Judgment No. HB 65/06
Case No. HC 1006/06
DANIEL ALDRED MABONGA
THE COMMISSIONER OF POLICE
THE OFFICER COMMANDING POLICE
MATABELELAND SOUTH PROVINCE
IN THE HIGH COURT OF ZIMBABWE
16 MAY 2006 AND 6 JULY 2006
Mashayamombefor the applicant
Mr K. Amonfor the respondent
CHEDA J: Applicant seeks an order interdicting and preventing second respondent from effecting his transfer from Beitbridge to West Nicholson and that he remains in Beitbridge town.
Applicant is an Assistant Inspector in the Zimbabwe Republic Police presently stationed at Beitbridge.
First respondent is cited as the overall Police authority while second respondent is the Officer Commanding Matabeleland South and is also a police authority and is cited as such.
Sometime in March 2006, applicant was advised by second respondent that he was to be transferred to West Nicholson, a place which is 40 kilometres from Gwanda town. Applicant objected to the said transfer on the grounds that he requires constant medical attention in South Africa and as such Beitbridge was the most convenient place for him to be stationed at.
He submitted a letter from a Government Medical Officer for Beitbridge Hospital. The letter states:
“Ministry of Health and Child Welfare
P O Box 57
6 April 2006
RE: DANIEL MABONGA
TO WHOM IT MAY CONCERN
The above mentioned is my patient who has a medical condition which makes it imperative that he resides in a place with quick access to a doctor and proper medical facilities. He is on drugs that sometimes are not available in Zimbabwe which I have had to source for him from South Africa.
May you ascertain that his working environment is suitable to ensure that he remains healthy.
Dr N Masuka
GOVERNMENT MEDICAL OFFICER”
It is his further argument that his imminent transfer to West Nicholson is life threatening, as there is neither a Private nor Government Doctor based at West Nicholson.
The respondents have opposed this application on the following grounds: -
that West Nicholson is not a remote area, but, a place along the Bulawayo/Beitbridge highway, a distance of 40 kilometers from Gwanda Provincial Hospital, which is a 30 minutes drive.
that they had even offered to transfer him to Gwanda but he turned down the offer.
that his medical condition being, Hypertension has always been well known by the authorities and;
that his medication is not personally ordered by him but by Government Hospital Doctors.
There is an employment contractual relationship between applicant and first respondent who is his employer. This type of contract is a mutual one. Both parties must derive certain pleasure and comfort in dealing with each other. It is therefore important
that each part must deal with the other fairly and at the sametime observe all the laws and rules governing a contractual relationship.
An employee is entitled to ask for a transfer on good cause shown. When he does so, his employer should not and can not unreasonably deny him that right.
The question then is, has applicant shown a good cause for his transfer? In order to determine this question it is pertinent to examine the reasons for his refusal to such a transfer. He stated that he has a medical condition, a fact, which is acknowledged by both Doctor Masuka and the Beitbridge Camp nurse Chief Inspector Charles Kunze. However, the nurse, Chief Inspector Charles Kunze went further and explained that it is a manageable medical condition and both Beitbridge and Gwanda Provincial Hospitals have the facilities to contain this condition. Chief Inspector Charles Kunze has even gone further to advise the Court, that applicant is not authorised to source medication from private institutions outside the country without the authority of first respondent. The medication is sourced by Doctors and by him personally. This stands to reason that any Government Doctor can do so for him.
Applicant does not want to leave Beitbridge not only for West Nicholson but for Gwanda as well. I find it difficult to understand his reasoning when his employers have
gone as far as placing him near a Provincial Hospital, unlike Beitbridge Hospital which is a District Hospital.
His stance casts doubt on his reasons for the refusal to transfer. His reason is therefore not bona fide. It is my view that there is certainly another reason or reasons which he has not disclosed. The disclosure of such reasons, if any, would have been necessary as it is those reasons which would assist the court, in the proper determination of this application. Applicant’s conditions of service is governed by the Police Act
In addition to the above act, applicant is also governed by the Police (Appointment)
Regulations RGN 97D/65 and Police (General) Regulations RGN 97E/65. Section 19 of the Police (Appointment) Regulations RGN 97D/65 states: -
Section 19 “A member shall be liable to-
transfer to and employment in any branch of the force;
serve in any part of Rhodesia (Zimbabwe.)”
Section 4 of the Police (General) Regulations, RGN 97E/65 states:-
Section 4 “Every member shall be required to undertake any duty on behalf of the Government when ordered to do so by or on behalf of the commissioner.”
In view of the above, applicant is constrained to abide by the above provision in the said act and those regulations which govern his employment unless there is a good and compelling reason to depart therefrom.
The factors which could lead to first respondent departing from these regulations are in exhaustive, but, however, my view, is that a member’s health is one of such factors.
However, in casu even if, applicant’s health is indeed a live factor, he is being transferred to a place which is only 40 kilometres from Gwanda along the Gwanda/Beitbridge highway.
In determining applicant’s transfer, first respondent took into account the location and proximity of his posting in relation to his medical requirements. Therefore, his posting to either West Nicholson or Gwanda is as a result of first respondent’s use of his discretion as required by the Police Act and the regulations referred to (supra).
First respondent is a public authority for the maintenance of law and order and as such is entitled to exercise his discretion in the interest of both Government and public security and the maintenance of law and order. First respondent thus exercised its discretion in transfering applicant. A discretion involves a degree of judgment and choice, the first respondent is therefore entitled to exercise that judgment.
The Courts are slow in interfering with administrative actions. They may, however, award relief where an administrative board has:
acted without authority, or
has stepped outside the limits of its authority, or
has failed to perform its duties.
In my view, a party seeking judicial intervention on administrative decisions should satisfy the Court on the above requirements. The list, though is inexhaustive.
The authority in exercising its discretion must genuinely address itself to the matter before it and must confine itself to what it has been authorised to do.
First respondent has in my mind, exercised his discretion properly and the application is therefore dismissed with costs.
Mashayamombe and Company applicant’s legal practitioners
Attorney General’s Office,respondent’s legal practitioners