MAGUWU v CO-MINISTERS OF HOME AFFAIRS & ORS 2012 (2) ZLR 346 (H)

Flynote

Aviation — Civil Aviation Authority of Zimbabwe — status of — proceedings against — Authority may sue and be sued in own name — no need to cite Minister of Transport in such proceedings

Constitutional law — Constitution of Zimbabwe 1980 — Declaration of Rights — freedom of movement — freedom from deprivation of property — constitutional rights thereto — State security — of paramount importance but must be justifiable and conform to the rule of law

Criminal procedure — search and seizure — when may be carried out — need to suspect that articles concerned are connected to commission of an offence — what may effect seizure — agents of State security organisation — required to act in terms of law

Practice and procedure — application — urgent — alleged disputes of fact — submission by respondent that applicant should have proceeded by way of action — respondent not prepared to lead evidence on alleged matters in dispute — application procedure justifiable

Practice and procedure — parties — parastatal body — action against parastatal body corporate which is capable of being sued — no need to cite Minister under whose portfolio parastatal operates — Minister not responsible for any such acts or omissions

Headnote

While endeavouring to leave the Harare International Airport in order to attend an international conference on human rights in Ireland, the applicant, a human rights activist, was apprehended by two officials from the Central Intelligence Organization employed by the fifth respondent, the Minister of State for National Security. The applicant and his baggage were searched and articles including, inter alia, a laptop, a camera, business and bank cards and cash were removed. The officials neither identified themselves nor provided the applicant with any inventory of the goods taken nor any reason for the search. As a result, the applicant was unable to attend the conference. He sought an order from the High Court seeking provisional relief. Pending a final order, the respondents, including the fifth respondent, were ordered to return his property to him, to cease interfering with his freedom of movement and to allow him full protection of the law.

The grant of a final order was opposed by the fifth respondent and a procedural point was taken concerning the third respondent, the Minister of Transport, who alleged a misjoinder. He submitted that, in terms of s 4 of the Civil Aviation Act [Chapter 13:16], the Civil Aviation Authority of Zimbabwe, the fourth respondent, was a legal person in its own right, capable of suing and being sued. There was, therefore, no cause to sue the third respondent because the fourth respondent was a parastatal but simply existing under his ministerial portfolio. In respect of a further procedural point, the fifth respondent submitted that the applicant should not have proceeded by way of application, but rather by a trial action, because of serious disputes of facts concerning exactly what property was taken from him. Notwithstanding this, however, the fifth respondent indicated that he did not wish to call any witnesses as to his version of events. On the merits of the application for the grant of a final order, it was evident that the version of the fifth respondent was wholly untrustworthy as he had proffered different and contradictory accounts of what property was removed from the applicant. Held, that in terms of s 4 of the Civil Aviation Act [Chapter 13:16], the Civil Aviation Authority was a body corporate capable of suing and being sued in its own name and, subject to the Act, of performing all acts that bodies corporate may by law perform. To the extent that the Minister had been cited merely as the Minister responsible for the Authority, there had been a misjoinder. He should not have been cited for the acts of commission or omission of the Authority.

Held, further, that the appellant had been prevented from proceeding with his journey and could not be faulted for seeking relief by means of an urgent application. The fifth respondent had no cause to object to the procedure adopted. No inventory of the goods removed from the applicant was taken and as the fifth respondent did not intend to call witnesses on the point, there was no point in referring the matter for trial.

Held, further, that the applicant was entitled to the protection of the law and that included the right to free movement and to property as enshrined in the Constitution. If the property of an individual is to be seized, such seizure must be under the authority of the law. While the rights of an individual to possession and enjoyment of his property can be derogated from, that can only be done in accordance with the law. The fifth respondent could no cite law under which the State agents acted; in fact, counsel for the fifth respondent admitted that the State agents did not operate under any law. It had not been shown how the State agents were able to reasonably suspect that any of the articles in the possession of the applicant could be the subject of the seizure in terms of s 49 of the Criminal Procedure and Evidence Act or any other law for that matter. The fifth respondent contented himself with hedging behind vague allegations of subverting the Government of Zimbabwe. How this subversion could be deduced from the articles the applicant was carrying had not been demonstrated. The seizure of applicant's property was unlawful and all the items which were removed from him must be returned to him by the fifth respondent and those acting for him.

Held, further, that if a person is to be deprived of his property, it is a basic tenet of our law that he must be informed of the reasons for doing so and the law under which such deprivation is being done. State security is undeniably paramount but what is done in pursuit of State security must be justifiable in a democratic society and must conform to the rule of law.