This
matter came before me via the Urgent Chamber Book on 21 May 2015.
I
instructed my assistant to set the matter down for hearing on 22 May
2015, at 12:30pm. At the allotted hour, I was advised that counsel
for the applicant was in court before my sister Judge NDEWERE. We
waited for him ...
This
matter came before me via the Urgent Chamber Book on 21 May 2015.
I
instructed my assistant to set the matter down for hearing on 22 May
2015, at 12:30pm. At the allotted hour, I was advised that counsel
for the applicant was in court before my sister Judge NDEWERE. We
waited for him to appear - in vain. The matter was postponed further
and finally heard on 26 May 2015. The applicant is employed by the
Zimbabwe Republic Police, which is administered by the third
respondent. She is currently stationed at Mamina police station. The
relief that the applicant is seeking is an order barring the
respondents from detaining her until the return date. On the return
date, the applicant wants the court to make an order that the
respondents be barred from detaining her until the finalization of
the cases SC240/15, SC471/14 and HC816/14.
The
background to this matter is that, on 12 February 2014, the applicant
appeared before a Single Officer of the Zimbabwe Republic Police and
was charged with contravening paragraph 27 of the schedule to the
Police
Act [Chapter 10:11],
as
read with section 29 and section 34 of the same Act. She pleaded not
guilty, and, after the State case, made an application for discharge
as provided for by section198(3) of the Criminal
Procedure and Evidence Act [Chapter 9:07].
The application for discharge was dismissed and no reasons for the
dismissal were given by the trial officer. The trial officer merely
stated that the State had managed to prove the essential elements of
the offence beyond a reasonable doubt.
The
applicant made an application for review of this alleged procedural
irregularity, under case number HC2101/14. She then filed an urgent
chamber application seeking an order to stay the trial proceedings
pending the finalization of the application for review.
The
urgent chamber application for stay of the trial proceedings was
placed before MWAYERA J, who dismissed it on the basis that the
application for review lacked merit. The applicant contends that the
application for review was not properly before MWAYERA J, and that
she did not have sight of the record of proceedings of the
application for review when she dismissed the application. The
applicant noted an appeal against the dismissal of the urgent chamber
application for stay of the trial proceedings; her appeal was filed
of record under case number SC471/14. She maintains that she made a
tender and gave an undertaking to pay for the costs of the
preparation of the record for appeal. When her legal practitioners
were asked to pay the costs of preparation of the record by the
Registrar of the High Court, on 11 February 2015, she as on leave and
had gone to her rural home and had been transferred to Mamina police
station.
The
applicant's counsel of record…, deposed to a supporting affidavit
in which he confirmed that he tried to contact the applicant in
February when he received the letter from the Registrar of the High
Court to pay for the cost of preparation of the record of
proceedings. He stated that the applicant could not be reached on her
mobile phone. She was no longer residing at her last known address,
and had been transferred to Mamina police station. The urgent chamber
application which was placed before me was premised on the averment
that the applicant had been advised by the first respondent that she
would be detained forthwith, at Chikurubi Detention Barracks, which
are manned by the second respondent. The applicant's contention was
that the proposed detention would cause irreparable harm and
prejudice to her because she had mounted a challenge to her
conviction and sentence by the respondents to the Supreme Court under
case number SC471/15. It was contended that the respondents would not
suffer any prejudice if they stayed the applicant's proposed
detention. The applicant deposed to the founding affidavit in which
she stated that on 10 May 2015 the first respondent had advised her,
in a telecom, to report to him for purposes of being detained by the
third respondent on 11 May 2015. The basis of this proposed course of
action was the dismissal of the appeal filed by the applicant under
case number SC471/14. Annexure 'A' is a letter dated 11 February
2015, addressed to the applicant's legal practitioner's by the
Registrar of the High Court, in which the applicant is advised to pay
the sum of USD$280= within five days. That sum is the cost of
preparing the appeal record.
The
applicant contends that this letter was written in error, and, for
that reason, she filed an application for reinstatement of her
appeal, on 24 April 2015, which appeal is currently pending before
the Supreme Court.
According
to the chamber application for reinstatement of appeal, which was
filed in terms of Rule 15(8b) of the Supreme
Court Rules 1976, as amended,
the
applicant contends, in the founding affidavit, that she never failed
to pay for the costs of the preparation of the record as alleged or
at all. The applicant contends that she did not fall foul of Rule
34(1) of the Supreme Court Rules, that is, failure to pay the cost of
the preparation of the record of appeal within the stipulated time
period. She applies for the reinstatement of the appeal in terms of
Rule 12 as read with Rule 15(8b) of the Supreme Court Rules.
