JUSTICE IN ZIMBABWE 114 ____________________________________________________________________ Justice Garwe said both parties should file their heads of argument, if they so wished, for him to determine its legality. The investigating officers who were present at the High Court hearing had apparently expected the court to release Mr Moyo and Mr Mapombere. As they did not see any basis for the continued detention of the two men, they decided to release them immediately after the High Court hearing. They had not applied for a warrant for further detention. Their stated basis for releasing them was the expiration of the maximum period of time for which the men could be held, namely forty-eight hours. The police officers arranged for the men to meet them at the Magistrate’s Court the following day so that they could be formally placed on remand. The police officers expressed doubts that they would proceed further with the case against them. Unlawfulness of detention There are very strong arguments that the detention of the two men was unlawful. Arrest without warrant and detentions are only lawful if the arresting officer has a reasonable suspicion that the person arrested has committed a particular offence. The law says that all arrests without warrant are prima facie illegal and the onus rests on the arresting authority to justify the arrest by establishing, on a balance of probabilities, that the arrest was lawfully justifiable. To justify his arrest the arresting officer must prove that at the time of the arrest he genuinely held a suspicion that the person arrested had committed a specific criminal offence and that, objectively, the suspicion was based on reasonable grounds. All this is trite law. In this case it is very debatable whether the arresting officers could have formed a reasonable suspicion that the two men had committed an offence under the Public Order and Security Act. At the time of the arrest the police do not seem to have had any particular section of the Public Order and Security Act in mind, and in their preamble to the warned and cautioned statements they referred to a non-existent section of the Act. It was not the function of the judge to correct this deficiency by finding a section that could possibly apply. It was the function of the police to identify the particular offence under the Act that would apply and to arrest on the basis of a reasonable suspicion that the two men had committed that offence.