Judgment No. HB 53/2003

                                                                                    Case No. HC 746/2003

 

PAUL THEMBA NYATHI

 

Versus

 

DETECTIVE ASSISTANT INSPECTOR REFIAS MASUNA

 

And

 

DETECTIVE SUPERITENDENT MARTIN MATIRA

 

IN THE HIGH COURT OF ZIMBABWE

CHEDA J

BULAWAYO 10 APRIL 2003

 

N Mathonsifor the applicant

H Ushewokunze IIIfor the respondent

 

Urgent Chamber Application

 

            CHEDA J:     This is an urgent chamber application wherein applicant seeks

 

the following relief:

 

            “Terms of Final Order Sought

 

            First and second respondents show cause why:

 

1. That applicant should be forthwith freed and released and allowed to go home.

1a.       That 1^st and 2^nd respondents should bear the costs.

 

Interim Relief Granted

 

1. That first and second respondents should produce the applicant before this honourable court at 11.30hours  on 10 April 2003 and explain why he should not forthwith be set free.”

 

Applicant is Paul Themba Nyathi.  On 1 April 2003 applicant attended to a

 

court hearing at the Magistrates’ Court, Bulawayo where one Gibson Sibanda the vice

 

President of the Movement for Democratic Change (MDC) court hearing.  He was

 

arrested by 1^st and 2^nd respondents as he was coming out of the said court hearing.  He

 

was taken to Bulawayo Central Police where he was charged with contravening

 

            HB 53/03

 

certain sections of the Public Order and Security Act Chapter 11:17.  Warned and

 

cautioned statements were recorded from him.  It is alleged that he had attended and

 

addressed a meeting at the Movement for Democratic Change provincial offices

 

wherein certain action groups were formed to mobilise people to participate in a mass

 

stay away on 18 and 19 March 2003.

 

On 9 April 2003Mr Mathonsi for the applicant applied to this court for an

 

order that 1^st and 2^nd respondents should produce the applicant before this court and

 

explain why he should not be set free.  That application was granted and it was

 

ordered that applicant be produced before the court at 11.30 hours on 10 April 2003. 

 

At the hearing applicant was not produced.  Mr Ushewokunze for both respondents

 

could not proffer any reasons why respondents failed to do so.  The correct legal

 

position is that failure to comply with a provisional order renders a person against

 

whom the said order is made contemptuous and therefore should not be heard and

 

such person remains in contempt until he has purged his contempt.  However , in

 

view of the fact that the matter is urgent and involves the liberty of the individual I

 

used my discretion and allowed Mr Ushewokunze to make his submissions.  Mr

 

Mathonsi submitted that respondents have held applicant for more than 48 hours

 

without releasing him or bringing him to court as per the legal requirements.  I should

 

state that in order for respondents to continue to hold applicant they should obtain a

 

warrant for further detention.

 

            In my view the issue which calls for determination is whether or not applicant

 

is being legally held.  On 10 April 2003 the Deputy Sheriff attempted to serve the

 

urgent chamber application and provisional order but failed to do so.  The return of

 

service reads:

 

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“RETURN OF SERVICE

 

 

10/04/03

 

Attempted Service on the 1^st respondent Detective Inspector Refias Masuna and 2^nd respondent Detective Superintendent Martin Matira at ZRP Bulawayo Central C.I.D. Law and order, First Floor Office No. 15 where I interviewed the said 1^st respondent and 2^nd respondent.

 

They refused to accept service and advised that we must serve the process on the Officer Commanding Matabeleland Province.  They then locked us in their office and threatened to detain us in their cells.

 

Process herewith pending your further instructions.

 

            Dated at BULAWAYO this 10^th day of April 2003.

