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Victory for lawyers in practice as High Court Judge interdicts police from seizing lawyer's mobile phone
Zimbabwe Lawyers for Human Rights (ZLHR)
July 12, 2011

High Court Judge, Justice Francis Bere, on Sunday 10 July 2011 interdicted members of the Zimbabwe Republic Police (ZRP) from seizing a mobile phone belonging to David Hofisi, a lawyer with Zimbabwe Lawyers for Human Rights (ZLHR).

Justice Bere granted a provisional order sought by the ZLHR lawyer after Chief Superintendent Majuta of the Harare Central police station attempted to seize Hofisi's mobile phone for the purposes of "downloading information" relating to the representation of Tawanda Tandi, a legal practitioner employed by Kantor and Immerman Legal Practitioners. Tandi had been arbitrarily arrested and wrongfully detained at the police station on Saturday 9 July 2011 on charges of obstructing or defeating the course of justice.

Police alleged that Tandi had refused to hand over a passport belonging to one of the Ministry of Finance employees who was arrested last week on allegations of taking unauthorised trips and violating purchasing procedures, despite the fact that the passport had never been in his possession. David Hofisi and Simplicio Bhebhe (also of Kantor & Immerman) were then forced to make arrangements with the relatives of the detained Ministry of Finance employee to hand over the passport and facilitate the release from "hostage detention" of Tandi.

Following Hofisi's refusal to give up his mobile phone, Majuta set up an appointment for 13:00 hours on Sunday 10 July 2011 for the purposes of "downloading information" from the human rights lawyer's mobile phone, and threatened to arrest Hofisi for obstruction of justice if he did not hand the phone over at the specified time.

In the urgent chamber application filed by Tawanda Zhuwarara of ZLHR, Hofisi argued that since his mobile phone contains his personal and professional information and contacts, releasing the phone for an indefinite period and for unspecified and legally unjustifiable reasons would prejudice himself, his clients and his professional practice.

Zhuwarara argued that the police officer's demand to take possession of the mobile phone was wrongful, unlawful and infringed upon Hofisi's right to privacy and also the legal practitioner - client privilege. He stated that the request and intention by Majuta to seize the human rights lawyer's phone was tantamount to harassment and infringed not only his constitutional rights but also the right of his client, Tandi, to be represented by a legal practitioner of his choice and to be protected by the legal practitioner - client privilege.

The police, represented by Nelson Mutsonziwa from the Attorney General's office, opposed the application.

Following arguments in chambers on Sunday, Justice Bere granted the provisional order sought by Hofisi and interdicted Chief Superintendent Majuta and Police Commissioner-General Augustine Chihuri from seizing Hofisi's mobile phone and any other information or article from the lawyer arising from and or connected with the lawful practice and his duties as a legal practitioner unless they act in compliance with due process of the law.

The police now have 10 days to file a Notice of Opposition to contest the confirmation of the provisional order.

ZLHR condemns the continued attacks on lawyers - both through arbitrary arrest and detention, leveling of spurious charges of obstruction of justice, and now through new means of repression such as targeting of lawyers' communications with clients.

ZLHR welcomes the ruling by Justice Bere as it reaffirms the sacrosanct nature of legal practitioner-client privilege and puts the brakes on the police's increasingly arbitrary and unlawful actions which continue to prevent lawyers from exercising their professional obligations. It would be the greatest assault on the rule of law and legal practice should police be allowed now, or in the future, to impact in such a criminal manner on the operations of an independent legal profession executing its responsibilities according to the law.

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