Maxwell Zhuhwawu v The Police Service Commission and The Commissioner General of Police

### Preamble
1
HB 68/22
HC 1364/20
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MAXWELL ZHUWAWU

Versus

THE POLICE SERVICE COMMISSION

And

THE COMMISSIONER GENERAL OF POLICE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 4 NOVEMBER 2021 AND 17 MARCH 2022

Opposed Application

G. Sengweni, for the applicant

B. Moyo, for the respondents

TAKUVA J:	This is an application for condonation of late filing of a court application for review.  Rule 62 (4) of the High Court Rules 2021 requires the application for review to be brought within eight (8) weeks of the decision being made.  In casu, the decision was made on the 5th of August 2019.

BACKGROUND FACTS

The applicant was employed by the 1st respondent as a Constable in the Zimbabwe Republic Police.  Applicant sustained certain injuries whilst on duty at Western Commonage Police Station.  Although applicant received medical treatment the employer felt that a discharge on medical grounds was called for and applicant was so discharged on 5 August 2019.  In so acting, the 2nd respondent proceeded in terms of section 20 of the Police Act, Chapter 11:10.  (The Act).

APPLICANT’S CASE

1.	Reasons for the delay

Applicant submitted that after the discharge he appealed to the 1st respondent in terms of section 55 of the Act.  The 1st respondent declined to deal with the appeal prompting applicant to file an application for condonation as a self-actor on the 2nd of November 2019 under HC 2782/19.  The application was set down for hearing on the 20th of July 2020.  The applicant then engaged the services of a legal practitioner who noted some errors which required correction.  It was also admitted by the respondents that they had not attached a copy of the record of proceedings, which record was critical in ascertaining how the decision was arrived at.  The application was then withdrawn by consent of the parties.

The respondents did not file the record of proceedings forcing the applicant to put pen to paper requesting the record on 14 August 2020 and 3 September 2020 – see Annexures C and E.  The respondents invited the applicant to Harare to pick up the record but despite spending three days at Police General Headquarters he came back empty-handed.

Applicant then filed this application on 19 August 2020.

PROSPECTS OF SUCCESS

Applicant contended that the Medical Board procedure was never carried out.  Thus, where a member was discharged on medical grounds in circumstances where the Board was never conducted such discharge becomes a nullity.  It was further submitted that section 8 (2) of the State Service (Disability Benefits) Act Chapter 16:05 is clear in that a Medical Board is supposed to be conducted in such circumstances.  The Board must consist of two to three officials in order to be valid.  Also applicant is supposed to be notified through his Officer-In-Charge.  In casu no such notice was served, instead the applicant went for a routine check at the Camp Clinic and was later informed that he had been discharged on medical grounds.

Applicant argued that he was never granted sick leave.  According to him his discharge was not procedural in that he never had an ailment that prevented his performance at work.  Further, his annual performance reports never mentioned that he was failing to work.  Instead, the records show that he was an energetic member who can be relied upon.  Applicant can be deployed to sections like canteens, charge office, investigations, provost and some other duties without any difficulties.

What baffles the applicant is that he was discharged on medical grounds without the Board’s input.  The procedure was never followed and hence a review can adequately deal with the issues raised.  Finally, applicant argued that where legislative provisions are disregarded without any justification whatsoever, the discharge is a nullity.  For the above reasons, applicant contends that his application for review carries high prospects of success.

RESPONDENTS’ CASE

While the Notice of Opposition filed by the Civil Division of the Attorney-General’s office shows that it was filed by the 2nd respondent, a closer examination shows that it is the 1st respondent represented by one Grace Mutandiro who filed it.  See pages 6-8 where the said Grace Mutandiro filed 1st respondent’s opposing affidavit.  Therefore effectively the 2nd respondent did not file his notice of opposition.  The respondents had failed to file heads of argument and at the hearing counsel for applicant argued that respondents were barred.  Mr Moyo for the respondents argued that his clients were confused by the fact that applicant simultaneously filed the application for condonation and review.  Instead of filing heads of argument relating to the application for condonation, respondents filed heads for the review application.

