MAKONESE J:
In this matter both applicants were attested members of the Zimbabwe Republic
Police stationed at Sauerstown Police at Bulawayo holding the ranks of Sergeant
and Constable, respectively until their discharge from the force on 1st
August 2011. On the 12th October 201 both applicants appeared
before Superintendant Marshall Dube in a police disciplinary trial on charges
of contravening paragraph 34 of the Schedule to the Police Act [Chapter 11:10],
that is, “omitting or neglecting to perform any duty or performing a duty in an
improper manner.” Both applicants pleaded not guilty to the charges
against them but were convicted and sentenced to 12 days and 5 days
imprisonment with labour at Fairbridge detention barracks. Being
dissatisfied with the outcome of the disciplinary hearing the applicants
unsuccessfully appealed to the Commissioner General of the Zimbabwe Republic
Police in terms of section 34(7) of the Police Act. The applicants have
served their sentences.
A Board of Inquiry was subsequently convened by the Commissioner General to
look into the conduct of the applicants, to determine whether they were still
suitable persons to remain in the regular force or to retain their relevant
ranks in terms of the provisions of section 50 of the Police Act. The
Board of Inquiry (commonly known as a Suitability Board) made its
recommendations to the Commissioner General, who discharged them. The
applicants appealed to the Police Service Commission, cited herein as the
second Respondent in terms of section 51 of the Police Act. Applicants'
appeal was again not successful and they were then forced to turn to this court
and have made an application for review against the decision to discharge
them from service.
Background
The background to this matter is that on
or about the 6th March 2009 one Philip Sithole was driving from
Plumtree to Bulawayo. He was carrying some passengers and when he got to
a place called Emganwini some passengers robbed the other passengers in the
vehicle of various items of clothes including some electrical goods.
Sithole went and reported the case at Luveve Police station but the police
officers on duty refused to take his report for reasons that are not
clear. The following day Sithole went to Sauerstown police station where
he made a formal report to the applicants in this matter, Oscar Boma and Lameck
Mwanza. The applicants offered to assist Sithole who took the two police
officers to the addresses of the suspects in Cowdray Park. The undisputed
evidence shows that the applicants recovered some property from the robbery
suspects but they chose not to arrest the robbers. The applicants also
received cash amounting to 200 Rands and 4 litres of cooking oil from one
suspect Ephraim Shoko, presumably to protect him from arrest and prosecution
for the criminal offences. The two applicants it would seem were
conducting some kind of a private investigation and purported to restore the
stolen goods to the complainants.
It is on these brief facts as outlined above that the applicants were arraigned
before a disciplinary hearing and convicted for having performed their duties
in an improper manner.
Issues for Determination
The Applicants filed an Application for
Review seeking the following order:
“IT IS ORDERED THAT:
1.
The dismissal of Applicants from the Zimbabwe Republic Police be and is hereby
reversed.
2.
The Applicants be and are hereby re-instated into the Zimbabwe Republic Police
without loss of benefits or seniority.”
At the hearing of this matter Advocate S Sibanda, for the Applicants
amended the Draft Order by deleting the above relief and substituting it with
the following:
“1.
The dismissal of applicants from the Zimbabwe Republic Police be and is hereby
reversed and annulled forthwith.
2.
The Respondents be and are hereby ordered to facilitate for the applicants'
reinstatement into the Zimbabwe Republic Police without loss of benefits, rank
or seniority.
3.
The Respondents be and are hereby ordered within 30 days of this order to
facilitate for the payment of salaries and benefits from date of dismissal to
date of reinstatement,
ALTERNATIVELY,that
the Respondents be and are hereby ordered that in lieu of reinstatement Applicants
be paid damages as follows:
(a)
a sum equal to the salaries and benefits that the Applicants would have been
paid from the date of dismissal to date of payment.
(b)
a sum equal to the salaries and benefits extending for a period from date of
payment of damages in para (a) of the alternative relief to date of envisaged
retirement or an amount agreeable to the parties.
4. that the Respondents be
ordered to pay costs on an attorney and client scale.”
The Applicants' legal practitioner then raised the following points in
limine:
(1)
That the 2nd Respondent is barred as it failed to file Heads of
Argument in this matter.
