The People v The Registrar-General of the Department of National Registration, Passport and Citizenship (Ex-parte Lindy Claudette Kopecky) (2025/HP/0484) (29 July 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2025/HP/0484 AT THE PRINICIPAL REGISTRY HOLDEN AT LUSAKA (CWIL JURISDICTION) IN THE MATTER OF: ORDER 53 OF THE RULES OF THE SUPREME COURT OF ENGLAND AND WALES 1965 (WHITE BOOK 1999 EDITION) AND APPLICATION FOR JUDICIAL REVIEW ST THE DECISION OF THE RAR-GENERAL OF THE DEPARTMENT TIONAL REGISRATION, PASSPORT AND NSHIP, DATED lQTH DECEMBER 2024. BETWE E PEOPLE AND THE REGISTRAR-GENERAL OF THE DEPARTMENT OF NATIONAL REGISTRATION, PASSPORT AND CITIZENSHIP (Ex-parte Lindy Claudette Kopecky) Before: The Hon. Mr. Justice Charles Zulu For The Applicant: Mr. R. Peterson, and Mr. M. Malambo, of Messrs Howard Marietta & Peterson legal Practitioners. The Respondent: No Appearance. JUDGMENT Cases referred to: 1. Amanda Muzyamba and Another v Attorney General (2012) Z.R. 17). 2. Council of Civil Servants Union v Minister for Civil Service [1984] 3 ALL E.R. 935. 3. Fredrick J. T. Chiluba v the Attorney General (2003) Z.R. 153 at 171-173. Legislation & other materials referred to: 1. Rules of the Supreme Court of England and Wales 1965 (White Book 1999 Edition). 2. High Court Rules Chapter 27 of the laws of Zambia. 3. The Birth and Deaths Registration Act Chapter 51 of the Laws of Zambia. 4. Births and Deaths Registration (Aircraft) Rules Statutory Instruments No. 247 of 1973. 1.0 INTRODUCTION 1.1 The Applicant, Linda Claudette Kopecky took out judicial review proceedings dated April 8, 2025, against the Respondent, in particular against the decision dated December 10, 2024, of the Registrar-General of the Department of National Registration, Passport and Citizenship (hereinafter called the Registrar-General). 1.2 The application was made pursuant to Order 53 Rules of the Supreme Court {RSC) of England and Wales 1965 {White Book 1999 Edition), applicable to Zambia by default rule. The Applicant was pursuant to Order 53 rule 4(1) RSC granted leave to apply for judicial review, after having delayed to do so within the stipulated timeline of three months from the time the decision complained thereof was made. 1.3 The Applicant 1s challenging the decision of the Registrar-General refusing to register the death of the Applicant's husband, Mr. Mark Karel Kopecky. The reliefs sought by the Applicant are: -J2- 1. 3. 1 (i) an order of certiorari for purposes of quashing the decision of the Registrar-General dated December 1 O, 2024 refusing to register the death of Mr. Mark Karel Kopecky and declining to issue a death certificate. (ii) A declaration that: (a) the Registrar-General's refusal dated l<Jth December 2024 was unlawful and ultra vires; (b) the death of Mr. Mark Karel Kopecky, occurring aboard an aircraft within Zambian airspace, is registrable under the Births and Deaths Registration Act, Cap 51 of the laws of Zambia; and (c) a mandatory order compelling the Registrar-General to immediately register the death of Mr. Mark Karel Kopecky and to issue and release the corresponding death certificate to the Applicant within seven (7) days thereafter. 1.4 The application was unopposed, neither did the Respondent make an appearance at the hearing of the matter on May 21, 2025, despite being served with court process. Therefore, the facts deposed to by the Applicant in her affidavit verifying facts are incontrovertible. 2.0 BACKGROUND 2.1 On August 24, 2024, the Applicant, Lindy Claudette Kopecky, a Zimbabwean national and her husband, Mark Karl Kopecky, a British national were passengers aboard Flight No. EK713 belonging to Emirates Airlines. The couple were flying from Dubai to Harare via Lusaka. But shortly before landing in Lusaka for a stop over, at Kenneth Kaunda International Airport (KKIA), Mr. Kopecky is reported to have suffered an apparent cardiac arrest on board. -J3- 2.2 The recount unveiled by the Applicant is that, when her arrest, crew husband suffered what appeared to be a cardiac members attended to, but he was non-responsive. She stated that crew members wrapped him, and took him to the first class. She narrated that at that material time she immediately took a picture of him using her and the phone detected iPhone, the location to be Chisamba, in the Central Province of the Republic of Zambia. 2.3 That upon landing at the KKIA, the Zambia Police Service officers at the KKIA issued a Brought-In-Dead (BID) Certificate, and a referral was made to the University Teaching Hospital (UTH) at Lusaka. That at the University Teaching Hospital, Mr. Kopecky was pronounced dead. And the B.I.D Certificate issued by the UTH Police Station was exhibited, and that the body was deposited in the UTH mortuary. 2.4 According to the Applicant, in the light of the foregoing, she decided not to proceed to Zimbambwe, but to temporarily stay in Zambia to attned to all requisite logistics, in particular to obtain a death certificate, in order to transport the body to Zimbabwe, and to obtain letters of administration for his estate. 2.5 She stated that, on September 23, 2024, her advoactes, Howard Marrietta & Peterson Legal Practitioners wrote to the Registrar-General, requesting for the issuance of a death certificate. That this was followed by a second letter dated October 15, 2024, and by another letter, dated Novermber 4, 2024. -J4- 2.6 That the response to the aforementioned requests was in a letter dated December 10, 2024, by Mr. Davies Mweemba Chikalanga, the Registrar-General, declining the said request because, the deceased met his death on a foreign plane not registered in Zambia. The said letter was exhibited, and here-below reproduced. 