REPORTABLE ZLR (29)

Judgment No. SC 26/04

Civil Application No. 317/03

MARCIA SALOME MUSAMBAKAMWE NGARU v (1) CHIEF IMMIGRATION OFFICER & (2) THE MINISTER OF HOME AFFAIRS

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA & GWAUNZA JA

HARARE, MARCH 9 & JUNE 3, 2004

G Mitha-Valla, for the applicant

C R Mudenda, for the respondent

GWAUNZA JA : The applicant alleges that her constitutional right to freedom of movement, guaranteed in terms of s 22(1) of the Constitution, has been violated by the respondents’ denial to her husband, an alien, of a residence permit. She accordingly prays for an order:

1. that her right to reside in Zimbabwe with her non-citizen husband be recognised;

2. that the respondents be restrained from unduly interfering with her right; and

3. that the respondents pay the costs of the application.

The facts of the case are common cause. The applicant is a citizen of Zimbabwe. She married one Leopold Alain Sitchet-Njanko (“Leopold”) a citizen of Cameroon, on 28 December 2001, at Bulawayo. At the time of the marriage, Leopold was attached to Zimrights, Bulawayo Branch, as a Project Advisor, and was under the employ of a German organization called Weltfriedensdienst e.V. (“WFD”). He was then on a Temporary Employment permit which was due to expire on 16 March 2002. On 27 December 2001, the Regional Representative of WFD – Southern African Office addressed a letter to the first respondent seeking, on behalf of Leopold, an extension of his temporary employment permit. On 9 April 2002, a letter turning down the application for a temporary employment permit was received from the first respondent. In the letter the first respondent directed that Leopold should “go with this letter to his nearest Immigration Office so that departure arrangements may be made.” Thereafter several appeals were made, without success, to the first respondent to reverse his decision not to extend Leopold’s work permit. In one of the appeals, the applicant added her entreaties to those of WFD and her husband. Following the last of the letters of rejection received from the first respondent, the applicant consulted a legal practitioner who, on 9 August 2002, wrote a letter to the first respondent, demanding that the latter allow Leopold to reside and work in Zimbabwe, failing which recourse would be had to legal action. In the letter, the legal practitioner stressed the applicant’s entitlement to reside in the country with her spouse.

Having received no response to this letter, the applicant and her husband jointly and successfully sought a provisional order restraining the respondents from deporting Leopold from Zimbabwe. The order, which was granted on 9 August 2002 was later extended pending the outcome of this application. This was on 24 September 2003. In the meantime, on 8 October 2002, a child was born to the applicant and her husband.

The application is opposed by the respondents. They argue, firstly, that the applicant’s husband was declared a prohibited immigrant in terms of s 14(1)(g) of the Immigration Act, [Chapter 4:02], and secondly, that the applicant’s rights to reside with her husband in Zimbabwe have to be weighed against those of State Security and that “in these circumstances” the applicant’s rights cannot be deemed to be absolute. The respondents have attached to their opposing affidavit the order signed by the second respondent on 11 September 2002 declaring Leopold an undesirable inhabitant of or visitor to Zimbabwe. They have also attached a certificate signed on the same date, by the second respondent in terms of s 22(2) of the Immigration Act [Chapter 4:02], to the effect that it was not in the public interest for him (the Minister) to disclose the reasons why he deemed Leopold to be an undesirable inhabitant of or visitor to Zimbabwe.

The applicant takes issue with the second respondent’s failure to disclose the reasons why her husband was deemed to be an undesirable inhabitant of or visitor to Zimbabwe. She asserts that without knowledge of those reasons, this Court will not be able to determine “whether to uphold my right to reside in this country with my husband, or not to uphold it on the basis that my husband is a threat to good order or security.” She then prays for an order compelling the respondents to disclose to the Court the evidence they relied on for the decision to declare him an undesirable inhabitant of or visitor to Zimbabwe. She contends as follows in paragraph 6 of her answering affidavit:

“… I am advised and verily believe that whilst the ministerial certificate bars the disclosure of the reasons to the public, it does not bar the disclosure of the reasons in court. I respectfully aver that this Honourable Court may make arrangements for the evidence upon which the Minister relied in coming up with his decision to be adduced in camera and all necessary measures may be taken to ensure that that evidence remain undisclosed to members of the public.”

