Douglas Muzanenhamo v (1) Officer in Charge CID Law and Order (2) Officer Commanding Harare Central District (3) Commissioner General of Police (4) Co-Ministers of Home Affairs (5) Officer in Charge Harare Central Prison (6) Commissioner General of Prisons (7) Minister of Justice and Legal Affairs (8) Attorney-General

Judgment No. CCZ 3 /13 1
                                           Constitutional Application No. CCZ 287/12




REPORTABLE (2)



                           DOUGLAS
                                MUZANENHAMO
                                 v
       (1) OFFICER IN CHARGE CID LAW AND ORDER
   (2) OFFICER COMMANDING HARARE CENTRAL DISTRICT
             (3) COMMISSIONER GENERAL OF POLICE
                (4) CO-MINISTERS OF HOME AFFAIRS
     (5) OFFICER IN CHARGE HARARE CENTRAL PRISON
            (6) COMMISSIONER GENERAL OF PRISONS
        (7) MINISTER OF JUSTICE AND LEGAL AFFAIRS
                     (8) ATTORNEY - GENERAL



CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA,
GARWE JA, GOWORA JA, PATEL JA, HLATSHWAYO JA,
CHIWESHE AJA & GUVAVA AJA
HARARE, MAY 24 & NOVEMBER 14, 2013



Z.T. Chadambuka & D. Chimbwe & M.T. Zhuwarara, for the applicant
T. Dodo & C. Chimombe, for the respondent




               PATEL JA:             This is an application under s 24(1) of the former

Constitution for declaratory and consequential relief pursuant to the Declaration of Rights

enshrined in that Constitution. The applicant in this matter is HIV positive. He started

his anti-retroviral treatment in 2003. On 19 of February 2011, he was arrested at a

meeting held to commemorate an AIDS activist. On the day of his arrest he was detained
                                                           Judgment No. CCZ 3 /13 2
                                           Constitutional Application No. CCZ 287/12
at Harare Central Police Station and then taken to Harare Remand Prison on 23 February

2011.

               The applicant avers that he was subjected to various forms of ill-treatment

during his detention at both prisons and that his fundamental rights were consequently

violated by the respondents. In particular, he complains that at Harare Central Police

Station he was not allowed to use his cell-phone and was thereby denied access to his

anti-retroviral medication. Furthermore, he was required to remain barefoot and with

only one layer of clothing. In addition, the toilet facilities in the holding cells were

unhygienic and deplorable. At Harare Remand Prison, he was denied access to his

prescribed medication regime. Moreover, together with other inmates, he was stripped

and made to jump up and down, and placed in solitary confinement for four days when he

complained.



               Having regard to this ill-treatment, the applicant seeks a declaratur to the

effect that the respondents contravened ss 15(1) and 20(1) of the Constitution relative to

the protection against inhuman or degrading treatment and his freedom of expression, and

that the conditions in the holding cells at Harare Central Police Station and the practice at

Harare Remand Prison of requiring inmates to strip naked be declared inhuman and

degrading. He also seeks an order requiring the respondents to ensure that inmates be

allowed full access to their respective anti-retroviral regimes, that no inmate be required

to walk barefoot or be left with inadequate clothing, and that the toilet facilities in the

holding cells at Harare Central Police Station be rehabilitated.
                                                            Judgment No. CCZ 3 /13 3
                                            Constitutional Application No. CCZ 287/12
               The respondents deny most of the applicant’s assertions.        As regards

Harare Central Police Station, they aver that the governing Police Manual prescribes that

every inmate be required to surrender all his possessions, other than clothing for personal

use, so as to avoid his harming himself. Again, cell-phones and other valuable articles

are ordinarily taken for safe custody. The applicant did not request his cell-phone and did

not tell the police officers concerned about his HIV status and anti-retroviral regime. All

inmates in holding cells are given three blankets each and the toilets are cleaned and

inspected every day. However, the toilet flushing mechanisms are placed outside the

cells and therefore cannot be used by the inmates themselves. The respondents also

concede that the conditions in the holding cells are not entirely acceptable. However,

their rehabilitation is not immediately practicable.



               With respect to Harare Remand Prison, the respondents aver that they

employ qualified doctors to administer appropriate medication and that inmates may only

bring their own medication if it is unavailable in the prisons stock. Moreover, the

applicant did not lodge any complaint about his medication either upon admission or on

discharge. As regards strip searches, these are procedurally done and strict decency is

observed. Finally, the respondents aver that the practice of solitary confinement has been

abolished and that the applicant was never subjected to this practice.



