Austin v Chairman Detainees Review Tribunal 1988 (1) ZLR 21 (SC): Withholding of evidence from detainee. Considerations of natural justice. Prejudice in the preperation of defence. Standard of proof. Onus.

Dumbutshena CJ:

Emergency Power Regulations authorising withholding of evidence from detainee. Drafted in the knowledge that some elements of natural justice were to be excluded because of overriding considerations of natural justice. It was permissible for the Tribunal to rely on information not fully divulged to the detainee, provided that he was not prejudiced in the preperation of his defence. In such circumstances there is a correspondingly greater duty on the Tribunal to investigate the authenticiy and reliability of the information supplied to it.

The standard of proof to be applied in the Tribunal is the same as is generally applied in civil proceedings. Because such cases involve issues of personal liberty the degree of probability required is high. The onus rests on the Minister as it is he who seeks to enforce the detention and deprive the subject of his liberty. The detainee need do no more than rebut the Minister’s allegations.

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