Ex-Constable Shiri Tatenda 087585A v Chief Superintendent Chihwereva (Trial Officer) & 2 Ors

### Preamble
1
HH 611-25
HCH 1627/25
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EX-CONSTABLE SHIRI TATENDA 087585A

versus

CHIEF SUPERINTENDENT CHIHWEREVA (TRIAL OFFICER)

and

THE COMMISSIONER GENERAL OF POLICE

(STEPHEN MUTAMBA)

and

THE POLICE SERVICE COMMISSION

HIGH COURT OF ZIMBABWE

MAXWELL J

HARARE, 16 July & 9 October 2025

Opposed – Contempt of Court

V T Mugiya, for the Applicant

F Chimunoko, for the Respondents

MAXWELL J:   Applicant approached the court in terms of r 79 of the High Court Rules 2021 seeking an order that the respondents be held to be in concept of a lawful court order in HCH 1269/24.  Applicant stated that he was employed by the third respondent under the command of the second respondent.  He was charged for contravening provisions of the Police Act [Chapter  11:10].  He was convicted and sentenced.  He appealed to the second respondent who upheld his conviction and convinced a suitability board which recommended his discharge from the police service.  He appealed to the third respondent.  He alleged that he was not heard but was advised through a letter that his appeal had been dismissed.  He thereafter sought a review of third respondent’s decision. The discharge was set aside and an order of reinstatement without loss of salary and benefits was given.  Applicant submitted that despite being aware of the existence of the said court order, respondents have not taken the necessary steps to comply with the court order.  Further that the respondents are in contempt of an order of this honourable court and should be ordered to purge their contempt.

The respondents opposed the application.  The second respondent deposed to the opposing affidavit raising a point in limine that applicant had not complied with r 15(2) of the High Court Rules 2021 which mandates personal service where an order affecting a person’s liberty is sought.  He pointed out that service upon him was affected through one of his officers manning the Police General Headquarters Reception.  He further pointed out that he does not share the same address with the first respondent contrary to the averments in the founding affidavit.

On the merits, he confirmed that the applicant was tried and properly discharged from service. He pointed out that the order applicant is basing upon is a default order and an application for rescission was filed to set aside the order.  Second respondent submitted that it is ill-advised for applicant to seek to enforce an order which is being challenged.  He expressed the view that the execution of the order in the circumstances would be improper and may impede on justice if it is successfully challenged.  He attached the pending applications which are under references HCH 1963/25 and HCH 4849/24.

In answer applicant insisted that all the respondents were properly served.  He pointed out that an application for rescission does not stay the execution or compliance of the order of the court on the main matter.  In heads of argument applicant argued that he met the requirements for an order in his favour.  He referred to the case of Mukambirwa and 7 Others v The Gospel of God Church International SC 8/2014 where the requirements are listed as:

There is a court order which is extant.

The order has been served on the individuals concerned.

The individuals in question know what it requires them to do or not to do.

Knowing what the order dictates, the individuals concerned deliberately and consciously disobeyed the order.

He submitted that civil contempt is the wilful and mala fide refusal or failure to comply with a court order.  he also referred to the case of Christopher Chiwalo v Domnic Musekiwa HH 186/12 in which it was stated.

“The question to be asked is whether the respondent is in wilful defiance of this order… The term wilful denoted disregard of the order given without lawful or other justification.  The respondent must have set out to defy the order regardless of the consequences.”

In respondents’ heads of argument, it argued that after a default order was granted, the respondents did not sit on their laurels but are seeking justice and have filed an application for rescission of the judgment.  They referred to the case of Strong and Another v Wachenuka HH 44/10 in which it was stated that once the applicant

“had established that the respondent has failed to comply with the order, the onus shifts to the respondent to establish that he or she was not wilful and mala fide.  (See Hebstain and Van Winsen, The Civil Practice of the Superior Courts of South Africa, 1st ed p 657 and Macheka v Moyo 2003(2) ZLR 49 @ 53G-54A.”

They further stated that they have sought to stay the execution so that the interests of justice are served.

Analysis

Whilst the point in limine has merit, it does not dispose of the matter.  All it would require is that proper service be effected.  That is not necessary at this stage.  On the merits, applicant seeks that the respondents be committed to civil imprisonment for a period of ninety days if they do not purge their contempt within ten days.  The order the respondents are alleged to be in contempt of require that they reinstate the applicant into the police service without loss of salary and benefits.  It is common cause that the third respondent is the employer.  It is also common cause that third respondent cannot be committed to civil imprisonment.  The order sought is therefore incompetent.  First and second respondents do not have the authority to reinstate the applicant.  They cannot be committed to civil imprisonment for failing to do an act which is beyond their mandates.  For that reason, the first and second respondents cannot be said to have acted in contempt of the order.  The fourth requirement was not satisfied.  It states that:

“knowing what the order dictates, the individuals concerned deliberately and conscientiously disobeyed the order.”

Apart from the lack of capacity to comply with the court order by first and second respondents, the applicant has not shown that the respondents acted wilfully and mala fide.  The existence of a court case challenging the very order they are alleged to be in contempt of removes the mala fides.  If their application for rescission fails and they still do no comply, then the respondents would indeed be acting wilfully and mala fide.

For the above reasons I do not find merit in the application.  I make the following order.

The application be and is hereby dismissed with no order as to costs.

Maxwell J:………………………………..

Mugiya Law Chambers, applicant’s legal practitioners

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