Tongai Svosve V THE Officer Commanding Police Service (ZRP) Masvingo AND THE Commissioner General OF Police Service (ZRP)

### Preamble
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HMA 39-20
HC 39-20
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TONGAI SVOSVE

versus

THE OFFICER COMMANDING POLICE SERVICE (ZRP) MASVINGO

and

THE COMMISSIONER GENERAL OF POLICE SERVICE (ZRP)

HIGH COURT OF ZIMBABWE

MAWADZE J AND ZISENGWE J

MASVINGO 15 MAY & 31 JULY, 2020

Urgent Chamber Application

Mr C. Ndlovu, for the applicant

Mr T. Undenge, for the respondents

ZISENGWE J:  	On 15 May 2020 I granted an application for a provisional order temporarily staying the transfer of the applicant (who is a serving member of the Zimbabwe Republic Police) from Chivi Traffic Section to Mkwasine Police station.  The confirmation, variation or discharge of the provisional order on the return date was dependent upon the respondents furnishing what was termed "lawful, good and sufficient" reasons for so transferring the applicant.

Despite this order being clearly provisional in nature and hence generally not subject to appeal, (see Nyikadzino v John Cameron Asher and Ors HH 36/2009; Blue Rangers Estate (Pvt) Ltd v Muduvuri and Anor 2009 (1) ZLR 368(S), the respondents have since noted an appeal against it regardless.

Further despite it being trite that the decision to hear a matter on an urgent basis being incapable of constituting a substantive ground of appeal (Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors Section 28/18; Constantine Guvheya Chiwenga v Marry Mubaiwa Section 86/20) the respondents have nonetheless proceeded to cite same as a ground of appeal in the aforementioned notice of appeal.

It is not difficult to surmise the motive behind what is a clearly ill-fated appeal: it is merely to frustrate the applicant by transferring him despite the extant court order staying the same, ostensibly on the premise that the noting of an appeal suspends the operation of the judgement appeal against.

Be that as it may, a notice of appeal (its glaring irregularity notwithstanding) having been filed, I am required to furnish reasons for the decision I arrived at in granting the provisional order.

As intimated above, the matter was brought before the via the urgent chamber book wherein the applicant sought an order against his superiors temporarily halting his transfer from Chivi Traffic Section to Mkwasine Police station (the transfer) pending the furnishing on the return date what he (i.e. applicant) "lawful, good and sufficient" reasons justifying the transfer. The application came in the wake of a seemingly endless series of transfers which he has had to endure since his attestation to the Zimbabwe Republic Police (ZRP) in January 2007.

The last straw for him was his latest transfer (i.e. the transfer) which now forms the subject matter of the dispute. This transfer came barely two months after his transfer from Mwenezi Police Station.

To put his application in perspective, the applicant despairingly chronicled in his founding affidavit the transfer trials and tribulations that have characterised his service within the ZRP. His "timeline" reads as follows;

In January 2007 he joined the ZRP and was posted to Morris Depot, Harare

In 2009 he was transferred from Morris Deport to Centenary Police Station to Shamva Police Station

In 2010 he was transferred from Centenary Police Station to Shamva Police Station

In 2011 he was transferred from Shamva Police Station to Bindura Police Station

In 2013 he was transferred from Bindura Police Station to Masvingo Police service Projects farm

In 2014 he transferred from Masvingo Police Service Projects farm to Gutu Police Station.

In 2017 he was transferred from Gutu Police Station to Chivi Police Station.

In July 2018 he was transferred from Chivi Police Station to Mwenezi Police Station.

On 26 March 2020 he was transferred from Mwenezi Police Station to Chivi Traffic Section at based at Rutenga.

On 8 March 2020, has received verbal notification of his transfer from Chivi Traffic Section to Mkwasine and the transfer was to take effect immediately.

On 10 march he received what is apparently referred to in Police circles as a "route instruction” ordering him to depart for Mkwasine the next day (i.e. May 2020). This was despite the fact that he had requested for reasons for the transfer a request which was ignored.

The applicant predicated his application on three broad grounds. Firstly, he averred that compelling him to relocate to Mkwasine at his own expense is patently unjust particularly in view of the fact that there is no assurance of him securing accommodation in Mkwasine. He further averred that this will wreak hardship and inconvenience for him and his family particularly in the face of the COVID-19 pandemic.

