KAMHESI v THE COMMISSIONER GENERAL OF POLICE and Another (377 of 2025) [2025] ZWHHC 377 (12 June 2025)

3 HH 377 - 25 HCH 5310/24 EX-CONSTABLE ARTWELL KAMHESI 075030D versus THE COMMISSIONER GENERAL OF POLICE and THE POLICE SERVICE COMMISSION HIGH COURT OF ZIMBABWE **DUBE-BANDA J** HARARE; 12 June 2025 _**Application for condonation**_ _N. Mugiya_ for the applicant Ms _. R.B. Madiro_ for the respondents DUBE-BANDA J: 1. After hearing submissions, in an _ex-tempore_ judgment, I dismissed the application with costs. The applicant has requested written reasons for the decision. These are the written reasons. 2. This is an application for condonation for failing to file an application for review within the timeline allowed by the rules of court. The applicant is a former police constable, having been attested to the Police Service on 2 June 2011. He was discharged on 31 July 2012. The background to his discharge is that he appeared before the Magistrates’ Court charged with two counts, theft in contravention of s 113(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“Criminal Code”) and escaping from lawful custody in contravening s 185(1)(a) of the Criminal Code. He was convicted of both counts and sentenced as follows: for theft he was sentenced to six months imprisonment of which three months were suspended for five years on condition of good behaviour and the remaining three months suspended on condition of restitution. For escaping from lawful custody, he was sentenced to pay a fine of ZWL $30 000.00, in default of payment thirty days imprisonment. In addition, internally he was charged with two counts for contravening the provisions of the Police Act and was found guilty and both counts were taken as one and he was sentenced to pay a fine of ZWL$1000.00. Following his sentence on the theft count, he was in terms of s 48 of the Police Act discharged from the Police Service. The applicant seeks condonation to file a review application. 3. In his answering affidavit the applicant took a point _in limine_ that the second respondent filed an invalid opposing affidavit, in that it is not commissioned. It is correct that the second respondent filed an un-commissioned statement, such is not an affidavit. The rules require a respondent to file a notice of opposition together with one or more opposing affidavits. Without a valid opposing affidavit there could no notice of opposition. Therefore, the second respondent has no valid notice of opposition. In the circumstances, the point _in limine_ taken by the applicant is upheld and the un-commissioned statement is expunged from the record. However, this finding is not dispositive of the matter because the first respondent filed a valid notice of opposition. The application is opposed. 4. I now turn to the merits of the matter. It is trite that a litigant who has infringed the rules of court must seek condonation for non-compliance with the rules and extension of time within which to comply. In this endeavour an applicant is obliged to, _inter alia_ , provide a reasonable explanation for non-compliance with the rules and any delay involved in seeking condonation. The applicant must also establish that there are good prospects of success on review should the indulgence be granted. In _Maheya_ v _Independent Africa Church_ 2007(2) ZLR319(S) at 323B-C wherein MALABA JA (as he then was) said: “In considering applications for condonation of non-compliance with its rules, the court has a discretion which it has to exercise judicially in the sense that it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance; the explanation therefor; the prospects of success on appeal; the importance of the case; the respondent’s interests in the finality of the judgment; the convenience to the Court and the avoidance of unnecessary delays in the administration of justice” 5. These factors are considered cumulatively and, depending on the weight of each factor and obtaining circumstances, a decision is made. In _Kodzwa_ v _Secretary for Health & Anor _1999 (1) ZLR 313 (S), SANDURA JA remarked as follows: “Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused, whatever the merits of the appeal may be.” 6. In _Melane_ v _Santam Insurance Co Ltd_ 1962 (4) SA 531 (A) at 532C-G the court stated that: “In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion, _save of course that if there are no prospects of success there would be no point in granting condonation_. Any attempt to formulate a rule of thumb would only serve to harden the arteries of what should be a flexible discretion. What is needed is an objective conspectus of all the facts. Thus a slight delay and a good explanation may help to compensate for prospects of success which are not strong. Or the importance of the issue and strong prospects of success may tend to compensate for a long delay. And the respondent's interest in finality must not be overlooked. I would add that discursiveness should be discouraged in canvassing the prospects of success in the affidavits.” 7. Briefly, his explanation for the delay runs as follows. He alleges that the second respondent notified him of the discharge on 12 March 2024. He contends that on 13 March 2024 he wrote a letter to the second respondent seeking a record of proceedings so that he could file an application for review. He wrote a follow up letter on 3 April 2024, still he was not provided with the record. The record was provided on 4 September 2024, and at that time he was in Mozambique, and returned to Zimbabwe on 16 November 2024. _Per contra_ , the first respondent contends that the applicant was notified of his discharge on 15 January 2024. 8. On the principle established in _Plascon Evans Paints Ltd_ v _Van Riebeeck Paints (Pty)_[[1984] ZASCA 51](/akn/za/judgment/zasca/1984/51), I accept the first respondent’s version that the applicant was notified of the discharge on 15 January 2024. Having been informed of the discharge on 15 January 2024, in terms of r 62 (4) of the High Court Rules, 2021 an application for review ought to have been filed within eight weeks of the decision sought to be reviewed, i.e., on 15 March 2024. This application was filed on 22 November 2024. A simple calculation shows that this application approximately eight months outside the timeline to file a review. By whatever measure, such a delay is inordinate. 9. I now turn to the reasonableness of the explanation for the delay. I accept the applicant’s version that he was not provided with reasons until 4 September 2024. His contention is that the delay was caused by the absence of reasons. The giving of reasons is a fundamental requirement of administrative justice and an important component of procedural fairness. This is underscored in s 3(1) (c) of the Administrative Justice Act [_Chapter 10:28_] which provides that: “An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall— where it has taken the action, supply written reasons therefor within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.” 