MALABA CJ: The applicant approached the Constitutional Court alleging
that his right to personal liberty has been infringed by the first respondent,
a police officer on secondment to the second respondent (hereinafter referred
to as “ZACC”). The applicant asserts that the first respondent arrested him
following a warned and cautioned statement, alleging that he had committed
offences of abuse of office, fraud, corrupt concealment from a principal of
personal interests in a transaction, and obstruction of the course of justice.
The
ground on which the alleged infringement of the applicant's right to personal
liberty is based is that the arrest was unlawful for two reasons. The first
reason is that the police officer who arrested the applicant had no reasonable
suspicion of him having committed any of the offences he was alleged to have
committed. The applicant alleges that as a result of the arrest by the first
respondent he was deprived of liberty arbitrarily or without just cause. The
second reason for the allegation that the arrest was unlawful is that ZACC, under
whose authority the first respondent acted, has no powers of arrest. The
contention is that the first respondent could not, on behalf of ZACC, lawfully
do that which his principal had no power to do.
There
is a material dispute of the facts on which the allegation of the unlawfulness
of the arrest of the applicant is made. The conflict of facts cannot be
resolved without the hearing of oral evidence from the arresting detail and
those who were present during the interview of the applicant which preceded his
arrest.
The
issue for determination is whether the Constitutional Court has jurisdiction to
determine the question of the lawfulness of the applicant's arrest and, ipso facto,
violation of his right to personal liberty. The lawfulness of an arrest is an
issue of protection of the right to personal liberty, the determination of
which involves the interpretation and application of specific provisions of the
Criminal Procedure and Evidence Act [Cap. 9:07] (“the CP&E Act”).
The
Magistrate's Court, before which the applicant was required under the relevant
provisions of the CP&E Act to appear, and had undertaken to appear in terms
of the Indemnity of Release into the custody of his legal practitioner entered
into with the arresting detail, has jurisdiction to hear and determine the
question of the lawfulness of the applicant's arrest. The material dispute of
facts generated by the application would be resolved by the Magistrate's Court
before which the applicant would plead the alleged unlawfulness of his arrest.
The matter for determination does not fall within the jurisdiction of the
Constitutional Court. It is a matter, the determination of which does not
involve the interpretation, protection or enforcement of the Constitution.
There
being no constitutional matter on which a decision is required to be made, the
issue of which of the facts in dispute is the truth falls outside the
jurisdiction of the Constitutional Court.
The
Constitutional Court holds that it would not be within its competence to
determine the question of the lawfulness of the applicant's arrest. The law
governing the resolution of the matter required the applicant, like all
arrested persons, to appear before a Magistrate's Court to challenge the
lawfulness of his arrest.
The
detailed reasons for the decision are now set out.
The
facts on which the decision whether or not the applicant's arrest was lawful
are disputed. They are not fully disclosed in the founding affidavit. In any
case, they would relate to proof of a matter, the determination of which
involves the interpretation and application of statutory provisions by a remand
court.
The
applicant states that on 2 November 2016 he was informed that the Acting
Prosecutor-General had written to the third respondent, directing that he be
arrested. The fourth respondent denies writing a letter to that effect. He
admits that he wrote a letter directing the third respondent to follow due
process. There is a letter filed of record, the contents of which are clear. It
is the import of the letter that is in dispute as between the applicant and the
fourth respondent. The applicant states that not long after he was informed of
the existence of the letter, Silas Pondo, a Senior Assistant Commissioner
of Police and Acting Secretary of ZACC, visited him. Mr Pondo invited him
to the offices of ZACC for an interview. The applicant went to the offices of
ZACC at Mount Pleasant Business Park at 1500 hours on 2 November 2016
in the company of his lawyer, Mr Hussein, and his ministerial security
aides.
The
applicant avers that after a fifteen minute wait he and those who had come with
him were led into a boardroom. In the boardroom there were Mrs Farai
O. Mashonganyika-Chinyani, a Commissioner of ZACC; Mr Pondo;
Mr Lovemore Finde, an investigator; Mr Alex Masiye, the Chief
Investigations Officer; Sergeant Chacha; and a legal officer to ZACC.
The
applicant alleges that at the commencement of the meeting Mr Finde,
supported by Mrs Chinyani, indicated that his security aides had to leave
the room. He said he reluctantly acceded to the request. The applicant alleges
that Mr Finde requested that his legal practitioner leave the room as what
was about to take place was “just an interview”. Mr Hussein protested the
request on the ground that it was the applicant's constitutional right to have
a legal practitioner present during the interview. Mrs Chinyani then
indicated that Mr Hussein could stay on condition he did not ask questions
or interfere with the interview.
The
interview, which was video recorded, commenced at 3 pm. The applicant says
it proceeded with Mr Finde putting questions to him from a written list.
The applicant alleges that Mrs Chinyani and the legal officer to ZACC
interjected as he responded to the questions. They told him to answer the
questions put to him and avoid giving detailed responses. Mr Hussein
objected to the interjections, saying the interviewers were coercing him to
give answers they wanted to hear. The applicant averred that the first
respondent did not ask him any question in the course of the interview. He says
he got the impression that the first respondent was present as a recorder. Mr Pondo,
who deposed to the opposing affidavit on behalf of ZACC, said the first
respondent was part of the investigating team and not a recorder.
The
applicant said that after a “lengthy interview”, which ended at 7.30 pm,
Mr Finde informed him that ZACC had been investigating the case of alleged
corruption at the Zimbabwe Manpower Development Fund (hereinafter referred to
as “ZIMDEF”) for four months. He said they had concluded that the applicant had
committed the crime of abuse of office. The applicant's Ministry superintends
the operations of ZIMDEF. He said that he was told that the purpose of the
interview had been to get his views on the findings of the investigating team.
