The Officer in Charge PGHQ Amourments (Morris Depot) and The Commissioner General of Police and The Assistant Commissioner Chengeta JC v Ex-Constable Chimbari 056195F

### Preamble
1
HH 436-18
HC 7336/17
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THE OFFICER IN CHARGE PGHQ

AMOURMENTS (MORRIS DEPOT)

and

THE COMMISSIONER GENERAL OF POLICE

And

THE ASSISTANT COMMISSIONER CHENGETA JC

versus

EX-CONSTABLE CHIMBARI 056195F

HIGH COURT OF ZIMBABWE

CHIKOWERO J

HARARE, 12 July 2018 and 25 July 2018

Opposed Application

D Jaricha, for the applicants

N Mugiya, for the respondent

CHIKOWERO J: This is an application for dismissal, for want of prosecution, of an application for review in case number HC 3299/15 (“the main matter”).

The instant application was brought in terms of Order 32 Rule 236 (3) (b). After hearing argument from both counsel on the 12th July 2018 I gave the following order;

“1. The application be and is hereby dismissed.

2. There is no order as to costs.”

On the 17th July 2018 I received, through the Registrar, a written request for the reasons for the order. These are the reasons:

The following facts are common cause. Respondent filed an application for review in the main matter. The applicants herein timeously filed their opposing papers thereto. At the time that the present application was filed a period in excess of one month had expired from the date that the applicants herein had filed their opposing papers in the main matter.

The applicant had neither filed Heads of Argument nor set down the main matter for hearing. This application therefore complied with the formal requirements set out in order 32 Rule 236 (3) (b).

Applicants properly exercised one of the two options available to them in terms of that rule by instituting the present application. Respondent’s explanation for not having acted within the time period stipulated in the rule was that the applicants themselves were in breach of the High Court of Zimbabwe Rules, 1971.

In particular, the applicants had not complied with the peremptory requirements of Order 33 Rule 260 (1) of the Court Rules. Rule 260 (1) reads;

“The clerk of the inferior court whose proceedings are being brought on review, or the 	tribunal, board or officer whose proceedings are being brought on review, shall, 	within 	twelve days of the date of service of the application for review, lodge with the 	Registrar 	the original record, together with two typed copies, which copies shall be certified as true and 	correct copies. The parties to the review requiring copies of the 	record for their own use 	shall obtain them from the official who prepared the record.” 	[underlining for emphasis].

Applicants had not, at the time that they filed the present application, lodged with the Registrar of this court the original record as well as the two typed copies of that record as per the peremptory requirements of Rule 260 (1).

They could not seek relief under one provision of this court’s rules yet their conduct was a breach of another provision of the same rules. Their hands were not only dirty but also an impediment to the prosecution of the main matter.

They could not then turn around and use the result of that impediment as their cause of action. I was therefore satisfied that the respondent had given a convincing and credible explanation for his failure to act within the time limits set in the Rules. This is the approach that this court has always taken: Ndlovu v Guardforce Investments (Pvt) Ltd and others 2014 (1) ZLR 25 (H), Melgund Trading (Pvt) Ltd v Chinyama and Partners 2016 (2) ZLR 533 (H).

Both parties were agreed at the hearing that the respondent had since filed his heads of argument in the main matter. Mr Jaricha contended, however, that that ought not to have been done, once respondent was served with the present application.

Applicants have created this untidy situation. Further, having found that respondent tendered a convincing and credible explanation as already pointed out, that applicants were the authors of their own misfortune and that respondent was in fact prosecuting the matter l was being asked to dismiss for want of prosecution, I used these factors to exercise my wide discretion in favour of the respondent. The very section under which this application was brought allows me to do that.

These are the reasons for the order l made at the hearing.

Civil Division of the Attorney General’s Office, applicants’ legal practitioners

Mugiya and Macharaga, respondent’s legal practitioner