2.6.1 REF: DEATH CERTIFICATE MARK KOPECKY, BRITISH PASSPORT NUMBER: I refer to our earlier minute dated 3()th August, 2024 in which we responded to your minute dated 23rd September, 2024. In the minute, we indicated that the office was not in a position to issue a Death Certificate in respect of Mark Karel Kopecky, a male British national, holder of British Passport No. 127502604 who died on board Emirates Aircraft on 24th August, 2024. Please note that the position of the Department concerning the matter has not changed. According to Section 21 (3) of the Birth and Death Registration Act Cap 51 of the Laws of Zambia, deaths that occur aboard a Plane or Vessel not registered in Zambia are not registered by the Zambia Government, but rather the country where the Plane or Vessel is registered. In that regard, we advise that you consider engaging the United Arab Emirates where the said plane is registered. Submitted for your information. Signed Davies Mweemba Chikalanga Registrar General DEPARTMENT OF NATIONAL REGISTRATION, PASSPORT AND CITIZENSHIP -JS- 3.0 THE ARGUMENTS 3.1 In terms of advancing the ground of illegality to challenge the said decision, it was noted that, the impugned decision purported to rely on section 21 (3) of the Birth and Deaths Registration Act. It was argued that no such provisions exist in the Births and Deaths Registration Act Chapter 51 of the Laws of Zambia. It was submitted that, the purported section 21 (3) relied on by the Registrar General was imaginary, because section 21 of the Act, had no sub-section 3. It was observed that, in fact, section 21 of the Act, only empowers the responsible Minister to make rules. For the avoidance of doubt, section 21 of the Act in its entirety provides: 3.1.1 21. (1) The Minister may by statutory instrument make rules for the proper carrying out of the provisions of this Act. (2)Without prejudice to the generality of the foregoing power, such rules may prescribe- (a) the place or places at which shall be situate the office of the Registrar-General and of any Registrar respectively, and the hours at which notices of birth and death respectively may be given; (b) the form and manner of giving any notice or return required by this Act and the particulars to be furnished therein; (c) the form and manner in which registration of births and deaths respectively shall be effected; (d) the form of all registers and other documents required for the purposes of this Act; (e} the conditions under which registers and other documents may be inspected; -J6- (fJ the places at which notices of births and deaths occurring on board vessels while within the waters of the Republic shall be given; (g) the fees to be paid under provisions of the Act. 3.2 Additionally, it was argued that the functions of the Registrar- General in terms of registering deaths were well spelt out under the Act. And that, the Act does not in any sense confer on the Registrar-General, the discretion to refuse registration of deaths on grounds advanced by the Registrar General. It was submitted that the Registrar-General acted outside his statutory powers. It was contended that the Registrar-General invoked a provision that Parliamenrt did not enact. According to Counsel, this was a "classic error of the law''. 3.3 And in terms of the ground of unreasonableness, against the decision complained thereof, it was argued that no reasonable Registrar-General properly directing his mind on the law, would decide that a death should not be registerd on the basis of a sub-section that does not exist. That such a decision defies comprehension and logic. 3.4 The decision refusing to issue a legal document (death certificate) was said to be absurd, perverse and capricious. 3.5 I was thus urged to grant to the Applicant the reliefs sought. -J7- 4.0 DETERMINATION 4 .1 I have carefully considered the affidavit verifying facts and the supporting arguments by Counsel. As previously stated, the application was unopposed, and the Respondent made no appearance at the hearing of this matter. The undisputed facts are reaffirmed. 4.2 It is opportune to recall that, judicial review as a public law remedy is a process that enables claimants, invariably casualties of administrative injustices to challenge and test the lawfulness of decisions made by public bodies, public officers or public authourities. It is settled that this remedy, is necessary for checks and balances, and for holding public bodies accountable, by ensuring that both the governed and the government adhere to the rule of law ( see Amanda Muzyamba and Another v Attorney General1 ). 4.3 The pith and substance of challenging the decision is based on the ground of illegality. In the case of Council of Civil Servants Union v Minister for Civil Service2 as regards illegality or, the avoidance of illegality in decision making process, Lord Diplock, incisively cautioned as follows: 4.3.1 It is trite that a decision-maker should understand correctly the law that regulates his decision-making power and must give effect to it. Any departure from that principle shows a failure to exercise that authority correctly. 