Judgment record
Neha Patel v Registrar General of Citizenship and Principal Director of Immigration and The Attorney General of Zimbabwe and The Minister of Home Affairs and Cultural Heritage and The Minister of Foreign Affairs and International Trade
HH 701-18HH 701-182018
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NEHA PATEL
versus
REGISTRAR GENERAL OF CITIZENSHIP
and
PRINCIPAL DIRECTOR OF IMMIGRATION
and
THE ATTORNEY GENERAL OF ZIMBABWE
and
THE MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE
and
THE MINISTER OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE
HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 24, 25 and 31 October 2018
OPPOSED APPLICATION
T.R Mugabe, for the applicants
Mr Ndoro, for the 1st respondent
Mr Shumba, for the 2nd, 3rd and 5th respondents
CHIRAWU-MUGOMBA: The applicant seeks the following declaratur:- that
1. It is declared that the applicant Neha Patel is a citizen of Zimbabwe by birth as
contemplated by section 36(1) of the Constitution of Zimbabwe, 2013 with all rights,
duties and entitlements attendant thereto including but not limited to a Zimbabwean
passport.
2. The 1st respondent shall forthwith, and upon sight of this order issue the applicant
with a Zimbabwean Identity card and passport;
3. Applicant’s legal counsel are granted leave to serve this order; and
4. Costs of this application on an attorney and client scale to be borne by the 1 st
respondent.
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Applicant’s contention is as follows:- The application has been necessitated by the
need for a final and definitive statement as to her status and rights on account of the refusal of
the first respondent to entertain her request for confirmation of her status as a citizen of
Zimbabwe by birth. She was born in Memphis in the United States of America (though she
actually stated United States of America Zimbabwe in her founding affidavit). Her father
was born in Zimbabwe whilst her mother was born in India but is a citizen of Zimbabwe. At
the time of her birth, her father was a citizen of Zimbabwe and ordinarily resident in
Zimbabwe. In support of her contention, she attached copies of bank statements, income tax
statement and medical aid statement from the year of her birth. She once held a Zimbabwean
identity card and passport. When her passport expired, she sought to renew it but was told
that she is not a citizen of Zimbabwe and they (not specified who she meant) needed to look
into the issue of dual citizenship. She attempted to seek confirmation of her citizenship status
through her legal practitioners but to no avail. She avers that she is a citizen of Zimbabwe by
birth because at the time of her birth, her father was a citizen and ordinarily resident in
Zimbabwe as appears on her birth certificate. She therefore has a constitutional right to hold
citizenship of another country without the need to renounce the one in favour of the other.
The first respondent in conjunction with the second respondent should be compelled to set up
facilities to enable the applicant as a citizen to assert and enjoy her constitutional right. If this
request does not find favour with the court, she must be allowed to nominate a representative
in Zimbabwe to submit documents for purposes of verification and confirmation and once
done, then she can travel to Zimbabwe. Over the years, she is being treated as a foreigner and
has to pay visa fees upon entry. The second respondent should be ordered to grant the
applicant unconditional permanent residence status in her passport.
The first respondent opposed the application. The first respondent averred that dual
citizenship was acceptable in Zimbabwe but confirmation of citizenship is a procedure done
at its offices if there is suspicion of an individuals citizenship status. The applicant was
requested to report to the office of the first respondent but she did not heed the call.
Furthermore the applicant did not meet the requirements of s 36 (1) of the Constitution that
refer to individuals born in Zimbabwe.
The second respondent also opposed the application. He averred that the applicant
must show that her father was a citizen of Zimbabwe. Bank, income tax and medical aid
statements are not indicative of one being a citizen or ordinarily resident in a country.
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At the hearing, T.R Mugabe applied for an amendment to the draft order to read s 36
(2) instead of s 36 (1). I allowed the amendment after considering that no prejudice will be
faced by the respondents as the applicant made it clear in her affidavit that her application
was based on the fact that her father was ordinarily resident in Zimbabwe at the time of her
birth.
The issue of dual citizenship is already settled in this jurisdiction -see Whitehead v
Registrar-General and Ors 2015(1) ZLR 582; Mawere v Registrar-General and Ors 2013 (1)
ZLR 578 and Madzimbamuto v Registrar-General and Ors 2014 (1) ZLR 801. The
applicant’s assertion therefore that this is a central issue in this matter holds no water. The
applicant despite previously holding a Zimbabwean passport and an identity card does not
seek to challenge the non-renewal of her passport on the basis of continuance of citizenship
after the 22nd of May 2013 as per s 43 (1) of the Constitution. She has put all eggs in the
basket of her father’s residence in terms of s 36 (2) (a). Her application must therefore be
considered from that basis.
