HOLLAND v COMMISSIONER OF THE ZIMBABWE REPUBLIC POLICE 1982 (2) ZLR 29 (H) 1982 (2) ZLR p29

Flynote

Statute — Emergency Powers (Maintenance of Law and Order) Regulations, 1980 — section 21 (1) — detention by a police officer of person in respect of whom he has reason to believe there are grounds justifying such detention — necessary for a police officer personally to have such belief — not enough merely to act on orders of a superior officer — Constitution of Zimbabwe — paragraph 2 (1)(a) of Schedule 2 — requirement that detained person be informed within seven days of reasons for his detention — essential to make it clear to detainee that there were grounds for a belief that detention expedient in interests of public safety or public security.

Headnote

The applicant, a young man of 18 years, was taken into custody by the police after he had been seen at night peeping over a two-metre wall at or near the Prime Minister's residence in Harare. This occurred a few days after an incident in which dissident members of the army had fired shots at the Prime Minister's residence. He was taken before a detective superintendent, who issued a detention order and told him that he had received instructions from his superior that the applicant be detained in terms of the Emergency Powers (Maintenance of Law and Order) Regulations, pending investigations into why he was found looking at the guest house of the Prime Minister's residence late at night. In answer to a plea from the applicant that the incident did not warrant detention, the superintendent said - "I am sorry, there is nothing I can do about it, these are my instructions from my superiors".

The applicant was then detained in the maximum security section of Chikurubi Prison.

The applicant sought the setting aside of the detention order, two of the grounds being - - (1) that the fact that the superintendent had not applied his own mind to the question whether he should issue the detention order but had simply obeyed the instruction of his superior rendered the order invalid; - (2) that the failure of the police to comply with paragraph 2 (1) (a) of Schedule 2 to the Constitution rendered the detention illegal.

Held, allowing the application with costs, that the superintendent had no right to issue the detention order personally in terms of section 21 (1) of the Emergency Powers (Maintenance of Law and Order) Regulations unless he had himself come to the conclusion that he had reason to believe that there were grounds which would justify the Minister of Home Affairs in detaining the applicant under section 17 of the Regulations. He could not say he had that belief simply because some superior had told him to issue the detention order.

Held, further, that the grounds for detention given to the applicant did not comply with paragraph 2 (1) (a) of Schedule 2 to the Constitution; it had to be made clear to him that there were grounds for a belief that it was expedient in the interests of public safety or public security to detain him.

Such expedience would not exist if the police believed that the applicant had been studying the area in order to commit a simple housebreaking there.