Rory Vashon Wheeler v Registrar General of Citizenship and Others

The applicant was born on 31 August 1985 at Wagga Wagga, Australia to parents David Hugh Wheeler and Tessa Mary Hunter Christie, both born in Zimbabwe. His grandparents were Europeans born in England and South Africa. At the time of his birth, his parents were citizens of Zimbabwe. The applicant grew up in Zimbabwe and travelled on his mother's passport until 31 July 2002. He lived outside Zimbabwe since about 24 April 2000 when he and his sibling left with their mother to France, and have been travelling on an Australian passport with a ten-year residence permit for France. On 9 January 2019, the applicant engaged the Registrar General of Citizenship to assert his citizenship by birth. On 22 January 2019, the Registrar General took issue with his parents' ordinary residence at the time of his birth. The applicant's mother had been issued with a Zimbabwean passport on 25 July 1981 and gave birth to him during travel to Australia in 1985. In 1986 his mother travelled back to Zimbabwe to register his birth and resided there until 1991. The first respondent denied his claim of citizenship, stating he must prove the place of ordinary residence of his parents at the time of his birth. The applicant approached the court seeking a declaration that he is a citizen of Zimbabwe by birth.

• Whether the applicant is a citizen of Zimbabwe by birth or by descent under section 36(2)(a) of the Constitution of Zimbabwe 2013
• What constitutes 'ordinarily resident in Zimbabwe' for purposes of determining citizenship by birth under section 36(2)(a)
• What is the standard of proof required to establish ordinary residence in Zimbabwe at the time of birth for citizenship purposes
• What type of evidence is required to prove ordinary residence for citizenship purposes
• Whether the onus of proof lies on the applicant or on the respondents to prove or disprove ordinary residence

The application for a declaratory order was dismissed. The applicant was ordered to pay the respondents' costs on a legal practitioner and client scale.

The binding legal principle established is that under section 36(2)(a) of the Constitution of Zimbabwe 2013, a person born outside Zimbabwe can only claim citizenship by birth if they can prove on a balance of probabilities that either of their parents was ordinarily resident in Zimbabwe at the time of their birth. The onus of proof lies on the applicant claiming citizenship by birth, not on the State to disprove such residence. Documentary evidence showing the immigration status and actual physical presence and residence in Zimbabwe at the material time is required. A passport issued years after birth, even if it includes the child's details, is insufficient evidence of ordinary residence at the time of birth. Where such evidence cannot be produced, a person born outside Zimbabwe to Zimbabwean citizen parents who cannot prove ordinary residence of the parents in Zimbabwe at the time of birth is a citizen by descent under section 37, not by birth under section 36(2)(a).

The court observed that the phrase 'ordinarily resident in Zimbabwe' appears at least three times in the Constitution (sections 36(2)(a), 43(2)(b) and 91(1)(c)) but is not defined anywhere in the Constitution. The court also noted that the standard of proof and the type of evidence required to prove ordinary residence is likewise not provided for anywhere in Chapter 3 or any other part of the Constitution. The court commented that the applicant provided wrong citations for the authorities relied upon (Neha Patel v Registrar General & Ors SC-888/18 and Registrar General of Elections & Ors v Tsvangirai SC-30/02), which did not yield any good results. The court suggested that relevant evidence of ordinary residence would include utility bills, school reports, pay-slips, passport copies highlighting when the applicant left the country, residence status held when living outside Zimbabwe, and evidence of actually residing and growing up in Zimbabwe.

This case is significant in Zimbabwean constitutional and citizenship law as it addresses the interpretation of section 36(2)(a) of the Constitution of Zimbabwe 2013 concerning citizenship by birth for persons born outside Zimbabwe. The case establishes important principles regarding: (1) the burden of proof in citizenship applications - that the applicant bears the onus of proving ordinary residence rather than the State having to disprove it; (2) the type of evidence required to establish 'ordinary residence' in Zimbabwe, including utility bills, school certificates, pay-slips, passport copies showing immigration status and travel history; (3) the distinction between citizenship by birth and citizenship by descent under sections 36 and 37 of the Constitution; and (4) that retrospective documentation issued years after birth is insufficient to prove ordinary residence at the time of birth. The judgment highlights the gap in the Constitution regarding the definition of 'ordinarily resident' and the standard of proof required, leaving it to applicants to establish this through documentary evidence.