Background
It
is essential to briefly outline the background of this matter before dealing
with the issues raised in the Urgent Chamber Application. On 16th
June 2011, the respondent obtained default judgment against nine defendants
under case number HC851/11. In that matter, the first and second defendants
are the Co-Ministers of Home Affairs, the third defendant ...
Background
It
is essential to briefly outline the background of this matter before dealing
with the issues raised in the Urgent Chamber Application. On 16th
June 2011, the respondent obtained default judgment against nine defendants
under case number HC851/11. In that matter, the first and second defendants
are the Co-Ministers of Home Affairs, the third defendant is the Commissioner
General of Police, the fourth defendant is Superintendent Pilate Moyo (Officer
Commanding Camps, Bulawayo), the fifth defendant is Chief Superintendent Nkomo
(Criminal Investigation Department, Bulawayo), sixth defendant is Detective
Inspector Jefias Sibanda, the seventh defendant is Detective Assistant
Inspector Sibanda, eighth defendant is Detective Constable Mugabe and the ninth
defendant is cited as Constable Shoko.
The
basis of the respondent's claims against the nine defendants arose out of
incident which occurred around 10th March 2010 at Criminal
Investigation Department Homicide, Bulawayo. The respondent's version of
events, as set out in his declaration, is that on or about the 10th
March 2010 he and other police officers, acting on the instructions of their
superiors, were instructed to cover up a murder case involving a suspect which
occurred at Criminal Investigation Department Homicide. The respondent states
that they were instructed to go and stage manage a shoot out of two suspected
armed robbers who had died in police custody. As a result of the death of
the suspects an inquest was opened. On the 9th of July 2010,
and at Tredgold Building, in the Bulawayo Magistrate Court, the respondent
testified during the inquest and gave details regarding the stage-managed shoot-out. Soon
after giving evidence, the respondent was approached by five police officers,
including the 8th and 9th defendants referred to above,
who assaulted him in public before handcuffing him. The respondent was
taken into police custody from the 9th to the 12th July
2010 and charges of perjury were laid against him. The respondent was
released on bail on 14th July 2010. The respondent was then
immediately evicted from his police living quarters. The respondent was
discharged from the police force.
It
is common cause that the defendants did not enter an appearance to defend the respondent's
claims and judgment was accordingly granted by the Honourable KAMOCHA J on the
16th June 2011, in the following terms:
“IT IS ORDERED THAT:
(a) Payment of US$6,400= being
legal costs incurred in trying to find justice in his matters.
(b) Payment of US$50,000= being
general damages for pain, shock and suffering and contumella, depreciation of
liberty, mental trauma, assault and humiliation plaintiff suffered as a result
of the malicious arrest detention, prosecution and unlawful eviction.
(c) Interest at the prescribed
rate from date of issue of summons to date of final payment.
(d) Costs of suit.”
In
a bid to enforce the default judgment and recover the sums of money awarded to
him, the respondent issued a Writ of Execution against immovable property on
the 21st December 2011. It is the enforcement of this Writ of
Execution which has resulted in what can only be described as a cat-and-mouse
game between the respondent and the applicant and his officers.
On
29th November 2011, almost five months after the default judgment
was granted, the applicant filed an Application for Rescission of Judgment
under case No.HC3527/11. The application was opposed on the basis that it
was filed way out of time and there was no application for condonation for the
late filing of the application for rescission of judgment. It would seem
that the applicant has still not pursued the application for rescission of
judgment for reasons that are not entirely clear.
