Davies and Anor v Officer-in-Charge, Vehicle Theft Squad, Drill Hall, Bulawayo N.O. (HB 18 of 2006) [2006] ZWBHC 18 (15 March 2006)

Judgment No. HB 18/06 Case No. HC 329/06 X Ref HC 1955/03 BENJAMIN JOSEPH DAVIES And CARMELITA FAITH MORRISON Versus OFFICER-IN-CHARGE, VEHICLE THEFT SQUAD, DRILL HALL, BULAWAYO N. O And OFFICER COMMANDING POLICE, BULAWAYO PROVINCE N. O And DETECTIVE INSPECTOR SADAMBUKA N. O IN THE HIGH COURT OF ZIMBABWE NDOU J BULAWAYO 24 FEBRUARY AND 16 MARCH 2006 M Ncube for the applicant T Mkhwananzi for the respondents Urgent Chamber Application NDOU J: The applicants seek an order in the following terms: “Terms of the final order sought That the provisional order granted by this honourable court be confirmed in the following manner: a) b) That all the investigations concerning the applicants’ vehicles and also those belonging to the estate late Andrew Davies be authorised by the 2nd respondent, the Officer Commanding Police, Bulawayo Province only and all such investigations be done through the applicants’ legal practitioners Messrs Cheda and Partners. That the respondents jointly and severally release all motor vehicles in their possession belonging to any of the applicants HB 18/06 or the estate late Andrew Davies taken as a result of complaints by Dennis Lees and Delicates Meat products. The respondents be barred from impounding all vehicles mentioned under case number HB 1955/05. The respondents jointly and severally pay costs of suit on an attorney-client scale only if they oppose this application. c) d) e) Interim relief granted Pending the finalisation of this matter or return date, the applicants be granted the following relief: 1. 2. The respondents be and are hereby specifically barred from confiscating the Mazda B2200 registration number 570-113M or any other motor vehicle belonging to the applicants or estate late Andrew Davies as specifically mentioned in the CRBs and IRs on paragraph 3.2 of the first applicant’s founding affidavit. That all the communication with the applicants by the respondents be done through the applicants’ lawyers namely Mr Sindiso Mazibisa or Mr Mlamuli Ncube of Cheda and Partners Legal Practitioners, Bulawayo.” The background facts of this matter can be summarised in the following manner. On 28 July 2002, the applicants’ brother passed away in a car accident leaving a will in which he gave everything in his estate to the first applicant. When the estate was registered, the 1st and 2nd applicants where appointed as joint executors. The estate is substantial and is still in the process of being wound up. The late Davies employed a number of people amongst them one Dennis Lees. There have been a number of cases (most of them being reports made to the police) pitting the applicants against Dennis Lees. The consequence of this is that the applicants have on a number of occasions attended at Vehicle Theft Squad Police to answer queries emanating from vehicles allegedly forming part of the estate of the late Davies. The applicants’ legal practitioners have, on 18/06 HB numerous occasions held discussions with the 1st and 2nd respondents to no avail. The investigating officers have been changed. The applicants feel harassed by the several queries carried out by the police at the behest of Dennis Lees. Dennis Lees filed a chamber application under case number HC 1955/03 claiming ownership of inter alia, vehicles forming subject matter of the police investigations. In short the applicants’ case is that all these are civil matters between them and the said Dennis Lees. Dennis Lees did not appear on the date set down for his application in HC 1955/03. On account of the said default his application was dismissed. In other words, the dismissal was not on the merits. The respondents’ case is that they are investigating complaints by Dennis Lees and Delicate Meat Products (Pvt) Ltd. They consider these investigations to be premised on legitimate complaints. In their view, no one is immune from investigations where there is a legitimate complaint. It is only after investigations that the police may determine whether the report from the complainant has merit. It is the primary duty of the police to conduct investigations in any circumstances where there is reasonable suspicion that a crime has been committed. Coming to specific cases, the complaint by Dennis Lees was reasonable as to necessitate investigating the applicants for the simple reason that the vehicle in issue, a Toyota Hilux registration number 571-865R, which applicant claim it belongs to the estate of the Davies is actually registered in the name of Dennis Lees. Enquiries by the police with the Central Vehicle Registry’s records confirm that. The police records also confirm Dennis Lees as the registered owner HB 18/06 of the vehicle. In the circumstances it was only reasonable for the police to investigate. The 1st applicant was taken to court where the prosecutor declined to place the 1st applicant on remand on the basis of inadequate evidence supporting the charge. This act by the prosecutor does in itself stop the police from carrying further investigations. In the other matter, the complainant is one Reuben Chaguta representing Delicates Meats whose company vehicle, a Mazda B2200 registration number 570-113M was taken for repairs at 8 Rosetta Montgomery in 2002. The said vehicle was seen being driven by one Nigel West. Reuben Chaguta reported that their own investigations with the Central Vehicle Registry revealed that the vehicle was now registered in the name of another person while they were still in possession of the original vehicle registration book in the name of the company. This is the issue that the police are