Constable Nhando T 051330 S V Commissioner General OF Police AND Officer Commanding Police (Bulawayo) AND Officer Commanding Police (Support UNIT Fairbridge)

### Preamble
1
HB 189/20
HC 9/20
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CONSTABLE NHANDO T 051330 S

Versus

COMMISSIONER GENERAL OF POLICE

And

OFFICER COMMANDING POLICE

(BULAWAYO)

And

OFFICER COMMANDING POLICE

(SUPPORT UNIT FAIRBRIDGE)

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 9 JANUARY & 10 SEPTEMBER 2020

Urgent Chamber Application

T. Mabika for the applicant

L. Dube for the respondents

MABHIKWA J:	This matter came to me by way of an urgent chamber application.  At the initial set down date, both counsel, particularly counsel for the applicant, intimated that they wished to file some precedents that would guide the court to dispose of the matter appropriately.  In view of the legal issues raised and apparent from the affidavits but that had not been fully canvassed, I allowed the request.  I also directed the legal practitioners to file further submissions and/or heads of argument if any.  Counsel indicated that they would have filed all the said documents by 31 August 2020.  Despite my misgivings and concern that the urgency element would be eroded, I allowed the parties to file the documents as agreed.  I must say however that counsel expeditiously filed the documents save for the crucial precedent which delayed.  I am indebted to both counsel for the submissions and precedents.

I must say also from the onset that the facts and history of this matter in my view makes very sad reading for disciplinary and administrative justice.  The applicant starts his predicament and need to act from the 3rd of January 2020 when his officer-in-charge advised him to prepare to go and serve his sentence.  He was served with a warrant of committal to detention barracks for two weeks.  He submits that he did not wait to act but acted immediately, “at the right time and soon after the need to act arose”.  He thereafter relies heavily on the judgment of MATHONSI J (as he then was) in Detective Sergeant Mushore vs Commissioner General of Police and Ors HH-55-19.

The predicament and need to act actually starts much earlier as the brief history will show.  The applicant, a Constable in the Zimbabwe Republic Police got into trouble with the police force.  He became subject to a disciplinary hearing presumably in terms of the Police Act Chapter 11:10.  Apparently, he was found guilty of the alleged misconduct and sentenced to two (2) months imprisonment at the Fairbridge Police Detention Barracks.

Thereafter, applicant filed an appeal to the 1st respondent, presumably in terms of section 34 (7) of the Police Act.  The appeal was dismissed.  Apparently, applicant thereafter filed an application for review at the very beginning of 2013 under case number HC 440/13.  When the respondent attempted to execute the sentence, he also filed an urgent chamber application under HC 441/13.  On 21 February 2013, per the Honourable Justice MUTEMA, (as he then was), applicant obtained an order in the interim, temporarily interdicting the 3 respondents from committing applicant to Fairbridge Detention Barracks pending confirmation of the final order sought.  He thus got his freedom.

The papers before me reveal that for almost seven (7) years thereafter, applicant just enjoyed his freedom and did nothing about the application for review in matter number HC 440/13 and the confirmation of the provisional order in case number HC 441/13. On 18 September 2019 and perhaps out of frustration the 1st respondent and another filed case number HC 1769/19.  They applied for and obtained an order per the Honourable MAKONESE J dismissing the applicant’s review application in HC 440/13 for want of prosecution.

In appears to me that believing that they had done all they could, the respondents subsequently attempted to execute the sentence of the disciplinary hearing given years back hence the warrant of committal on 3 January 2020.  Once more, the applicant was jerked and sprang into action.  The respondents found themselves once again blocked by the current application which applicant fervently refers to as “urgent.”

It is clear from the foregoing that for perhaps well over seven (7) years, the applicant has managed to “duck and dive” using the legal technicalities and legal niceties of the strict practice and procedure rules of this court.  In the process, he has, for that long period, avoided the 2 week detention at Fairbridge Barracks subject of a simple misconduct hearing.  It is for this reason that I pointed out at the very beginning of this judgment that the history of this matter makes very sad reading and little sense for administrative justice.

