Salem v. Chief Immigration Officer of Zimbabwe and Another

SALEM v CHIEF IMMIGRATION OFFICER, ZIMBABWE, AND ANOTHER 1995 (4) SA 280 (ZC)
ZIMBABWE SUPREME COURT
GUBBAY CJ, KORSAH JA and EBRAHIM JA JA
1994 October 31; November 8
Civil Application No 559/94

Flynote

Constitutional law - Human rights - Right of freedom of movement in terms of s 22(1) in chap III of Constitution of Zimbabwe - Ruling by Court that female citizen of Zimbabwe, married to alien national of another country, entitled by virtue of protection of freedom of movement under s 22(1) to reside permanently with her husband in any part of Zimbabwe - Such ruling extended so as to accord husband entitlement to written authority to remain in Zimbabwe on same standing as any other alien who is a permanent resident and to same rights as are enjoyed by all permanent residents of Zimbabwe, including right to engage in employment or other gainful activity.

Headnote

It has long been recognised that there is a reciprocal duty of support as between husband and wife and the duty endures stante matrimonio. It depends on the one spouse's need for support and the other's ability to provide it. In practice, however, the primary duty of maintaining the household rests upon the husband. (At 283B-D.) He must do so on a scale commensurate with the social position, financial means and standard of living of the spouses. He cannot evade that responsibility by showing that his wife is receiving assistance from blood relations, friends or charitable institutions. It follows that, unless the protection of the freedom of movement of a wife who is a Zimbabwean citizen, guaranteed under s 22(1) of the Constitution of Zimbabwe, embraces the entitlement of that wife, residing permanently with her alien husband in Zimbabwe, to look to him for partial or total support, depending upon her circumstances, the exercise of her unqualified right to remain in Zimbabwe, as a member of a family unit, is put in jeopardy. (At 283E-G.)

The Court accordingly ordered that, by virtue of such wife's right under s 22(1) of the Constitution to have her husband residing with her in any part of Zimbabwe (see Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others 1955 (2) SA 182 (ZS)) (a) the Chief Immigration Officer of Zimbabwe issue to the applicant's husband, within 30 days, such written authority as was necessary to enable him to remain in Zimbabwe on the same standing as any other alien who was a permanent resident; and (b) the applicant's husband be accorded the same rights as are enjoyed by all permanent residents of Zimbabwe, including the right to engage in employment or other gainful activity in any part of Zimbabwe and that the Chief Immigration Officer impose no restriction upon such right. (At 283H/I-284A.)

The Court cited the following decided cases in its judgment:

Ex parte Breull; In re Bowie (1880) 16 Ch D 484 (CA)

Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A)

Gammon v McClure 1925 CPD 137

Karrim v Karrim 1962 (1) PH B4 (D)

McKelvey v Cowan NO 1980 (4) SA 525 (Z) (1980 ZLR 235 (GD))

Miller v Miller 1940 CPD 466

Ex parte Pyke 1948 (1) SA 526 (SR)

Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others 1995 (2) SA 182 (ZS)

S v Naicker 1967 (4) SA 214 (N)

Witham v Minister of Home Affairs 1989 (1) SA 117 (ZH) (1987 (2) ZLR 143 (HC))

Woodhead v Woodhead 1955 (3) SA 138 (SR) (1955 SR 70).

Case Information

Direct application to the Supreme Court of Zimbabwe in terms of s 24(1) of the Constitution of Zimbabwe. The facts appear from the judgment of Gubbay CJ.

A P de Bourbon SC for the applicant.

No appearance for the respondents.

Cur adv vult.

Postea (November 8).

JUDGMENT

Gubbay CJ: In the recent decision in Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others SA 64/94 (not yet reported)*[1] this Court declared that a female citizen of Zimbabwe, married to an alien, being a national of another country, is entitled by virtue of the protection of freedom of movement under s 22(1) (in chap III) of the Constitution of Zimbabwe to reside permanently with her husband in any part of Zimbabwe. For to prohibit the husband of a marriage, genuinely entered into with the mutual intention of establishing a consortium omnis vitae, from residing in Zimbabwe would undermine and devalue the exercise of the fundamental and unqualified right of the wife, as a citizen and member of a family unit, to live here.

The present application brought by Patricia Ann Salem, née Campbell, a citizen of Zimbabwe by birth and a permanent resident of the country, seeks to extend the ruling in Rattigan to embrace within her own mobility rights the right of her husband, Charles Christopher John Salem, to lawfully engage in employment or other gainful activity in Zimbabwe.

The applicant met her husband, a British subject, in early April 1992, while on a working holiday in South Africa. They fell in love and were married in Harare on 16 April 1994. Both desire to establish a fixed abode in Zimbabwe. It is here that the applicant's parents and siblings reside.

On 2 June 1994, Mr. Salem applied to the first respondent, the Chief Immigration Officer, for the issue of a residence permit. He was advised in a letter written on 23 August 1994 by the second respondent, an immigration officer, that it was necessary that he leave the country in order to await the outcome of the application. An immediate query as to the reason for imposing the requirement elicited the following response from the second respondent:

'I wish to advise that the Supreme Court judgment does not state that foreign husbands shall not be required to apply for permits; neither does it say the granting of such permits should be automatic. What we are talking about in this case is purely an immigration requirement which has nothing to do with the Supreme Court judgment.

I wish to advise once again that your client must leave the country and await the outcome of his application outside the country, and his departure must be confirmed.'

In the absence of a stated suspicion that the marriage was one of convenience, the second respondent, by his insistence that Mr. Salem was to leave the country, knowingly acted in defiance of the applicant's constitutional right to have her husband living with her in Zimbabwe. He disdainfully disregarded a judgment of this Court that clearly enunciated the rights of three citizen wives whose situation was indistinguishable from that of the applicant. Such an attitude by a Government official is deserving of censure. It enjoins this Court, so as to ensure that such rights are given effect to, to issue directives to the Chief Immigration Officer, rather than adopt the preferred expedient of merely declaring their existence under the Constitution.