investigating. It has been brought to my attention that the application is premised on incorrect or misleading information. In his founding affidavit the 1st applicant in paragraph 3.2 says: “Since the dismissal of the chamber application in 2003 [HC 1955/03], there has been numerous reports to different police stations to the effect that I am a motor vehicle thief, the numerous matters that have been reported, investigated and dismissed are listed herein: CR 169/07/03, Queenspark, HB-224/03, CID Fraud, CR 1673/11/03, Central Police Station, IR 1427/04 – Central Police station, CR 174/11/03 – Queenspark, IR 166/04, CID Fraud CR 180/07/03; CR 1578/01/04 – Central Police Station, CR 160/12/03, this list is not conclusive because there are other CR numbers or dockets from Vehicle theft Squad which dockets concern the same reports as those cited above.” These cases give a picture of alleged police harassment of the applicants, in particular the 1st applicant. It turns out that most of the information is either incorrect or misleading. This paragraph misrepresented facts in the following HB 18/06 manner: a) Queenspark CR 169/07/03 is a matter of car theft that 1st applicant reported against the said Dennis Lees. It is not true that Dennis Lees reported the matter. In the circumstances where is the harassment? b) In CR 174/11/03 again the 1st applicant is the one who reported theft of his two asbestos sheets. The accused is unknown and the docket was closed as undetected on 12 February 2005. Again where is the harassment of the applicant? c) In CR 1673/11/03, the complainant is one Hope Davies and Dennis is the accused on a charge under the Posts and Telecommunications Service Act. None of the applicants is involved. d) In 160/12/02 the complainant is Ronald Marallias and the charge is theft and the accused was not detected. The applicants are obviously not involved. e) f) IR 1427/04 does not exist under Bulawayo Central. CID Fraud HB 224/03 does not exist. From the preceding paragraphs (a) to (e) it is clear that the applicants have failed to show any form of harassment. In fact they misrepresented the facts in a material way. It is trite an urgent application is an exception to the audi alteram parten rule and, as such, the applicant is 18/06 HB expected to disclose fully and fairly all material facts known to him or her. Generally the courts discourage urgent applications which are fraught with material non-disclosures, mala fides or dishonesty. The court should always frown on an order sought on incomplete or misleading information – Barclays Bank v Giles 1931 TPD 9; In re Leydsdorp and Pietersburg (Transvaal) Estates Ltd (in liquidation) 1903 TS 254 and Graspeak Investments P/L v Delta Corporation P/L & Anor 2001 (2) ZLR 551 (H). On the basis I would dismiss the application. However, because the powers of arrest are involved, I will not follow the drastic route of dismissal on account of the applicants’ misleading facts. Looking at the application on its merits it has to be borne in mind that the policemen involved as peace officers, have a discretion on when arrest should be made. This discretion is conferred by section 25 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The courts will not lightly interfere with exercise of this discretion. While the courts will not lightly hold that the discretion was wrongly exercised and would only interfere where the discretion to arrest was “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrives at it, a peace officer must nevertheless consider whether arrest is necessary, taking into account such factors as the possibility of escape, the prevention of further crime and the obstruction of police enquiries – Criminal Law in Zimbabwe – J Rowland at 5-8; Muzonda v Min of Home Affairs & Anor 1993 (1) ZLR 92 (S) and Council for Civil Service Unions v Minister of Public Service [1984] 3 18/06 ALLER 935 (HL). The effect, of the order and from Mr Ncube’s HB submission it is clear the order sought (even in its amended version) is intended to prevent the respondents from exercising their powers of arrest without first consulting the applicants’ legal practitioners. The order sought is to stop investigations. The order will defeat the primary duty of the police to conduct investigations in any circumstances where there is reasonable suspicion that a crime has been committed. I have highlighted the issues that the police are investigation about the mentioned two vehicles. The order interferes with the independence of the police. In the instances referred to by the applicants, the police contacted their legal representatives when a decision to lay a charge arose. The applicants were charged in the presence of their legal representatives. One would be investigated as many times as legitimate allegations are levelled against him. If the legitimate complaints are brought to the attention of the police, they have a duty to act as long as they do not abuse the discretion bestowed on them. There is no evidence of such abuse after what I said about paragraph 3.2 of the founding affidavit of the 1st applicant. The applicants have equally failed to make out a case for the prevention of the respondents from exercising their powers of search, seizure and forfeiture of vehicles as set out in Part V of the Criminal Procedure and Evidence Act. The applicants seek to take away statutory policing powers on the basis of misleading facts. HB 18/06 The applicants have, accordingly, failed to satisfy the requirements of the relief sought. Accordingly, I dismiss the application with costs. Cheda & Partners, applicants’ legal practitioners Civil Division, Attorney-General’s Office, respondents’ legal practitioners