The
applicant, an attested member of the Zimbabwe Republic Police, was dismissed
from the force on the 4th of June 2012. He has now applied for
a review of the decision made by the respondents to dismiss him.
The
background to this matter is as follows:
On
the 9th of February 2009, the applicant was charged before a
Regional Magistrate in Harare for contravening section 93 of the Criminal Law
(Codification and Reform) Act [Chapter 9:23]. It was alleged that on 14
July 2009 at House Number 1802 Mapereke Road, Marlborough, Harare, he
unlawfully, by means of threats of force or the use of fraudulent
misrepresentation or otherwise, deprived Kimberly Tafadzwa Nyamukapa, an adult,
of her freedom of bodily movement, intending to cause her such deprivation or
realizing that there was a real risk or possibility that such deprivation may
result. He was found guilty and sentenced to 8 years imprisonment of which 2
years were suspended for 5 years on conditions of good behaviour.
While
he was in Harare Prison waiting for the determination of his bail pending
appeal at the High Court the second respondent discharged him from the force as
unfit due to misconduct on the 10th of February 2011. He was
later released on bail on the 23rd of March 2011. In his founding
affidavit, he says the second respondent committed both error of law and fact
in the manner he handled his case.
When
he was shown the police radio message of his discharge on the 5th of
April 2011 he immediately lodged an appeal. He says he only got to know
then that he had been discharged on the 10th of February
2011. He says his salary was cut off in February unlawfully in violation
of section 44 of the Act.
He
says it was not correct that he appealed to the first, third and fourth
respondents out of time. He quoted section 51 of the Police Act [Chapter
11:10] which states that:
“A
member who is aggrieved by any order made in terms of section 48 or 50 may
appeal to the Police Service Commission against the order within the time and
in the manner prescribed, and the order shall not be executed until the
decision of the Commission has been given.”
He
also said the second respondent committed both an error of fact and law by
dismissing him without instituting the disciplinary trial and the Board of
Inquiry in terms of section 50 of the Police Act [Chapter 11:10]. He said
the failure by the respondent to carry out a disciplinary trial within a
reasonable time was unlawful. He cited a number of cases in which
disciplinary trials were held against other police officers in similar cases.
The first
respondent cited section 48(a) of the Police Act [Chapter 11:10] which states
that:
“If a
member, other than an officer, is convicted of any offence and sentenced
therefore to imprisonment without the option of a fine, whether or not the
execution of such sentence is suspended, the Commissioner General of the Police
may (a) discharge the member in which case the discharge may take effect from
the date of his conviction.”
There
are two sections in the Police Act [Chapter 11:10] which deal with a policeman
who is convicted of an offence. Section 48 of the Police Act [Chapter
11:10] deals with a “member” while section 49 of the Police Act [Chapter 11:10]
deals with an “officer”. “Member” is defined as any person, by whatever rank or
title designated, who has been appointed to and is serving in the Police Force.
“Officer” means a member holding a commissioned rank.
The
applicant is a member.
Section
48 of the Police Act [Chapter 11:10] says:-
“Procedure
on conviction of member for certain offences.
If
a member, other than an officer, is convicted of any offence and sentenced
thereof to imprisonment without the option of a fine, whether or not the
execution of such sentence is suspended, the Commissioner may -
(a) Discharge
the member, in which case the discharge may take effect from the date of his
conviction; or
(b)
Impose any one or more of the following penalties:-
(i)
Reduction in rank;
(ii)
Loss of seniority;
(iii)
Withholding of an increment of salary; or
(c)
Reprimand the member.”
It
is clear from the above that the suspension of execution of the sentence by an
appeal does not save the member from discharge.
I
do not understand this section to grant a member the same right as an officer,
who, under section 49, is subject to an inquiry in terms of the Commission of
Inquiry Act. The Board of Inquiry, in section 50, is set up to inquire
into the suitability or fitness of a regular force member to remain in the
regular force, a different situation from one where there is a conviction for
an offence followed by a term of imprisonment.
The
applicant in this case is a member not an officer. He was convicted of a
serious crime generally referred to as abduction and sentenced to 8 years
imprisonment. The Commissioner was within his right to discharge him from
the force.
There
is therefore no merit in his complaint and application for review. The
application for review is dismissed.
