CHEDA J: This is an application for setting
aside a provisional order granted by this court on 13TH May 2010 on
the basis that the said order was erroneously granted in the absence of the
affected party.
The background of this matter is
that respondent a police officer was charged with contravention of paragraph 35 of the Schedule
to the Police Act [Chapter 11:10] as read with section 34 of the said Act. This relates to an allegation that he acted
in an unbecoming manner. The full facts
are not relevant for these proceedings.
He pleaded not guilty, but, was, however, convicted and sentenced to 6
days imprisonment. He appealed to second
applicant. He however, lost the appeal
and served his six days imprisonment.
Dissatisfied with that decision he applied for review under case no. HC
667/10 wherein he sought to quash the conviction referred to (supra).
The said application was served on
the 11 June 2010 on first and second applicants at Ross Camp, Bulawayo. On the hearing day, there was no appearance
and the application was granted.
In the present application it is
applicant's contention that the review application was not properly served on
them as required by the rules of this court in particular Rule 43B which
reads:-
“43B. Persons
upon whom notice and process to be served
Where a person mentioned in
the first column of the Seventh Schedule is the defendant or respondent in any
proceedings to which this Order applies-
(a) the notice of
intention to bring the proceedings required by section 5 of the State
Liabilities Act [Chapter 54]; and
(b) all process by
which the proceedings are instituted or by which effect is given to any
judgment arising out of the proceedings;
shall be served upon the
person specified in relation to the defendant or respondent in the second
column of the Seventh Schedule, and copies of the notice and process shall be
served, for information, upon the person or persons specified in relation to
the defendant or respondent in the third column of that Schedule”.
The
Seventh Schedule relates to service of court process upon state officers of
which paragraph 4(a) reads:-
“SEVENTH SCHEDULE (RULE 43B)
SERVICE
OF PROCESS UPON STATE OFFICERS.
Defendant
or Respondent Process to
be Served on Copies
to be Served, for
information,
on
4. Minister of Home Affairs
(a) in respect of any act or Commissioner
of Police, or his (a) Director of
the Civil Division of
omission by a member of private secretary, at the the Attorney-General's
the
Police Force Commissioner
's office Office,
at the Director's office
(b) Deputy Secretary (Finance and
Administration) of the Ministry
of
Home Affairs, at the Deputy
Secretary's
office.
The
question then is, was first and second applicant properly served in terms of
the rules of this court. First applicant
was personally served at his offices at Ross Camp, that admits of no doubt and
accordingly, there was proper service.
Respondent argued that Rule 43B as read with Rule 43A applies to claims
for money only and not any other claims.
It was further his argument that second applicant is aware of this
procedure and practice. It is for that
reason that he authored a directive through a radio communication signal which
reads:-
“FROM COMPOL LEGAL SERVICES.
TO
ALL STATIONS CLASS H ZIMBABWE.
RDO BTM 15/09 DATED 30 JULY 2009
SUBJECT: POLICE DISCIPLINARY
TRIALS: DENIAL OF APPEALS
- - -
- - - should the affected
party take the matter on review or appeal
comma the decision will stand up to judicial scrutiny stop further comma where
the president of a board has been served with court process challenging the
convening of a board or an officer has filed his or her appeal with the High
Court comma it is directed that the court papers be forwarded to legal services
by the most expeditious means possible stop once a matter is before the
High Court comma it is prudent to stay the board proceedings until the
finalization of the High Court matter or appeal stop”. (my emphasis)
In my view, Rule 43B which is
under 0rder 5 should not be read in isolation but with Rule
43A which reads:-
“Order 5A
SERVICE OF PROCESS IN PROCEEDINGS AGAINST STATE
43A. Application
of Order
This Order shall apply to claims for-
(a) money, whether
arising out of contract, delict or otherwise; or
(b) the delivery or
release of any goods;
whether or not joined with or
made as an alternative to any other claim, where the claims are instituted
against-
(i)
the State; or
(ii)
the President, a Vice-President or any Minister or
Deputy Minister in his official capacity; or
(iii)
any officer or employee of the State in his official
capacity.”
This order is unambiguous as it is
as clear as day light to an extent that even he who runs can read. My interpretation of it is that personal service
to the Commissioner General is required, only, where the claim is sounding in
money. Any other court process should be
served at any police station for onward transmission to second applicant. This makes sense as all police stations
throughout the country are directly linked to the Police General Headquarters.
Second applicant and all other police stations are aware of this practice hence
the radio communication signal of the 30th July 2009 directing all
police stations to forward court papers relating to either review or appeal
matters to the legal services in Harare.
On issuing these instructions second
applicant specifically directed his subordinates to expeditiously forward court
process to him so that his officers can comply with all the legal
requirements. The fact that, they
probably did not act timeously is their own shortcoming which cannot be visited
upon the respondent.
I, therefore, find that there was
proper service upon both applicants and accordingly there was indeed wilful
default on their part. The application
is accordingly dismissed.
Cheda
J...........................................................
Civil Division Attorney
General's Office, defendant's legal practitioners