He was then “handed over” to the first respondent. The first respondent read a
warned and cautioned statement, charging him with the alleged commission of
five offences. The first respondent requested that the applicant give his
response to the warned and cautioned statement.
The applicant states that his legal practitioner expressed displeasure
at the manner in which the “interview” had been conducted. He states that
Mr Hussein asked the first respondent whether he was the investigating
officer and if he had formed a reasonable suspicion that the offences had been committed.
The applicant states that Mrs Chinyani and the legal officer to ZACC told
Mr Hussein that the question whether the first respondent had reasonable
suspicion of the offences having been committed by the applicant was for a
court to decide.
The
applicant avers that throughout the interview Mr Hussein had indicated
that he had vouchers, written guidelines and other documents which proved the
lawfulness of the actions under investigation. He said that ZACC's officers
told him he could supply the documents later. At that stage Mr Uriri
joined him and Mr Hussein. The three of them prepared the warned and
cautioned statement in which he denied the allegations of having committed the
five offences. The applicant said that as they were drafting the statement the
first respondent told Mr Hussein that he had made a few corrections to the
warned and cautioned statement. The offence of obstructing the course of
justice was added. It was founded on the allegation that the applicant had
frustrated his arrest. The allegation was also based on the statements the
applicant had made in the media on the allegations of criminal conduct made
against him.
Following the making of the warned and cautioned statement, the first
respondent told the applicant that he was under arrest. He said that a
discussion ensued between the first respondent and his legal practitioner on
the possibility of him being released into the legal practitioner's custody
pending appearance at the Magistrate's Court. According to the applicant, an
agreement was reached between the first respondent and his legal practitioner
that he be released into the latter's custody. The first respondent prepared
and read out an “Indemnity of Release”. The Indemnity of Release stated that
the applicant had been formally arrested on allegations of criminal abuse of
office, fraud, money laundering, and obstructing the course of justice.
The applicant undertook to attend at the offices of ZACC on
4 November 2016 at 0800 hours to facilitate his appearance at the
Harare Magistrate's Court. The Indemnity of Release warned the applicant of
arrest and detention if he failed to comply with the undertaking. Mr Pondo
denies the allegation that there was a discussion between the first respondent
and the applicant's legal practitioner which led to the production of the
Indemnity of Release. He said that the Indemnity of Release was prepared at
their own instance without any suggestion from the applicant's legal
practitioner. The applicant was then released into the custody of his legal
practitioner on the conditions set out in the document.
The
applicant filed the application on 3 November 2016, alleging breach of
fundamental rights by the respondents. The allegations were to the effect that:
1. ZACC does not in
terms of the Constitution or the law have the power to arrest and detain
suspects;
2. The fourth respondent
does not in terms of the Constitution or the law have the power to order the
third respondent to arrest an individual;
3. The first respondent
could not at the same time act on behalf of ZACC and the third respondent;
4. The purported arrest,
charge and detention of the applicant on 2 November 2016 by ZACC's
functionary, namely Sergeant Chacha, was in contravention of the
Constitution of Zimbabwe and therefore invalid; and
5. The search warrants
of ZACC referenced WSS-ZACC NO. 38/2016 and WSS NO. 45-2016 are invalid.
The
applicant filed an urgent chamber application for an order that the main
application be heard on an urgent basis. He also sought an interim order
staying the criminal proceedings envisaged against him in the Magistrate's
Court. The urgent chamber application was heard and granted by
CHIDYAUSIKU CJ on 3 November 2016.
The applicant has not stated the interest which he seeks to protect in
approaching the Constitutional Court, alleging the infringement of fundamental
rights guaranteed under ss 49 and 50 of the Constitution of Zimbabwe
(hereinafter referred to as “the Constitution”). The facts suggest that he is
purporting to do so in his personal interest under s 85(1)(a) of the
Constitution. He does not state specifically which of the many rights protected
under ss 49 and 50 of the Constitution have been infringed. The facts
suggest that the applicant is attacking his arrest which he alleges was
unlawful and therefore an infringement of his right to personal liberty.
It is common cause that the applicant was arrested by the first
respondent, who was on secondment to ZACC. The applicant makes the allegation
of unlawfulness of his arrest from the following standpoints. He alleges that
the warrants of search and seizure, the execution of which produced some of the
information relied upon in his arrest, were executed in contravention of
s 13(4) of the Anti-Corruption Commission Act [Cap. 9:22]
(hereinafter referred to as “the Act”).
The
relevant subsection of s 13 of the Act provides as follows:
“(4) An officer who intends to make any search, entry or seizure for the
purposes of this section shall —
(a) notify the officer
commanding the police district in which the officer intends to make the search,
entry or seizure; and
(b) be accompanied by a
police officer assigned to him or her or by the police officer referred to in
paragraph (a):
Provided that where an officer has reason for believing that any delay
involved in obtaining the accompaniment of a police officer would defeat the
object of the search, entry or seizure, he or she may make such search, entry
or seizure without such police officer.”
The
applicant contends that the subsection makes it a precondition that ZACC's
officers had to notify the officer commanding the police district in which the
premises to be searched were located. They had to ask the officer commanding to
assign a police officer to them, who had to accompany them in the search, entry
or seizure. The applicant contended that, while ZACC could dispense with the
accompaniment by a police officer, notification of the officer commanding the
police district is a peremptory requirement. He further stated that he was
reliably informed that the officer commanding the district in which the ZIMDEF
premises are located was not notified. He argues that this rendered the search
and seizure unlawful. He went on to argue that on this basis alone his arrest
was unlawful. Whether the search, entry and seizure carried out by ZACC's
officials met the requirements of s 13(4) of the Act is not an issue related
to any decision on a constitutional matter. It does not call for the
Constitutional Court's attention.
