This is an application for review seeking nullification of the nomination and appointment of the first respondent as Chief of the Munyikwa people. The applicant avers that the customary principles of succession to the Munyikwa chieftainship were not followed and as a result the wrong person was nominated for appointment.

The second, third and fourth respondents have opposed this application...,. They aver that the appointment of the first respondent was done in accordance with the customs and traditions of the Munyikwa community and in line with the provisions of section 3(2) of the Traditional Leaders Act [Chapter 29:17].

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of October 2009.

The warrant of arrest was then cancelled on the 9th of October, on the very day that this application was filed, and is no longer of any concern.

Nevertheless, the applicant still seeks an interim order barring the first respondent, who was the presiding magistrate in a criminal matter before the Chinhoyi Magistrates Court, from compelling him to testify in that matter. He also seeks a final order setting aside the subpoena issued on the 2nd of October 2009 for him to attend and testify in the criminal matter.

The latter involves the prosecution of the fourth respondent under the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] and has been set down to resume on the 4th of November 2009.

Objections in Limine

Counsel for the fourth respondent has raised several objections in limine:

(i) Firstly, that the applicant's plea on the merits is one of State privilege, and, as such, it must be raised by way of a sworn affidavit from the head of the Ministry concerned, viz. the Ministry responsible for land resettlement, and not by the applicant himself;

(ii) Secondly, that the applicant's founding affidavit, and his lawyer's supporting affidavit, must both be disregarded as the former contains no substantive averments and the latter cannot be used in support of an affidavit that avers nothing of substance.

As regards the first objection, counsel relies on FELTOE: A Guide to Administrative and Local Government Law in Zimbabwe (2006)…,.

While I have no doubt that the learned author is correct in his general statement of the procedure to be applied, I am not persuaded that his proposition necessarily and invariably applies to every claim of privilege by a witness in terms of section 295 of the Criminal Procedure and Evidence Act [Chapter 9:07], viz. on the grounds of public policy and/or public interest.

In my view, the form in which the privilege is claimed would depend upon the nature of the evidence in question and the context in which the evidence is called for.

In the instant case, it seems to me that the privilege has been appropriately raised through the supporting affidavit of the applicant's lawyer. Accordingly, the fourth respondent's objection in this regard cannot be sustained.

Turning to the second objection, it appears that the deponent to the supporting affidavit, Itayi Ndudzo, personally attended the Magistrates Court on the 6th of October 2009 and had personal knowledge of the relevant proceedings and the record thereof.

As is correctly conceded by the fourth respondent's counsel, a legal practitioner can depose to issues of procedure and issues of fact that only he and not the client can depose to.

The applicant himself had no knowledge of what transpired at the Magistrates Court, except by way of hearsay, and properly associates himself with the averments contained in Itayi Ndudzo's affidavit on the basis that the latter was fully seized with the matter and in attendance at the court at the relevant time.

It follows that the preliminary objection on this point must also fail.

Basis of Application

The present application is by way of criminal review in terms of section 29 of the High Court Act [Chapter 7:06].

It was raised, in the course of argument, by counsel, that, the application is formally defective in that it has not been brought as a court application pursuant to Rule 256 of the High Court Rules, 1971 and that the review jurisdiction of this Court must be exercised with the concurrence of another judge.

As regards the first point, I take the view that Rule 256 is confined to civil matters and proceedings and does not apply to criminal reviews. In any event, it seems unnecessary for me to decide the point for present purposes, as I am inclined to entertain this matter on the robust approach adopted in State v Strowitzki 1995 (2) SA 525…, to wit:

“It is not the form of the procedure used which matters so much as the nature and substance of the application itself.”

As for the second point, the final order sought by the applicant requires the setting aside of the subpoena issued by the Magistrates Court.

This clearly falls within the purview of subparagraph (ii) of section 29(2)(b) of the High Court Act and would require the concurrence of another judge by virtue of the peremptory proviso to section 29(5)(b): see Attorney-General v Makamba 2004 (2) ZLR 63 (S)…,.

On the other hand, the interim relief sought herein is to bar the first respondent from compelling the applicant to testify pending the granting of the final order.

This relief, in my view, lies within the ambit of the general powers conferred by subparagraph (vi) of section 29(2)(b) and can be granted by a single judge in terms of section 29(5)(b) of the High Court Act.

Propriety of Application

Section 229 of the Criminal Procedure and Evidence Act [Chapter 9:07] regulates the process for securing the attendance of witnesses as follows:

“(1) In this section —

'prescribed officer' means the registrar, assistant registrar or clerk of the court or any officer prescribed by rules of court.

(2) Either party desiring to compel the attendance of any person to give evidence or to produce any books, papers or documents in any criminal case may take out of the office prescribed by rules of court the process of the court for that purpose.

(3) When the accused desires to have any witnesses subpoenaed and satisfies the prescribed officer of the court that —

(a) He is unable to pay the necessary costs and fees; and

(b) Such witnesses are necessary and material for his defence; the prescribed officer of the court shall subpoena such witnesses.

(4) In any case, where the prescribed officer of the court is not so satisfied, he shall, upon the request of the accused, refer the application to the judge or magistrate who may grant or refuse such application or may defer giving his decision until he has heard the other evidence in the case or any part thereof.”

It is averred, on behalf of the applicant, that, the subpoena that is impugned in casu was issued as an order of court and not merely through the office of the clerk of court. Accordingly, the first respondent was functus officio vis-à-vis the subpoena and his decision in that regard is properly reviewable by this Court.

In his affidavit, filed at the direction of the Court, the first respondent affirms that the subpoena was originally issued by the Clerk of Court at the request of the fourth respondent. Subsequently, following the reluctance of the police to serve the subpoena, the first respondent directed that the subpoena be “reissued to the police to serve the witnesses for the defence today.”

The first respondent's position is that, in essence, he merely ordered the police to serve the subpoena originally issued by the Clerk of Court.

Assuming that this evidence accurately reflects what transpired in the issuance and re-issuance of the subpoena, the subpoena was issued, not by the first respondent but by the Clerk of Court acting in terms of subsections (2) and (3) of section 229 of the of the Criminal Procedure and Evidence Act.

It follows that the validity of the subpoena, on its merits, was never canvassed before the first respondent and, therefore, he cannot be said to be functus officio in that regard.

Ordinarily, the applicant's claims of privilege and the validity or otherwise of the subpoena should, in the first instance, be ventilated before the Magistrates Court. Nevertheless, on the basis that the subpoena was originally issued by an officer of the court and subsequently reissued by order of the court, it may properly be regarded as an order of the court itself.

Moreover, whether the subpoena is regarded as an administrative order issued by the clerk or as an order of the court, this Court is endowed with the requisite jurisdiction in either case, by virtue of its inherent jurisdiction at common law as well as its statutory jurisdiction under section 26 of the High Court Act, “to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.”

I therefore deem it perfectly appropriate to deal with the merits of this application in order to avoid further delays in the administration of justice.

Merits of Application

According to the fourth respondent, the evidence of the applicant is necessary for the purposes of his defence in his prosecution before the Magistrates Court under section 3 of the Gazetted Lands Act.

His defence, in essence, is that he was given an “offer letter” by the applicant which constitutes the requisite “lawful authority” entitling him to remain in occupation of the farm without contravening section 3 of the Gazetted Lands Act. His evidence is that this offer letter was returned to the applicant in order to correct a spelling error in his name and that the letter was then never handed back to him. He now wants the applicant to testify on his behalf by confirming that the offer letter was in fact originally issued to him.

The applicant challenges the propriety of his testimony on several grounds:

In particular, he relies on the grounds of inadmissibility of evidence and non-compellability of witnesses as set out in sections 252, 295 and 297 of the Criminal Procedure and Evidence Act [Chapter 9:07]. These sections provide as follows:

“252. No evidence as to any fact, matter, or thing shall be admissible which is irrelevant or immaterial and cannot conduce to prove or disprove any point or fact at issue in the case which is being tried.”

