Trymore Maputsa and Ngonidzashe Manzwanga v The Commissioner General of Police and Chief Superintendent Kapita

The applicants were members of the Zimbabwe Republic Police (ZRP) who were charged with assault before the Magistrates' Court in Bulawayo. Both applicants were acquitted - the 2nd applicant on 14 May 2021 and the 1st applicant on 17 May 2021. Following their acquittal in criminal proceedings, the applicants were subjected to a disciplinary hearing before the 2nd respondent based on the same set of facts and complainants. The 2nd respondent convicted and sentenced each applicant to 14 days detention. Their appeal to the 2nd respondent was dismissed. On 16 July 2021, applicants filed a review application (HC 1035/21) which remained pending. Despite the pending review, applicants were ordered to serve their sentences. On 12 May 2022 at 15:35 hours, applicants filed an urgent application seeking to interdict respondents from forcing them to serve their sentences pending finalization of the review application. They were due to commence serving sentences on 13 May 2022.

• Whether the urgent application met the requirements for urgency under Rule 60 of the High Court Rules 2021
• Whether the applicants had demonstrated urgency in terms of both timeline and harm factors
• Whether the urgency was self-created by the applicants' delay in bringing the application
• Whether the court should intervene to stop the execution of lawful sentences pending review

The application was struck off the roll of urgent matters without being set down for hearing. No order as to costs was made.

An urgent application will not be entertained where the urgency is self-created through deliberate or careless abstention from action until the deadline draws near. Urgency must be assessed on both timeline and harm factors - the matter must be one that cannot wait when the need to act arises, and there must be demonstrable harm if relief is not granted. A court will not intervene to stop the execution of lawful processes merely because an application has been filed. Police disciplinary proceedings are civil matters distinct from criminal proceedings, and acquittal in criminal court does not preclude disciplinary action based on the same facts. The duty judge has discretion under Rule 60(12) whether to set down an urgent application or dispose of it on the papers.

The court observed that decisions not to hear litigants must not be taken lightly as they may have serious implications on the right to a fair trial, but each case must be considered on its merits. The court commented that setting down the matter would have indirectly given applicants a reprieve from serving their sentences through the back door, and this appeared to be the very reason they filed the application at the eleventh hour. The court emphasized that as a court of law, it cannot aid unlawful conduct or subvert the law. The court cited with approval the principle from Documents Support Centre P/L v Mapuvire that urgent applications are those where if courts fail to act, applicants may dismissively suggest the court should not bother to act subsequently as the position would have become irreversible to their prejudice.

This case reinforces important principles regarding urgent applications in Zimbabwean law, particularly: (1) the distinction between criminal proceedings and police disciplinary proceedings (the latter being civil in nature); (2) that acquittal in criminal proceedings does not preclude disciplinary action based on the same facts; (3) the strict approach courts take to self-created urgency where applicants delay until the last moment to seek relief; (4) that urgency is assessed on both timeline and harm factors; and (5) that courts will not use procedural mechanisms to indirectly frustrate the execution of lawful orders. The case is instructive on when courts will refuse to entertain urgent applications filed at the eleventh hour.