HICKMAN & ANOTHER v MINISTER OF HOME AFFAIRS AND ANOTHER 1983 (1) ZLR 180 (H)

Flynote

Statutes — Emergency Powers (Maintenance of Law and Order) Regulations, 1980 — section 34(1) — detainee's case to be reviewed "forthwith" — meaning of — reasonableness of Review Tribunal's failure to hear cases.

Headnote

The petitioners were detained in mid - January 1983 by a police officer acting in terms of section 49(1) of the Emergency Powers (Maintenance of Law and Order) Regulations 1980, and on the 12 February the respondent Minister issued a new detention order under section 17(1) of the Regulations. In spite of efforts by the petitioner's legal practitioners to secure a hearing of their case by the Detainees' Review Tribunal, no hearing of the case had been arranged by the 17 March although the Secretary to the Tribunal intimated that it would be possible to hear the matter on the 29 April. The case had first been referred to the Tribunal on the 12 February, and, in terms of section 34(1)(a) of the Regulations, the Tribunal was then charged to "review the case forthwith".

The present application was brought, claiming that the second respondent, the chairman of the Tribunal, had wrongfully failed to ensure compliance with the Regulations. The second respondent claimed that it was not possible to arrange to hear the petitioner's cases earlier than the 29 April, for 4 main reasons:

• (1) there were already 11 other cases they had to deal with which had greater priority;
• (2) the difficulty of arranging a time-table for the hearings;
• (3) the inability of the Tribunal to sit more than once a week, because of the inability of its members to do so;
• (4) the non-availability of a suitable venue more than once a week.

Held, dismissing the application, that the meaning of the word "forthwith" was "as soon as reasonably possible in the circumstances". It was necessary to examine the second respondent's reasons to see if there was reasonable cause for a failure to review the petitioner's cases earlier. The first reason given was reasonable but there was insufficient evidence to support the second. As regards the third, the inability of individual members to sit more than once a week was not reasonable, since, in terms of sections 27 and 28 of the Regulations, substitute members may be appointed and indeed one or more additional tribunals may be appointed. It was possible to take judicial notice of the fact that there were numerous qualified persons in the country who could be appointed to such tribunals. The fourth reason given could not, however, be ignored as there was no evidence to contradict it and it would have to be accepted that the Tribunal was, for that reason, unable to hear the petitioners' cases earlier than the 17 March.