Kisimusi E Dhlamini and 6 Others v The State and Olivia Mariga N.O.

Seven applicants, who were members, employees, activists or sympathizers of the Movement for Democratic Change – Tsvangirai (MDC-T) political party, were allegedly kidnapped by State agents from places in and around Harare and Norton between November 2008 and December 2008. They alleged they were held in secret detention centres around Harare, Goromonzi and other places where they were subjected to torture, inhuman and degrading treatment. They were subsequently surrendered to the regular police and charged with three counts of bombing police stations in Harare and two counts of bombing a road and rail bridge just outside Harare. The trial magistrate ordered an investigation into the allegations of torture, abduction and kidnapping, and placed the applicants on remand. The applicants sought a review of the magistrate's decision to place them on remand, arguing they were victims of crime themselves and that there was no reasonable suspicion that they had committed the offences.

• Whether the trial magistrate erred in placing the applicants on remand despite their allegations of abduction and torture by State agents
• Whether the magistrate failed to apply her mind to the application for refusal of remand
• Whether there was reasonable suspicion that the applicants had committed the offences charged
• Whether the magistrate gave proper and adequate reasons for her decision
• Whether the magistrate's decision was so unreasonable that no sensible person who applied their mind would have arrived at the same decision
• Whether there were gross irregularities in the proceedings warranting review
• Whether courts should decline jurisdiction where accused persons have been brought before them through internal abductions, torture or forced disappearances by State agents

The application for review was dismissed.

The binding legal principles established are: (1) For a review to succeed, the applicant must demonstrate gross irregularity in the conduct of proceedings or lack of jurisdiction, not merely that the decision was substantively incorrect; (2) Where a court has ordered an investigation into allegations of abduction and torture, it cannot simultaneously make findings on those same allegations ahead of the investigation report; (3) In remand proceedings, the test for reasonable suspicion does not require proof beyond reasonable doubt or even a preponderance of probability, but merely a state of conjecture or surmise where proof is lacking; (4) A magistrate's reasoning that is brief or not fully elaborated does not, in itself, constitute a gross irregularity warranting setting aside the decision on review, provided the magistrate applied her mind to the relevant legal principles and the evidence before her; (5) In remand proceedings initiated by the prosecution, the defence's opposition does not constitute a separate application entitling them to a further right of reply after the prosecution has responded.

The court made important obiter observations regarding the potential application of the S v Ibrahim principle to cases of internal abductions by State agents. Hlatshwayo J suggested that if courts frown upon cross-border abductions because they violate international law, they "should be even more wary of the state resorting to such extreme measures of bringing accused persons before the courts within its own jurisdiction where it holds sway and has limitless and perfectly legal and humane ways in which it can secure their attendance to court." The court observed that "if it is proved that internal abduction, torture or forced disappearance carried out or authorized by or connived in by the state or its officials has preceded the handing over to the police and the courts of an accused person, then, as in the case of foreign abductions the judiciary should not condone such delinquent acts." However, the court expressly declined to express an opinion on whether the proper remedy would be for courts to decline jurisdiction, as this issue had not been fully argued before it. This obiter dicta opens the door for future development of the law regarding judicial response to State-sponsored internal abductions and torture.

This case is significant in Zimbabwean criminal procedure and human rights law for several reasons: (1) It clarifies the distinction between review and appeal grounds, emphasizing that review requires proof of procedural irregularity or jurisdictional defects, not mere substantive incorrectness; (2) It confirms the test for reasonable suspicion in remand proceedings as established in Martin v Attorney-General, which does not require proof beyond reasonable doubt or even a preponderance of probability; (3) Most importantly, it opens the door (through obiter dicta) to future consideration of whether courts should decline jurisdiction where accused persons have been brought before them through internal abductions, torture or forced disappearances by State agents, drawing an analogy to the cross-border abduction jurisprudence in S v Ibrahim; (4) It addresses the relationship between ongoing investigations into human rights violations and concurrent remand proceedings; (5) It reinforces that brief or less-than-ideal reasoning by a magistrate is not necessarily sufficient to set aside a decision on review, as established in Attorney-General v Blumears & Anor 1991 (1) ZLR 118.