The applicant deposed that she is pregnant and due to give birth some time in March 1995. With the advancement of her pregnant condition and after the birth of the child, she will not be able to continue in employment; she will need her husband to support first her, and then herself and their child. Her founding affidavit ends with these words:

'If my husband cannot work to support me and my unborn child then I will be forced to leave Zimbabwe, which surely is against the spirit of the order (sic). If he leaves and is denied entry whilst his application is being considered at such future date as suits the Department, the result will be the same.'

Although the application was served on both the respondents, neither filed an opposing affidavit. Service was also effected upon the Civil Division of the Attorney-General's Office. Thereafter, notice of set down was served upon the Civil Division, as were the heads of argument prepared by the applicant's counsel. No response was forthcoming. At the hearing both the respondents were in default of appearance.

It was submitted by Mr. De Bourbon, who appeared for the applicant, that to construe the phrase 'the right to reside in any part of Zimbabwe' in s 22(1) of the Constitution as merely entitling a citizen wife to have her alien husband living with her in the country, without affording him the ability to engage in gainful employment, would be unduly restrictive of that fundamental right. Frequently it would lead to the dilemma cited by the applicant. One in which, notwithstanding a common desire to locate the matrimonial home in Zimbabwe, a citizen wife, through inability adequately to support her alien husband and children, is compelled by necessity to forego her right to remain living in the country and accompany her husband to a land where he is not prohibited from earning a livelihood.

I agree that a generous and purposive interpretation is to be given to the protection expressed in s 22(1). This was so held in Rattigan and Others v Chief Immigration Officer, Zimbabwe, and Others (supra).

The word 'reside' is ambiguous. It may have a variety of meanings in accordance with the intent and object of the enactment in which it appears. See Ex parte Breull; In re Bowie (1880) 16 Ch D 484 (CA) at 487 ([1874-80] All ER Rep 646); Ex parte Pyke 1948 (1) SA 526 (SR) at 527; S v Naicker 1967 (4) SA 214 (N) at 222H. To ascribe to it the strict meaning of the place where an individual eats and sleeps after the work of the day is done would be to diminish the guaranteed right of the citizen wife who, through such causes as old age, poverty, illiteracy, redundancy, physical or mental disability, is unable sufficiently to provide for her alien husband and children in Zimbabwe. And so in order to secure and maintain the marital relationship she is left no option but to depart with her husband to a country where he is in a position to assume the rôle and responsibility of breadwinner. Put otherwise, to impart the normally narrow meaning to 'the right to reside in any part of Zimbabwe' would be to differentiate between the affluent wife, who is not dependent upon the support of her husband for herself and children, and her who is impoverished or destitute, and partly or wholly dependent upon him.

It has long been recognised that there is a reciprocal duty of support as between husband and wife. See, for instance, Woodhead v Woodhead 1955 (3) SA 138 (SR) at 139H-140A (1955 SR 70 at 72) McKelvey v Cowan NO 1980 (4) SA 525 (Z) at 526G (1980 ZLR 235 (GD) at 236E-F); Witham v Minister of Home Affairs 1989 (1) SA 117 (ZH) at 131F-G (1987 (2) ZLR 143 (HC) at 164D-E).

The duty, of course, endures stante matrimonio. It depends on the one spouse's need for support and the other's ability to provide it.

In practice, however, the primary duty of maintaining the household rests upon the husband. See Miller v Miller 1940 CPD 466 at 469; Edelstein v Edelstein NO and Others 1952 (3) SA 1 (A) at 15E-F; Hahlo The South African Law of Husband and Wife 5th ed at 135; Boberg The Law of Persons and the Family at 252. It is he who has to provide the matrimonial home as well as food, clothing, medical and dental care, and whatever else is reasonably required. He must do so on a scale commensurate with the social position, financial means and standard of living of the spouses. He cannot evade that responsibility by showing that his wife is receiving assistance from blood relations, friends or charitable institutions. See Gammon v McClure 1925 CPD 137 at 139; Karrim v Karrim 1962 (1) PH B4 (D).

It follows, in my view, that, unless the protection guaranteed under s 22(1) of the Constitution embraces the entitlement of a citizen wife, residing permanently with her alien husband in Zimbabwe, to look to him for partial or total support, depending upon her circumstances, the exercise of her unqualified right to remain residing in this country, as a member of a family unit, is put in jeopardy.

Accordingly, the applicant is due the relief claimed. In the result:

1. The application is allowed, with costs to be paid by the first respondent.

2. It is hereby declared that the right of the applicant under s 22(1) of the Constitution of Zimbabwe to freedom of movement, that is to say the right to reside in any part of Zimbabwe, has been contravened by the actions of the first and second respondents.

3. By virtue of the applicant's right under the aforementioned s 22(1) to have her husband residing with her in any part of Zimbabwe, it is hereby ordered that:

(a)the first respondent issue to Charles Christopher John Salem, within 30 days hereof such written authority as is necessary to enable him to remain in Zimbabwe on the same standing as any other alien who is a permanent resident;

(b)the said Charles Christopher John Salem be accorded the same rights as are enjoyed by all permanent residents of Zimbabwe, including the right to engage in employment or other gainful activity in any part of Zimbabwe, and that the first respondent impose no restriction upon such right.

Korsah JA and Ebrahim JA concurred.

Applicant's Legal Practitioners: Byron Venturas & Partners.

* Reported at 1995 (2) SA 182 (ZS) - Eds