Urgent
Chamber application
MATHONSI
J: The
applicant is a police constable who has served the Zimbabwe Republic
Police (ZRP) for 8 years and is currently based at Queenspark Police
station. At the material time he had been assigned canteen duties at
Hillside Police Station. It was while he was performing those duties
that accusations of misappropriation of funds amounting to $1264-00
were made against him, it being alleged that during the period
extending from 5 January 2015 to 3 February 2015 he had prejudiced
the canteen of that sum of money.
In
addition he was accused of being absent without official leave on 10
and 11 April 2015. The applicant duly appeared before the court of a
single officer facing two charges namely “omitting or neglecting to
perform any duty or performing any duty in an improper manner in
contravention of paragraph 34 of the Schedule as read with section 34
of the Police Act [Chapter 11:10] and “being absent without
official leave” in contravention of s13 (1) of the schedule as read
with s34 of the same Act.
Following
a full trial, the applicant was found guilty and sentenced to 10 days
detention at Fairbridge detention barracks. In addition, he was
fined $10-00. He says that he has since served his sentence. What
has prompted him to come to this court is the convening of a
suitability board which was set to sit on 11 April 2016 and inquire
into the suitability or fitness of the applicant as a regular force
member to remain in the force, or to retain his rank, seniority or
salary.
The
board was convened by the first respondent in terms of s50 (1) and
(2) of the Police Act [Chapter 11:10] as read with s 12 and s13
(1)(b) of the Police [Trials and Boards of Inquiry] Regulations,
1965. He states in his founding affidavit that he appealed against
the determination for the single officer to the commissioner general
which appeal was made in terms of s34(7) of the Act. Sitting as an
appellate court the commissioner general dismissed the appeal by
judgment dated 26 February 2016. In arriving at that conclusion, he
meticulously analysed the evidence on the record and discussed all
the ten grounds of appeal relied upon by the applicant reasoning that
“the state managed to prove its case against the appellant beyond
reasonable doubt on count one” and that there was equally no merit
in the appeal against conviction in count two as “the decision to
convict was well justified.”
The
applicant says that he has now filed an application for review in
this court in HC 685/16 challenging the decision of the first
respondent. That application was filed on 16 March 2016 a day before
the suitability board was convened on 17 March 2016. He has opted
for the option of a review application in this court because
proceeding by way of an appeal in terms of s51 of the Act:
“is
just academic because the police service is undergoing a massive
discharge to rationalise the wage bill. Such remedy cannot be
trusted and it is on record even before this Honourable Court that
the first respondent executes his dismissal even if any appeal in
terms of section 51 of the Act is pending.”
The
applicant would therefore want to interdict the sitting of the
suitability board to enable him to prosecute the review application
he has filed. In the event that the board would have sat, the
applicant would like their recommendations to be suspended and the
first respondent interdicted from acting upon them.
Mr
Sangu,
who appeared in person, submitted that he was tried by the
magistrates court at Bulawayo on a charge of theft involving the sum
of $264-00 and was in August 2015, found not guilty and acquitted.
For that reason, it was improper for the police authorities to prefer
a charge of improper conduct against him arising out of the same set
of facts. I do not agree.
It
is trite that the same conduct can give rise to both criminal and
civil sanction. Where an employee has allegedly stolen from an
employer, the latter is entitled to prefer criminal charges against
such employee to be pursued in the criminal court. That however does
not oust the employer's jurisdiction to discipline such an employee
under civil law, an exercise which may result in misconduct charges
being preferred against the employee and disciplinary sanction
eventuating. As an employee, the applicant remains subject to
disciplinary law internally even where criminal prosecution has taken
place. The acquittal by a criminal court cannot exonerate an
employee from the consequences arising from disciplinary law. After
all, the acquittal is merely the opinion of the criminal court under
circumstances where the burden of proof, beyond a reasonable doubt,
is more onerous than that obtaining under civil law being on a
preponderance of probabilities.
I
am fortified in that view by the provisions of s278 (2) of the
Criminal Law Code [Chapter 9:23] which read:
“A
conviction or acquittal in respect of any crime shall not bar civil
or disciplinary proceedings in relation to any conduct constituting
the crime at the instance of any person who has suffered loss or
injury in consequence of the conduct or at the instance of the
relevant disciplinary authority, as the case may be.”