The
applicant also challenged the lawfulness of his arrest by impugning the actions
of the Acting Prosecutor-General. His case is founded on the allegation that
the letter the fourth respondent wrote to the Commissioner-General of Police
directed the latter to have him arrested. He contends that such power does not
repose in the office of the fourth respondent as provided for in the Constitution.
Section 259(11) of the Constitution gives the Prosecutor-General the power
to direct the Commissioner-General of Police to investigate and report to him
or her on anything which, in the Prosecutor-General's opinion, relates to an
offence or suspected offence. The contention is that s 259(11) of the
Constitution does not authorise the fourth respondent to direct the third
respondent to have a suspect arrested.
In
addition, the applicant argues that ZACC has no power to arrest any individual.
He contends that the arresting officer, being on secondment to ZACC, was
subject to the same limitations as his principal. The applicant argues that
ZACC can only make a recommendation of an arrest of a person to the
Commissioner-General of Police in terms of s 255(3) of the Constitution.
He said that no recommendation was made to the Commissioner-General of Police
for his arrest. He contended that s 1 of the Schedule to the Act gives
effect to the limited powers of ZACC in respect of the arrest of persons
suspected of criminal conduct by providing that one of the powers of ZACC is to
make recommendations to the police to arrest and detain any persons reasonably
suspected of committing any of the offences falling within its jurisdiction.
The applicant said that, in the absence of a recommendation to the
Commissioner-General of Police that he be arrested, his arrest was unlawful. It
must be stated, however, that no law requires ZACC to recommend to the
Commissioner-General of Police the arrest of a person reasonably suspected of
having committed or of committing any of the offences falling within its
jurisdiction. Section 255(3) of the Constitution only provides that the
Government must ensure, through legislative and other means, that ZACC has power
to recommend the arrest and secure the prosecution of persons reasonably
suspected of corruption, abuse of power and other improper conduct which falls
within its jurisdiction.
Giving effect to the peremptory directive contained in s 255(3) of
the Constitution, the Government provided in s 1 of the Schedule to the
Act that ZACC has power to recommend to the police the arrest of a person
reasonably suspected of committing any of the offences falling within its
jurisdiction. The words “recommend to the police” cannot be narrowly
interpreted to mean “recommend to the Commissioner-General of Police”. Whether
what ZACC did was in compliance with the provisions of s 1 of the Schedule
to the Act is not an issue connected to any decision on a constitutional matter.
It is determinable by interpretation and application of the specific provisions
of the statute.
The
applicant also attacks the legality of his arrest on the ground that the first
respondent did not form a reasonable suspicion that he had committed the
offences falling within the jurisdiction of ZACC before arresting him. The
applicant argues that the first respondent did not conduct the interview, nor
did he prepare the questions put to him. He argues that the first respondent
did not examine the documents his lawyer referred to during the interview. The
applicant argues that the first respondent arrested him on instructions from
ZACC and not on his own reasonable suspicion. It was further argued that the
first respondent had not acted on the instruction of the third respondent. The
applicant contended that, in the absence of reasonable suspicion on the part of
the first respondent, his arrest was unlawful.
The
application is opposed by the second and fourth respondents. It is apparent
from the papers that the first respondent would have filed an opposing
affidavit had the lawyers representing ZACC not erroneously believed that
Mr Pondo could speak for the first respondent. The opposing affidavit
deposed to by Mr Pondo on behalf of ZACC shows that even if there would
have been a constitutional matter, the Constitutional Court would not have been
in a position to determine it because of the existence of a material dispute of
facts.
Mr Pondo stated that the first respondent is a duly attested member of the
Zimbabwe Republic Police seconded to ZACC in terms of s 3 of the Police
(Transfer and Secondment) Regulations, Statutory Instrument 819A/1980
(hereinafter referred to as “the Regulations”). The first respondent was a
member of the team that was tasked with the investigation of the applicant for
alleged involvement in the commission of offences of fraud, corruption and
abuse of office at ZIMDEF. He and the first respondent were present throughout
the interview of the applicant which took place in the boardroom at ZACC's
premises. The purpose of the interview was to get the applicant's side of the
story on the allegations that he was involved in the commission of the
offences. The meeting with the applicant was also intended to afford him the
opportunity to comment on some of the evidence ZACC had gathered during the
investigation of the alleged commission of the offences. Mr Pondo said
that the interview was conducted in the presence of the applicant's legal practitioner.
The first respondent and he heard all the questions that were put to the
applicant and the answers he gave. He said they were able to form a reasonable
suspicion that the applicant had committed the offences set out in the warned
and cautioned statement.
The fourth respondent also opposed the application. He said that the
functions of ZACC under s 255(1) of the Constitution are not mutually
exclusive but complementary. He contended that the arresting of a person
reasonably suspected of a crime is not a function. He argued that it is only a
power exercised in the process of carrying out a function. The relevant
function ZACC would be discharging, as required by s 255(1)(b) of the
Constitution, by having a person reasonably suspected of corruption, abuse of
power and other improper conduct falling within its jurisdiction arrested, is
the combatting of the offences in question. Having a person reasonably
suspected of the offences falling within its jurisdiction arrested is a power,
the exercise of which depends on the existence of the grounds for a lawful
arrest. He went further to state that the function of assistance from members
of the Police Service denotes general as well as specific assistance. Such
assistance, he argued, would include the arresting of persons reasonably
suspected of the offences falling within the jurisdiction of ZACC.
