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CONSTABLE JANI 985403P

versus

THE OFFICER IN CHARGE ZRP MAMINA

and

THE OFFICER IN CHARGE CHIKURUBI DETENTION BARRACKS

and

THE COMMISSIONER GENERAL OF POLICE

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 26 May 2015, 17 June 2015

Urgent Chamber Application

N. Mugiya, for the applicant

Ms. S. Chihuri with K. Mawodzwa , for the 1st , 2nd & 3rd respondents

CHIGUMBA J: The provisions of the Police Act are clear. There is no provision for an

appeal or review to this court from a decision of a single Officer. This court may only review the

decision of a Board of Officers, or entertain an appeal against the decision of a Board of

Officers. The reasoning behind this discrimination is clear. Single Officers may only adjudicate

on simple offences which do not attract stiff penalties. They preside over a simple and fast and

streamlined procedure designed to clear less serious infractions. Section 33(2) of the Police Act

gives the right to any person convicted of an offence by a board of Officers to appeal to the High

Court against such conviction or order by the Board. The provisions of the High Court Act which

relate to appeals from the Magistrates Court apply to such appeals. These provisions relate to the

prosecution of such appeals, the power of the High Court on such appeal, the execution and

suspension of sentence and the institution of further proceedings after a conviction has been set

aside.

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No similar provisions are set out in the Police Act for appeals from decisions of single

Officers. If we read these provisions of s 33 as applying equally to reviews, we would be

forgiven for coming to the conclusion that no appeal or review lies to the High Court against a

decision of a single Officer. An appeal or review against a decision of a single Officer lies with

the Commissioner General of Police. One interpretation of s 34(7) of the Police Act is that once

the Commissioner General has dismissed an appeal to him against a decision by a single Officer,

the matter should end there. However, the jurisdiction of the High Court which is conferred upon

it by s 171(1)(d) of the Constitution is that it has such appellate jurisdiction as may be conferred

on it by an Act of Parliament. It might seem to be safe to assume, that if the Police Act is silent

on the issue of whether an appeal lies to the High Court from a decision of a single Officer, then

the High Court has no such jurisdiction. A reading of s 30 (2) of the High Court Act will soon

put paid to that notion. The High Court has jurisdiction in all civil matters unless such

jurisdiction is expressly ousted by an act of Parliament. The Police Act is silent on whether an

appeal lies to the High Court from a decision of single Officer. Silence is not equivalent to

express ouster. See Rateyiwa v Kambuzuma Housing Co-op & Anor1

This matter came before me via the urgent chamber book on 21 May 2015. I instructed

my assistant to set the matter down for hearing on 22 May 2015, at 1230pm. At the allotted hour,

I was advised that counsel for the applicant was in court before my sister Judge Ndewere. We

waited for him to appear, in vain. The matter was postponed further, and finally heard on 26 May

2015. The applicant is employed by the Zimbabwe Republic Police, which is administered by the

third respondent. She is currently stationed at Mamina police station. The relief that the applicant

is seeking is an order barring the respondents from detaining her until the return date. On the

return date, the applicant wants the court to make an order that the respondents be barred from

detaining her until the finalization of the cases SC240/15, SC471/14 and HC816/14.

The background to this matter is that, on 12 February 2014, the applicant appeared before

a single Officer of the Zimbabwe Republic Police, and was charged with contravening para 27 of

the schedule to the Police Act [Chapter 10:11], as read with s 29 and s 34 of the same Act. She

pleaded not guilty and after the state case, made an application for discharge as provided for by

1 2007 (1) ZLR 311 @ 314 G-H

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s198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The application for

discharge was dismissed and no reasons for the dismissal were given by the trial officer. The

trial officer merely stated that the state had managed to prove the essential elements of the

offence beyond a reasonable doubt. The applicant made an application for review of this alleged

procedural irregularity, under case number HC2101/14. She then filed an urgent chamber

application seeking an order to stay the trial proceedings pending the finalization of the

application for review.

