ZUCULA v OIC HARARE REMAND PRISON & ORS 2015 (1) ZLR 480 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of Rights c — s 49 — right to personal liberty — right not to be detained without just cause — alien unlawfully within Zimbabwe — prohibited person in terms of Immigration Act — right of immigration authorities to detain such person pending deportation, even if no criminal charges preferred

Immigration — prohibited person — right of immigration authorities to detain $\square$ such person pending deportation, even if no criminal charges preferred — such detention not a contravention of person's right to personal liberty under s 49 of Constitution

Headnote

The applicant, a foreign national, was detained by immigration authorities $\square$ and lodged in the Harare remand prison. Although he was married to a Zimbabwean citizen, he had no permit of any kind regularising his stay in Zimbabwe. He produced documents (though not a passport) showing a connection with Mozambique but there were questions about the validity of these. It was only after his arrest that the applicant claimed $\square$ that his passport had been lost. The immigration authorities stated that they had decided not to charge the applicant with any offence, but to have him detained in order that he could be deported.

It was argued that the applicant's detention contravened his right to personal liberty under s 49 of the Constitution and that he should have been brought to court within 48 hours, as required by s 50(2) of the Constitution. $\square$

Held, that at the time of his arrest the applicant was a prohibited person in terms of the Immigration Act [Chapter 4:02] by virtue of the fact that he was in the country in contravention of the Act. Being a prohibited person he had no right to ask to be released from detention and be allowed to remain on Zimbabwean soil. He should be held in detention pending $\square$ deportation $\square$ to his home country. His detention was not in contravention of s 49 of the Constitution: upon his arrest he was not charged with an offence, not even for contravening the Immigration Act. His detention was in terms of s 49(1)(b) of the Constitution. In terms of s 49(1)(b) (which should be read disjunctively from s 49(1)(a)), a person can be $\square$ deprived of his personal liberty without having been charged with an offence. However, under such circumstances the deprivation of liberty should not be done arbitrarily or it should be done for a just cause. In other words, the deprivation of liberty should be authorised by the law or be in compliance with the law or it should be for reasons that are just in their substance. When a person is detained in terms of s 49(1)(b), $\square$ it is not a requirement that he be taken to court because he would not have been detained for the purpose of being taken to court. Under the Immigration Act, a person who is suspected, on reasonable grounds, to have entered or remained in Zimbabwe in contravention of the Act may be detained for up to 14 days for the purpose of making inquiries as to $\square$ the person's identity, antecedents and national status and any other fact relevant to the question of whether the person is a prohibited person. Similarly, if a person is to be deported, he may be detained until such time as he is deported. Even if he were charged and convicted, he could not be released on conclusion of the criminal proceedings: he must remain in detention until he is deported. $\square$