Muchena v Police Service Commission and Another (160 of 2022) [2022] ZWBHC 160 (23 June 2022)


HB 160/22

HC 1468/17









Opposed Application

Applicant in person

T.E Kamema, for the 1st and 2nd respondents

KABASA J: This application was initially heard in 2018 and a judgment was handed down on 12th September 2019. The applicant appealed against that judgment, HB 138-19. The appeal was allowed and the matter was remitted for a hearing de novo before a different Judge.

I have not been able to see the Supreme Court judgment but surmise that the hearing de novo stemmed from the fact that the applicant had, inter alia, been unhappy with the fact that the point in limine he had raised was not addressed in the judgment in HB 138-19. (PG Industries (Zimbabwe) Limited v Mark Bvekerwa & 34 Others SC 79-14). The point in limine relates to the fact that the 2nd respondent had filed a notice of opposition out of time and was therefore barred. The 1st respondent filed its opposition on time but however associated itself with the 2nd respondent’s opposition and therefore its opposition would not amount to anything with the barring of the 2nd respondent.

I decided to hear and determine the point in limine first as its resolution would mean one of two things, the first being that the 2nd respondent was barred and so there was no opposition to the application. Such a finding would extend to the 1st respondent whose opposition rode on 2nd respondent’s , the second would mean a finding that the 2nd respondent was not barred and by extension the 1st respondent and so there was a valid opposition before the court. The latter finding would mean the 1st and 2nd respondent’s counsel could address the court on the merits whilst the former would mean counsel would not be heard on the merits

The applicant’s argument was that the 2nd respondent was served with the application on 2nd June 2017 and had 10 days within which to file a notice of opposition. The notice of opposition was only filed on 23rd June 2017, outside the 10 day period as provided for by the rules of court. 2nd respondent was therefore barred and by extension 1st respondent too.

Ms. Kamema however contended that the 2nd respondent was not served with the court application on 2nd June 2017. The application was served at the Attorney-General’s office who had no instructions to represent the 2nd respondent. The 2nd respondent only became aware of the application after the Attorney-General’s office sought clarification on the absence of opposition from the 2nd respondent. The 2nd respondent thus became aware of the application on 12th June 2017 and duly instructed the Civil Division of the Attorney-General’s office who proceeded to file a notice of opposition on 23rd June 2017. Such opposition was therefore filed on time, bearing in mind that the rules of court allow for an extra day for every 200km or part thereof where the place at which an application is served is more than 200 kilometres from the court where the application is to be heard. The 2nd respondent is based in Harare and that is where the application ought to have been served.

The issue presented here is whether the service at the Attorney-General’s office was good service. The applicant referred to the decision in Hungwe and Commissioner-General Chihuri v Mawereza HB 49-10 in contending that service at the Attorney-General’s office was good service.

The facts in the Mawereza case are distinguishable to the facts in casu. This being so because in the Mawereza case the application for a provisional order was served on the 1st and 2nd applicants at Ross Camp, Bulawayo and on the hearing date none of them appeared resulting in the granting of the application. The applicants sought to argue that that application was not properly served on them but the court held that service on the 1st applicant was effected on him personally at his offices at Ross Camp and so that was proper service. As for the 2nd applicant the court held that personal service was only required where the claim is sounding in money. Any other court process was to be served at any Police Station for onward transmission to second applicant. A circular to that effect had also been sent to all police stations, an indication of the fact that the 2nd applicant was aware service need not be on him personally. The failure by the 2nd applicant’s subordinates to ensure that such process was timeously brought to his attention could therefore not be visited on the respondent.

In casu the application was served at the Attorney-General’s office and not at a Police Station. Whatever role the police officer to whom service was effected was playing at the Attorney-General’s office did not change the fact that this was the Attorney-General’s office. That office had no mandate as at the time of service of the application to represent the 2nd respondent. The service at this office would have been, at most, for information, and not for that office to act on it. The service at the Attorney-General’s office was therefore not good service.

That said and with nothing to controvert the assertion that the 2nd respondent only learnt of the application on 12th June 2017, the notice of opposition filed on 23rd June 2017 was not out of time. The 2nd respondent was therefore not barred.

Where a litigant serves process on a legal practitioner who such litigant knows represented the other party at some stage, such service cannot be good service. The process has to be served on that party in terms of the rules and only when such party instructs a legal practitioner and subsequently such legal practitioner responds to the process giving such legal practitioner’s address as the party’s address of service can the litigant serve any subsequent process on that legal practitioner.

The applicant in casu ought therefore to have served the application on the 2nd respondent or at his offices as this was not a claim sounding in money and the dies induciae would have been reckoned from the day following such service.

I do not intend to detain myself on the issue relating to the 1st respondent whose notice of opposition was filed on time but merely associated with 2nd respondent’s. This may be because the 1st respondent had instructed the Civil Division of the Attorney-General’s office who prepared and filed the notice of opposition for the 2nd respondent, whose contents equally applied to the 1st respondent.

With the finding that 2nd respondent is not barred, the argument relating to the fate of the 1st respondent’s notice of opposition equally fails.

Ms. Kamema had sought condonation from the bar and this was in order, for there is nothing that stops a litigant from seeking condonation at the hearing of a matter. However, with the finding that the notice of opposition was not filed out of time such an application is not necessary. There is nothing to be condoned for.

The point in limine was therefore not properly taken and is accordingly dismissed, with no order as to costs.

Civil Division of the Attorney-General’s Office, 1st and 2nd respondents’ legal practitioners

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