Remedy for Unlawful Arrest and Detention (Zimbabwe)

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In Minister of Home Affairs & Anor v Bangajena 2000 (1) ZLR 306 (S) the Supreme Court stated that the deprivation of personal liberty is an odious interference and has always been regarded as a serious injury. The courts have properly taken the stance that deprivation of liberty through unlawful arrest and imprisonment is a very serious infraction of fundamental rights. Damages for this delict should therefore be exemplary and punitive to deter would-be offenders.

In Chituku v Minister of Home Affairs & Ors HH-6-04 the court stated that treatment of an arrested, detained or convicted person that affronts the dignity of that person or exceeds the limits of civilised standards of decency and involves the unnecessary infliction of suffering or pain is inhuman and degrading. If the High Court is satisfied that the actions complained of violate the rights of the plaintiff as granted under the Constitution, it could grant suitable relief to redress the injury. This is part of the inherent jurisdiction that the court enjoys. The plaintiff is not restricted to bringing an application under s 24 of the Constitution. The right to dignity is recognised in the Roman-Dutch law as an independent right that can be protected by the actio injuriarum, the actio injuriarum being wide enough to encompass any action that violates the corpus or dignitas of the plaintiff. Inhuman and degrading treatment affronts the dignity or self-respect of an individual and could found a claim. It seems that that in an application under s 24 of the Constitution, the Supreme Court has the power to award damages.


See Zimbabwe Criminal Defense Manual