Faraz RAZA Ansari V Marjan Fatima Ansari & Chief Immigration Officer & Minister OF HOME Affairs AND Cultural Heritage & Prosper Kambarami & Attorney-General

### Preamble
1
HH 582-25
HCH 5816/24
FARAZ RAZA ANSARI
Versus
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FARAZ RAZA ANSARI
Versus
MARJAN FATIMA ANSARI
And
CHIEF IMMIGRATION OFFICER
And
MINISTER OF HOME AFFAIRS AND CULTURAL HERITAGE
And
PROSPER KAMBARAMI
And
ATTORNEY –GENERAL

HIGH COURT OF ZIMBABWE
CHIRAWU-MUGOMBA J
HARARE, 15 and 30 September, 1 and 2 October 2025

E.H MUGWADI, for the applicants
G. MADZOKA, for the respondents

COURT APPLICATION

CHIRAWU-MUGOMBA J

Introduction

This application raises critical issues in relation to the rights bestowed upon a spouse who is issued with a permanent residence permit by virtue of marriage and following the demise of that marriage, whether the rights remain and more poignantly, whether that spouse can pass on those rights to a foreign spouse.

The application

The applicants seek the following order.


a. That the cancellation of the permanent residence permit held by the first applicant be declared unlawful and therefore null and void.

b. That the first respondent should grant second applicant with a dependence residence permit.

c. That the first and third respondents pay costs of suit with one paying the other to be absolved.

The first applicant avers that he is the holder of a permanent residence permit number 001475 issued by the first respondent on the 3rd of February 2016. He came to Zimbabwe initially on a temporary residence permit on the 25th of August 2004 and was employed as a general manager at a company based in Msasa, Harare. He met a Zimbabwean woman named Saista Vali Mohamed who was a co-worker. They tied the knot under the then Marriage Act [Chapter 5:11] on the 13th of July 2009. He thereafter applied for and was granted an initial restricted spousal residence permit by the first respondent. In 2012, he joined another company after the demise of the Msasa based company also as a general manager. His marriage was blessed with twin children born on the 14th day of April 2010 in Harare.

The marriage did not work as anticipated and on the 12th day of April 2018, a decree of divorce was granted by the High Court, sitting at Harare. In early 2019, the first applicant travelled to Pakistan, his original home country and he met the second applicant. They have since married and are parents to a child born on the 11th of June 2020.

In June 2023, the first applicant made an application for a spousal residence permit for the second applicant. The third respondent demanded that he should write to the office surrendering his permanent residence permit since he had forfeited it upon divorce. Upon his legal practitioners corresponding with the first respondent, the response received was that the application could not succeed because his own residence permit had been invalidated by the divorce. As a permanent resident of Zimbabwe, he enjoys all the rights prescribed by the Constitution except those to vote and to travel on a Zimbabwean passport. The first applicant is desirous of living in Zimbabwe with his new spouse and three children, including the twins from the first marriage. The twins are citizens of Zimbabwe and have a right to remain permanently. In addition, the first applicant is supporting his family financially. He is running his own business in Zimbabwe and he is therefore not a liability. He also has a clean record in relation to committing a crime or breaching any laws. His ex-wife is not supportive of the interference of the first applicant’s immigration status.

The second applicant deposed to an affidavit basically adopting the first applicant’s averments.

**The opposition**

The first respondent makes the following averments. That the permit issued to the first applicant was not formally withdrawn in terms of the applicable law though the loss of status as a spouse of a citizen is a ground upon which a permit should be withdrawn. Further that the first applicant’s ex-wife admitted through a letter from her legal practitioners that the marriage was one of convenience and that steps are underway to withdraw the residence permit for that reason. The residence permit was issued on the wrong premise that the marriage was genuine. It should be noted that the first applicant aims to use the status that he acquired through a marriage to a Zimbabwean woman to introduce to Zimbabwe, a foreign spouse of Pakistani origin. The permit was refused because the first applicant is on a sponsored spousal permit and he cannot seek to bring in a spouse without forfeiting his status as a spousal permit holder. If the first applicant wishes to change the basis of his permit, he should make an appropriate application. Contrary to the law, the first applicant is running retail shops. The application has no merit and should be dismissed.

The third respondent makes the following averments. The applicants have no cause of action and the application is premature. The first applicant was advised to approach the first respondent so that he is put on a provisional restriction notice with his visitors pending finalisation of the matter. The second dependant was denied a dependant residence permit because the first applicant is equally a dependant. The first applicant ought to have exhausted the domestic remedy of appealing instead of filing this application. The first applicant lost his residence permit status once he ceased to be a spouse.

