Source: Constitutional Court of Zimbabwe
(CCZ 114/13)  ZWCC 5
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 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 second respondent concedes that the applicant is entitled to dual citizenship by virtue of the Constitution but insists that he be treated as an alien if he enters Zimbabwe using a South African passport. This, it was submitted, is because the second respondent is governed by the Regulations. It must be emphatically stated here that the Regulations are governed by the Constitution and not the Constitution by the Regulations. Any law which is inconsistent with the Constitution is void to the extent of the inconsistency. To say that the applicant, as a citizen by birth, is entitled to dual citizenship conferred by the Constitution and then to deny him the right to freely enter and leave Zimbabwe, which right is afforded to all citizens in terms of s 66, on the grounds that he has presented a foreign passport, is to deprive him of the benefits of the enjoyment of two fundamental rights conferred on him by the Constitution of Zimbabwe, namely the right to dual citizenship inherent in his birthright as a Zimbabwe citizen by birth and the right to freedom of movement.
A purposive interpretation of the right conferred in s 66 read with the applicant’s entitlement to dual citizenship is that the applicant’s right to enter, remain and leave Zimbabwe cannot be restricted even when he presents or travels upon a foreign passport. It is for the Regulations to be brought into conformity with the Constitution and not for the Constitution to conform to the Regulations. It is also for the framers of the Regulations to decide how best to align the Regulations with the Constitution in order to give effect to the Constitutional rights of Zimbabwean citizens.
Because of the firm stance taken by Mr Pedzisai, on behalf of the second respondent, that the applicant will be treated as an alien if he presents a South African passport to the immigration officials upon entry into Zimbabwe, we consider that it is necessary, in this case, to grant an order in the terms sought by the applicant.
Accordingly, the application is allowed and the following order is issued:
- It is declared that the applicant is a citizen of Zimbabwe by birth with entitlement to dual citizenship.
- The second respondent is hereby ordered to endorse in the applicant’s South African passport upon presentation thereof to him, the applicant’s right to unrestricted and unconditional residence in Zimbabwe.
Download judgment from Veritas Zim: http://www.veritaszim.net/node/1415