The
background of this matter is that the respondent, a police officer, was charged
with contravention of paragraph 35 of the Schedule to the Police Act [Chapter
11:10] as read with section 34 of the Police Act [Chapter 11:10]. This relates
to an allegation that he acted in an unbecoming manner. The full facts ...
The
background of this matter is that the respondent, a police officer, was charged
with contravention of paragraph 35 of the Schedule to the Police Act [Chapter
11:10] as read with section 34 of the Police Act [Chapter 11:10]. This relates
to an allegation that he acted in an unbecoming manner. The full facts are not
relevant for these proceedings. He pleaded not guilty, but, was, however,
convicted and sentenced to six (6) days imprisonment. He appealed to the second
applicant. He, however, lost the appeal and served his six days imprisonment.
Dissatisfied with that decision he applied for review under case no. HC667/10
wherein he sought to quash the conviction referred to (supra). The said
application was served on the 11th June 2010 on the first and second applicants
at Ross Camp, Bulawayo. On the hearing day, there was no appearance and the
application was granted.
In
the present application, it is the applicant's contention that the review
application was not properly served on them as required by the Rules of this
court in particular Rule 43B which reads-
“43B. Persons upon whom
notice and process to be served
Where
a person mentioned in the first column of the Seventh Schedule is the defendant
or respondent in any proceedings to which this Order applies-
(a)
The notice of intention to bring the proceedings required by section 5 of the
State Liabilities Act [Chapter 54]; and
(b)
All process by which the proceedings are instituted or by which effect is given
to any judgment arising out of the proceedings;
shall
be served upon the person specified in relation to the defendant or respondent
in the second column of the Seventh Schedule, and copies of the notice and
process shall be served, for information, upon the person or persons specified
in relation to the defendant or respondent in the third column of that Schedule.”
The
Seventh Schedule relates to service of court process upon State Officers of
which paragraph 4(a) reads -
“SEVENTH SCHEDULE (RULE 43B)
SERVICE OF PROCESS UPON STATE OFFICERS
Defendant or Respondent Process
to be Served on Copies to be Served, for
information,
on
4. Minister of
Home Affairs
(a) in respect of any act or Commissioner
of Police, or his (a) Director of
the Civil Division of
omission by a member of private secretary, at the the Attorney-General's
the
Police Force Commissioner
's office Office,
at the Director's office
(b) Deputy Secretary (Finance and
Administration) of the Ministry
of
Home Affairs, at the Deputy
Secretary's
office.”
The
question then is, was first and second applicant properly served in terms of
the Rules of this court?
The
first applicant was personally served at his offices at Ross Camp. That admits
of no doubt, and, accordingly, there was proper service. The respondent argued
that Rule 43B as read with Rule 43A applies to claims for money only and not
any other claims. It was further his argument that the second applicant is
aware of this procedure and practice. It is for that reason that he authored a
directive through a radio communication signal which reads -
“FROM COMPOL LEGAL SERVICES.
TO ALL STATIONS CLASS H ZIMBABWE.
RDO BTM 15/09 DATED 30 JULY 2009
SUBJECT: POLICE DISCIPLINARY
TRIALS: DENIAL OF APPEALS
...,.
…., should the
affected party take the matter on review or appeal comma the decision will stand up to judicial scrutiny stop
further comma where the president of a board has been served with court
process challenging the convening of a board or an officer has filed his or her
appeal with the High Court comma it is directed that the court papers be
forwarded to legal services by the most expeditious means possible stop
once a matter is before the High Court comma it is prudent to stay the board
proceedings until the finalization of the High Court matter or appeal stop.”….,.
In
my view, Rule 43B which is under Order 5 should not be read in isolation but
with Rule 43A which reads -
“Order 5A
SERVICE OF PROCESS IN PROCEEDINGS AGAINST STATE
43A. Application of Order
This Order shall apply to claims
for-
(a) Money, whether arising out of
contract, delict or otherwise; or
(b) The delivery or release of
any goods;
whether
or not joined with or made as an alternative to any other claim, where the
claims are instituted against-
(i) The State; or
(ii)
The President, a Vice-President or any Minister or Deputy Minister in his
official capacity; or
(iii)
Any officer or employee of the State in his official capacity.”
This
Order is unambiguous as it is as clear as daylight to an extent that even he
who runs can read. My interpretation of it is that personal service to the
Commissioner General is required, only, where the claim is sounding in money.
Any other court process should be served at any police station for onward
transmission to the second applicant. This makes sense as all police stations
throughout the country are directly linked to the Police General Headquarters. The
second applicant, and all other police stations, are aware of this practice
hence the radio communication signal of the 30th July 2009 directing all police
stations to forward court papers relating to either review or appeal matters to
the legal services in Harare. On issuing these instructions, the second
applicant specifically directed his subordinates to expeditiously forward court
process to him so that his officers can comply with all the legal requirements.
The fact that they probably did not act timeously is their own shortcoming
which cannot be visited upon the respondent.
I, therefore, find that there was proper service
upon both applicants and accordingly there was indeed wilful default on their
part. The application is accordingly dismissed.