Answering affidavit

The answering affidavit was deposed to by the applicant’s counsel ostensibly with the support of the applicants. Apart from focusing on the allegations regarding the marriage of convenience between the first applicant and his ex-wife, nothing much turns on the answering affidavit. The applicants it is noted have also irregularly attached annexures to the answering affidavit without leave of the court. A reminder is warranted that attachments to an answering affidavit without leave of the court is irregular- see *Nashe Family Trust vs. Chiwara and ors*, 2018 (2) ZLR 212(H).

Let me hasten to state that at the hearing, Mr. Madzoka prayed for the expunging of the answering affidavit on the basis that it is inadmissible. The reason advanced is that Mr. Mugwadi the applicants’ legal practitioner, has no locus standi to depose to it. Reference was made to the case of *Hiltunen vs. Hiltunen*, 2008(2) ZLR 296. This point need not detain the court any further. In that matter, what was at stake was a founding affidavit and it is trite that such affidavit lays the case in an application. In *casu*, the applicants have already cast their mast on the founding affidavit and even if the court was to expunge the answering affidavit, nothing significant turns on it. And I also need to remind legal practitioners that focus on preliminary issues that are not dispositive of the matter are a waste of the court’s precious time.

**SUMISSIONS**

**Applicants**

In their heads of argument and at the hearing, the applicants make the following submissions. That there is no law which empowers the first and third respondents to withdraw the residence permit of a foreign spouse at the dissolution of a marriage- see sections 26 and 56 of the Constitution and *Tereza Rayment and other applicants vs. Minister of Home Affairs and others*, CCT176/22. In that matter certain sections of the South African Immigration Act and Regulations were declared unconstitutional. This is more so in relation to a good faith spouse rights being terminated upon dissolution of a marriage

Section 26 of the Constitution place an obligation on the state to take appropriate measures to ensure that there is equality of rights and obligations of spouses during the existence of and dissolution of a marriage. Section 3 of the Immigration Act [Chapter 4:02], deals with the issue of domicile as per the interpretation by the court in *Boswinkel vs. Boswinkel, 1995(2) ZLR 58(H)*. Section 56 of the Constitution deals with equality and non-discrimination.

The heads regrettably are replete also with a regurgitation of the facts of the case and not the law.

**First and third respondents’ submissions**

The respondents raised preliminarily the following issues. That there had been wrong citation of the third respondent who is cited in his personal capacity against the tenets of the *State Liabilities Act* [Chapter 8:14]. Further that internal remedies have not been exhausted. These need not detain the court any further. The fact that the relevant entities have been cited is enough. It is trite that a mis-joinder is not necessarily fatal to an application. See R32 [11]. I do not perceive of any prejudice suffered. Although costs are sought against the third respondent, these are at the discretion of the court and in any event, no substantive relief is sought against the third respondent.

It is also difficult to comprehend the allegation that the applicants have not exhausted internal remedies. The grounds advanced such as that the first applicant was advised to surrender his permit and be granted provisional restriction speaks to the merits. The averment that he cannot enjoy a status bestowed by a marriage similarly addresses the merits. In any event, the only reference to appeals that I could find in the Immigration Regulations are in s44 relating to that by a prohibited person. That is not the case before this court. The first applicant is not a prohibited immigrant.

The respondents make reference to the requirements of a declaratur as enunciated in *Airfield Investments (pvt) Ltd vs. Minister of Lands and ors*, 2004(1) ZLR 511. First applicant was never granted an indefinite stay as per section 17 of the Immigration Regulations, SI 195/1998. The permit was conditional upon marriage and certain requirements as per sections 12 and 16 had to be fulfilled. Furthermore, the provisions of s3A of the Immigration Act had to be fulfilled, that is, the fact that the marriage was genuine.

At the hearing, Mr *Madzoka* posed the legal issue at hand as follows, whether or not a foreign national who obtains a permanent residence permit is entitled to retain it and bring in another foreign citizen as a spouse. The issues then relate to the propriety of cancellation of the
 HH 582-25

HCH 5816/24 permit following a confession by the ex-spouse that the marriage that resulted in its issuance was one of convenience and furthermore that there is a divorce order. The designation of the permit being that of a spouse meant that the reason of granting it was on the basis of the marriage-Rattigan and ors vs. Chief Immigration Officer and anor, 1994(2) ZLR 54(S). Section 26 of the Constitution is not applicable because once there is a divorce, the right to the permit is lost- Berry and anor vs. The Chief Immigration Officer and anor, 2016(1) ZLR 38 (CCZ).

