Ex-Constable Vengai Chikurungeni v the Commissioner General of Police and Another (686 of 2022) [2022] ZWHHC 686 (6 October 2022)

1 HH 686-22 HC 2116/22 EX-CONSTABLE VENGAI CHIKURUNGENI versus THE COMMISSIONER GENERAL OF POLICE and THE POLICE SERVICE COMMISSION HIGH COURT OF ZIMBABWE TAGU J HARARE, 30 September and 6 October 2022 Opposed application G Makina, for applicant C P Tembo, for respondents TAGU J: This is a court application for review of the respondents’ decision to discharge the applicant from the Police Service as being unfit for Police Duties as he was found to be a stammer and had serious communication problems. The facts are that the applicant was attested in the Zimbabwe Republic Police which falls under the Police Service Commission on the 27th day of August 2021 as a trainee. He was doing his training at Morris Depot. In September 2021 the applicant was called by Inspector Gwaka who told him that he was not fit to be a police officer since he was a stammer. In October 2021 he was called by the Depot Commandant who asked if he was a stammer, and he confirmed that. In December 2021 he was called by Dr. Nyakudya who said that he wanted to examine if his condition would allow him to remain in the police service. He was duly examined and told results will be communicated later. On the 31st of January 2022 he was called by Inspector Gwaka who gave him a letter of termination of employment which was “backdated or dated” 28th December 2021 and was asked to sign it. He complied. He has now decided to challenge the respondents’ decision to discharge him under the stated circumstances. HH 686-22 HC 2116/22 The application for review is opposed. The respondents raised a point in limine to the effect that the application for review is null and void on account of it being way out of time in terms of r 62(4) of the High Court Rules, 2021, it having been filed without condonation. Proceedings by way of review should be instituted within eight weeks of termination of suit, action or proceedings in which irregularity or illegality complained of is alleged to have occurred. The applicant has brought this present application to review the decision of the first respondent who dismissed the applicant from employment. The applicant was dismissed on the 17th of December, 2021 and his last day of work was 23rd December, 2021 and the applicant filed his application in April 2022. That is four months after dismissal. Accordingly, he ought to have brought the present proceedings within eight (8) weeks from the date of dismissal as envisaged under r 62(4) of the High Court Rules. The respondents submitted that the applicant ought to have applied for condonation for the filing of the application for review. The applicant denied that he was discharged on the 21st December 2021 and averred that he was asked to sign a backdated document. The court asked the applicant to produce proof of when he was asked to sign. He indicated that he did not have any proof. Rule 62 of the High Court Rules, 2021 deals with reviews. In particular r (62) (4) provides: “(4) Any proceedings by way of review shall be instituted within eight weeks of the termination of the suit, action or proceedings 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.” Accordingly, it is trite that an application for review must be filed within eight (8) weeks of the termination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred. The applicant averred that on the 31st of January 2022 he was called by Inspector Gwaka who gave him a letter of termination of employment which was backdated or dated 28th December 2021, and he signed it. Other than his mere say so, he could not provide proof of his averments. On the other hand, the respondents managed to produce documentary evidence capturing the proceedings leading to the discharge of the applicant. in particular the respondents produced evidence by way of a Radio dated 23 December 2021 advising applicant of the decision to discharge him from the Police Service. Going by that document the applicant was advised of his fate as early as the 23rd of December 2021. The applicant filed the present application on the 29th of March 2022 way out of the eight weeks period. HH 686-22 HC 2116/22 In the case of Mutare City Council v Mudzime and others 1999 (2) ZLR 140 MUCHECHETERE JA highlighted that as the application for review was not subsequently lodged within the eight weeks and there was not subsequently lodged with the eight weeks and there was no application for condonation before the court then such circumstances, “the court has no discretion. It will simply dismiss the application”. The court relied on the case of Forest Commission v Moyo 1997 (1) ZLR 254 (S) at 260 C-E where the CHIEF JUSTICE stated the following: “I entertain no doubt that absent an application it was erroneous for the learned judge to condone what was on the face of it, a grave none-compliance with R259 for it is the making of the application that triggers the discretion to extend the time.” In Matsambire v Gweru City Council S-183-95 (not reported) this court held that where proceedings by way of review were not instituted within the specified eight weeks period a condonation of the breach of R 259 was not sought the matter was not properly before the court. I can conceive of no reason to depart from that ruling….” In the present case as the applicant is out of time and there is no condonation, the court has no discretion other than to dismiss the application. IT IS ORDERED THAT: 1. The application is dismissed for failure to comply with the Rules. 2. Applicant to pay costs on the ordinary scale. Mugiya & Muvhami Law Chambers, applicant’s legal practitioners The Civil Division of the Attorney General’s Office, first and second respondents’ legal practitioners