Smelly Dube v Chief Superintendent Majuta (N.O) and Others

The applicant was a businesswoman and director of Mahlaba Housing Programme (Pvt) Ltd, a company involved in acquiring and developing land for housing purposes in Gweru. On 6 March 2018, she was invited by the first respondent (a police chief superintendent) and informed that inquiries were being made in connection with fraud allegations under section 136 of the Criminal Law (Codification and Reform) Act. The allegations were that she had misrepresented to civil servants that she was the owner of state land in Hertfordshire Park Phase 2 and was selling stands therein. A warned and cautioned statement was recorded from her, after which she was allowed to go. She was informed she would be contacted regarding further developments. Two days later, on 8 March 2018, the applicant filed an urgent application seeking to prevent what she regarded as her imminent arrest and detention, claiming she had received calls from unnamed sources at Gweru Central Police station informing her there was a directive to have her detained. The investigating officer denied any intention to detain her and stated the docket had been referred to the Provincial Public Prosecutor for prosecution directives.

• Whether the High Court has jurisdiction to prevent a speculative arrest and detention before it occurs
• Whether an applicant can circumvent the established criminal procedure by seeking pre-emptive relief in the High Court instead of challenging the lawfulness of arrest before a magistrates court
• Whether the police's constitutional mandate to investigate crime should be fettered on the basis of speculation and fear of arrest
• The proper forum for challenging the lawfulness of an arrest

The application was dismissed with no order as to costs.

The High Court cannot entertain an application to prevent a speculative arrest and detention that has not yet occurred. The proper forum for challenging the lawfulness of an arrest is the magistrates court as the court of first instance, which has jurisdiction to conduct a factual inquiry into whether the arresting officer formed a reasonable suspicion of the commission of an offence. Section 41A(9) of the Criminal Procedure and Evidence Act provides the right to challenge detention, but this does not permit pre-emptive applications to the High Court based on speculation and fear. The High Court should refrain from exercising jurisdiction where a litigant seeks to circumvent due process and bypass the proper forum (magistrates court) for determining the propriety of an arrest.

The court observed that there was a contradiction in the applicant's submission that she was not contesting the charges while simultaneously trying to hide behind the corporate veil to argue that charges were preferred against the wrong person. The court noted that issues would arise regarding section 277(3) of the Criminal Law (Codification and Reform) Act, which deems the intentional conduct of a director as the intention of every other director or employee, and whether fraud as defined in section 136 can be committed by a juristic person. However, the court stated it was not sitting as a remand court and could not determine these issues. The court also commented on public policy considerations that militate against granting such orders, noting the undesirability of fettering the investigative mandate of the police and giving the impression that certain persons receive special treatment before the courts. The court emphasized that in terms of section 219 of the Constitution, the Police Service has the responsibility to detect, investigate and prevent crime, and this constitutional mandate should not be unnecessarily interfered with.

This case establishes important principles regarding forum shopping and the proper court hierarchy for criminal matters in Zimbabwe. It reinforces that arrested persons must follow established criminal procedures and challenge arrests before magistrates courts rather than seeking pre-emptive relief from the High Court. The judgment protects the constitutional mandate of the police to investigate crime without undue interference and prevents litigants from circumventing established legal processes. It affirms the principle that there is one legal system with appropriate forums for different types of disputes, and parties cannot bypass lower courts to obtain special treatment in higher courts.