MATHONSI
J: The applicant, a sergeant in the Zimbabwe Republic
Police, based at Stops Camp, is yet another prolific litigator who has emerged from
our midst. A sharp shooter who has
succeeded in filing several applications in this court while on a solo crusade
of fighting police authorities who want to discipline him. The applicant takes over the mantle from
legends in the business, stalwarts like Wilbert Munonyora (Munonyora v CBZ Ltd and
others HH 91/15 and Munonyora v CBZ and others HH 50/14); Mrs Towers (Towers v Chitapa 1996 (2) ZLR 261 (H) and Claudious Mapedzamombe (Mhini v Mapedzamombe 1999 (1) ZLR 561 (H) and Mapedzamombe v Mhini and
others HH 124/14). Virtually every
Judge of this station has dealt with one or other of the applicant's many
applications against the police authorities – KAMOCHA J, HB 40/14, MOYO J,
HB 28/14; TAKUVA
J, HC3018/14 and MAKONESE J, HC 2973/15.
The applicant was discharged from employment on
28 December 2015. On 4 January 2016, he
noted an appeal against the discharge to the Police Service Commission in terms
of section 51 of the Police Act [Chapter 11:10], the applicant being a “member”
of the force as opposed to being “an officer” as defined in section 2 of that
Act. The appeal in question is still pending and is yet to be determined.
Notwithstanding the
noting of the appeal the applicant bitterly complains that the police
authorities have gone ahead to effect the dismissal proceedings. His salary has been terminated, his rights to
liberty and dignity have been violated as the respondent's subordinates have
repeatedly harassed him in the presence of his colleagues and members of his
family and state property given to him as a police officer has been withdrawn
including the government accommodation he has been occupying.
The applicant has
therefore approached this court seeking an order interdicting the respondent
from such conduct until such time that his pending appeal has been determinated
by the Police Service Commission. The
only thing going in his favour in the present matter is that Ms Ndou for the respondent conceded that
his termination process was commenced before the authorities received his appeal. Now that he has appealed his salary will be
reinstated.
The respondent is
empowered by section 48 of the Act to discharge a member convicted of any
offence and sentenced to imprisonment without the option of a fine whether or
not the execution of such sentence is suspended. That section gives the respondent the discretion
to either discharge a member or impose the penalty of a reduction of rank, loss
of seniority or withhold a salary increment.
He may, in his discretion also reprimand a member.
Appeals against the
decision of the commissioner taken in terms of that Part are governed by
section 51 of the Act which provides:
“A
member who is aggrieved by any order made in terms of section forty-eight or
fifty 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.”
As I have said the
applicant has appealed the discharge and the Commission is yet to adjudicate on
that appeal. It is clear from a reading
of section 51 that an appeal to the commission suspends the order appealed
against. It is therefore incompetent for
the respondent to set in motion the procedure for dismissal when the order has
been appealed against. The applicant is
entitled to the status quo ante which
subsisted before the discharge order was issued.
There is a dispute as to
what transpired at the time of the applicant's discharge regarding the house he
was occupying at Ross Camp. The
applicant stated that the officer-in-charge, Chief Inspector Costa Taduwa,
instructed him to forthwith vacate the premises as he had been discharged and
that he was not going to be given time to relocate. As on a previous occasion the police
authorities had humiliated a discharged police constable by throwing his
property out in the street, he feared similar treatment. He therefore quickly looked for alternative
accommodation and moved out on his own accord.
According to the
affidavit of Taduwa, the applicant vacated the house on his own well before he
was discharged. In fact in early
December 2015, he had received information that the applicant was carting his
property out of the camp but when Taduwa questioned him about it, the applicant
denied doing that. He however came to
the officer in charge's office on 14 December 2015 to inform him that he had
decided to swap houses with one Constable Mleya who also occupied a house in
Ross Camp to which the officer in charge did not object. As far as he is concerned the applicant left
on his own accord and was not forced out of his accommodation.
In fact, when Taduwa
looked for the applicant inorder to serve him with his discharge papers he was
not at either of the houses as he had vacated.
The explanation given by Taduwa was confirmed by Constable Mleya who
stated that she is the one who had approached the applicant on 14 December 2014
seeking a swap which was effected on 15 December 2015. She later learnt that the applicant had not
taken up the house she had left for him.
I am not persuaded that
the applicant was forced out of the house.
There would have been no reason to do that on 14 December 2015 days
before the discharge radio was received at the station. It is also significant that when he left he was
supposed to move into Mleya's house but did not do so, consistent with the
explanation given by Taduwa that he was moving his property much earlier in
that month.
Where a person
voluntarily vacates premises provided for by the employer presumably in
preference of better accommodation of his own, the employer cannot be said to
be obligated to provide him with accommodation.
The obligation terminates at the time he takes the conscious decision to
vacate on his own.
Ms
Ndou, who appeared for
the respondent conceded that when the applicant was discharged his salary was
terminated. This they could not do as I have already said, the appeal having
suspended the discharge order.
In the result, the
provisional order is granted in terms of the draft order as amended.
Civil Division,
Attorney General's Office, respondent's legal
practitioners
