizen by descent was to be deemed to be a New Zealand citizen by descent.

The respondent had a right under s 15 of the 1977 Act to renounce the citizenship of New Zealand by descent. She did not exercise that right.

New Zealand passed the Citizenship Amendment Act 2000 (“the 2000 Act”), which provided in s 4 that the citizenship of any New Zealand citizen by descent that had lapsed before its commencement was reinstated with effect from the time it lapsed. There is no evidence at all of the respondent’s citizenship of New Zealand by descent having lapsed at any time before the commencement of the 2000 Act. Even if it had lapsed, the citizenship was reinstated.

New Zealand also passed the Citizenship Amendment Act (No 2) 2001 (“the 2001 Act”), which again provided in s 10 that the citizenship of any New Zealand citizen by descent which had lapsed before its commencement was reinstated with effect from the time it lapsed. It is clear that there has been a deliberate policy to protect the citizenship of New Zealand acquired by descent automatically by the first generation born outside New Zealand.

It is also clear from the relevant statutes of New Zealand that the appellant was correct when he alleged that the respondent was a citizen of New Zealand by descent at the date of commencement of the Citizenship of Zimbabwe Amendment Act 2001.

The learned judge should have found in favour of the appellant on the question whether or not the respondent was a citizen of New Zealand by descent. She should have dismissed the application in respect of the declaratory order sought.

The appeal must succeed on the question of whether or not the respondent was a citizen of New Zealand by descent at the date of commencement of the Citizenship of Zimbabwe Amendment Act 2001. The order of the court a quo declaring the respondent a citizen of Zimbabwe has to be set aside.

I must add a word about the order the appellant is seeking in the event of being successful in this appeal. He prays that the order of the court a quo be set aside and substituted with an order that:

“1. The applicant lost Zimbabwean citizenship by operation of law as she failed to renounce her New Zealand citizenship in terms of s 9 of the Zimbabwe Citizenship Act. Accordingly the applicant is not entitled to a Zimbabwean passport.”

This Court is unable to grant to the appellant the order declaring that the respondent lost her Zimbabwe citizenship. The situation being considered is that which existed at the time the respondent made the application to the High Court for the determination of her rights under the Citizenship of Zimbabwe Act. She made the application two days before the expiry of the period within which she was required to have effectively renounced her New Zealand citizenship by descent. The period could not have expired whilst the court was considering the application.

In my view, the institution of the proceedings had the effect of stopping the running of the period of renunciation of the respondent’s foreign citizenship pending the final resolution of the issues raised by the application. At the time the application was made, the respondent had not lost her Zimbabwe citizenship because the expiry of the period of six months from the date of commencement of the Citizenship of Zimbabwe Amendment Act 2001, which would have brought about the loss of her Zimbabwe citizenship, had not occurred. Consequently, the respondent has two days from the date this judgment is handed down within which to effectively renounce her New Zealand citizenship by descent if she is desirous of retaining her Zimbabwe citizenship.

I turn now to consider the question of the lawfulness of the appellant’s refusal to renew the respondent’s Zimbabwe passport. A Zimbabwe passport is ordinarily issued to a citizen of Zimbabwe. At the time the appellant refused to renew the respondent’s passport she was a citizen of Zimbabwe. She would only have lost her Zimbabwe citizenship after the expiry of the six month period on 6 January 2002 without her having effectively renounced the New Zealand citizenship and submitted the relevant renunciation of foreign citizenship declaration form.

As a citizen of Zimbabwe the respondent was entitled to a Zimbabwe passport. The refusal to renew her Zimbabwe passport on the ground that she also held New Zealand citizenship by descent which she had not renounced when in fact the period within which she was required to do so had not expired was unlawful. The learned judge was correct in deciding that the respondent was entitled to a Zimbabwe passport. She is entitled to that passport until she loses Zimbabwe citizenship in terms of s 9(7) of the Act. As the respondent has two days within which to effectively renounce her New Zealand citizenship by descent and retain her Zimbabwe citizenship this Court cannot grant the appellant the order that she is not entitled to a Zimbabwe passport.

It must follow that the appeal against that part of the court a quo’s order directing the appellant to renew the respondent’s Zimbabwe passport must fail. We were told in the course of the hearing of the appeal that the appellant has complied with the order. That was the proper thing to do in the circumstances.

For the avoidance of doubt, the respondent has two days, from the handing down of this judgment, within which to renounce her New Zealand citizenship in accordance with the New Zealand Citizenship Act. In the event of her failure to do so, she will lose her Zimbabwean citizenship by operation of the law.

The following conclusion is reached –

The appeal succeeds with costs in respect of the question whether the respondent is a citizen of New Zealand by descent. The order of the court a quo declaring the respondent a citizen of Zimbabwe is set aside and in its place is substituted the following –

“The application for an order that the provisions of s 9(7) of the Citizenship of Zimbabwe Act [Chapter 4:01] as amended and the Citizenship of Zimbabwe (Renunciation of Foreign Citizenship) Regulations 2001 (Statutory Instrument 217/2001) do not apply to the applicant and that she was automatically to remain a citizen of Zimbabwe after 6 January 2002 is dismissed with costs.”

The appeal against the order directing the appellant to renew the respondent’s Zimbabwe passport is dismissed with costs.

CHIDYAUSIKU CJ: I agree.

ZIYAMBI JA: I agree.

Civil Division of the Attorney-General’s Office, appellant's legal practitioners

Gill, Godlonton & Gerrans, respondent's legal practitioners