“295. No witness shall, except as in this Act is provided, be compellable or permitted to give evidence in any criminal proceedings as to any fact, matter or thing, or as to any communication made to or by such witness, as to which, if the case were depending in the Supreme Court of Judicature in England, such witness would not be compellable or permitted to give evidence by reason that such fact, matter or thing or communication, on grounds of public policy and from regard to public interest, ought not to be disclosed and is privileged from disclosure: Provided that…,.”

“297. No witness in any criminal proceedings shall, except as provided by this Act or any other enactment, be compelled to answer any question which, if he were under examination in any similar case depending in the Supreme Court of Judicature in England, he would not be compelled to answer by reason that his answer might have a tendency to expose him to any pains, penalty, punishment or forfeiture or to a criminal charge or to degrade his character: Provided that…,.”

The applicant's reasons for not testifying in the fourth respondent's criminal trial are threefold:

(i) Firstly, that the evidence sought does not constitute a valid defence to the charge and is therefore irrelevant and inadmissible;

(ii) Secondly, that he cannot be compelled to divulge matters involving land allocation as these are privileged by dint of public policy and public interest; and

(iii) Thirdly, that he is only being called as a witness in order to degrade his character and he cannot be compelled to do so.

By virtue of section 3(1) of the Gazetted Lands Act, “no person may hold, use or occupy Gazetted land without lawful authority.”

The term “lawful authority” is defined in section 2(1) of the Gazetted Lands Act to mean;

“(a) An offer letter; or

(b) A permit; or

(c) A land settlement lease” and “offer letter” means “a letter issued by the acquiring authority to any person that offers to allocate to that person any Gazetted land, or a portion of Gazetted land, described in that letter.”

As recent case authority demonstrates, mere verbal authority to occupy Gazetted Land or a general policy statement to that effect does not satisfy the requirement of lawful authority for the purposes of section 3 of the Gazetted Lands Act: see Chirikure & Others v Kenmast Farming (Pvt) Ltd & Others HH106-05; Chimuka & Others v Minister of Lands & Others HC4837/07.

The accused occupier must provide proof of a valid offer letter, permit, or land settlement lease.

Generally speaking, the mere production of an offer letter would, unless the origin or authenticity of the letter is questioned, avail as a complete defence to a charge of contravening section 3 of the Gazetted Lands Act.

However, where the offer letter in question is lost or destroyed, the evidence of the issuing authority or other public official may be necessary in order to establish that the letter was in fact issued to the occupier concerned at the relevant time. Such evidence would undoubtedly constitute the requisite lawful authority and a valid defence against a charge of contravening section 3 of the Gazetted Lands Act.

Having regard to the foregoing, I am satisfied that the testimony required from the applicant, as to whether he did or did not issue an offer letter to the fourth respondent in relation to the land in question, is highly relevant and clearly admissible for the purposes of the fourth respondent's acquittal or conviction under section 3 of the Gazetted Lands Act.

Moreover, given that such evidence is to be elicited from the applicant in relation to what he himself did or did not do vis-à-vis the fourth respondent as the authority responsible for issuing offer letters, there can be no question of him having to divulge any official secret or other confidential information inimical to public policy or the public interest.

I am therefore quite unable to perceive any logical basis for the privilege claimed by the applicant on the facts of this case.

As for the possible degradation of his character, there is nothing meaningful in the founding papers to substantiate the apprehended attack on his character. Ultimately, any such apprehension must be weighed against the constitutional right of every accused person to be afforded a fair criminal trial as enjoined and guaranteed by section 18(3) of the Constitution, and, in particular, the right “to obtain the attendance and carry out the examination of witnesses to testify on his behalf.”

It follows that the applicant has failed to establish any basis for justifying the interim relief that he seeks. Accordingly, this Court cannot interfere with the subpoena issued by the Chinhoyi Magistrates Court by barring the first respondent, or any other magistrate, from compelling the applicant to testify at the fourth respondent's criminal trial.

As regards costs, the applicant's counsel conceded, at the hearing of this matter, that the first respondent should not have been cited in his personal capacity and that he was entitled to his wasted costs, including the costs of appearance by counsel.

It is accordingly ordered that the applicant shall pay the first respondent's costs on a legal practitioner and client scale.

As for the other respondents, although the applicant has failed on the merits of his application, I am not persuaded that his approach to this Court was so unjustified or unnecessary as to warrant a punitive award of costs.

The second, third, and fourth respondents are therefore only entitled to their costs on the ordinary scale.

In the result, this application is dismissed with costs as aforesaid.

When one gleans through the applicant's founding papers, it is clear that what is being alleged as the basis of the appeal is gross irregularities.

Review, instead of appeal, would have been the appropriate vehicle for redress.

It is trite that, in appropriate circumstances, a magistrate's decision under section 40 of the Magistrates Court Act [Chapter 7:10] can be taken on review – Kuruman Cape Blue Asbestos (Edms) Bpk. v Boshoff 1973 (2) SA 663 (NC).

In its wisdom, the applicant chose the appeal route.

I am not dealing with the appeal, but the merits of the appeal are relevant in the determination of this application, as rightly pointed out by counsel.

Firstly, in opposing the application, it was contended on behalf of the respondent that the application which, in terms of Order 33 Rule 259 of the High Court Rules, must be filed within eight weeks of the termination of the proceedings sought to be impugned, was filed out of time.

Secondly, it was further contended that the applicant's application did not did not comply with the rules of this court in that it did not state on its face the clear and concise grounds upon which the applicant sought to have the proceedings of the Tribunal set aside.

At the hearing of the application, the second objection alleging that the applicant's application does not state the grounds of review clearly and concisely on its face was not pursued.

I return to the first point.

It is trite that unless the time is extended by the court for good cause shown, an application for review must be filed within eight weeks of the decision being impugned. The calculation of time, for the purposes of the Rules, is governed by common law. The rule is to include the last day when the event occurred and to exclude the first day. Thus, the eight week period is to be reckoned from the date when the applicant was notified of the fact that the proceedings against him had terminated. (See Nair v Naicker 1942 TPD 3 at 6ff).

The issue that falls for decision in this matter is the actual date upon which the applicant was notified of the decision to terminate his appointment.

The applicant contends that is the date of the letter from the Chief Secretary to the President and Cabinet, whereas the respondent contends that it is the date of the publication of the termination in the Government Gazette.

I have not been advised in argument of the legal provision that bears the contentions of the respondent in this regard.

In my view, the publication of the termination of the applicant's appointment could not have been meant to constitute personal notice to the applicant of the fact. Personal notification of the termination of his appointment was effected through the letter of 23 May 2008.

It is my finding that the operative date upon which the eight weeks that the applicant had to challenge the decision terminating his employment was the date of the letter advising him of such, and not the date of the publication of the termination in the Government Gazette.

I have..., indicated that, in my view, the correct procedure to adopt in approaching the court for an order setting aside a practicing certificate is by way of review proceedings. This will enable the applicant in that matter to allege the ground upon which the decision to issue the certificate can be impugned...,.

Having been persuaded to deal with the matter on its merits I have examined the papers filed of record by the plaintiffs' to see if there is a minimum basis upon which I can regard the objection before me as an application for review.

I have taken the contentions of the plaintiffs', that the practicing certificate issued to Advocate de Bourbon for 2009 was issued on the false premise that he was practicing as a partner in Costa & Madzonga yet he has continued to openly practice as an advocate, as a basis upon which I can interfere with the administrative discretion of the Law Society on review.

In my view, the above may have constituted a recognizable ground for reviewing the decision of the Law Society to set aside the practicing certificate issued to Advocate de Bourbon. I may have been sufficiently moved to set aside the practicing certificate on the basis that the decision to do so, on the basis of the application filed, was grossly unreasonable.

I deem it unnecessary that I embark on the exercise of condoning all the departures from the Rules that will be necessary in this matter to enable me to convert the objection by the plaintiff into a review application as the practicing certificate under probe has now lapsed by effluxion of time.

