XIE Zheng V THE Chief Immigration Officer AND THE Officer IN Charge (Harare Remand Prison)

### Preamble
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HH 293-12
HC 7403-2012
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XIE ZHENG

versus

THE CHIEF IMMIGRATION OFIICER

and

THE OFFICER IN CHARGE (HARARE REMAND PRISON)

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE 10 JULY 2012 and 11 JULY 2012

Urgent Chamber application: Ex tempore

T. Koto for the Applicant

Ms R. Hove for the Respondents

MATHONSI J: This matter came before me on a certificate of urgency issued in terms of r244 of the High Court of Zimbabwe Rules, 1971. The applicant seeks the following relief;-

“Terms of the Final Order sought

That the warrant of detention issued by the first respondent authorising the second respondent to detain applicant on 4 July 2012 be and is hereby cancelled.

The first respondent is ordered to determine the applicant’s request for extension of his Visa to stay in Zimbabwe within five days of this Order.

Should the application for extension of Visa be turned down, the applicant should be given five days grace period to leave Zimbabwe from the day of communication of the first respondent’s decision to the applicant.

The applicant is ordered to leave Zimbabwe on his own and at his own expense within five days of completion of any possible criminal trial or communication of first respondent’s decision in terms of paragraph 2 whichever occurs last.

The first respondent to meet the costs of this application should he oppose it.

INTERIM RELIEF GRANTED

That pending the finalisation of this matter, the applicant is hereby granted the following interim relief;-

Operation of the warrant of detention issued against the applicant by the first respondent on 4 July be and is hereby suspended.

The first and second respondents are hereby ordered to release the applicant from Harare Remand Prison forthwith.

In the event that the applicant has been moved to any other prison or police cells in terms of a detention warrant issued by first respondent, or any of his officers in terms of the Immigration Act [Cap 4:02], the first respondent is ordered to take all necessary steps to secure the release of the applicant from such custody wherever he may be within four hours of this order.

The first respondent, is ordered not to interfere with the applicant’s stay in Zimbabwe or harass him in any way pending the investigation or trial on any possible criminal charges against him and shall not cause any further detention of the applicant on the basis of his expired Visa until finalisation of this matter.”

The applicant is a Chinese national who states in his founding affidavit that he entered Zimbabwe on holiday on 26 May 2012 with a visa valid until 25 June 2012. Before the expiry of his visa, he applied for an extension, a process which necessitated the surrender of his passport to the office of the first respondent. On 12 June 2012, he was advised that his file could not be located and, although he visited the first respondent’s offices on a daily basis, he could not get any joy because his application could not be processed.

When his visa expired, he says he was granted a 7 day extension to 2 July 2012. To his chagrin, officers from the first respondent’s office visited his lodgings on 4 July 2012 and arrested him, not before there was a skirmish involving a firearm which was found under a pillow in his bedroom. The applicant is currently detained at Harare Remand Prison and challenges his detention on the basis that it was unlawful regard being had to the fact that he did not commit any offence, the police have not preferred any criminal charges against him despite the insistence of the first respondent that he be charged and, even after the expiry of his visa, he could not leave the country on his own in light of the fact that the first respondent has retained custody of his passport, ostensibly for purposes of processing his application for an extension.

These allegations are strongly disputed by the first respondent. According to the opposing affidavit of Prosper Kambarami, which I must say is defective in that it does not contain a pre-amble and an oath, but which I have used my discretion bestowed upon me by Rule 4C of the High Court Rules owing to the exigencies of the matter, to accept, the first respondent’s officers were investigating another matter involving a Chinese national Wei Sheng when they came across the applicant. In breach of section 32 of the Immigration Act [Cap 4:02], (the Act), he failed to produce his passport. That section provides as follows;-

“(1) A police officer or immigration officer may demand from any person whom he

suspects on reasonable grounds of being an alien the production of his visitors’ entry

certificate or any permit, as the case may be.

(2)  If a person referred to in subsection (1) fails –

(a) to produce any certificate or permit referred to in that subsection; or

(b) to satisfy the police officer or immigration officer that he is not an alien or that he is not

required in terms of this Part to be in possession of any certificate or permit referred to in that

subsection;

the police officer or immigration officer may arrest such person.”