               At the hearing of the matter, Adv. Chadambuka submitted that the

respondent’s assertions and denials are based on what should be in place as a matter of

practice. In effect, they have failed to ascertain and rebut what actually happened to the
                                                           Judgment No. CCZ 3 /13 4
                                           Constitutional Application No. CCZ 287/12
applicant in relation to his medication and conditions of incarceration.       He further

submits that these bare denials do not raise any material disputes of fact that are not

resoluble on the papers. The court should therefore take a robust view of the facts in

order to do justice as between the parties. Mr. Dodo concedes that there are certain facts,

for instance, the conditions in the cells at Harare Central Police Station, which are

common cause. However, apart from this, there are substantial disputes of fact that were

foreseeable before this application was instituted. Consequently, he submits that the

matter should be dismissed or struck off to be instituted afresh.


MATERIAL DISPUTES OF FACT

               As a general rule in motion proceedings, the courts are enjoined to take a

robust and common sense approach to disputes of fact and to resolve the issues at hand

despite the apparent conflict. The prime consideration is the possibility of deciding the

matter on the papers without causing injustice to either party. See Masukusa v National

Foods Ltd & Another 1983 (1) ZLR 232 (S) at 235A; Zimbabwe Bonded Fibreglass v

Peech 1987 (2) ZLR 338 (S) at 339C-D; Ex-Combatants Security Co. v Midlands State

University 2006 (1) ZLR 531 (H) at 534E-F.



               The first enquiry is to ascertain whether or not there is a real dispute of
fact. As was observed by Makarau JP (as she then was) in Supa Plant Investments (Pvt)
Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136F-G:

       “A material dispute of facts arises when material facts alleged by the applicant are
       disputed and traversed by the respondent in such a manner as to leave the court
       with no ready answer to the dispute between the parties in the absence of further
       evidence.”
                                                            Judgment No. CCZ 3 /13 5
                                            Constitutional Application No. CCZ 287/12
               In this regard, the mere allegation of a possible dispute of fact is not

conclusive of its existence. See Room Hire Co. (Pty) Ltd v Jeppe Street Mansions ((Pty)

Ltd 1949 (3) SA 1155 (T) at 1163; Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt)

Ltd S-146-86; Boka Enterprises v Joowalay & Another 1988 (1) ZLR 107 (S) at 114B-C;

Kingstons Ltd v L.D. Ineson(Pvt) Ltd 2006 (1) ZLR 451 (S) at 456C-D and 458D-E. The

respondent’s defence must be set out in clear and cogent detail. A bare denial of the

applicant’s material averments does not suffice. The opposing papers must show a bona

fide dispute of fact incapable of resolution without viva voce evidence having been heard.

See the Room Hire Co. case, supra, at 1165, cited with approval in Vittareal Flats (Pvt)

Ltd v Undenge & Others 2005 (2) ZLR 176 (H) at 180C-D; van Niekerk v van Niekerk &

Others 1999 (1) ZLR 421 (S) at 428F-G.


DISPUTES OF FACT IN THE PRESENT MATTER

               In their opposing papers, the respondents make certain clear concessions

in response to the applicant’s averments concerning the conditions at Harare Central

Police Station. The second respondent (Officer Commanding Harare Central District)

admits that the toilets in the holding cells are not screened and that there is no flushing

mechanism for use by inmates within any given cell. He also accepts that, although each

inmate should be given three blankets, no mattresses are provided for inmates to sleep on.

Apart from this, all the other averments of the applicant are denied, either in their totality

or in terms that substantially contradict the applicant’s assertions.



               In certain respects, the respondents’ denials are not sufficiently detailed.

For instance, the sixth respondent (Commissioner General of Prisons) admits that strip
                                                            Judgment No. CCZ 3 /13 6
                                            Constitutional Application No. CCZ 287/12
searches are conducted in prisons, but avers simply that they are carried out procedurally

and that strict decency is observed. He also asserts, rather tersely, that the practice of

solitary confinement has been abolished and that the applicant was never subjected to

such confinement. Nevertheless, despite the laconic nature of these denials and the

failure to elaborate them, they are quite categorical in contradicting the applicant’s

averments. Taken in the overall context, they cannot be rejected or disregarded as mere

fabrication.