The legal practitioner for the respondents applied for the upliftment of the bar so that they be permitted to file the appropriate heads which had been prepared and ready for production.  I granted the application and the matter was argued on the merits.  However, Mr Moyo for the respondents raised a point in limine relating to an affidavit which he alleged was neither signed nor commissioned.  It turned out that the affidavit was filed on 19 August 2020 but commissioned on 8 September 2020.  Mr Sengweni for the applicant urged the court to condone the error in terms of Rule 7 (1) (a) of the High Court Rules 2021 SI 202/2021 since no harm or prejudice befell the respondents in that they filed their response to the application for condonation.  Further, he contended that there was substantial compliance with the rules.  I was satisfied that the departure is required in the interests of justice and the non-compliance with the rule was condoned.

On the merits, the respondents submitted that the applicant has no reasonable explanation for failure to file the application timeously.  As regards the degree of non-compliance, respondents argued that the applicant is not being candid with this court in that he has not disclosed the extent of the delay.  In paragraph 7 of the Founding Affidavit, applicant maintains that the delay is for 12 weeks from 5 August 2019 when in actual fact it is 16 weeks to the date the application for condonation was filed.  This arises from the fact that the applicant was discharged on the 5th of August 2019 and filed the present application on the 22nd of November 2019.  The review application was filed on the 25th of November 2019.

THE EXPLANATION FOR THE DELAY

As pointed out above, the respondents submitted that the explanation given is unreasonable in that applicant decided to deal with the 1st respondent first before filing an application for review in circumstances where the Police Act does not provide for an appeal where a member is discharged on medical grounds.  On that ground, the delay was said to be inordinate.  Reliance was placed on the following cases;

Dhliwayo v Kudinga & 2 Ors HH 54-09;

At the Ready Wholesalers (Pvt) Ltd t/a Power Sales v Innocent Katsande & 5 Ors SC 7-03;

Attorney-General v Bvuma & Anor 1987 (2) ZLR 96 (SC)

PROSPECTS OF SUCCESS

Respondents submitted that the applicant has no prospects of success at all in the application for review in that he was discharged in terms of section 20 of the Act on medical grounds.  Further, a Board of medical practitioners certified that applicant was “suffering from ill health.”  In paragraph 6.3 of the respondents’ heads it is argued that;

“6.3 The purported Court Application for Review is a nullity.  The review is based on the fact that respondents did not entertain the appeal brought forward by applicant.  Section 20 of the Police Act does not provide for appeal.  There is no appeal against discharge on medical grounds provided for by the Act.”

Accordingly, to the respondents, applicant wishes to review the conduct of not entertaining a legal nullity and that is not possible.  It was also argued that the respondents carried out their functions properly as per the Act and applicant was treated fairly.

THE LAW

A Court may on good cause shown condone any non-compliance with the rules.  The circumstances or cause must be such that a valid and justifiable reason exists why compliance did not occur and why non-compliance can be condoned.  Basically, the requirements are, first that the applicant should at least tender an explanation for its default to enable the Court to understand how it occurred.  Secondly it is for the applicant to satisfy the Court that its explanation is bona fide and not patently unfounded – See Nedcor Investment Bank Ltd v Visser N.O 2007 (4) SA 588 (T) at 591.

In Standard General Insurance Co Ltd v Eversale (Pty) Ltd 2002 (3) SA 87 (W) it was stated that;

“…. The applicant for any such relief must, at least, furnish an explanation of his default sufficiently full to enable the court to understand how it really came about and to assess his conduct and motives.  Where there has been a long delay, the Court should require the party in default to satisfy the Court that the relief sought should be granted.  Gool v Policansky 1939 LPD 386 at 390.  This is, in my view, particularly so when the applicant for the relief is the dominus litis plaintiff.”

It is trite that condonation is an indulgence which may be refused in cases of flagrant breaches of the rules.  Condonation may also be refused where it would defeat the purpose or object of the rule of which the applicant is in breach – Small Business Development Corporation Ltd v Kubheka 1990 (2) SA 857 T at 854 B – 855 B.

In Kombayi v Berkhout 1988 (1) ZLR 53 (SC) at 57 G-H KORSAH JA stated that;

“In determining whether or not to grant an application for condonation of the late noting of appeal the broad principles of this Court will have regard to are: the extent of the delay, the reasonableness of the explanation for the delay, and the prospects of success of an appeal should the application be granted.”