Legal issues for determination

Although, Mr Madzoka at the hearing cast the legal issue somewhat correctly, it is regrettable that the legal practitioners missed an opportunity to identify the legal issues raised and advance arguments appropriately. Legal practitioners especially in heads of argument are reminded to cast the legal questions or issues raised and that heads of argument must not be a summary of the facts. They must contain the law as supported by the facts. Let me also hasten to add that focus on whether or not the marriage between the first applicant and his ex-wife was one of convenience or not is not the issue. That ought to have been determined before the dissolution of the marriage in terms of the Matrimonial Causes Act [Chapter 5:13]. The fact of the matter is that there is a decree of divorce that is extant and this court will not re-open that matter to determine whether or not the marriage ought to have been nullified instead. The so-called inquiry by the first respondent is unnecessary as correctly advanced by the applicants. The horse has bolted.

These are in my view the legal issues/questions arising-

a. What are the rights bestowed to a spouse who is granted a permanent residence permit on the basis of a marriage to a Zimbabwean citizen?

b. Do those rights fall away due to a dissolution of the marriage by divorce?

c. Can such person marry a foreign woman and that woman be granted a residence permit on the basis of the spouse’s permit granted or issued on the basis of a marriage to a Zimbabwean woman.

The law

The law relating to the granting of a permit is found in the Immigration Regulations, S.I 195/98 generally under Part 111. More specifically, sections, 15 16 and 17. The sections deal with the application process, issuance and conditions attached to permits.

15. Application for a residence permit

(1) An application for a residence permit shall be made to the Chief Immigration Officer in form No. I.F. 5.

(2) An applicant for a residence permit shall satisfy the Chief Immigration Officer that he is of good character and is not a prohibited person.

(3) A fee shall be payable in respect of an application for a residence permit or an application for the renewal of a residence permit.

16 Issue of residence permit

(1) Subject to this section and to sections 15, 17 and 19, the Chief Immigration Officer may issue a residence permit to any person who—

(a) is the spouse or a minor child of a resident; or

(b) is the mother, father, grandparent or other dependent of a resident, where the resident is able to maintain such person and undertakes to do so; or

(c) possesses substantial financial means and is prepared to invest substantially in Zimbabwe without engaging in any occupation; or

(d) holds a temporary employment permit and—

(i) has been resident in Zimbabwe for a continuous period of not less than five years; or

(ii) where he applies for a residence permit within six months before the date of expiry of his temporary employment permit, will on the date of such expiry, have been resident in Zimbabwe for a continuous period of five years.


(2) Without the consent of the Minister, the Chief Immigration Officer shall not issue a residence permit in terms of subsection (1) to a person who is within Zimbabwe unless such a person is the holder of a temporary employment permit or of a residence permit that is being renewed.

(3) A residence permit shall be in form No. I.F. 6.

(4) Where application for a residence permit has been made by a person wishing to engage in an occupation in Zimbabwe, the Chief Immigration Officer may issue such person with a temporary employment permit in terms of section 22.

A spousal residence permit is therefore issued in terms of the regulations. A residence permit is defined as, ‘a resident permit issued or continued in force in terms of section 16’. The authority who grants or refuses to grant a permit is the Chief Immigration Officer save for s19(5) of the regulations that allows the Minister to direct that a particular person must be issued with a residence permit. In terms of s17 of the regulations, conditions can be attached to a residence permit. It is clear that in terms of that section, a residence permit may be issued for an indefinite period of a definite period as prescribed by the Chief Immigration Officer.

All parties have laid before the court, case law on citizenship. The 2013 Constitution deals with the rights of citizenship in chapter three under the broad framework of Citizenship. The relevant sections are as follows,

38. Citizenship by registration

(1) Any person who has been married to a Zimbabwean citizen for at least five years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, is entitled, on application, to be registered as a Zimbabwean citizen.

(2) Any person who has been continuously and lawfully resident in Zimbabwe for at least ten years, whether before or after the effective date, and who satisfies the conditions prescribed by an Act of Parliament, is entitled, on application, to be registered as a Zimbabwean citizen.

(3) A child who is not a Zimbabwean citizen, but is adopted by a Zimbabwean citizen, whether before or after the effective date, is entitled, on application, to be registered as a Zimbabwean citizen.

39 Revocation of citizenship

(1) Zimbabwean citizenship by registration may be revoked if—

(a) the person concerned acquired the citizenship by fraud, false representation or concealment of a material fact; or

(b) during a war in which Zimbabwe was engaged, the person concerned unlawfully traded or communicated with an enemy or was engaged in or associated with any business that was knowingly carried on so as to assist an enemy in that war.