A
note of opposition was filed on behalf of the respondents on 15 May
2015. The opposing affidavit was deposed to by the third respondent
who took a point in
limine
that this matter did not meet the requirements of urgency. The basis
for this view was the averment that the application for reinstatement
of the appeal against the ruling made by MWAYERA J was now academic.
The applicant had been placed on her defence. The trial had proceeded
and been concluded. The applicant had no legal basis to apply to stay
the trial proceedings when they had already been concluded. The
applicant had been convicted, and sentenced. It was contended that
the application before me had fundamental material flaws.
The
judgment in the disciplinary appeal to the third respondent was
attached to the respondents' opposing papers. The judgment shows
that the applicant was charged with contravening paragraph 27 of the
Schedule to the Police Act, as read with sections 29 and 34 of the
Police Act, i.e;
“Soliciting
or accepting any bribe or soliciting any present, reward or
consideration whatsoever in connection with his position or duties as
a member or accepting such a present, reward or consideration without
the authority of the Commissioner General of police.”
And
contravening paragraph 11 of the Schedule to the Police Act, as read
with sections 29 and 34 of the Police Act, i.e ;
“Without
good and sufficient cause, disobey or refuse or omit or neglect to
carry out any lawful order, written or otherwise.”
It
was alleged that on 29 April 2012, the applicant had solicited a
bribe of USD$20= from one Peter Bhona, an accused who had been
arrested for flouting the Road Traffic Act [Chapter 13:11].
She
was seen and arrested by Assistant Commissioner Murwira. On the
second account, the applicant was alleged to have failed to comply
with the contents of radio communication DM507-12, dated 2 April
2012, regarding the conducting of road blocks by police officers. The
State had led the evidence of eight witnesses to prove its case. The
appeal against conviction was dismissed on the basis that the grounds
of appeal on both counts were 'spurious'. Her appeal against
sentence was dismissed on the basis that the sentences imposed were
not 'manifestly excessive'. The trial officer relied on the dicta
set out in the case of S v Mugodi HB74-02
that the appellant's actions involved 'a flagrant breach of
trust' and that '…, a serious view must be taken of corruption
by policemen, or, for that matter, any public official.'
The
first issue that falls for consideration, naturally, is whether the
requirements of urgency have been established in this matter. The
test for urgency is settled. It has been held that:
“Applications
are frequently made for urgent relief. What constitutes urgency is
not only the imminent arrival of the day of reckoning; a matter is
urgent if, at the time the need to act arises, the matter cannot
wait. Urgency which stems from a deliberate or careless abstention
from action until the deadline draws near is not the type of urgency
contemplated by the rules.”
See
Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.
It
has also been held that:
“For
a court to deal with a matter on an urgent basis, it must be
satisfied of a number of important aspects. The court has laid down
guidelines to be followed. If, by its nature, the circumstances are
such that the matter cannot wait in the sense that if not dealt with
immediately irreparable prejudice will result, the court can be
inclined to deal with it on an urgent basis. Further, it must be
clear that the applicant did, on his own part, treat the matter as
urgent. In other words, if the applicant does not act immediately and
waits for doomsday to arrive, and does not give a reasonable
explanation for that delay in taking action, he cannot expect to
convince the court that the matter is indeed one that warrants to be
dealt with on an urgent basis…,.”
See
Mathias Madzivanzira & Ors v Dexprint Investments (Private)
Limited & Anor HH145-02 and Church of the Province of Central
Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H)
and Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; Lucas
Mafu & Ors v Solusi University HB53-07.
In
my view, which I previously expressed in the case of Finwood
Investments (Private) Limited & Anor v Tetrad Investment Bank
Limited & Anor (an
unreported HH-2014 case. See also Denenga v Ecobank HH177-14),
that, in order for a matter to be deemed urgent, the following
criteria, which have been established in terms of case law, must be
met:
“A
matter will be deemed urgent if:
(i)
The matter cannot wait at the time when the need to act arises.
(ii)
Irreparable prejudice will result if the matter is not dealt with
straight away without delay.
(iii)
There
is
prima
facie
evidence that the applicant treated the matter as urgent.