The urgent chamber application for stay of the trial proceedings was placed before

Mwayera J, who dismissed it on the basis that the application for review lacked merit. The

applicant contends that the application for review was not properly before Mwayera J, and that

she did not have sight of the record of proceedings of the application for review when she

dismissed the application. The applicant noted an appeal against the dismissal of the urgent

chamber application for stay of the trial proceedings, her appeal was filed of record under case

number SC471/14. She maintains that she made a tender and gave an undertaking to pay for the

costs of the preparation of the record for appeal. When her legal practitioners were asked to pay

the costs of preparation of the record by the Registrar of the High Court on 11 February 2015,

she as on leave and had gone to her rural home and had been transferred to Mamina police

station.

The applicant’s counsel of record, Mr. Norman Mugiya, deposed to a supporting affidavit

in which he confirmed that he tried to contact the applicant in February when he received the

letter form the Registrar of the High Court to pay for the cost of preparation of the record of

proceedings. He stated that the applicant could not be reached on her mobile phone. She was no

longer residing at her last known address, and had been transferred to Mamina police station.

The urgent chamber application which was placed before me was premised on the averment that

the applicant had been advised by the first respondent that she would be detained forthwith, at

Chikurubi Detention Barracks, which are manned by the second respondent. The applicant’s

contention was that the proposed detention would cause irreparable harm and prejudice to her

because she had mounted a challenge to her conviction and sentence by the respondents to the

Supreme Court under case number SC471/15. It was contended that the respondents would not

suffer any prejudice if they stayed the applicant’s proposed detention. The applicant deposed to

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the founding affidavit in which she stated that on 10 May 2015 the first respondent had advised

her in a telecom to report to him for purposes of being detained by the third respondent on 11

May 2015. The basis of this proposed course of action was the dismissal of the appeal filed by

the applicant under case number SC471/14. Annexure ‘A’ is a letter dated 11 February 2015,

addressed to the applicant’s legal practitioner’s by the Registrar of the High Court in which the

applicant is advised to pay the sum of USD$280-00 within five days. That sum is the cost of

preparing the appeal record

The applicant contends that this latter was written in error, and for that reason, she filed

an application for reinstatement of her appeal, on 24 April 2015, which appeal is currently

pending before the Supreme Court. According to the chamber application for reinstatement of

appeal which was filed in terms of r 15(8b) of the Supreme Court Rules 1976 as amended, the

applicant contends in the founding affidavit that she never failed to pay for the costs of the

preparation of the record as alleged or at all. The applicant contends that she did not fall foul of

r 34(1) of the Supreme Court Rules, that is, failure to pay the cost of the preparation of the record

of appeal within the stipulated time period. She applies for the reinstatement of the appeal in

terms of r 12 as read with r 15(8b) of the Supreme Court Rules.

A note of opposition was filed on behalf of the respondents on 15 May 2015. The

opposing affidavit was deposed to by the third respondent who took a point in limine that this

matter did not meet the requirements of urgency. The basis for this view was the averment that

the application for reinstatement of the appeal against the ruling made by Mwayera J was now

academic. The applicant had been placed on her defence. The trial had proceeded and been

concluded. The applicant had no legal basis to apply to stay the trial proceedings when they had

already been concluded. The applicant had been convicted, and sentenced. It was contended that

the application before me had fundamental material flaws.

The judgment in the disciplinary appeal to the third respondent, was attached to the

respondents’ opposing papers. The judgment shows that the applicant was charged with

contravening para 27 of the Schedule to the Police Act, as read with s (s) 29 and 34 of the Police

Act, i.e;

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“soliciting or accepting any bribe or soliciting any present, reward or consideration whatsoever in

connection with his position or duties as a member or accepting such a present, reward or

consideration without the authority of the Commissioner general of police”.

