MUTAMBARA & ORS v MINISTER OF HOME AFFAIRS 1989 (3) ZLR 96 (H)

Flynote

Administrative law — audi alteram partem rule — application of to issue of certificate prohibiting bail under s 106(2)(a) of the Criminal Procedure D and Evidence Act [Chapter 59] — reasonableness — requirement for Minister to act reasonably when issuing such certificates.

Costs — criminal matter — application to High Court to set aside Minister's certificate prohibiting bail — whether successful applicant entitled to costs.

Criminal procedure — bail — principles governing grant of — group of persons — requirement that each person be considered individually — Courts and Adjudicating Authorities (Publicity Restriction) Act 1985 — s 3 — order restricting disclosure of memorandum submitted in opposition to grant of bail — evidence required in — court to be satisfied that order is necessary or expedient.

Headnote

The petitioners were all students at the University of Zimbabwe in Harare. The first two petitioners, officers in the Students' Representative Council, were arrested by the police. Their arrest sparked off disturbances at the University, which resulted in the University being closed down. The next four of the petitioners were arrested on the grounds that they threw stones at the police. The remainder were detained when they voluntarily went to the police station, accompanied by their legal practitioner. They were all in due course brought to court on allegations of publishing a subversive document. Bail was refused after the respondent Minister issued a certificate in terms of s 106(2)(a) of the Criminal Procedure and Evidence Act [Chapter 59], to the effect that the petitioners' release would be prejudicial to public security. In issuing the certificate, the Minister had acted on the basis of a police memorandum which purported to highlight what was happening at the University and to give the background to the disturbances there. The memorandum was not, however, specific in its accusations, which were levelled at students orat members of the SRC generally. There was nothing dealing with any of the petitioners individually. Some of the allegations in the memorandum were not applicable to certain of the petitioners.

The petitioners sought an order setting aside the Minister's certificate on the grounds that -

• (a) they had not been afforded an opportunity to be heard before the certificates were issued;
• (b) the Minister had not applied his mind to the facts, particularly those distinguishing each of the petitioners; and
• (c) the petitioners had not been brought to trial within a reasonable period.

The Minister applied for an order in terms of s 3(1)(d) of the Courts and Adjudicating Authorities (Publicity Restriction) Act 1985 for an order that the police memorandum should not be publicly disclosed. No evidence was led to show that such an order was necessary in the interests of justice, defence, public safety, public order or the economic interests of the State or to protect the private lives of persons concerned in the proceedings.

Held, setting aside the Minister's certificates, that the golden thread running through the principles relating to the granting of bail is that bail should be allowed unless it is not in the interests of justice. Each individual case must be dealt with on its merits. Where two or more individuals have been joined together in one case, there is still an obligation to consider each individual separately as well as treating him or her as a member of a group. The failure of the Minister to do so resulted in an improper exercise of his discretion.

Held, further, that in the absence of any indication of how public security would be threatened if the petitioners were released on bail, the ⁶ Minister's decision to issue a certificate on those grounds could be regarded as irrational.

Held, further, that where a statute empowers a public official to give a decision which may affect the liberty of an individual, there is a right to be heard, unless the statute clearly excludes such a right. Before the Minister issues a certificate in terms of s 106(2) of the Criminal ¹¹ Procedure and Evidence Act [Chapter 59], he is required to afford an applicant for bail the right to be heard.

Held, further, that the mere application by a legal practitioner for an order prohibiting the public disclosure of the police memorandum was not enough. There had to be some evidence to support the application and satisfy the court that the order was necessary or expedient.

Held, further, that the petitioners were entitled to their costs. This case was not similar to an ordinary bail application. The petitioners had had to apply to the court for a determination of their rights and had succeeded in establishing an important principle in relation to their release from custody.