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HB 101-15
HC 775-15
XREF HC 774-15
BUSANI MAPHOSA
versus
THE COMMISSIONER GENERAL OF POLICE
and
SUPERINTENDENT SITHOLE
HIGH COURT OF ZIMBABWE
MOYO J
BULAWAYO 2 APRIL AND 28 MAY 2015
Urgent chamber application
MOYO J:
The applicant filed an urgent application on 25 March 2015 seeking an
order staying proceedings of a board of suitability that were scheduled for 27 March 2015. The
application reached my desk after 27 March the day the board allegedly sat. I set the matter for 2
April 2015. The respondents pointed out that as at the date of the hearing the board had already
sat and made a determination as they had not been informed of the pending application neither
had they been served. The application and the relief sought by applicant had thus been overtaken
by events at the date of hearing the application. The applicant sought to amend the relief sought
such that it would be to the effect that the Board is neither from releasing its findings pending
this determination of his application for review.
The applicant has a gripe with his conviction by a single trial office in terms of the Police
Act. The applicant allegedly cleared beasts that were later found to have been stolen. He was
held to have flouted the normal procedures for clearing livestock as laid down by the
administrative authorities. On the face of it it would appear that there were indeed some
irregularities in the clearance of the livestock. The applicant alleges in his application that the
officer who tried the matter was not “up to standard.”
The applicant’s papers are badly drawn inadequate on the facts that lay the ground for the
legal issues. The applicant’s papers do not lay the foundation at all for the relief that he is
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HB 101-15
HC 775-15
XREF HC 774-15
seeking. For one to succeed in obtaining a temporary interdict, the following must be founded in
their papers:
a)
A right which though prima facie established, is open to some doubt.
Applicant concedes that he cleared stolen beasts and certainly his conduct is found
wanting in that regard.
b)
a well grounded apprehension of irreparable injury.
Once applicant has failed to show that he has a prima facie right to protect, then his fear
of irreparable injury cannot be well grounded as he should be left to face the consequences of his
actions.
c)
the absence of any other remedy,
Applicant has to face the consequences of his negligence in clearing stolen beasts and
hence he cannot approach this court to stop due process.
d)
that the balance of convenience favours applicant
Applicant’s papers are not properly drawn and do not show how the balance of
convenience favours him, neither can it be inferred from the facts that the balance of
convenience favours him as he was clearly negligent in the clearance of these cattle.
The requirements stated above were enunciated in the case of Zesa Staff Pension Fund vs
Mushambadzi SC 57/02. The applicant does not dispute that the cattle that were cleared by him
had been stolen as a matter of fact.
It is my considered view that applicant has failed to make a case for the relief sought for
the simple reason that not only had his application being overtaken by events, but he does not
seem to have any prospects of success on review. Also, his papers are badly drawn and
inadequate, even the papers themselves fail to make a case for the relief sought.
I accordingly decline the provisional order and I dismiss the application with costs.