Richard Paul Ernest Odendaal v Registrar-General of Zimbabwe and Others

The applicant was born in Harare, Zimbabwe on 30 November 1947. His father was born in Northern Rhodesia (now Zambia) and his mother was a British citizen. In October 2003, the applicant acquired citizenship by registration and was granted a certificate to that effect. The applicant is a citizen of the United Kingdom and holds a British passport. He previously held a Zimbabwean identity card (which he lost) and on several occasions held a Zimbabwean passport. The applicant sought a declaratur that he is a citizen of Zimbabwe by birth under sections 43(1) or 43(2) of the 2013 Constitution, claiming this would entitle him to dual citizenship and avoid paying visa fees when traveling to Zimbabwe. The 2nd respondent had granted him permanent residence status in June 2018.

• Whether the applicant qualifies as a citizen of Zimbabwe by birth under section 36(1) of the Constitution
• Whether the applicant qualifies under section 43(1) of the Constitution as someone who was a Zimbabwean citizen immediately before the publication date
• Whether the applicant qualifies under section 43(2) of the Constitution as someone born in Zimbabwe before the publication day with a parent who was a citizen of a SADC country and who was ordinarily resident in Zimbabwe on the publication day
• What evidence is required to prove that a parent was a citizen of a SADC country
• What constitutes 'ordinarily resident' for purposes of section 43(2)(b) of the Constitution

The application was dismissed with costs against the applicant.

For purposes of section 43(2) of the Constitution, an applicant seeking to establish citizenship by birth must prove: (1) that one or both parents was a citizen (not merely born in) a SADC country at the time of the applicant's birth - a birth certificate showing place of birth alone is insufficient evidence of citizenship; and (2) that the applicant was ordinarily resident in Zimbabwe on the publication date (22 May 2013). 'Ordinarily resident' means something more than temporary stay and refers to a person's home or the country to which they would naturally return, which is a factual question requiring evidence. Permanent residence status is a legal status and does not automatically establish ordinary residence. A certificate of citizenship by registration remains valid unless the action granting it is declared unlawful.

The court expressed concern about the scantiness of the applicant's founding affidavit, noting that in matters raising important constitutional questions, an applicant ought to give sufficient details upon which a court can make an informed decision. The court noted that the applicant seemed unsure whether he was relying on the fact that he was made to 'renounce' his citizenship by birth status. The court observed that the manner in which the applicant approached the matter was less than satisfactory, which influenced the costs order. The court also noted an error in the 2nd respondent's notice of opposition which misleadingly suggested it represented all respondents, and emphasized the importance of presenting correct information to the court.

This case clarifies the evidentiary requirements for establishing citizenship by birth under section 43(2) of the 2013 Constitution. It demonstrates that applicants must provide concrete evidence (not merely assertions) that: (1) a parent was actually a citizen of a SADC country (being born in a country is insufficient), and (2) they were ordinarily resident in Zimbabwe on the publication date. The case also establishes that permanent residence status is a legal status distinct from ordinary residence, which is a factual inquiry about where someone's home is. The judgment reinforces that the Constitution distinguishes between citizenship by birth and citizenship by registration, with different rights attaching to each status, particularly regarding dual citizenship. It also emphasizes that constitutional interpretation requires proper evidentiary foundation and that parties seeking constitutional relief must present detailed evidence to support their claims.