Practicing certificates in this jurisdiction are issued on a yearly basis. The practicing certificate for 2009 is now invalid for other reasons and cannot be used to enforce the right of audience before this court.

In the result, I make the following order:-

The first applicant is a public company listed on the London Stock Exchange. The second to fifth applicants (Dashaloo Investments (Pvt) Ltd, Possession Investments (Pvt) Ltd, Heavy Stuff Investments (Pvt) Ltd, Olebile Investments (Pvt) Ltd) are Zimbabwean companies duly incorporated in terms of the laws of Zimbabwe. They are wholly owned subsidiaries of the first applicant.

The second to fifth applicants are holders of registered mining claims in the Chiadzwa diamond mining area of Manicaland. Their claims have been subjected to cancellations and litigation over such cancellations. The claims were declared valid by HUNGWE J in HC6411/07.

The respondents appealed against that decision to the Supreme Court, where the appeal is still pending.

The first respondent is the Minister of Mines and Mining Development. The second respondent is the Permanent Secretary in the Ministry of Mines and Mining Development. The third respondent is the Chief Mining Commissioner in the Ministry of Mines and Mining Development.

The second respondent gave notice to the second to fifth applicants of his intention to cancel their claims with effect from 10 March 2010. The notice is dated 28 January 2010. The cancellations are premised on the applicants' claims having been registered over a reserved area in contravention of the Mines and Minerals Act [Chapter 21:05] the (“Mines Act”). He advised the applicants that the area was reserved against pegging and prospecting by Reservation 1558, dated 19 February 2004.

The applicants filed an urgent application on 5 March 2010, seeking a provisional order interdicting the respondent's from canceling their claims on 10 March 2010.

The respondents opposed the application and raised the following preliminary issues:

1....,. 

2. That the applicants had not complied with Order 33 of the High Court rules....,.

The respondents had also sought the dismissal of this application on the grounds that the application does not comply with Order 33 of the High Court Rules...,.

In view of my finding that the application is not urgent, I need not determine the other preliminary issues.

Once a case is judged to be not urgent, no further consideration should be given to any other aspect of it. This is because urgency is the key entitling a case to this court's attention on an urgent basis and ahead of other cases awaiting the court's attention.

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).

He was sentenced to twelve days imprisonment.

The first respondent is the Commissioner General of the Zimbabwe Republic Police, who is being sued in his official capacity as the Head of the Zimbabwe Republic Police.

The second respondents are the Co-Ministers of Home Affairs, being sued in their capacity as the Ministers responsible for the Zimbabwe Republic Police.

The third respondent is the officer in charge of Chikurubi Detention Barracks, where the applicant will be lodged for twelve days if he is to serve the sentence imposed on him by the fourth respondent.

The fourth respondent is the officer who tried, convicted, and sentenced the applicant to twelve days imprisonment.

The applicant was convicted by the fourth respondent on allegations that he had sought and obtained a bribe of US$500, and stolen a plasma television from a suspect he had arrested and was about to lodge in police cells. He was charged under section 35 of the schedule to the Police Act, which provides as follows:

“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”

He was convicted and sentenced to twelve days imprisonment.

The suspect, and another witness, gave evidence at the trial leading to the conviction of the applicant.

In this application, the applicant alleges that the fourth respondent did not warn himself about the dangers of convicting on the evidence of accomplice witnesses. He also alleged, that, the fourth respondent did not warn the accomplices before they testified.

He further alleges that he is being exposed to double jeopardy as he is also being charged for the same acts under the Magistrate's Court.

He further complains that the sentence imposed by the fourth respondent induces a sense of shock.

Counsel for the applicant submitted that section 35(1) of the Police Act [Chapter 11:10] requires the trial under the Police Act to closely comply with the procedure followed in the courts of Zimbabwe. It provides as follows:

“(1) The proceedings before or at any trial by a board of officers or an officer in terms of this Act, shall, as near as may be, be the same as those prescribed for criminal cases in the courts of Zimbabwe.”

The intention of the legislature is clear.

The tribunal or trial officer must, as nearly as is possible, comply with the rules of evidence and procedure as is done in the courts of Zimbabwe. Where the tribunal or trial officer significantly departs from the procedure set for criminal proceedings in the courts of Zimbabwe the proceedings may be set aside on review.

The test applied on reviewing proceedings is whether or not the proceedings are in accordance with real and substantial justice.

That may be satisfied if a record reveals statements made by the accused admitting having done what is alleged or other things tending to support the conviction. In other words, errors, on the part of the prosecuting authority, may, if they do not go to the root of the proceedings, affect its being held to be in accordance with real and substantial justice.

A stay of sentence must therefore only be granted if the record shows prospects of success, which can only be properly assessed from the totality of the proceedings.

In this case, the applicant has not placed the record of proceedings before the court. In fact, the applicant said nothing about it in his founding affidavit.

Counsel for the applicant tried to explain from the bar, but, an application must stand or fall on the papers filed.

The applicant's failure to place the record before this court makes it impossible for this court to assess the applicant's prospects of success on review as the standard of assessment on review must comply with the proviso to section 34(3) of the Police Act, which provides as follows:

“Provided that no conviction or sentence shall be quashed or set aside by reason of any irregularity or defect in the record or proceedings unless the Commissioner considers that a miscarriage of justice has actually occurred.”

The alleged irregularities cannot, therefore, in the absence of information from the record showing that a miscarriage of justice actually occurred, persuade the court to stay the execution of sentence. The standard of review, set by the legislature for the Commissioner, must be applicable to the review of those proceedings by this court....,.

The applicant filed this urgent application seeking an order staying his imprisonment for twelve days as ordered by the fourth respondent. He seeks the stay of his imprisonment pending the review of his case. He says he is taking the proceedings on review before the High Court and seeks the stay of the sentence pending review.

He does not state that he has already filed a review, nor does he state the review case number. There is nothing on the record to show that the application for review has been filed.

Counsel for the applicant complains that he is facing difficulties in obtaining the judgment and record of proceedings.

If that is true, he can initiate other forms of review....,.

Section 29(4) of the High Court Act [Chapter 7:06]...,, provides as follows:

“(4) Subject to rules of court, the powers conferred by subss (1) and (2) may be exercised whenever it comes to the notice of the High Court or a judge of the High Court that any criminal proceedings of any inferior court or tribunal are not in accordance with real and substantial justice, notwithstanding that such proceedings are not the subject of an application to the High Court and have not been submitted to the High Court or the judge for review.”

Section 29(4) of the High Court Act gives this court, or a judge of this court, wide review powers.

It allows a judge to call for and review any proceedings of an inferior court or tribunal it becomes aware of and forms the view that they are not in accordance with real and substantial justice. The judge is empowered to call for and review any proceedings - even those he may hear about through the press, or a letter, or any other source of complaint or information....,.

The record of proceedings has not been placed before the court. The sentence cannot be stayed without assessing the applicant's prospects of success on review.

In terms of Order 33 Rule 259 of the High Court Rules, 1971 any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred.

The judgment which is the subject of this matter was handed down on 4 May 2006. The application for review should have been filed by 29 June 2006. The application in casu was only filed on 18 August 2006 – some two months later. Papers show that there was no application made at all for condonation of the late application for review at the time that the application was filed. Indeed, there was no such an application in this application either. Such an application was only made ex abundant cautela much later in supplementary Heads of Argument filed on 1 September 2006.

As far as the question for review is concerned, case authorities show that for a decision to attract review on the basis of gross unreasonableness it must be shown to be “so outrageous in its defiance of logic or any acceptable moral standard that no sensible person who had applied his mind to the question to be decided would have arrived at it.” LORD SCARMAN spoke of a decision having to be so absurd that the decision-maker “must have taken leave of his senses.”  See Dube v Mandiona NO & Anor SC173; Gondo v Minister of Public Service, Labour & Social Welfare & Anor SC95-98; and Charumbia v Commissioner of Taxes & 7 Ors SC88-98. In the case of Secretary of State v Tameside Metropolitan Borough Council 1976 [3] All ER 665 CA..., LORD DENNING stated -   

“No-one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong; so wrong that no reasonable person could sensibly take that view.”

