PATEL
JA: This
is an application under s 24(1) of the former Constitution for
declaratory and consequential relief pursuant to the Declaration of
Rights enshrined in that Constitution.
The
applicant in this matter is HIV positive. He started his
anti-retroviral treatment in 2003. On 19 of February 2011, he was
arrested at a meeting held to commemorate an AIDS activist. On the
day of his arrest he was detained at Harare Central Police Station
and then taken to Harare Remand Prison on 23 February 2011.
The
applicant avers that he was subjected to various forms of
ill-treatment during his detention at both prisons and that his
fundamental rights were consequently violated by the respondents.
In
particular, he complains that at Harare Central Police Station he was
not allowed to use his cell-phone and was thereby denied access to
his anti-retroviral medication. Furthermore, he was required to
remain barefoot and with only one layer of clothing. In addition, the
toilet facilities in the holding cells were unhygienic and
deplorable. At Harare Remand Prison, he was denied access to his
prescribed medication regime. Moreover, together with other inmates,
he was stripped and made to jump up and down, and placed in solitary
confinement for four days when he complained.
Having
regard to this ill-treatment, the applicant seeks a declaratur
to the effect that the respondents contravened ss15(1) and 20(1) of
the Constitution relative to the protection against inhuman or
degrading treatment and his freedom of expression, and that the
conditions in the holding cells at Harare Central Police Station and
the practice at Harare Remand Prison of requiring inmates to strip
naked be declared inhuman and degrading.
He
also seeks an order requiring the respondents to ensure that inmates
be allowed full access to their respective anti-retroviral regimes,
that no inmate be required to walk barefoot or be left with
inadequate clothing, and that the toilet facilities in the holding
cells at Harare Central Police Station be rehabilitated.
The
respondents deny most of the applicant's assertions.
As
regards Harare Central Police Station, they aver that the governing
Police Manual prescribes that every inmate be required to surrender
all his possessions, other than clothing for personal use, so as to
avoid his harming himself. Again, cell-phones and other valuable
articles are ordinarily taken for safe custody.
The
applicant did not request his cell-phone and did not tell the police
officers concerned about his HIV status and anti-retroviral regime.
All
inmates in holding cells are given three blankets each and the
toilets are cleaned and inspected every day. However, the toilet
flushing mechanisms are placed outside the cells and therefore cannot
be used by the inmates themselves. The respondents also concede that
the conditions in the holding cells are not entirely acceptable.
However, their rehabilitation is not immediately practicable.
With
respect to Harare Remand Prison, the respondents aver that they
employ qualified doctors to administer appropriate medication and
that inmates may only bring their own medication if it is unavailable
in the prisons stock. Moreover, the applicant did not lodge any
complaint about his medication either upon admission or on discharge.
As
regards strip searches, these are procedurally done and strict
decency is observed.
Finally,
the respondents aver that the practice of solitary confinement has
been abolished and that the applicant was never subjected to this
practice.
At
the hearing of the matter, Adv. Chadambuka
submitted that the respondent's assertions and denials are based on
what should be in place as a matter of practice. In effect, they have
failed to ascertain and rebut what actually happened to the applicant
in relation to his medication and conditions of incarceration. He
further submits that these bare denials do not raise any material
disputes of fact that are not resoluble on the papers. The court
should therefore take a robust view of the facts in order to do
justice as between the parties.
Mr.
Dodo
concedes that there are certain facts, for instance, the conditions
in the cells at Harare Central Police Station, which are common
cause. However, apart from this, there are substantial disputes of
fact that were foreseeable before this application was instituted.
Consequently, he submits that the matter should be dismissed or
struck off to be instituted afresh.
MATERIAL
DISPUTES OF FACT
As
a general rule in motion proceedings, the courts are enjoined to take
a robust and common sense approach to disputes of fact and to resolve
the issues at hand despite the apparent conflict. The prime
consideration is the possibility of deciding the matter on the papers
without causing injustice to either party. See Masukusa
v National
Foods Ltd & Another
1983 (1) ZLR 232 (S) at 235A; Zimbabwe
Bonded Fibreglass
v Peech
1987 (2) ZLR 338 (S) at 339C-D; Ex-Combatants
Security Co.
v Midlands
State University
2006 (1) ZLR 531 (H) at 534E-F.
The
first enquiry is to ascertain whether or not there is a real dispute
of fact.
As
was observed by Makarau JP (as she then was) in Supa
Plant Investments (Pvt) Ltd
v Chidavaenzi
2009 (2) ZLR 132 (H) at 136F-G:
“A
material dispute of facts arises when material facts alleged by the
applicant are disputed and traversed by the respondent in such a
manner as to leave the court with no ready answer to the dispute
between the parties in the absence of further evidence.”
In
this regard, the mere allegation of a possible dispute of fact is not
conclusive of its existence. See Room
Hire Co. (Pty) Ltd
v Jeppe
Street Mansions ((Pty) Ltd
1949 (3) SA 1155 (T) at 1163; Checkers
Motors (Pvt) Ltd
v Karoi
Farmtech (Pvt) Ltd
S-146-86; Boka
Enterprises
v Joowalay
& Another
1988 (1) ZLR 107 (S) at 114B-C; Kingstons
Ltd
v L.D.
Ineson (Pvt) Ltd
2006 (1) ZLR 451 (S) at 456C-D and 458D-E.
The
respondent's defence must be set out in clear and cogent detail. A
bare denial of the applicant's material averments does not suffice.