And, contravening para 11 of the Schedule to the police act, as read with s(s) 29 and 34

of the Police Act, i. e;

“without good and sufficient cause, disobey or refuse or omit or neglect to carry out any lawful

order, written or otherwise”.

It was alleged that on 29 April 2012, the applicant had solicited a bribe of USD$20-00

from one Peter Bhona an accused who had been arrested for flouting the Road Traffic Act

[Chapter 13:11]. She was seen and arrested by Assistant Commissioner Murwira. On the second

account, the applicant was alleged to have failed to comply with the contents of radio

communication DM 507-12 dated 2 April 2012 regarding the conducting of road blocks by

police officers. The state had led the evidence of eight witnesses to prove its case. The appeal

against conviction was dismissed on the basis that the grounds of appeal on both counts were

‘spurious’. He appeal against sentence was dismissed on the basis that the sentences imposed

were not ‘manifestly excessive’. The trial officer relied on the dicta set out in the case of S v

Mugodi2 that the appellant’s actions involved ‘a flagrant breach of trust’ and that ‘… a serious

view must be taken of corruption by policemen or for that matter any public official’.

The first issue that falls for consideration naturally is whether the requirements of

urgency have been established in this matter. The test for urgency is settled. It has been held that:

“Applications are frequently made for urgent relief. 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”. See 3 .

It has also been held 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 down 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

2 HB74/02 3 Kuvarega V Registrar General and Anor 1998 (1) ZLR 189

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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 one that warrants to be dealt with on an urgent basis…” See 4 And5, and6.

In my view, which I previously expressed in the case of Finwood Investments Private

Limited & Anor v Tetrad Investment Bank Limited & Anor 7, that, in order for a matter to

be deemed urgent, the following criteria, which have been established in terms of case-law, must

be met:

“A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result, if the matter is not dealt with straight away without delay.

(c) There is prima facie evidence that the applicant treated the matter as urgent.

(d) Applicant gives a sensible, rational and realistic explanation for any delay in taking action.

(e) there is no satisfactory alternative remedy.”

It is my view that the need to act arose at the time when the applicant was advised that

she should report to the third defendant for detention. She filed her application for reinstatement

of the appeal shortly thereafter, and brought these proceedings which are currently before me a

few days after that notification. The applicant acted when the need to act arose. Clearly, if the

applicant is detained and she serves her sentence of seven days imprisonment, that will constitute

irreparable prejudice to whatever rights she may have in the appeal process. This court must deal

with the matter straight away, without delay. The record is replete with prima facie evidence that

the applicant treated this matter as urgent, when she was advised to report for detention at

Chikurubi Barracks. This court finds that there was no delay in taking action. The last

requirement of urgency gave the court pause. Does the applicant have a satisfactory alternative

remedy? The answer to this question is intertwined with a consideration of the merits of the

matter, and a resolution of the question whether the applicant is entitled to an interdict against

the respondents in the circumstances of this case.

The requirements of an interdict are;

4 Mathias Madzivanzira & @ Ors v Dexprint Investments Private Limited & Anor HH145-2002” 5 Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364(H 6 Williams v Kroutz Investments Pvt Ltd & Ors HB 25-06, Lucas Mafu & Ors V Solusi University HB

53-07 7 An unreported HH-2014 case. See also Denenga v Ecobank HH 177-14

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In order to obtain a final mandatory interdict (a mandamus), the applicant must show the

following requirements;

i. A clear or definitive right-this is a matter of substantive law.

ii. An injury actually committed or reasonably apprehended-an infringement of the right

established and resultant prejudice.

iii. The absence of similar protection by any other ordinary remedy-the alternative remedy

must be; adequate in the circumstances; be ordinary and reasonable; be a legal remedy;

grant similar protection. See Tribac (Pvt) Ltd v Tobbacco Marketing Board8, Setlogelo

v Setlogelo9,Flame Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd

& Anor10, Boadi v Boadi & Anor 11, Diepsloot Residents’ and landowners’ Association

