The applicant, who was legally
represented, presented an application for review devoid of grounds for review
as required by Rules of this Court.
Order 33 Rule 257 makes it clear
that a court application for review shall state shortly and clearly the grounds
upon which the applicant seeks to have the proceedings set aside or corrected
and the exact relief prayed for. The application, on the face of it, is
fatally defective as the applicant only alluded to grounds of review in the
founding affidavit. Further, the record of proceedings before the single
trial officer was not attached. At the hearing, the parties made concessions
requesting the court to exercise its discretion and hear the matter on
merit. In exercising discretion, the court viewed the larger picture of
justice upon entertaining the matter on merit.
The applicant brought the matter for
review on the basis that it viewed the decision by the respondent to be not
only irrational but outrageous in its defiance of logic.
The background to the matter, as
observed from papers, is that the applicant was a constable stationed at ZRP
Masvingo Offices. The applicant was discharged from the police force on
22/3/11 after being found to be “unfit to remain in the police force” in terms
of section 50(4) of the Police Act [Chapter 11:10].
Allegations which prefixed the
charge and finding were that on 16 November 2010, the applicant was on duty
manning the charge office. A suspect, one Faith Phiri, who was pregnant,
requested to go to the toilet at around 0200hrs. The applicant escorted
her, and while the suspect was using the toilet the applicant is alleged to
have opened the door and asked for sexual favours. He was denied same and
he imposed himself on the said Faith Phiri and raped her. The suspect
reported the case to a police officer who took over duty from the applicant. It
was against this backdrop that the applicant was charged in terms of paragraph
35 of the Police Act [Chapter 11:10] for acting in an unbecoming manner or in
any manner prejudicial to good order or discipline or reasonably likely to
bring discredit to the police force.
The applicant was convicted before a
single trial officer and sentenced. He followed the internal channels and
his appeal to the Commissioner General of Police was dismissed and further
appeal to the Police Service Commission hit a brick wall.
The present application is for
review of the Police Service Commission decision.
The Rules, and even the High Court
Act, in particular section 27, is the legal basis for such review. Section
27(1)(c) of the High Court Act states that:
“Subject to this Act or any other
law, the grounds on which any proceedings or decisions may be
brought on review before the High Court shall be -
(a)…,.
(b)…,.
(c) Gross irregularity in proceedings
or decision.”
The question to be decided by this
court is whether or not the decision by the Police Service Commission was so
irrational as to defy logic; or, put differently, whether or not the alleged
conduct of the applicant was unbecoming to such an extent that it warranted him
being discharged for conduct putting the police force into disrepute.
In casu, it is important to consider what facts were placed before
the Police Commission and juxtapose
those with the conclusion reached so as to measure whether or not such decision
defied logic such that no reasonable person having applied their mind to such
facts would come up with the same conclusion. The applicant in the present
case is not challenging the manner in which proceedings were conducted but that
the decision is irrational as it is not supported by the facts which were
presented before the decision maker, that is, the Police Service Commission.
In casu, the facts before the Police Service Commission are that
the applicant escorted a female suspect to the toilet and allegedly opened the
door before she finished relieving herself and he allegedly raped her. It
is these circumstances that led to the applicant being held unfit for the
police force. The argument that the criminal matter of rape under the
Criminal Law (Codification Reform) Act [Chapter 9:23] had not yet been
concluded at the time of the disciplinary hearing has no effect or force on the
disciplinary proceedings. There is no bar to disciplinary hearings where criminal
charges emanating from the same set of facts are pending. The degree of
proof is different for the obvious reason of the distinction between
disciplinary hearing and criminal hearing. The applicant, during review,
sought to place evidence that the complainant withdrew her statement but this
is new evidence which was not placed before the trial officer and equally the
appellant authority. The evidence which was not before the trial officer
and the appellant authority cannot stand as a basis for imputing that the
decision reached was illogical.
What is clear from the papers, and
record of proceedings, is that the conclusion that the applicant had acted in
an unbecoming manner or manner prejudicial to the good order or discipline or
reasonably likely to bring discredit to the police force is well anchored on
the evidence adduced on record. It is that record which the appellant
authority, the respondent, based its decision on. The applicant's
challenge related to the substantive correctness of the decision rather than
the procedural irregularities committed during the hearing. The evidence available
before the trial officer was that the applicant had escorted to the toilet and
raped a pregnant female suspect. The issue of alleged subsequent
withdrawal was not before the trial officer and the appellant authority, that
is, the respondent. In the absence of evidence to refute such allegations there
would have been no basis for the respondent to up-turn the decision of the
trial officer and Commissioner of Police. The decision was not completely
irrational and divorced from the facts which were before the respondent.
On the issue of irrationality, I
sought guidance in the case of Secretary
for Education and Science v Tameside
Metropolitan Borough Council 1977 AC 1014…, where LORD DENNING cautioned
that -
“No one can properly be labelled as
being unreasonable unless he is not only wrong but unreasonably wrong, so wrong
that no reasonable person could sensibly have that view.”
In casu, the respondent was faced with evidence of a male police
detail having escorted and raped a pregnant female suspect and it agreed with
the chain of trial finding that such conduct made the applicant unfit for the police
force and hence confirmed the decision. Only the decision of the Police
Service Commission is being challenged on review. The respondent's
decision was based on facts placed before it and it was not for the respondent
to carry out an investigative role in a bid to adduce further
evidence. The procedure followed in bringing the matter to the respondent
is not challenged but the decision. Given the set of evidence placed
before the respondent one cannot say the decision was removed from the facts so
as to render it irrationally illogical.
The decision was based on the facts presented
before the respondent, and, accordingly, the application has no merit and is
accordingly dismissed with costs.
