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 plaintiffs 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 countrys 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-
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