Ricky Nelson Mawere and David Nyabando v The Central Intelligence Organisation and Others

The appellants, Mawere and Nyabando, were employees of the Central Intelligence Organisation (C.I.O.) who had been suspended from duty for more than eight years. On December 29, 2005, they were notified that a board of inquiry had been convened under the Public Service Regulations, 2000 to inquire into allegations that they had committed misconduct involving theft or improper use of public funds amounting to Z$16,972,784.32. They had previously brought a constitutional application (SC 30/07) alleging that the delay in dealing with their suspension violated their right to a fair hearing within a reasonable time under s 18(9) of the Constitution, which was dismissed. After the dismissal, the C.I.O. notified them on January 12, 2009 that the disciplinary hearing would be held on February 5, 2009. On February 4, 2009, the appellants filed an urgent chamber application in the High Court seeking to have their suspension lifted, to be reinstated with back pay, and for interim relief restraining the C.I.O. from convening the board of inquiry. The High Court granted the provisional order on February 6, 2009, but dismissed the application for confirmation with costs on September 3, 2009.

• Whether the provisional order granted by the High Court was fatally defective
• Whether interim relief that has the same substantive effect as a final order is permissible
• Whether the interim relief restraining the convening of the board of inquiry until finalization of the matter was in effect a final order

The appeal was dismissed with costs.

Interim relief which has the same substantive effect as a final order is impermissible and constitutes a fatal defect in a provisional order. Interim relief is granted once an applicant establishes a prima facie case, whereas a final order requires proof on a balance of probabilities. Where interim relief granted has the same substantive effect as a final order, it improperly allows an applicant to obtain final relief on the lower standard of proof applicable to interim relief, which is undesirable and not permitted.

The Court noted the background of the previous constitutional application (SC 30/07) where the appellants had failed to establish that they were entitled to the protection guaranteed by s 18(9) of the Constitution because the disciplinary board was not covered by the expression "court or other adjudicating authority established by law" in s 18(9) of the Constitution. This historical context informed the Court's understanding of the parties' dispute but was not essential to the ratio decidendi regarding the defective nature of the provisional order.

This case is significant in South African and Zimbabwean jurisprudence as it clarifies the important procedural principle regarding the distinction between interim relief and final relief in provisional order proceedings. It establishes clear boundaries for what constitutes permissible interim relief and prohibits the practice of obtaining final relief through the provisional order mechanism by merely establishing a prima facie case. The judgment reinforces the procedural safeguards that ensure applicants must prove their case on a balance of probabilities before obtaining substantive final relief.