This
is one of several urgent applications being brought to this court at
an alarming rate by junior police officers who generally appear to be
having serious disciplinary problems at their stations, and who, at
the stroke of a finger, will now rush to this court with incoherent
applications seeking one relief or the other against their superiors.
While
it is a Constitutional imperative for every citizen to approach the
courts protesting their rights, it has not escaped notice that police
officers are now using the precincts of this court as their favourite
playing ground - a clear abuse by any description.
The
applicant is a police constable based at Mangwe Police base.
While
deployed at another rural police base, known as Sikhathini, by the
officer-in-charge of Plumtree Police Station, he was investigated by
Inspector Moyo for a number of infractions including being absent
from his base and using an unregistered Toyota Granvia motor vehicle
for pirating. A team of officers, led by Inspector Moyo, caught up
with the applicant on 4 February 2016 at Tegu Bridge, near Sikhathini
Clinic, while he was driving the offensive vehicle carrying two
passengers.
The
police officers recorded statements from passengers and interrogated
the applicant. After they left, the applicant proceeded to file a
report alleging that the good police inspector had stolen his
cellphone and a dollar which was underneath it. Later, at the police
station, he personally entered the report of the stolen cellphone in
the Initial Report Book. It is not clear who later generated
CR99/2/16 in respect of that matter, but the applicant appeared to be
the complainant and investigating officer at the same time.
Whatever
the case, the report did not find favour with the police and no
prosecution came out of it. What did happen though is that the
applicant was charged with contravening paragraph 38 of the Schedule
to the Police Act [Chapter 11:10] as read with section 29 of the Act
for making a frivolous or vexatious complaint. He was found guilty,
and, on 3 March 2016, he was sentenced to seven days detention.
The
applicant has appealed against both conviction and sentence. He has
also approached this court, in HC708/16, by court application seeking
review of those proceedings. Both the appeal and the review
application are yet to be determined. That has not stopped the
applicant filing this urgent application seeking the following
relief:
“A.
TERMS
OF THE FINAL ORDER SOUGHT
That
the provisional order granted by this Honourable Court be confirmed
in the following manner:
1.
That the respondents stop interfering with witnesses until both the
review application on HC708/16 and the docket on CR99/2/16 are
finalized.
2.
That the keep on visiting (sic)
by the team sent by the respondents to force State witnesses to
change statements in order to protect a suspect be declared unlawful.
3.
That the respondents not give any order for the State witnesses to be
picked from their homes to any unknown place until the matters on
review and on CR 99/2/16 are finalised.
4.
That there be no order as to costs.
INTERIM
RELIEF GRANTED
The
respondents be and are hereby interdicted from interfering with
witnesses and the taking of the applicant to any detention barracks
until matters on HC708/16 and CR99/2/16 are finalized in accordance
with the law.”
The
applicant's founding affidavit is significant more by what it does
not say than what it says.
It
does not say what it is that motivated him to come to this court on
an urgent basis seeking the relief that he seeks. He does not allege
that there has been a threat to detain him notwithstanding the appeal
that he has noted. He only talks of the difficulties he initially
experienced in lodging an appeal as he was taunted by the respondents
on its lack of merit. The applicant alleges that his witnesses in the
theft of a cellphone case were interrogated by officers, which he
refused to name, only mentioning the name of Seargent Joe Makura as
being one of the officers who were asking the witnesses to change
their statements. It is not clear why the police would do that when
his report was investigated and found to be false. It was allegedly
submitted to District Headquarters for closing on 29 February 2016.
Counsel
for the respondents submitted that the matter is not urgent at all
because the appeal that the applicant filed is being processed and
there has been no threat of executing the penalty suspended by the
appeal. He acknowledged that the applicant has also made a review
application to this court meaning that nothing will be done to him
until the matters have been determined. On the question of protecting
witnesses, counsel for the respondents submitted that the applicant
will be given the outcome of the report in writing.
It
is not clear why the applicant has chosen to come to this court on an
urgent basis when there is nothing urgent about the relief that he
seeks.
He
has completely misunderstood the basis of urgent relief.
Urgent
applications are those where, if the court fails to act, the
applicants may be entitled to say to the court that it should not
bother to act at a later stage because their position would have
become irreversible and to their prejudice. See Document
Support Centre (Pvt) Ltd v Mapuvire
2006 (1) ZLR 232 (H) 243…,.; Triple
C Pigs and Another v Commissioner General, Zimbabwe Revenue Authority
2007 (1) ZLR 27 (H)…,.
It
is sometimes said that a matter is urgent if, when the need to act
arises, the matter cannot wait. See Telecel
Zimbabwe (Pvt) Ltd v Potraz and Others
HH446-15.
That
test for urgency pre-supposes the existence of a need to act, not
fanciful excuses to drag superiors to court on flimsy grounds not
making a case for the relief that is sought. In my view, this
application does not pass the test for urgency because there was no
need whatsoever to act on the part of the applicant.
He
wants to interdict his detention in execution of the penalty imposed
by a single officer. There is no attempt whatsoever to detain him. He
would also like to interdict the interrogation of witnesses in his
dead case of theft of a cellphone, a case which was closed on 29
February 2016 - even before he was charged and convicted aforesaid.
It has not been shown to my satisfaction that indeed the police are
guilty of such conduct as doing that would be superfluous indeed.
I
am not satisfied that this application deserves to jump the queue. In
the result, it is ordered that:
1.
The hearing of this application as urgent is hereby refused.
2.
The applicant shall bear the costs of the application.
