Constable Sibanda K. 067776T & 23 Ors v Trial Officers & 2 Ors

### Preamble
1
HH 302-13
HC 6287/13
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CONSTABLE SIBANDA K. 067776T

and

CONSTABLE LUNGA M. 067848 X

and

CONSTABLE INSPECTOR TARUSIKIRA 049943K

and

CONSTABLE KALANI E. 070453D

and

ASSISTANT INSPECTOR DUBE 049758J

And

SERGENT HWAMI 062528P

and

SERGENT CHIBORA T. 063910R

and

ASSISTANT INSPECTOR DUBE D. 05277Y

And

ASSISTANT INSPECTOR MOYO E. 053645J

and

ASSISTANT INSPECTOR MAPHOSA F 983210F

and

ASSISTANT INSPECTOR CHATUKUTA L 054539F

and

ASSISTANT INSPECTOR MJIKWA M 066410J

and

SERGENT MUKUKU E. 062221F

and

SERGEANT MUTANDAVARI M. 983539N

and

CONSTABLE CHIRONDA L. 070587Z

and

CONSTABLE SENDO A 987951J

and

CONSTABLE NDUDZO F. 074217V

and

CONSTABLE KAWERENGA S. 067297Y

and

CONSTABLE DHLAMINI S. 072325N

and

CONSTABLE CHITSUNGE C. 068649S

and

CONSTABLE MBEDZI G. 077292M

and

CONSTABLE MAUNGA M 989746K

and

CONSTABLE MASIMBITI M. 067770M

and

CONSTABLE MAPHANA P. 074210M

versus

TRIAL OFFICERS

and

THE COMMISSIONER GENERAL OF POLICE

and

THE CO-MINISTERS OF HOME AFFAIRS

IN THE HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 7, 8 August 2013 and 18 September 2013

URGENT CHAMBER

CHIGUMBA J: This is an urgent chamber application in which the first to eighth applicants seek the following relief:-

Pending the confirmation of the provisional order the first and second respondents re-detention of the applicants be stayed pending the finalisation of the applicants’ application for review in case number HC 5617/13, 5626/13, 5713/13, 5625/13, 5711/13, 5612/13 and 5622/13.

At the hearing of the matter counsel for the applicants indicated that the applicants had since been released from detention and that applicants no longer sought to be released forthwith.

Counsel for the applicants also indicated that the ninth to the twenty-fourth applicants wished to be joined to the proceedings and filed supporting affidavits on their behalf.

Respondents did not oppose the joinder of 9th to 24thapplicants to the proceedings Counsel for the applicants then filed an amended provisional order to reflect the addition of 9th to 24thapplicants and to erase the second point of the interim order sought, which related to the immediate release of the applicants from detention.

The background to this matter is that the 24 applicants, all officers of the Zimbabwe Republic Police, were charged on 29 April 2013 at Ntabazinduna in terms of the Police Act [Cap 11:10] with various offences of contravening the schedule to the Police Act as read with s 29A of the Police Act and were convicted by the 1strespondents, trial officers.  They were sentenced on 3 May 2013 to between 14 to 140 days imprisonment, and to pay fines ranging from US$80-00 to US$100-00.

The applicants appealed against both conviction and sentence on 9 May 2013.  They were released from detention barracks after filing their notices of appeal.  Applicants contend that the respondents refused to respond to their appeals, contrary to the provisions of the 1965 regularities to the Police Act.  They proceeded to file applications for review with this court on 11 July 2013 in which they challenged the decision of the first respondents to fail to respond to their appeals against conviction and sentence.  They applied for review of the trial procedure adopted by the first respondent and of their detention for 5 days in holding cells, pending their trials, and various other alleged infractions such as failure to be provided within food and medical attention, amongst other things.

Applicants contend that on 24 July 2013, they were advised by the officer in charge at Fairbridge Support Unit that their appeals had not succeeded and were placed in custody to serve their sentences.  That action prompted the applicants to approach the court on an urgent basis for the operation of their sentences to be stayed, pending determination of their applications for review.  The applicants contend that the respondents will not suffer any prejudice if their detention is stayed pending finalisation of their applications for review.

At the hearing of the matter, counsel for the applicants relied on the General Laws Amendment Act No. 5 of 2011 which amended the Criminal Procedure and Evidence Act [Cap 9:07] by repealing s 372 thereof.

The General Laws amendment Act substituted s 372 of the Criminal Procedure and Evidence Act with the following:

Section 4 (3) General Laws Amendment Act no. 5 /2011, (GLA 5/2011) which states that:

Section 373 (3) where an accused against whom an award or order is made in terms of this part appeals against his or her conviction, sentence or both such appeal shall-

Not be regarded as an appeal against the award or order even if the execution of the sentence is suspended conditionally upon payment of the compensation or restitution of the property required by the award or order.

Not suspend or affect the award or order even if such appeal is successful.