& Anor v Administrator Transvaal 12

In the matter under consideration both the interim relief and the final relief are aimed at

barring the respondents from detaining the application pending determination of the application

for reinstatement of the appeal against the dismissal of the application of the stay of the trial

proceedings pending the application for review before the High Court. The court must decide

whether the appeal that is sought to be reinstated by the applicant before the supreme court has

prospects of success. If it has prospects of success, then the applicant may be found to have

established at the interim stage, prima facie evidence of a clear right. The applicant’s right to

have an appeal which has merit to be determined will then be infringed with resultant prejudice

to the applicant if the relief that she seeks is not granted. Finally, there must be no alternative

remedy which is adequate in the circumstances, a legal remedy, and which is capable of granting

similar protection.

The prospects of success of the appeal being sought to be reinstated can be assessed by

considering what the law says about the review of unterminated legal proceedings. This

multiplicity of litigation was born when the applicant applied for review of the trial Officer’s

refusal to discharge the State’s case, and to put her to her defence. It is trite that this court will

8 1996 (2) ZLR 52 (SC) @56 9 1914 AD 221 @ 227 10 1980 ZLR 378 11 1992 (2) ZLR 22 12 1994 (3) SA 336 (A) @ 344H

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only exercise its review powers of unterminated proceedings in exceptional cases. See S v

Rose13. In Herbstein & van Winsen Civil Practice of the Supreme Court of South Africa 4 ed p

932 the difference between the remedy of appeal and that of review are explained as follows:

“The reason for bringing proceedings under review or appeal is usually the same, to have the

judgment set aside. Where the reason for wanting this is that the court came to a wrong

conclusion on the facts or the law, the appropriate procedure is by way of appeal. Where,

however, the real grievance is against the method of the trial, it is proper to bring the case on

review. The first distinction depends, therefore, on whether it is the result only or rather the

method of trial which is to be attacked. Naturally, the method of trial will be attacked on review

only when the result of the trial is regarded as unsatisfactory as well. The giving of a judgment

not justified by the evidence would be a matter of appeal and not a review, upon this test. The

essential question in review proceedings is not the correctness of the decision under review but its

validity.”

The power of a superior court to review the proceedings of an inferior court covers

various stages in a criminal proceeding before an inferior court. The stages are prior to

conviction, after conviction but before sentence, and after sentence has been passed by an

inferior court.

The first question that arises is whether the decision to refuse to discharge the

applicant at the close of the state case of the single office is valid.

The second question is whether the applicant was correct to bring that decision to

the High Court on review.

Part IV of the High Court of Zimbabwe Act, [Chapter 7:06] enumerates the High Court's

statutory powers of review. Section 26 provides that, subject to the provisions of the Act and any

other law, the High Court has review powers over all proceedings and decisions of all inferior

courts of justice, tribunals and administrative authorities. Section 27(1) provides that subject to

the provisions of that Act and any law, the grounds of review are absence of jurisdiction, bias

and gross irregularity in the proceedings or decision. Section 27(2) provides that nothing in that

particular section shall affect the provisions of any other law relating to review of inferior courts,

tribunals or authorities. Section 29(1)(b) provides that for purposes of reviewing any criminal

proceedings the High Court may hear any evidence in connection with the proceedings. Section

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29(2) states that if on review of any criminal proceedings the High Court considers that the

proceedings are not in accordance with real and substantial justice it has the power to do various

things, including the power to alter and quash the conviction or to set aside or correct the

proceedings or "generally give such judgment or make such order as the inferior court or tribunal

ought, in terms of any law, to have given, imposed or made on any matter which was before it in

the proceedings in question." Section 29(3) specifically provides that no conviction or sentence

shall be quashed or set aside in terms of s 29 by reason of any irregularity or defect on the record

of proceedings unless the High Court considers that a substantial miscarriage of justice has

actually occurred.

It is clear from the foregoing that the statutory powers of review under the High Court

Act, can be exercised at any stage of criminal proceedings before an inferior court.

