HLATSHWAYO
J:
The applicants
have approached the High Court for a review of the procedures followed, and the
decision arrived at, by the trial magistrate in placing them on remand. The brief grounds of review are outlined in
the application as follows:
"1. The learned magistrate in the court a quo
erred in dismissing the applications for refusal to have the applicants
(accused persons in the court a quo) placed on remand.
1.1
The court a quo failed to apply its mind to
the first application for refusal of remand.
1.2
The court a quo also erred in holding that
there was a reasonable suspicion that the applicants had committed the offences
with which they were being charged.
2.
The learned magistrate also erred in not
giving proper and adequate reasons for her decision.
2.1
The magistrate's reasoning was so outrageous
in its defiance of logic and acceptable standards that no sensible person who
applied his mind to the matter would have arrived at the same decision.
2.2
There were gross irregularities in the
proceedings or the decision.
2.3
The learned magistrate failed to see that no
evidence had been placed before her by the state warranting the applicants to
be placed on remand.
3.
The learned magistrate also erred in
ignoring the evidence of the applicants that had been placed on record.
4.
The magistrate also erred in disallowing
applicants' legal practitioners the right to reply on points of law thereby
allowing the misleading submissions by the state to stand uncontroverted.
4.1
It is submitted that the magistrate was in a
hurry to make a wrong and injudicious decision.
5.
It is therefore submitted that the
magistrate's order to have the applicants placed on remand be set aside."
At the first hearing of this matter on
5 February 2009, the court drew to the applicants' legal practitioners' attention
that the grounds for review that they had set out above had more to do with the
substantive correctness rather than the procedural impropriety of the decision
complained of; that the "grounds for review" when examined closely tended more
towards "grounds of appeal"; that practically, and as an example only, it was
easier to prove that a decision was incorrect (appeal) than that it was so
incorrect that no reasonable person who applied his mind to the matter would
have arrived at the same decision (review); that strictly speaking in terms of
the rules of court there are no provisions for urgent reviews or urgent
appeals, but that in appropriate cases nothing would prevent an appeal being
heard urgently and that, at any rate, an application for bail pending appeal or
review can always be made.
The legal practitioners then
undertook to reconsider the application and revert to the court, which they
duly did but with the insistence that the matter should proceed as a review
matter and as currently formulated. After the state filed its opposing papers
on 18 February 2009, the applicants were advised to file their answering
affidavit, if they so wished. The
applicants' legal practitioners were also informed that the matter had been set
down on motion court for handing down of judgment on 25 February 2009. No answering affidavit had been filed by end
of business on 24 February as promised, nor by 0930hrs on the following
day. I have thus concluded that the
applicants no longer intend to file an answering affidavit and consequently
proceed to hand out judgment.
The background to this case appears
at page 82 of the Record and the Request for Remand forms. According to counsel for the applicants the
applicants were kidnapped by State agents from places in and around Harare and Norton from November 2008 to December 2008 and
hidden in secret detention centres around Harare,
Goromonzi and other places. They were allegedly subjected to torture, inhuman
and degrading treatment while so detained, which allegations of ill-treatment
the court a quo ordered to be investigated.
They were subsequently surrendered to the regular police and charged
with three counts of bombing police stations in Harare
and two counts of bombing a road and a rail bridge just outside Harare. All the applicants (accused persons) are
members, employees, activists or sympathizers of the Movement for Democratic
Change - Tsvangirai (MDC-T) political party.
Section 27 of the High Court Act,
Chapter 7:06 sets out specific grounds upon which an application for review may
be made. Among other things, the
applicant must show that the inferior court, tribunal or administrative
authority lacked the requisite jurisdiction or that there was gross
irregularity in the conduct of the proceedings.
In the application before me, the
grounds for review, as already noted, were crafted in very general and
sometimes vague terms. There was no allegation of lack of jurisdiction on the
part of the court a quo. Therefore, the only substantive ground for
review can be taken as that of "gross irregularity". There is a vague reference
to perceived bias, though, pertaining to the alleged refusal by the magistrate
to allow applicants' lawyers the right to reply on points of law. However, this appears to be a
misunderstanding by the respondent's lawyers of the nature of the application
they were involved in at the court a quo,
which properly understood was as follows: the prosecution applied for the
placement of the applicants on remand and the various applications the defence
lawyers placed before the court were essentially points in opposition to the
initial application and not fresh applications in themselves. The initial application for remand is always
invariably brought by the prosecution and then opposed by the defence. Only subsequent applications for refusal of
further remand are initiated by the defence.