10. An administrative authority has a statutory obligation to supply reasons within a reasonable period. The question is what is the remedy to a litigant whose request for reasons have not been complied with. Should such litigant sit back and hope that at some point the reasons sought would be supplied. I do not think so. Section 6 of the Act provides the answer, it says: “Application for and issue of order to supply reasons (1) Subject to this Act and any other enactment, any person— (a) whose rights, interests or legitimate expectations are materially and adversely affected by any administrative action; or (b) who is entitled to apply for relief in terms of section four; and who is aggrieved by the failure of an administrative authority to supply written reasons for the action concerned within— (i) the period specified in the relevant enactment; or (ii) in the absence of any such specified period, _a reasonable period after a request for such_ _reasons has been made; may apply to the High Court for an order compelling the_ _administrative authority to supply reasons._ ” (My emphasis) 11. The applicant knew that he was aggrieved by the decision to discharge him and that he intended to subject it for review. He knew that it in terms of r 62(4) he had to file his review application within eight weeks of the date of the decision. He was merely content with writing letters asking for reasons, such is not reasonable. A litigant who has not been supplied with reasons within a reasonable period must seek to compel the supply of such reasons. He or she cannot sit back and wait indefinitely, when the time to comply with the rules is passing by each day. The legislature has provided a procedural remedy against an administrative authority refusing to supply reasons. Failure to make use of such a readily available remedy is inexcusable. It is for these reasons that I take the view that the explanation for the delay is unreasonable. 12. Regarding the merits of the matter, the applicant contends that the first respondent improperly invoked s 48 of the Police Act, on the grounds that this provision cannot be engaged if the litigant has been sentenced to a term of imprisonment without the option of a fine. Further, it was contended that the first respondent had no right to discharge the applicant as he is not the employer. It was argued that the employer is the second respondent, and it is he who has a right to discharge. It was further argued that the second respondent fell into the same error as the first respondent when he dismissed the applicant’s appeal. The applicant further complains that the second respondent fell into error when he failed to allow him to argue his appeal as provided for in s 69(1) of the Constitution. The second respondent is further criticised for failing to convene a tribunal to hear the appeal, but instead, merely summarised the information it got from the first respondent. 13. For purposes of completeness, I make the following observation. The applicant has not attached to this application the draft copy of the intended review application. Attaching a draft copy is important in that it gives the court and the respondent a clear view of the application and the grounds sought to be relied upon. In addition, it enables the court to properly assess the prospects of success of the intended application for review. 14. Notwithstanding this observation, I now turn to the actual merits of the matter. The applicant contends that s 48 of the Police Act was wrongly engaged in his case. Section 48 says: “Procedure on conviction of member for certain offences _If a member, other than an officer, is convicted of any offence and sentenced therefor to imprisonment without the option of a fine, whether or not the execution of such sentence is suspended_ , the Commissioner-General may— 1. discharge the member, in which case the discharge may take effect from the date of his conviction; or 2. impose any one or more of the following penalties— 1. reduction in rank; 2. loss of seniority; 3. withholding of an increment of salary; or 3. reprimand the member.” (My emphasis) 15. For the crime of theft, the applicant was sentenced six months imprisonment of which three months were suspended for five years on condition of good behaviour and the remaining three months were suspended on condition of restitution. The applicant was not sentenced to an option of fine. Three months were suspended on condition of good behaviour and the remaining three months on condition of restitution. There is no fine in this sentence. No amount of ingenuity or spin will change the fact that the applicant was not given an option of a fine. The provision is clear, it does not matter even if the execution of the sentence is suspended, as long as he was not given an option of a fine s 48 is triggered. The first respondent discharged the applicant in terms of s 48(1)(a) of the Act. In the circumstances, the submission that the first respondent improperly triggered s 48 has no merit. 16. The applicant argues that the first respondent had no lawful authority to discharge him form the Police Service. In terms of s 48(1)(a) the Commissioner-General may discharge a member sentenced to imprisonment without the option of a fine. The argument that the first respondent had no authority to discharge the applicant has no basis in law. It has no merit. 17. The contention that the second respondent fell into error when it failed to allow the applicant to argue his appeal as provided for in s 69(1) of the Constitution has no merit. Further the criticism that the second respondent failed to convene a tribunal to hear the appeal but merely summarised the information it got from the first respondent also has no merit. There is no evidence that the applicant was refused to argue his appeal. In fact, the record show that a board constituting five commissioners sat to determine the appeal. In any event, nothing turns on the criticism of the conduct of the second respondent because it is the proceedings of the first respondent that are sought to be reviewed should this application succeeds. 18. In summary, the delay is inordinate, the explanation thereof is unreasonable, and the application for review intended to be filed has no prospects of success. It is destined to fail. No good grounds exist for a departure from the general rule that costs follow the event. The first respondent is entitled to its costs. It is for these reasons that I dismissed this application with costs. **Dube - Banda J** : ……………………………………….. _Mugiya Law Chambers_ , applicant’s legal practitioners _Civil Division of the Attorney General’s Office,_ respondents’ legal practitioners