The fourth respondent said that arresting persons reasonably suspected
of crimes is any police officer's function. He also argued that s 255(3)
of the Constitution enjoins the Government to empower ZACC to recommend the
arrest and prosecution of persons reasonably suspected of corruption. This, he
contends, does not preclude police officers attached to ZACC from effecting
arrests, more so in matters which they would have investigated and formulated a
reasonable suspicion upon.
The
fourth respondent views the application as premature and devoid of merit, as
the issues raised could have been heard, debated and crystallised in a lower
court. He prayed for the dismissal of the application.
For an issue to fall within the jurisdiction of the Constitutional
Court, it must be a constitutional matter or connected with a decision on a
constitutional matter.
No constitutional matter has arisen in this case. The Constitutional
Court is set up in terms of s 166 of the Constitution and its jurisdiction
is provided for under s 167 of the Constitution, which provides:
“167
Jurisdiction of Constitutional Court
The
Constitutional Court —
- is
the highest court in all constitutional matters, and its decisions on
those matters bind all other courts;
- decides
only constitutional matters and issues connected with decisions on
constitutional matters, in particular references and applications under
section 131(8)(b) and paragraph 9(2) of the Fifth
Schedule; and
- makes
the final decision whether a matter is a constitutional matter or whether
an issue is connected with a decision on a constitutional matter.” (The
emphasis is mine)
The Constitutional Court has no jurisdiction to determine a matter which
is not a constitutional matter. In any case brought before the Constitutional
Court, it has to ensure that the issue for determination is a constitutional
matter or an issue connected with a decision on a constitutional matter.
The Constitution defines “constitutional matter” in s 332 as
follows:
“'constitutional matter' means a matter in which there is an issue
involving the interpretation, protection or enforcement of this Constitution;”.
The import of the definition of “constitutional matter” is that the
Constitutional Court would be generally concerned with the determination of
matters raising questions of law, the resolution of which require the
interpretation, protection or enforcement of the Constitution.
The
Constitutional Court has no competence to hear and determine issues that do not
involve the interpretation or enforcement of the Constitution or are not
connected with a decision on issues involving the interpretation, protection or
enforcement of the Constitution.
The critical issue is whether the applicant's arrest was lawful. To
answer this question, it must be established what it is that constitutes a
lawful arrest. An arrest is a juristic act exercised by an authorised
functionary. The starting point is that in terms of s 49(1)(b) of the
Constitution every person has the right to personal liberty, including the
right not to be deprived of liberty arbitrarily or without just cause.
Since time immemorial the liberty of the individual has been regarded as
one of the fundamental rights of man in a free society. An arrest which does
not meet the requirement of a lawful arrest is an odious interference with
personal liberty. The general position is that every deprivation of liberty is prima facie
unlawful and must be justified in terms of an objective norm. See Ingram
v Minister of Justice 1962 (3) SA 225 (W) at 227D; S v Purcel-Gilpin
1971 (1) RLR 241 (AD); Ngcobo v Minister of Police 1978 (4) SA
930 (D); Minister of Home Affairs and Anor v Bangajena 2000 (1)
ZLR 306 (SC). The requirements of a lawful arrest are elements of the
protection of the right to personal liberty that have been defined in specific
terms by statutory provisions.
Section 49(1)(b) of the Constitution is in broad terms which do not
specify the requirements of what constitutes a lawful deprivation of liberty.
In the case of arrest, s 49(1)(b) is given effect to by s 25 of the
CP&E Act. The section provides:
“25 Arrest without warrant by peace officer or other officer
(1) Any peace officer and any other officer empowered by law to execute
criminal warrants is hereby authorised, subject to the general or specific
directions of a superior officer or person placed in authority over him, to
arrest without warrant —
(a) any person who commits any
offence in his presence;
(b) any person whom he or she
has reasonable grounds to suspect of having committed any of the offences
mentioned in the First Schedule or the Ninth Schedule: …”.
Section 2 of the CP&E Act defines “peace officer” to include
“any police officer”. The Ninth Schedule of the CP&E Act contains all the
offences listed under the Schedule to the Act relating to s 13 of that
Act.
Section 50 of the Constitution, which the applicant alleges was
violated by the first and second respondents, also deals with what constitutes
a lawful arrest. It also gives an arrested person the right to challenge the
lawfulness of the arrest before a court. The best way of reading the section is
to start by reading s 50(8), which provides that any arrest that
contravenes the requirements of the section is illegal. The relevant
subsections of s 50 provide that:
“50 Rights of arrested and detained persons
(1) Any person who is arrested
—
(a) must be informed at
the time of arrest of the reason for the arrest; …
(e) must be permitted to
challenge the lawfulness of the arrest in person before a court and must be
released promptly if the arrest is unlawful.
(8) An arrest or detention
which contravenes this section, or in which the conditions set out in this
section are not met, is illegal. …”.
Section 50(1)(a) of the Constitution is given effect to by
s 41A(1) of the CP&E Act, which provides:
“41A Arrested person to be informed of his or her rights
(1) Subject to this section, where a person has been arrested
by a peace officer, whether with or without a warrant, the peace officer shall
cause the person to be informed promptly, in a language he or she understands,
of -
(a) the reason for the arrest; …”.
Section 50(1)(e) of the Constitution is given effect to by the
provisions of s 41A(6) (b) and (c) of the CP&E Act, which provide:
“(6) Every person concerned in the arrest
of another person under this Act or any other enactment, and whether the arrest
is with or without warrant, shall ensure that the arrested person is -
(a) treated
humanely and with respect for his or her inherent dignity; and
(b) permitted
to challenge the lawfulness of the arrest in person before a court; and
(c) released promptly if the
arrest is unlawful.”