The allegations of gross unreasonableness and gross irregularity were made by the applicants and are based on the fact that the first respondent made reference to the lack of merit in the applicants' case.

In my considered view, the averments made in the affidavit filed in support of the relief sought come nowhere near satisfying the test articulated in the cases cited above. The giving of reasons in a judgment in which one is in default does not constitute unreasonableness. The giving of reasons for a default judgment where the applicant is in default does not constitute an irregularity. The first respondent had the applicants' papers as well as those filed on behalf of the respondents before him. He applied his mind to the facts and wrote his judgment.

The first ground being sought to be relied on was that the first respondent had misdirected itself in failing to take into account that the convening of the Board of Inquiry, and its subsequent decision, were a nullity as the applicant had already been sentenced for the alleged transgression.

Counsel has accepted that a mis-direction is not a ground for review and has also accepted that the second respondent has the discretion under the Police Act to set up a Board of Inquiry into an officer's conduct or suitability to remain a member of the police force.

The second alleged ground for review was a failure to appreciate the facts.

Again, counsel accepts that this is not a ground for review but for appeal.

The third ground for review was framed in this manner -

“C) Even assuming, without admitting, that the Board of Inquiry was properly convened and empowered to hear the matter, the first respondent failed to appreciate the fact that the punishment imposed upon me by the Board was unduly harsh, grossly unreasonable, and not in tandem with the facts of the case. The Board of Inquiry/Suitability (sic) usually sits to determine cases of incorrigible members of the Police who, despite being convicted several times for misconduct, remain unrepentant, and those who will have committed “one off” serious offences-in which cases such punishment as reductions in rank would suffice. As a first offender with a clean 16-year record in the Police Force, I did not and does (sic) not deserve the punishment of reduction in rank, but at most a reprimand.”

I raised a query with the applicant's counsel as to whether or not this additional ground was for a review or an appeal. Counsel was adamant that it was a ground for review.

I am unable to agree.

It is appropriate, at this juncture, to consider the function that a court is exercising when it reviews the actions or decisions of an administrative body. Judicial review is a process which is concerned with the examination and supervision by the courts of the manner in which administrative bodies have observed their obligations when related to the legislative requirements. It is a process in which the three arms of Government, the Executive, the Judiciary and the Legislature are enmeshed in a trilateral relationship. The power to review is inherent in courts of superior jurisdiction, but such power is limited to the legality of the administrative action or decision.

The process of review is for the court to examine the circumstances under which the administrative body reached its decision, and it is not open to the court, in a judicial review, to scrutinize the decision lest the court is accused of usurping the powers of the administrative body. See Chief Constable v Evans 1982 (3) All ER 141, where..., LORD BRIGHTMAN stated -

“Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power.”

I note, however, that in the heads of argument filed on behalf of the applicant, instead of making reference to the absence of a record, the applicant raises the issue of the first respondent having recommended that he be discharged from the service instead of a mere reduction in rank. The applicant also raises, in the heads of argument, an allegation of absence of logic on the part of the first respondent which was proof of gross unreasonableness.

The second aspect is that the applicant is simply trying to upset the decision of the lower court and circumvent the effect of a valid order for leave to execute pending appeal which order the applicant realises is not appealable. This is akin to trying to have the second bite of the cherry as it were. Both parties argued before the lower court on the relevant aspect of whether it was proper to grant leave or execute judgment pending the first (main) appeal. The lower court exercised its discretion and granted the order for leave to execute pending appeal.

This court, in my view, cannot seek to review this decision in the absence of a proper application for review. The point is made that this court cannot also be asked to review the decision by the lower court on the basis of an urgent chamber application in the form and format filed of record by the applicant.

There are two matters in this case.

The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as substantive Chief Bunina.

In the latter matter, the applicant also seeks that the matter be remitted to the office of the second respondent for the reconvening of a selection meeting of all interested parties for the fresh selection of a candidate for appointment as Chief Bunina.

The first respondent had raised points in limine in respect of main matter. I propose to deal with these points in turn.

Non-compliance with Order 33 Rule 256

The first point is that the application was filed out of time.

It is alleged that the applicant fell foul of the provisions of Rule 259 of the High Court Rules as it was filed after the eight (8) week period.

The decision by the President i.e. the fifth respondent was made on 7 May 2007. The decision was communicated to the second respondent by letter dated 8 May 2007. The second respondent attempted to communicate this decision to the applicant by a letter dated 30 May 2007. Unfortunately, the letter was misdirected to a non-existing address, viz “132 Iona Road, Pilani, Bulawayo.”

It is beyond dispute that this address does not exist and that the letter did not reach the applicant.

It is trite that the running of the eight (8) week period, supra, only starts from the time the applicant is notified of completion of the proceedings.

In Clan Transport Co (Pvt) Ltd v Road Service Board 1956 (4) SA 26 (SR)…, it was stated -

“To my mind, when an administrative body, such as the present Board, is called upon to perform functions of a semi judicial character, the delivery of its judgment on the issue before it is as much a part of its proceedings as its deliberations and the arrival, after discussion, at its conclusion.

Until its conclusion has been clothed with finality, by its communication either in open sitting, or by its administrative officer to the parties, I find it difficult to see on what ground a party could legitimately attack any subsequent unanimous decision by it to reconsider the matter and reverse the conclusion at which it had at one stage arrived…,. I have come to the conclusion that the Board's proceedings terminated only on communication of its decision in April 1956.”…,.

Further, in Vrystaat Estates (Pvt) Ltd v President, Administrative Court & Ors 1991 (1) ZLR 323 (S)…, McNALLY JA said –

“No authority is necessary for the proposition that the eight weeks cannot possibly apply to an applicant who does not even know of the decision for far longer than eight weeks after it was made, precisely because he was not informed of the proceedings as he should have been.

Indeed, it seems to me to be artificial to seek to apply the eight weeks rule as from the date the appellant became aware of the proceedings. The Cluff Minerals case 1989 (3) ZLR 338 (SC) and the Clan Transport case 1956 R & N 322 at 325-6 were concerned with the date when the proceedings were terminated. They decided that this was the date when official notice of the decision was communicated to the party concerned.”…,.

See also Gula-Ndebele v Bhunu NO HH14-10.

This should put this half-hearted argument to rest, because, in casu, the termination of the appointment proceedings was only communicated to the applicant, by the third respondent, on 4 September 2009. The purported proof of the first respondent's appointment was only released to the applicant on 9 September 2009. This application was filed two days later, on 11 September 2009.

This point is devoid of merit....,.

Non-compliance with Rule 257

The complaint here is that the court application does not state clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed as required by Rule 257. Reliance was placed on Chataira v ZESA 2001 (1) ZLR 30 (H) and Minister of Labour v Pen Transport SC45-89 (1989 (1) ZLR 293 (S).

It is trite, that, a notice of motion is interpreted also to include the founding affidavit: Manica Zimbabwe Ltd v Chairman, Labour Relations Board HH250-91.

In paragraph 7 of the founding affidavit the applicant states -

“7. The decision in question is reviewable on the grounds of:-

(a) Procedural impropriety or irregularity;

(b) Irregularity in the decision;

(c) Violation of the rules of natural justice;

(d) Unreasonableness.

I am therefore seeking an order of this honourable court setting aside the selection and appointment of 1st respondent as Chief Bunina of Lower Gweru and directing the 2nd and 3rd respondent to reconvene a meeting of all interested persons, all the Bunina clan duly assisted by the community and the relevant government authorities to select the chief in accordance with their customary principles of succession as obtain in their community.”

And, further, at paragraph 9 –

“9. The appointment was wrong as it was based on incorrect information put together by the staff at the Ministry of Local Government who ignored the wishes, norms, and customary principles of succession of the Bunina clan and imposed certain alien principles quite unknown to our clan…,.”

The foregoing averments set out the grounds for review plus the relief sought and there is, therefore, compliance with Rule 257 and the objection should fail.