Secondly, he averred that he was not afforded adequate time to make the requisite preparations for relocation to Mkwasine as the transfer was to be with immediate effect.

Thirdly, he contended that no explanation whatsoever was proffered for his startingly abrupt transfer particularly coming as it did hard on the heels of his transfer from a different station. He characterised the 1st respondents conduct towards him as not only capricious but also unlawful, unfair and unreasonable.

The application was opposed by both respondents who proffered several reasons justifying their conduct in the impugned transfer. The high water makes of their argument, however, was that it is the sole prerogative of the 1st respondent to effect intra-provincial transfers in respect of Police officers occupying the rank of Assistant Inspector and below (applicant holds the rank of Sergeant).

Further it was contended that the national lockdown which was induced by the COVID-19 pandemic has rendered the traffic Section of the ZRP virtually redundant thereby necessitating a redeployment of the officers attached to other key and critical areas of the Police service. An adjunct of this argument being that the very nature of police work is such as to render routine transfers of the nature of the one in question are inevitable.

In addition, the respondents averred that the applicant did not exhaust internal remedies as he was required to do in terms of Police regulations and Standing orders before approaching the courts for relief. Ultimately, therefore allegations of malice, spite or ill will in relation to the impugned transfer were denied.

URGENCY

The principles regarding what constitutes urgency are well-trodden ground and it suffices for current purposes to refer to a few instructive data on the subject. In Kuvarega v Registrar General and Another 1998(1) ZLR 188 (H) the following was stated by CHATIKOBO J at page 193 F - G

"What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is 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."

The court further stated that:

"For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid own guidelines to be followed. If by its nature the circumstances are such that the matter cannot wait in the sense that if not dealt with immediately irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did on his own part treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed that warrant to be dealt with on an urgent basis."

MAKARAU JP (as she then was) in Documents support centre (Pvt)Ltd v Mapuvire 2006 (2) ZLR (H) expressed her interpretation of CHATIKOBO J in the Kuvarega casu supra as follows;

"I understand Chatikobo J in the above remarks to be saying that a matter is urgent if when the cause of action arises giving rise to the need to act, the harm suffered or threatened must be redressed or arrested there and then for waiting for the wheels of justice to grind at their ordinary pace, the aggrieved party would have irretrievably lost the right of legal interest. That it seeks to protect and any approaches to court thereafter on that cause of action will be academic and of no direct benefit to the applicant."

Interestingly, contrary to the position that they now adopt in their notice of appeal, the respondents did not oppose the matter being heard on an urgent basis. There was no suggestion at all to that effect, and there was no argument as all in that regard thereby giving the impression that the parties were in fact in adidem that it was; which of course, is correct.

The directive to transfer the applicant was verbally communicated to him on 8 May 202. This directive was to take effect immediately. Confirmation of the directive in the form of a radio signal was served on him 2 days later. When applicant sought written reasons for the abrupt transfer, the response was a "route instruction" In turn the applicant reacted by launching the current application.

Clearly not only was the matter evidently urgent, but also that the me applicant treated it as such. Should   the court have treated it otherwise, it would have meant applicant was obliged to comply with  the directive first and only contest his transfer from Mkwasine, a situation  akin to a person a verse to getting wet being required to protest against being thrown into a swimming pool would  that it be for him to do that other than to invite even greater prejudice and inconvenience to himself and his family?

Whether or not the requirements for an interim interdict were satisfied

In this regard, reference was made in my ex tempore judgement to the cases of Setlogelo v Setlogelo 1914 AD 221 and Flame Lily Investment Co. (Pvt) Ltd v Zimbabwe Savage (Pvt) Ltd and Anor 1980 ZLR 378 on the requirements for the granting of an interlocutors interdict. These requirements are

That the right which is the subject matter of the main action and which applicant seeks to protect by means of interim relief is clear, or if not clear, is prima facie established, though open to some doubt;

That if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

The balance of convenience favours the granting of the interim relief; and

That the applicant has no other satisfactory remedy

See also Mutarisi v United Family International Church and Anor HH 445-12; Nyambi v Min of Local Gvt and Anor HH 324-12.