What
is beyond doubt is that what constitutes a lawful arrest is set out in
statutory provisions that give effect to the broad terms of the provisions of
the Constitution guaranteeing the right to personal liberty. Personal liberty
is not interfered with by means of an arrest only. The statutory provisions
deal with situations of deprivation of personal liberty by means of arrest for
offences. The Constitution is not directly applicable in the determination of
the question of what constitutes a lawful arrest. What are applicable are the
statutory provisions. The Constitution is only applicable indirectly through
the statutory provisions that give effect to its provisions.
It is apparent from the relevant statutory provisions that a lawful
arrest is in large part predicated on the existence of a reasonable suspicion
of the commission of an offence. The point is made in Dumbell v Roberts
[1944] 1 All ER 326, where Scott LJ commented at 329:
“The power possessed by constables to arrest without warrant … provided
always that they have reasonable grounds for their suspicion is a valuable
protection to the community; but the power may easily be abused and become a
danger to the community instead of a protection. The protection of the public
is safeguarded by the requirement, alike of the common law and, so far as I
know, of all statutes, that the constable shall before arresting satisfy
himself that there do in fact exist reasonable grounds for suspicion of guilt.”
In Williams and Another v Msipha NO and Ors 2010 (2) ZLR
552 (S) at 570D-F it is stated:
“Respect for the fundamental right to the protection of the law is a guarantee
for judicial protection of the fundamental right to personal liberty.
Section 13(2)(e) of the Constitution authorises deprivation of an accused
person of personal liberty where there is reasonable suspicion of him having
committed a criminal offence. That is the only ground on which a judicial
officer faced with a request by a public prosecutor for the remand of an
accused person is authorised by law to deprive the accused person of his or her
liberty by an order of remand, in or out of custody, for the purpose of
ensuring his or her appearance at the trial on the charge.”
The law is therefore that a person arresting another has to have a
reasonable suspicion that an offence has been committed or is being committed
by the person he or she arrests. There is no dispute over the standard of a
lawful arrest and its location in statutory provisions. The validity of the
statutory provisions on what constitutes a lawful arrest is not challenged.
The main challenge to the lawfulness of the arrest of the applicant is
based on the contention that the first respondent did not form a reasonable
suspicion of him having committed any of the offences set out in the warned and
cautioned statement. Mr Uriri pressed the contention in the
applicant's heads of argument that even if the first respondent had formulated
a suspicion, it was not a reasonable one, as it would have been based on the
content of the exchanges between the applicant and Mr Finde during the
interview conducted by the latter.
The difficulty is that it is not for the Constitutional Court to decide
whether or not the first respondent formed a reasonable suspicion of the
applicant having committed the offences set out in the warned and cautioned
statement. Before a court with the power to hear and determine the matter the
first respondent would have to say in evidence whether or not he formed the
suspicion. It is he who could say on what basis he formed the suspicion. He
would have been subject to cross-examination. It is only after finding that the
first respondent formed the suspicion required by the law that the court
hearing the evidence could decide whether the suspicion formed was proved to be
reasonable.
Whether the person who arrested another had a reasonable suspicion of
the arrestee having committed an offence is a question of fact. That question
relates to the arresting person's state of mind at the time of arrest. It is
about the arresting person's interpretation of facts. The interpretation and
conclusion reached subjectively give rise to the question whether there were
grounds the knowledge of which would have caused a reasonable person in the
position of the arrester to form the suspicion of the arrestee having committed
the offence for which he or she was arrested.
In R v van Heerden 1958 (3) SA 150 (T) it was said at
152E:
“The test for determining the existence of a reasonable suspicion is an
objective one, that is, the grounds of suspicion must be those which would
induce a reasonable person to have the suspicion.”
In Castorina v Chief Constable of Surrey [1996]
LG Rev Rep 241 at p 249, Woolf LJ commented that whether or not an
arrest was lawful depended upon the answers to three connected questions. Those
questions were:
“1. Did the arresting officer
suspect that the person who was arrested was guilty of the offence? The answer
to this question depends entirely on the findings of fact as to the officer's
state of mind.
2. Assuming the officer
had the necessary suspicion, was there reasonable cause for suspicion? This is
a purely objective requirement to be determined by the Judge if necessary on
the facts found by a jury.
3. If the answer to the
two previous questions is in the affirmative, then the officer has a discretion
which entitles him to make an arrest and in relation to that discretion has it
been exercised in accordance with the principles laid down by Lord Greene MR in
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948]
1 KB 223”.
In the same judgment, Sir Frederick Lawton at p 460
said:
"Suspicion by itself, however, will not justify an arrest. There
must be a factual basis for it of a kind which the court would adjudge to be
reasonable. The facts may be within the arresting constable's own knowledge or
have been reported to him. When there is an issue in a trial as to whether a
constable had a reasonable cause, his claim to have had knowledge or to have
received reports on which he relied may be challenged. It is within this
context that there may be evidential issue as what he believed to be the facts.
But it would be for the court to adjudge what were the facts which made him
suspect that the person he arrested was guilty of the offence which he was
investigating."