It
is also pertinent to note that in terms of s 30 (5) and s 34 (9) of
the Police Act, a conviction under the Act is not regarded as a
conviction for purposes of any other law. Subsection (9) of s 34
provides:
“A
member who is found guilty of contravention of this Act by an officer
shall not be regarded as having been convicted of an offence for the
purpose of any other law.”
See
also s193(b) of the Constitution of Zimbabwe.
What
this boils down to is that like any other employee, a police officer
may be subjected to both criminal prosecution and disciplinary law in
respect of the same set of facts. He or she cannot lawfully rely on
the outcome of the proceedings in the criminal court to except to
disciplinary proceedings.
Mr
Sangu
also submitted that he is entitled to appeal to the High Court
against the decision of the Commissioner General dismissing his
appeal in terms of s 70 (5) of the Constitution. He has not appealed
despite having been served with the appeal judgment on 17 March 2016
because he had not been given appeal papers by his superiors. Before
he could note the appeal he was arrested and taken to detention at
Fairbridge detention barracks where he has been held unlawfully.
Considering
that the applicant has had almost a month to file his appeal to the
High Court but did not do so electing instead to file a review
application, those submissions are mere redherring by a recalcitrant
police officer who thinks he can use all means possible to avoid the
consequences of his actions. In any event, the Commissioner General
is the final court of appeal and not the High Court.
I
have already pronounced myself on that point in Tamanikwa
v Commissioner
General of Police and Another HH676/15
where I took the view that it was never the intention of the
legislature in enacting s70 (5) of the Constitution to allow any
party aggrieved by a decision of any tribunal including the
Commissioner General of Police, to appeal to the High Court because
such an appeal is not provided for in any enactment. This is because
s171 (1) (b) of the Constitution provides that the High Court may
only exercise appellate jurisdiction conferred to it by an Act of
Parliament. See also s30 (1) of the High Court Act [Chapter 7:06].
Ms
Ndou
who appeared for the respondents submitted that the suitability board
has already sat and made certain recommendations which await
consideration by the first respondent. It is unfortunate that the
respondents elected to disregard the pending application and
proceeded with the hearing of the suitability board as if nothing had
happened. The board was convened to sit on 11 April 2016 but was
postponed to 13 April 2016 on which date it sat and dealt with the
matter. The application and notice of set down for hearing were
served on the respondents on 12 April 2016 and I do not accept Ms
Ndou's
submission that they did not know which board it related to because
the applicant cited “The Board of Suitability” as the second
respondent instead of the President. She stated that the legal
practitioners could not instruct the board to stay proceedings until
this application had been disposed of because the officers
constituting the board were unknown.
In
my view that it a mendacious explanation tending to take the court
for granted. A brief perusal of the application would have revealed
that the convening order, annexure “D”, contains the names of the
three board members. It has been stated repeatedly that it behoves a
party in the position of the respondents who would have been served
with a court process calling into question a certain activity they
intend to undertake to respect the process of the court and refrain
from conduct that would negate the process of the court. See Rukonda
and Others
v Minister
of Local Government, Public Works and National Housing N.O and others
HH 360/14; The
Evangelical Church of Zimbabwe v
Rev
Soda
HH 458/15.
I
would not want to believe that the respondents wanted to circumvent
the due process by rendering the application of academic importance
only, especially as the applicant was carted away to a detention
camp, the very day that he launched this application. No matter how
frustrated police authorities may be by the upsurge in applications
of this nature brought by police officers trying to avoid
disciplinary action, care must be taken not to appear as if these
officers are now being persecuted. They must still maintain a
dispassionate approach to disciplinary action and remain on a moral
high ground. Appearing to disrespect courts of law cannot possibly
be helpful in resolving their problems. If there was merit in this
application, I would not have hesitated to nullify the proceedings.
However, the respondents' conduct automatically disentitles them to
costs.
I
now have to resolve the issue of whether the filing of an application
for review in this court entitles the applicant to an interdict. In
that regard, we are covering ground that has already been traversed.
A suitability board is convened by the first respondent in the
exercise of his constitutional mandate as the supreme commander of
the police service appointed in terms of s221 of the Constitution.