Written Reasons

There is a preliminary aspect that needs to be addressed as a matter of general concern.

This is a review application brought in terms of Order 33. The applicant seeks the review of proceedings in the Magistrate's Court in Case No.207/09. The main grounds for review are gross irregularity in the proceedings, lack of jurisdiction and bias on the part of the magistrates who dealt with the matter….,.

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police attached to CID Fraud Section, Bulawayo. He was arraigned before a single officer charged with contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] i.e. “acting in an unbecoming manner or disorderly manner or in a manner prejudicial to the good order or discipline likely to bring discredit to the police.”...,. Notwithstanding his vehement protestations he was convicted and sentenced to pay a fine of $10=. The applicant evinced his dissatisfaction with the conviction by appealing to the Commissioner General of Police as provided for in the Police Act [Chapter 11:10].

His appeal was unsuccessful. The Commissioner General upheld his conviction and sentence.

The applicant was not amused by this turn of events and launched the current application for review….,.

As alluded to above, I am dealing with the review of the appeal tribunal presided over by the Commissioner General. It is trite that this court has wide powers of review in terms of sections 26 and 27 of the High Court Act [Chapter 7:06]. Judicial review is not an appeal from a decision but a review of the manner in which the decision was made – Chief Constable of the North Wales Police v Evans [1982] 3 ALL ER 141 (HL)…,.; Fikilini v Attorney General 1990 (1) ZLR 105 (SC)…,. The invitation to this court to upset the determination made by the Commissioner General cannot be accepted if it amounts to requiring the court to sit upon the merits of this determination – Minister of Labour and Social Welfare & Ors v Pen Transport (Pvt) Ltd SC45-89 and National Foods Ltd v Kare & Ors 1990 (1) ZLR 223 (HC)…,.

In casu, the applicant seems to be saying that the single officer's trial determined his guilt on the basis of inadequate evidence (i.e. evidence of a single witness). This is not a ground for review as envisaged by section 27 of the High Court Act [Chapter 7:06]. In section 27 of the High Court Act [Chapter 7:06], the grounds for review are the following –

“a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

b) Interest in the cause, bias, malice, or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

c) Gross irregularity in the proceedings or decision.”

The remedy open to the applicant in this case is by way of appeal, if any, and not review. I find nothing in this matter that fits the above requirements or grounds. On review, it is not enough simply to show that the decision was wrong or unreasonable. Special grounds must exist before a court will enquire into the merits – Minister of Labour and Social Welfare & Ors v Pen Transport (Pvt) Ltd SC45-89…, Makoni v Liquor Licensing Board 1974 (2) RLR 1 and Quintas v Controller of Customs and Excise 1976 (1) RLR 208. I find no grounds in terms of which I can review the decision of the Commissioner General.

Accordingly, I dismiss the application with costs.

The application is one for review.

The applicant was charged with contravening section 3(2) as read with section 3(3) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] in that he remained in occupation of gazetted land without the authority of the State. When the applicant appeared before the magistrate (i.e. the first respondent) he made an application for his case to be referred to the Supreme Court in terms of section 24(2) of the Constitution of Zimbabwe. The Magistrates Court dismissed the application on the ground that it was frivolous and vexatious. 

The dismissal is the source of this application for review….,.

In his opposing affidavit, the second respondent raised two points in limine.

The applicant was employed by the second respondent as a Quality Controller. She was charged, under a Code of Conduct, with neglect of duty in May 2006. Following an internal disciplinary hearing she was found guilty and dismissed from employment. As she was dissatisfied with that outcome she appealed to the Manufacturing Director who dismissed the appeal.

The applicant's further appeal to the Director of Corporate Services did not find favour either and she was advised, in the determination of the Director of Corporate Services dated 22 June 2006, as follows;

“My determination is that the verdict of the original disciplinary hearing to dismiss you is upheld. In line with the Code of Conduct your next level of appeal is at the Labour Court.”

The applicant did not appeal to the Labour Court as advised and in terms of the Code of Conduct.  Instead, she filed an urgent application in this court which was a hybrid of a chamber application and a review application. On 13 July 2006, a provisional order was issued in the applicant's favour, the interim relief of which interdicted the respondents from evicting the applicant from House Number 5 Lourie Road, Burnside, Bulawayo, a company house belonging to the second respondent, which was occupied by the applicant by virtue of her employment. The final relief the applicant sought was to the following effect;

“(1) That the decision of the first respondent dated 7^th June 2006, in terms of which the applicant was dismissed from the second respondent, be and is hereby set aside.

(2) The second respondent be and is hereby ordered to reinstate applicant to her position of Quality Controller without loss of salary or benefits.

(3) The second respondent be and is hereby interdicted and prohibited from evicting the applicant from No.5 Lourie Road, Burnside, Bulawayo or threatening such eviction or in any way interfering with her peaceful occupation and enjoyment thereof pending the determination of the Applicant's application for review and if the applicant be unsuccessful, proper notice to vacate.

(4) The first and second respondents pay the costs of this application on an attorney and client scale jointly and severally the one paying the other to be resolved. (sic)”

The judge who granted the provisional order directed that the applicant should make a separate application for review.

She did not.

In fact, it would appear that the judge's directive was not brought to the applicant's attention. She only made a separate application after I had drawn her attention to the directive.

At the hearing of this application, and with the consent of the respondents, I granted the following order;

“IT IS hereby ordered that:

(1) The late application for review of the 1^st respondent's determination of the 7^th June 2006 be and is hereby condoned and accordingly the applicant be and is hereby given leave to file the application for review out of time.

(2) This court application, and the urgent chamber application under case number HC1564/06, be and are hereby consolidated and all the documents filed of record in HC1564/06, including the founding affidavit, the notice of opposition, and opposing affidavits, and the applicant's answering affidavit and the heads of argument by both parties are hereby incorporated in this application so that it shall not be necessary for either of the parties to file any further documents in support or in opposition of the court application for review.”

The motivating factor in granting the order was to save the applicant's case which would have failed by reason of her failure to comply with the directive to file a separate application for review.

The respondents have raised a two-pronged point in limine, namely, that the applicant has not exhausted domestic remedies and therefore has approached the wrong court and that this being a purely labour dispute, this court does not have jurisdiction as the application should have been made in the Labour Court in terms of the Labour Act [Chapter 28:01].

The grounds upon which this court can review the proceedings, and, indeed, the decision of the magistrate are set out in section 27(1) of the High Court Act [Chapter 7:06] which provides -

“Subject to this Act, and any other law, the grounds on which any proceedings and decision may be brought on review before the High Court shall be-

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.”…,. 

There is also the issue of the decision to grant eviction while referring the dispute over rentals to trial.

It's like the proverbial putting the cart ahead of the horse. Eviction could only be premised upon proof of non-payment of rent. Where the alleged non-payment had not been determined, there could be no eviction.

Counsel for the first respondent sought to rely on the case of Bridges and Hulme (Pvt) Ltd v Magistrate, Bulawayo and Another 1996 (1) ZLR 542 as authority for the argument that the magistrate may have made a wrong conclusion of law but that is not reviewable.

I do not agree with that argument.

Prospects of success on merits

The applicant has no prospects of succees at all and the submissions made on his behalf have not been helpful at all. A bare assertion is made in paragraph 14.1 of the applicant's affidavit wherein the applicant merely states that the decision to expel him “was grossly unreasonable to an extent that no other sober minded tribunal would have reached the same.”

No reference has been alluded to pertaining to a misdirection, irregularities, malice or bias in the record of proceedings hence the applicant's case is bound to crumble down before its inception.

I am inclined to agree with the respondents that what the applicant is seeking is an appeal ostensibly couched as a review. The prayer asked for by the applicant reads:

“a) The decision of the respondents to expel applicant from first respondent's institution be set aside and substituted with an order reinstating the applicant back to his studies at first respondent's institution.”

