Faisal Muhammad and Sheikh Abdul Salam v Principal Director of Immigration and Co-Ministers of Home Affairs

HH 77-2011
                                                                                        HC 2395/11



FAISAL MUHAMMAD
AND
SHEIKH ABDUL SALAM
versus
PRINCIPAL DIRECTOR OF IMMIGRATION
and
CO-MINISTERS OF HOME AFFAIRS



HIGH COURT OF ZIMBABWE
MUTEMA J
HARARE, 14 March 2011


E. Mugwadi with S. Takundwa, for the applicants
Miss S. Kundai, for the respondents

       MUTEMA J: The applicants who are father and son hail from Pakistan. They came to
Zimbabwe sometime in 2008 as investors. On 3 October, 2008 they were granted an investment
licence by the Zimbabwe Investment Authority (ZIA). Their investment vehicle is styled Tonia
Investments (Pvt) Ltd in which they hold 50% shareholding each. That investment licence was to
endure up until 2 October 2010. It was renewed on 8 October 2010 to run for another 2 years up to
7 October 2012. In the investment licence the description of the investment is given as,
“Manufacture of blankets, overalls, socks and jeans.’’ Under description and value of assets
invested or to be invested it is written:      Foreign Currency injection US$200 000: Capital
Equipment from Abroad US$450 000-00.’’
       The licence stipulated that the investment assets described at their estimated value were to
be invested within 2 years of approval unless otherwise agreed to by Zimbabwe Investment
Authority. Incorporated in the licence are special conditions one of which states:
       “1. This licence is issued on the express condition that the Company/Applicant will only
           engage in the activity(ies) stated in the licence and for no other purpose without the
           written consent of Zimbabwe Investment Authority.”
       The current registered office of the company is 24 South Avenue, Harare. The company
has what it termed an outlet shop at number 31 Cameron Street, Harare.
On the strength of being approved investors the first applicant, his wife and three children, and I
presume the same obtains in respect of the second applicant, had been granted residence permits
on 8 July, 2009 enduring from 1 July, 2009 to 30 July 2010. Buoyed by the renewal of the
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investment licence on 8 October, 2010 alluded to supra the applicants applied for residence permit
extension. The date for the application is not disclosed but on 3 January, 2011 the principal
director for immigration wrote to both applicants stating:
“Thank you for application for an extension of the Residence permit.
I regret to advise that, after careful consideration, it has been decided that no further extension of
the Permit will be allowed.
       It is now necessary that the above named should go with this letter to his nearest
Immigration Office so that departure arrangement may be made.’’
On 2 February 2011 the applicants were issued with a Notice to visitor by the immigration
department valid from 2 February 2011 to 1 March 2011 advising them to report to immigration at
Harare Airport to leave the country.
       On 7 February, 2011, the applicants’ legal practitioners wrote to the principal director of
the department of immigration appealing to the same official against his/her decision to refuse
residence permit extension and requiring applicants to depart from the country on or before 1 st
March, 2011. The applicants wanted the principal director to reverse his/her earlier decision and
grant them extension of their residence permits for the same duration as their investment licence
by Zimbabwe Investment Authority.
       The papers do not ventilate what fate befell the appeal but presumably it was turned down
for on 24 February, 2011 the applicants’ legal practitioners lodged an appeal to the Co-Ministers
of Home Affairs appealing against the principal director of immigration’s decision not to extend
their investor’s residence permits. On 28 February, 2011 the Secretary for Home Affairs wrote to
the applicants’ legal practitioners acknowledging receipt of the appeal and advising that the Co-
ministers were still considering the appeal and that if further assistance was required they should
approach the department of immigration with a copy of the letter.
       Then on 7 March 2011 the applicants lodged an urgent chamber application in this court
seeking a Provisional Order whose interim relief sought is couched in these terms:


       “ INTERIM RELIEF SOUGHT
       Pending the determination of this matter, it is ordered that:
       1.      First Respondent be and is hereby ordered to issue Applicants with Provisional
               Restriction
               Notices valid for (90) ninety days and renewable until this matter is finalised.
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       2.    First respondent be and is hereby ordered not to interfere with the business operations
            of the applicant (sic) until this matter is finalised.

       3.   First respondent, his officials or assigns be and are hereby interdicted from deporting
            or detaining applicants and members of their families that is to say wives and minor
            children”.

