Dhererai Manyoni v The Police Service Commission and 2 Ors

### Preamble
1
HB 227/22
HC 1284/21
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DHERERAI MANYONI

Versus

THE POLICE SERVICE COMMSSION

And

THE SALARY SERVICES BEREAU

And

THE COMMISSIONER GENERAL OF POLICE

IN THE HIGH COURT OF ZIMBABWE

DUBE-BANDA J

BULAWAYO 29 JULY 2022 & 1 SEPTEMBER 2022

Opposed application

The applicant in person

D. Jaricha for the respondent

DUBE-BANDA J:

Introduction

This is a chamber application for a mandamus. In his founding affidavit the applicant avers that he is seeking an order to compel the respondents to pay his salary dating back from January 2016 to May 2021. The total claimed is $3 200 000.00. He avers that he is entitled to the amount claimed on the basis of a Supreme Court order in Police Service Commission and Ors v Manyoni SC 7/22. In his amended draft order the applicant seeks the following relief:-

That the 1st respondent through the 2nd respondent pay the applicant his outstanding salary totallying USD23 039.00 or RTGS equivalent at current official rate.

The 2nd respondent give back 88 days which were unlawfully subtracted from the applicant’s leave days.

The respondent to clear the required (sic) they are compelled in (1) and (2) above within sixty days from the date of granting of this order.

The respondents pays the costs.

That there be no order as to costs. (sic).

The application is opposed by all the respondents. The respondents contend that the applicant has not made a case for the relief he is seeking and pray that this application be dismissed with costs of suit.

The 3rd respondent in his opposing affidavit raised a point in limine, it being contended that the applicant is abusing the process of this court. At the commencement of the hearing Mr. Jaricha counsel for the respondents informed the court that he was not persisting with the point in limine.  No further reference shall be made to the point in limine taken by the 3rd respondent in his opposing affidavit.

The background facts

This application will be better understood against the background that follows. The applicant is a member of the Zimbabwe Republic Police (ZRP). Prior to the events leading to this application he held the rank of Sergeant. In February 2012 the applicant appeared before a court of a single officer charged with two counts in terms of the provisions of the Police Act [Chapter 11:10]. After a contested trial he was convicted on both counts and sentenced to undergo five days imprisonment. Aggrieved by both conviction and sentence the applicant noted an appeal to the Commissioner-General of Police. On 29 June 2012 his appeal was dismissed and on the 28 December 2015 he was discharged from the Z.R.P. On 4 January 2016, he noted an appeal against the discharge to the Police Service Commission in terms of section 51 of the Police Act [Chapter 11:10]. His appeal to the Police Service Commission failed.

Following the dismissal of his appeal he approached the High Court contending that his discharge was not in accordance with the Police Act as he was not informed of the charges preferred against him nor was a Board convened to inquire into the merits of the matter. He sought a review of the proceedings that led to his discharge from the Z.R.P. He prayed for the setting aside of his discharge and reinstatement without loss of salary and benefits. The High Court found that there were procedural irregularities and the applicant was not given an opportunity to be heard. The court ordered his reinstatement.

Aggrieved by the order of the High Court the respondents appealed to the Supreme Court. The Supreme Court set aside the decision of the High Court and substituted it with the following: the appeal by the respondent (applicant herein) to the Police Service Commission is upheld; the decision of the Police Service Commission is and hereby set aside; the matter is remitted to the Police Service Commission for a hearing de novo; there shall be no order as to costs.

On the 15 September 2021 the applicant filed this application seeking the relief mentioned above. Subsequent to the filing of this application on the 2nd March 2022 the Police Service Commission in compliance with the Supreme Court order upheld the applicant’s appeal against discharge and reinstated him to the police service. He was reinstated with a reduction of rank and salary. He was reinstated with effect from the 24 December 2015. He is now a member of the police force.  It is against this background that applicant has launched this application seeking the relief mentioned above.

The submissions by the parties

A reading of the applicant’s founding affidavit clearly shows that his cause of action is anchored on the Supreme Court order referred to above. It is averred that the decision to suspend him was set aside, therefore from January 2016 to the time of his reinstatement in May 2021 he was on unlawful discharge and as such he is entitled to his salaries. He contends that the respondents have connived to confiscate his salary by stating that he is only entitled to salaries from June 2021.