(iv)
The
applicant
gives a sensible, rational and realistic explanation for any delay in
taking action.
(v)
There is no satisfactory alternative remedy.”
It
is my view that the need to act arose at the time when the applicant
was advised that she should report to the third defendant for
detention. She filed her application for reinstatement of the appeal
shortly thereafter and brought these proceedings, which are currently
before me, a few days after that notification.
The
applicant acted when the need to act arose.
Clearly,
if the applicant is detained and she serves her sentence of seven
days imprisonment, that will constitute irreparable prejudice to
whatever rights she may have in the appeal process. This court must
deal with the matter straight away - without delay. The record is
replete with prima
facie
evidence that the applicant treated this matter as urgent when she
was advised to report for detention at Chikurubi Barracks.
This
court finds that there was no delay in taking action.
The
last requirement of urgency gave the court pause. Does the applicant
have a satisfactory alternative remedy?
The
answer to this question is intertwined with a consideration of the
merits of the matter and a resolution of the question whether the
applicant is entitled to an interdict against the respondents in the
circumstances of this case.
The
requirements of an interdict are;
In
order to obtain a final mandatory interdict (a mandamus),
the
applicant must show the following requirements;
(i)
A clear or definitive right - this is a matter of substantive law.
(ii)
An injury actually committed or reasonably apprehended - an
infringement of the right established and resultant prejudice.
(iii)
The
absence of similar protection by any other ordinary remedy - the
alternative remedy must
be adequate in the circumstances; be ordinary and reasonable; be a
legal remedy; grant similar protection.
See
Tribac (Pvt) Ltd v Tobbacco Marketing Board
1996
(2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo1914 AD 221…,.; Flame
Lily Investment Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd &
Anor 1980 ZLR 378; Boadi v Boadi & Anor 1992 (2) ZLR 22;
Diepsloot
Residents' and Landowners' Association & Anor v
Administrator, Transvaal 1994 (3) SA 336 (A)…,.
In
the matter under consideration, both the interim relief and the final
relief are aimed at barring the respondents from detaining the
applicant pending determination of the application for reinstatement
of the appeal against the dismissal of the application of the stay of
the trial proceedings pending the application for review before the
High Court. The court must decide whether the appeal that is sought
to be reinstated by the applicant before the Supreme Court has
prospects of success. If it has prospects of success, then the
applicant may be found to have established, at the interim stage,
prima facie evidence of a clear right. The applicant's right to
have an appeal, which has merit, to be determined will then be
infringed with resultant prejudice to the applicant if the relief
that she seeks is not granted. Finally, there must be no alternative
remedy which is adequate in the circumstances, a legal remedy, and
which is capable of granting similar protection.
The
prospects of success of the appeal being sought to be reinstated can
be assessed by considering what the law says about the review of
unterminated legal proceedings. This multiplicity of litigation was
born when the applicant applied for review of the Trial Officer's
refusal to discharge the State's case and to put her to her
defence. It is trite that this court will only exercise its review
powers of un-terminated proceedings in exceptional cases. See S v
Rose HH71-12.
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.”
The
power of a superior court to review the proceedings of an inferior
court covers various stages in a criminal proceeding before an
inferior court. The stages are prior to conviction, after conviction
but before sentence, and after sentence has been passed by an
inferior court.
The
first question that arises is whether the decision to refuse to
discharge the applicant at the close of the State case of the Single
officer is valid.
The
second question is whether the applicant was correct to bring that
decision to the High Court on review.
Part
IV of the High Court of Zimbabwe Act [Chapter
7:06]
enumerates the High Court's statutory powers of review. Section 26
provides that, subject to the provisions of the Act and any other
law, the High Court has review powers over all proceedings and
decisions of all inferior courts of justice, tribunals and
administrative authorities. Section 27(1) provides that subject to
the provisions of that Act and any law, the grounds of review are;
(i)
Absence of jurisdiction;
(ii)
Bias; and
(iii)
Gross irregularity in the proceedings or decision.
