Tafadzwa Mupamba v The Police Service Commission and Another and Another

### Preamble
HB 46/25
HC 1600/23-1
TAFADZWA MUPAMBA
APPLICANT
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TAFADZWA MUPAMBA      				      		APPLICANT

Versus

THE POLICE SERVICE COMMISSION                                     1ST RESPONDENT

AND

THE COMMISSIONER GENERAL OF POLICE	           	2ND RESPONDENT

AND

MINISTER OF HOME AFFAIRS              			3RD RESPONDENT

IN THE HIGH COURT OF ZIMBABWE

DUBE J

BULAWAYO 21 & 22 OCTOBER 2024

Court Application for Review

Mr D Kossam for the Applicant

Mr S Jukwa for the 1st - 3rd Respondents

Introduction.

DUBE J: In the book The Practice of the High Court of South Africa, Volume 1, 5th Edition, page 723 per Herbstein and van Winsen the learned authors remarked as follows:

“The court may on good cause shown, condone any non-compliance with the rules. The circumstances or cause must be such that a valid and justifiable reason exists why compliance did not occur and why non-compliance can be condoned.” (my own underlining)

I deliberately underlined the words “good cause shown”. The reason is simple. There is no good cause. If by any means it exists, it is not shown in this matter.

Brief Facts

Applicant seems to have been employed as a police officer. He does not say what rank he held. He states that there were allegations of corruption levelled against him i.e. that while on duty he received a bribe. He was acquitted by the criminal court. An inquiry was however made into his suitability to remain in the force. He was found wanting and was discharged by the 2nd Respondent. He appealed to the 1st Respondent who upheld the dismissal. He intends to have such decision reviewed. It is not clear, whether he is aggrieved by the decision to discharge him or the decision to uphold such discharge.

Applicant complied and filed his papers as a self-actor. His papers are scant and lack clarity.  He claims to have become aware of the decision upholding his discharge on the 30th March 2023. He refers to an Annexure “A” but does not attach it to his papers. Applicant however states that by the time he decided to file his application for review he was 2 months out of time. Without his Annexure “A” it is impossible to tell. His application for condonation bears the date of 1st August 2023. If it is correct that he became aware of the decision to uphold his dismissal on the 30th March, 2023 then by the 1st August of the same year he would have been about 2 months out of time.

Rule 62(4) of the High Court Rules 2021 provides as follows:

“Any proceedings by way of review shall be instituted within eight weeks of termination of the suit, action or proceedings in which the irregularity complained of is alleged to have occurred”

In his founding affidavit the Applicant gave his reasons for delay as having fallen ill to such an extent that he could not file any court papers. He further claims as follows;

“All monies I was getting were channelled to the hospital bills and that is why I have   come as a self-actor.”

The first and most crucial reason for the delay according to the Applicant is illness. His second is lack of funds resulting out of hospital bills. In other words, he ran out of funds, presumably to instruct a lawyer to help him in bringing up this application as a result of footing medical bills in hospital.

Before this matter could be heard Applicant secured services of his current legal practitioner. He filed heads of arguments on his behalf. Counsel introduced a rather unusual dimension to the matter. In the said heads, a fresh factual averment was introduced. That is strange. The averment in itself is stranger, if not outright novel. The averment is as follows;

“3. THE EXTENT OF THE DELAY”.

3.1. The Applicant delayed to file the Application for review with about two months. He fell sick suffering from a chronic disease which led to him being ferried to his rural home where as usual he was attended to by his grandfather”

Firstly, the chronic illness is not disclosed. Secondly, I find nothing usual about the illness being attended to by their grandfather. This averment is missing from the Applicant’s own founding affidavit. This needles to say does not speak to the extent of the delay. Rather it purports to speak to the reason for the delay.

The factual averments in the heads proceed at paragraph 4, as follows;

“4. REASONABLENESS OF THE EXPLANATION FOR THE DELAY

4.1. The Applicant, who is a first son in the family, is believed to be the one the family relies on when it comes to spiritual issues. It is believed his ancestors are on him and the family relies on him each time they want to solve spiritual problems and sometimes if he feels sick, it is believed the ancestors are not happy with something.

4.2. In casu, just after discharge, he proceeded to the rural home where his illness was attended to and all requirements in terms of the spiritual issues of the family were dealt with. Thus, he could not file the review application timeously.”

With respect to counsel, this paragraph despite being so headed, does not speak to the reasonableness of the explanation proffered. Issues of religion aside, these factual averments are coming from Counsel, not the deponent to the founding affidavit. It is counsel who signed the heads. It is not common practice, nor is it permissible to introduce facts so far-fetched from the founding affidavit through heads of arguments. In any event in his founding affidavit the Applicant spoke of falling out of pocket as a result of paying hospital bills. I agree with Counsel for the Respondents that a hospital is a hospital and can not be confused with some spiritual shrine. In any event if Applicant was being attended to by his grand father would he have paid bills? His founding affidavit does not say so, and I do not believe that to be the case.

I agree with counsel for the Respondents when he argues that, the above is a creature of Applicant’s counsel in an effort to side step having to produce medical records. If indeed Applicant sought spiritual intervention, he ought to have attached a supporting affidavit from such a practitioner. Failure to do so is a disservice to his own application.

The Law

In the matter of National Social Security Authority v Chipunza SC116-04 it was held that:

“In considering an application for condonation of failure to comply with the rules of court …. the court weighs, among others, the following factors:

The degree of non-compliance;

The explanation given for it;

The importance of the case;

The prospects of success;

The respondent’s interest in the finality of his judgment;

The convenience of the court and

The avoidance of unnecessary delay in the administration of justice.”

In the present matter the degree of non-compliance is not inordinate. The reasons advanced for such delay are however very far detached from candour or any form of probity.

In the matter of Ex-Constable Gani 987343Y v The Commissioner General of Police and Another HH 570-22, Mangota J (as he then was) held as follows:

“The above-stated requirements are not exhaustive. They, however offer a good guide   to a court which is seized with an application of the present nature. None of the seven requirements is on its own decisive. They are considered together and are, in fact weighed one against the other in an effort to do fairness and justice to the two parties whose case is before the court at any given time.”

When one has regard to the importance of the case to the Applicant, one can not but wonder why if the case is so important to him did, he not act within the prescribed time limits. If indeed he had financial difficulties disabling him from seeking legal help why is he not being forthright with the court? Why does he allege an ailment that he cannot prove? I am of the view that the Applicant had acquiesced to the 1st Respondent’s decision. The need to seek review only came as an afterthought. He has no good reason for the delay that is why either by himself or through his counsel, he comes up with tall tales of spirit mediums and other such fables. If anything, this is testimony that Applicant has no reasonable explanation for the delay.

It is inconvenient for the court to be dealing with Applicants who do not abide by the rules of court yet still lack candour. As the saying goes, he who seeks equity must do equity.

Disposition

In the circumstances, this court finds that the Applicant has not shown good cause for the relief he seeks.

Resultantly his application is hereby dismissed with costs.

Liberty Mcijo and Associates   applicant’s legal practitioners

Civil Division of the Attorney General’s Office   1st - 3rd respondents’ legal practitioners