Constable Ratowa W v The Trial Officer (Chief Superintendent Bowa P) and The Commissioner General of Police

### Preamble
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HB 167.19
HC 1078/18
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CONSTABLE RATOWA W

Versus

THE TRIAL OFFICER

(CHIEF SUPERINTENDENT BOWA P)

And

THE COMMISSIONER GENERAL OF POLICE

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 11 &, 19 SEPTEMBER & 31 OCTOBER 2019

Opposed Application

W Ndongwe for the applicant

P Taruberekera for the Respondents

TAKUVA J:		This is an application for condonation of late filing of an application for review under case number HC 2329/16.

BACKGROUND

Prior to 24 May 2016, the applicant was an officer in the Police Service.  Following allegations of improper release of suspects and exhibits, the applicant and his accomplice were convicted by a court of a single officer for contravening paragraph 35 of the Schedule to the Police Act (Chapter 11:10) as read with sections 29 and 34 of the said Act i.e. “Acting in a manner reasonably likely to bring discredit to the Police Service.”

Applicant was sentenced to seven days imprisonment at Chikurubi Detention Barracks.  Dissatisfied by the conviction and sentence, applicant appealed to the 2nd respondent and his appeal was dismissed.  Four months later on 16 September 2016, he filed a review application under case number HC 2329/16.  Applicant subsequently filed an urgent chamber application under HC 2393/16 which was effectively dismissed by MOYO J on 28 September 2016.  Later, on 21 July 2017, the same judge removed case number HC 2329/16 from the roll to enable an interlocutory application filed under HC 666/17 to be set down and finalised.

Upon realising that the court had noticed that his application for review had been filed woefully out of time he filed the present application on 11 April 2018 approximately one year and seven months after he realised that his application for review had been filed outside the required timeframe.

THE ISSUES

What has to be determined in casu are the following issues;

Whether or not the explanation for the delay is reasonable and justifiable.

Whether or not the delay is inordinate?

Whether or not the applicant has prospects of success on review?

THE LAW

It is trite that a grant of condonation by a court is an indulgence and a party seeking it must satisfy the court that a “valid and justifiable reason” exists why compliance did not occur and why non-compliance should be condoned.  The requirements to be proved by such an applicant were set out in United Plant Hire (Pvt) Ltd v Hills and Others 1976 91)  8A717(A) and followed with approval in Kodzwa v Secretary Of Health and Another 1999 (1) ZLR 313 (S) to be;

the degree of non-compliance .

the explanation for it.

the prospects of success.

the respondent’s interests in the finality of judgment.

the convenience of the court in ensuring that there is no unnecessary delay in the administration of justice.

The first 3 are the standard requirements since the last 2 can be subsumed under one or the other of the first three.  These requirements should be considered cumulatively, for instance, the length of the delay is considered in the light of the explanation thereof and the prospects of success on the merits.

THE DEGREE OF NON-COMPLIANCE

Whether a delay is inordinate or not is not a fixed concept.  Each case is considered on its own merits.  In Dhliwayo v Kudinga and 2 Ors HH-54-09, a delay of some five months was  held to be inordinate, while in At The Ready Wholesalers (Pvt) Ltd t/a Power Sales v Innocent Katsande and 5 Others S.C -7-03,  a delay of seventy-three days in noting an appeal was held to be inordinate.  Lastly in Mubvumi v Mariga and Another 1993 (2) ZLR 24 (H), a delay in applying for rescission by a period of six months was held to be inordinate.

In casu the delay is as follows;

From 28 June to 16 September 2016 a period of 56 days.

From 28 September 2016 to 11 April 2018, a period of one year and 7 months.

Clearly, the delay is inordinate.  One is reminded of McNALLY JA’s comments in Ndebele v Ncube 1992 (1) ZLR 288 (S) at page 290C-E, cited with approval by MALABA DCJ (as he then was) in Mahaya v Independent African Church 2007 (2) ZLR 319 (S) at page 348B-D.  The court stated thus;

“It is a policy of the law that there should be finality to litigation.  On the other hand, one does not want to do injustice to litigants but it must be observed that in recent years, applications for condonation; for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer have rocketed in Zimbabwe.  We are bombarded with excuses for failure to act.  We are beginning to hear more appeals for mercy than justice.  Incompetence has become a growth industry.  Petty disputes are argued and then re-argued until the costs far exceed the capital amount in disputes.  The time has come to remind the legal profession of old adage, vigilantibus non dormientibus jura subveniunt, roughly translated, the law will help the vigilant but not the sluggard.”

THE EXPLANATION FOR THE DELAY

The applicant has no reasonable explanation for filing this application way out of time.  He tried to blame the respondents for his inaction.  More importantly, he was not candid with the court in that he failed to disclose the extent of the delay in his founding affidavit.  In Nehanda Housing Co-operative Society and Others v Moyo and Others HC 469/15, the court remarked thus;

“… it is settled law that a person who approaches the court for relief ought to be candid with the court.  Such an applicant ought to disclose all the material or important facts.  Once found out such an applicant ought to be denied the relief sought”.

PROSPECTS OF SUCCESS

Applicant’s prospects of success in the main application are non-existent in that his averment that the respondents committed irregularities is unfounded.  Applicant filed his grounds of appeal way out of time and the appeal was properly dismissed since it was deemed to have been abandoned.  It is apparent from the record that applicant disregarded the peremptory provisions of section 11 (1) of the Police (Trials and Boards of Inquiry) Regulations 1965 which provides;

“A member who wishes to appeal to the Commissioner against any conviction or sentence imposed on him in terms of section 40 of the Act shall note his appeal within seven days of the date of conviction or sentence by lodging with the officer a written statement setting out clearly and specifically the grounds on which the appeal is based, together with any written arguments for consideration by the Commissioner.”  (my emphasis)

In casu, the applicant did not file his replication within the stipulated dies induciae resulting in the trial officer referring the appeal record to the 2nd respondent without applicant’s replication.  At every turn, applicant deliberately disregarded the peremptory rules choosing instead to act in an outlandish manner.  Having failed to satisfy the requirements for an application of this nature the application is doomed to failure.

Accordingly the application is dismissed.

Antonio & Dzvetero c/o Dube Banda Nzarayapenga, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, respondents’ legal practitioners