The opposing papers must show a bona
fide
dispute of fact incapable of resolution without viva
voce
evidence having been heard.
See
the Room
Hire Co.
case,
supra,
at 1165, cited with approval in Vittareal
Flats (Pvt) Ltd
v Undenge
& Others
2005 (2) ZLR 176 (H) at 180C-D; van
Niekerk
v van
Niekerk & Others
1999 (1) ZLR 421 (S) at 428F-G.
DISPUTES
OF FACT IN THE PRESENT MATTER
In
their opposing papers, the respondents make certain clear concessions
in response to the applicant's averments concerning the conditions
at Harare Central Police Station.
The
second respondent (Officer Commanding Harare Central District) admits
that the toilets in the holding cells are not screened and that there
is no flushing mechanism for use by inmates within any given cell. He
also accepts that, although each inmate should be given three
blankets, no mattresses are provided for inmates to sleep on.
Apart
from this, all the other averments of the applicant are denied,
either in their totality or in terms that substantially contradict
the applicant's assertions.
In
certain respects, the respondents' denials are not sufficiently
detailed.
For
instance, the sixth respondent (Commissioner General of Prisons)
admits that strip searches are conducted in prisons, but avers simply
that they are carried out procedurally and that strict decency is
observed. He also asserts, rather tersely, that the practice of
solitary confinement has been abolished and that the applicant was
never subjected to such confinement.
Nevertheless,
despite the laconic nature of these denials and the failure to
elaborate them, they are quite categorical in contradicting the
applicant's averments.
Taken
in the overall context, they cannot be rejected or disregarded as
mere fabrication.
In
the final analysis, I am of the considered view that the conflicting
positions of the parties in
casu
are irreconcilable on the papers in several critical respects.
The
affidavit evidence does not clearly establish the veracity of all of
the applicant's complaints to the extent that it can be said that
there is a “ready answer to the dispute between the parties in the
absence of further evidence”. As was properly conceded by counsel
for the applicant, all of the relief sought herein involves having to
make findings of fact, and only a few of the relevant facts are
resoluble on the papers.
I
accordingly conclude that there are material and significant disputes
of fact that can only be resolved by the calling of oral evidence in
trial proceedings.
DISPOSITION
In
determining this matter, it is necessary to have regard to the
primary purpose of section 24 of the former Constitution. As was
succinctly explained by Baron JA in Mandirwhe
v Minister
of State
1986 (1) ZLR 1 (S) at 7:
“The
purpose of s24 is to provide, in a proper case, speedy access to the
final court in the land. The issue will always be whether there has
been an infringement of an individual's fundamental rights or
freedoms, and frequently will involve the liberty of the individual;
constitutional issues of this kind usually find their way to this
court, but a favourable judgment obtained at the conclusion of the
normal, and sometimes very lengthy, judicial process could well be of
little value. And even where speed is not of the essence there are
obvious advantages to the litigants and to the public to have an
important constitutional issue decided directly by the Appellate
Division without protracted litigation.”
The
facts of the present matter do not evince any need for its speedy
resolution.
The
applicant is no longer in custody and he does not stand in jeopardy
of any immediate harm or privation being inflicted upon him. The
redress that he seeks arises from events and practices that have
already occurred, but relates to the prevention of their recurrence
in the future.
In
either case, I do not perceive any urgency warranting a rough and
robust approach to the facts under consideration.
In
terms of s24(4) of the Constitution, the court is endowed with the
power to:
“…,
make such orders, issue such writs and give such directions as it may
consider appropriate for the purpose of enforcing or securing the
enforcement of the Declaration of Rights”.
Given
the factual disputes alluded to earlier, it is clearly not possible
for this Court to proceed with this application as it stands at this
stage. Matters of evidence and credibility are generally beyond the
practical remit of this Court and, without firm findings of fact, the
court is unable to entertain the substantive relief sought by the
applicant.
It
is of course open to the court to strike off or dismiss the
application on the technical ground that the applicant has adopted
the wrong procedure and should have instituted this matter by way of
action in the High Court. However, in view of the unquestionable
public importance of the issues raised, both generally and in the
particular context of persons with HIV or AIDS, I take the view that
the discretion of this Court should be exercised in favour of
retaining this matter on the roll until the constitutional issues
raised are properly resolved.
I
therefore consider it prudent and necessary to refer this application
to the High Court for it to proceed as an action for trial and for
that court to determine the matter in its entirety.
It
is accordingly ordered that:
1.
This application be and is hereby referred for trial to the High
Court for determination on the facts and on its merits.
2.
For the purposes of trial, the notice of application and notice of
opposition filed of record herein shall respectively stand as the
summons and notice of appearance to defend.
3.
The plaintiff (the applicant herein) shall file his declaration
within 10 days from the date of this order.
4.
The matter shall thereafter proceed in accordance with the Rules of
the High Court.
5.
In the event that any party is aggrieved by the decision of the High
Court, whether on the facts or on the merits, he is hereby given
leave to appeal to this Court within 10 days from the date of that
decision.
6.
The costs of this application shall be costs in the cause.
CHIDYAUSIKU
CJ: I
agree
MALABA
DCJ: I
agree
ZIYAMBI
JA: I
agree
GARWE
JA: I
agree
GOWORA
JA: I
agree
HLATSHWAYO
JA: I
agree
CHIWESHE
AJA: I
agree
GUVAVA
AJA: I
agree
Zimbabwe
Lawyers for Human Rights,
applicant's legal practitioners
Civil
Division of the Attorney-General's Office,
respondent's legal practitioners
