Ex-Sergeant Mafenya Godfrey 055072K v The Commissioner General of Police and The Chairperson of the Police Service Commission

The applicant, an ex-sergeant in the Zimbabwe Republic Police, appeared before a single trial officer on 20 April 2016 for contravening paragraph 34 of the Schedule to the Police Act [Chapter 11:10] (omitting or neglecting to perform any duty or performing any duty in an improper manner). He was convicted and sentenced to pay a fine of US$10.00 which he paid. On 4 October 2016, the applicant was served with a Notice of Board of Inquiry (Suitability) to be conducted on 11 October 2016. On 2 November 2016, the applicant was discharged from the Police Service through discharge radio number DIS 864/16 as being unsuitable for Police duties. He filed an appeal against the discharge to the second respondent on 14 November 2016 in terms of s 51 of the Police Act. The second respondent dismissed his appeal on 24 March 2017 and advised the applicant through a letter addressed to his legal practitioners. On 15 March 2019, the applicant filed an application for review alleging impropriety in his discharge and dismissal of appeal without reasons and without being heard, and that the second respondent was not properly constituted.

• Whether the application for review was instituted within the prescribed time period of 8 weeks as required by Order 33 Rule 259 of the High Court Rules, 1971
• Whether good cause existed for extending the time to institute review proceedings
• Whether the discharge of the applicant from the police service was irregular

1. The Point in limine is upheld. 2. This application for review was filed out of time. 3. The application is dismissed with costs on a client-attorney scale.

Order 33 Rule 259 of the High Court Rules, 1971 requires that review proceedings must be instituted within 8 weeks of the termination of the proceedings in which the irregularity is alleged to have occurred. This is a peremptory requirement (use of 'shall'). While the court has discretion to extend time for good cause shown, such extension must be formally applied for - good cause cannot be shown in the absence of an application for extension. The 8-week period runs from the date of termination of proceedings (in this case, the dismissal of the appeal on 24 March 2017), not from some later date when the applicant chose to request reasons for the decision. An applicant cannot avoid time limits by making vague allegations about when they became aware of decisions without proper explanation in their affidavits.

The court expressed doubt about the applicant's claim that letters were written on 29 January 2019 and 7 February 2019, noting that no copies were attached. The court stated that paragraph 14 of the founding affidavit was 'deliberately inserted or crafted in order to mislead the court to believe that the application for review was being filed within 8 weeks'. While counsel for the applicant attempted to give evidence from the bar that the applicant had not received notice of the appeal dismissal until about 29 January 2019, the court rejected this as an afterthought, noting that such a vital fact should have been clearly stated in the founding or answering affidavits with proper explanation of when the applicant learned of the dismissal. The court also indicated that had the point in limine not succeeded, it would have proceeded to determine the matter on the merits, but found it unnecessary to do so given the procedural non-compliance.

This case reinforces the strict application of time limits for instituting review proceedings in Zimbabwe. It demonstrates that courts will not overlook procedural requirements and that applicants must either comply with the prescribed time periods or make a formal application for extension of time showing good cause. The case also emphasizes that parties cannot circumvent time limits by crafting creative arguments about when the cause of action arose, and that courts will scrutinize attempts to mislead on timing issues. The judgment serves as a warning about the consequences of delays in instituting review proceedings without proper justification.