What is clear from this is that the applicants are attacking the merits of the decision not the manner in which the decision was arrived at. See Zhou v Global Motors and Anor SC67-04; Dandazi v Colliery Co Limited 2001 (2) ZLR 298 (H)…,; Kambuta & Ors v Dunlop Zimbabwe Limited & Anor HB14-04; and Ex parte Miss 1993 (1) ZLR 233 (H).

In light of this lack of bearing as to the requisites for review proceedings, I see no reason to proceed with the other requirements for an application for condonation.

I should mention from the onset that these civil review proceedings are now purely for academic purposes due to the lapse of time between the period the relevant orders were granted and the time the records were forwarded to me. The only reason I have decided to write this review judgement is to give guidance to magistrates who deal with these matters and seem not to appreciate how these matters should be properly handled. In some cases, it would appear that magistrates are not aware of the need to send such matters for review and to do so timeously….,.

It is important, at this point, to highlight the inordinate delay in how these matters were dealt with.

In the case of in re: Enia Sithole, my brother MUSAKWA J raised the query on 21 November 2005. In the cases of in re: Jasper Hutu, Edwin Dube, Trinity Dube, Letwin Dube, Mike Dube and Panashe Giriye John, my sister MAKARAU J…, raised queries on 15 May 2006. In re: Margret Chikombingo it is not clear who raised the query on 19 December 2005. The learned magistrate responded to all the queries under cover of one minute dated 16 August 2006. It is not clear as to when the records were received by the Registrar after the learned magistrate's response. All I can state confidently is that all these records, tied together, were referred to me in December 2013. I am unable therefore to explain the inordinate delay from 2006 to 2013 - a period of 7 years. 

I have also decided to deal with the matter of Enia Sithole despite that that initial query was raised by my brother MUSAKWA J ( I have  brought this to his attention and he believes this is in order). As for my sister, MAKARAU JA, she left the High Court bench in 2010 after her deserved elevation to the highest court of the land.

I have decided to deal with all the mattes at the same time because they were dealt with by the same magistrate at Bindura and the queries raised in each of those matters are also the same….,.

The common thread which runs through all these cases is that they involve juveniles and the learned magistrate who dealt with these matters did not compile or constitute a record of proceedings in each matter. 

This is a misdirection.

In my view, the application is woefully without merit and is replete with procedural irregularities. The applicant cannot seek review by way of urgent application.

Even if he could, the application does not comply with the court Rules relating to review applications. A litigant seeking a review of proceedings of inferior tribunals is required to proceed in terms of Order 33 of the High Court of Zimbabwe Rules, 1971. In terms of Rule 256;

“Save where any law otherwise provides, any proceedings to bring under review the decision or proceedings of any inferior court or of any tribunal, board or officer performing judicial, quasi-judicial or administrative functions, shall be by way of court application directed and delivered by the party seeking to review such decision or proceedings to the Magistrate, presiding officer or chairman of the court, tribunal or board or to the officer, as the case may be, and to all other parties affected.”

Rule 257 requires that the court application should state shortly and clearly the grounds for review and the exact relief prayed for; while Rule 260 provides that the record of proceedings in the inferior court should be submitted to this court.

The applicant, who was legally represented, presented an application for review devoid of grounds for review as required by Rules of this Court.

Order 33 Rule 257 makes it clear that a court application for review shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. The application, on the face of it, is fatally defective as the applicant only alluded to grounds of review in the founding affidavit. Further, the record of proceedings before the single trial officer was not attached. At the hearing, the parties made concessions requesting the court to exercise its discretion and hear the matter on merit. In exercising discretion, the court viewed the larger picture of justice upon entertaining the matter on merit.

The applicant brought the matter for review on the basis that it viewed the decision by the respondent to be not only irrational but outrageous in its defiance of logic.

The background to the matter, as observed from papers, is that the applicant was a constable stationed at ZRP Masvingo Offices. The applicant was discharged from the police force on 22/3/11 after being found to be “unfit to remain in the police force” in terms of section 50(4) of the Police Act [Chapter 11:10].

Allegations which prefixed the charge and finding were that on 16 November 2010, the applicant was on duty manning the charge office. A suspect, one Faith Phiri, who was pregnant, requested to go to the toilet at around 0200hrs. The applicant escorted her, and while the suspect was using the toilet the applicant is alleged to have opened the door and asked for sexual favours. He was denied same and he imposed himself on the said Faith Phiri and raped her. The suspect reported the case to a police officer who took over duty from the applicant. It was against this backdrop that the applicant was charged in terms of paragraph 35 of the Police Act [Chapter 11:10] for acting in an unbecoming manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police force.

The applicant was convicted before a single trial officer and sentenced. He followed the internal channels and his appeal to the Commissioner General of Police was dismissed and further appeal to the Police Service Commission hit a brick wall.

The present application is for review of the Police Service Commission decision.

The Rules, and even the High Court Act, in particular section 27, is the legal basis for such review. Section 27(1)(c) of the High Court Act states that:

“Subject to this Act or any other law, the grounds on which any proceedings or decisions may be brought on review before the High Court shall be -

(a)…,.

(b)…,.

(c) Gross irregularity in proceedings or decision.”

The question to be decided by this court is whether or not the decision by the Police Service Commission was so irrational as to defy logic; or, put differently, whether or not the alleged conduct of the applicant was unbecoming to such an extent that it warranted him being discharged for conduct putting the police force into disrepute.

In casu, it is important to consider what facts were placed before the Police Commission and juxtapose those with the conclusion reached so as to measure whether or not such decision defied logic such that no reasonable person having applied their mind to such facts would come up with the same conclusion. The applicant in the present case is not challenging the manner in which proceedings were conducted but that the decision is irrational as it is not supported by the facts which were presented before the decision maker, that is, the Police Service Commission.

In casu, the facts before the Police Service Commission are that the applicant escorted a female suspect to the toilet and allegedly opened the door before she finished relieving herself and he allegedly raped her. It is these circumstances that led to the applicant being held unfit for the police force. The argument that the criminal matter of rape under the Criminal Law (Codification Reform) Act [Chapter 9:23] had not yet been concluded at the time of the disciplinary hearing has no effect or force on the disciplinary proceedings. There is no bar to disciplinary hearings where criminal charges emanating from the same set of facts are pending. The degree of proof is different for the obvious reason of the distinction between disciplinary hearing and criminal hearing. The applicant, during review, sought to place evidence that the complainant withdrew her statement but this is new evidence which was not placed before the trial officer and equally the appellant authority. The evidence which was not before the trial officer and the appellant authority cannot stand as a basis for imputing that the decision reached was illogical.

What is clear from the papers, and record of proceedings, is that the conclusion that the applicant had acted in an unbecoming manner or manner prejudicial to the good order or discipline or reasonably likely to bring discredit to the police force is well anchored on the evidence adduced on record. It is that record which the appellant authority, the respondent, based its decision on. The applicant's challenge related to the substantive correctness of the decision rather than the procedural irregularities committed during the hearing. The evidence available before the trial officer was that the applicant had escorted to the toilet and raped a pregnant female suspect. The issue of alleged subsequent withdrawal was not before the trial officer and the appellant authority, that is, the respondent. In the absence of evidence to refute such allegations there would have been no basis for the respondent to up-turn the decision of the trial officer and Commissioner of Police. The decision was not completely irrational and divorced from the facts which were before the respondent.

On the issue of irrationality, I sought guidance in the case of Secretary for Education and Science v Tameside Metropolitan Borough Council 1977 AC 1014…, where LORD DENNING cautioned that -

“No one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly have that view.”

In casu, the respondent was faced with evidence of a male police detail having escorted and raped a pregnant female suspect and it agreed with the chain of trial finding that such conduct made the applicant unfit for the police force and hence confirmed the decision. Only the decision of the Police Service Commission is being challenged on review. The respondent's decision was based on facts placed before it and it was not for the respondent to carry out an investigative role in a bid to adduce further evidence. The procedure followed in bringing the matter to the respondent is not challenged but the decision. Given the set of evidence placed before the respondent one cannot say the decision was removed from the facts so as to render it irrationally illogical.

