Leslie Levente Petho v Minister of Home Affairs and Registrar-General of Citizenship

Before December 1984, Zimbabwe permitted dual citizenship. The Citizenship of Zimbabwe Act No. 23 of 1984 abolished dual citizenship with effect from 1 December 1984. Section 9(7) required citizens who held foreign citizenship to renounce it within one year or cease to be Zimbabwean citizens. The renunciation forms initially used proved ineffective as they did not comply with the foreign countries' laws (see Carr v Registrar-General 2000 (2) ZLR 433 (S)). The Citizenship of Zimbabwe Amendment Act No. 12 of 2001, promulgated on 6 July 2001, amended s 9(7) requiring citizens who held or purported to renounce foreign citizenship to effectively renounce it in accordance with foreign law within six months. A dispute arose when the Registrar-General interpreted this provision as requiring renunciation not only of actual foreign citizenship but also of any right to claim foreign citizenship arising from parents' place of birth. The appellant sought leave under s 3(1) of the Class Actions Act to institute a class action on behalf of citizens of Zimbabwe by birth whose parents were born in foreign countries but who had never applied for or been granted foreign citizenship, to challenge this interpretation. The High Court dismissed the application on the ground that the appellant was not a suitable person to represent the class, particularly the rural, poor and unsophisticated members.

• Whether the High Court erred in refusing leave to institute a class action on the basis of the appellant's unsuitability as a representative
• Whether the High Court properly applied s 5(1) and s 5(2) of the Class Actions Act [Chapter 8:17]
• Whether the High Court properly applied s 7(1)(a) of the Class Actions Act regarding the manner of giving notice to class members
• The requirements for granting leave to adduce further evidence on appeal
• Whether the proposed method of notifying class members (publication in two newspapers) was adequate

The appeal was allowed with costs (borne by the second respondent). The High Court order was set aside and substituted with an order granting the application for leave to institute a class action. Paragraph 4 of the draft order was amended to require the appellant, by 30 November 2002, to: (a) cause publication of the notice in The Herald and The Daily News on five different dates; and (b) cause the notice to be read in Shona, Ndebele and English during prime time on Radio Zimbabwe on five different dates.

Under s 7(1)(a) of the Class Actions Act, it is the duty of the court granting leave to institute a class action, not the applicant, to specify the manner in which and the period within which notice must be given to class members. Where a court has accepted that a class exists and that a class action is appropriate, it must give directions on the best way of notifying as many members of the class as possible. A finding that an applicant is unsuitable to represent a class does not justify dismissing an application for leave to institute a class action; rather, under s 5(1), the court must appoint another suitable person as the representative. The adequacy of notice to class members must take into account the characteristics of the class, including rural, poor and less educated members, and may require multiple forms of notice including publication and radio broadcasts in indigenous languages.

The Court observed that members of the class in this case had nothing to lose from the class action: if successful, the disputed interpretation of s 9(7) would not apply to them; if unsuccessful, costs would be paid by the Legal Resources Foundation rather than class members, making it unlikely any member would wish to be excluded. The Court also confirmed the requirements for adducing additional evidence on appeal as set out in S v de Jager 1965 (2) SA 612 (A), emphasizing that there must be finality to litigation and that parties who elect to stand by their evidence at trial should not be allowed to adduce further evidence on appeal absent special reasons. Section 7(3) of the Class Actions Act provides that failure of a class member to receive notice does not invalidate the class action or prevent the member from being bound by it.

This case is significant in South African and Zimbabwean jurisprudence as an early interpretation and application of class action legislation. It clarifies important procedural requirements for class actions, particularly: (1) the court's duty to specify the manner and timing of notice to class members under s 7(1)(a); (2) that inadequacy of proposed notice methods does not justify dismissal but requires judicial direction on appropriate notice; (3) that unsuitability of the applicant as representative requires appointment of another suitable person rather than dismissal; and (4) the importance of ensuring adequate notice to all segments of society, including rural, poor and less educated persons, through multiple media including indigenous language radio broadcasts. The case demonstrates judicial recognition of the purpose of class action legislation to provide access to justice for groups who might otherwise be unable to vindicate their rights individually, particularly in matters affecting fundamental rights like citizenship.