Empilweni Sibanda and Piston Mangwanda v Police Service Commission and Others

The two applicants were Police Constables based at ZRP Kennilworth base in Inyathi, Matabeleland North Province. On 15 April 2014, they appeared before a single officer at ZRP Nkayi District Headquarters facing two counts under the Police Act [Chapter 11:07]. First count: acting in an unbecoming manner prejudicial to good discipline by assaulting Liverton Ndlovu with a button stick and sjambok on 1 April 2014. Second count: wrongfully and unnecessarily detaining Ndlovu for 2 days without charge. They were found guilty and sentenced to detention at ZRP Fairbridge detention camp on 19 April 2014. The applicants did not contest this outcome. A Suitability Board was subsequently convened on 10 June 2014 which recommended their discharge from the force. The Commissioner General discharged them via police radio signal on 4 July 2014, brought to their attention on 7 July 2014. The applicants lodged an appeal to the Police Service Commission on 9 July 2014 and filed a review application in the Bulawayo High Court on 5 August 2014. The appeal was dismissed on 12 February 2015 with instructions to terminate them on 13 March 2015. On 12 March 2015, applicants launched this urgent application seeking to set aside their dismissal.

• Whether the certificate of urgency drawn by the first applicant (an unrepresented party) was fatally defective
• Whether the matter qualified as urgent given the delay from initial dismissal in July 2014 to the application in March 2015
• Whether the applicants' conduct constituted self-created urgency

1. The hearing of the application as urgent is hereby refused. 2. The applicants shall bear the costs of suit jointly and severally the one paying the other to be absolved.

Rule 242(2) read with Rule 244 of the High Court of Zimbabwe Rules does not require an application by an unrepresented applicant to be accompanied by a certificate from a legal practitioner certifying urgency. The certificate requirement only applies when the applicant is represented by a legal practitioner. Urgency cannot be established where applicants have known about the decision they seek to challenge for several months but chose to pursue incorrect remedies and only launched an urgent application on the eve of implementation. Urgency that stems from deliberate inaction until the day of reckoning is nigh does not meet the test for urgent applications contemplated by the rules.

The court observed that the applicants' difficulties were exacerbated by lack of legal representation, as whatever process they prepared and filed tended to misfire for that reason. The belated arrival of counsel (Mr Hamunakwadi) for the hearing did not yield any useful result as he appeared ill-prepared having been instructed a short while before the hearing but still blindly prosecuted the ill-fated application. The court also noted that the provisional order sought was not in Form 29C and was clearly defective, and that applicants appeared to be seeking substantive relief by urgent application without proving their case, whereas interim relief is granted on mere proof of a prima facie case (citing Kuvarega v Registrar General & Anor 1998(1) ZLR 188(H)). The court further observed that the review application filed in Bulawayo appeared to have been made out of time and without seeking condonation, and that it was irregular to pursue a review without exhausting internal remedies.

This case is significant in Zimbabwean administrative and procedural law as it clarifies the requirements for certificates of urgency under the High Court Rules, particularly distinguishing between represented and unrepresented litigants. It reinforces the principle that urgency cannot be self-created through deliberate delay or inaction, and that applicants must act timeously when challenging administrative decisions. The case also demonstrates the importance of exhausting internal remedies and pursuing appropriate legal remedies in the correct sequence, particularly in the context of police disciplinary proceedings.