On
the 8th of May 2012, the respondent filed an application seeking an
order for contempt of court. In his founding affidavit, the respondent
avers that on the 10th January 2012 the Deputy Sheriff had proceeded
to Number 208 L.Takawira Avenue, being the residence of Superintendent Pilate
Moyo, where he had placed under judicial attachment several of his movables in
terms of the Writ of Execution. The date of removal was set for the 13th
January 2012. On the 15th February 2012, the Deputy Sheriff's
assistants returned to Superintendent Pilate Moyo's residence to remove the
attached property. The removal was abortive and Superintendent Pilate Moyo
threatened to kill the Deputy Sheriff's assistants. The respondent
complained, in his founding affidavit, that the conduct of Superintendent
Pilate Moyo and the other defendants was a flagrant disregard of a court order
and contemptuous of this court. Further, attempts to execute the court
order against the other defendants cited on the Writ of Execution was also met
with resistance and there was violent obstruction of the Deputy Sheriff and his
assistants in the execution of his duties. The respondent, therefore,
sought an order declaring, the defendants to be in contempt of court and that
they be logged at the nearest prison for a period not exceeding 90 days or
until such time as they purge their contempt. On the 7th February
2013 the Honourable CHEDA J issued the following order:
“IT IS ORDERED THAT
1. 1ST Respondent be
and is hereby declared to be in contempt of court.
2. The Deputy Sheriff be and is hereby authorised and
directed to apprehend the 1st Respondent, Superintendent Pilate Moyo, with the
assistance of Senior Assistant Commissioner Mutamba, the Officer Commanding,
Bulawayo Province or his Assistant and lodge him to the nearest prison and this
shall be your warrant.
3. The officer-in-charge of the
Prison shall detain the 1st Respondent for a period not exceeding
(90) ninety days on until such time they purge their contempt and this shall be
his warrant.
4. The 1st Respondent
pay costs of this application on an attorney and client scale.”
Armed
with Honourable CHEDA J's court order dated 7th February for
contempt of court, the respondent made an attempt to enforce the said
order. What transpired thereafter is best summarised by a letter from the respondent's
legal practitioners, dated 22 February 2013, and addressed to Senior Assistant
Commissioner Mutamba. The contents of the letter are as follows:
The
Senior Assistant Commissioner S. Mutamba
Officer
Commanding Bulawayo Province
Provincial
Headquarters
Bulawayo
Dear
Sirs,
RE:
COMPLAINT: DENIAL OF THE DEPUTY SHERIFF AND OURSELVES FROM ENTRY INTO ROSE CAMP
PROVINCIAL HEADQUARTERS
On
Tuesday the 19th of February 2013 the Deputy Sheriff called at your
office in a bid to serve you with a court order. The said court order has
directed you or your Assistant to assist in the apprehension of Superintendent
Pilate Moyo for contempt of court. You were said not to be in the
office. The deputy Sheriff was told to call back later. The Deputy Sheriff
could not come back on this day. We accompanied the Deputy Sheriff and got
to your office some few minutes after eight in the morning of the 20th
of February 2013. The Chief Clerk, who identified himself as Inspector
Charles Machingura, advised that you were out and had gone to Harare on duty. We
requested to see your Assistant, Assistant Commissioner Gora, who was
present. We were advised by the same Chief Clerk that he was in a briefing
which was to take about an hour. We waited to the Chief Clerk's full
knowledge. We noted that we had been ignored as none was informing us of
what was happening. We then checked with the Chief Clerk who this time
told us that Assistant Commissioner Gora finished briefing and had gone for sports
and that we were not going to see him. The Deputy Sheriff and ourselves
would not understand it. The Chief Clerk simply told us to come back at
14:00 hours. The Deputy Sheriff requested if he could go and see him from
the grounds next to your offices. He was told that that was not possible.
