MINISTER OF HOME AFFAIRS v BICKLE 1983 (1) ZLR 99 (S)

Flynote

Practice and procedure — proceedings brought by person temporarily outside court's jurisdiction — person there because of fear of unlawful administrative action by Minister — not thereby a fugitive from justice.

Headnote

The respondent had issued notice of motion proceedings against the appellant Minister, following an order made by the Minister declaring the respondent's property to be forfeited to the State in terms of the Emergency Powers (Forfeiture of Enemy Property) Regulations, 1981 (SI 925D/1981). The proceedings sought to challenge the validity of the order. The respondent had in late 1981 committed certain offences under the Immigration Act and the Customs and Excise Act. He was also alleged to have at the same time contravened the Official Secrets Act, by bringing into Zimbabwe two foreign agents. He was arrested on these charges in February, 1982 and held incommunicado for 54 days, then remanded in custody until his trial in May, 1982. At the trial he was acquitted on the charges under the Official Secrets Act but convicted of the other offences and fined $3 000. Following the trial he openly and lawfully left Zimbabwe for South Africa for a holiday. While he was there the Minister made the order referred to.

The respondent, a native and citizen of Zimbabwe, had every intention of returning to Zimbabwe but did not do so because of fear of the Minister unlawfully making a detention order against him. The Minister, in seeking to justify the forfeiture order, had at least justified the respondent's fear of detention should he return. The Minister took the preliminary point that the respondent had no right to approach the court for relief because he had put himself physically beyond the jurisdiction of the court and was therefore a fugitive from justice. GUBBAY J decided this point against the Minister, who appealed to the Supreme Court.

Held, that if the courts are to fulfil their obligations under the Constitution they cannot, save in most exceptional circumstances, deny an aggrieved person access to them. They should not deny a person an opportunity to seek their protection unless he has, by his conduct, put himself outside the processes of the court or unless it is plain that the contempt of which he may be guilty itself impedes the course of justice.

Held, further, that as no process, either judicial or executive, had been issued against the respondent, he could not be held in contempt either of any process or of the law.