FARAI     DANIEL     MADZIMBAMUTO

v

1. THE     REGISTRAR     GENERAL     (2)     PRINCIPAL DIRECTOR     OF     IMMIGRATION     (3)     MINISTER     OF     HOME     AFFAIRS    

(4)     ATTORNEY     GENERAL

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA,

GWAUNZA JA, GARWE JA, GOWORA JA,

HLATSHWAYO JA, PATEL JA & GUVAVA JA

HARARE, FEBRUARY 12 & JUNE 25, 2014

Mrs J. B Wood with her E H Mugwadi, for the applicant

S Pedzisayi, for the respondents

ZIYAMBI JA: The applicant is a citizen of Zimbabwe by birth.  He initially sought a declaratory order confirming his right to a Zimbabwean passport and certain ancillary relief.  He also sought an order compelling the second respondent to endorse his South African passport with an unrestricted and indefinite residence permit.

THE BACKGROUND

The appellant was born in Zimbabwe.  One of his parents is Zimbabwean by birth while the other is South African by birth.  Sometime in 2003 the applicant left on a Zimbabwean passport for the United Kingdom in order to take up employment in that country.  On the expiry of his passport, he attempted to get a new one through the Zimbabwean Embassy in London but was referred to Harare, the embassy no longer having the capacity to issue passports.

The applicant returned home briefly but due to the chaotic situation and long queues then prevailing at the passport office he failed to submit an application for a passport.  He returned to the United Kingdom where he was able to obtain a South African passport by virtue of his mother’s birth in South Africa. 

In mid 2012, the applicant returned home permanently.  Upon presentation of his South African passport to the second respondent’s officials, he was advised to apply for a residence permit, which he did.  A 2-year residence expiring on 16 August 2014 was granted to him by the second respondent.

When the new Constitution was promulgated, the applicant applied to the second respondent for his acceptance as a citizen, and therefore a permanent resident, by making an endorsement of his permanent residence status on his South African passport.  The application was declined with the advice that the applicant should first acquire a Zimbabwean passport.  On 28 October 2013 the applicant wrote to the second respondent advising that he now had a Zimbabwean passport and requesting an endorsement of his permanent residence status on his South African passport.  No response has been received to date.

THE ORDER SOUGHT

At the hearing, the Court was advised that the order initially sought against the first respondent was no longer being pursued as the applicant had been granted a Zimbabwean passport.  The order now being sought is set out in the draft order produced to the Court by Mrs Wood.  It prays that:

“The applicant be and is hereby declared to be a citizen of Zimbabwe by birth with entitlement to dual citizenship;

The second respondent shall with immediate effect record in the Applicant’s South African passport his right to unrestricted and unconditional residence in Zimbabwe.”