Section 4 (4) prescribes that an appeal shall be made not earlier than 30 days from the date of the award, if the award has not been registered as an order of a court of competent jurisdiction.

Applicants were sentenced on 3 May 2013.  They contended that they are entitled in terms of s 4 (4) of the GLA 5/2011, to appeal against that part of their sentences wherein they were ordered to pay fines ranging from US$80 – US$100.

Their appeals against the imposition of the fines having been partly made in s 4 (4) (b) of the GLA 5 /2011 it now falls upon the court to decide whether the applicants’ competent noting of their appeals suspends the operation of the orders appealed against.  The court must also determine whether the applicants review applications also suspend the operation of their orders.

It was submitted on behalf of the respondents that the applicants’ appeals have already been determined and dismissed.  Respondents contended that this means that, the applicants’ convictions and sentences have been upheld by the appeal court. It was submitted that the sentences have been reduced, on appeal, to competent levels of 14 days imprisonment and fines of US$10.  Respondents submitted that the only outstanding issue is the applicants’ applications for review before this court.  Respondents submitted that the issue that falls for determination by this court is whether the relief sought by the applicants is competent, whether an application for review of completed proceedings before an inferior court or tribunal suspends the operation of the judgment or sentence that is sought to be impugned in the review proceedings. Respondents submitted that applicants ought to have filed an application for stay of execution, pending review before the tribunal , not before this court, because an application for review does not suspend the execution of sentence.

In the case of Attorney General v James Chafungamoyo Makamba SC 30/05, MALABA JA, as he then was, stated that:

“… a superior court  may intervene in completed proceedings of an inferior court on review.”

It is this court’s view that, there is nothing in s 26 of the High Court Act [Cap 7:06], which confers review powers on this court, which suggests that proceedings can automatically be stayed, or suspended pending determination of an application for review.  The record of proceedings before the court a quo is not before me. I am unable to determine the prospects of success on review, not having perused or had sight of the record of proceedings.  I am unable to find a compelling reason why I should consider staying the execution of the applicants’ sentences pending determination of their applications for review.  I am not seized with the determination of the applicants’ applications for review on merit, therefore, I am unable to exercise the discretion reposed in a reviewing judge in determining the applicants’ entitlement to any of the remedies available on review.

It is my view that, contrary to the submission by counsel for the applicants, the GLA Act No. 5 /2011 does not provide for the suspension of sentences pending review.  It merely allows for appropriate applications for suspension of the operation of orders for restitution or  other  awards  such as community service, within 30 days of the date of the award or order.

It is common cause that the applicants’ appeals have already been disposed of in terms of section 33 of the Police Act [Cap 11:10]. s 31 of the Police Act, which governs automatic  reviews is silent in regards to the question of the effect of an automatic referral  for review on the operation of  sentence.

Section 33, which relates to appeals is different from section 31. It provides that:-

33 Appeal from board of officers to High Court

Any person convicted of an offence by a board of officers may appeal to the High Court against such conviction or any sentence or order of such board.

The provisions of the Magistrates Court Act [Cap 7:10] and the High Court Act [Cap 7:06]which relate to appeals from a magistrates court, the prosecution of such appeals, the powers of the High Court thereon, the execution and suspension of sentence and the institution of further proceedings after a conviction has been set aside shall apply, mutatis mutandis, to appeals from a board of officers:

Section 33 expressly stipulates that the provisions of the Magistrates Court that govern appeals to this court shall apply to appeals in terms of the Police Act. It expressly stipulates that the powers of this court in regards to the execution and suspension of sentences shall apply. Clearly, the legislature did not intend that similar provisions be applicable on review (automatic review or otherwise).

The court can only fall back on the common law position that the filing of review proceedings does not (automatically) suspend the operation of sentence. If the record of proceedings before the court a quo had been placed before me perhaps, after having formed a view of the prospects of success of the applicants’ review applications, the court could have considered exercising its discretion to grant the relief sought.

As the matter stands, there is no evidence before me, on the papers filed of record, of the gross irregularities alleged by the applicants in the proceedings of the court a quo.

If one has regard to the provisions of s 31 of the Police Act, only those sentences of imprisonment for a period in excess of one month or a fine in excess of level three are subject to automatic review.  Respondents have reduced applicants’ fines to US$10, and or imprisonment for 14 days. Those proceedings would not qualify for automatic review. I concede however, that s31 is silent on whether a party can apply for review of its own accord.

I find that from the papers filed of record, I am unable to assess the applicant’s prospects of success on review.  I am therefore unable to accede to the relief sought by the applicants  because there is nothing before me to persuade me to override the common law position that the filing of a review application has no automatic effect on conviction or sentence.  No evidence of exceptional circumstances or gross miscarriage of justice have been placed before me.

I therefore dismiss the application on that basis. Costs shall follow the cause.

Mugiya & Macharaga, applicants’ legal practitioners

Attorney General, respondents’ legal practitioner