Section
27(2) provides that nothing in that particular section shall affect
the provisions of any other law relating to review of inferior
courts, tribunals or authorities. Section 29(1)(b) provides that for
purposes of reviewing any criminal proceedings, the High Court may
hear any evidence in connection with the proceedings. Section 29(2)
states that if, on review of any criminal proceedings, the High Court
considers that the proceedings are not in accordance with real and
substantial justice, it has the power to do various things, including
the power to alter and quash the conviction or to set aside or
correct the proceedings or "generally give such judgment or make
such order as the inferior court or tribunal ought, in terms of any
law, to have given, imposed or made on any matter which was before it
in the proceedings in question." Section 29(3) specifically
provides that no conviction or sentence shall be quashed or set aside
in terms of section 29 by reason of any irregularity or defect on the
record of proceedings unless the High Court considers that a
substantial miscarriage of justice has actually occurred.
It
is clear from the foregoing that the statutory powers of review under
the High Court Act can be exercised at any stage of criminal
proceedings before an inferior court.
Further,
the authorities indicate that this court has an inherent power of
review. In Rascher
v Minister of Justice
1930
TPD
810…,
KRAUSE J said:
“….,
a wrong decision of a magistrate in circumstances which would
seriously prejudice the rights of a litigant would justify the Court,
at any time during the course of the proceedings, in interfering by
way of review…,.
The
above principles were laid down in a civil case, and they would apply
with greater force where the proceedings are of a criminal nature and
a miscarriage of justice might result in the circumstances from a
wrong decision of the magistrate or where the rights of an accused
person are seriously affected thereby.”
In
Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357…,
GARDINER JP observed:
“Now,
as a rule, the Court's power of review is exercised, only after
termination of the criminal case, but I am not prepared to say that
the Court would not exercise that power…, before a termination of a
case, if there were gross irregularity in the proceedings.”
See
Wahlhaus
v Additional Magistrate, Johannesburg & Anor
1959
(3) SA 113 (A).
This,
however, is a power which is to be sparingly exercised. It is
impracticable to attempt any precise definition of the ambit of this
power; for each case must depend upon its own
circumstances. The learned authors of GARDINER and LANSDOWNE (6ed Vol
1 p750) state:
'While
a superior court having jurisdiction on review or appeal will be slow
to exercise any power, whether by mandamus or otherwise, upon the
unterminated course of proceedings in a court below, it certainly has
the power to do so, and will do so in rare cases where grave
injustice might otherwise result or where justice might not by other
means be attained…,. In general, however, it will hesitate to
intervene, especially having regard to the effect of such a procedure
upon the continuity of proceedings in the court below, and to the
fact that redress by means of review or appeal will ordinarily be
available.'”
A
review of an interlocutory decision was held, in the case of Masedza
& Ors v Magistrate, Rusape & Anor 1998 (1) ZLR 36 (H) to be
possible and permissible. It was held that:
“…,
however, it is only in exceptional circumstances that the court will
review a decision in an interlocutory decision before the termination
of the proceedings. It will only do so if the irregularity is gross
and if the wrong decision will seriously prejudice the rights of the
litigant or the irregularity is such that justice might not
otherwise by other means be attained.”
No
exceptional circumstances were alluded to or averred by the applicant
which would give the court a smidgeon of confidence that the
application for review of the refusal to discharge the applicant at
the close of the State case before the Trial Officer, is, or was,
likely to succeed. Further,
the grounds for review which the applicant seeks to rely on are not
the proper grounds for review provided for in terms of section
27(1)(a) of the High
Court Act [Chapter 7:06].
If
there is no prima facie
evidence
that the application for review was likely to succeed, how then is
the appeal against the dismissal of the application for stay of the
trial proceedings pending review, which was dismissed by MWAYERA J
due to lack of merit, likely to succeed?
If
the appeal against the ruling by MWAYERA J, that the application for
review was devoid of merit, is not likely to succeed, then it must
follow that the application to reinstate that appeal, which was
deemed lapsed, is not likely to succeed. It's a chicken and egg
situation because of the multiplicity of litigation but the
underlying issues are as clear as spring water….,.
For
these reasons, I find that the requirements of an interim interdict
not met in this case; the applicant does not have a clear right. The
application for review was dismissed. The trial proceedings which
were sought to be stayed were brought to finality. There are no
prospects of the appeal which is sought to be reinstated to succeed.
This is so because the appeal seeks to be brought to challenge an
interlocutory decision. The leave of MWAYERA J was not sought to note
an appeal against her decision to dismiss the application for stay of
the trial proceedings. To compound matters, the attempt to bring a
review of the incomplete trial of the applicant by a Single Officer
is not likely to succeed because of the absence of exceptional
circumstances.
The
application before the court is dismissed.
