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Rattigan and Others v. Chief Immigration Officer of Zimbabwe

Publisher Zimbabwe: Supreme Court
Publication Date 13 June 1994
Citation / Document Symbol Cases No 45/94; 92/94
Reference 1995 (2) SA 182 (ZS)
Cite as Rattigan and Others v. Chief Immigration Officer of Zimbabwe, Cases No 45/94; 92/94, Zimbabwe: Supreme Court, 13 June 1994, available at: http://www.refworld.org/docid/3ae6b6d62c.html [accessed 2 October 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

RATTIGAN AND OTHERS v CHIEF IMMIGRATION OFFICER,
ZIMBABWE, AND OTHERS 1995 (2) SA 182 (ZS)
ZIMBABWE SUPREME COURT
GUBBAY CJ, McNALLY JA, KORSAH JA, EBRAHIM JA and MUCHECHETERE JA
1994 May 26; June 13 Judgment No SC 64/94;
Cases Nos 45/94 and 92/94

Flynote

Constitutional law - Human rights - Fundamental rights in terms of chap Ill of Constitution of Zimbabwe - Ambit of Section II 'the key or umbrella provision' under which all rights and freedoms must be subsumed - Provisions of s 11 encapsulating in general terms sum total of individual's rights and freedoms, which may be expanded upon in ensuing ss 12-23 in Declaration of Rights.

Constitutional law - Human rights - Fundamental rights in terms of chap III of Constitution of Zimbabwe - Right to freedom of movement in terms of s 22(1) of Constitution of Zimbabwe - Embodied in provisions of s 22(l) are (i) right to move freely throughout Zimbabwe; (ii) right to reside in any part of Zimbabwe; (iii) right to enter and leave Zimbabwe; and (iv) immunity from expulsion from Zimbabwe - Having regard to nature of marriage relationship, decision of Chief Immigration Officer to prohibit alien husbands of women who are citizens of Zimbabwe from residing in Zimbabwe and from living with their wives there in conflict with s 11, read with s 22 (1), of Constitution.

Husband and wife - Marriage - Nature of marriage relationship - Marriage a juristic act sui generis, giving rise to physical, moral and spiritual community of life, a consortium omnis vitae - Duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from such relationship - Marriage the most fundamental institution known to mankind - Having regard to nature of marriage relationship, decision of Chief Immigration Officer to prohibit alien husbands of women who are citizens of Zimbabwe from residing in Zimbabwe and from living with their wives there in conflict with s 11, read with s 22(l), of Constitution of Zimbabwe.

Headnote

The Court affirmed the dictum in its judgment in In re Munhumeso and Others 1995 (1) SA 551 (ZS) at 556A/B-C that the upgraded status of the provisions of s 11 of the Constitution of Zimbabwe from a preamble in each of the four earlier Constitutions to a numbered section, signified that it is to be regarded as conferring substantive rights on the individual, and not merely a guide to the intention of the framers in enacting chap III of the Constitution. The Court accepted that s 11 is 'the key or umbrella provision' in the Declaration of Rights under which all rights and freedoms must be subsumed, and that it encapsulates the sum total of the individual's rights and freedoms in general terms, which may be expanded upon in the expository, elaborating or limiting ensuing sections, ss 12-23. (At 186E/F-F/G, G-G/H.)

The dicta in Dow v Attorney-General [ 1992] LRC (Const) 623 (CA, Botswana) at 636e-637c and 6691-670c approved and applied.

Subsection (1) of s 22 of the Constitution of Zimbabwe mandates that 'no person shall be deprived of his freedom of movement'. Embodied in such protection are: (i) the right

to move freely throughout Zimbabwe; (ii) the right to reside in any part of Zimbabwe; (iii) the right to enter and leave Zimbabwe; and (iv) immunity from expulsion from Zimbabwe. (At 187A-B.)

Marriage is a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life - a consortium omnis vitae. It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other. Conjugal love embraces three components: (i) eros (passion); (ii) philia (companionship); and (iii) agape (self-giving brotherly love). The duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from the marital relationship. To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage. (At 188B-D.) Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together. Although the condition of matrimony does not, as a concept of law, make the spouses one flesh - una caro - it none the less embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit. It is the most fundamental institution known to mankind -'the first step from barbarism' and 'the true basis of human progress'. (At 189E/F-G.)