An applicant relying on s 36 (2) (a) must show that (1) they were born outside
Zimbabwe and (2) that their parent is a Zimbabwean citizen and (3) that at the time they
were born, their parent was ordinarily resident in Zimbabwe. (Emphasis mine). The
requirements are cumulative. The applicant has shown that she was born outside Zimbabwe
and that her father was born in Zimbabwe which would make him prima facie a citizen of
Zimbabwe. The matter therefore turns on whether or not the applicant’s father can be said to
have been ordinarily resident in Zimbabwe at the time of the applicant’s birth, which is the
2nd of February 1986.
In 1917 the court in Robinson v Commission of Taxes, TPD 542 @ 547-8, laid down
the following guidelines in the interpretation of the word residence;
"There are however certain considerations which may afford a guide to its interpretation. In
the first place, it is not synonymous with domicile. Nor is it necessarily permanent. Nor is it
exclusive. But on the other hand a mere passer-by or casual visitor is not a resident, although
in a sense he may be said to reside during the period of his visit. Perhaps the best general
description of what is imported by residence is that it means a man's home or one of his
homes for the time being; though exactly what period or what circumstances constitute home
is a point on which it is impossible to lay down any clearly defined rule. Clearly physical
presence for a prolonged period would constitute residence. And conversely if physical
presence is entirely wanting even though an establishment is maintained for a man's family,
residence would as a rule be negatived: Turnbull v Solicitor of Inland Revenue (42 Scot. L.R.
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15). Again the maintenance of an establishment coupled with intermittent or occasional
dwelling is sufficient to constitute residence; see Inland Revenue v Cadwallader (ibid. 117),
where a man who took a shooting box for three years and lived there two months in each year
was held to be resident. Attorney-General v Coote (18 RR 692) was a somewhat similar case.
There the defendant leased a house in London indefinitely and lived there a few months in
every year, and it was considered that he was resident.
It appears therefore that if a man sets up an establishment in a country and lives there at
intervals he is resident in that country; however many similar residences he may have
elsewhere. And the result is the same whether the establishment is for a defined period or
whether the intention expressed or to be implied from the circumstances is to prolong the
arrangement for a period exceeding the limit (whatever that may be) of casual visitation. If
the case is one of physical presence without an establishment a similar test must be applied.
When the intention is to prolong the presence beyond the possible limits of a casual visit, and
that intention is not abandoned, it seems to me that that intention would constitute residence,
the intention of course being gleaned from all the circumstances of the case."
In Zwyssig v Zwyssig, 1997 (2) SA 467, the court had occasion to deal with the
meaning of ‘ordinarily resident’, VAN SCHALKWYK aptly stated as follows @ p 471-
“It has been repeatedly emphasised that it is impossible to lay down a definition of the
concept of residence. There are a number of factors which may be taken into account, each of
which may go some way towards proving that residency has been established. In a particular
case, the absence of one or more of these factors may be more than compensated by the
presence of others…………The duration of the stay, the acquisition of property and the
procurement of employment are each obviously more significant than for instance the
frequency of the visits, the number of friends or acquaintances resident within the area, or the
amount of money spent on each visit, all of which is equally compatible with the habits of a
peripatetic business executive.”
Can it therefore be said that the evidence produced by the applicant shows that her
father was ordinarily resident in Zimbabwe at the time of her birth? T.R Mugabe attempted
to make much out of the fact that the applicant’s father was exercising his right to freedom of
movement by travelling frequently. I do not read the authorities to mean that he needed to be
physically present in Zimbabwe all the time. The question of residency will always be one of
fact –see Cohen v Commissioner for inland revenue 1946 A.D @ 174. There is no evidence
as to where the applicant’s father was at the time of her birth. The mere noting of an address
on a birth certificate does not prove residency. It has not been explained how the few copies
of bank statements prove residency. It has also not been explained how the attached tax
assessment and CIMAS claim prove residency. The applicant needed to have shown much
more. In other words, enough facts have to be put before the court for it to draw a legal
conclusion that the applicant’s father was ordinarily resident in Zimbabwe. The approach by
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the applicant to the issue of residency is one that is casual. In my view, the applicant has
failed to meet the requirements of s 36 (2) (a) of the Constitution. My finding will not render
her stateless as she is a citizen of the United States of America.
In view of my finding, it will not be necessary for me to consider the other relief
sought by the applicant. I also do not consider that an order for costs on a punitive scale is
warranted. The issues raised are pertinent.
Disposition
1. The application be and is hereby dismissed with costs.
T.R.M Legal Counsel, applicant’s legal practitioners
Thondhlanga and Associates, 1st respondent’s legal practitioners
Civil Division of the Attorney-General’s Office, 2nd, 3rd and 5th respondents’ legal
practitioners