Shingirai Ngavafume and Takavengwa Gwenzi and Siribiniyo Chikunhire v The Commissioner General of Police N.O and Augustine Masiya N.O and The Provincial Magistrate, Chinhoyi N.O

### Preamble
1
HCC82/
24 HCCC
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SHINGIRAI NGAVAFUME

And

TAKAVENGWA GWENZI

And

SIRIBINIYO CHIKUNHIRE

Versus

THE COMMISSIONER GENERAL OF POLICE N.O

And

AUGUSTINE MASIYA N.O

And

THE PROVINCIAL MAGISTRATE, CHINHOYI N.O

HIGH COURT OF ZIMBABWE MUZOFA J

CHINHOYI 24 October & 5 November 2024

Urgent Chamber Application

M. D. Hungwe,for the applicant

F. Chimunoko with T. Serengwa, for the 1st & 2nd respondents No appearance for the 3rd respondent

MUZOFA J: [1] This is an urgent chamber application for stay of execution pending determination of an application for review under HCCC151/24.

The Parties

[2] The applicants are male adults with capacity to sue and be sued.

[3] The 1st respondent is cited in his official capacity as he superintends and controls the Police  in Zimbabwe.

[4] The 2nd respondent was the Officer In charge Nyabira Police and is cited in his official capacity as such.

[5] The 3rd respondent is a Provincial Magistrate and is cited in his official capacity.

Factual Background

[6] The 2nd respondent being the officer in charge Nyabira Police Station received on affidavit information that the three applicants acting separately had sexual intercourse with young persons below the age of 18 years. These young persons had given birth. There was further information that the applicants were influential members of the apostolic sect. They had threatened the complainants and other members of the congregations not to divulge information on the paternity of the children.

[7] The 2nd respondent applied for a search and seizure warrant for authorization to extract bodily samples from the applicants and the said children for forensic DNA analysis. The warrants were subsequently issued on the 24th of July 2024 by the 3rd respondent. According to the applicants they were not aware of the warrants until the 17th of October 2024 when they were served with the warrants.

[8] The applicants on legal advice given, believed that the warrants were irregularly issued. They immediately filed an application for review on the 18th of October 2024.

[9] Having been served with the warrants of search and seizure, the applicants realised that the day of reckoning was imminent. They then approached this Court on an urgent basis to stay execution pending the determination of the application for review.

Preliminary point taken

[10] On the date of hearing the applicants took a preliminary point. I advised parties to address the Court on the merits immediately after the submissions on the preliminary point. I also advised the parties that the finding on the preliminary point will determine whether the Court will address the merits of the case.

[11] It was submitted for the applicants   that there is no valid opposition before the Court the 2nd respondent was cited in person for conduct he personally did. The deponent to the opposing affidavit one Obey Sigauke ‘Obey’ is not a party in this case and has no authority to represent the 2nd respondent. The Court was referred to the case of Munandi Arcdel & D-troop Employees v Munandi – Arcdel & D- troop HH118/24 where the Court opined that a party who appears before a court in a  representative capacity must be authorized to do so by way of a special power of attorney or an  affidavit.

[12] The point taken was opposed and it was submitted that the 2nd respondent was cited in his            official capacity. The 2nd respondent had since retired and the person who took over can competently swear to the opposing affidavit.

[13] Further to that it was submitted that the applicants had not given notice in terms of the State Liabilities Act (Chapter 8:14) ‘ the Act’. The submission was not properly taken as properly submitted for the applicant. The relief sought by the applicants does not fall within the purview of s6 of the Act. Such notice is required where the applicant’s claim is for money, or the claim                    arises from a contract, delict or otherwise; or for the delivery or release of any goods.

[14] The only issue for determination is whether Obey can competently swear to an affidavit on behalf of the 2nd respondent.

[15] There is no doubt that the deponent to the opposing affidavit does not answer to the name Augustine Masiya. It is elementary that he needed authority to represent the 2nd respondent. However the case referred to by the applicants is distinguishable from this case. What escaped the applicants is that the parties in that case were not cited in their official capacity.

[16] In this case the 2nd respondent was cited in his official capacity despite the submission by counsel for the applicant that the 2nd respondent was cited in his personal capacity.The applicants described the 2nd respondent as follows,

‘The 2nd respondent is AUGUSTINE MASIYA N.O, an inspector and Officer in Charge at ZRP Nyabira cited in his official capacity and whose postal address is ZRP Nyabira, P. O. Box WGT 29 Westgate, Harare.’

[17] It is trite that an application stands or falls on the founding affidavit. Counsel for the applicants cannot amend the founding affidavits.

[18] It was clear in the applicants’ affidavits that the 2nd respondent was being sued in his official capacity for conduct done during the course of his duties. The letters ‘NO’ after a person’s name are used to indicate that such person is acting in a representative capacity. They are an abbreviation for nomine officio, a latin expression meaning ‘in the name of the office.’ See Swaziland Building Society v Sigwane (446 of 2017) [2017] SZHC 265.