The applicant in his oral submissions contended that this court must compel the respondents to pay him his outstanding salaries dating back from 24 December 2015 to May 2021. He acknowledged that there is a new development in the matter, in that he was reinstated with effect from 24 December 2022. The reinstatement was communicated to him by letter dated 2nd March 2022. He submitted that he was reinstated without loss of salary and benefits. He was now a serving member of the Z.R.P.

The applicant submitted that salaries of civil servants are known and appear in the pay slips. He contended that when he was discharged in December 2015 he was earning USD500.00 per month. He was not paid for 35 months during the period members of the Z.R.P were paid in United States dollars (USD).  He then adds 2 months for the thirteenth cheque which gives him 37 months in which he was not paid his salaries. He then multiplied USD500 00 x 37 and he got USD18 500.00.   He submitted that during the RTGS period he was not paid for 31 months. He converted the RTGS dollars to USD and he got USD 5 539. 00. He then added USD18 500.00 and USD 5 539 00 and got USD23 039 which he submits is the amount due to him as salaries for a period of 5 years and 9 months that he was not paid.

The applicant conceded that the calculations do not appear in his founding and answering affidavits. He submitted that he is not claiming damages but salaries and he expected the respondents to know the amounts he is entitled to as salary. He contended that he was entitled to his salaries and prayed for an order in terms of the amended draft.

The respondents contend that at the time of filing this application i.e. 15 September 2021 the applicant had not yet accrued any right regarding his salaries. His appeal was still pending before the 1st respondent as per the Supreme Court order. It was submitted that as such the order of the Supreme Court placed the applicant in the position of a litigant appealing in terms of section 51 of the Police Act. After the Supreme Court order he was paid his salary arrears in terms of section 51.

It was submitted that an application stands of falls on the basis of the founding affidavit. It was argued further that his founding affidavit does not speak to his amended draft order. The applicant cannot rely on the reinstatement that occurred subsequent to the filing of this application. He submitted that he was reinstated and demoted to a constable and he cannot rely on the salary he earned as a sergeant. It was contended further that the applicant has not furnished any evidence that he was earning USD500.00 per month, which is the basis of his calculation leading to the amount he is claiming. It was argued that he was not entitled to the amount he was claiming as it is predicated on a wrong salary. He was reinstated with a reduction of rank and salary. The applicant was criticized for failing to file a new application after the reinstatement of the 2nd March 2022. It was argued that at the time of filing this application the applicant had no clear right to the salaries he was claiming. It was argued further that he had an alternative remedy. It was contended that the alternative remedy was to approach the respondents and discuss the matter.  The respondents prayed that the application be dismissed with costs.

The legal principles

A mandamus is a species of a mandatory interdict. A mandatory interdict is known as a mandamus when it is granted against a public authority.  The object of this legal process is to compel a government department, administrative body or its agent to perform some or other statutory duty and to remedy the effect of unlawful action already taken. The remedy is somehow limited because the administration cannot be compelled to do something it is not obliged to do under the enabling legislation. See: Rand Water v Rosslyn Hub Development Company (Pty) Ltd (A175/2020) [2021] ZAGPPHC 836 (24 November 2021); Jordan v Penmill Investment CC 1991 (2) SA 430 (E) at 436E; G. Feltoe, A Guide to Administrative and Local Government Law in Zimbabwe, 2007. The difference between a mandamus and an interdict lies in the fact that the former compels the administrative body to comply with its duty, whereas the latter generally prohibits unauthorized action. In reality an interdict and a mandamus are the two sides of the same coin; unauthorised action is prevented by means of an interdict and compliance with a statutory duty is enforced by means of a mandamus.