Further, the authorities indicate that this court has an inherent power of review. In

Rascher v Minister of Justice 1930 TPD 810 at 820 KRAUSE J said:

“... a wrong decision of a magistrate in circumstances which would seriously prejudice the rights

of a litigant would justify the Court at any time during the course of the proceedings in interfering

by way of review ...

The above principles were laid down in a civil case, and they would apply with greater force

where the proceedings are of a criminal nature and a miscarriage of justice might result in the

circumstances from a wrong decision of the magistrate or where the rights of an accused person

are seriously affected thereby.”

In Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357 at 360 Gardiner JP observed:

“Now, as a rule, the Court's power of review is exercised, only after termination of the criminal

case, but I am not prepared to say that the Court would not exercise that power ... before a

termination of a case, if there were gross irregularity in the proceedings.” See Wahlhaus v

Additional Magistrate, Johannesburg & Anor 1959 (3) SA 113 (A)

This, however, is a power which is to be sparingly exercised. It is impracticable to

attempt any precise definition of the ambit of this power; for each case must depend upon its

own circumstances. The learned authors of Gardiner and Lansdowne (6 ed Vol 1 p 750) state:

“While a superior court having jurisdiction on review or appeal will be slow to exercise any

power, whether by mandamus or otherwise, upon the unterminated course of proceedings in a

court below, it certainly has the power to do so, and will do so in rare cases where grave injustice

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might otherwise result or where justice might not by other means be attained ...In general,

however, it will hesitate to intervene, especially having regard to the effect of such a procedure

upon the continuity of proceedings in the court below, and to the fact that redress by means of

review or appeal will ordinarily be available.”

A review of an interlocutory decision was held in the case of Masedza & Ors v

Magistrate, Rusape & Anor14 to be possible and permissible. It was held that:

“….however, it is only in exceptional circumstances that the court will review a decision in an

interlocutory decision before the termination of the proceedings. It will only do so if the

irregularity is gross and if the wrong decision will seriously prejudice the rights of the litigant or

the irregularity is such that justice might not otherwise by other means be attained”.

No exceptional circumstances were alluded to or averred by the applicant, which would

give the court a smidgeon of confidence that the application for review of the refusal to discharge

the applicant at the close of the state case before the trial Officer, is or was likely to succeed.

Further, the grounds for review which the applicant seeks to rely on are not the proper grounds

for review provided for in terms of section 27(1)(a) of the High Court Act. If there is no prima

facie evidence that the application for review was likely to succeed, how then is the appeal

against the dismissal of the application for stay of the trial proceedings pending review which

was dismissed by Mwayera J due to lack of merit likely to succeed? If the appeal against the

ruling by Mwayera J that the application for review was devoid of merit is not likely to succeed,

then it must follow that the application to reinstate that appeal, which was deemed lapsed, is not

likely to succeed. It’s a chicken and egg situation because of the multiplicity of litigation, but

the underlying issues are as clear as spring water.

Not to be overlooked is the analysis of the provisions of the Police Act provided for in

the case of Assistant Inspector Chatukuta v The Trial Officer & 2Ors 15 by Mawadze J. The

facts of that case are somewhat similar to those in this case under consideration. However, in that

case there was an appeal to this court, not an application for review and this renders the finding

14 1998 (1) ZLR 36(H)

15 HH705-14

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in that case distinguishable. In that case the applicant was tried by a single officer in terms of

section 34 of the Police Act. The offence which he was charged with is not similar to the

offences that the applicant in this case was charged with. Both were convicted of their charges,

but the applicant Chatukuta was sentenced to nine days in detention barracks. He appealed to the

Commissioner General of the police in terms of

s 34, as read with s 11 of the Police (Trials and Boards of Inquiry) Regulations 1965. On

appeal the conviction was confirmed and the sentence of 9 days altered to 4 days imprisonment

as the applicant had already served 5 out of the 9 nine days imprisonment which had been

imposed.