[19] It then follows that whatever actions the 2nd respondent did while in office were done in the furtherance of the best interests of the office. It is the office that accounts and whoever sits in that office can swear to an affidavit.

[20] A Nominal Officio stands for an office, in this case it is a public office which represents public interest. For conduct done by a public official in his official capacity to be personalized may result in an absurdity. In this case the affidavits and the warrants are now at the disposal of Obey who is now in office. He can very well swear to an affidavit on behalf of the office. The preliminary point is dismissed.

I proceed to deal with the merits.

The submissions

[21]The applicants submitted that the application for review enjoys prospects of success in that the procedure culminating in the issuance of the warrants was inundated by several irregularities. An injustice would result if the applicants’ samples are drawn based on the warrants issued by the 3rd respondent.

[22] The applicants highlighted a number of deficiencies in the application. That the 2nd respondent applied for warrants of search and seizure in terms of s50 (1) of the Criminal Procedure and Evidence Act (Chapter 9:07). The articles for seizure under s50(1) do not include bodily samples or buccal swabs. The applicants relied on the case of Mawadze v Commissioner General of Police N.O & Others HH604/22 for this interpretation.

[23] Further to that it was submitted that the conduct forming the basis of the offence was not a crime at the time of the application. Section 70 of the Criminal Code was declared unconstitutional in the case of Kawenda v Minister of Justice Legal and Parliamentary Affairs & 2 Others CCZ 3/22.The law is clear that no one must be prosecuted for conduct that was not an offence at the time of commission.

[24] The third irregularity was that the there was no evidence that the applicants were approached and declined to provide such bodily samples in terms of s41 (B) (2) of the CPEA. To that extent no jurisdictional basis was established for the 2nd respondent to approach the 3rd respondent. The condition precedent to the application is a verbal or written request to the applicants and a refusal upon such request. It is only then that an application can be made.

[25] The application was opposed. The respondent conceded that such an application must be made in terms of s41 (B) (2) of the CPEA. Despite that concession the respondents sought to treat it as a mistake it was submitted that this was a stray pen. On that basis the Court was urged to treat the applications for the warrant as such.

[26] On the consent, it was submitted that the applicants had declined to have samples taken from them. Further it was submitted that the period within which the offences were committed include January 2024 when contravention s70 of the Criminal Code was still a competent offence.

The law

[27]  The requirements for an application of stay of execution to be granted were set out in the case of Mashamhanda v Bariadie Investments Private Limited & Anor SC 17/24.The Court had this to say,

‘The requirements for an application of stay of execution were set out in Cohen v Cohen 1979 RLR 184. In that case the court held that, for the court to grant stay of execution it must be satisfied that an injustice would result if stay was not granted. See also Chibanda v King (1) 1983 ZLR 116. In the words of MAFUSIRE J in Reef Mining (Pvt) Ltd & Another v The Sheriff HH – 163 – 15, “it would mean justice would turn on its head if stay was not granted”.

[28] An application for stay of execution then turns on a value judgment by the Court on involving a balancing act between the competing interests before the Court.

Analysis

[29] The respondents’ approach was too laid back. The application was made and granted based on s51 (1) of the CPEA. The section relates to search and seizure without warrant of any person or premises for the purposes of seizing any article referred in s49 of the Act. It has nothing to do with bodily samples. To simply take it as an innocent mistake would be tantamount to sanitizing ineptitude. It was up to the 2nd respondent to make sure that the proper application is placed before the 3rd respondent.

[30] That justice must be seen to be done means that both the procedural and substantive processes must be done according to the law. In this case the warrants of search and seizure were irregularly obtained.

[31] My finding can dispose of the matter but for completeness l proceed to deal with the other issues raised.

[32] In respect of the respondent’s consent Mr Chimunoko submitted that it was sought verbally and the applicants declined. He must have realized that the affidavit by Obey used before the 3rd respondent was silent on the issue, he was quick to ask the Court to condone the respondents.

[33] Section 42(B) (1) of the CPEA provides,

41B Bodily samples for investigation purposes

(1) An authorised person may take a bodily sample of a person or group of persons, or supervise the taking of a bodily sample from any person or group of persons, if the person or persons concerned consent to such sample being taken at the verbal or written request of a peace officer who is satisfied that there are reasonable grounds—

(a) to suspect that the person, or any one or more persons in a group of persons, has committed an offence; or

(b) for believing that the bodily sample and the resulting forensic DNA analysis thereof will be of value in the investigation of an offence by excluding or including one or more persons as possible perpetrators of the offence.

