Judgment No. CCZ 1/2014 4
Const. Application No. SC 240/2010
The magistrate ordered an investigation into the allegations of abduction and
torture. Senior Assistant Commissioner Nyathi tendered his report to the court on 21 January
2009. On the same day, the then Minister of State Security in the President’s office, deposed to
an affidavit in terms of s 296 of the Criminal Procedure and Evidence Act [Cap. 9:07]. He
declined to disclose the places where the applicants had been detained and identities of State
security agents involved in the investigation of the allegations against the applicants. The
Minister denied that State security agents were involved in the alleged abduction, torture or
illegal detention of the applicants admitting only that they were involved in investigating them
for the alleged commission of the offences with which they were charged.
It is common cause that the applicants challenged the application by the State to
have them placed on remand.
They raised at that stage the question of their detention as a
violation of their fundamental right to personal liberty. They did not request the magistrate to
refer any such question to the Supreme Court for determination. The magistrate granted the
application by the State and placed the applicants on remand on the ground that there was a
reasonable suspicion that they had committed the offences with which they were charged. If the
applicants were of the view that the decision to place them on remand was a violation of their
fundamental right to the protection of the law they could as an exceptional remedy have made
that allegation in an application to the Supreme Court for redress in terms of s 24(1) of the
Constitution had they requested before the decision to remand them was made that the question
of violation of their right to personal liberty be referred to the Supreme Court for determination
and that request had been refused on the ground that the raising of the question was frivolous and
vexatious. The Supreme Court would then have decided whether the decision to place the