This
is an urgent application wherein the four applicants seek an
interdict stopping the Commissioner General of the Police from
transferring them from Beitbridge Police station prior to their
Constitutional application which they filed with this court having
been determined.
The
facts of the matters are that the applicants, who were stationed at
Beitbridge Police Station, were now being transferred to other
districts and they alleged that they had launched a Constitutional
application to challenge their transfer on the basis that they had a
legitimate expectation to continue working at the same police station
as three of the applicants had been moved there before in order to
join their families. The fourth applicant has also worked at
Beitbridge Police station and was not given any reasons for the
transfer. They alleged that section 68 of the Constitution of
Zimbabwe mandated the first respondent to give them reasons for the
transfer decision as it affected their interests.
They
also alleged that in terms of the Police Standing Orders Vol. 2, all
officers were entitled to remain at one police station, without being
transferred, for a minimum period of five years. No clause in the
Police Standing Orders was cited with precision; neither were same
annexed to the application. On perusal of the application, I noted
that the transfer being complained of involved not only the four
police officers but thirty-six police officers were being moved to
different police stations.
The
requirements for a temporary interdict are as follows:
1.
A
prima facie
right.
2.
A well-grounded fear of irreparable harm.
3.
The absence of any other remedy.
4.
The balance of convenience favours the applicant. Refer to the case
of ZESA
Staff Pension Fund v Mushambadzi
SC57-02.
On
the first requirement, whether the applicants' papers established a
right, which although open to some doubt, was present. I noted the
following:
That
in terms of section 219-221 of the Constitution of Zimbabwe, the
Police Service Commission and the Commissioner General of the
Zimbabwe Republic Police are mandated with the administration of the
Police Service. The Police Service is an organization that has
resources, including human resources, that are administered by the
Commissioner General of Police under the auspices of the Police
Service Commission. In administering such resources, they have a duty
to distribute resources within the Police Service, this includes
human resources, such that they benefit the whole nation at large. It
therefore follows that, in exercising their Constitutional mandate,
they will move human resources around the country.
In
the case Guruva
v Traffic Safety Council of Zimbabwe
SC30-08, it was held that:
“It
must be accepted that the right to transfer an employee from one
place to another is the prerogative of the employer. It is the
employer who knows better where the services of an employee are
required. The employer's discretion, in determining which employee
should be transferred and to which point of the employer's
operations, is not to be readily interfered with except for good
cause shown.”
Good
cause in that case was given as, inter
alia,
unfounded
allegations, victimization of the employee and any action taken to
disadvantage the employee.
Of
course, in Gurava
v Traffic Safety Council of Zimbabwe
SC30-08 reasons had been given for the transfer but the applicant had
made representations against the transfer, nonetheless, the employer
still insisted on the transfer after considering the employee's
representations.
The
Supreme Court, in that case, however, went on to hold that:
“Even
if the reasons had not been given in the first correspondence to him,
the reasons would still be valid as long as they were genuine.”
In
Guruva
v Traffic Safety Council of Zimbabwe
SC30-08, the Supreme Court went on to state that:
“The
employee who undertakes to work for an employer whose business is
carried out at different places takes the risk of being sent to
perform services of the employer wherever such services are required
unless the employment contract stipulated that he is to be employed
and remain at a specific place only.”
In
Guruva
v Traffic Safety Council of Zimbabwe
SC30-08, the court also quoted the case of Taylor
v Ministry of Higher Education and Another
1996
(2) ZLR 772 (SC) where in the Appeal Court had held that in some
cases an employer can still transfer an employee without giving him
or her a hearing, depending on the circumstances of the case, and
that it would be unworkable if every employee were to be consulted
before a transfer decision is made.
By
its very nature, the police service has a national duty to maintain
law and public order and public safety and is an essential service,
in my view, wherein the administrative actions of the Commissioner
General, in distributing human resources, should not be interfered
with except for good cause having been shown. It cannot be good cause
that the applicants' just want to remain at one station with their
families and that they have not been given reasons and yet they also
have not sought to assert their rights by demanding them.
This
takes us to section 68(2) of the Constitution which stipulates thus;
“Any
person whose right, freedom, interest or legitimate expectation has
been adversely affected by administrative conduct has the right to be
given, promptly, and in writing, the reason for the conduct.”
The
four applicants allege that no reasons were given for their transfer
hence the unlawfulness of the administrative action in contravention
of section 68 of the Constitution.
It
is my considered view that section 68 gives a person a right to
prompt, and written, reasons for any administrative action taken. It
therefore follows, in my view, that where administrative action is
taken, and a party is adversely affected by it, he has a right to
request for and be promptly supplied with written reasons. I do not
hold the view that an affected party should sit back, and not ask for
reasons, only to say the decision is unfair as no reasons were
provided. Section 68 of the Constitution of Zimbabwe simply endorsed,
and incorporated into the Supreme law of the land, the provisions of
the Administrative Justice Act [Chapter 10:28].
In
my view, the Administrative Justice Act is an act of Parliament that
compliments the provisions of section 68 of the Constitution. It
actually provides, in its preamble, as follows:
“To
provide for the right to administrative action and decisions that are
lawful, reasonable and procedurally fair; to provide for the
entitlement to written reasons for administrative action or
decisions…,.”
Section
3(1)(b) of
the Administrative Justice Act [Chapter 10:28]
provides thus:
“An
administrative authority which has the responsibility or power to
take any administrative action which may affect the rights, interests
or legitimate expectations of any person shall…, -
(b)
Where it has taken the action, supply written reasons therefore
within the relevant period specified by law, or if there is no such
specified period after being requested to supply reasons by the
person concerned.”
I
accordingly formulated the opinion that, firstly, the applicants had
not shown a prima
facie
right
against being transferred, and, secondly, that they had not shown
that their Constitutional challenge to the transfer had prospects of
success as they had not requested for written reasons.
We
then look at whether the applicants would suffer irreparable harm if
the interdict is not granted.
Irreparable
harm is a legal concept which refers to that type of harm which
cannot be corrected through compensation or whose conditions cannot
be put back where they were.
I
hold the view that the applicants have not shown that they will
suffer irreparable harm if the interdict they seek has not been
granted for the simple reason that the applicants are employed in the
Police Service, they can request for written reasons for their
transfer, challenge them if they so wish - but from their respective
areas of posting as per the transfer memorandum. If they successfully
challenge their transfers, in accordance with the law, they will then
revert back to their original stations.
Where
is the irreparable harm?
The
harm that they fear can be reversed if they are successful so it
cannot be held to be irreparable. Refer to the case of Sekwele
v Ministry of Communications and Another
ZALC J HB 165/13, a judgment of the Labour Court of South Africa,
wherein the applicant sought an interdict to stop a transfer pending
challenges to same. The court therein held the view that no
irreparable harm can be suffered in a transfer as the applicant
therein could challenge it and that it could not be held that the
applicant challenging a transfer in another fora can be held not to
have an alternative remedy.
I
hold the same view.
It
is therefore for these reasons that I declined to exercise my
discretion, in terms of Rule 246(2), as I formulated the opinion that
the applicants had not made any case for the relief sought.
I
accordingly declined the provisional order for the afore-stated
reasons.
