CHEDA J: This is an application for a stay of
execution of a sentence pending review.
The
genesis of this matter is that, applicant is a member of the Police force and
is based at Bulawayo Central Traffic and is attached to the VID section.
On
the 14th January 2010 applicant was charged with contravening
paragraph 35 of the schedule of the Police Act [Chapter 11:10] on allegations
that he had acted in an unbecoming manner.
The matter was set down before a hearing officer who convicted him on
the 28th January 2010 and sentenced him to 7 days imprisonment at
Zimbabwe Republic Police, Fairbridge Detention Barracks, here in Bulawayo. He appealed that decision but the appeal was
dismissed by second Respondent on the 9th March 2010.
In
pursuit of his legal right, applicant filed an application for review on the 16th
April 2010 under cover of case number HC 694/10 simultaneously with this
application which he seeks to stay the execution of the sentenced imposed on
him.
It
is applicant's argument that if he serves his sentence before the review
application is heard, he will be seriously prejudiced in the event that his
application succeeds.
Respondents
are opposed to this application on the basis that applicant had used a wrong
procedure earlier on when he noted an appeal.
While this maybe so, the current issue is that of an application for
review pending before this court.
The
question, then is what effect would the result of the review have on the whole
matter.
Generally,
all litigants are expected to await the finalisation of a matter before the
court. Therefore any affected party has
reason to worry when the other party is showing indications of a desire to
execute before the pending matter is finalised.
In
the determination of an interdict, one of the considerations a court will bear
in mind is the harm which may flow from its failure to stop or allow a certain
occurrence.
In
casu applicant has a 7 day sentence
hanging on him. If respondent is allowed
to execute and he succeeds in his application for review, the harm which he will
suffer is clearly irreparable. While on the other hand respondents will
still enforce the sentence imposed in the event that the review application
fails. Therefore, there is an adequate
remedy for respondents.
This,
is the mischief which the principle of interdict is hell-bent to prevent. Respondent have argued that, the application
for review is likely to fail.
Well,
they may well be correct in their stance on the basis of whatever arguments.
However, this court is not seized with that matter and is yet to be
determined. What this court is concerned
with is the damage which may occur later and whether or not applicant will have
any other alternative remedy. If
applicant succeeds in his review application he will indeed suffer irreparable
harm in the circumstances.
In
my mind, I hold that applicant's argument is plausible. In the event that he serves his sentence and only
to succeed in his application for review later, he will no doubt have suffered
irreparable harm to which no meaningful alternative will cure the harm even if
it is of a financial nature.
I
am of the view that there is no prejudice if both parties await the outcome of
the review currently before the courts
In
the result, the application succeeds.
Sansole and Senda, applicant's legal
practitioners
Civil Division, Attorney
General's Office, respondent's legal practitioners
