Online Reporter
Fidelis Munyoro
Chief Court Reporter
The High Court has overturned a regional magistrate’s contempt ruling against the immigration department and immigration officer Prosper Kambarami, holding that the lower court punished officials for failing to comply with obligations that were never contained in the original court order.
Justices Nevile Wamambo and Garainesu Mawadze, ruled that the contempt application should never have succeeded because the permanent residence sticker had in fact been transferred to the respondent’s new passport, as ordered by the court.
“The original order required the transfer of the respondent’s permanent residence sticker; it did not require the transfer of an ‘unaltered’ sticker,” Justice Wamambo J said.
The court found that the magistrate expanded the earlier order by introducing a requirement that the transferred permit be “unaltered” before the officials could avoid imprisonment.
“Contempt enforces an extant order; it does not authorise a court to rewrite the order and then punish supposed disobedience of the rewritten version,” the judge said.
The dispute arose after Nigerian national Jerome Ndubuise Okeke, who holds permanent residence in Zimbabwe, obtained an order directing immigration authorities to transfer his permanent residence sticker from an expired passport to a new one.
Immigration officials later transferred the permit after Okeke paid the prescribed fee.
The new permit, however, carried an endorsement requiring him to enter Zimbabwe before a specified date.
Okeke returned to court, arguing that the endorsement amounted to disobedience of the earlier order.
The High Court rejected that argument, noting that Okeke’s own papers acknowledged that a permanent residence sticker had been transferred.
“The dispute was therefore not whether a permanent residence permit had been issued, but whether the endorsement placed upon it was acceptable to the respondent,” Justice Wamambo said.
The judges also held that the magistrate erred by finding Kambarami personally liable for contempt even though he had not been a party to the original application.
“The magistrate’s conclusion that by deposing to that affidavit he thereby became a party to the earlier proceedings… cannot be reconciled with the inter parties nature of judgments and contempt proceedings,” the judgment reads.
The court further ruled that the citation of the principal director of immigration was defective because the office cited in the proceedings did not exist. It held that the lower court could not cure that defect without a proper amendment to the proceedings.
Allowing all 10 grounds of appeal, the court found that the magistrate misdirected herself on the identity of the parties, the preliminary objections and the question of compliance with the original order.
“The contempt finding and the suspended sentence cannot stand,” Justice Wamambo said.
The judge set aside the contempt conviction and replaced it with an order dismissing the application with costs.