Clear Right/Prima facie right

A reading of the applicant’s papers trends to show that predicates his application on a prima facie right though open to same doubt (on opposed to a clear right). This is borne out of the fact that while acknowledging the prerogative of the respondents to transfer him, he nonetheless impugns the manner in which that prerogative was exercised in the present case.

The applicable test in adjudicating prima facie right in an application for an interim interdict is captured in the following dictum. From Simon N.O v Air Operations of Europe AB and others 1999(1) SA 217 SCA at 228-G-H;

"The accepted test for a prima facie right in the context of an interim interdict is to take the facts averred by the applicant, together with such facts set out by the respondent that are not or cannot be disputed and to consider, having regard to the inherent probabilities, the applicant should on those facts obtain final relief at the trial. The facts set up in contradiction by the respondent should then be considered and, if serious doubt is thrown upon the case of the applicant, he cannot succeed."

See also Gool v Minister of Justice 1955 (2) SA 682 (c) at 688D-E, Fourie v Clys 1957 (2) SA  125(C) at 127 H-128 D.

In applying the above to the present matter, the averments by the applicant that he has a right to be treated fairly, lawfully, rationally and in a reasonable manner can hardly be disputed. Indeed he has a right be subjected by his superiors to proper administrative justice. The constitution in Section 68 demands no. It less provides in subsection (1) as follows;

"68 Right Administrative Justice (1) Every person has a right to administrative conduct that is lawful, prompt, reasonable, proportionate, impartial and both substantively and procedurally fair."

The prerogative of the respondents to transfer serving officers of whatever rank, cannot supersede this constitutional imperative, it is subordinate to it. The institutional and administrative autonomy which the respondents purport to rely on cannot be understood as permitting them to act capriciously, oppressively or with impurity. The conduct of the respondents in relation to officers who serve under their command must be fair, reasonable and impartial. No sooner had the dust settled in the wake of applicants’ transfer from Mwenezi Police Station than was he for the umpteenth time uprooted and ordered to relocate to Mkwasine.

Section 68(2) of the Constitution further provides as follows;

"Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct."

This is precisely what applicant sought from the respondents; reasons for his unusually abrupt transfer. Only to be confronted in response, with unbridled arrogance by not only having his request ignored but also by being slapped with a "route instruction" essentially ordering him to simply comply.

1st respondents conduct, therefore, on the face of it, appears not only capricious and unjust but also militates against applicant’s right to legitimate expectation. The principle underpinning this doctrine was set out in the case of Administrator, Transval & Ors v Traub 1989(4) SA 731 (A) where the following was stated:

"The legitimate expectation principle, instead of insisting that an individual be affected in his liberty, property or existing rights before he may be heard in his own interest, lays down that an individual who can reasonably expect to acquire or retain some substantive benefit, advantage or privilege must be permitted a hearing before a decision affecting him is taken. The proper question to ask in any given case is therefore whether the person complaining is entitled to expect, in accordance with ordinary standards of fairness,that the rules of natural justice will be applied. [Thus] the doctrine may be applied even in the absence of a pre-existing right. "

Two cases that immediately spring to mind on how the doctrine of legitimate expectation may be applied to transfer situations are Taylor v Minister of Higher Education and Anor 1996 (2) ZLR 772 (S) and Kanonhuwa v Cotton Company of Zimbabwe 1998 (1) ZLR 68 (H).

Both cases stress the need to consult the employee before effecting a transfer that is potentially detrital to him/her in light of his/her personal circumstances. I am   of the view that the principles enunciated in those cases are equally applicable in the present case.

The outcome would perhaps have been different had the applicant been attached to Chivi Traffic section for a considerable period of time or perhaps if there was suggestion with or otherwise compromised the proper execution with of his official duties; or perhaps that his peculiar set of skills were urgently needed at Mkwasine. Apart from some oblique reference to the need to redeploy officers attached to the road traffic section in general, no such reasons were advanced by the respondents in these proceedings justifying the transfer thereby casting a long and dark shadow over the real motives behind the sudden transfer.

I am satisfied, therefore, that the applicant has managed to establish a prima facie right (even though same may be open to some doubt) it being the first requisite for the granting of an interim interdict.

