Brian Shaw and Ashleigh Kerryn Shaw v Registrar General of Citizenship and Others

The first applicant, Brian Shaw, was born in Johannesburg, South Africa on 5 December 1945. His father was a citizen of Botswana and his mother, Cornelia Johanna Cathrina Roux, was a Zimbabwean citizen born in Insiza district, Zimbabwe. His mother had gone to South Africa for secretarial studies but remained ordinarily resident in Zimbabwe, where his parents owned Hereford Farm in Darwin. The first applicant held South African citizenship and permanent residence status in Zimbabwe. The second applicant, Ashleigh Kerryn Shaw, was born on 14 May 1986 at Avenues Clinic in Harare, Zimbabwe to the first applicant and Isobel Shaw (nee Watt), a Zimbabwean citizen. Both applicants held South African citizenship. The Registrar General refused to recognize them as Zimbabwean citizens, issued the second applicant an identity card marked "alien," and required them to renounce their South African citizenship before granting full rights of Zimbabwean citizenship. The applicants sought declaratory relief confirming their citizenship by birth under section 36 of the Constitution of Zimbabwe.

• Whether the first applicant qualifies as a Zimbabwean citizen by birth under section 36(2) of the Constitution despite being born outside Zimbabwe
• Whether proof that the first applicant's mother was ordinarily resident in Zimbabwe at the time of his birth was sufficiently established
• Whether the second applicant qualifies as a Zimbabwean citizen by birth under section 36(1) of the Constitution
• Whether citizenship by birth under section 36 can be made conditional upon renunciation of foreign citizenship
• What constitutes 'ordinarily resident' for purposes of section 36(2) of the Constitution

1. The applicants are both and each citizens of Zimbabwe by birth and are entitled to all rights, privileges and benefits and subject to the duties and obligations of citizenship. 2. Paragraph 1 is not conditional upon renunciation of their South African citizenship. 3. There shall be no order as to costs.

1. Section 36 of the Constitution of Zimbabwe confers citizenship by birth as an absolute right that is not subject to any other constitutional provision and cannot be revoked by the State. 2. A person born outside Zimbabwe qualifies for citizenship by birth under section 36(2) if, at the time of their birth, either parent was a Zimbabwean citizen and ordinarily resident in Zimbabwe. 3. 'Ordinarily resident' means the place where a person has lawfully and voluntarily established their usual place of residence with intention to remain, and refers to their real home - the place to which they would naturally return from their wanderings. 4. Ordinary residence continues during temporary absences of long or short duration if the person genuinely considers the absence temporary and regards Zimbabwe as their real home. 5. A person born in Zimbabwe to a parent who was a Zimbabwean citizen at the time of birth is a Zimbabwean citizen under section 36(1) and need do nothing further to qualify for citizenship. 6. Citizenship by birth under section 36 cannot be made conditional upon renunciation of foreign citizenship, and holders of such citizenship are entitled to dual citizenship and full rights, privileges and benefits of Zimbabwean citizenship without any requirement to renounce other citizenship.

The court observed that a person may be ordinarily resident in Zimbabwe and another jurisdiction concurrently, citing the Mutumwa Dziva Mawere case. The court also noted comparative approaches to the concept of 'ordinary residence' from South African, Canadian and English jurisprudence, including that in taxation contexts, residence refers to the place where a person 'regularly, normally or customarily lives' or 'where he in mind and in fact settles into or maintains or centralises his ordinary mode of living'. The court drew an inference that while both 'residence' and 'ordinary residence' refer to more than occasional visits, ordinary residence connotes a permanent place of abode where belongings are stored and to which one regularly returns after temporary absences. The court also noted the constitutional principle that where rights and freedoms are conferred, derogations therefrom should be narrowly and strictly construed as far as the language permits.

This case is significant in Zimbabwean constitutional law as it provides important judicial interpretation of section 36 of the Constitution regarding citizenship by birth. It reinforces the principle established in Mutumwa Dziva Mawere that citizenship by birth is an absolute right that cannot be made conditional on renunciation of foreign citizenship, thereby affirming the constitutional provision for dual citizenship. The judgment provides valuable guidance on the meaning of 'ordinarily resident' in the citizenship context, drawing on comparative jurisprudence and establishing that temporary absence for purposes such as education does not terminate ordinary residence if the person intends to return and maintains their home in Zimbabwe. The case clarifies the rights of persons born outside Zimbabwe to Zimbabwean parents and those born in Zimbabwe to Zimbabwean parents, and limits the discretion of administrative authorities to impose conditions on constitutional citizenship rights.