Thus in order to prove his entitlement to a mandamus in this case, the applicant would be required to meet the requirements for the grant of a final interdict. These are:  that he has a clear right that has been established from the facts and the surrounding circumstances of the case; the right has been infringed, or there was   a reasonable possibility that the right may be infringed; that there was no other appropriate remedy that is available to him; and that he will suffer irreparable harm if the interdict was refused. The locus classicus of the cases which sets out these criteria is, of course, Setlogelo v Setlogelo 1914 AD 221 at 227. See also, PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe LTD and Another 1993 (1) ZLR 55 (H) at 63A – C; Tribac (Pvt) Ltd v TMB 1996(2) ZLR 52(S); Nkomo v Minister, Local Government, Rural & Urban Development & Ors CCZ 6 of 2016.

It must be shown that the other party refused to act in fulfilment of some right.  Courts will not grant relief of a mandamus where there is an adequate alternative remedy available to the applicant. The applicant must exhaust administrative or other legal remedies available to him before he approaches the court for a mandamus.  Relief of a mandamus is an extra ordinary remedy and should be resorted to only in exceptional circumstances. The mandamus is purely in the discretion of the court and such discretion should be exercised only where the mandamus serves a useful purpose.

It is on the basis of these legal principles that this application must be viewed and considered.

The application of the law to the facts

The crisp question in this application is whether the applicant has shown an entitlement to the order sought i.e. a mandamus. The applicant seeks to compel administrative authorities to pay him what he considers to be due to him by way of salaries and other benefits. The applicant must meet the requirements of a mandamus. He must first establish a clear right.

In his founding affidavit and answering affidavit the applicant anchored his cause of action on the Supreme Court order. He was very clear in his founding affidavit that he was suing on the basis of the Supreme Court order, he avers that it was on the basis of the order that he was entitled to the monies he was claiming. In the answering affidavit he made the point that the reading of the Supreme Court order shows that after reinstatement he was entitled automatically to his salaries. In his heads of argument it is very clear that his claim for salaries is based on the Supreme Court order.

The Supreme Court order placed the applicant in the position of a litigant who has appealed to the Police Service Commission. Appeals against the decision of the commissioner are governed by section 51 of the Act which provides:

A member who is aggrieved by any order made in terms of section forty-eight or fifty may appeal to the Police Service Commission against the order within the time and in the manner prescribed, and the order shall not be executed until the decision of the Commission has been given.

It is clear from a reading of section 51 that an appeal to the commission suspends the order appealed against. The dismissal of the applicant was suspended by the order of the Supreme Court and he reverted to the position of a litigant who has appealed to the Commission. The applicant was entitled to the status quo ante that subsisted before the discharge order was issued. In principle the applicant was correct that pending the decision of the Commission he was entitled to his salaries. I underscore that prior to the decision of the Commission dated 2nd March 2022 the applicant was entitled to the status quo ante that subsisted before the discharge order was issued. This is supported by the reading of section 51 of the Police Act. I note in passing that his difficulties might have turned on the failure to adduce evidence to support the amounts he was claiming. He did not even provide a pay slip to show the salary he was earning as a Sergeant.

The position has dramatically changed. I say so because at the hearing of this matter the applicant with the consent of Mr Jaricha produced a letter from the Commission dated 2nd March 2022. It says his appeal against discharge had been upheld and he had been reinstated to the Police Service with a reduction of rank and salary. He further produced the decision of the Commission, it says inter alia that on the 2nd March 2022 the Commission made a decision to reinstate the applicant to the Police Service with a reduction of rank and salary. The reinstatement was with effect from the 24 December 2015.

The commission has vacated the penalty imposed by the Commissioner-General of Police. The position of the applicant is no longer regulated by section 51 of the Police Act. It now turns on the immutable fact that the Commission has made a decision regarding his appeal. In determining this matter it would be remiss for this court to act as if the position of the applicant is still regulated by section 51. It is not. It is now regulated by the decision of the Commission. In his oral submissions it was clear that the applicant was alive to this phenomenon.  In his submissions the applicant euphemistically shifted from anchoring his cause of action on the Supreme Court order to anchoring it on the decision of the Commission reinstating him to the Z.R.P.

