The applicant, a Pakistan national, was resident in Zimbabwe under a temporary employment permit issued on 7 June 2008. He worked in the purification and bottling of drinking water. In May 2010, he and his partners obtained an investment licence under the Zimbabwe Investment Authority Act. He sought to apply for a residence permit as an investor but was told his file was missing. The applicant's temporary employment permit expired on 17 June 2010. On 22 June 2010, the first respondent opened a temporary file and accepted his application for a residence permit, but instead of extending his permit as allegedly promised, arrested and incarcerated him as a prohibited immigrant on the basis that his permit had expired. The applicant was issued with a Notice to Prohibited Person on 22 June 2010 advising him of his right to appeal to the Magistrate's Court within three days. He did not lodge such an appeal but instead approached the High Court on an urgent basis and also lodged an appeal with the Co-Ministers of Home Affairs, which was still pending.
The urgent chamber application was dismissed with costs.
Where an applicant has been issued with a prohibition order under immigration legislation and is advised of the right to appeal to the Magistrate's Court within a specified period (three days), the applicant must exhaust that remedy before approaching the High Court for relief. Where an appeal to a superior administrative authority (Co-Ministers) is pending and that authority has made provision for the applicant's interim status, the High Court should not anticipate the outcome of that appeal by granting relief on the same issues. An applicant seeking urgent relief must properly establish urgency and cannot rely on self-created urgency arising from failure to follow prescribed procedures.
The court observed that it was unclear on the papers whether the applicant had been unduly denied the right to lodge a timeous application on account of the missing file, noting this was "difficult of resolution on the papers as they stand." The court also commented that even if the applicant had missed the three-day appeal deadline to the Magistrate's Court, "it would still have been appropriate to lodge an appeal with the Magistrate Court be it out of time and tender an explanation as to why he was out of time." The court questioned why the applicant did not report the first respondent to the Co-Ministers for alleged insubordination in failing to comply with their directive to assist the applicant pending the appeal.
This case is significant in Zimbabwean immigration law for establishing the importance of exhausting statutory remedies and following prescribed appeal procedures before approaching the High Court for judicial review. It reinforces the principle that courts will not intervene in administrative matters where alternative remedies are available and have not been pursued, particularly where an appeal to a superior administrative authority (the Co-Ministers) is pending. The case also illustrates the requirement for proper compliance with procedural requirements in immigration matters, including the three-day appeal period to the Magistrate's Court following a prohibition order. While this is a Zimbabwean case and not binding in South Africa, it may have persuasive value in similar immigration and administrative law contexts.