Stephen Ndlovu v The Officer Commanding Zimbabwe Republic Police, Bulawayo Province and Others

The applicant was a member of the Zimbabwe Republic Police based at Bulawayo Central Traffic, VID section. On 14 January 2010, he was charged with contravening paragraph 35 of the schedule of the Police Act [Chapter 11:10] for acting in an unbecoming manner. A hearing officer convicted him on 28 January 2010 and sentenced him to 7 days imprisonment at the Zimbabwe Republic Police Fairbridge Detention Barracks in Bulawayo. He appealed the decision, but the appeal was dismissed by the second respondent on 9 March 2010. On 16 April 2010, the applicant filed an application for review under case number HC 694/10 and simultaneously filed this application seeking a stay of execution of the sentence pending the review.

• Whether a stay of execution should be granted pending determination of a review application
• Whether the applicant would suffer irreparable harm if the sentence was executed before the review application was heard
• What considerations a court should apply when determining an interdict application in the context of pending review proceedings

The application for stay of execution succeeded. The execution of the 7-day imprisonment sentence was stayed pending the determination of the review application in case number HC 694/10.

A stay of execution will be granted pending a review application where: (1) the execution of the decision would cause irreparable harm to the applicant if the review succeeds; (2) the respondent has an adequate alternative remedy (i.e., they can still execute the sentence if the review fails); and (3) allowing both parties to await the outcome of the review causes no prejudice. The principle of interdict is designed to prevent the mischief of irreparable harm occurring before a court can determine the merits of a pending application. Where a sentence of imprisonment is concerned, execution before a review is determined would cause irreparable harm that cannot be remedied by financial compensation or other means if the review ultimately succeeds.

The court noted that generally, all litigants are expected to await the finalisation of a matter before the court before taking steps to execute. The court also observed, without deciding, that the respondents had argued the review application was likely to fail, but emphasized that this was not the matter before the court and was yet to be determined. The proper focus was on preventing potential irreparable harm rather than assessing the merits of the underlying review application.

This case is significant in Zimbabwean administrative law as it establishes the principles for granting stays of execution pending review of disciplinary proceedings, particularly in the context of police internal disciplinary matters. It reinforces the principle that courts will intervene to prevent irreparable harm where one party has an adequate alternative remedy and the other does not. The judgment demonstrates the court's protective approach to ensuring that review applications are not rendered nugatory by premature execution of decisions under review.