REDRESS/AMANI IV. CLAIMING REPARATION FOR TORTURE IV.1 . Available Remedies A. The Constitution In terms of Section 24(1) of the Constitution, “ If any person alleges that the Declaration of Rights has been, is being or is likely to be contravened in relation to him (or, in the case of a person who is detained, if any other person alleges such a contravention in relation to the detained person), then, without prejudice to any other action with respect to the same matter which is lawfully available that person (or that other person) may, subject to the provisions of subsection (3), apply to the Supreme Court for redress.” Subsection (2) allows for the referral of proceedings before the High Court or inferior courts to the Supreme Court where a question has arisen of a contravention of the Declaration of Rights. Subsection (3) provides that if no such referral is made then no application to the Supreme Court can be made in terms of subsection (1), although this will not preclude the question being raised on appeal. Section 24(4) provides the Supreme Court with original jurisdiction to determine such applications or questions and 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,”with the proviso that it “ may decline to exercise its powers under this subsection if it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of this Constitution or under any other law.” The Supreme Court therefore has a discretionary power to provide appropriate relief where it finds there has been a contravention of the Declaration of Rights, but claims for damages need to be brought in the High Court or inferior courts. It has not been asked to rule whether it can award constitutional damages on the grounds of a violation of a plaintiff’s fundamental rights. Should such an issue come before it the Supreme Court, sitting as the Constitutional Court, is unlikely to find such damages to be “ appropriate” .148 B. Civil Law The common law in Zimbabwe is Roman-Dutch, and this is recognised in Section 89 of the Constitution.149 A torture survivor can bring a claim in delict150 for damages 148 It is significant that the Constitutional Court in South Africa, with that country’s more liberal Constitution, has declined to award such damages: see Fose v Minister of Safety and Security 1997 (3) SA 786 (CC). For an analysis of Section 24 see Enforcement of Rights contained in the Declaration of Rights, Greg Linington, Legal Forum, (Harare), Vol 11, No 3, (Sept 1999), pp. 147-159. 149 Section 89: “ Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered… shall be the law in force in the Colony of the Cape of Good Hope on 10th June, 1891, as modified by subsequent legislation having in Zimbabwe the force of law. ” The white settlers of the British South Africa Company (BSAP) hoisted the British flag in what is today Zimbabwe in 1890. The BSAP had a Royal Charter from Queen Victoria to exercise powers necessary for the purposes of government and the preservation of public order. They came from the Cape of Good Hope in South Africa, the BSAP having received a concession from King Lobenguela the previous year to exploit the minerals of his territory. The terms of the concession were fraudently obtained. In 1891 by way of an Order-in-Council the area was proclaimed a Crown Protectorate, effectively under the administration of the BSAP, subject to the supervision of a High Commissioner based in Cape Town and the final authority of the Colonial Secretary. Thus Cape (Roman- 31