This provision should be read together with the provisions of section 8(1) of the Act which provides:

“Subject to section 9, an immigration officer may arrest any person whom he suspects on

reasonable grounds to have entered or to be in Zimbabwe in contravention of this Act and may

detain such person for such reasonable period, not exceeding fourteen days, as may be required

for the purpose of making enquiries as to such person’s identity, antecedents and national status

and any other fact relevant to the question of whether such person is a prohibited person.”

(The underlining is mine)

Subsection (4) (a) of section 8 requires that such a person be informed in writing why he is a prohibited person, while subsection 4 (b) of section 8 provides that;

“When any person is arrested or detained in terms of subsection (1) or (2), he shall be

informed forthwith of the reason for his detention.”

According to Kambarami, the first respondent did not have custody of the applicants’ passport and in terms of procedure, does not keep such passport. To the contrary, when the officers accosted the applicant, he telephoned one Madzimure to bring the passport and he obliged. That seems to be supported by a copy of a letter written by P. Madzimure, the Managing Director of Raki Mining Industry (Pvt) Ltd, dated 6 June 2012 attached to the opposing affidavit which reads in relevant part thus;

“The Principal

Director Immigration Officers

Liquenda House,

HARARE.

Dear Sir or Madam

RE: APPLICATION FOR INVESTMENT PERMIT FOR XIE ZHENG

Mr Zheng Xie was on Residence Permit from 14 March 2011 to 16 March 2012, he went

back to China because his permit had expired, however he wants to renew his permit

because he still has business to do in Zimbabwe, he came back on business on the 8th of

May 2012.

We request your good offices to issue him with an Investment Permit for two years, his

passport number is G 36472728, we have attached all the papers required for the

processing of the permit.

Thank you in advance

Yours faithfully

Mr P. Madzimure

MANAGING DIRECTOR”

I accept that it does not make sense for the first respondent to hold onto a passport belonging to an alien when such person is required by law to produce proof of his or her status upon demand by a police officer or immigration officer, which proof will normally be appended on the passport. I therefore accept that, indeed, the applicant was in possession of his passport on 4 July 2012 and it was therefore within his power to leave Zimbabwe following the expiration of his holiday visa on 2 July 2012. If that is the case, and Mr Koto has been non-committal by reason that he has not taken instructions, then the applicant is guilty of a material misrepresentation of facts.

When the applicant was arrested on 4 July 2012 he was clearly illegally in the country. The first respondent was therefore empowered by section 32 as read with section 8 of the Act to arrest and detain the applicant. The papers that have been placed before me illustrate that, upon his arrest, the applicant was issued with a notice to prohibited person dated 4 July 2012 which he refused to sign. The notice specifically announced that he was a prohibited person in terms of section 14 of the Act. A further notice of the same date, which is again endorsed to signify a refusal by the applicant to sign, has also been submitted. It shows that the reason for prohibition was a breach of conditions of his visitor’s entry certificate by working in the country while on a visitor’s certificate.

Given the circumstances under which the applicant was found at No.9 Amersham Place, 191 Josiah Tongogara Street, Harare, which happens to be the business address of Raki Mining Industry (Pvt) Ltd, as appears from correspondence from that company and its Project Proposal all filed of record, I have no doubt in my mind that a reasonable suspicion was created entitling the first respondent to arrest and detain the applicant for breaching his visitor’s entry certificate.

In terms of section 8 (1) of the Act, an immigration officer may detain an arrested person for a period of up to 14 days. The 14 days in question have not expired given that the applicant was only detained on 4 July 2012, 7 days ago. To the extent that the first respondent was entitled in terms of the law to arrest and detain the applicant aforesaid, and that the period accorded to the first respondent to complete the matter has not expired, it cannot be said that the first respondent acted outside the law as to entitle the applicant to the relief that he seeks. I must mention however that the applicant cannot be kept beyond the period of 14 days prescribed by law.

I therefore come to the conclusion that the application is without merit. It is accordingly dismissed with costs.

Koto & Company, Applicant’s legal practitioners

Civil Division of the Attorney General’s office, Respondent’s legal practitioners