NDOU J: The
applicant seeks an order in the following terms:
"The final order sought
That the provisional order granted by this honourable court
confirmed in the following manner:-
1.
That
the hearing referred to in paragraph 1 of the interim relief be and is hereby
referred for hearing at the Magistrates' Court.
2.
The
respondents be and is hereby ordered to pay costs of suit if opposed to this
application.
Interim relief granted
Pending the finalization of this matter, the applicant be
granted the following relief:-
1.
The
respondents be and are hereby ordered to suspend the hearing of the 13th
October 2011, or any such trial or hearing involving the applicant, on the
charge of "performing any duty in an improper manner" until the finalization of
this matter.
2.
That
should the hearing proceed in contravention of paragraph 1 above such hearing
be and is hereby held to be of no force or effect."
The salient facts of the case are the following. The applicant is a Sergeant in the Zimbabwe
Republic Police ("ZRP") now stationed at Gwanda Police Station. All along and for the past fourteen years, he
has been stationed at the National Highway Patrol i.e. ZRP, Traffic
Section. The applicant has been in the
police force for around twenty-six years.
On 17 September 2011 at around 1300 hours he was patrolling in the
Bulawayo Central Business District using a BMW patrol car registration number
ZRP 003461 together with his team members i.e. Constable R. Thebe, Sergeant
Nhoti and Constable Marava. The
applicant was the team leader. They set
up a road block along Fort Street, opposite Bakers Inn. The applicant waved a white omnibus with a
red strip registration number ABQ 9523 and it stopped. The vehicle was attended to by Constable R.
Thebe. The vehicle had an excess of four
passengers. Constable Thebe told the
driver of the offence and invited him to pay a US$20 fine. The driver Owen Kurenga paid the spot
fine. The fine was receipted on Z69J
number 1032611 and the driver signed it.
It is not what transpired between the driver and Constable Thebe that is
in issue. It is what is alleged to have
transpired between the driver and the applicant that resulted in him being
charged under the Police Act [Chapter 11:10].
The gravamen of the charge against him is that he discovered that the
driver had photocopies of Route Authority and Operator's Licence serial numbers
023238 and 029439 respectively. It is alleged
that the applicant got emotional indicating that the papers were invalid and
tore them in full view of members of the public. This conduct is alleged to have reached the
ears of his superiors resulting in him being charged under the Police Act. He was charged for contravening section 34 of
the schedule to the Police Act i.e. "Perform a Duty in an Improper
Manner". The events preceding the charge
are the following. This incident as
alluded to, above, occurred on 17 September 2011. The same evening the applicant was questioned
by his superior one Superintendent Mhlanga.
He denied any wrong-doing. He was
questioned once more on 18 September 2011.
He denied wrongdoing again. On 19
September 2011 he was telephoned by one of his commanders in Harare. He was instructed to go and surrender the
above-mentioned BMW patrol vehicle in Harare the same day. He was told to bring his entire team with
him. He complied and when they got to
Harare they were once more interrogated about the issue. They all made written reports of their side
of the story. Thereafter, the applicant
was with immediate effect transferred from National Traffic to Gwanda Police
Station. The rest of his team were also
moved from National Traffic to Nkulumane, Rusape and Mashava Police Stations
respectively. The applicant reported for
duty at Gwanda Police Station. On 3
October 2011 he was telephoned by Assistant Inspector Khabo and advised to
attend a disciplinary hearing on 4 October 2011 at 9am at ZRP Southampton
Building in Bulawayo. The latter told
him that he was the Prosecutor in the matter.
At that time he was not told of the charge he was facing. He sought legal representation. When they got to the hearing his legal
practitioner was furnished with a charge sheet and a copy of the synopsis. The charge sheet reads, inter alia,
"The accused, being a member of the force, did wrongfully and
unlawfully perform a duty in an improper manner, that is to say, he tore up a
certified copy of the Route Authority Serial Number 023238 and a certified
Operators Licence Serial Number 029439 for vehicle number ABQ 9523 to wit a
Toyota Hiace, belonging to Sibanda Motors."