Section 14 of the Immigration Act, [Chapter 4:02] deals with the circumstances under which a person will be deemed to be a prohibited person.

Section 22(2) of the Immigration Act [Chapter 4:02] upon which the second respondent relied for not disclosing the reasons for deeming Leopold an undesirable immigrant or visitor to Zimbabwe provides as follows:

“(2) No information or reasons on which a decision in terms of s 14 or a decision to withdraw or cancel a permit was made may be disclosed in any court if the Minister certifies that its disclosure is not in the public interest, and no court may question the adequacy of the grounds for any such decision.”

The latter part of the subsection cited above is at variance with s 18(12) of the Constitution, which reads as follows:

“(12) Notwithstanding anything contained in subsection (4), (10) or (11), if in any proceedings before such court or other adjudicating authority as is referred to in subsection (2) or (9), including any proceedings by virtue of s 24, a certificate in writing is produced to the court or other authority signed by a Minister that it would not be in the public interest for any matter to be publicly disclosed, the court or other authority shall make arrangements for evidence relating to that matter to be heard in camera and shall take such other action as may be necessary or expedient to prevent the disclosure of that matter.”

In Hambly v Chief Immigration Officer (1) 1995 (2) ZLR 264 (H) the court considered these two provisions and held that because of s 18(12) of the constitution, the Minister’s certificate could not lawfully bar the disclosure of the reasons to the court.

Ms Mitha-Valla, for the applicant, submits that the applicant is unable, because of the non-disclosure of the reasons for denying her husband a residence permit, to discharge the onus that she bears, of proving that the interference with her rights was not reasonably justifiable in a democratic society. The fact that such onus lies on an applicant in matters such as these was stressed by this Court in Kenderjian v Chief Immigration Officer 2000 (1) ZLR 697 where GUBBAY CJ said at 700 B-C:

“It follows that the crucial question to be decided is whether the applicant has been able to show that such interference, under the authority of s 17 (a) of the Act, is not reasonably justifiable in a democratic society.”

This dictum is cited with approval in the recent case of Bhatti & Anor v Chief Immigration Officer & Anor 2001 (2) ZLR 114 (H). In that case, HLATSHWAYO J suggests the proper approach to be adopted involves two stages of enquiry, the first being the “rights (to freedom of movement) as defined in the Rattigan line of cases, taking into account whether the marriage is one of convenience or not.” The second stage of the inquiry, according to the learned judge, is the qualification of such a right.

If this principle is applied to the circumstances of this case, it is evident that in casu the first stage of the enquiry does not come into play. This is because at no time was it alleged by the respondent against the applicant that her marriage to Leopold was one of convenience. What is relevant here is the second stage, which is the determination of whether or not the applicant’s right should be qualified by the public interest limitations outlined in para (a) of s 22 (3) of the Constitution.

There is, in my view, merit in the applicant’s contention that unless the Court is made privy to the Minister’s reasons for declaring the applicant’s husband an undesirable inhabitant of or visitor to Zimbabwe, and has the opportunity to hear the applicant’s submissions in light of such reasons, it will not be able to determine whether the interference with the applicant’s right to freedom of movement has a constitutional basis; in other words, whether such interference is reasonably justifiable in a democratic society.

I am therefore satisfied this is a proper case for this Court to invoke s 18(12) of the Constitution.

It is in the premises ordered as follows:

That the Registrar of this Court shall make arrangements for the second respondent to appear before this Court on a suitable date and give evidence in camera on why the applicant’s husband, Leopold Alain Sitchet-Njanko, was deemed to be an undesirable inhabitant of or visitor to Zimbabwe.

CHIDYAUSIKU CJ: I agree.

SANDURA JA: I agree.

ZIYAMBI JA: I agree.

MALABA JA: I agree.

Kantor & Immerman, applicant’s legal practitioners

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