The trial magistrate was therefore correct in not allowing the defence
an opportunity for a further reply to the prosecution's application. It would be stretching matters rather far to
hold that the ruling by the magistrate demonstrated bias in favour of the
state.
According to the applicant's counsel,
basically two arguments were placed before the magistrate:
1.
that
the applicants were themselves victims of criminality (abductions, torture,
forced disappearances, etc.); that their right to protection of the law had
been violated and that therefore they could not be placed on remand.
2.
that
there was no reasonable suspicion that the applicants had committed an offence.
Concerning the first argument, the
applicants submitted that the court a quo
did not pay due regard to it at all.
According to the record of proceedings the prosecutor and the court
dealt with the matter as follows:
"By
Mrs Ziyambi (prosecutor, to Court):
"Your
worship, we proceed to respond to the first issue raised by my learned
colleague which is where they indicated that they are making an application for
refusal for placing them on remand on the grounds that the accused persons were
victims of a crime. Your worship, you will note that this Court made an order
directing the Attorney General's office to direct the police to investigate the
allegations of torture, abduction and kidnapping. It, therefore, follows that the alleged
torture, kidnapping and abduction which form the basis of the argument that
they are victims of a crime are now subject of an investigation ordered by this
Court." (At page 155 to p.156 of Record).
"By
the Court:
"The
issue of torture, kidnapping and abduction of the accused persons is still
under investigations by the Attorney General which has been ordered by the
Court to file a report at a given date." (See page 2, lines 1-3 of Ruling).
It is difficult to conceive how the
above complaint can be sustained as a ground for review. Surely, once the court a quo had ordered an investigation into the alleged abductions,
torture and forced disappearances, giving a specific date by which a report had
to be filed, it could not then proceed simultaneously to make a finding on the same
allegations ahead of the report, notwithstanding that the applicants had filed
affidavits and submitted medical reports on the point. Such a procedure would have rendered nugatory
the court-ordered investigation. In my
view, therefore, the court a quo was
perfectly correct in refusing to make findings on matters which were still
pending in terms of an investigation it had just ordered itself and,
ironically, at the instance of the applicants.
The question remains though as to what purpose, if any, the findings of
the investigation were expected to have in the remand proceedings. It appears
from the magistrate's ruling that those findings would not have any impact on
the remand proceedings. If the defence
counsel had intended to rely on the findings of the investigation to oppose the
placement of the applicants on remand, then he should have requested the
postponement of the matter until such a report was available or insisted on an
earlier production of the report or a different way of proving the alleged
abductions, torture and forced disappearances.
Nothing more would have needed to be
said on the issue of abductions, torture and disappearances in this regard,
were it not that the applicants' legal practitioner has sought to rely on some
case authority whose ratio decidendi
he appeared not to fully appreciate.
In his submissions Mr. Muchadehama posited that where an
accused person has been abducted, tortured or otherwise brought to court in a
manner tainted with violation of human rights, the court should refuse to place
such an accused on remand. He sought to
rely on the case of S v Ibrahim 1991 (2)
SA 553 for that proposition.
Now, in S v Ibrahim, the issue involved the abduction of an accused person
from a foreign state by agents of what one might call, for want of a better
word, the 'apprehending' state and the subsequent surrender of the accused to
the police and courts of the 'apprehending' state. That situation is distinguishable from the
present one in which the alleged abductions, torture and forced disappearances
occur internally. This must not be read
to mean that internal violations of human rights are to be condoned, but merely
to point out that the case law relied upon to support the remedy sought does
not uphold such a proposition. On the
contrary it clearly distinguishes between cases involving breaches of
international law and those which do not, thus:
"The
main cases relied on in the foreign authorities to preclude an accused person
from objecting to the jurisdiction of a criminal court to try him on the
grounds that he has unlawfully been abducted from abroad are simply cases where
there was no breach of international law, where the State in which the
unlawfully apprehended person was being tried did not authorize or connive in
such unlawful apprehension or where the unlawful apprehension was not affected
(effected?) by an official of the State in which such a person was to be
tried." P.556
And
the conclusion is then made thus:
"To
compel an accused person to undergo trial in circumstances where his appearance
itself has been facilitated by a criminal act of kidnapping authorized or
connived at by the State or an official of the State would be to sanctify
international delinquency by judicial condonation. There is an inherent
objection to such a cause, both on grounds of public policy pertaining to
international ethical norms and on the ground that it imperils and corrodes the
peaceful co-existence and mutual respect of sovereign nations." Page 556.