In that capacity he has command, control and authority over the
police service.
The
convening of a suitability board is an administrative function
carried out in terms of s50 of the Act which provides;
“(1) A
board of inquiry consisting of not less than three officers of such
rank not being below that of superintendent, as may be considered
necessary by the Commissioner General may be convened by the
Commissioner General to inquire into the suitability or fitness of a
Regular Force member to remain in the Regular Force or to retain his
rank, seniority or salary;
Provides
that no officer who is a material witness or has a personal interest
in the matter shall be appointed to such a board.
(2) ---
(3) If
a Regular Force member, other than an officer, is found after inquiry
by a board
to
be –
(a) unsuitable
or inefficient in the discharge of his duties; or
(b) otherwise
unfit to remain in the Regular Force or to retain his rank, seniority
or
salary;
the Commissioner General may—
-
discharge
the Regular Force, member;
or
-
reprimand
the Regular Force member.”
What
is clear therefore is that a suitability board does not decide only
the discharge from service of a member. It may, after the inquiry,
decide on the change of rank, seniority or salary of a member. It is
not the board which decides the fate of a member as its brief is only
limited to making recommendations to the Commissioner General who
still retains the discretion to act as provided for in subsection (3)
of s50. With that in mind one then wonders why all the hullabaloo by
police officers the moment a suitability board is convened.
For
our present purposes I must point out that the Act reposes upon the
Commissioner General, in his sole discretion, the administrative
authority to convene such a board. Accordingly a board so
constituted is in accordance with the law and it performs its duty
according to the provisions of that law, the Act. I have already
expressed myself on that issue in Nkululeko
v Commissioner
General of Police and Others
HB 11/16 where I stated that for an applicant to succeed in
interdicting the proceedings of a suitability board, he or she must
establish all the requirements of an interdict, namely a prima
facie
right, an injury actually committed or reasonably apprehended; the
absence of similar protection afforded by any other ordinary remedy
and a balance of convenience favouring the grant of the interdict.
In
that matter I drew the following conclusion which I still adhere to:
“The
convening of a suitability board by police authorities is provided
for the Act. In Tamanikwa
v Board
President (Chief Superintendent Baleni) and Another
HH676/15 I expressed the view that in an application such as the
present the establishment of a right presents serious difficulties
for the applicant because the convening of a board to inquire into
the suitability of a police officer to remain in the police service,
to retain his rank, salary or seniority is provided for in the law.
Section 50 (1) of the Police Act reposes authority upon the
Commissioner General to convene such a board. An event conducted in
accordance with the law cannot lawfully be interdicted unless if, in
so doing, the convener commits an irregularity or violates the law in
terms of which he is so acting. I stand by that pronouncement.”
This
matter is on all fours with the cases I have cited and is not
distinguishable at all. What it means is that the primary
requirement for an interdict, namely the existence of a right, has
not been proved because the first respondent has acted in accordance
with the law.
Ms
Ndou
has drawn my attention to similar remarks made by MALABA
DCJ in
the case of Jangara
v The
Board President and Another
SC 288/15. It is not a judgment but an endorsement on a matter
placed before the learned Deputy Chief Justice whose force of law
remains binding on me. He said:
“The
application seeks to interdict the convening (of) a suitability board
that was due to sit on 3 June 2015. By the time the papers were
placed before me the suitability board had sat, a court cannot
interdict a past event. In any case a suitability board can be
convened for many reasons relating to the performance of duty by a
police officer. A court cannot interdict the convening of a
suitability board which is authorised by law.”
Having
said that, the matter is resolved. However, I must add that the
applicant has other remedies provided for in the Act. In terms of
s51 he is entitled to appeal against the decision arrived at
following a suitability board. The appeal lies to the Police Service
Commission. For the applicant to say that he has opted for a review
application in the High Court because an appeal provided for in the
law cannot be trusted is simply disingenuous. The fact remains that
he has not exhausted domestic remedies and therefore fails to
establish one of the requirements for an interdict, the absence of
any other ordinary remedy.
In
the result, it is ordered that:
-
The
application is hereby dismissed.
-
Each
party shall bear its own costs.
Civil
Division, Attorney General's Office,
respondents' legal practitioners