In my view, administrative justice is meant to be met simply by the observance of the principles of natural justice, particularly the audi alterum paterm rule.  To subject such hearings and decisions made by hearing officers and other such work related tribunals to the scrutiny of practice and procedure rules is in my view, undesirable.  It ultimately evades the authority of such misconduct hearings and tribunals. In Chairman of the Public Service Commission & Anor vs Murumahoko 1992 (1) ZLR 304, McNALLY JA (as he then was) stated the following thus;

“In misconduct proceedings, care must be taken in formulating the charges so that the officer is properly informed as to the nature and extent of the offence with which he is being charged.  A disciplinary tribunal does not have to possess the same legal skills as a court of law, but the charge must be sufficiently clear to enable the officer to know the charge against him and to make a meaningful reply thereto.

And in ZFC Ltd vs Creza 1988 (1) ZLR 137 (S) against McNALLY JA as he then was, held that unlike in a court of law, where accusatorial proceedings are used, it is permissible for a tribunal to conduct its proceedings along more inquisitorial lines ad for the tribunal to play an active part in evidence gathering.  The learned Judge of Appeal went on at page 142 to Court Baxter Administrative Law at page 249 call “the Central Principles of Flexibility and Fairness” in Administrative Law, that;

“A leading English Lawyer (Wade) has agreed that one fundamental principle which should govern tribunal procedure is that it should be adversenal, not inquisitorial.  It is submitted that this view is mistaken.  It casts tribunals too rigidly in the world of court of law.  An active role … does not make the tribunal partisan even though such a role might not be appropriate in a court of law.  What is essential is that the tribunal should be impartial, and that persons affected by the tribunal’s decision be given a full opportunity to present their cases and contracts those against, this is the essence of fairness.”

And finally BLACKIE J as he then was, in Chidzonga vs CHRMN, PSC & Anor  2000 (1) ZLR 201 (H) reiterated the simplicity of the audi alterum partem rule, that it encompasses and encapulates a simply concept governed by the fundament need for fairness.  He goes on to quote COLEMAN J in the South African case of  Heatherdale Farms (Pty) Ltd & Ors vs Deputy Min of Agriculture & Anor 1980 (3) SA496 T @ 486 D that;

“It is clear on the authorities that a person who is entitled to the benefit of the audi alterum parterm need not be afforded all the facilities which are allowed to a litigant in a judicial trial.  He need not … discovery of documents.”

I remain cognisant of course of the provisions of section 4 of the Administrative Justice Act, chapter 10:28 and section 35 of the Police Act, chapter 11:10 as read with section 38 of the same Act.

Having gone that far, I must say that it is trite that the binding nature of precedent cannot be avoided.  The judgment of MATHONSI J (as he then was) in Detective Sergeant Mushore (supra) is pertinent and cannot be ignored as correctly cited by the applicant.  The Honourable Judge pointed out that;

“Once a provisional order is granted it does not disappear on its own neither does it get overtaken by events.  It remains the command of the court directed at the parties until it is either confirmed, at which event the terms of the final order sought kick in, or discharged by the court, at which the operative interim relief ceases to exist as a command.  Clearly therefore, the proceedings of the suitability board remain interdicted by the provisional order of 15 march 2017 because it is still extant.  It is binding on the respondents who are not at liberty to ignore it.  Every citizen of the country is obliged to obey the orders of the courts … unless and until it is discharged …

That brings me to the mistaken view of the respondents that where a judge has ruled that a matter is not urgent and removes it from the roll of urgent applications that finalises the matter.  It does not.  It is now settled in this jurisdiction that where a matter is not urgent it is not dismissed.  The applicant is entitled to pursue it as an ordinary application because what the applicant would have lost is the opportunity to jump the queue and be heard urgently.  The decision on urgency did not discharge the provisional order.  If the respondents desired to proceed with the suitability board they had the remedy of seeking a discharge of the provisional order and a dismissal of the application for want of prosecution in terms of r236 (3) of the court’s rules.”  (underlining is mine)

Needless to say, therefore this court’s hands are tied.  It cannot grant an order that allows the respondents to disobey a court order that remains extant.  Be that as it may, applicant cannot abrobate and reprobate.  As shown above, the “urgency” in this matter, if any, was self-created.  To that extent, there is no urgency.

In Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H) GOWORA J as she then was;

“Given that the situation that the applicant was asking the court to reverse had been in existence for the better part of a year, it was mischievous in the extreme for a legal practitioner to issue a certificate that the matter is urgent.  A matter does not assume urgency because a litigant has plans the fulfillment of which requires an immediate solution.  Urgency arises when an event occurs which requires contemporaneous resolution, the absence of which would cause extreme hardship to the applicant.  The existence of circumstances which may, in their very nature be prejudicial to the applicant is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has realised to the event or threat, whatever it may be.”