Taking s 11 of the Constitution of Zimbabwe in conjunction with s 22(l) and interpreting the whole generously and purposively so as to eschew the 'austerity of tabulated legalism', it has to be concluded that to prohibit alien husbands from residing in Zimbabwe and so disabling them from living with their wives in the country of which they (the wives) are citizens and to which they owe allegiance, is in effect to undermine and devalue the protection of freedom of movement accorded to each of the wives as a member of a family unit. (At 190H/I-I/J.)

The Court accordingly declared that the right of the applicants under s 22(l) of the Constitution of Zimbabwe to freedom of movement, ie the right to move freely throughout Zimbabwe, the right to reside in any part of Zimbabwe and the right to enter and to leave Zimbabwe, had been contravened by the decision of the first respondent not to permit their alien husbands to reside with them in Zimbabwe. (At 191A/B-C.)

Case information

Application directly to the Supreme Court in terms of s 24 of the Constitution of Zimbabwe for orders declaring certain decisions of the first respondent to be unconstitutional. The facts appear from the judgment of Gubbay CJ.

A P de Bourbon SC (with him B Greenland) for the applicants.

A V M Chikumira (with him F M Zenda) for the respondents.

Cur adv vult.

Postea (June 13).

JUDGMENT

Gubbay CJ:

Introduction

The short and undisputed facts of this joint application conceal a problem of considerable constitutional significance and no little difficulty. It concerns the pervasive issue of whether a female citizen of Zimbabwe married to a man who is an alien, being a citizen of a foreign country, is entitled to the right to reside permanently with her husband in Zimbabwe.

The factual background

The first applicant, Devagi Rattigan, née Naidoo, was born in Bulawayo on 25 July 1960, and is a citizen of Zimbabwe. She married John David Rattigan, at Harare, on 18 January 1992. He was born in Hamilton,

Scotland, on 4 April 1950 and is a British subject. He entered Zimbabwe on 1 June 1991, for a three-month holiday and shortly thereafter met and fell in love with the first applicant. He was denied a permit to work or reside in Zimbabwe as, in the opinion of the immigration authorities, he has no scarce skill to offer. In consequence of being issued with a notice to leave Zimbabwe, he and the first applicant departed for England where they presently reside. Both are anxious to return and set up their matrimonial home in Zimbabwe. They have no children.

The second applicant, Marchelle Caroline Butler-Rees, née Morta, was born in Bulawayo, on 2 February 1959, and is a citizen of Zimbabwe. She married Steven James Butler-Rees on 4 January 1992. He was born on 27 November 1961, in Dublin, Ireland, and is a citizen of that country. He first entered Zimbabwe on 7 June 1993, and thereafter made numerous visits to the country. He too was denied a permit to work or reside in Zimbabwe as he possessed no scarce skill. The last refusal was on 16 August 1993. He is presently in the country on an extended visitor's permit and lives with the second applicant in a house in Bulawayo. She is pregnant with his child. Both ardently desire to establish a matrimonial abode permanently in Zimbabwe.

The third applicant, Edith May Caules, née Stroud, was born in Bulawayo on 17 May 1942, and is a citizen of Zimbabwe. She married Frank Caules on 29 February 1972. He was born on 8 August 1928, in Dublin, Ireland, and is a citizen of that country. Twin children were born of the marriage on 13 April 1973. Since May 1980, the third applicant and the children have been living in Bulawayo and from the latter part of 1988, Mr Caules has resided continuously with them. He was initially allowed entry on a visitor's permit but subsequently was granted a two-year residence permit. This was extended for a further three-year period, expiring on 29 September 1993. His application for a permanent residence permit was refused on 24 August 1993, on the ground that he has absolutely nothing to offer the country. On 4 December 1993 an interdict was granted by the High Court, prohibiting the deportation of Mr Caules pending the determination of this application. Both he and the third applicant wish to remain living in their home in Bulawayo, together with the children, who have been granted permanent residence permits and have applied to become citizens of Zimbabwe.

I shall henceforth refer to the applicants as 'the wives'.

