The
charge that the applicant was facing was framed like this:-
“CHARGE
SHEET
The
State versus FORCE NUMBER 054381 C/D J. RANK SERGEANT
(Hereinafter
called the accused) appointed on 27/03/03 rate of pay…,.
The
accused is ordered to appear before the court of an officer/board of officers
at place DHQ WEST on the 24/12/12 at (time) 0800 hrs firstly to answer the
charges of contravening paragraph 11 of the schedule to the police Act Chapter
11:10 “without good and sufficient cause, disobeying or refusing or committing
or neglecting to carry out any order written or otherwise.”
In
that upon (or about) in September 2010 and at (or near ZRP ENTUMBANE) the
accused, being a member of the force, did wrongfully and unlawfully enrolled (sic) with the United College of Education in September 2010
for a Diploma in Education thereby disobeying provisions of Propol Bulawayo
Radio number CRC 649/12 DATED 11/04/12 which stipulate that anyone seeking to
pursue academic studies must have a clean record of service, amounting to 10
years and as well submit an application well in advance when seeking authority.”
The
charge sheet was personally served on the applicant on 21 December 2012 by Chief
Inspector Taduwa. The applicant indicated that he would conduct his own
case. The summary of the State case read thus:
“Charge:
contravening section 11 of the Schedule to the Police Act Chapter 11:10
“Without Good and sufficient cause, disobeying or refusing or omitting or
neglecting to carry out any order written or otherwise.
FACTS
(1) The
accused is a serving member of the Police Force at ZRP Entumbane. Accused
is subject to Police disciplinary code.
(2) On
the date unknown but in the month of September 2010, the accused enrolled with
the United College of Education for a Diploma in Education without having
followed the provisions of Propol Bulawayo Radio CRC 649/12 dated 11/04/12.
(3) The
accused must not have been acted (sic) in the manner he
did.”
The
applicant attended the trial on the appointed date and time. When the
State closed its case he applied for a discharge but the trial court was not
prepared to entertain the application and attempted to force him to present his
defence case. He alleged that the presiding officer even threatened to
physically assault him if he insisted with his application for a discharge at
that stage. That prompted him to file an ex parte
application on a certificate of urgency to stop those proceedings and was
granted a provisional order in case number HC578/13.
The
applicant is now seeking an order in the following terms in his amended draft:
“It
is ordered:-
(1)
That the proceedings of the 9th January 2013 be and hereby set
aside.
(2) That
after the setting aside of proceedings, no other proceedings on the same charge
shall be instituted against the applicant.”
The
applicant's complaint hinges on the charges that were preferred against
him. He drew attention of the court to the charge sheet which alleged that
he disobeyed the provisions of Propol Bulawayo Radio number CRC 649/12 dated 11
April 2012 which stipulates that anyone seeking to pursue academic studies must
have a clean record of service amounting to 10 years service and as well submit
an application well in advance when seeking authority.
The
applicant enrolled with the United College of Education in September
2010. The said Propol Bulawayo Radio Signal number CRC649/12 was only
formulated two years after he enrolled with the teacher training college and
was published on 11 April 2012. It is very difficult to understand how the
applicant could have been charged with disobeying provisions of the Propol
Bulawayo Radio Signal number CRC 649/12 which did not exist at the time the
applicant enrolled.
The
applicant has alleged that the presiding officer had been instructed to convict
at any costs. He therefore did not apply his mind to the case before him
and was biased against the applicant. He based his allegations on the fact
that a colleague of his, Sergeant Christopher Mabhunu, who appeared before an
impartial presiding officer, Superintended Pilate Moyo, facing similar charges,
was acquitted at the end of the State case. In acquitting him the presiding
officer stated that:-
“(a)
The radio signal had nothing to do with Sergeant Mabhunu since it was published
after he had enrolled with the college.
(b)
There was no such a charge in the Police Force.”
Section
11 of the Schedule to the Police Act [Chapter 11:10] which the applicant was
alleged to have contravened provides as follows:
“(11)
Without good and sufficient cause disobeying or refusing or committing or
neglecting to carry out any lawful order, written or otherwise.”
Quite
clearly, the lawful order which is disobeyed or refused or neglected to be
carried out must be in existence at the time an officer is alleged to
contravene the section. In fact, the lawful order must be written or
otherwise at the time it is disobeyed or refused to be carried out without good
and sufficient cause. The section makes no reference at all to future
lawful orders written or otherwise.
The
applicant was entirely correct when he submitted that there was no such
provision at all in the Police Act [Chapter 11:10]. He was also not aware
of any standing order to that effect. In any event, the charge sheet does
not allege that he contravened any standing rule or order. It alleged that
he contravened section 11 of the Schedule to the Police Act [Chapter
11:10]. There is no such standing rule in the Police Act [Chapter 11:10]
and it was not produced in court.
It
was submitted by the respondents that the charge preferred against the
applicant was correct because he had violated standing rules. The evidence led
in court had clearly showed how the offence had been committed. It was
further submitted that the applicant had refused to be put on his defence on
the basis that the synopsis had quoted a signal dated 2012 - a period of
two years after he had commenced his teacher training course. The respondents
concluded by claiming that the signal was just a reminder and that has been
clearly stated in the evidence which was led in court.
These
submissions are faulty.
Firstly,
it would have been improper and irregular to charge the applicant with
contravening section 11 of the Schedule to the Police Act [Chapter 11:10] but
lead evidence relating to the contravention of standing rules at the
trial. When counsel for the respondents was asked to produce the record of
proceedings showing where it was clearly stated the signal was just a reminder
and the evidence showing how the offence was committed he conceded he was
unable to do so. He even said he did not have such record.
The
applicant averred that he had written a letter on 10 July 2010, through his
officer in charge, seeking permission to enrol with the United College of
Education for a teacher training course commencing on 7 September 2010 to June
2013. When officers seek to communicate with the Officer Commanding
Province by letter they write through their officer in charge who transmits the
letter to the Officer Commanding Province. The applicant received no
response to his request. His letter is filed of record as annexure “F”….,
of the bound papers.
The
applicant argued that he had good and sufficient cause to enrol for teacher
training because he had been suspended from work without salary. He had to
prepare for his future. He contended that during the entire period of his
teacher training course he never absented himself from duty without official
leave and was at school only when he was not at work. He, therefore, did
not prejudice his employer in any way.
This
court holds that there was no evidence to show that the applicant was absent
from work without official leave thereby prejudicing the Police Force. Further,
it is held that the charge preferred against the applicant was patently wrong
and so was the synopsis of evidence and did not disclose any offence. Furthermore,
it is held that the presiding officer, Superintendent Ndlovu, was partial when
handling the applicant's case.
In
the result, I would grant the order sought in terms of the amended draft…,.