1. Whether or not the application was properly before the court a quo.

Counsel for the appellant argues that section 4 of the Administrative Justice Act [Chapter 10:28] is an embodiment of the common law grounds for review and the respondent should accordingly have brought a review application before the court a quo, in terms of Order 33 of the High Court of Zimbabwe Rules 1971. By essentially bringing proceedings which “in substance” were for review, without complying with the provisions of the law relating to review proceedings, the respondent, contends counsel for the appellant, had employed the wrong procedure. The result was that the application was not properly before the court a quo.

Counsel for the appellant  further challenges what he refers to as the “contradictory” conclusion of the court a quo in that, after concluding that the application was not a review, it went on to justify its interference on the basis of review principles.       

Counsel for the respondent, on the other hand, contends that the application a quo was not one for review and therefore Rule 257 of the High Court Rules did not apply. The application a quo was primarily a constitutional challenge to specific provisions of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27]. In the alternative, the respondent sought leave to sue the appellant. Further, and in any event, a proper case had been made out by the respondent for leave to be granted. Lastly, he contended that at the time the application for leave was filed in the court a quo, the request to the Administrator for the same relief, dated 3 August 2012, had not been adjudicated upon, meaning that there was no decision, nor were there any proceedings, to be reviewed.

In holding that the application before him was not one for review, the judge a quo stated as follows in his judgment;

“Mr Mpofu, for the respondent, protested that a wrong procedure was employed as s 4 of the Administrative Justice Act is an embodiment of the common law grounds for review. For that reason the applicant should have brought a review application in terms of Order 33 of the High Court Rules. I do not agree. Section 4 allows an aggrieved party to seek recourse in this Court. It makes no reference to a review application. I agree with Mr Moyo, for the applicant, that if the legislature desired to provide for a remedy of review in terms of Order 33, it would have specifically said so. It however elected to create a statutory remedy in terms of which a party is entitled to approach this court, by application, where the administrative authority has come short.”

I find little to fault in the reasoning of the court a quo on this point.

As correctly stated, section 4(1) of the Administrative Justice Act [Chapter 10:28] provides that the statutory relief referred to by the judge a quo may be sought by way of an application to the High Court. However, no specific format for such application is prescribed. While a review in terms of the High Court Rules is a special form of application, there is nothing in section 4(1) of the Administrative Justice Act [Chapter 10:28] to suggest that any other form of application for judicial review would in any way offend against that sub-section as long as it meets the requirements of an ordinary court application. I find this position to be fortified by section 26 of the High Court Act [Chapter 7:06] which reads as follows;

“PART V

POWERS OF REVIEW

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.

27 Grounds for review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice, or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.….,.

My understanding of this provision is that the High Court Act contemplates and permits review proceedings that are brought before it in terms of “any other law.” Specifically, judicial review may be done in terms of another statute; for instance, the Administrative Justice Act, as happened in casu. Further to this, and as clearly indicated above in subsections (1) and (2) of section 27 of the High Court Act [Chapter 7:06], grounds for review are not limited to those particularized in that section. Other laws can properly dictate the consideration of, or specify, other grounds on the basis of which proceedings of a lower court or tribunal may properly be reviewed.

Counsel for the appellant also argues that an allegation to the effect that a public official has failed to give reasons, or to make a decision altogether, is a reviewable issue. He has referred the court to a number of decisions to support this contention. (Muchapondwa v Madake and Others 2006 (1) ZLR 196 (H); and S v Mapiye (S) – 214/88). These authorities, in the main, relate to judicial officers who, after hearing argument in matters before them, made and communicated their decisions to the parties, but failed to provide reasons for such decisions. In addressing this oversight, the learned judge in S v Makawa & Another 1991 (1) ZLR 142 (SC)…, stated as follows;

“Although there are indications in this case that the Magistrate may have considered the case, a large portion of those considerations remained stored in his mind instead of being committed to paper. In the circumstances, this amounts to an omission to consider and give reasons. There is gross irregularity in the proceedings…,.  See R v Jokonya 1964 RLR 236…,.”

In casu, it is evident that the appellant, who must have had reasons for not acting on the request made to him by the respondent, chose not to commit them to paper nor communicate them to the latter. The reasons therefore remained “stored” in his mind. Based on the authorities cited, I am satisfied that the failure by the appellant, as an administrative authority, to take action when properly requested to do so, constituted an irregularity which may properly be the subject of judicial review. However, for the reasons stated above, I am not persuaded that the only form of review proceedings in the circumstances of this case, would be those in terms of Order 33 Rule 257 of the High Court Rules.

It should be noted that, in any case, an attempt to satisfy the requirements of Order 33 of the High Court Rules, in particular Rule 259, given the circumstances of this case, might present practical difficulties. The Rule provides as follows;

“259 Time within which proceedings to be instituted

Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred:

Provided that the court may, for good cause shown, extend the time.”…,.

The appellant in casu took no action at all following the respondent's request for leave to sue SMM Holdings (Private) Limited. There was effectively no 'termination' to speak of since, by its nature, the appellant's inaction was a continuing default. The ascertainment of a date from which to reckon the eight (8) weeks stipulated in Rule 259 would thus be problematic.

I find, in any case, that the appellant's conduct is contemplated by section 3(1)(b) of the Administrative Justice Act [Chapter 10:28]…,. His failure to act within a reasonable period, after being requested to do so by the respondent, constituted a ground for review which, albeit, not listed in section 27 of the High Court Act [Chapter 7:06], was, nevertheless, established in terms of “any other law.”

Accordingly, the respondent was within its rights to approach the High Court with an application, in terms of the Administrative Justice Act [Chapter 10:28], for the relief that it had requested from the appellant but did not secure.

While it may well be true, as stated by the court a quo, that in some circumstances a point of law justifies an appeal rather than review, this clearly was not such a circumstance.

It is trite and a matter of elementary law that there can be no review of judicial proceedings without the record of the proceedings which are the subject of review. 

When an irregularity has been committed by an inferior court, a superior court has to decide whether the irregularity resulted in a substantial miscarriage of justice justifying the setting aside of proceedings on review or appeal.  

In Nyahuma v Barclays Bank of Zimbabwe SC67-05 the following statement is said:

In an application for review, in terms of section 26 of the High Court Act [Chapter 7:06], the High Court may only rely on the record of proceedings as the only official record of what occurred in the court a quo. 

The court may not look beyond what is contained in the official transcript and an allegation made by a litigant that the record does not provide an accurate reflection of the proceedings would have to be supported by other evidence, more particularly, the exchanges between the trial magistrate and the accused person as recorded in the court record.

The applicant appeared before a magistrate sitting at Zvishavane on 19 September 2015 facing one Count of unlawful entry, as defined in section 131 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and a further Count of theft in contravention of section 113 of the same Act. The accused and his co-accused, Tapiwanshe Muzvondiwa, pleaded guilty to both Counts and were sentenced to 18 months imprisonment of which 6 months was suspended for 5 years on the usual conditions.

The applicant filed an application for review on 24 September 2015, through his legal counsel, complaining that the trial magistrate failed to properly record the applicant's response, in particular that the applicant had not tendered a guilty of plea as reflected by the record of proceedings. 

The relief sought by the applicant is an order for the quashing of the entire proceedings and an order for the matter to be tried de novo before a different magistrate….,.

It is important to observe that, in its exercise of its review powers, this court is empowered, in terms of section 26 of the High Court Act [Chapter 7:06], to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within and under its jurisdiction.

Section 27 of the High Court Act [Chapter 7:06] provides as follows:

“(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned.

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be.

(c) Gross irregularity in the proceedings or the decision…,.”

Upon a careful perusal of the record of proceedings, I cannot find anything to suggest that there was any irregularity in the manner in which the proceedings were conducted. I must observe that I am confined to the record of proceedings and I am bound by what appears in the record. 

In this application, the applicant seeks a review of the decision of the National University of Science and Technology Student Disciplinary Committee, taken on 30 July 2014, in terms of which he was found guilty of contravening Ordinance 30 of the Rules of Student Conduct and Discipline. 