The respondents' stance

It is not contended by the first respondent, who is the Chief Immigration Officer, that the marriages in question were contracted in an effort to evade the immigration laws of the country or in order to persuade the immigration authorities to allow the alien husbands to remain living unimpeded in the country of their wives. In other words, these were not marriages of convenience. They were genuinely entered into by the respective couples with the intention of establishing a common home and consortium between them 'for better or for worse'.

The policy adopted by the Chief Immigration Officer, who speaks, as well, for the second and third respondents, being the Minister of Home Affairs and the Attorney-General, is outlined in his opposing affidavit. It is to the following effect:

'…(T)he principal applicant for a family residence permit should always be the husband unless the wife is a highly qualified professional, eg medical practitioner, offering a scarce skill in her own right, in which case the husband may be treated as dependant.

Where a foreign husband applies to come and settle here, a residence permit may only be issued if he fulfils one of the following requirements:

(a)possesses a skill considered to be in a critical skills shortage area;

(b)invests substantial capital in a project approved by the Zimbabwe Investment Centre,

(c)be retired with sufficient financial means to sustain himself and family without resort to public funds during his stay in the country.

None of the husbands concerned could meet the basic requirements for issuance of residence permits at the time of application.'

It is firmly disputed that the disability thereby imposed on the husbands in any way circumscribes the constitutional rights of the wives.

The rule of constitutional construction

This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose. All relevant provisions are to be considered as a whole and, where rights and freedoms are conferred on persons, derogations therefrom, as far as the language permits, should be narrowly or strictly construed. See Minister of Home Affairs and Others v Dabengwa and Another 1982 (4) SA 301 (ZS) at 306E-H (1982 (1) ZLR 236 (SC) at 243G-244A); Bull v Minister of Home Affairs 1986 (3) SA 870 (ZH and ZS) at 880J-881D (1986 (1) ZLR 202 (SC) at 210E-21 IC); Nkomo and Another v Attorney-General, Zimbabwe, and Others 1994 (3) SA 34 (ZS) (1994 (1) SACR 302) at 41B-C (SA) and 309e-f (SACR). A recent reminder that Courts cannot allow a Constitution to be 'a lifeless museum piece' but must continue to breathe life into it from time to time when opportune to do so, was graphically expressed by Aguda JA in Dow v Attorney-General [1992] LRC (Const) 623 (Botswana CA) at 668f-h:

'. . . (T)he overriding principle must be an adherence to the general picture presented by the Constitution into which each individual provision must fit in order to maintain in essential details the picture which the framers could have painted had they been faced with circumstances of today. To hold otherwise would be to stultify the living Constitution in its growth. It seems to me that a stultification of the Constitution must be prevented if this is possible without doing extreme violence to the language of the Constitution. I conceive it that the primary duty of the Judges is to make the Constitution grow and develop in order to meet the just demands and aspirations of an ever-developing society which is part of the wider and larger human society governed by some acceptable concepts of human dignity.'

See, too, Hunter et al v Southam Inc (1984) 9 CRR 355 (SCC) at 364 and Government of the Republic of Namibia and Another v Cultura 2000 and Another 1994 (1) SA 407 (NmS) at 418F-G.

The status of s 11 of the Constitution

Considerable argument was addressed by counsel as to whether s 11 in the Declaration of Rights, which forms chap III of the Constitution, is a mere preamble to the other sections which follow or a substantive provision. It reads:

'Whereas every person in Zimbabwe is entitled to the fundamental rights and freedoms of the individual, that is to say, the right whatever his race, tribe, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely

(a)life, liberty, security of the person and the protection of the law;

(b)freedom of conscience, of expression and of assembly and association; and

(c)protection for the privacy of his home and other property and from the compulsory acquisition of property without compensation;

and whereas it is the duty of every person to respect and abide by the Constitution and the laws of Zimbabwe, the provisions of this chapter shall have effect for the purpose of affording protection to those rights and freedoms subject to such limitations of that protection as are contained herein, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the rights and freedoms of others or the public interest.'

In In re Munhumeso and Others (SC 221/93)/*[1] this Court was of the view that the upgraded status of the provision from a preamble in each of the four earlier Constitutions to a numbered section signified that it is to be regarded as conferring substantive rights on the individual, and not merely a guide to the intention of the framers in enacting chap III. It was accepted to be 'the key or umbrella provision' in the Declaration of Rights under which all rights and freedoms must be subsumed, and that it encapsulates the sum total of the individual's rights and freedoms in general terms, which may be expanded upon in the expository, elaborating or limiting ensuing ss 12-23.

