The applicant also seeks an order declaring certain conduct
of the State unconstitutional….,.
The applicant, however, urged the Court to grant the
applicant the relief sought in paragraphs 2 and 3 of the draft order,
which read:
“Whereupon after reading the documents filed of record and
hearing counsel for the parties, it is declared that –
2. That (sic) the practice by which accused persons who
freely attend at court from their homes are arrested at court for purposes of
appearing in court from custody is illegal and unconstitutional;
3. Consequently, that the applicant's arrest and detention
on 3 December 2013 was illegal and unconstitutional.”
Counsel for the applicant contended that there was need for
the Court to make a ruling on these issues to control or put an end to the
practice of arresting accused persons at court and lodging them in the cells
pending their appearance in court. This practice, it is common cause, is common
at the Magistrates' Courts.
The applicant averred that on the fateful day he attended
at court from his home, having been advised by the police officer in charge of
the matter that it would be heard on that day. He attended freely and
voluntarily, but was surprised, upon arrival at court, to be told by the police
officer, a Mr Mutonhodzi, that he was to be taken into the holding cells
and would appear in court as a person in custody.
He entered the holding cells at Rotten Row Magistrates'
Court under protest. He was taken over by the prison officer and appeared in
court from the said cells. In the cells, he mixed with accused persons of all
types from the remand prison and other police stations. The court released him
on free bail and remanded him out of custody. The court remanded him on free
bail at about 0900 hours. Despite his being remanded on free bail, he was
again led down to the holding cells and held there for the rest of the day
until he was released at about 1600 hours.
The applicant's case is that he should never have been
deprived of his liberty for the seven hours in the circumstances of this case.
Put differently, he lost his liberty for seven hours as a result of the actions
by the police or the State. The actions of the police were arbitrary and
without legal basis.
The issue that falls for determination is whether or not
the deprivation of the applicant's liberty in the circumstances of this case
constitutes an unlawful arrest and/or detention, which violated his right to
liberty as guaranteed by section 49(1)(b) of the Constitution. It is
alleged that the deprivation of liberty experienced by the applicant is
routinely meted out to accused persons in similar circumstances at the
Magistrates Courts throughout the country.
The Law
The law relating to the right to liberty has been commented
on in a number of cases. In the case of Allan v Minister of Home Affairs and
Anor 1993 (1) ZLR 92 (H) REYNOLDS J had
this to say:
“Since time immemorial, the liberty of the individual has
been regarded as one of the fundamental rights of man in a free society. Long
before the Magna Carta codified the principle, almost eight hundred years
ago, man has pursued and jealously guarded his right to freedom of person. In
the words of Thomas Jefferson: 'The God who gave us life gave us liberty
at the same time.' Revolutions have been staged and wars have been fought in
the name of freedom. This includes Zimbabwe's own long and bitter struggle. The
protection of this right is enshrined in the Constitution of Zimbabwe, and the
courts will certainly play their part in preserving this right against all
infringements, and all attempts to erode or violate the principle involved.”
The arrest of an accused person that involves placing the
accused in custody invariably involves the deprivation of that person's right
to liberty. For that deprivation of liberty to be constitutional, it must be
lawful. If the arrest is unlawful, then it must also be unconstitutional.
It is common cause that the applicant was arrested at
court.
Section 49(1)(b) of the Constitution protects the
right to liberty against arbitrary or unlawful arrest. For an arrest to be
lawful, it has to be predicated on a just cause. In Muzondo v Minister of Home
Affairs and Anor 1993 (1) ZLR 92 (S) it was stated that the legality of an
arrest has to be predicated on the proper exercise of the discretion to arrest.
Section 25 of the Criminal Procedure and Evidence Act [Chapter 9:07]
authorises arrest, but such an arrest has to be based on a proper exercise of
the discretion to arrest.
The factors to be considered in deciding whether the
discretion to arrest was properly exercised are set out in Muzondo v Minister
of Home Affairs and Anor 1993 (1) ZLR 92 (S)…, as follows:
“In making the determination of whether the decision to
arrest the plaintiff is open to challenge, several important factors require to
be considered. They are –
(i) The possibility of escape;
(ii) The prevention of further crime; and
(iii) The obstruction of police enquiries.”
It is common cause that the applicant attended at the
police station prior to the court date and during the period that
investigations were conducted. He was sent home and not placed in custody. He
was advised of the court date and he freely attended at court - where his
liberty was curtailed by placement into the holding cells.
The question of whether he could escape obviously does not
arise once it is accepted that the applicant freely attended court on the day
in question. The prevention of the commission of further crimes or the
obstruction of police enquiries cannot have influenced the arresting police officers
on the facts of this case.
These are factors that must have already been weighed by
the police during investigations and did not lead to placement into custody. It
is quite clear that in this case none of the factors set as necessary for a
lawful arrest set out in Muzondo v Minister of Home Affairs and Anor 1993 (1)
ZLR 92 (S) existed before the applicant was arrested and placed into custody at
the court.
Counsel for the second and third respondents did not make
any meaningful submissions pertaining to the impugned practice. The second
respondent did not appear before the Court but submitted heads of argument. He
argued that there was no infringement of the applicant's personal liberty which
entitles him to the relief that he is seeking.
It appears the second respondent does not dispute what
transpired on the day in question, as alleged by the applicant. Basically his
argument is that this procedure is lawful because it is the standard procedure.
It is trite law that the police can only deprive a person
of liberty in accordance with the law. A detention is a deprivation of a
person's liberty, which is only permissible in terms of the law. It is common
cause that the applicant was detained. Once that is established, it is for the
respondents to establish the legal basis for the detention.
In this case, the applicant was not verbally arrested. He
was simply told that he was going to be in police custody up until being
granted bail by the court - and even after being granted 'free bail' he
remained in custody up until the end of the day. No legal basis was advanced by
the State justifying the detention of the applicant in the circumstances of
this case.
It follows, therefore, that the detention was unlawful and
a violation of the applicant's constitutional right to liberty.
It is also not disputed that what happened to the applicant
is common practice at criminal courts.
The Court is satisfied that this practice is
unconstitutional, in that it interferes with an accused person's right to
liberty without any regard to the legal requirements set out in Muzondo v
Minister of Home Affairs and Anor 1993 (1) ZLR 92 (S). I must, however, add the
caveat that each case has to be
determined on its own facts.
It is only in those cases where the facts are on all fours
with this case that this provides a precedent.
It is for these reasons that the Court, after reading
documents filed of record and hearing counsel, issued the following order:
“IT IS DECLARED
THAT (sic)
1. That the facts alleged by the State in this case, even
if proved, do not constitute a criminal offence.
Consequently, the first respondent's refusal to refer this
matter to the Constitutional Court violated the applicant's right guaranteed by
section 56(1) of the Constitution of Zimbabwe, as read with
section 175(4) of the Constitution.
2. That the applicant's arrest and detention, on
3 December 2013, at court, for the purpose of his appearing in court from
custody when he had freely attended at court was unlawful and unconstitutional
in terms of section 49(1)(b) of the Constitution of Zimbabwe….,.”
