Const. Mukanya & Ors v Trial Officer (Supt. Nyahana) & Anor (HC 3607 of 2016; HH 271 of 2017) [2017] ZWHHC 271 (3 May 2017)

1 HH 271-17 HC 3607/16 CONSTABLE MUKANYA G. 081592L and CONSTABLE MACHETU M. 085303V and CONSTABLE MUGWAGWA R. 085490Y versus THE TRIAL OFFICER (SUPERINTENDENT NYAHANA) and THE COMMISSIONER-GENERAL OF POLICE HIGH COURT OF ZIMBABWE ZHOU J HARARE, 23 March & 3 May 2017 Opposed Application N. Mugiya for the applicant K. Chimuti for the respondent ZHOU J: The three applicants, who are members of the Zimbabwe Republic Police, were convicted on 18 February 2016 of contravening para 35 of the Schedule to the Police Act. They were each sentenced by first respondent who presided over their case to pay a fine of US$10-00. The applicants state that they gave notice of their intention to appeal but the first respondent refused to record the notification. The applicants sought to appeal against the decision of the first respondent pursuant to the provisions of s 34 of the Police Act. Their complaint is that the first respondent refused to accept the notices of appeal. The application is opposed by the second respondent. In the opposing affidavit the second respondent does not address the factual averments made in the applicants’ founding affidavits regarding the refusal by the first respondent to accept their notice of appeal and the efforts made by the applicants and their legal practitioner to ensure that the notices of appeal were properly filed. At the hearing of this application Mr Chimuti for the respondents understandably failed to make any meaningful submissions to contest the basis of the application. The submission that the HH 271-17 HC 3607/16 applicants did not give notice of their intention to appeal was made from the bar and is not contained in the opposing affidavit. In any event, as stated above, the applicants in their founding affidavit state that they did give the required notice. Their averment has not been dispute by the respondents through the opposing affidavit. The first respondent did not file an opposing affidavit. In accordance with the settled position of the law, whatever is not disputed in an opposing affidavit must be taken to be admitted. See Fawcett Security Operations (Pvt) Ltd v Director of Customs & Excise & Ors 1993 (2) ZLR 121 (S); Chiwhayi Enterprises (Pvt) Ltd v Atish Investments (Pvt) Ltd 2007 (2) ZLR 89 (S). The applicants produced letters which they addressed to the second respondent complaining about the refusal by Superintendent Nyahanana of Mrewa DHQ to accept their notices of appeal. The contents of those letters were not challenged. The opposing affidavit deposed to by the second respondent shows that he has no personal knowledge of the facts upon which the application is founded. The court finds that the refusal by the first respondent to accept the applicants’ notice of appeal was wrongful and unlawful. I am not convinced, however, that paras 3 and 4 of the draft order in terms of which the applicants want the appeal to be deemed to be unopposed are justified. The applicant’s appeal must be dealt with on the merits. In the result, IT IS ORDERED THAT: 1. The respondents’ refusal to accept the applicants’ appeal in terms of s 34 of the Police Act is declared to be wrongful and unlawful. 2. The respondents are directed to accept the applicants’ notice of appeal and determine it in accordance with the law. 3. The respondents shall pay the costs of suit. Mugiya & Macharaga Law Chambers, applicants’ legal practitioners Civil Division of the Attorney-General’s Office, respondents’ legal practitioners