I can perceive of no warrant to differ from that analysis and reiterate my respectful concurrence with the reasoning of Amissah JP and Aguda JA in Dow v Attorney-General (supra) in the passages of their respective judgments at 636e-637c and 669i-670c. I would simply add that their conclusion is much supported by the meaning given to 'Declaration of Rights' in s 113 (1) as 'the Declaration of Rights set out in chap III'. That chapter comprises ss 11-26 (not ss 12-26) and it is in relation to an alleged contravention or likely contravention of the Declaration of Rights as so defined that s 24(l) gives the right to any person to apply to the Supreme Court for redress.

Thus under s 11 every person in Zimbabwe is guaranteed, inter alia, the right to life, liberty, security of the person and the protection of the law, and protection for the privacy of his home, subject to their enjoyment and exercise not prejudicing the rights and freedoms of others or the public interest.

The alleged violation of s 22(1) of the Declaration of Rights

Subsection (1) of s 22 mandates that 'no person shall be deprived of his freedom of movement'. Embodied in such protection are: (i) the right to move freely throughout Zimbabwe; (ii) the right to reside in any part of Zimbabwe; (iii) the right to enter and leave Zimbabwe; and (iv) immunity from expulsion from Zimbabwe. Under ss (2) any restriction on the person's freedom of movement that is involved in his lawful detention shall not be held to be a contravention of ss (1). The further derogations specified in ss (3) fall outside the issue debated, in particular para (d) only permits the imposition of restrictions on the movement or residence within Zimbabwe, or the exclusion or expulsion from Zimbabwe, of persons who are neither citizens of Zimbabwe nor regarded by virtue of a written law as permanently resident in Zimbabwe. Subsection (4), as read with ss (3)(a), provides that, although in the interests of defence, public safety, public order, public morality or public health, it is lawful to restrict the freedom of movement of persons, such right is not to be construed as authorising a law preventing a citizen from leaving Zimbabwe or excluding or expelling him from the country. In the present context ss (3)(d) and (4) are significant only to the extent that they underscore the importance placed by the Constitution, which is the supreme law of Zimbabwe, upon the protection of the right of a citizen to freedom of movement in the manner that phrase is particularised.

The case made by the wives is that the refusal of the Chief Immigration Officer to issue a residence permit to each husband in terms of s 17(1)(a) of the Immigration Regulations 1979 (RGN 373/79), or an alien's permit pursuant to s 38(l) thereof, and the consequent requirement that they leave the country, circumscribe their fundamental and unqualified right as citizens to freedom of movement. If the husbands are compelled to depart (an actuality in respect of Mr Rattigan) the right of the wives to reside in Zimbabwe is directly affected. In essence, the freedom of movement of the wives is determined by what happens to their husbands, for in order to secure and maintain the marital relationship they would have to accompany them.

The respondents' answer is that the freedom of movement of the wives is not restricted by the refusal to permit the husbands to reside in Zimbabwe. They may move in and out of the country as often as they wish and remain for indefinite periods of time. But so far as establishing the matrimonial home in Zimbabwe is concerned they must decide either to exercise their constitutional right to reside in Zimbabwe without their husbands or accompany them to the countries of their citizenship and live together there. This may cause inconvenience but no more. Their right of freedom of movement in any of its aspects has not been removed from them or indeed infringed.

The predicament of each wife has not been caused by the decision of the husband, as head of the family, to establish the common household in a country other than Zimbabwe. If that were so then, provided the decision was not unreasonable, the wife, if she wished the marriage to survive, would be obliged to accept it and leave Zimbabwe. See Webber v Webber 1915 AD 239 at 246; Macnaught v Caledonian Hotel 1938 TPD 577 at 579;

Platt v Platt 1965 (2) PH B 15 (N) at 73. To the contrary, the husbands share the desire of the wives that the matrimonial abode be located in Zimbabwe. The impediment is the alien status of the husbands and the refusal of the immigration authorities to permit them to remain in Zimbabwe.

