CHIGUMBA
J: The provisions of the Police Act are clear. There is no provision
for an appeal or review to this court from a decision of a single
Officer. This court may only review the decision of a Board of
Officers, or entertain an appeal against the decision of a Board of
Officers. The reasoning behind this discrimination is clear. Single
Officers may only adjudicate on simple offences which do not attract
stiff penalties. They preside over a simple and fast and streamlined
procedure designed to clear less serious infractions. Section 33(2)
of the Police Act gives the right to any person convicted of an
offence by a board of Officers to appeal to the High Court against
such conviction or order by the Board. The provisions of the High
Court Act which relate to appeals from the Magistrates Court apply to
such appeals. These provisions relate to the prosecution of such
appeals, the power of the High Court on such appeal, the execution
and suspension of sentence and the institution of further proceedings
after a conviction has been set aside.
No
similar provisions are set out in the Police Act for appeals from
decisions of single Officers. If we read these provisions of s 33 as
applying equally to reviews, we would be forgiven for coming to the
conclusion that no appeal or review lies to the High Court against a
decision of a single Officer. An appeal or review against a decision
of a single Officer lies with the Commissioner General of Police. One
interpretation of s 34(7) of the Police Act is that once the
Commissioner General has dismissed an appeal to him against a
decision by a single Officer, the matter should end there. However,
the jurisdiction of the High Court which is conferred upon it by s
171(1)(d) of the Constitution is that it has such appellate
jurisdiction as may be conferred on it by an Act of Parliament. It
might seem to be safe to assume, that if the Police Act is silent on
the issue of whether an appeal lies to the High Court from a decision
of a single Officer, then the High Court has no such jurisdiction. A
reading of s 30 (2) of the High Court Act will soon put paid to that
notion. The High Court has jurisdiction in all civil matters unless
such jurisdiction is expressly ousted by an act of Parliament. The
Police Act is silent on whether an appeal lies to the High Court from
a decision of single Officer. Silence is not equivalent to express
ouster. See Rateyiwa
v
Kambuzuma Housing Co-op & Anor
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 1230pm. 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 para 27 of the schedule to the Police
Act [Chapter
10:11],
as read with s 29 and s 34 of the same Act. She pleaded not guilty
and after the state case, made an application for discharge as
provided for by s198(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, Mr. Norman
Mugiya,
deposed to a supporting affidavit in which he confirmed that he tried
to contact the applicant in February when he received the letter form
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$280-00 within five
days. That sum is the cost of preparing the appeal record
The
applicant contends that this latter 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 r 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 r 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 r
12 as read with r 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 para 27 of the
Schedule to the Police Act, as read with s (s) 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 para 11 of the Schedule to the police act, as read with
s(s) 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$20-00 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 DM 507-12 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'. He 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
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
.
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
And,
and.
In
my view, which I previously expressed in the case of Finwood
Investments Private Limited & Anor v Tetrad Investment Bank
Limited & Anor ,
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:
-
The matter cannot wait at the
time when the need to act arises.
-
Irreparable prejudice will
result, if the matter is not dealt with straight away without delay.
-
There is
prima facie evidence
that the applicant treated the matter as urgent.
-
Applicant gives a sensible,
rational and realistic explanation for any delay in taking action.
-
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;
-
A
clear or definitive right-this is a matter of substantive law.
-
An
injury actually committed or reasonably apprehended-an infringement
of the right established and resultant prejudice.
-
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,
Setlogelo v
Setlogelo,Flame
Lily Investment Company (Pvt) Ltd v
Zimbabwe Salvage (Pvt) Ltd & Anor,
Boadi v Boadi & Anor ,
Diepsloot Residents' and landowners' Association & Anor v
Administrator Transvaal
In
the matter under consideration both the interim relief and the final
relief are aimed at barring the respondents from detaining the
application 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 unterminated proceedings in exceptional cases. See S
v Rose.
In
Herbstein & van Winsen Civil
Practice of the Supreme Court of South Africa
4 ed p 932 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
office 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
absence of jurisdiction, bias and 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 s 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
at 820 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 at 360 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 (6 ed
Vol 1 p 750) 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
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. 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.
