(CCZ 114\/13) [2014] ZWCC 5<\/p>\n
ZIYAMBI JA<\/strong>: \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The applicant is a citizen of Zimbabwe by birth.\u00a0 He initially sought a declaratory order confirming his right to a Zimbabwean passport and certain ancillary relief.\u00a0 He also sought an order compelling the second respondent to endorse his South African passport with an unrestricted and indefinite residence permit.<\/p>\n THE BACKGROUND<\/u><\/strong><\/p>\n The appellant was born in Zimbabwe.\u00a0 One of his parents is Zimbabwean by birth while the other is South African by birth.\u00a0 Sometime in 2003 the applicant left on a Zimbabwean passport for the United Kingdom in order to take up employment in that country.\u00a0 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.<\/p>\n 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.\u00a0 He returned to the United Kingdom where he was able to obtain a South African passport by virtue of his mother\u2019s birth in South Africa.<\/p>\n In mid 2012, the applicant returned home permanently.\u00a0 Upon presentation of his South African passport to the second respondent\u2019s officials, he was advised to apply for a residence permit, which he did.\u00a0 A 2-year residence expiring on 16 August 2014 was granted to him by the second respondent.<\/p>\n 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. \u00a0The application was declined with the advice that the applicant should first acquire a Zimbabwean passport. \u00a0On 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.\u00a0 No response has been received to date.<\/p>\n […]<\/p>\n CONCLUSION<\/u><\/strong><\/p>\n 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.\u00a0 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.\u00a0 Any law which is inconsistent with the Constitution is void to the extent of the inconsistency<\/a>.\u00a0 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.<\/p>\n A purposive interpretation of the right conferred in s 66 read with the applicant\u2019s entitlement to dual citizenship is that the applicant\u2019s 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.\u00a0 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.<\/p>\n Because of the firm stance taken by Mr Pedzisai<\/em>, 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.<\/p>\n Accordingly, the application is allowed and the following order is issued:<\/p>\n\n