The question that arose before Mawadze J, from my reading of his judgment, on an urgent

basis was whether the applicant was entitled to file an appeal to the High court against the

decision of the Commissioner General of Police. The applicant contended that his right to

personal liberty as enshrined in s 49 of the Constitution and his right to appeal against conviction

and sentence, enshrined in s 70(5)(b) of the Constitution were about to be violated by the

respondents when they detained him to serve his sentence in barracks despite the noting of the

appeal. The honourable Judge found that s 34 of the Police Act does not provide for an appeal

against the decision of the Commissioner General. He contrasted s 34 with s 33 which confers

the right to appeal to the High court against the decision of a Board of Officers.

The legal conundrum that the conclusion reached by my brother Judge presents to me in

the matter under consideration is the distinction that is glaringly obvious. In this case the

application for review pertained to the refusal by a single officer to discharge the applicant at the

close of the state case.

Section171(1)(d) of the Constitution confers the High Court with such appellate

jurisdiction as may be conferred on it by an act of Parliament. Granted the Police Act does not

confer appellate jurisdiction on the High Court in respect of decisions of single officers. The

High Court has ‘original jurisdiction’ over all civil and criminal matters’ in Zimbabwe. If its

appellate jurisdiction must be conferred on it by an Act of Parliament it follows that so must its

review jurisdiction. What then does the High Court Act sat about this court’s own powers of

appeal and review? On the power to review:

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“26 Power to review proceedings and decisions

Subject to this Act and any other law, the High Court shall have power, jurisdiction and

authority to review all proceedings and decisions of all inferior courts of justice, tribunals

and administrative authorities within Zimbabwe.” (my underlining for emphasis)

It is my considered view that the power of the High Court on appeal is not to be

confused with its power on review. My reading of s 26 of the High Court Act is that this court’s

powers of review are wider than its appellate powers. I hold this view because s 26 gives it the

authority to review all, proceedings and decisions of all inferior courts of justice, tribunals

and administrative authorities. Although the powers of review are subject to the High Court

Act and any other act, in this case the other act the Police Act is silent. In my view this means

that the High Court may exercise its full review jurisdiction over decisions of single Officers and

or the Commissioner General, with no extraneous restrictions. Having established that this

court’s review powers are wide ranging and restricted only to the grounds of review, it follows

that the two cases that we were referred to by counsel are not instructive in this matter, both of

them being in regards to appeals against the decisions of the Commissioner General.

Let us suppose that this court’s powers of appeal are not expressly ousted by the Police Act

from decisions of single Officers, because the Police Act is silent and does not expressly oust the

court’s appellate jurisdiction. What of this court’s review powers against decisions of single

Officers? We come full circle and are guided by the numerous decided cases that limit this

court’s powers of review to exceptional circumstances in an interlocutory decision before the

termination of the proceedings. In my view, the refusal to discharge at the close of the state case

cannot by any stretch of the imagination be viewed as an irregularity which is gross. There is no

serious prejudice o the rights of the litigant. It is not such an irregularity that ‘justice might not

otherwise by other means be attained’. The litigant will be put to its defence and not non suited.

For these reasons, I find that the requirements of an interim interdict not met in this case,

the applicant does not have a clear right. The application for review was dismissed. The trial

proceedings which were sought to be stayed were brought to finality. There are no prospects of

the appeal which is sought to be reinstated to succeed. This is so because the appeal seeks to be

brought to challenge an interlocutory decision. The leave of Mwayera J was not sought to note

an appeal against her decision to dismiss the application for stay of the trial proceedings. To

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compound matters, the attempt to bring a review of the incomplete trial of the applicant by a

single officer is not likely to succeed because of the absence of exceptional circumstances. The

application before the court is dismissed.

Messrs Mugiya & Macharaga, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, 1st, 2nd, & 3rd respondents’ legal practitioners