In Attorney-General v Blumears and Anor 1991 (1) ZLR 118 (S) at
122A-E, GUBBAY CJ said:
“The standard for the deprivation of personal liberty under
s 13(2)(e) of the Constitution are facts and circumstances sufficient to
warrant a prudent man in suspecting that the accused person had committed, or
was about to commit, a criminal offence. This standard represents a necessary
accommodation between the individual's fundamental right to the protection of
his personal liberty and the State's duty to control crime. It seeks on the one
hand, to safeguard the individual from rash and unreasonable interference with
liberty and privacy, and from unfounded charges of crime; yet on the other, to
give fair leeway for enforcing the law in the community's protection. The
criterion of reasonable suspicion is a practical, non-technical concept which
affords the best compromise for reconciling these often opposing interests.
Requiring more would unduly hamper the legitimate enforcement of the law. To
allow less would be to leave law-abiding persons at the mercy of the whim or
caprice of the authorities.”
In the case of Muzonda v Minister of Home Affairs and Another
1993 (1) ZLR 92 (S) at 96E, GUBBAY CJ held thus:
“It is not sufficient for a peace officer to personally believe that he
has reasonable grounds on which to base the arrest. These grounds must, in
addition, be justifiable from an objective point of view, that is to say, a
reasonable person placed in the position of the officer must be able to
conclude that there were indeed reasonable grounds.”
The applicant was arrested and the intention was to bring him before a
magistrate for initial remand. It is at these proceedings that the applicant
ought to have challenged the lawfulness of his arrest. The question of the
lawfulness of the applicant's arrest would have been within the jurisdiction of
that court. The Magistrate's Court would have had the competence to conduct the
factual inquiry into whether or not the first respondent formed a reasonable
suspicion of the applicant having committed the offences set out in the warned
and cautioned statement.
It is
clear that the question the applicant sought to place before the Constitutional
Court for determination is whether what the first respondent did under the
services of ZACC in arresting him was in compliance with the requirements of a
lawful arrest. The issue involves a finding of facts; and the interpretation
and application of the statutory provisions on the requirements of a lawful
arrest. The determination of the issues does not need proof of violation of the
fundamental right to personal liberty. It requires proof of the facts in
dispute. It also requires proof of compliance with the statutory requirements
of a lawful arrest. The determination of the issues does not involve the
interpretation, protection or enforcement of the Constitution. None of the
issues is a constitutional matter.
The Indemnity of Release bound the applicant in terms of the law to
report at the offices of ZACC on 4 November 2016 for the purposes of
appearing before a magistrate for remand. Had he appeared in accordance with
the Indemnity of Release, the applicant would have been in a position to
challenge the lawfulness of his arrest before the magistrate. That court would
have heard evidence and made findings of fact in the adjudication of the
challenge to the lawfulness of his arrest. The applicant can still challenge
the lawfulness of his arrest in that court.
The
question whether ZACC has powers of arrest is closely related to the question
whether the first respondent had power to arrest the applicant in the services
of ZACC. These are questions which the magistrate can deal with in considering
whether the arrest was lawful or not. The determination of the question
whether ZACC has powers of arrest involves an answer to the question whether
ZACC, in the exercise of its functions, could have the first respondent, a
police officer, arrest any person if it reasonably suspects the person of
having committed an offence falling within its jurisdiction, provided the
police officer also reasonably suspects the person of having committed the
offence. This is a matter that the magistrate hearing the question of whether
the first respondent reasonably suspected the applicant of having committed the
offences falling within ZACC's jurisdiction could competently determine.
The inquiry into the question whether ZACC has arresting powers would be
an academic exercise without first determining whether the first respondent, as
a police officer on secondment, had arresting powers he could exercise in the
services of ZACC. Even before making that finding, the most important inquiry
would be whether or not the first respondent had a reasonable suspicion of the
applicant having committed the offences set out in the warned and cautioned
statement.
The applicant took issue with the statement in the Indemnity of Release
that the first respondent is a police officer on secondment to ZACC. He did so
on the basis that he understood secondment to mean stripping the first
respondent of his powers as a police officer. Mr Uriri argued for
the applicant that the first respondent was a servant of ZACC. He went further,
in the heads of argument, to state that the onus was on the first
respondent to prove the terms of his secondment. Section 3 of the
Regulations provides for the secondment of police officers to employment
outside of the Regular Force.
Section 24 of the Police Act [Cap. 11:10] provides:
“24 Powers and authority to cease on vacation of office
When any member for any reason ceases to hold or exercise his office,
the powers, functions and authority vested in him as a member shall cease
immediately.”
The import of s 24 of the Police Act is that the only instance in
which a member of the Police Force ceases to have the powers, functions and
authority vested in him as a member is vacation of office. The services as a
member are terminated upon vacation of office. A police officer does not cease
to hold or exercise his office by reason of secondment. From a reading of
s 3 of the Regulations, secondment is when a member of the Regular Force
is transferred to employment outside the Regular Force in the service of the
State upon such terms and conditions as may be fixed by the Commissioner-General.
Such an officer continues to have the powers vested in a member of the Police
Force, including the power of arrest.
The CP&E Act is a law that has been enacted to give effect to the
Constitution. Section 41A of the CP&E Act provides equal protection of
the law to all arrested persons who want to challenge the lawfulness of their
arrest. Protection of the law is a constitutional principle that is
operationalised through the statutory provisions. The principle of equal
protection of the law requires that the applicant be subjected to the same
treatment to which every similarly situated arrested person desirous of
challenging the lawfulness of his or her arrest is treated.
The
jurisdiction of the Constitutional Court, as defined in s 167(1) (b) and
(c) of the Constitution, includes cases involving allegations of infringement
of fundamental human rights and freedoms enshrined in Chapter IV of
the Constitution. Section 85(1)(a) of the Constitution, which gives a
right to a person alleging infringement of a fundamental human right or freedom
to approach a court for the vindication of the right or freedom and protection
of his or her interest, does not confer jurisdiction.