The results of his examinations were nullified and he was ordered to re-take the examinations after he had allegedly entered the examination hall with a cellphone, a banned gadget, in the examination room.

The decision was initially communicated to him by letter of the Vice Chancellor dated 13 September 2014 which was later amended by one dated 17 November 2014. 

Aggrieved by that decision, the applicant launched a chamber application on 23 February 2015 which is opposed by the respondents on a number of grounds including the misjoinder of the first respondent and the non-joinder of the Vice-Chancellor.

It is, however, the fatal failure to comply with Order 33 of the High Court of Zimbabwe Rules, 1971 which has brought the application to its knees.

In terms of Rule 256, a review application must be made by way of a court application and not by chamber application. That, on its own, does not defeat the application, regard being had to the provisions of Rule 229C which provides that the fact that an applicant has instituted a chamber application when he should have proceeded by way of court application shall not, in itself, be a ground for dismissing the application.

There are, however, other grounds.

In terms of Rule 257, the application for review shall state, shortly and clearly, the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. This application falls foul of that Rule as it does not contain the grounds for review. The application also does not comply with Rule 256 as it is not directed against the Chairman of the tribunal whose proceedings it seeks to impugn.

In addition, the application falls foul of Rule 259, which is of peremptory application; that a review application must be made within eight weeks of the termination of the suit. It was only brought on 23 February 2015, well outside the eight weeks period, and the applicant did not seek and obtain condonation for the late filing. It is trite that condonation must precede the filing. The record of proceedings has not been submitted; in breach of Rule 260(1).

Whichever way one looks at it, there is no competent review application before me. Accordingly, the application is hereby dismissed with costs.

Section 70(5) of the Constitution, in terms of which the applicant has appealed to the High Court, provides:

“Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to –

(a) Have the case reviewed by a higher court; or

(b) Appeal to a higher court against the conviction and sentence.”

The High Court has review jurisdiction over all inferior courts and tribunals in terms of section 26 of the High Court Act [Chapter 7:06].

In HERBSTEIN & VAN WINSEN, Civil Practice of the Supreme Court of South Africa 4ed…, 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.”…,.

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 & 2 Ors HH705-14 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 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 section 34 as read with section 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 section 49 of the Constitution and his right to appeal against conviction and sentence, enshrined in section 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 section 34 of the Police Act does not provide for an appeal against the decision of the Commissioner General. He contrasted section 34 with section 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.

Section 171(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:

“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.”….,.

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 section 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 section 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. …,.

Silence is not equivalent to express ouster. See Rateyiwa v Kambuzuma Housing Co-op & Anor 2007 (1) ZLR 311…,.

It was submitted, on behalf of the respondent, that, in terms of Rule 449, a High Court judge can review the judgment, or order, of another High Court judge of parallel jurisdiction….,.

The question whether a judge can alter the decision of another judge has been discussed in a number of cases.

In Pyramid Motor Corporation (Pvt) Ltd v Zimbabwe Banking Corporation 1984 (2) ZLR 29, the court had this to say:

“When GOLDIN J decided that case he was a judge of the High Court. As a judge of parallel jurisdiction, I think I can only refuse to follow his decision. To make a declaration that he wrongly decided the Rhostar case would, I think, be treading on the prerogative of the Supreme Court.”…,.

This Court is…, faced with the issue of the propriety of the decision of the High Court whereby a judge of that Court reviewed an earlier decision by a judge of the same Court, and, therefore, of parallel jurisdiction, and substituted the earlier order with one that she felt the earlier judge ought to have made for the reason that she disagreed with the earlier Court's decision.

The High Court had no power to so act. It trod on the prerogative of the Supreme Court.

In City of Mutare v Mawoyo 1995 (1) ZLR 258 (HC)…, it was said:

“In Parker v Parker & Ors, supra, SCOTT J was asked to alter an order by SANDURA JP directing that an exception in case HC3196/84 and an application in case HC1108/85, both cases involving the same parties, be heard together on the same occasion. Declining jurisdiction, SCOTT J said at 85B:

'The whole thrust of the reasons advanced by Mr O'Meara seems to point to an assertion that in his view the order was wrongly made. As a judge of the High Court, it is not up to me to vary or alter an order of a judge of parallel jurisdiction short of expanding on it.'

Mr Wernberg's argument was that the court has inherent powers to vary its orders. No authority was cited for this general proposition. Rule 449(1) of the Rules of the High Court of Zimbabwe, 1971 does not cover variations of the orders in the manner suggested by the applicant in this case. The order by BARTLETT J was not erroneously applied for or erroneously granted. The variation applied for does not involve the correction of an error or omission in the order so that it accurately expresses the intention of the court. I am being asked to delete ss 1 and 2 of the original order and substitute in their places the declarations requested by the applicant, without it being said what is to happen to the default judgment on which the order sought to be mutilated now stands. Although called an amendment, what is being applied for is, to all intents and purposes, a complete substitution of the terms and content of one order with those of another order.

Can one set aside an order and substitute in its place a completely different matter without doing violence to the sense and substance of the judgment or the intention of the court that granted the order?

The sense and substance of the original order will be changed…,.”

In view of the fact that the earlier court had already determined that issue, it was no longer open for the court a quo to revisit the same issue as it does not have review powers over a court of equal jurisdiction.

“Judicial review has been defined as 'the principal means by which the High Court exercises supervision over public authorities in accordance with the doctrine of ultra vires.'

The power of the High Court to exercise judicial review is often referred to as its supervisory jurisdiction.”

See Oxford Dictionary of Law, Quick Reference, 8^th ed, by JONATHAN LAW.

Rule 256 of Order 33 makes it imperative, by the use of the word “shall”, for an applicant to “direct” the application to, inter alia, the person whose decision is to be reviewed…,.

The applicant in casu did not cite the arbitrator. This omission is fatal to a review application.

Further, an application for review in casu would also have been hamstrung by being lodged outside the eight (8) week period permitted by the Rules. The application does not comply with the requirements for an application for review in that it does not state, shortly and clearly, the grounds upon which an application for review would be sought in terms of Order 33 of the Rules of the High Court….,.

Order 33 does not set out the grounds upon which a review may be launched. It merely sets out the form an application should take and sets out time limits for bringing such application.

The grounds upon which a review may be brought are set out in the High Court Act [Chapter 7:06], in particular section 27 thereof which reads in relevant part:

“27 Grounds for review

(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

(c) Gross irregularity in the proceedings or the decision.

(2) Nothing in subsection (1) shall affect any other law relating to the review of proceedings or decisions of inferior courts, tribunals or authorities.”

Section 27(1) of the High Court Act [Chapter 7:06] outlines the grounds for review as follows:-

“(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case maybe;

(c) Gross irregularity in the proceedings or the decision.”

The applicant in this case is a Sergeant in the Zimbabwe Republic Police stationed at Entumbane Police Station, Bulawayo. He was charged and convicted by a single officer for contravening paragraph 35 of the Schedule to the Police Act as read with section 34 of the said Act [Chapter 11:10], “acting in an unbecoming or in any manner prejudicial to the good order or discipline or reasonably likely to bring discredit to the police service.”

He was sentenced to pay a nominal fine of US$10=. Aggrieved by that decision he launched an appeal with the Commissioner General of Police in terms of the Police Act [Chapter 11:10]. The appeal was dismissed by the first respondent. The applicant paid the fine but has approached this court seeking a review of the decision by the first respondent.

The order sought by the applicant is couched in the following terms:-

“1. That the conviction which was confirmed by first respondent be and is hereby set aside.

2. That after the setting aside of the conviction, no Board of Inquiry/Suitability may be instituted on the matter.

3. That there are no order as to costs.”

The application is opposed by the respondents who contend that the application is baseless and is devoid of merit. The respondents argue that the applicant has not pointed to any irregularity in the proceedings conducted by the single officer or in the manner in which the appeal was handled by the first respondent.

In review applications, the decision-maker ought to be cited.