Habeas corpus as a remedy for deprivation of the right to personal liberty: contemporary developments in Canada and South Africa

Abstract

ABSTRACTThe Canadian public law recognises the writ of habeas corpus as an essential remedy against unlawful detention. Apart from the applications for the release of persons unlawfully incarcerated, there are applications of the writ that illustrate its use to release persons from particular form of detention although the person will lawfully remain under some other restraint of liberty. South African courts like their Canadian counterparts uphold the inherent right of every subject, and in every stranger in the country to issue out a writ of habeas corpus. This right is given not only by the English common law, but also by the South African Roman-Dutch equivalent – interdictum de libero homine exhibendo. However, a close scrutiny of at least one of such decisions proceeding from the lower to the highest court in the country reveals a disconnect in the judicial pronouncements on the link between actio popularis and interdictum de libero homine exhibendo; and the distinction between a bail application and interdictum de libero homine exhibendo. The level of consistency enjoyed by the Canadian courts decisions have not been attained in South Africa.