The
making of an application alleging infringement of a fundamental human right or
freedom does not necessarily mean that the issue for determination is violation
of a fundamental human right or freedom enshrined in the Constitution. The
Constitutional Court still has to satisfy itself that the issue for determination
is a constitutional matter or an issue connected with a decision on a
constitutional matter involving the interpretation, protection or enforcement
of the constitutional guarantee of the fundamental human right or freedom.
In
this case, notwithstanding the allegation that there was violation of the
applicant's right to personal liberty enshrined in s 49(1)(b) of the
Constitution, the issue for determination is whether the arrest of the
applicant complied with the requirements of a lawful arrest prescribed under
s 25 of the CP&E Act. The meaning of lawful arrest is not in issue.
The
determination of the question whether the arrest of the applicant fell within
the meaning of a lawful arrest would not involve the interpretation or
enforcement of the Constitution. It involves the application of the meaning of
the statutory provisions to the facts found proved by credible evidence. So a
matter does not become a constitutional matter and fall within the jurisdiction
of the Constitutional Court just because it is brought in terms of s 85(1)
of the Constitution.
The applicant has not explained why he did not utilise the remedies
under the CP&E Act. He has not in the same vein alleged that the provisions
in the CP&E Act are invalid. One cannot ignore non-constitutional remedies,
preferring to directly enforce the right as enshrined in the Constitution.
Section 41A of the CP&E Act is a remedy enacted to fulfil the
constitutional requirements and, for as long as it complies with the Constitution,
it is part of the Constitution. Where the question for determination is whether
conduct the legality of which is impugned is consistent with the provisions of
a statute, the principle of subsidiarity forbids reliance on the Constitution,
the provisions of which would have been given full effect by the statute.
The principle of subsidiarity has been explained in the cases of Majome
v Zimbabwe Broadcasting Corporation and Ors CCZ 14/2016 and Boniface
Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd CCZ
15/2016. It states that a litigant who avers that his or her constitutional
right has been infringed must rely on legislation enacted to protect that right
and may not rely on the underlying constitutional provision directly when
bringing action to protect the right, unless he or she wants to attack the
constitutional validity or efficacy of the legislation itself. Norms of greater
specificity should be relied upon before resorting to norms of greater
abstraction.
There is a court of first instance which is bestowed with the
jurisdiction to make a determination on the facts and the unlawfulness of the
arrest. There is one legal system in Zimbabwe in terms of which disputes are
resolved.
In Boniface Magurure & 63 Others v Cargo Carriers
International Hauliers (Pvt) Ltd supra it is stated at p 9 of the
cyclostyled judgment:
“The principle of subsidiarity is based on the concept of
one-system-of-law. Whilst the Constitution is the supreme law of the land
it is not separate from the rest of the laws. The principles of constitutional
consistency and validity underscore the fact that the Constitution sets the
standard with which every other law authorised by it must conform. The
Constitution lays out basic rights and it is up to legislation to give effect
to them. This is the nature of the symbiotic relationship between the
Constitution and legislation. The legal system is one, wholesome and
indivisible. As was put in Gcaba v Minister for Safety and
Security and Others 2010 (1) SA 238 (CC):
'The constitutional and legal order is one coherent system for the
protection of rights and the resolution of disputes.'”
Under a single legal system, laws are enacted to give effect to the
Constitution. A remedy that is consistent with the Constitution serves the
purposes of the Constitution when it is used in accordance with the provisions
of the law by which it is established. Under our criminal justice system, the
Magistrate's Court is an integral part of the mechanism prescribed by the Constitution
for the protection and enforcement of fundamental rights of persons arrested on
allegations of having committed or committing criminal offences.
In Boniface
Magurure and 63 Ors v Cargo Carriers International Hauliers (Pvt) Ltd
supra it was said at pp 6-7 of the cyclostyled judgment:
“A constitutional matter arises when there is an alleged infringement of
a constitutional provision. It does not arise where the conduct the
legality of which is challenged is covered by a law of general application the
validity of which is not impugned. The question whether an alleged
conduct constitutes the conduct proscribed by a statute requires not only proof
that the alleged conduct was committed, it also entails that the statutory
provision against which the legality of the conduct is tested be interpreted to
establish the content and scope of the conduct proscribed before it is applied
to the conduct found proved.”
The applicant has a remedy under s 41A(6)(b) of the CP&E Act.
This is notwithstanding the fact that the same right is provided for under
s 50(1)(e) of the Constitution. He has not challenged the validity or
efficacy of s 41A(6)(b) of the CP&E Act. He has just chosen to
challenge his arrest in terms of the Constitution when he has a remedy under
the statute.
Karl Klare in an article titled “Legal Subsidiarity &
Constitutional Rights: A Reply to AJ Van der Walt”, (2008) 1 Constitutional
Court Review at p 135 states that:
“The raison d'être of subsidiarity principles is to strike an
authoritative balance between the conflicting values of judicial deference and
constitutional supremacy, so that courts are not at large weighing the conflict
on an ad hoc, case-by-case basis.”
In Mazibuko
and Ors v City of Johannesburg and Ors 2010 (4) SA 1 (CC) the principle is
set out as follows:
“Where legislation has been enacted to give effect to a right, a litigant
should rely on that legislation in order to give effect to the right or
alternatively challenge the legislation as being inconsistent with the
Constitution.”