(2)
That the applicants have not been furnished with a record of proceedings of
both the Disciplinary Hearing and the Suitability Board of Inquiry.
I quickly disposed of the preliminary points and dismissed them as it was
abundantly clear that the failure by 2nd Respondent to file heads of
Argument was a non-event. The Heads of Argument filed by 1st
Respondent for the purposes of these proceedings canvassed the issues between
the parties and 2nd Respondent was merely cited for the purposes of
giving effect to any order granted by this court. Secondly, the transcript
of proceedings from the Disciplinary Hearing was furnished to the court and to
both applicants and is clearly detailed and captures all the material evidence
regarding both the background to the case and the procedure adopted throughout
the hearing. It is noted that the applicants were legally represented at
disciplinary hearing at some stage and they were able to conduct their defence
effectively.
The points raised in limine had no merit and I accordingly dismissed
them and proceeded to hear argument on the merits.
The main issues for determination are these:
1.
Whether the decision to discharge the applicants was in accordance with the
law.
2.
Whether there was any bias by the Board members.
3.
Whether the confirmation of the discharge by the Police Service Commission was
not in accordance with the law.
The applicants were discharged from the force by the Commissioner General of
the
Zimbabwe
Republic Police after they were found to be unsuitable for police duties
following
their
conviction under the Police Act for contravening section 34 of the Schedule to
the Police
Act. A Board of Inquiry
was convened in terms of section 50(3) of the Schedule to the Police Act and it
was properly constituted for that purpose. The Commissioner General acted
in terms of the law. The Applicants sought to argue that the Board was
composed of members or a member who was biased against these applicants.
It is noted, that it is a requirement of the law in terms of section 50(1) of
the Schedule to the Police Act that:-
“an officer who
is a material witness or has a personal interest in the matter shall not be
appointed to such a Board.”
The Applicants did not object to being heard by the officers who constituted
the Board of Inquiry and their allegations of bias have no basis at all.
The applicants failed to place any facts before the court to establish the
alleged bias. The applicants only make reference to an incident
where one of the Board officers was seen conversing with the Board Chairperson
as an indication that the Board was biased. The issue of bias cannot be
inferred. It has to be proved and established by the wronged party.
In any event the main task of the Board was to look into the summary of the
career history of the applicants and make appropriate recommendations.
Their recommendations were not final. The decision on the matter once the
findings of the board were compiled vested in the Commissioner General of
Police in terms of section 50(3) of the Schedule to the Police Act. I am
satisfied that there does not appear to have been any bias in this matter,
whether real or imagined against the applicants.
The Police Service Commission is constituted in terms of PART VI of the
Schedule to the Police Act. Its functions are clearly enunciated in the
Police Act (see section 51 and 55). The Police Service Commission deals
with appeals, pertaining to discharges of members, by the Commissioner General
of the Zimbabwe Republic Police. The Commission has the mandate to
scrutinize all the evidence presented to it and will on that basis determine
the matter. In this case the Commission has made a decision based on the
record and all the facts presented to it including all the complaints raised by
the applicants in the conduct of proceedings. The Commission decided that
on the basis of the record the applicants were not suitable persons to remain
in the force. It is my view that the Police Service Commission's dismissal
of the appeal was in accordance with the law and there is no legal basis to
interfere with its decision.
See the case of Moyo v President Board of Inquiry and others 1996(1)
ZLR 319
I find that there is no merit in the assertion by the applicants that the
disciplinary trial and Board of Inquiry were conducted unfairly and not in
accordance with the Constitution of Zimbabwe. Further there is no legal
basis for the argument that the Police Service Commission acted
improperly. To the contrary, it is clear that the applicants though
having a right to pursue their case in this court on review, the background to
the matter highlighted above tends to show an abuse of court process by the
applicants. The applicants did not have a defence to the allegations
against them. The allegations are serious. The applicants are lucky that
they were not prosecuted in the criminal courts for more serious charges for
obstructing the course of justice and corruption.
In the result, I conclude that the application for review has no merit and
accordingly, the application is dismissed.
Advocate SKM Sibanda and partners'applicants' legal practitioners
Civil
Division, Attorney General's Office,
respondents' legal practitioners
