The applicant leases House No.33A
Clark Road, Suburbs, Bulawayo which premises it uses as offices. On 10 June
2011, the police raided the premises and forced their way in causing the
occupants to flee. They then took occupation of the premises through mounted
guards who have stood sentinel for 24 hours everyday up to now. They have not
notified the applicant of the purpose of their vigil at the premises.
The applicant has brought this
urgent application seeking an order for restoration of possession and directing
the police to leave the premises.
In their opposing papers, the
respondents state that they undertook that exercise because they “had
information that there were some illegal activities taking place” at the house.
They have not disclosed what
these illegal activities are.
The respondents also state that
after forcing their way into the house “no one asked for a search warrant from
them and no search was conducted since all the occupants had fled.” They say
the guards have been placed there awaiting the arrival of the occupants so that
a search can be done in their presence.
The explanation given by the
respondents for the unusual behaviour of the police to take occupation of the
applicant's premises does not hold water at all. Firstly, counsel for the
respondents submitted that there is an individual at the premises who uses the
servant's quarters but the police cannot conduct the search in the presence of
that individual because they want a representative of the applicant, who is not
that individual, to be present during the search. He did not give a name of
that other representative. If it is accepted that there is someone at the
premises and that the police genuinely want to conduct a search in the presence
of someone, there is absolutely nothing stopping the police from undertaking
the search because the applicant's representative is on the ground to
superintend that search.
Secondly, the respondents
conceded that the applicant's legal practitioners did attend at the house
immediately after police's arrival intending to oversee the activities of the
police at the house. It is not clear why the police could not undertake the
search in the presence of the legal representatives of the applicant. The
applicant has a constitutional right to be represented by a legal practitioner
of their choice and the police must live with that.
Affidavits
have been submitted by Mr Kossam Ncube and Ms Nosimilo Chanayiwa to the effect
that the police actually chased them away from the house. Mr Kossam Ncube
stated, in his affidavit, that:
“3…,. The position is that on
Friday the 10th June 2011, when the police raided the applicant's
offices, I was summoned to the scene and went there in the company of Nosimilo
Chanayiwa of the Zimbabwe Lawyers for Human Rights.
4. When we got there we parked
our vehicle about 5 metres from the gate where our client's offices are housed.
5. The police immediately came to
where we were parked and ordered us to leave. They indicated that they did not
want to discuss anything with us and they sternly advised that if we did not
want any trouble we should leave forthwith.”
As if that was not enough, the
respondents admit having received a letter from Kossam Ncube and Partners,
dated 13 June 2011, which is filed of record, in which the legal practitioners
make it clear they represent the applicant. If, indeed, the police wanted to
conduct a search at the premises, they could have easily done so in the
presence of the legal practitioners who availed themselves on 10 June 2011.
Instead, they chased then away.
Even if this had been done by
overzealous junior officers on the ground, the first respondent had an
opportunity, when he received the letter of 13 June 2011, to liaise with the
applicant's legal practitioners so that they avail themselves for the search to
be carried out in their presence. For him to claim now that his officers are
standing sentinel at the house awaiting the arrival of a representative of the
applicant, who is not the one at the premises and is also not the legal
practitioner that he knows, is simply a red herring and cannot be taken
seriously.
Thirdly, the search warrant
issued by Superintendent Mupungu that has been produced by the respondents is
dated 10 June 2011 and authorises the bearer to search the premises, a Ford
Ranger registration number ABI 3569 and Nissan Saloon registration number AAY
1888 for:
“Unregistered firearms, documents
containing subversive information which adversely affects (sic) the economic
interests of the State and any other offensive materials.”
There is nothing in the warrant
suggesting that the search can only be conducted in the presence of a specific
individual. Therefore, there was nothing stopping the officers from undertaking
the exercise in the presence of the legal practitioners who attended the scene
on 10 June 2011 and the occupant of the premises. In fact, counsel for the
respondents emphatically argued that they do not want to arrest anyone but
merely to conduct a search. This lends credence to the applicant's claims that
the police did search the premises on that day. It also makes their continued
presences at the premises inexplicable indeed.
The deployment of guards at the
premises of the applicants in the manner employed by the respondents is not
only clearly unjustified but is also unnecessary over-handedness that cannot be
allowed. The police can still effectively discharge their constitutional mandate
of investigating crime without resorting to such crude methods. In my view, the
applicant has made out a good case for the relief sought.
Accordingly, the provisional
order is granted in terms of the amended draft. The interim relief granted is
as follows:
1. The applicants be and are
hereby restored to full possession and occupation of House No.33A Clark Road,
Suburbs, Bulawayo.
2. The respondents be and are
hereby directed to order and facilitate the immediate withdrawal of all police
officers from the aforesaid house and the surrounding yard.
3.
The respondents be and are hereby directed to ensure that nothing is removed
from the aforesaid house without due process.
