Superintendent Ernest Hungwe and Commissioner General Augustine Chihuri v Sergeant Onismas Mawereza

The respondent, a police officer, was charged with contravention of paragraph 35 of the Schedule to the Police Act [Chapter 11:10] as read with section 34 (acting in an unbecoming manner). He pleaded not guilty but was convicted and sentenced to 6 days imprisonment. He appealed to the second applicant (Commissioner General) but lost the appeal and served his sentence. Dissatisfied, he applied for review under case no. HC 667/10 seeking to quash the conviction. The review application was served on 11 June 2010 on the first and second applicants at Ross Camp, Bulawayo. On the hearing day, there was no appearance by the applicants and the review application was granted. The applicants then filed this application to set aside the provisional order granted on 13 May 2010, arguing it was erroneously granted in their absence because the review application was not properly served on them as required by Rule 43B of the court rules.

• Whether the review application was properly served on the applicants in terms of Rule 43B as read with the Seventh Schedule of the High Court Rules
• Whether Rule 43B requiring specific service procedures applies to all proceedings or only to claims for money
• Whether service at Ross Camp police station constituted proper service on the Commissioner General
• Whether there was wilful default by the applicants justifying dismissal of the rescission application

The application for rescission of judgment was dismissed.

Rule 43B of the High Court Rules, which prescribes specific service requirements for proceedings against State officers, must be read together with Rule 43A. Personal service on the Commissioner General of Police is required only where the claim is for money or delivery of goods. For other types of proceedings (including review applications), service at any police station for onward transmission to the Commissioner General constitutes proper service, particularly where the Commissioner General has issued directives requiring police stations to forward such court papers expeditiously to legal services. A State officer who has established procedures for receiving court process cannot later claim improper service when those procedures were followed.

The court observed that the practice of serving court process at any police station for onward transmission to the Commissioner General 'makes sense as all police stations throughout the country are directly linked to the Police General Headquarters.' The court also noted that where the Commissioner General has specifically directed subordinates to expeditiously forward court papers to enable compliance with legal requirements, any failure to act timeously is the State officers' own shortcoming which cannot be visited upon the respondent. The court's comment that Rule 43A is 'unambiguous as it is as clear as day light to an extent that even he who runs can read' emphasized the clarity of the rule's limitation to money claims.

This case clarifies the proper interpretation and application of Rules 43A and 43B of the High Court Rules regarding service of process on State officers in Zimbabwe. It establishes that the special service requirements under Rule 43B and the Seventh Schedule apply only to claims sounding in money or for delivery of goods, not to all proceedings against State officers. For other types of proceedings (such as review applications), service at any police station for onward transmission is sufficient. The case also demonstrates that State officers' own internal directives regarding service of process can be used as evidence of what constitutes proper service, and that failure to comply with their own procedures constitutes wilful default.