               In the final analysis, I am of the considered view that the conflicting

positions of the parties in casu are irreconcilable on the papers in several critical respects.

The affidavit evidence does not clearly establish the veracity of all of the applicant’s

complaints to the extent that it can be said that there is a “ready answer to the dispute

between the parties in the absence of further evidence”. As was properly conceded by

counsel for the applicant, all of the relief sought herein involves having to make findings

of fact, and only a few of the relevant facts are resoluble on the papers. I accordingly

conclude that there are material and significant disputes of fact that can only be resolved

by the calling of oral evidence in trial proceedings.


DISPOSITION


               In determining this matter, it is necessary to have regard to the primary
purpose of section 24 of the former Constitution. As was succinctly explained by Baron
JA in Mandirwhe v Minister of State 1986 (1) ZLR 1 (S) at 7:

       “The purpose of s 24 is to provide, in a proper case, speedy access to the final
       court in the land. The issue will always be whether there has been an infringement
       of an individual’s fundamental rights or freedoms, and frequently will involve the
                                                            Judgment No. CCZ 3 /13 7
                                            Constitutional Application No. CCZ 287/12
       liberty of the individual; constitutional issues of this kind usually find their way to
       this court, but a favourable judgment obtained at the conclusion of the normal,
       and sometimes very lengthy, judicial process could well be of little value. And
       even where speed is not of the essence there are obvious advantages to the
       litigants and to the public to have an important constitutional issue decided
       directly by the Appellate Division without protracted litigation.”



               The facts of the present matter do not evince any need for its speedy

resolution. The applicant is no longer in custody and he does not stand in jeopardy of any

immediate harm or privation being inflicted upon him. The redress that he seeks arises

from events and practices that have already occurred, but relates to the prevention of their

recurrence in the future. In either case, I do not perceive any urgency warranting a rough

and robust approach to the facts under consideration.



               In terms of s 24(4) of the Constitution, the court is endowed with the
power to:
       “… make such orders, issue such writs and give such directions as it may consider
       appropriate for the purpose of enforcing or securing the enforcement of the
       Declaration of Rights”.


               Given the factual disputes alluded to earlier, it is clearly not possible for

this Court to proceed with this application as it stands at this stage. Matters of evidence

and credibility are generally beyond the practical remit of this Court and, without firm

findings of fact, the court is unable to entertain the substantive relief sought by the

applicant. It is of course open to the court to strike off or dismiss the application on the

technical ground that the applicant has adopted the wrong procedure and should have

instituted this matter by way of action in the High Court. However, in view of the

unquestionable public importance of the issues raised, both generally and in the particular
                                                              Judgment No. CCZ 3 /13 8
                                              Constitutional Application No. CCZ 287/12
context of persons with HIV or AIDS, I take the view that the discretion of this Court

should be exercised in favour of retaining this matter on the roll until the constitutional

issues raised are properly resolved. I therefore consider it prudent and necessary to refer

this application to the High Court for it to proceed as an action for trial and for that court

to determine the matter in its entirety.



       It is accordingly ordered that:

   1. This application be and is hereby referred for trial to the High Court for
      determination on the facts and on its merits.

   2. For the purposes of trial, the notice of application and notice of opposition filed of
      record herein shall respectively stand as the summons and notice of appearance to
      defend.

   3. The plaintiff (the applicant herein) shall file his declaration within 10 days from
      the date of this order.

   4. The matter shall thereafter proceed in accordance with the Rules of the High
      Court.

   5. In the event that any party is aggrieved by the decision of the High Court, whether
      on the facts or on the merits, he is hereby given leave to appeal to this Court
      within 10 days from the date of that decision.

   6. The costs of this application shall be costs in the cause.




       CHIDYAUSIKU CJ:                   I agree.


       MALABA DCJ:                       I agree.


       ZIYAMBI JA:                       I agree.


       GARWE JA:                         I agree.
                                                           Judgment No. CCZ 3 /13 9
                                           Constitutional Application No. CCZ 287/12


       GOWORA JA:                     I agree.


       HLATSHWAYO JA:                 I agree.


       CHIWESHE AJA:                  I agree.


       GUVAVA AJA:                    I agree.




Zimbabwe Lawyers for Human Rights, applicant’s legal practitioners
Civil Division of the Attorney-General’s Office, respondent’s legal practitioners