At the commencement of the trial his legal practitioner
objected to the hearing continuing on the basis that applicant had not been
properly served with a notice to attend the hearing and he needed more time to
instruct his legal practitioner. The
hearing was postponed to 13 October 2011.
On 5 October 2011 the applicant's legal practitioner addressed a letter
to the Presiding Officer, one Superintendant A C Dube, requesting that the
matter be referred for trial before a magistrate. The basis for the request for referral is
stated thus-
"Our basis for this objection is grounded on section 35 of
the Police Act Chapter 11:10 which lays down clearly that the proceedings
before or at any trial by a board of officers or an officer in terms of the
Act, shall as near as may be, be the same as those prescribed for criminal
cases in the Court of Zimbabwe.
To this effect, we believe that our clients will not be
afforded a fair trial as the case before the court involves, Levy Sibanda the
Deputy Commissioner General of Zimbabwe Republic Police who for all intents and
purposes is the complainant in this case.
Furthermore, the principles of natural justice are also very
clear in cases of this nature, as the Presiding Officer in this matter is a
junior to the complainant, who holds a superior office and position and our
client has reasonable and well founded belief or fear that the latter may
influence the decision of the trial officer and the opposite equally obtains as
the trial officer is a junior of the complainant who may be afraid to deliver
judgment not in favour of his superior, for fear of victimization.
Attached is the initial copy of the charge sheet against our
client that was them amended, to substantiate the above-mentioned points."
The initial charge sheet read as follows -
". did wrongfully and unlawfully destroyed by tearing a
certified copy of the route authority serial number 023238 and a certified copy
of an operator's licence belonging to Levy Sibanda the Deputy Commissioner
General of the Zimbabwe Republic Police."
The respondents decided to proceed with the trial under the
Police Act resulting in this application to stop them. The respondents' case is basically that the
applicant does not have any right to elect to be tried by a magistrate when
appearing before a single office. Their
understanding is that the applicant could have had the right to elect to be
tried by a magistrate if he was an officer and the Commissioner General
convened a Board of Officers to deal with the matter. This is the preliminary legal issue that I
have to determine. The election of trial
by magistrate is provided for under section 32 of the Police Act [Chapter
11:10]. This section reads:
"32. Member may
elect trial by Magistrates Court
If notice is given, in the manner and time prescribed by a
member whom it is proposed to try before a board of officers in terms of
paragraph (c) of subsection (1) of section twenty-nine that he wishes that the
charge against him be tried by a magistrates' court and not by a board of
officer, the charge shall be tried by a magistrates' court."
It is common cause that the applicant is not facing the
charge before a board of officers in terms of section 29(1)(c ) of the
Act. The applicant is being charge
before a single officer in terms of section 29(1)(d) of the Act.
It has to be emphasized that the election provided for in
section 32 only applies to trials before board of officers and not trials
before a single officer. The procedure
under section 29 (1)(c ) is for serious offences yet the procedure under
section 29(1)(d) is for minor infractions of the Police Act and regulations
made thereunder. Such minor infractions
are punishable by imprisonment of up to fourteen (14) days and a fine of up to
level two (2). These are minor
disciplinary measures in the police force and are not regarded as criminal
offence. Section 34 (9) provides -
"9. A
member who is found guilty of a contravention of this Act by an officer shall
not be regarded as having been convicted of an offence for the purposes of any
other law."
These proceedings are subjected to automatic review by the
Commissioner General. All these factors clearly
evince that the legislature deliberately excluded a member charged before a
single officer from the provisions of section 32. In brief, such a member cannot elect to be
tried by a magistrates' court. On this
point alone, the applicant cannot choose to be tried by a magistrates'
court. Accordingly the application is
dismissed with costs.
James, Moyo-Majwabu &
Nyoni, applicant's legal practitioners
Civil
Division, Attorney General's Office, respondents' legal practitioners