This
is the time our Mr Bukuta called you on your cellphone for assistance. For
sure, there was slight movement. After talking to you, the Chief Clerk
emerged from his office to which he repeated that Assistant Commissioner Gora
was still not in but had requested that he (Chief Clerk) read the contents of
the court order to him (the Assistant Commissioner) over the phone. Though
the Deputy Sheriff and ourselves suspected that the Assistant Commissioner was
simply trying to avoid us, the Deputy Sheriff gave the Chief Clerk a copy of
the court record. He came back later saying Assistant Commissioner Gora
insisted we should see him at 14:00 hours. We all knew that the Chief
Clerk only wanted to take photocopies from the record. This is not an
issue as the court order, even without taking a photocopy from the Deputy
Sheriff, is in the public domain. The court record from which we uplifted
a copy from the High Court is a public record. Whilst we were still waiting at
your office we actually saw Superintendent Pilate Moyo driving in a not so good
looking official Mazda pickup truck. He emerged from his office, drove
down into the residential area, round the flats, to the road on the eastern
side of your driving school yard out of the gate and turned left into Basch Street. As
he was avoiding us by the main parking. We were back at your office at 14:00
hours to see Assistant Commissioner Gora as he had promised. To our
surprise, him, together with the Chief Clerk, were said to be away on
sports. Though we queried as to why Assistant Commissioner Gora, with full
knowledge that we were coming with the Deputy Sheriff decided to go
away. We drove out briefly and our Mr. Muganyi phoned and spoke to
Assistant Commissioner Gora on his cellphone. Assistant Commissioner Gora
promised to phone back shortly. We decided to wait for Assistant
Commissioner Gora's call at his office.
This
is the time when all hell broke loose. Our efforts to drive back to your
office to see Assistant Commissioner Gora was thwarted by Seargent Major Zhou
L. Who seemingly was waiting for us. He told us that we were not allowed in to
your offices, Provincial Headquarters, Bulawayo Province. No satisfactory
explanation was given. There we were the Deputy Sheriff and ourselves got stuck
and had to leave. We could not force our way through the gate. The court
order, as you are now fully aware, copy attached, is for you or your Assistant
to assist the Deputy Sheriff to apprehend Superintendent Pilate Moyo for
contempt of Court. The Deputy Sheriff was refused entrance or access to
your offices. We view this as a flagrant and brazen disregard of a court
order and an obstruction of the Deputy Sheriff from carrying out his lawful
duties as mandated by the High Court of Zimbabwe. This is therefore our
official complaint to you as the most Senior Police officer who is commanding
Bulawayo Province. You are required to assist not only as the most senior
officer, but as directed by the Honourable Court.
On
this note we ask for an immediate appointment to see you in connection with
this matter. In the event that we do not manage to meet you by close of
business on Monday the 25th of February 2013 then it is our client's
conclusion that no help is going to come from your office. Our client will
be left with no choice but to approach your superiors and/or approach the
Honourable Court on an urgent basis for an appropriate order against whoever we
think is denying him justice, and whoever is harbouring Superintendent Pilate
Moyo, Officer Commanding Camps and against all those who still believe that the
police is above the jurisdiction of the High Court jointly and severally in
their personal capacities. The treatment your office gave displays the
highest levels of unprofessionalism. The same conduct that led to this
order we seek to enforce was the conduct your good offices displayed.
We
await to hear from you shortly.
Yours
faithfully
(signed)
Dube-Banda,
Nzarayapenga and partners
c.c
The Registrar
High
Court
Ref
(HC 1444/12).”
On
26th February 2013, the applicant in the present application, the
Commissioner General of Police, filed an Urgent Chamber Application seeking the
following relief:
“(a) TERMS OF FINAL ORDER SOUGHT
That
you should show cause to this Honourable Court why a final order should not be
made in the following terms:
(i)
Execution of judgment handed down in case No.HC851/11 be and is hereby stayed
until finalisation of the application for rescission which is still pending
under case No.HC851/11.
(b) INTERIM RELIEF GRANTED
(i)
Pending finalisation of this matter, the writ of execution granted, dated 21
December 2001, be and is hereby rescinded.”
The
urgent application for stay of execution was filed by the Commissioner General
of Police as the applicant. He avers that he is vicariously liable for
actions of his officers, which actions are done during the course of
employment. He further avers that the respondent should have sought
recourse against the Commissioner General in his official capacity instead of
executing it against a mere police officer who is executing his
duties. The applicant seeks an order staying execution and “rescinding the
Writ of Execution.”
The
respondent has opposed the urgent chamber application and has raised several
points in limine. The issues are dealt with in seriatim.