4 .4 And our Supreme Court in the case of Fredrick J. T. Chiluba v the Attorney General3 cited with approval the decision in Council of Civil Servants Union v Minister for Civil Service. -J8- The Court in the latter case outlined the conditions for the ground of illegatlity to succeed, by stating that, the applicant has to prove that the decision: "contravened or exceeded the terms of the law which authorised the making of that decision or, that the decision pursues an objective other than that which the power to make the decision was conferred". 4.5 The Birth and Deaths Registration Act, governs the registration of all births and deaths in Zambia. And section 5 of the Act makes it mandatory that the death of every person dying in Zambia shall be registered in accordance with the provisions of the Act. In fact, failure to give notice of death within the stipulated time is crimilized under section 9 of the Act. And under section 8 of the Act, the Registrar-General is obligated to keep a register of deaths. 4.6 Mr. Kopecky did not board the plane from Dubai as a dead person, but as living person, and was still living when the aircraft was hovering the Zambian airspace, and about to land at KKIA. He was medically pronounced dead at the UTH. All the undisputed facts, point to support the legal position that Mr. Kopecky died in Zambia, nothwistanding the beginning of his demise was on an aircraft registered overseas. The death of the deceased is registrable in Zambia. 4. 7 According to the Registrar-General, the basis of refusing to register the death and issue a death certificate was anchored on the purported section 21 (3) of the Act. As rightly pointed out by the Applicant's Counsel, sub-section 3 is non-existant in the -J9- Act, neither is there such a provison elsewhere in the Act or the Rules. 4.8 Clearly, section 21 of the Act upon which the Registrar-General seemingly placed premium to reject to issue a death certificate to the Applicant, has nothing to do with proscription of issuing a death certificate to a death occurring on a 'foreign plane' flying within Zambia, and scheduled for a stop over in Zambia. The section is explicit, it speaks to the making of Rules under the Act. 4. 9 Not only is it regretable that the Registrar-General misinformed himself and the Applicant as regards the correct position of the law, his decision epitomizes a classic example of administrative overreach. By way of purporting to enforce the refusal to issue a death cerficate based on serious misinterpretation of the law. 4.10 Perhaps the Registrar-General miscontrued the provisions of the Birth and Deaths Registration (Aircraft} Rules, Statutory Instrument No. 247 of 1973, which provides: 4.10.1 3. (1) The owner of the an aircraft registered in Zambia, or if he be not resident in Zambia, his agent in Zambia, shall, as soon as practicable but not later than six months after the occurrence in any part of the world of a birth or death in the aircraft, or of a death outside Zambia of a traveller in the aircraft who is killed on the journey in consequence of an accident, transmit to the Registrar-General a return of such birth or death in the form, in accordance with the instructions, and containing the particulars prescribed in the First Schedule in the case of a birth or in the Second Schedule in the case of a death. -J10- 4.11 It is clear and obvious from the above stated rule that, a death occurring anywhere in the world aboard a Zambian registered plane is amenable for registration in Zambia. In converse, this provision should not be misconstrued to imply that, a death occurring within Zambian airspace or, on land aboard a plane or vessel registered outside Zambia is not registrable in Zambia. 4.12 Likewise, an assumption that the UAE in its laws for the purpose of registration of death, recognizes deaths occurring anywhere in the world aboard planes registered in the UAE, does not by itself render moribund the Registrar-General's statutory functions to register the death of Mr. Kopecky. The foreign registration of the aircraft in issue was immaterial because, it is highly probable that Mr. Kopecky's death occurred within Zambia. 4.13 Therefore, the Registrar-General's refusal to issue a death certificate was illegal. It was also unreasonable to suggest that the Applicant should have gone back to the UAE, where the plane was registered to obtain a death certificate, when the death of Mr. Kopeccky occurred in Zambia and medically pronounced so in Zambia. 5.0 CONCLUSION 5.1 In the light of the foregoing, I desire to restate that the decision of the Registrar-General to refuse to register and issue a death cerficate to the remains of Mr. Mark Karel Kopecky, having died and proununced dead within the jurisdiction of Zambia was unfounded and ultra vi res. 5.2 The application for judicial review 1s allowed. An order of certiorari 1s granted, quashing the decision of the -Jll- Registrar-General dated December 10, 2024, refusing to issue a death certificate to the Applicant in respect of the decedent, Mr. Mark Karel Kopecky. 5.3 Furthermore, an order of mandamus is hereby granted, directing the Registar-General to forwith register the death and issue a death certificate in respect of Mr. Mark Karel Kopecky. 5.4 Costs for the Applicant to be taxed in default of agreement. DATED THIS 29TH DAY OF JULY, 2025 C :::::::;.... s:::c:::::::::: ............................................................... THE HON. MR. JUSTICE CHARLES ZULU -J12-