Marriage is a juristic act sui generis. It gives rise to a physical, moral and spiritual community of life - a consortium omnis vitae. It obliges the husband and wife to live together for life (more realistically, for as long as the marriage endures) and to confer sexual privileges exclusively upon each other. Conjugal love embraces three components: (i) eros (passion); (ii) philia (companionship); and (iii) agape (self-giving brotherly love). See T v T 1968 (3) SA 554 (R) at 555E (1968 (2) RLR 178 (GD)) at 180G-H. The duties of cohabitation, loyalty, fidelity and mutual assistance and support flow from the marital relationship. To live together as spouses in community of life, to afford each other marital privileges and to be ever faithful, are the inherent commands which lie at the very heart of marriage. See Van Oosten v Van Oosten 1923 CPD 409 at 411; Excell v Douglas 1924 CPD 472 at 476 in fine; and, generally, Schafer Family Law Service sec A3 at 2. 'Marriage', as observed by Warren CJ in Loving v Virginia 388 US 1 (1967) at 12, 'is one of the basic rights of man, fundamental to our very existence and survival.' Eighty years earlier in Maynard v Hill 125 US 190 (1887) at 211-12 Justice Field spoke eloquently of marriage as

'... an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilisation nor progress.... It is... a social relation, like that of parent and child, the obligations of which arise not from the consent of concurring minds, but are the creation of the law itself, a relation the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilisation, the purest tie of social life, and the true basis of human progress.... In strictness, though formed by contract, it signifies the relation of husband and wife, deriving both its rights and duties from a source higher than any contract of which the parties are capable, and as to these uncontrollable by any contract which they can make. When formed, this relation is no more a contract than "fatherhood" or "sonship" is a contract.'

These sentiments hold as firm today as they did then.

It is in the light of the institution of marriage as I have ventured to portray it that the claim by the wives to an infringement of their fundamental right to freedom of movement has to be adjudged.

In support of the wives' contention, counsel relied strongly on the second aspect of the Dow case supra. It was there argued by the Attorney-General that Mrs Dow had no locus standi to have brought the application in the Court a quo since at issue was the right of her two young children to citizenship of their birth, their father being an alien. Amissah JP at 659g-h summed up Mrs Dow's answer to this submission in these words:

'The case which I understand the respondent to make is that due to the disabilities under which her children were likely to be placed in her own country of birth by the provisions of the Citizenship Act 1984, her own freedom of movement protected by s 14 of the Constitution [the equivalent to s 22 of the Constitution of Zimbabwe] was correspondingly likely to be infringed and that gave her the right under s 18(1) to come to Court to test the validity of the Act. What she says is that it is her freedom which has been circumscribed by the disabilities placed on her children.'

The learned Judge President then proceeded to rule in favour of Mrs Dow. He said at 660c-e: 'It is totally unrealistic to think you could permanently keep the child out of Botswana and yet by that not interfere with the freedom of movement of the mother. When the freedom of the mother to enter Botswana to live and to leave when she wishes is indirectly controlled by the location of the child, excluding the child from Botswana is in effect excluding the mother from Botswana. If the exclusion is the result of a determination of the child's citizenship which is wrong, surely this would amount to an interference with, and therefore an infringement of, the mother's freedom of movement.

To like effect Aguda JA remarked at 678d-e:

'In my view, it is too artificial and unnatural to hold that in these circumstances (the two children being subject to expulsion from Botswana away from the mother and away from the only place they regarded as their home) the respondent's... right to free movement within and into and out of Botswana (has) not been breached.'

Bizos JA, the third member of the majority of the Court, at 684e, stressed the strength of the bond between a mother and her children as the determinative factor.

Mrs Dow's situation seems to me analogous to that which pertains to the wives. The bond between husband and wife may be equally as strong as that between mother and child. Marriages are almost invariably entered into by parties who have deep affection for one another and who intend to devote the remainder of their lives together. Although the condition of matrimony does not, as a concept of law, make the spouses one flesh - una carc, - it nonetheless embodies the obligations to found a home, to cohabit, to have children and to live together as a family unit. It is the most fundamental institution known to mankind - 'the first step from barbarism' and 'the true basis of human progress'.

