Minister of Home Affairs v Dabengwa 1983 ZLR 346 S Crt: Application to declare continued detention illegal. Order for habeas corpus. Availability of the writ de homine libero exhibendo. Remedy of mandamus
Failure by the Detainees Review Tribunal to review an Emergency Powers detention in terms of Schedule 2 of the Constitution. Application to declare continued detention illegal. Order granted in lower court. The rule in England that an order for habeas corpus was final and not subject to appeal (point taken in limine) was based on peculiarities in English law of procedure. The rule had no application in Roman-Dutch law.
The breach of mandatory safeguards does not necessarily result in the illegality of the original order. The availability of the writ de homine libero exhibendo cannot be extended to every instance of non-compliance with mandatory safeguards. The remedy for the infringement of the mandatory protections to which a person, who has been validly detained ab initio, is entitled during his detention must be by way of mandamus. Failure to compy with such an order would call into question the bona fides of the continued detention and an order for release could properly follow.
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