Not
to be overlooked is the analysis of the provisions of the Police Act
provided for in the case of Assistant
Inspector Chatukuta v
The Trial Officer & 2Ors
by Mawadze J. The facts of that case are somewhat similar to those
in this case under consideration. However, in that case there was an
appeal to this court, not an application for review and this renders
the finding in that case distinguishable. In that case the applicant
was tried by a single officer in terms of section 34 of the Police
Act. The offence which he was charged with is not similar to the
offences that the applicant in this case was charged with. Both were
convicted of their charges, but the applicant Chatukuta was sentenced
to nine days in detention barracks. He appealed to the Commissioner
General of the police in terms of
s
34, as read with s 11 of the Police
(Trials and Boards of Inquiry) Regulations 1965.
On appeal the conviction was confirmed and the sentence of 9 days
altered to 4 days imprisonment as the applicant had already served 5
out of the 9 nine days imprisonment which had been imposed.
The
question that arose before Mawadze J, from my reading of his
judgment, on an urgent basis was whether the applicant was entitled
to file an appeal to the High court against the decision of the
Commissioner General of Police. The applicant contended that his
right to personal liberty as enshrined in s 49 of the Constitution
and his right to appeal against conviction and sentence, enshrined in
s 70(5)(b) of the Constitution were about to be violated by the
respondents when they detained him to serve his sentence in barracks
despite the noting of the appeal. The honourable Judge found that s
34 of the Police Act does not provide for an appeal against the
decision of the Commissioner General. He contrasted s 34 with s 33
which confers the right to appeal to the High court against the
decision of a Board of Officers.
The
legal conundrum that the conclusion reached by my brother Judge
presents to me in the matter under consideration is the distinction
that is glaringly obvious. In this case the application for review
pertained to the refusal by a single officer to discharge the
applicant at the close of the state case.
Section171(1)(d)
of the Constitution confers the High Court with such appellate
jurisdiction as may be conferred on it by an act of Parliament.
Granted the Police Act does not confer appellate jurisdiction on the
High Court in respect of decisions of single officers. The High Court
has 'original jurisdiction' over all civil and criminal matters'
in Zimbabwe. If its appellate jurisdiction must be conferred on it by
an Act of Parliament it follows that so must its review jurisdiction.
What then does the High Court Act sat about this court's own powers
of appeal and review? On the power to review:
“26
Power to review proceedings and decisions
Subject
to this Act and any other law, the High Court shall have power,
jurisdiction and authority to review all proceedings and decisions
of all
inferior courts of justice, tribunals and
administrative authorities
within Zimbabwe.” (my underlining for emphasis)
It is my considered view that the power of the High Court on appeal
is not to be confused with its power on review. My reading of s 26 of
the High Court Act is that this court's powers of review are wider
than its appellate powers. I hold this view because s 26 gives it the
authority to review all,
proceedings
and decisions of all
inferior courts of justice, tribunals and administrative authorities.
Although the powers of review are subject to the High Court Act and
any other act, in this case the other act the Police Act is silent.
In my view this means that the High Court may exercise its full
review jurisdiction over decisions of single Officers and or the
Commissioner General, with no extraneous restrictions. Having
established that this court's review powers are wide ranging and
restricted only to the grounds of review, it follows that the two
cases that we were referred to by counsel are not instructive in this
matter, both of them being in regards to appeals against the
decisions of the Commissioner General.
Let
us suppose that this court's powers of appeal are not expressly
ousted by the Police Act from decisions of single Officers, because
the Police Act is silent and does not expressly oust the court's
appellate jurisdiction. What of this court's review powers against
decisions of single Officers? We come full circle and are guided by
the numerous decided cases that limit this court's powers of review
to exceptional circumstances in an interlocutory decision before the
termination of the proceedings. In my view, the refusal to discharge
at the close of the state case cannot by any stretch of the
imagination be viewed as an irregularity which is gross. There is no
serious prejudice o the rights of the litigant. It is not such an
irregularity that 'justice might not otherwise by other means be
attained'. The litigant will be put to its defence and not non
suited.
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.
Messrs
Mugiya & Macharaga,
applicant's legal practitioners
Civil
Division of the Attorney General's Office,
1st,
2nd,
&
3rd
respondents' legal practitioners
1.
2007 (1) ZLR 311 @ 314 G-H
7.
An
unreported HH-2014 case. See also Denenga v Ecobank HH 177-14
8.
1996 (2) ZLR 52 (SC) @56
9.
1914 AD 221 @ 227
10.
1980 ZLR 378
11.
1992 (2) ZLR 22
12.
1994 (3) SA 336 (A) @ 344H
13.
HH71-12
14.
1998 (1) ZLR 36 (H)
15.
HH705-14