Decisions concerning art 17 of the International Covenant on Civil and Political Rights, and art 8(l) of the European Convention on Human Rights, both provisions of which afford protection against interference with family life, lay emphasis upon the importance of preserving well-established family ties.

In Aumeeruddy-Cziffra and Others v Mauritius (1981) 62 International Law Reports 255, the United Nations Human Rights Committee examined the effect of a law passed by the Government of Mauritius which removed the right of alien husbands of Mauritian women citizens to the right of residence and immunity from deportation, and found that it infringed art 17 of the Covenant. It was stated at 293-4:

'The Committee takes the view that the common residence of husband and wife has to be considered as the normal behaviour of a family. Hence, and as the State party has admitted, the exclusion of a person from a country where close members of his family are living can amount to an interference within the meaning of art 17. In principle, art 17(1) applies also when one of the spouses is an alien. Whether the existence and application of immigration laws affecting the residence of a family member is compatible with the Covenant depends on whether such interference is either "arbitrary or unlawful" as stated in art 17(1), or conflicts in any other way with the State party's obligations under the Covenant.

In the present cases, not only the future possibility of deportation, but the existing precarious residence situation of foreign husbands in Mauritius represents, in the opinion of the Committee, an interference by the authorities of the State party with the family life of the Mauritian wives and their husbands. The statutes in question have rendered it uncertain for the families concerned whether and for how long it will be possible for them to continue their family life by residing together in Mauritius.'

The European Court of Human Rights in Abdulaziz Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471 at Para 62 and Berrehab v Netherlands (1989) 11 EHRR 322 at Para 21 indicated that the relationship created between two spouses to a lawful and genuine marriage had to be regarded as 'family life' within the meaning of art 8 of the Convention and was sufficient to attract such respect as may be due under that article.

In Moustaquim v Belgium (1991) 13 EHRR 802 at Para 3 6 and Beljoudi v France (1992) 14 EHRR 801 at paras 56 and 57, the same Court held in each instance that, notwithstanding the fairly formidable criminal records possessed by the applicant, the deportation order issued against him was, in the particular circumstances of his close family ties in the country, likely to compromise the continuation of his family life and accordingly amounted to an interference with the right to respect for family life.

I must also mention the judgment of the European Commission of Human Rights in European Commission of Human Rights Application No 9773/82 v United Kingdom (1983) 5 EHRR 296, for reliance was placed upon it by the respondents' counsel. Alluded to was the statement that 'a right to marry and found a family does not, in principle, include the right to choose the geographical location of the marriage'. In the context of the particular facts of that case the observation was probably justifiable, for the applicant was seeking to establish a new relationship by marrying a foreign woman whom he had never actually met, who had been refused entry into the United Kingdom and, if admitted, would be dependent, in all probability, on public funds. The action taken, therefore, caused no actual interference with family life.

Although there is no provision in the Constitution of Zimbabwe which equates directly to art 17 of the Covenant or art 8(1) of the Convention, s 11 guarantees every person 'protection for the privacy of his home'. Taken in conjunction with s 22(1) and interpreting the whole generously and purposively so as to eschew the 'austerity of tabulated legalism', I reach the conclusion that to prohibit the husbands from residing in Zimbabwe and so disable them from living with their wives in the country of which they are citizens and to which they owe allegiance, is in effect to undermine and devalue the protection of freedom of movement accorded to each of the wives as a member of a family unit.

The order

In the result:

1. The application is allowed with costs to be paid by the second respondent, save for such costs as were occasioned in the preparation of pp 27-46 (inclusive) in the affidavit of Edith May Caules.

2. It is hereby declared that the right of the applicants under s 22(1) of the Constitution of Zimbabwe to freedom of movement, that is to say, the right to move freely throughout Zimbabwe, the right to reside in any part of Zimbabwe, and the right to enter and to leave Zimbabwe, has been contravened by the decision of the first respondent not to permit their alien husbands to reside with them in Zimbabwe.

McNally JA, Korsah JA, Ebrahim JA and Muchechetere JA concurred.

Applicants' Legal Practitioners: Scanlen & Holderness. Respondents' Legal Practitioners: Civil Division of the Attorney-General's Office.



[1]* Now reported at 1995 (1) SA 551 (ZS) - Eds.

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