       The applicants contend that to date the total value of their investment stands at US$98 450-
00 excluding “the almost US$45 000-00” put into infrastructural development projects such as the
outlet sales shop constructed at number 31 Cameron Street. In January 2010 immigration officials
impounded first applicant and his family’s passports without reason until 5 February, 2011.It is
due to this passport impound that the applicants failed to meet the threshold of the Zimbabwe
Investment Authority licence to invest US$200 000-00 and capital equipment from abroad worth
US$450 000-00 as first applicant could not travel outside the country without a passport.
       The respondents deny that the alleged passports were impounded and aver that it is the first
applicant who surrendered his wife’s and children’s passports as surety. They contend that
applicants are failed investors hence the refusal to renew their residence permits. Applicants were
accorded several opportunities since 2008 to implement their investment project to no avail. The
so-called factory at 24 South Avenue is not a factory and the area is zoned for retail and not
manufacturing. Applicants, contrary to their investment licence terms focused on retail via the
sales shop at 31 Cameron Street.
       The Court conducted an inspection in loco at 24 South Avenue as well as at 31 Cameron
Street. The following observations were made.
at 24 South Avenue
It is located at the back of a retail shop. Comprises two rooms-one small (the factory) and one big
(the warehouse). Access to the premises is via a sanitary lane. The two rooms are being leased
from one Unas Mahomed Hosein Meman at a rental of $500-00 per month. In the small room
were 8 sewing machines with some workers sewing bedsheets.
In the warehouse were:
      . bundles of fabrics material for making bed sheets.
      3 bundles of fabric material for making worksuits/overalls
      blankets
      44 bundles of rexin material for upholstering chairs, sofas and baby cots covers,
      20 bundles of fabric material for making ladies suits.
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      100 finished bomber jackets
      35 boxes of shirts imported from Bangladesh, each box containing 30/40 shirts
      20 bundles of blanket material
      5 x 2,3 m bed sheets
   Applicants do not know whether there exists a permit from the city council authorising the
operation of a factory on the premises.
at 31 Cameron Street
On the outside wall it is written:
       Rida Fabrics
       Bedsheet
       Curtaining
       Mandy
       Peticoat
       Polycotton
Inside are:
                 cash register
                 finished bedsheets and pillows on shelves
                 blankets
                 material for making baby waterproofs
                 material for petticoat lace
                 5 suitcases displayed for sale
                 finished worksuits
                 several bundles of fabric material for bedsheets
                 several bundles of mandy fabric for making school uniforms
                 bundles of fabric material for making petticoats
                 bundles of material for upholstery (sofas and chairs)
                 bundles of material for making school uniform shirts
                 bundles of material for making kitchen tables cover cloths
                 bundles of material for making aprons
                 bundles of material for making curtains
                 bundles of rexin material
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               a shop retail licence from the city council to sell class 7 items only ie. textiles and
                fabrics


        The foregoing observations compelled the first respondent to refuse to renew the
applicants’ residence permits and the first respondent said it is a mystery why Zimbabwe
Investment Authority renewed the applicants’ investment licence when it was clear that not only
were the applicants not complying with the terms and conditions of their investment licence but
were deviating from the first special condition without the written consent of Zimbabwe
Investment Authority. The applicants could not profer a plausible reason for this deviation.
        I found it unnecessary to deal with the merits of the matter because the application can
simply be disposed of on the issue of urgency. In this regard, the words of CHATIKOBO J . in
Kuvarega v. Registrar-General & Another 1998(1) ZLR 188(HC) at 193 bear useful repetition for
clarity. He said,
        “There is an allied problem of practitioners who are in the habit of certifying that a case is
        urgent when it is not one of urgency. What constitutes urgency is not only the imminent
        arrival of the day of reckoning; a matter is urgent, if at the time the need to act arises, the
        matter cannot wait. Urgency which stems from a deliberate or careless abstention from
        action until the deadline draws near is not the type of urgency contemplated by the rules. It
        necessarily follows that the certificate of urgency or the supporting affidavit must always
        contain an explanation of the non-timeous action if there has been a delay. Those who are
        diligent will take heed. Forewarned is forearmed.”

        In casu, if what the applicants allege is true, viz that immigration officials impounded their
passports for 13 months without reason from January 2010 to 5 February 2011 thereby scuttling
the fulfilment of the terms and conditions of their investment licence, it is a wonder why the
applicants sat back unperturbed doing nothing about it. The papers do not say why the applicants
remained in this near catatonic state.
        Whilst their passports were still under impound the applicants were able to apply to
Zimbabwe Investment Authority for extension of their investment licence but on 31 January, 2011
they were written letters being advised that their application for residence permit extension had
been refused. In the letters the applicants were directed to go with the letters to the nearest
immigration office so that departure arrangements could be made. They did not approach the court
on an urgent basis. In fact they did nothing. On 2 February, 2011 the applicants were served with a
Notice to Visitor for departure expiring on 1 March, 2011. Instead of approaching this court on
third time the need to act arose, the applicants decided that the matter could still wait. They
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embarked on an apparently futile exercise of appealing to the same official who had refused to
grant extension of their residence permits. That was on 7 February 2011. It was only on 28
February, 2011 that the applicants lodged an appeal to the co-minister of Home Affairs who on the
same date advised applicants to approach the immigration department with a copy of the
acknowledgement of receipt of the appeal for further assistance. Applicants argued that this letter
of acknowledgement of the appeal constituted an instruction by the co-ministers to immigration to
allow applicants to remain in the country pending determination of the appeal by use of the words
“ For further assistance please approach the department of immigration with a copy of this letter,”
which instruction immigration are disobeying. Looking at the ordinary grammatical meaning of
the wording employed I am unable to glean such meaning as contended for by the applicants.
       It was only on 7 March, 2011 that this application was filed in this court on purported
urgency- some 5 days after the expiry of the Notice to Visitor period. Neither the certificate of
urgency nor the founding affidavit contains any explanation for the delays at each and every stage
when the need to act arose alluded to supra. The urgency claimed by the applicants is not one
contemplated by the rules of court but is one which stems from a deliberate or careless abstention
from action until the deadline had passed-something akin to shutting the stable door after the horse
had bolted.
       In view of the foregoing reasons the application is found not to be urgent. It must await its
turn in the queue. In the result the application is dismissed with costs.




Mugwadi & Associates, applicants’ legal practitioners
Civil Division of the Attorney-General’s Office. respondents’ legal practitioners