OKEY v CHIEF IMMIGRATION OFFICER & ANOR 2014 (2) ZLR 210 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights — right to personal liberty (s 49) — detention without trial — permissible where authorised by law and for just reasons — detention of prohibited person in terms of Immigration Act — not a contravention of s 49 D

Headnote

The applicant, a Nigerian citizen, had been detained by the immigration authorities pending deportation from Zimbabwe. He had been in Zimbabwe since March 2004. He got married to a Zimbabwean citizen, the marriage being solemnised in terms of the Marriage Act [Chapter 5:11].

Following the marriage, the applicant's wife made an application for the applicant to be granted a residence permit. He was issued with a residence permit for one year; when it expired, it was extended for another two years. However, the applicant's wife died almost a year before the expiration of his residence permit.

After the death of his wife and when his residence permit was about to expire, the applicant made an application to the first respondent to renew his residence permit. Instead of the applicant being granted two year permits, the first respondent started to grant him 30 day or 60 day permits. After about a year the application to renew his residence permit was completely refused by the first respondent, who did not furnish him with the reasons for the refusal. After the expiry of the residence permit, the applicant marriedhis late wife's sister, again in terms of the Marriage Act.

The applicant argued that by virtue of being married to a Zimbabwean citizen he had the right to remain in Zimbabwe. He further argued that the first respondent had no right to refuse the application for a residence permit without furnishing him with the reasons for refusal. As a result, the applicant challenged the refusal to grant him the permit by the first respondent. He sought an order setting aside the refusal to renew the residence permit, his application being granted in default. The respondents applied for rescission of the order, but that application was still to be heard.

It was argued that the applicant's arrest was arbitrary, contemptuous and in c violation of the existing court order. There is no basis for the first respondent to declare the applicant a prohibited person as he had not committed any offence. It was further submitted that by virtue of being married to a Zimbabwean citizen, the applicant now fell in the bracket of persons who are not prohibited persons in terms of s 15(1) of the Immigration Act [Chapter 4:02]. By virtue of his second marriage, the applicant was protected by s 12(1)(a) of the Immigration Regulations, 1988 and the provisions of the Immigration Act.

The first respondent argued that the permit which was issued to the applicant following his first marriage was one issued to an alien on the strengthof a marriage to a Zimbabwean citizen. Such a permit is terminated by a decree of divorce, death of the citizen spouse or in situations where the alien becomes prohibited. When the applicant applied for a permit following the death of his first wife but before his second marriage, there was no basis whatsoever for the renewal of the permit. The applicant now became a prohibited person and had done nothing to regularise his status, even after his second marriage. He had not formally been declared a prohibited person by the Minister of Home Affairs.

Held, that although the applicant had not formally been declared a prohibited person, he became one by remaining in Zimbabwe without a permit in contravention of s 29(1)(a) of the Immigration Act . Under s 14(1)(i) of the Act, any person who has entered or remained in Zimbabwe in contravention of the Act is a prohibited person. Upon becoming a prohibited person, the applicant should have left Zimbabwe. Section 17(1)(a) of the same Act disentitled him to remain in Zimbabwe. Although under s 15(2)(d) a person who is married to a Zimbabwean citizen shall not be a prohibited person, in this case his status of being a prohibited person preceded his second marriage. The subsequent marriage did not reverse the status of a person who had become a prohibited person before the marriage.

Held, further, that if, as here, a person becomes a prohibited person by operation of law, the court has no power to reverse that status. Even the Minister of Home Affairs is not empowered by s 14(7) of the Act to revoke a prohibited person's status which is acquired in terms of s 14(1)(i). In any event, the court order obtained earlier did not give any instructions to the respondents, either to issue the applicant with a permit to enable him to remain in Zimbabwe or to interdict the first and second respondents from removing the applicant from Zimbabwe while he regularised his stay. Nor did the order mean that the first respondent was obliged to issue a permit, irrespective of whether or not the applicant met the requirements for one.

Held, further, that the power under s 8(2) of the Act to detain a person pending removal did not depend on the person having been convicted of any offence, nor did it violate s 49(1) of the Constitution. That section does not make it a requirement that in every case where a person is deprived of his liberty he ought to have been charged with a criminal offence and that there ought to be a trial. There can be instances where a person is deprived of his liberty without trial in terms of s 49(1)(b), but such deprivation should not be arbitrary or without just cause. Where there is deprivation of personal liberty without a criminal charge having been preferred, the deprivation should be authorised by law or be in compliance with the law or it should be for reasons that are just in their substance. This means that the substantive validity of a decision to detain a person must be considered.

Held, further, that here, there was just cause in depriving the applicant of his personal liberty. His detention was not arbitrary because it was done in terms of s 8(2)(a) and (b) of the Immigration Act. He was a prohibited person who refused to leave Zimbabwe after the expiration of his spousal residence permit. When the decision to refuse him the permit was set aside by the court, he did not, for nearly two years, regularise his position.