NDOU J: I
dismissed this application with costs.
The applicant seeks full reasons for the dismissal. These are they.
The applicant approached this court
under a certificate of urgency seeking a provisional order in the following
terms:
“Interim Relief granted
1.
That
the transfer of applicant to Murewa be suspended until this application is
finalized.
2.
That
if applicant is already in Murewa he be returned to Beitbridge until the
application is finalized.
Final Order
1.
That
the transfer of applicant to Murewa be and is hereby reversed.
2.
That
the respondents reconsider recommendations and adoption [of] the applicant's
transfer from Ministry of Home Affairs to Ministry of Justice and Legal Affairs
respectively.
3.
That
if the respondents oppose the application, costs on a client attorney be ordered
against the officer that opposes personally.”
The salient facts of the matter are the following. The applicant is a police officer holding the
rank of Assistant Inspector. For a
period of around six (6) years the applicant had been seconded to the
Beitbridge Public Prosecutor's office as a public prosecutor. During this period he studied for a law
degree through distance education via the University of South Africa. He made quite some progress towards the
attainment of his law degree. This
encouraged him to seek a permanent transfer to the Ministry of Justice and
Legal Affairs. Whilst his application
for lateral transfer was under consideration, he was transferred from the
Public Prosecutor's office to the Zimbabwe Republic Police. He suspects that one of the magistrates in
Beitbridge authored the termination of his secondment. His secondment was terminated on 26 June
2009. In July 2009 the applicant went on
vacational leave and was due to report back in September 2009. He did not do so. He states that he fell ill and was on sick
leave until 30 November 2009. Whilst he
was on sick leave he was transferred to Murewa.
He was also arrested for being absent without official leave. He was detained for three days at Beitbridge
Police cells. He was taken to Murewa
where he was released without charge. He
thereafter made his own investigations and he managed, somehow to lay his hands
to a memorandum written by the 1st respondent to the 2nd
respondent recommending his transfer.
The applicant does not explain how he managed to get a copy of this
memorandum. Having read the contents of
this memorandum he decided to institute this chamber applicant. It seems to me that the application is
seriously flawed. The final order sought
is a review of the decision by the Commissioner General of Police to transfer
him to Murewa.
In terms of order 33 Rule 256 of the High Court Rules, 1971,
an application for review should be by way of court application and not chamber
application. In any event the
application does not meet the requirements set out in Rules 257 and 260. Be that as it may, I do not propose to
dismiss the application for the use of wrong procedure. The respondents raised two points in limine.
First, they alleged that the matter is not urgent at
all. In his founding affidavit, the
applicant has not dealt with the question of urgency seriously. All he states is: “My right to education is
being infringed by the transfer to Murewa in that all my studies will be
affected adversely. The transfer will be
effective on the 30th November 2009 if this application for
provisional order is not heard.” The
certificate of urgency is equally unhelpful.
All that the legal practitioner states is the following:
“1.1. The
applicant is doing studies presently with the University of South Africa an
advantage of being at Beitbridge close to the Republic of South Africa.
1.2 Murewa
is very far from his collection point of study material which definitely
prejudice his studies.
1.3 There
are allegations made against him which are grounds for his transfer which also
damage his person but where not put to him for him to give his side of the
story. These may even affect his
employment.”
There is no allegation of urgency in the founding affidavit
and the certificate of urgency. This
matter cannot be heard under a certificate of urgency in the circumstances – Kuvarega v Registrar General 1998(1) ZLR 188(H). On this ground alone, the application is
devoid of merit. Additionally, the
applicant became aware of his transfer in early November 2009 and waited until
just before the effective date to file the application. He waited for doomsday to arrive.
If I am wrong in the above finding, still the application had
to be dismissed for failure to exhaust internal remedies. Even if it is true that the applicant failed
to get audience with the 1st and 2nd respondents,
applicant as at liberty to approach the Police Service Commission for relief –
section 16 of the Police Trials and Boards of Inquiry Regulations, 1965. Thus applicant's failure without good and
sufficient cause to exhaust domestic remedies available to him is fatal to his
application – Tutani v Minister of Labour & Ors 1987 (2)
ZLR 88(H) and Communications Allied Svc
(s) Workers Union of Zimbabwe v Tel-One
(Pvt) Ltd 2005 (2) ZLR 280 (H) at 287.
Whichever way one looks at the application, it has to
fail. It is for this reason that I
dismissed it with costs.
Samp Mlaudzi & Partners, applicant's legal practitioners
Civil Division of the Attorney General's Office,
respondents' legal practitioners