 

 

            (Signed)

            Deputy Sheriff Costs

 

                                    500.00 Abortive Attempt (2)

                                      60,00 Letter to the Registrar

 

560,00Messrs Coghlan and Welsh”

 

As a result of the contents of the return of service Mr Mathonsi personally

 

served 1^st respondent and filed a certificate of service as per the rules of the

 

High Court which reads –

 

“Certificate of service

 

I, NICHOLAS MATHONSI,  the legal practitioner of record for the applicant hereby certify that at the offices of CID law and order, Central Police Station, Fife Street, Bulawayo on the 10^th day of April 2003 at 10.30am in the forenoon/afternoon, I served the provisional order personally:-

 

Upon the First Respondent who read it in my presence and at the same time I explained the exigencies thereof.

 

 

 

(Signed)

…………………………..Nicholas Mathonsi”

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            Despite successful service on 1^st respondent applicant was still not produced in

 

court.  Mr Ushewokunze indeed found  himself in an extremely difficult position in

 

attempting to justify the apparent disrespectful conduct of the respondents.  He argued

 

that his latest instructions from 2^nd respondent were that the continuous detention of

 

applicant was lawful as he was in possession of a warrant for further detention

 

issued on 9 April 2003.  There are two problems in this assertion by 2^nd respondent. 

 

Firstly according to Mr Mathonsi 2^nd respondent did not have the said warrant as at

 

12.45pm on 9 April and secondly as at 12 noon on 10 April 2003 the said warrant was

 

not only available to the court but to Mr Ushewokunze as well.  I fail to see why it

 

should not bee made available in court bearing in mind that the respondents’ case

 

would either stand or fall by the production of the said document.  It is my finding

 

that the said warrant is non-existent.

 

            Mr Ushewokunze further argued that it is the intention of respondents to

 

charge applicant jointly with Mr Gibson Sibanda.  This, may well be so, but, the fact

 

still remains that as of now he is being held unlawfully.  The state is perfectly entitled

 

to take legal action against any individual who is reasonably believed to have

 

committed an offence but that authority is not a blank cheque to do as one pleases but

 

that all such actions should be with utmost respect for an individual’s constitutional

 

rights.  These rights are not debatable as our constitution is supreme.

 

            It was improper therefore for the respondents to continue to hold applicant

 

without a legal authority to do so.  In the event that they wanted to do so in order to

 

continue with their investigations which is legally permissible, they should have

 

obtained a warrant for further detention in terms of the existing laws of the country.

 

 

 

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            Mr Mathonsi submitted that respondents should bear the costs of this

 

application, which is opposed by respondents.  The basis for his submission is

 

that respondents were not co-operative and hence acted both unlawfully and

 

unreasonably.  In determining the question of costs it is pertinent to examine the

 

conduct of the respondents.  Respondents had been holding applicant in the police

 

cells for over 48 hours despite the fact that they were advised against their illegal

 

actions.  They refused to accept service by the Deputy Sheriff who is the officer of

 

this court.  It was part of the order that the Deputy Sheriff effect such service and by

 

refusing and threatening to detain the Deputy Sheriff they acted contemptuously vis-

 

a-visthis court.  In addition to this, they refused to comply with the court provisional

 

order after 1^st respondent had been successfully served by Mr Mathonsi in that

 

they refused to produce applicant before this court.  This type of conduct on the part

 

of the police is unacceptable and in my view the court should show its indignation by

 

ordering the costs as prayed for by applicant.

 

 

            The following order is made therefore:

 

           

1. That the continued detention of the applicant be and is hereby declared unlawful.
2. That the applicant be and is hereby freed and allowed to go home.
3. That if the state still wants to prefer charges against the applicant it shall proceed by way of summons.
4. That the costs of this application shall be borne by first and second respondents jointly and severally the one paying the other to be absolved.

 

Mr Ushewokunzehas appealed against the order of costs against 1^st and 2^nd

 

respondents I therefore accordingly grant him leave to appeal against costs only.  This

 

I do even with full knowledge that respondents are in contempt and should not have

 

 

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been heard.  The Supreme Court, will therefore deal with the issue of costs and lay it

 

to rest.

 

 

 

 

 

Coghlan & Welshapplicant’s legal practitioners

Attorney-Generalrespondents’ legal practitioners