Apprehension of irreparable harm

In Erasmus, Superior Court Practice Volume 2, Second edition, the following is stated at section 06-19 regarding the requirement of apprehension of irreparable harm.

"Irreparable harm or loss may be defined as the loss of property (including incorporeal property and money) in circumstances where its recovery is impossible or improbable. The loss need not necessarily be any financial loss it may consist of an irremediable break of the applicant’s rights. Irreparable loss will occur when   a person entitled to a particular thing is forced to take merely its value, or is obliged to expend money which he cannot possibly recover.

In the context of this case, allusion has already been made (and emphasis is hereby given) to the fact that compelling the applicant to comply with the transfer directive will inevitably result in him having to endure the very injury or harm which he is desirous of avoiding. Transfers from one duty station to another are by their very nature disruptive not only to the affected persons family life but also to a myriad of his other social engagements. They also potentially impede one’s professional development. Regarding the latter, one can only surmise that applicant was beginning to get a grip of traffic law enforcement, only for that to be abruptly terminated.

Applicant further laments that this sudden transfer implies that he will be required to withdraw his children from the schools in Chivi where they were recently enrolled and then search for other schools in Mkwasine.

The disruption goes beyond the mere inconvenience of having to withdraw the children from schools in one district and the attendant search in another; it is potentially traumatic to the affected children and may negatively impact on their progress as they contend with having to adjust to yet another new learning environment. I am therefore satisfied that this requirement was amply satisfied.

Balance of convenience

In this regard the court is required to weigh the prejudice to the applicant if the interlocutory interdict is refused against the prejudice to the respondent if it is granted (see Ndanti v Kgami 1948 (3) SA 27(W) at 36-7; Erikson Motors (Welkom) Ltd v Protea Motors, Warrenson 1973 (3) SA 685 (A) at 691 F-G.

In the present matter, the police service is hardly likely to suffer any prejudice should the final order sought by the applicant be ultimately dismissed on the return date. There is not even the remotest hint that police operations in Mkwasine will in the intervening period be hamstrung or impeded pursuant to the granting of the temporary interdict sought.

The respondents’ contention that the transfer has been necessitated by the need to redeploy officers attached to the Traffic Section on account of their supposed lockdown induced temporary redundancy is in fact contradicted by the contents of Exhibit "A" which is a transfer memo. This memorandum shows in part that a certain Sgt Mutanga was simultaneously being transferred from Mkwasine to Chivi Traffic. In other words, this amounts to a direct swop between applicant and the said Sgt Mutanga. At the very least the latter can hold fort pending a definitive resolution of the dispute on the return date.

Subject to the satisfaction of the final requirement below (absence of other satisfactory remedy), I am of the view that the balance of convenience favours that the applicant’s transfer be stayed pending a determination of its legality on the return date.

Absence of any other satisfactory remedy

The alternative relief contemplated in this requirement has to be adequate in the sense that it is as efficacious (or better) as the one sought under the interim interdict. See Bristow v Coleman 1976 (1) RLR 97; Reserve Bank of Rhodesia v Rhodesia Railways, 1966 SA (3) 656 (R). Reference was made by the respondents to grievance procedures under the police regulations. Two things immediately exercise my mind in this regard; firstly it is extremely doubtful in view of the in different, if somewhat dismissive attitude the respondents in completely ignoring applicants’ request for written reasons for his transfer that pursuing those grievance procedures would stave off (albeit temporarily) the imminent transfer.

Secondly, the imminence of the transfer makes it highly improbable that those grievance procedures would forestall the transfer within the twenty-four hours that the applicant was required comply with the transfer directive. Applicant was required to move to Mkwasine within hours of receipt of the radio communication it was highly improbable that the police regulations would have given applicant the same prompt relief availed by rule 244 of the High Court rules, 1971.

In the final analysis, therefore I was and still am convinced that the applicant presented a compelling case for the issuance of the interim order all the requirements having been amply satisfied. I therefore granted the interim order in the following terms.

Interim relief granted

"It is ordered that the Respondents be and are hereby ordered to stop Applicant’s transfer from Chivi Traffic to Mkwasine pending the hearing of this application."

Ndlovu and Hwacha, legal practitioners- Applicants’ legal practitioners

Civil Divison of the Attorney General’s office- Respondent’s legal practitioners