Once the proper appreciation of the
reasoning in S v Ibrahim has been
made, as has been done above, one may then proceed to examine whether the
sentiments expressed therein are not applicable, even with greater force, to
situations of internal abductions, torture and forced disappearances. If the courts frown upon situations where the
state has resorted to cross-border abductions presumably because of
non-existence or difficulties in the implementation of extradition agreements
or because of the exigencies of apprehending criminals operating from across
borders, the courts should be even more wary of the state resorting to such
extreme measures of bringing accused persons before the courts within its own
jurisdiction where it holds sway and has limitless and perfectly legal and
humane ways in which it can secure their attendance to court. It may thus be argued that if it is proved
that internal abduction, torture or forced disappearance carried out or
authorized by or connived in by the state or its officials has preceded the
handing over to the police and the courts of an accused person, then, as in the
case of foreign abductions the judiciary should not condone such delinquent
acts. Whether the proper way of
exercising judicial censure of such conduct is through the courts declining to
exercise their jurisdiction as in the foreign abduction cases, I hesitate to
hazard an opinion and so leave the issue completely open as I have not been
addressed on the matter.
In
respect of the second argument, it was submitted that the magistrate failed to
give proper and adequate reasons for her decision to have the applicants placed
on remand; that her reasoning was so outrageous in its defiance of logic and
acceptable standards that no sensible person who applied her mind to the matter
could have arrived at such a decision.
The impugned reasoning went as follow:
"On
the issue of reasonable suspicion, it was held in the case of Martin v
Attorney-General & Anor 1993 (1) ZLR 153 that:
"The test to be applied is the same as
that for arrest without a warrant. It does not require the same resolution of
conflicting evidence that guilty beyond reasonable doubt demands, nor even a
preponderance of probability. Certainty
as to the truth is not involved or otherwise it ceases to become suspicion and
becomes fact. Suspicion by definition is
a state of conjecture or surmise whereof proof is lacking."
The
court is, therefore, of the view that the facts alleged by the State ground a
reasonable suspicion that accused persons committed the offences. The other
issues raised by the defence are triable issues to be canvassed at trial.
Application by the State is therefore granted.
Accused persons are to be placed on remand." (P.2 of Ruling).
Elaborating on the perceived
shortcomings of the magistrate's reasoning, counsel for the applicants
submitted that the magistrate did not refer to the evidence of 1st,
2nd and 3rd applicants and to the affidavits of the
applicants, did not comment on the request for remand Forms 242 relative to
their adequacies or deficiencies and did not make a finding as to whether the
state had provided sufficient details linking each of the applicants to the
offence and to each other.
The above criticism of the
magistrate's reasoning by the defence counsel seems to be more focused on the
substantive correctness rather than the procedural regularity of the
decision. Admittedly, the two inquiries
do overlap. However, for the decision to
be set aside for unreasonableness it must be shown that the decision is so
grossly unreasonable that it can only be explained on the grounds that the
decision was made in bad faith or because of some ulterior motive or that the
decision maker failed to apply her mind to the decision. This is the so-called 'symptomatic
unreasonableness'. See G Feltoe, A Guide
to Zimbabwean Adminitrative Law, 3rd ed. Page 46. All that can be said here about the reasoning
of the court a quo is that it was
rather niggardly with the facts upon which it based its decision. It cannot be said that it was not alive to
the legal parameters under which it was enjoined to make its decision, the
facts and allegations on the basis of which the state sought to have the
applicants remanded and the evidence placed before it by the defence. In the case of Attorney-General v Blumears & Anor 1991 (1) ZLR 118, the
magistrate gave "brief and not so clearly expressed" reasons for remanding
respondents in custody but this lapse was not found to be sufficient to justify
the setting aside of his decision.
Indeed, whereas at the High Court the magistrate's order was set aside,
on appeal to the Supreme Court, the High Court decision was reversed and the
application dismissed.
Consequently,
this application for review is dismissed.
Mbidzo, Muchadehama & Makoni, legal practitioners for the
applicants.
The Attorney-General's
Office, legal practitioners for the respondents.