The applicant in his oral submissions attempted to justify the amount of USD23 039.00 or RTGS equivalent at current official rate he was claiming. His calculations were faulty in a number of respects; he based his calculations on the salary he was earning as a Sergeant. He is not a Sergeant. Mr. Jaricha submitted that the applicant is now a Constable in the ZRP. I agree. His rank and salary had been reduced with effect from the 24 December 2015. This is the reality brought about by the decision of the Commission. The decision of the Commission is extant.  It is a reality that applicant has to contend with. This court cannot turn a blind eye to this reality. To compound the problem he did not even produce his pay slip to show the salary he was earning as a Sergeant. The applicant seeks to overcome this difficulty by saying that the salaries of civil servants are well known. But that is no answer.

In his oral submissions the applicant made various calculations and conversion rates from USD to RTGS. These calculations and conversions rates do not appear in his founding affidavit, even in his answering affidavit for that matter. The position is now settled in this jurisdiction that an application stands or falls by its founding affidavit and the facts alleged in it. Although it is sometimes permissible to supplement the allegations contained in the founding affidavit, the main basis of the application is the allegation of facts stated therein. See: J C Connolly & Sons (Pvt) Ltd v Ndhkukula & Anor 2018 (1) ZLR 219 (S). The failure to provide the calculations and conversion rates in the founding affidavit is a serious flaw. It is a serious pitfall. No weight can be attached to calculations and conversions emerging for the first time in oral submissions.

The applicant has not established a clear right. I say so because the amount he is claiming is anchored on the salary of a Sergeant. He is not a Sergeant. He is a Constable. He has been reinstated as a Constable with effect from the 24 December 2015. Even moreso he has not produced his pay slip to support his claims. His calculations and conversions rates from USD to RTGS are confusing. He has not produced evidence of the source of his conversion rates. This court cannot just accept his ipso dicta without more.

The applicant claims that the 2nd respondent gives him back 88 days which were unlawfully subtracted from his leave days. There is no basis for this claim. It does not appear in the founding affidavit. It does not even appear in the answering affidavit. He has produced no evidence to support this claim. It cannot succeed.

The jurisprudence in this jurisdiction and other jurisdictions show that without establishing a clear right a litigant cannot succeed in a claim for a mandamus.  In Mahambehlala v Member of the Executive Council for Welfare, Eastern Cape Provincial Government 2003 9 BCLR 899 (SE); 2002 1 SA 342 (SE) a mandamus was granted. The brief facts of the Mahambehlala case are that the applicant had waited for nine months for her disability grant to be approved. The court found that the period taken to process the applicant’s grant was unreasonable, taking into account that three months would have been more than sufficient to deal with her application. The applicant had established a clear right. Mahambehlala is distinguishable from this case in that in casu the applicant has not met the first requirement i.e. to establish a clear right. In Kaunda v The President of the Republic of South Africa 2004 (10) BCLR 1009 (CC) the applicants who had been detained in Zimbabwe, claimed for relief in the form of a mandamus ordering the government to take action at a diplomatic level to ensure that the rights the applicants claimed to have under the South African Constitution were respected by the two foreign governments of Zimbabwe and Equatorial Guinea. The application for a mandamus was refused by the Constitutional Court of South Africa. A reading of the judgment shows that the mandamus was refused on the basis that the applicants had not established a clear right entitling them to a remedy of a mandamus. See also: Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (1) ZLR 289 (SC). Without establishing a clear or definite right which is a matter of substantive law a litigant cannot succeed in a claim for a mandamus.

In the circumstances it is not necessary to deal with the other requirements of a mandamus i.e. whether applicant has suffered an injury actually committed or reasonably apprehended and whether there is a similar protection by any other remedy. Without a clear right these other requirements do not even arise.

The applicant have failed to establish that the respondents’ refusal to meet his demands are inconsistent with their statutory duties. Put differently, the refusal to pay the applicant is not the result of any unlawful conduct on the part of the respondents or of the breach of any duty they owed to him. The claim as formulated in the prayer and as amended by the applicant must therefore fail.

The general rule in matters of costs is that the successful party should be given its costs, and this rule should not be departed from except where there are good grounds for doing so. I can think of no reason why I should deviate from this general rule. I therefore intend awarding costs against the applicant.

In the result, I order as follows:

The application be and is hereby dismissed.

The applicant shall pay the costs of suit.

Civil Division of the A-G’s Office respondents’ legal practitioners