Stooks v The Registrar General N.O and 2 Others (302 of 2021) [2021] ZWHHC 302 (23 June 2021)

1 HH 302-21 HC 2271/21 SUSAN MARY STOOKS versus THE REGISTRAR GENERAL N. O and MRS. NYAMUNDA and ATTORNEY GENERAL N. O HIGH COURT OF ZIMBABWE TAGU J HARARE 19 May and 23 June 2021 Urgent Chamber Application R. Tawonezvi-Moyo, for applicant F. R. Gustin, for respondents TAGU J: This is an urgent chamber application for a mandament van spolie. The relief sought is final. It is couched in the following terms- “IT IS ORDERED THAT 1. 2. 3. Applicant’s passport under Passport number FN048493 and her Identity Card under identity number 70- 066186X00 CIT F be returned to her within 24 hours of granting of this order. Applicant’s legal practitioners be and are hereby allowed to serve this order. Respondents shall pay costs of suit, one paying the other being absolved.” The interesting facts of this case are these. On 12 May 2021 at approximately 1000 hours, the Applicant SUSAN MARY STOOKS, a British Citizen by birth, but who renounced it on 9 May 1961 to acquire Rhodesian and Nyasaland Citizenship by Registration, approached the office of the Department of the Registrar General on her own accord to make an enquiry on the requirements for making an application for the renewal of her passport which is due to expire in August of 2021. She was in peaceful and undisturbed possession of her Zimbabwean passport, her British passport recently issued to her on 29 September 2020 and her Zimbabwean Identity Card amongst other particulars. Upon making the enquiry she was asked if she was in possession of any foreign passport. She answered in the affirmative. She was asked to surrender her documents. She did so. She was told to proceed to room 99. There she was advised by the second Respondent, Mrs. HH 302-21 HC 2271/21 Nyamunda that her possession of a Zimbabwean passport and Identity document was illegal due to the fact that she was also a British citizen which she had just assumed in November 2020, and it was illegal to have both a Zimbabwean and a British passport. Her explanation being that from the moment Applicant obtained a British passport in November 2020, she was no longer a Zimbabwean citizen. The Applicant asked Mrs. Nyamunda to return her documents but Mrs. Nyamunda confiscated her Zimbabwean passport and Identity document and gave the Applicant a safe custody receipt. Applicant alleges that the manner in which Mrs. Nyamunda confiscated her Zimbabwean documents was not procedural and was unlawful. Hence she approached this court on an urgent basis for a mandament van spolie. The Acting Registrar General deposed to an affidavit opposing the application. He raised a point in limine to the effect that there is no urgency in this matter as the Applicant still has her British Identity documents and that the processing of her Zimbabwean identity documents was still ongoing so as to reflect the correct position of Applicant’s status in Zimbabwe in terms of section 42 (e) of the Constitution of Zimbabwe. This section prohibits dual citizenship in respect of citizens by descent or registration. The point in limine was attacked by the counsel for the Applicant on three fronts. Firstly, it was submitted that the British passport was acquired in November 2020 and has not been used. Put simply it was said the British passport has not been activated and is as good as useless hence the Applicant is without any form of identification. Secondly, it was submitted that section 42 (e) of the Constitution is not applicable because there has not been an Act of Parliament prohibiting dual citizenship. Lastly, it was submitted that for purposes of spoliation the case is urgent. Without delving much into the first two points raised by the counsel for the Applicant at this stage, I agree with the counsel for the Applicant in respect of the third point that for spoliation applications these are normally treated as urgent. For this reason alone I will dismiss the point in limine. AD MERITS In determining an application for a spoliation order, a court is not concerned with the question of ownership or the lawfulness of the possession. All that the applicant has to prove is that he was in peaceful and undisturbed possession of the res and that he was deprived of such HH 302-21 HC 2271/21 possession forcefully or wrongfully against his consent. So two requirements have to be met. Asher v Minister of State for Lands, Aland Reform and Resettlement & Anor 2009 (1) ZLR 153 (H). In the present case counsel for the Applicant submitted that the Applicant was in peaceful and undisturbed possession of her Zimbabwean Identity documents and that Mrs. Nyamunda accosted her, forcefully and unlawfully and without following due process took them against her consent. She prayed that an order be granted as prayed for. In opposing the application counsel for the respondents submitted that in terms of s 42 (e) of the Constitution dual citizenship is prohibited in respect of citizens by descent or registration. She said only citizens by birth are allowed to hold duel citizenship. Mutumwa Dziva Mawere CCZ 4/15 and Madzimbamuto case reported in CCZ 114/13. Section 42 (e) of the Constitution referred to by counsel for the Respondents reads as follows- “42 Powers of Parliament in regard to citizenship An Act of Parliament may make provision, consistent with this Chapter, for – (e) the prohibition of dual citizenship in respect of citizens by descent or registration” The act referred to in this section is the one counsel for the Applicant says has not been enacted. However, counsel for the respondents further submitted that in terms of section 9 (6) of the Citizenship of Zimbabwe Act [Chapter 4.01] the Applicant does not qualify to hold duel citizenship because that section says- “(6) A person of full age who becomes a citizen of Zimbabwe by registration while he is a citizen of a foreign country shall cease to be a citizen of Zimbabwe six months after such registration unless, before the expiry of that period, he has effectively renounced his foreign citizenship in accordance with the law of that foreign country and has made a declaration confirming such renunciation in the form and manner prescribed.” Further, while conceding that the Applicant satisfied the first requirement for a mandament van spolie, of being in peaceful and undisturbed possession of the documents, failed to satisfy the second requirement. Her contention was that the second Respondent, did not accost the Applicant. In fact the Applicant went on her own to the 1st Respondent’s office and was referred to the second Respondent’s office. The Applicant willingly handed over her documents and they were not forcefully taken away from her. Further it was submitted that the confiscation was done lawfully because in terms of section 7 of the National Registration Act [Chapter 10.17] the Respondents are mandated to verify information before renewing identity documents. She said in this case the Applicant phoned her lawyer while she was in the second Respondent’s office enquiring about the HH 302-21 HC 2271/21 provision of the law which entitled his client to dual citizen ship, and while on loud speaker her lawyer said that he did not have the Constitution at hand and was aware of the Mutumwa Mawere case supra, and when it was brought to his attention that that case was of a citizen of Zimbabwe by birth, her lawyer asked the Applicant to leave the office and she left the documents going to her lawyer’s office. The circumstances of this case are clear that the Applicant was in peaceful and undisturbed possession of her documents. She was not accosted by anyone. She went to the respondents’ offices on her own. She voluntarily produced her documents while enquiring on the renewal of her Zimbabwean passport that was about to expire. It was then on being questioned by the officers she revealed that she was also in possession of foreign documents. Upon being asked to produce the documents she voluntarily produced them. When it was brought to her attention that something was amiss she contacted her lawyers and in the process she left her documents. Although the second Respondent had indicated that she was now retaining the documents pending regularization of her identity documents, the documents were not taken forcefully but legally. While the Applicant managed to establish the first requirement for spoliation, she with the greatest of respect failed to establish the second requirement. For these reasons her application will fail. IT IS ORDERED THAT 1. The application is dismissed with costs. Honey & Blanckenberg, applicant’s legal practitioners Civil Division of the Attorney General’s office, respondents’ legal practitioners.