Kisimusi Emmanuel Dhlamini and 6 Others v The State

Seven applicants alleged they were abducted by State security agents between 25 November and 13 December 2008 from various places in Zimbabwe and detained incommunicado at Goromonzi Prison until 22 December 2008. They claimed they were tortured, denied access to family, legal counsel, and medical treatment. Medical affidavits confirmed evidence of healed injuries consistent with torture and psychological trauma. On 22 December 2008, they were transferred to police custody and charged with insurgency, banditry, sabotage or terrorism (alternatively malicious damage to property). On 29 December 2008, they appeared before the Magistrates Court for initial remand. The magistrate ordered an investigation into the abduction and torture allegations. Despite these allegations, the magistrate placed them on remand finding reasonable suspicion they had committed the offences charged. The applicants raised the issue of detention as violating their fundamental rights but did not request a referral to the Supreme Court at that stage. The High Court later referred questions of alleged constitutional violations to the Supreme Court under s 24(2) of the Constitution during trial proceedings.

• Whether the referral by the High Court to the Supreme Court under s 24(2) of the Constitution was competent given the stage of proceedings
• Whether s 24(3) of the Constitution precluded the referral where the question of constitutional violation was raised but not referred at the magistrate court level
• Whether the applicants' fundamental rights under ss 13(1) (personal liberty), 15(1) (freedom from torture and inhuman treatment), and 18(1) (protection of the law) of the Constitution were violated
• Whether the proper procedure under s 24(2) of the Constitution had been followed

The matter was struck off the roll with no order as to costs.

A referral to the Supreme Court under s 24(2) of the Constitution must be requested before the lower court renders its decision on the matter. Once a decision has been made by a lower court without such referral (whether because no request was made or the request was refused), the constitutional question can only be dealt with by way of appeal or review, not through a subsequent s 24(2) referral. Section 24(3) bars an application under s 24(1) where a constitutional question was raised but not referred in lower court proceedings. The Supreme Court under s 24(2) exercises original jurisdiction and cannot use this mechanism to review decisions already made by lower courts. Compliance with s 24 of the Constitution is peremptory and non-compliance is fatal to an application.

The Court noted that if the applicants believed the decision to place them on remand violated their fundamental rights, they could have sought redress under s 24(1) as an exceptional remedy had they requested a referral before the remand decision and that request had been refused as frivolous and vexatious. The Court also observed that prima facie, in finding reasonable suspicion that the applicants committed the offences charged, the magistrate did not violate the applicants' right to personal liberty - a finding confirmed by the High Court on review in HC 42/09 and HC 147/09. The Court suggested that the High Court could not turn trial proceedings into an inquiry into the correctness of the Magistrates Court's remand decision or seek to impugn that decision through the s 24(2) procedure.

This case establishes important procedural requirements for constitutional referrals under s 24(2) of the former Zimbabwean Constitution. It clarifies that: (1) constitutional questions must be referred to the Supreme Court before the lower court makes its decision, not after; (2) once a decision is made without referral, the matter can only be challenged by appeal or review, not through a subsequent s 24(2) referral; (3) s 24 of the Constitution is peremptory and non-compliance is fatal to an application; (4) the Supreme Court exercises original jurisdiction under s 24(2) and cannot use this mechanism to review lower court decisions already made. The case demonstrates the strictness with which courts enforce constitutional procedural requirements and the importance of timeous invocation of constitutional remedies. It also illustrates that even serious allegations of torture and human rights violations cannot cure procedural defects in constitutional litigation.