(2) Zimbabwean citizenship by birth may be revoked if—

(a) the citizenship was acquired by fraud, false representation or concealment of a material fact by any person; or
 (b) in the case of a person referred to in section 36(3), the person’s nationality or parentage becomes known, and reveals that the person was a citizen of another country.

(3) Zimbabwean citizenship must not be revoked under this section if the person would be rendered stateless.

40 Retention of citizenship despite marriage or dissolution of marriage

Zimbabwean citizenship is not lost through marriage or the dissolution of marriage.

In *Madzimbamuto vs. Registrar General and ors*, CCZ 5/14, the court dealt with the issue of dual citizenship and rights bestowed by the Constitution as follows,

**‘THE RIGHT TO FREEDOM OF MOVEMENT’**

The freedom of movement and residence in Zimbabwe is a right guaranteed by the Constitution to every Zimbabwean citizen and every person who is legally in Zimbabwe. It includes the right to enter and leave Zimbabwe as well as immunity from expulsion from Zimbabwe. Section 66 of the Constitution provides:

**“66 Freedom of movement and residence**

(1) Every Zimbabwean citizen has—

(a) the right to enter Zimbabwe;
(b) immunity from expulsion from Zimbabwe; and
(c) the right to a passport or other travel document.

(2) Every Zimbabwean citizen and everyone else who is legally in Zimbabwe has the right to—

(a) move freely within Zimbabwe;
(b) reside in any part of Zimbabwe; and
(c) leave Zimbabwe.

The court bemoaned the lack of harmonisation of the provisions of the Constitution and the Immigration Act and Regulations. More poignantly the court stated as follows,

......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. Any law which is inconsistent with the Constitution is void to the extent of the inconsistency......

I am mindful of the cases cited by applicant and respondents but these address different issues. For instance in the *Berry* matter, what was at stake is that the second applicant had been declared a prohibited person and this affected the status of his marriage to the first applicant. In the *Boswinkel* case, the legal issue was whether or not the foreign husband acquired rights under s3 (3) of the Immigration Act, that is domicile by choice.


The correct citation of the South African case referred to by the applicant’s counsel is *Rayment and others v Minister of Home Affairs and others, Anderson and others v Minister of Home Affairs and others*, [2023], ZACC 40. The order granted partly reads as follows,

The appeal by the applicants is upheld only to the extent reflected below.

3. It is declared that sections 10(6), 11(6), and 18(2) of the Immigration Act 13 of 2002 (“Immigration Act”), and regulation 9(9)(a) of the Immigration Regulations, 2014 published under GN R413 in Government Gazette 37679 of 22 May 2014 (as amended) (“the Regulations”), are inconsistent with the Constitution of the Republic of South Africa, 1996, and invalid, to the extent that they—

3.1. require a foreigner who:

3.1.1. is the holder of a section 11(6) visa;

3.1.2. is a parent of a child who is a citizen or permanent resident; and

3.1.3. is currently fulfilling his or her responsibilities to that child, or demonstrates an intention to do so, to cease working or leave the Republic because that foreigner’s good faith spousal relationship has ended;

3.2. require a foreigner who is a parent of a child who is a citizen or permanent resident to leave the Republic in order to apply for a new visa;

**Application of the law to the facts**

**What are the rights bestowed to a spouse who is granted a permanent residence permit on the basis of a marriage to a Zimbabwean citizen?**

The trap that I almost fell into is to categorise this case as one of citizenship and yet it is not. The applicant’s case is very simple on the face of it. He came to Zimbabwe, married, divorced, went to Pakistan, -remarried a Pakistani and now wants his new wife to be granted a residence permit. Therefore, it is about the rights bestowed to a spouse who acquires a residence permit on the basis of a marriage. It is common cause that the first applicant upon marriage and in keeping with the tenets of s17 of the Immigration Regulations, he was granted spousal residence permits until he finally was granted a permanent resident permit. It appears to me that such rights relate to the ordinary duties of consortium vitae that is the right to stay together, to found a family, to look after each other as well as some common rights such as freedom of movement, assembly, association, as well as to enter and exit Zimbabwe for the duration of the residence permit. It also appears to me that a permit can be renewed or cancelled as per the regulations. More importantly, this permit is issued by the Chief Immigration Officer as in casu. I have already stated that this matter is not about whether or not the first applicant’s marriage to his ex-wife was one of convenience.

Do those rights fall away due to a dissolution of the marriage by divorce?

