The applicant is HIV positive and started anti-retroviral treatment in 2003. On 19 February 2011, he was arrested at a meeting held to commemorate an AIDS activist. He was detained at Harare Central Police Station and then taken to Harare Remand Prison on 23 February 2011. The applicant alleged he was subjected to various forms of ill-treatment during detention: at Harare Central Police Station he was not allowed to use his cell phone and was denied access to anti-retroviral medication, was required to remain barefoot with only one layer of clothing, and toilet facilities were unhygienic and deplorable. At Harare Remand Prison, he was denied access to his prescribed medication regime, stripped and made to jump up and down with other inmates, and placed in solitary confinement for four days when he complained. The respondents denied most assertions, stating that procedures required inmates to surrender possessions, that the applicant did not request his cell phone or inform officers of his HIV status, that inmates received three blankets, and that strip searches were conducted with decency. They also denied the applicant was placed in solitary confinement.
1. The application was referred to the High Court for trial and determination on the facts and merits. 2. The notice of application and notice of opposition were to stand as the summons and notice of appearance to defend. 3. The plaintiff was to file his declaration within 10 days. 4. The matter was to proceed in accordance with High Court Rules. 5. Leave to appeal to the Constitutional Court was granted within 10 days of the High Court decision. 6. Costs of the application were reserved as costs in the cause.
In constitutional applications under section 24 of the Constitution involving material disputes of fact that cannot be resolved on the papers, the Constitutional Court has the discretion under section 24(4) to refer the matter to the High Court for trial rather than dismissing it, particularly where issues of public importance are raised and there is no urgency requiring immediate determination. A material dispute of fact 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 in the absence of further evidence. The respondent's defence must be set out in clear and cogent detail; bare denials do not suffice, but categorical contradictions, even if tersely stated, may create genuine disputes requiring oral evidence. The purpose of section 24 is to provide speedy access to the final court, but where the applicant is no longer in custody and faces no immediate jeopardy, the court is not required to take a robust approach to factual disputes and may instead ensure proper factual determination through trial proceedings.
The Court made several non-binding observations: (1) The respondents made certain concessions regarding conditions at Harare Central Police Station (unscreened toilets, inaccessible flushing mechanisms, lack of mattresses) which were not entirely acceptable but whose rehabilitation was not immediately practicable. (2) The Court acknowledged the unquestionable public importance of the issues raised, both generally and in the particular context of persons with HIV or AIDS. (3) The Court noted that matters of evidence and credibility are generally beyond the practical remit of the Constitutional Court. (4) The Court observed that it would have been open to strike off or dismiss the application on the technical ground that the applicant adopted the wrong procedure and should have instituted the matter by way of action in the High Court. (5) The Court emphasized that a favourable judgment obtained through the normal judicial process in constitutional matters involving liberty could be of little value if delayed, but this consideration did not apply in the present circumstances.
This case is significant in Zimbabwean constitutional law for several reasons: (1) it clarifies the procedural approach to constitutional applications under section 24 of the former Constitution where material disputes of fact exist; (2) it demonstrates the Constitutional Court's willingness to exercise flexibility in its procedural powers under section 24(4) to ensure substantive justice, particularly on matters of public importance; (3) it recognizes the importance of issues relating to the treatment of detainees living with HIV/AIDS and prison conditions generally; (4) it establishes that while section 24 is designed for speedy constitutional relief, the Court will not adopt a rough and robust approach to factual disputes where there is no urgency and the applicant is no longer at risk of immediate harm; (5) it confirms that bare denials by respondents do not necessarily create material disputes of fact, but categorical and detailed contradictions do; and (6) it demonstrates the Court's commitment to ensuring proper factual determination before adjudicating on serious allegations of constitutional violations relating to inhuman and degrading treatment.