AUSTIN & ANOR V THE MINISTER OF STATE (SECURITY) & ANOR BULL V THE MINISTER OF STATE (SECURITY) & ORS 1986 (2) ZLR 28 (S)

Flynote

Audi alteram partem — denial to other party of access to document — reliance placed on document — irregularity.

Practice and procedure — document handed to judge in Chambers — not under cover of affidavit or Ministerial certificate — irregularity.

Constitution — detainee — protection of law — prohibits reliance on document not shown to other party — Constitution of Zimbabwe 1981, s 18 (10), (11) and (12).

Legislation — Civil Evidence Act [Chapter 41] s 33A — Courts and Adjudicating Authorities (Publicity Restriction) Act 1985, s 4 — Emergency Powers (Maintenance of Law and Order) Regulations SI 458/1983, s 17, s 21 and s 31(3) — Citizenship of Zimbabwe Act 1984 s 11(9).

Headnote

A and H were arrested under s 17 of SI 458 of 83. The reasons for detention were challenged in the High Court. During the course of proceedings and in order to show a factual basis for the reasons given a document was handed to the presiding judge, not in court, but in Chambers. It was not supported by affidavit or ministerial certificate. The learned judge perused the document and relied upon it as showing a factual basis upon which the allegations were made. Access to the document was denied to the other party.

Held, that per DUMBUTSHENA CJ: A court should not put itself in the position where a party to a dispute may perceive it as having acted unfairly. The reliance placed upon the document by the learned judge was contrary to the audi alteram partem rule and to the protection of law enacted in the Constitution.

Held, further, that per GUBBAY et McNALLY JJA: Properly understood, the learned judge did not place any reliance upon the document; its production was, however, irregular on procedural grounds.

Held, further, that per GUBBAY et McNALLY JJA: there are three criteria for the validity of reasons for detention: they must be such as warrant detention; they must be sufficiently detailed to enable the detainee to make meaningful representations to the Review Tribunal; they must be based upon information considered reliable.

Held, further, that reliance upon the document was unnecessary, the reasons supplied being sufficient.