(2) If a person does not consent to the taking of a bodily sample, a warrant may be issued by a judge or magistrate upon written request by a police officer who is of or above the rank of inspector, if it appears from written information given by the police officer under oath that there are reasonable grounds—

(a) to suspect that the person named in the information, or any one or more persons in a group of persons so named, has committed an offence; or

(b) for believing that the bodily sample and the resulting forensic DNA analysis thereof will be of value in the investigation of an offence by excluding or including one or more named persons as possible perpetrators of the offence.

[34] The requirement for the respondents to seek the applicant’s consent is meant to avoid a plethora of applications to Magistrates and Judges. In some instances the intended persons may give their consent thereby avoiding the applications. Courts are generally busy and where cases can be dealt with outside court the better.

[35] In terms of the law the respondents were required to seek the applicants’ consent first before approaching the 3rd respondent. This was not done.

[36] Thus, the averment that the request was made and not granted must appear post facie the affidavit before the Magistrate or the Judge. In this case neither Obey nor the 2nd respondent even referred to such consent being sought. The affidavit is silent on the issue. Mr Chimunoko requested that the Court condones the respondents, it was unclear what was supposed to be condoned. There was nothing to condone unless he intended that the Court overlook the irregularity. That is not possible since those are the grounds for review in the main matter.

[37] On that basis again, that applicant’s consent was not sought the review would enjoy prospects of success.

[38] On whether the conduct complained of constituted a criminal offence/ It appears the respondents submissions were well taken.

[39] I am indebted to the judgement of my brother JUSTICE MUTEVEDZI who set out the bumpy life of s70 of the Criminal Code in S v Chitsedza HH258/24. The story of s70 of the Criminal Code started off  in May 2022 when it was declared unconstitutional in the Kawenda judgment (supra). It remained valid after a moratorium until 24 May 2024.  From 25 May to mid January there was no such offence. In January 2024 Statutory Instrument 2 of 2024 came into effect, precisely on 12 January. It was effective for 6 months. It therefore lapsed in July 2024.The period thereafter is irrelevant for the purposes of this case.

[40] The period within which the impugned conduct is said to have taken place stretches up to January 2024. It appears in its wisdom the State hazards the period when the offence could have been committed from the ages of the children born to the complainants.

[41] From the foregoing it would appear that the issue that the conduct complained of was not an offence at the time  of prosecution cannot succeed.

Disposition

[42]  It is apparent that the 1st and 2nd respondents did not comply with the law in seeking the warrants of search and seizure. The respondents are required as of law to comply with the procedural aspects which are equally important as the substantive aspects of a matter.

[43] The applications were supposed to be made under s41 (B) and that section must appear on the affidavit. The application was supposed to be preceded by a request to obtain samples.The respondents could only approach the 3rd respondent after the applicants had declined to provide the samples freely. The averment that this happened must be clearly stated in the affidavit. In this case there was no such averment.

It is on that basis that the application is granted as follows.

PROVISIONAL ORDER

_________________________________________________________________________

To:	The Respondents

TAKE NOTE that on the 5st day of November 2024, Honourable

JUSTICE MUZOFA sitting at Chinhoyi issued a Provisional Order

as shown overleaf.

The annexed Chamber Application, Affidavits and documents were used in support of the Application for this Provisional Order.

If you intend to oppose the confirmation of this Provisional Order, you will 
have to file a Notice of Opposition in Form 24 together with one or more 
Opposing Affidavits with the Registrar of the High Court at Harare within ten days

You will also have to serve a copy of the Notice of Opposition and Affidavits on the Applicant at the address specified in the Application.

If you do not file an Opposing Affidavit within the period specified above this application will be set down for hearing in the High Court without further notice to you and will be dealt with as an unopposed Application for confirmation of the Provisional Order.

If you wish to have the Provisional Order changed or set aside sooner than the Rules of Court normally allow and can show good cause for this, you should approach the Applicant's Legal Practitioner to agree, in consultation with the Registrar, on a suitable hearing date. If this cannot be agreed or there is great urgency, you may make a Chamber Application, on notice to Applicant for directions from a Judge as to when the matter can be argued.

DATE	BY THE JUDGE

INTERIM RELIEF GRANTED

Pending the determination of the application for review, the applicants are granted relief in the following terms: -

That the execution of warrants of search and seizure issued by the 3rd Respondent on the 24th of July 2024 compelling the extraction of bodily samples for forensic DNA analysis from the applicants be and are hereby stayed pending determination of application for review filed by the applicants.

That the 1 s t and 2nd Respondents be and are hereby ordered not to compel the extraction of any bodily samples from the applicants without their informed and written consent pending determination of application for review filed by the applicants.

SERVICE OF THE PROVISIONAL ORDER

Service of this provisional order shall he done by the Sheriff of Zimbabwe, or alternatively, it shall be done by a clerk in the employ of Messrs MD Hungwe Attorneys at Law’

MD Hungwe Attorneys at Law, applicants’ legal practitioners

Civil Division of the Attorney General, 1st 2nd respondent’s legal practitioners