The applicants who are, respectively, a constable and a
sergeant in the Police Force were, on 14 August 2014, convicted of contravening
paragraph 34 of the Schedule to the Police Act [Chapter 11:10] (the Act). They
were each sentenced to 12 days detention at Chikurubi Detention Barracks.
The applicants appealed to the Police Commissioner General
against their conviction and sentence. They did not mention the date on which
they filed their appeal. The appeal was, however, filed in terms of section 34
of the Police Act [Chapter 11:10] as read with section 11(1) of the Trials and
Boards Regulations, 1965.
The applicants stated, in the urgent chamber application
which they filed with the court on 24 December 2014 that they could not apply
for review at the time of their conviction and sentence. They said the Police
Act [Chapter 11:10] did not allow them to apply for review of the proceedings
of the trial officer but to appeal, as they did, to the Police Commissioner
General. They submitted that, on 5 December 2014, the first respondent advised
them that the Police Commissioner General had dismissed their appeal. The first
respondent, they said, did not inform them of the reasons for the dismissal of
the appeal.
They stated that the verbal communication which they
received from the first respondent allowed them to apply to this court for condonation
of late filing of review. They attached to their urgent chamber application
Annexures A1 and A2. The annexures constitute the applicants' applications for condonation.
They filed their respective applications on 5 December 2014.
The applicants submitted that, on 22 December 2014, the
first respondent phoned and advised them that he had been directed to detain
them at Chikurubi Detention Barracks where they would serve the 12-days
sentence which the trial officer imposed upon them. They stated that their
apprehension was that they would be detained within the next 48 hours which
were calculated from the moment that the first respondent phoned them if the
court did not intervene to stay the detention. They stated, further, that they
made an effort to appeal to the court against the decision of the Police
Commissioner General. The first respondent, they alleged, refused to accept
their notices of appeal. They, accordingly, prayed, as an interim order, that:
(a) Their detention be stayed pending the return date;
(b) The first respondent be ordered to accept their Notices
of Appeal and forward the same to the Registrar of this court – and
(c) The respondents be ordered to furnish them with the
Police Commissioner General's decision and its reasons within 48 hours which
were, or are, calculated from the date of the order of the court.
It was the applicants' contention that the respondents
would not suffer any prejudice at all if their abovementioned prayer was
granted. They stated that they, on the other hand, would suffer irreparable
harm if they were detained before the application for review and their appeal
against the decision of the Police Commissioner General have been heard and
finalised.
The first and the third respondents opposed the
application. The second respondent did not.
Each of the two respondents who opposed the application
raised a preliminary matter after which he, or she, proceeded to address the
substantive aspects of the application. The first respondent's in limine matter
was that he had nothing to do with the applicants whom he said had erroneously
cited him as a party to their application. He stated that he did not receive
appeal judgments as the applicants had alleged. He said his mandate was to
receive defaulters when they are brought to him for detention. He submitted
that he did not communicate with defaulters before they are brought to his
barracks for detention.
The third respondent's preliminary matter was that the
application was not urgent.
She stated that, because he deserted the Police Service,
and, in the process, placed himself outside her jurisdiction, the first
applicant had not been served with the decision of the Police Commissioner
General. It was her submission that the second applicant was reported to have
been sick and was in hospital during the period 20-26 December 2014. She stated
that, because of the mentioned report which she had received, the second
applicant was also not served with the judgment of the Police Commissioner
General. She said the person whom the applicants cited as the second respondent
was non-existent in the police force or at Murehwa District Headquarters.
The respondents attached to their opposing papers Annexures
1A and 2A. The first annexure is a radio signal which pertained to the first
applicant's alleged desertion from the police service. The signal which is
date-stamped 24 December 2014 has some type-written contents which are so faint
in form as to be completely illegible. The second annexure is the judgment of
the Police Commissioner General to whom the applicants filed their appeal
against their conviction and sentence. He delivered his judgment on 8 December
2014. He, in the judgment, dismissed the applicants' appeal and ordered that
the latter should “start to serve their sentences immediately.”…,.
It is the order of the Police Commissioner General which
persuaded the applicants to file their application with the court on an urgent
basis. The order, albeit not communicated to them formally and in written form
but verbally, instilled in the applicants fear that they would be detained and
compelled to serve their sentence before their application for review of the
proceedings of the trial officer had been heard and conclusively dealt with.
They were, therefore, acting within the law when they applied,
as they did, for the matter to be heard on the basis of urgency.
The third respondent stated, correctly so, that the
applicants' application for review was out of time and was, therefore, not
compliant with the Rules of Court. The applicants acknowledged the fact that
their application for review was out of time. They, however, took the procedure
which the law allows them to have taken. They did not file their review papers
with the court. They applied for condonation of late filing of review. They gave
reasons for the delay which occasioned their application for review. They
stated that they could not apply for review at the time that they were
convicted as the Police Act, under which they fall, only allowed them, as a
first step, to appeal to the Police Commissioner General against the trial
officer's proceedings. It was their testimony that, when the first respondent
advised them, on 5 December 2014, that their appeal had been turned down, they
seized the opportunity to apply for condonation. They remained hopeful that
their application in the mentioned regard would succeed after which they would
apply that the proceedings of the trial officer be reviewed by the court.
The Police Commissioner General handed his judgment in
respect of the applicants' appeal on 8 December 2014. On 22 December 2014, the
first respondent allegedly advised the applicants, through the phone, that he
had been directed to detain them at Chikurubi Detention Barracks so that they
would commence to serve their sentence. The first respondent denied ever making
the mentioned communication to the applicants. However manner the applicants
received the message which pertained to their detention, the fact still
remaining. The fact was that the issue of the detention was communicated to the
applicants on 22 December 2014. They filed their application with the court
some two days after the message had been conveyed to them. Their conduct in the
observed regard is definitely consistent with persons who had a real, as
opposed to a fanciful, apprehension.
The court is satisfied that their matter was not only
urgent but also that they treated the same with the urgency which it deserved.
Other than stating that the first applicant was a deserter
and the second applicant was in hospital from 20-26 December 2014, the
respondents' opposing papers did not contain anything of substance which worked
to the detriment of the applicants.
The court remained of the view that the applicants were
persons who were crying out to mother justice to come to their protection. They
stated, correctly so, that an injustice would be visited upon them if the court
did not intervene in respect of what was about to occur to them. They insisted
that justice be allowed to take its course before anything untoward was allowed
to happen to them. They stated,
correctly so, that the respondents would not suffer any harm if they are
allowed to move towards the attainment of justice in respect of their
application for review of the trial officer's proceedings.
It is trite that any party who is not satisfied with the
decision of the lower court has a right to either appeal against the same or to
apply to a superior court and have the proceedings reviewed. The law, as
prescribed in the Constitution of the country, the statutes and case law
authorities provides for that. A party is, in short, permitted to exhaust all
remedies which are available to him before anything with which he is not
satisfied is enforced upon him and against his will.
It is on the basis of the abovementioned well known and
established legal principle as read with the respondents' opposing papers that
the court is persuaded to lean in favour of the applicants. The court's sworn
duty is to dispense justice and not injustice. Counsel for the respondents agreed,
correctly so, with the court on the stated matter during the time that he was
addressing the court.
The court is satisfied that the applicants
established their case on a balance of probabilities. The application,
accordingly, succeeds with costs.