While the applicant cited the Constitution specifically sections 26 and 56, there is no quarrel with those. It is indeed correct that the state as per section 26 has certain obligations but in my view, these are only in relation to the marriage between the first applicant and his ex-wife. Hence for instance, he was able to get custody of his children from his ex-wife through the courts. It appears to me that there is confusion regarding rights of citizenship – see generally Shaw and Shaw vs. The Registrar General and others, HH-250-22, and rights under a spousal residence permit. In my view, it does not matter that it is a residence permit simpliciter, or a permanent one. In Zimbabwe, the acquisition of citizenship is governed by the Citizenship Act and the Constitution. These last two statutes regrettably are still to speak to each other. But this is beside the point. What is critical is that a residence permit whether simple or permanent does not equate to citizenship. There is a specific pathway to citizenship, see Shaw case (supra) and also some constitutional provisions that deal specifically with revocation – see s39 generally of the constitution. The applicants’ case as stated is not about citizenship but about the permanent residence permit that can be taken away or cancelled.

In my view, the causa for the particular residence permit was that the applicant was spouse of a resident of Zimbabwe. One does not start off as in the case of the applicant, with a permanent residence permit. In my view the granting of a permanent residence spousal permit is where the Chief Immigration Officer is satisfied that the marriage is not one of convenience. Getting to that stage is a process. The applicant seems to be making much ado of the fact that he was granted a permanent residence permit. It does not matter. His was on the basis of a marriage and hence the endorsement of spouse on the residence permit.

The regulations define a resident as, resident” means any person who is lawfully within Zimbabwe otherwise than for the purpose of—

(a) journeying through Zimbabwe in direct transit from one country to another; or

(b) making a temporary visit

The context must be understood as one in which the first applicant as specified in the various permits, approached the first respondent on the basis of a marriage. Once the causa, fell away, that is the marriage or the title of spouse of a resident, the rights bestowed through the permit, in my view also fell away. Unlike citizenship rights that are not affected by a change in marital status as per s40 of the constitution, the first applicant is not a citizen of Zimbabwe. If he wishes to become one, the processes and relevant law is available.

Can such person marry a foreign woman and that woman be granted a residence permit on the basis of the spouse’s permit
 granted or issued on the basis of a marriage to a Zimbabwean woman?

In my view, the Immigration Regulations do not envisage a situation where a foreigner marries a Zimbabwean, divorces, marries a foreigner and brings her/him to Zimbabwe then claim that the foreigner must also be granted a residence permit under essentially a spousal residence permit with some other spouse, who is as a matter of fact, now an ex-spouse. This will be indeed absurd. The regulations in section 16 specifically relate to a Zimbabwean citizen and a foreigner. They are therefore not applicable to the first applicant who in my view is no longer lawfully resident in Zimbabwe under a spousal residence permit. He has no Zimbabwean spouse to talk about. The second applicant cannot be a dependant of essentially a former dependant. Reference to the South Africa Payment case is misguided as the cause of action and relevant legislation is different. In any event, in casu, the applicants’ case is not about the impact on the children. This is a ‘by-the’ way issue. This finding does not mean that the first applicant cannot apply for a relevant permit according to Zimbabwean law. This is what he has been advised by the respondents all along, that he is no longer a spouse so he cannot qualify under a spousal residence permit. One of the documents that would be required is a valid marriage certificate. First applicant has none with a Zimbabwean resident or citizen. What he has is a decree of divorce.

Conclusion

The applicants seek a declaratur and consequential relief, whose requirements have been set in a plethora of cases. See Munn Publishing (pvt) Ltd v Zimbabwe Broadcasting Corporation, 1994(10 ZLR 337(S)).

The first applicant no longer has a right to a spousal residence permit. As already stated, his permanent residence permit is premised on a marriage that is no longer in existence. He simply cannot be said to have a direct and substantial interest in a spousal residence permit with an ex-spouse. His permanent residence permit is tied to his marriage with his ex-wife. He may have rights to a different type of permit but that is not for this court to decide. He has been offered a temporary reprieve that he has decided to ignore at his own peril. The cancellation by the first respondent of the *spousal (my emphasis)* permanent residence permit cannot be faulted. The first applicant is not spouse anymore to a Zimbabwean resident. The first applicant cannot pass on rights that he does not have to the second applicant. Accordingly, no case for a declaratur has been made. On costs, this matter raises critical issues especially with the rate of migration the world over, Zimbabwe not being spared. The legal practitioners in my view were also not too helpful in identifying the pertinent legal issues. Accordingly, the most appropriate order for costs is that each party should bear their own costs.

**DISPOSITION**

1. The application be and is hereby dismissed.
2. Each party shall bear their own costs.

*Mugwadi and Associates, applicants’ legal practitioners*
*Civil Division of the Attorney –Generals’ Office, respondents’ legal practitioners*


HH 582-25  
HCH 5816/24
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