Constable Mukanya G. and Others v The Trial Officer (Superintendent Nyahanana) and Another

The three applicants were constables in the Zimbabwe Republic Police who were charged with contravening paragraph 35 of the Schedule to the Police Act. They were found guilty by the first respondent (Trial Officer) and each ordered to pay a fine of $10, and were subsequently discharged from the Police Service. The applicants purported to appeal on 19 February 2016 (one day after conviction and sentence), alleging that the District Clerk refused to accept or stamp their notice of appeal. On 23 February 2016, they filed their notice of appeal with the second respondent (Commissioner-General). The applicants had previously obtained an order in Case No. HC 3607/16 regarding the alleged refusal to accept their notice of appeal. The first respondent contended that the applicants had not properly served the notice of appeal upon him as required by the Police (Trials and Boards of Inquiry) Regulations, 1965, and therefore no appeal was pending.

• Whether the applicants could properly seek a permanent stay of prosecution when they themselves were the appellants in the matter
• Whether the court could grant relief setting aside the discharge and ordering reinstatement through an application when such relief was the subject of a pending appeal
• Whether the application constituted an abuse of court process
• Whether attorney-client costs were justified in the circumstances

The application was dismissed. The applicants were ordered to pay costs on the attorney-client scale jointly and severally, the one paying the other to be absolved.

An applicant who is the dominus litis (master of litigation) cannot seek a permanent stay of proceedings which they themselves have instituted - their remedy is to withdraw such proceedings if they do not wish to pursue them. A court exercising original jurisdiction cannot grant relief that is properly the subject of appellate proceedings - to do so would amount to the court improperly sitting as an appellate court. An application that seeks relief unsupported by the papers filed and which lacks substance on its merits must be dismissed rather than struck off the roll (which is reserved for matters with procedural irregularities). Attorney-client costs may be awarded not only for malicious conduct but also where there is an unacceptable abuse of court procedures resulting from serious deficiencies in the preparation of court papers or lack of diligence in ascertaining the proper cause of action, particularly where this causes unnecessary expense to the opposing party.

The court observed that the affidavit in the application told a story which bore no relation to the relief being sought and did not in any way support it. The court noted that the nature of the application was difficult to understand, suggesting either serious deficiencies in the capacity of those who prepared the papers or lack of diligence in ascertaining how the cause of action should be presented. The court commented that after obtaining an order directing the respondents to accept the filing of the notice of appeal, the applicants should have proceeded to file such appeal rather than approaching the court through the instant misconceived application.

This case is significant in Zimbabwean administrative and procedural law as it demonstrates the courts' intolerance for abuse of process and misconceived applications. It establishes that litigants cannot circumvent appeal procedures by bringing fresh applications seeking the same relief as would be sought on appeal. The case also illustrates when punitive costs orders (attorney-client scale) are appropriate - not only in cases of malicious conduct, but also where there is serious lack of diligence or competence in preparing court papers that results in an abuse of court procedures and unnecessary expense to the opposing party. The judgment reinforces the principle that applicants who are dominus litis cannot seek stay of their own proceedings.