Mushayavanhu v Chief Superintendent Nhawu N.O. & Ors (HC 4103 of 2012) [2015] ZWHHC 418 (26 April 2015)

1 HH 418-15 HC 4103/12 EMMANUEL MUSHAYAVANHU versus CHIEF SUPERINTENDENT NHAWU N. O and THE POLICE COMMISSIONER GENERAL and THE POLICE SERVICE COMMISSION and SALARY SERVICE BUREAU and CO-MINISTERS OF HOME AFFAIRS N. O HIGH COURT OF ZIMBABWE BERE J HARARE, 26 June 2013 and 27 April 2015 Opposed Application Z Kajokoto, for the applicant M Chimombe, for the respondent BERE J: This is an application for review where the applicant seeks the following order: “1. 2. 3. 4. That the applicant be and is hereby declared a full member of the Police force. That the Appeal by the Applicant from Trial Officer be and is hereby upheld for non compliance with tenets of natural justice on the part of the Respondents. That the proceedings of the Board of Suitability be and are hereby nullified, and That the Salary Service Bereau be and is hereby ordered to pal Applicant all his outstanding salary and benefits from August 2010 to date.” The background to this case as given by the applicant can be summarised as follows; The applicant who was a member of the force was charged for contravening para 27 of the Schedule to the Police Act [Chapter 11:10] which forbids “soliciting or accepting a bribe or soliciting for a present reward or consideration without the authority of the Commissioner General of Police.” HH 418-15 HC 4103/12 The applicant was found guilty and convicted of this offence and sentenced to 5 days detention at Chikurubi detention Barracks. The applicant says aggrieved by his conviction he appealed against his conviction. There is no agreement between the applicant and the respondents on the existence or otherwise of the appeal. The respondents say there was no appeal filed in accordance with the Act and therefore there was no appeal to talk about. The applicant says he properly noted his appeal. There is however agreement that subsequent to the conviction and sentence of the applicant a Board of Suitability was convened in terms of the Police Act. The result was the dismissal of the applicant from the force, the applicant having been found not to be suitable to continue as a member of the force. This decision was made on 15 July 2010. When this application for review was brought before me for argument, the respondents raised a preliminary point that this application was being brought almost 18 months after the decision to dismiss the applicant from the force had been made. This argument was built around Order 33 r 2591. For the avoidance of doubt r 259 states as follows: “259. Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceeding in which the irregularity or illegality complained of is alleged to have occurred: Provided that the court may for good cause shown extend the time.” Two issues arise from r 259 (supra). The review proceedings have a time limit within which they must be initiated. It must be done within eight weeks from the termination of the suit or action complained of. Secondly, if for some reason a litigant is unable to initiate the review proceedings within the time stipulated in the rules, then an application for condonation must be made in accordance with the proviso to that rule. There can be no doubt that the applicant realised that his services as a member of the force were terminated in August 2010 when the payment of his salary was stopped. It was not until 14 May 2013 that the applicant filed this application for review in this court. From August 2010 to 14 May 2013 when this application for review was filed, there is a lapse of 33 months. 1 High Court Rules, 1971 HH 418-15 HC 4103/12 Challenged by the respondents to explain why he did not timeously file and serve his application for review within the eight weeks stipulated by the rules, the applicant had no cogent explanation to proffer. When it was further submitted on behalf of the respondents that the applicant had not sought condonation for his delayed application, the applicant was equally found wanting. This case to me is a classic example of what Chidyausiku J (now CJ) had in mind when he eloquently put it in Lovemore Sango v Chairman of Public Service Commission and Anor2 as follows; “Those who sit on their litigation until cows come home have only themselves to blame if condonation is refused when they finally wake up from their years of somnambulism. Good and cogent reasons have to exist before a court can allow to be revived an application for review that should have been brought five years ago.” The delay here is exactly 33 months from the time the applicant’s services as a member of the force were terminated. To compound his situation the applicant, unlike in the Sango case (supra), has not even applied for condonation for the late prosecution of his case. In my view a delay of 33 months is inordinate by any standard. Such causal approach to litigation must be condemned in the strongest possible terms. There must be finality to litigation. For this technicality the applicant’s application for review must be dismissed with costs. It is so dismissed. Kajokoto ans Company, applicant’s legal practitioners Civil Division of the Attorney General, respondent’s legal practitioners 2 HH 28-96 @ p2 of the cyclostyled judgment.