In Majome's
case supra it was said at p 12 of the cyclostyled judgment:
“The applicant was bound by the principle of subsidiarity in the choice
of the law on which to found the cause of action. According to the
principle of subsidiarity litigants who aver that a right protected by the
Constitution has been infringed must rely on legislation enacted to protect
that right and may not rely on the underlying constitutional provision directly
when bringing action to protect the right, unless they want to attack the
constitutional validity or efficacy of the legislation itself. See AJ van
der Walt: 'Constitutional Property Law' 3 ed Juta p 66, MEC
for Education: KwaZulu Natal v Pillay 2008 (1) SA 474 (CC)
paras 39-40, Chirwa v Transet Ltd 2008 (2) SA 24 (CC)
paras 59, 69.”
The principle of subsidiarity seeks to prevent the Constitutional Court
from having to decide on an ad hoc basis whether or not to exercise its
jurisdiction. That method would make the law uncertain and open the
Constitutional Court to the criticism of handpicking certain cases over others,
as opposed to applying a general principle to all cases. The purpose of
subsidiarity was stated in the article by Karl Klare supra as being
the prevention of a claimant from precipitating a full-dress adjudication of a
constitutional issue when the Legislature has given effect to a constitutional
right. Subsidiarity is therefore seen as performing a “gate-keeping function”.
It precludes litigants whose rights are protected under a statute enacted to
give effect to constitutional rights from relying on such constitutional rights
before the Constitutional Court for redress, as opposed to first seeking
redress under the statute. The matter may end up at the Constitutional Court.
It must do so through the correct process provided for in the wholesome and
hierarchical legal system.
In terms of s 13(3) of the Act, ZACC is governed by the CP&E
Act. The section provides:
“(3) In exercising its powers, the
Commission shall be governed by the relevant provisions of the Criminal
Procedure and Evidence Act [Chapter 9:07] which govern the police.”
The actions of the first and second respondents are subject to the
CP&E Act. This means that ZACC must meet all the requirements of the
CP&E Act that bind the police in the execution of their duties, including
compliance with the requirement of a lawful arrest. The question whether ZACC
complied with the statutory provisions on a lawful arrest is not a constitutional
matter. The applicant was at large to pursue the challenge of the unlawfulness
of his arrest in terms of that Act. This course of action is in line with the
principles of subsidiarity.
Mr Uriri correctly conceded the applicability of the
principle of subsidiarity. He conceded that the applicant had the right under
s 46A(6) of the CP&E Act to challenge the lawfulness of his arrest
before the remand court. He sought to urge the Constitutional Court to find
that there were exceptional circumstances that justified the decision by the
applicant to approach the Constitutional Court directly for a relief that a
remand court had power to grant. The argument was that the applicant feared
indictment to the High Court once he had appeared before the Magistrate's Court
to answer to the charges. Mr Uriri sought to motivate the point in
oral argument. It had no basis in the founding affidavit.
An application falls or stands on the founding affidavit. Exceptions
must have pride of place in the founding affidavit. They cannot be raised for
the first time in oral argument. An exception is and must be based on a rule of
law. The fact that the fourth respondent intended to indict the applicant when
he appeared before the Magistrate's Court would not be of concern to the
Constitutional Court. It had no jurisdiction to deal with the issue in the
absence of a constitutional matter. The reason given by Mr Uriri
for the justification of the proposition that the application be treated as an
exception to the applicability of the principle of subsidiarity suggests that
the real purpose of making the application was to avoid appearance before the
Magistrate's Court and not vindication of the right to personal liberty.
The challenge to the validity of the warrants for search and seizure in
this Court is also misplaced. The law relating to warrants of search and
seizure is not contained in its details in the Constitution. The applicant
correctly pointed out the sections of the Act which govern the validity of
warrants of search and seizure obtained by ZACC. A dispute as regards the
lawfulness or otherwise of such warrants does not require the interpretation
and application of the Constitution. It requires the interpretation of the Act
itself. It does not require the Constitutional Court to determine the issue.
The applicant challenged the lawfulness of the arrest on the basis that
the fourth respondent directed the third respondent to arrest him. This still
goes to the challenge of the lawfulness of his arrest, which can be addressed
in the Magistrate's Court. A further difficulty with this point is the way that
the applicant has pleaded this issue. He alleged that the fourth respondent
directed the third respondent to arrest him. He then avers that he was not
arrested by the third respondent or an officer under the third respondent.
Instead he takes the view that the first respondent was a member of ZACC and
could not have acted under the direction of the third respondent while on
secondment. According to the applicant, the arrest was effected by the first
respondent under the direction of ZACC.
Whatever view the applicant takes of the relationship between ZACC and the
first respondent, the question of what s 13 of the Act, as read with
s 1 of the Schedule to the Act, means would need to be determined. The
Magistrate's Court would have to answer the question whether the statutory
provision means that ZACC can have a person arrested whom it reasonably
suspects of having committed an offence falling within its jurisdiction by a
police officer who forms his or her own reasonable suspicion of the person
having committed the offence. Would such action by ZACC and the police officer
concerned not produce a lawful arrest? There would be no constitutional matter
to attract the exercise of jurisdiction by the Constitutional Court.
There
is no proper legal basis on which the applicant approached the Constitutional
Court.
In the result, it is ordered that the application be and is hereby
dismissed with no order as to costs.
GWAUNZA JCC: I agree
GARWE JCC: I agree
GOWORA JCC: I agree
HLATSHWAYO JCC: I agree
PATEL
JCC: I agree
GUVAVA JCC: I agree
UCHENA JCC: I agree
ZIYAMBI AJCC: I agree
Hussein, Ranchod and Company, applicant's legal
practitioners
Civil Division of the Attorney General's Office, for the
first and second respondents
National Prosecuting Authority, for the fourth respondent