In Zwikomborero Nyarumbwe vs Solomon Mashamba & Ors, Honourable Justice ZHOU had this to say;

“A matter is urgent if it cannot wait to be resolved through a court application …  This court has stressed that a party who seeks to have a matter on an urgent basis is seeking preferential treatment from the court given that he is asking to be allowed to jump the queue of other matters awaiting to be heard.  It is for this reason that the court expects such a party to have treated the matter as urgent by acting expeditiously once the need arises.  This point has been stressed in many judgments.”

And in Kuvarega vs Registrar General & Anor 1998 (1) ZLR 188 (H) CHATIKOBO J (as he then was) put it more aptly that;

“Applications are frequently made for urgent relief.  What constitutes urgency is not only the arrival of the day of reckoning.  A matter is also urgent if at the time the need to act arises, the matter cannot wait.  Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

In casu, applicant has known from way back, perhaps more than seven years ago when he was convicted and sentenced to 2 weeks at Fairbridge Detention Barracks,  that he was in danger of having that sentence being executed anytime.  He also knew well, that from then on, he was the dominus litis.  Yet for obvious reasons he appears to have filed an appeal which was dismissed.  Once his appeal was dismissed he reverted to the same precarious position.  Thereafter as shown in the history of this matter, instead of prosecuting his matters, applicant did exactly the opposite.  He would deliberately and carelessly abstain from action until a situation arose which became an irritant to him in the form of the warrant of committal starring him in the face.  He would act only at his convenience and act in a manner enough only to wade off the initiation but not to resolve it.  The applicant in casu is in fact worse than Detective Sergeant Mushore (supra).  It must be noted that after the filing of the review application and also obtaining an interim order back in 2013, the applicant did nothing further in those matters.  He simply decided to “hold his horses” and enjoy his freedom.  The maters remained dormant until the respondent took the positive step to have the application for review in (HC 440/13) dismissed for want of prosecution.  Sadly for the respondents, case number HC 441/13 remained unresolved.

I must say that it is quite deplorable that in deliberately abstaining from action, applicant has at the same time pushed the burden of funding and prosecuting his matters onto the respondents who in effect are acting in their official capacities as civil servants.  Curiously enough, applicant almost seems to brag at paragraph 14 of his supplementary heads of argument that after all the relief sought in HC 441/13 is not final but temporary.  He says the matter must be finalised first, presumably by confirmation of the provisional order which remains extant as he correctly puts it.  But he deliberately ignores the fact that since 2013, it is him who had the obligation to prosecute that matter to finality and he did not.  He probably now wants the respondents again to fund that process and prosecute the matter for him.

I agree with the respondents that the matter is in any event improperly before the court.  I notice also that the order finally sought is incompetent as will be shown herein.

Surely there is no worse self created urgency than this.  The attempt to blame his lack of action on his erstwhile legal practitioner Mr Nyengera of Messrs Mcijo and Associates cannot hoodwink the court in these circumstances.  He simply cannot seriously be heard to talk of urgency.  This is indeed a classic example of a case where the court cannot assist the sluggard.

The respondents’ complaint that the matter is generally improperly before the court, one cannot avoid noting that in both HC 441/13 and in the current applicant, the final order sought would be incompetent.  For instance in the current application, instead of seeking a final order that his warrant of committal be stayed pending re-instatement of his review application in HC 440/13 (because that is what this current application seeks to achieve) he seeks a final order for his complete acquittal.  The two paragraphs of the final order sought that the court should quash both the conviction and sentence by the trial officer.  It asks the court to also set aside the appeal decision by 1st respondent to uphold the conviction and sentence.  Nothing can be far off the mark.  Applicant must be aware of this and one can only infer that this is one of the reasons why he does not take the matters up for confirmation proceedings.  He clearly has not treated the matter as urgent himself.

Accordingly, I order as follows;

The matter is removed from the roll of urgent matters.

The applicant pays the costs of suit..

Mugiya, Macharaga Law Chambers, applicant’s legal practitioners

Civil Division, Attorney General’s Office, respondents’ legal practitioners