KAMOCHA J: The
applicant brought this matter on review on the grounds that he was not given an
opportunity to call three defence witnesses namely Sgt Masiyemvura, Cst Rwizhi
and Sgt Zhou. He alleged that those
witnesses would have explained to the board the reasons why he had failed to
report for duty on the two occasions that he was not on duty.
He also alleged that the
Commissioner General Police disregarded his medical record which explained the
reason why he had failed to report for work.
It was his story that the president
of the board Chief Superintendant Matange had an interest in the matter and
should have therefore recused himself.
Further, he alleged that he had not
been given the requisite notice of 72 hours to convene the board.
Finally, he alleged that Chief
Superintendant Matange's bias was exhibited by his refusal to postpone the
board's proceedings to some other future date when he (applicant) requested for
a postponement because he was sick. He
alleged that some police officers had to literally carry him to the 4th
floor where the board deliberations were being held. The officers who carried him dumped him on
the floor of the room where the hearing was taking place and the proceedings
took place while he lay on the floor.
The brief circumstances giving rise
to this case were that on two occasions he allegedly was absent from work
without leave. The first count related
to the failure to report for duty from 7 to 8 August 2010. Secondly, he allegedly failed to report for
duty on 16 and 17 August 2010. What he
allegedly did was in contravention of paragraph 13(1) of the Schedule to the
Police Act [Chapter 11:10] and was accordingly charged with the two
counts. He was found guilty of both
counts and was sentenced to undergo 5 days detention in barracks at Fairbridge
in respect of each count.
While he was still serving his ten
days punishment he was summoned to attend a board of inquiry into his
suitability or otherwise as a member of the force. The board found him to be unsuitable to
remain in the police force and recommended that he be dismissed therefrom. His dismissal was then confirmed by the Commissioner
General Police resulting in the applicant being discharged on 4 April 2011.
On 19 April the applicant launched
this application seeking the recommendation and subsequent discharge set aside
for the reasons set out in his grounds for review above.
At the hearing Mr Dodo was constrained to concede that
there was a gross irregularity in the proceedings before the board in that the
applicant was not afforded an opportunity to call his defence witnesses. Chief Superintendant Lancelot Matange did not
deny in his opposing affidavit that the board he chaired refused to hear his witnesses. He, however, denied that applicant was not
given the requisite 72 hours notice.
Instead he said the applicant was given 96 hours. He averred that the board came to the
conclusion that the applicant was malingering.
His conduct of lying on the floor was a deliberate ploy to scare the
board so as to delay proceedings unnecessarily.
But what sticks out like a sore thumb is the fact that he was denied the
opportunity to call his witnesses.
The Commissioner General Police,
however, did advert to the issue of the calling of defence witnesses and held
the view that their evidence was of no probative value. But the applicant said his witnesses would
have furnished the board with the reasons why he had failed to report for duty
on the respective days. Those were
material and favourable witnesses to the applicant's case. The applicant should have been given a full
opportunity to call his defence witnesses he wished. He has a right to do so as enshrined in
section 18(3) (e) of the Constitution of Zimbabwe and is a fundamental
principle of natural justice. In terms
of section 18 (3)(e) of the Constitution an accused is entitled to obtain the
attendance of witnesses on the same condition as those applying to witnesses
called by the prosecution. This includes
the right to subpoena reluctant witnesses.
The failure to call the applicant's witnesses constituted an
irregularity. It would amount to a gross
injustice where the tribunal bars the calling of the witnesses just because it
erroneously feels their evidence had no probative value. See the case of Yusuf 1997 (1) ZLR 102 (H).
The proceedings in this matter were
highly irregular and the Commissioner General ought not to have upheld the
result following such irregularity.
The draft order filed by the
applicant lacks clarity. This court
shall proceed in terms of rule 240(1) of the rules of court and issue the
following order.
It is ordered that:
- the proceedings and the
recommendations of the board held on 5 March 2011 whose members were the 1st,
2nd, 3rd and 4th respondents be and are
hereby set aside;
- the confirmation by the
Commissioner General Police of the said recommendation made by the said
board be and is hereby set aside;
- the matter be remitted to the
police force to be heard by a board comprising new members; and
- the respondents shall bear
proved costs, if any, incurred by the applicant.
Civil Division of the Attorney-General's Office,
respondents' legal practitioners
