Counsel
for the respondent, in submitting that the case was not urgent, gave
details on how the impounding took place on 12 January 2015 and the
applicant filed this application on 28 January 2015 - two weeks after
the impounding. He submitted that the applicant did not himself treat
his case with urgency….,.
Counsel
for the applicant,
relying on paragraph 8 of the applicant's founding affidavit,
submitted that the case was urgent because the applicant's
livelihood depends on the use of that motor vehicle as a commuter
omnibus and that he has no means from which he can pay for the
release of his motor vehicle.
The
respondent's view, that the allegation of the involvement of a
bogus police officer is a ploy to found urgency is supported by Dr
Tendai Mahachi, who deposed the respondent's opposing affidavit,
where he said the motor vehicle was impounded by constable Moyo. He
further said that the allegation of the involvement of bogus police
officers is a ploy by the applicant to avoid paying for his offence
through the use of police officers who have been issuing many letters
to that effect some of which he attached to his opposing affidavit,
when their records reveal that those motor vehicles will have been
impounded by genuine identifiable police officers. Dr Mahachi…,
pointed out that the applicant has alternative remedies which he
should pursue. He said:
“The
vehicle which was impounded on 12 January 2015 would have been
released by now if the applicant had approached the respondent with
all the relevant papers relating to the vehicle. He probably would
have been made to pay the fines for the traffic offences and he
wouldn't be talking about losing his source of livelihood.”
The
existence of an alternative remedy is demonstrated by the applicant's
own attachment to his answering affidavit, the State Outline which,
in paragraph 3, says;
“Circumstances
are that on the 19th
of January 2015, and at Harare Central Stores, the complainant was at
Harare Central Stores intending
to pay a fine for his commuter omnibus which had been impounded at
Harare Central Stores on the 12th
January 2015.”
This
statement suggests, as is confirmed in the State Outline, that the
applicant then saw Epah Muguti being arrested for impersonation in
respect of another motor vehicle after which he claimed that he was
the bogus officer who had caused the impounding of his motor vehicle.
He then abandoned what he had gone to Central Stores to do and sought
to get his motor vehicle released through the alleged impersonation
with the assistance of police officers the respondent says are
notorious for seeking the release of motor vehicles through
allegations of impersonation of police officers.
The
issue, at this stage, is whether or not the applicant has alternative
remedies.
The
answer is he has and he is aware of it as demonstrated by the State
Outline. He in fact previously attempted to pay for the release of
his motor vehicle but abandoned it for the cheaper option, according
to his own founding affidavit, where he complains about what he has
to pay for the motor vehicle to be released. The State Outline also
establishes that the applicant's alleged penury is merely being
used to fain inability to pay the fines when he in fact previously
went to Central Stores to pay fines for his impounded vehicle.
The
urgent chamber application procedure is intended to serve litigants
whose cases deserve to jump the queue of cases awaiting determination
by judges. The jumping of the queue must be justified. Precedents on
urgency clearly state that only cases which cannot wait should be
allowed to jump the queue. A case cannot wait if the day of reckoning
is about to arrive and there is no other way to avoid the impending
harm.
In
this case, I am satisfied that the applicant has alternative remedies
through which he can get the release of his motor vehicle. He can
therefore not be allowed to jump the queue. His case is not urgent.
In
the result, I make the following orders;
1.
The applicant's application is removed from the roll.
2.
If the applicant intends to pursue this application he must, in view
of his having filed his answering affidavit, set it down for hearing
on the opposed roll within 30 days of the granting of this order.
3.
The applicant shall pay the respondent's costs.