In explaining the significance of the extent of the delay, the learned JA said at p 58 C-D that;

“All rules prescribing the time within which a procedural step is to be taken are made for the purpose of the expeditions dispatch of cases.  If the tardiness of a party in complying with such rules is extreme, his application for condonation will be granted only upon showing good grounds for the success of his appeal.”

As BEADLE CJ pointed out in R v Humanikwa 1968 (2) RLR 42 (AD) at 44B:

“The longer the delay in applying for condonation in the late noting of an appeal the more certain the Court must be that there is a real chance of the appeal succeeding.” (my emphasis)

Applying the law to the facts in casu it is a fact that the extent of the delay is 16 months. This is indeed a long delay but the question is whether the applicant has satisfied the Court that the relief sought should be granted.  In order to decide this issue the court must consider the requirements cumulatively.  Thus, the length of the delay is considered in the light of the explanation thereof and the prospects of success on the merits.

As regards the explanation for the delay the respondents have not challenged it in that it is accepted that the applicant did something shortly after his discharge was communicated to him.  What the respondents term unreasonable is that applicant wasted time appealing a decision that was not appealable.  However it has not been denied that the applicant filed an application for condonation on the 2nd of November 2019 under HC 2782/19.  Further, it has not been denied by the respondents that this application was withdrawn with the consent of both parties who agreed that they must attend to issues raised during the hearing.  Chief among these shortcomings was the failure by the respondents to file a copy of the record of proceedings.  It is common cause that notwithstanding numerous requests in writing, the respondents only filed Form 47 (Zimbabwe Republic Police Injury Report, Medical Certificate and Board of Inquiry) proceedings on the 4th of November 2021.

Respondents have not denied that a letter dated 3 September 2020 was written to the applicant by their Acting Director (Legal Services) inviting him to report to their offices to be furnished with a copy of the “Medical Board Proceedings.”  It has also not been denied that despite spending three days in Harare, applicant returned to Bulawayo empty-handed.

In view of the above, I find myself in disagreement with Mr Moyo’s submission that the explanation proffered for the delay in making this application is most unsatisfactory and unreasonable.  I take the view that the explanation is reasonable in the sense that is acceptable and appropriate in the circumstances.

Finally in relation to the prospects of success on review I disagree once more with Mr Moyo’s submission that because applicant adopted the wrong procedure, he has no good prospects of success on review.  The applicant’s argument pithily expressed is that he was unprocedurally discharged in that the spirit of section 20 of the Act was not followed or complied with.  It was strongly argued by the applicant that no Medical Board proceedings were conducted.  To rebut this submission respondents filed what they term “Medical Board of Proceedings.”

However it appears that these proceedings are not Medical Board proceedings but an inquiry preceding the holding of a Medical Board.  I so conclude because Part II of Form 47 is headed “Board of Inquiry – Injury” (my emphasis) and two of the Board of Inquiry’s findings contained in paragraphs (g) and (h) are to the following effect;

“(g)	Notwithstanding that the G.M.O. has indicated that Medical Board Proceedings are not necessary, does the Board recommend that consideration be given to holding a Medical Board?

A – Yes.

(Note – If the answer is Yes, reasons in support to be given in the space below).

(h)	 Any other comment – A. To ascertain and establish the degree of injury of member and how it will affect his daily performance of duties.” (my emphasis)

The question becomes whether or not the recommendation to hold a Medical Board was adopted.  If so was it ever conducted and what were its findings on the extent of the member’s injury and its effect on his daily performance of duties?  In other words, was it proven before the invocation of the provisions of section 20 that the applicant was suffering from an ailment that prevented his performance of duty as a police officer?

For these reasons, I am of the view that sufficient reason has been shown that the application for review has good prospects of success.  The applicant has established all the requirements of an application for condonation.

In the result, it is ordered that:

1.	The late noting of the court application for review by the applicant be and is hereby condoned.

2.	The court application for review to be filed within ten (10) days of the granting of this order.

3.	There be no order as to costs.

Sengweni Legal Practice, applicant’s legal practitioners

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