MATHONSI
J: The applicant is a police constable based at ZRP Beatrice. A board
of inquiry-suitability has been convened to inquire into his
suitability to remain in the force or to retain his rank, salary or
seniority. The board was due to sit on 24 July 2015 causing him to
file this application seeking to stop the proceedings before the
suitability board.
The
reason for seeking a stay of the proceedings is that after the
Commissioner General of Police confirmed the conviction and sentence
of the applicant on 23 June 2015 he noted an appeal to this court in
terms of s 70(5) of the Constitution. He had been convicted of
contravening paragraph 34 of the Schedule to the Police Act [Chapter
11:10]
and sentenced to 10 days imprisonment.
The
applicant states that he sees no reason why an appeal to the High
Court should not suspend the decision appealed against. Proceeding
with the hearing has the effect of undermining the authority of this
court. He will be prejudiced if the suitability proceedings continue,
although he does not state how. He will suffer irreparable harm as he
“will definitely be discharged” from the force. Again he does not
say why he is so sure that he will be discharged when the board's
terms of reference are to look into his suitability or fitness “to
remain in the Police Service, retain his rank, salary or seniority.”
Discharge is not the only outcome of the inquiry.
Section
70 (5) of the constitution in terms of which the applicant has
appealed to the High Court provides :
“Any
person who has been tried and convicted of an offence has the right,
subject to reasonable restrictions that may be prescribed by law, to
–
(a) have
the case reviewed by a higher court ; or
(b) appeal
to a higher court against the conviction and sentence.”
The
High Court has review jurisdiction over all inferior courts and
tribunals in terms of s 26 of the High Court Act [Chapter
7:06].
While it has appellate jurisdiction as well s 30 of the High Court
Act dealing with the jurisdiction in civil cases provides:
“(1) The
High Court shall have jurisdiction to hear and determine an appeal in
any civil case from the judgment of any court or tribunal from
which, in terms of any other enactment an appeal lies to the High
Court.
(2) Unless
provision to the contrary is made in any enactment, the High Court
shall hear and determine and shall exercise powers in respect of
an appeal referred to in subsection (1) in accordance with this
Act”
That
provision accords with what is contained in s 171 (1)(d) of the
constitution which reads:
“The
High Court has such appellate jurisdiction as may be conferred on it
by an Act of Parliament.”
The
central issue to be determined in this matter is whether the
applicant has established the requirements of an interdict. In doing
so one cannot avoid dealing with the issue of whether there exists a
valid appeal that has been lodged against the decision of the
Commissioner General of Police.
I
have given a recital of the provisions dealing with appeals because
the applicant purports to have approached the High Court on appeal in
terms of s 70(5) of the constitution. That is what the notice of
appeal filed on 24 June 2015 says. There is no doubt in my mind that
s 70(5) of the constitution does not set out any appeal procedure.
Also it certainly does not give the applicant a right to appeal to
this court from a decision of the commissioner general. Its import is
the conferment of broad constitutional rights of recourse to a
“higher court” on review or appeal.
For
that reason, the noting of the appeal to this court cannot possibly
be in terms of s 70(5) of the constitution. There has to be another
basis for lodging the appeal in the High Court. I shall return to
that issue later but for now let me deal with the central issue of an
interdict.
In
order to succeed in interdicting the respondents from conducting the
suitability board proceedings, the applicant must establish the
traditional requirements for a temporary or final interdict namely;
1. A
clear or prima
facie
right;
2. An
injury actually committed or reasonably apprehended;
3. The
absence of similar protection afforded by any other ordinary remedy;
and
4. A
balance of convenience favoring the grant of the interdict.
See
Setlogelo
v Selogelo
1914 AD 221 at p 227; Boadi
v
Boadi
& Anor
1992 (2) ZLR 378; Tribac
(Pvt) Ltd
v Tobacco
Marketing Board 1996
(2) ZLR 52(5) at p56.
In
my view the establishment of a right presents serious difficulties
for the applicant because the convening of a board to inquire into
the suitability or fitness of a police officer to remain in the
police service, to retain his rank, salary or seniority is provided
for in the law. In terms of s 50(1) of the Police Act, the
Commissioner General has authority to convene such a board. An
activity conducted in accordance with the law cannot lawfully be
interdicted unless if in so doing the conven or commits an
irregularity or violates the law in terms of which he is so acting.
Faced
with that obvious difficulty Mr Mugiya
for the applicant sought to argue that while the applicant cannot
lawfully prevent the suitability board proceedings, he can lawfully
secure a temporary interdict until such time that his purported
appeal has been determined. I cannot, in all fairness, understand
what that means. Where a temporary interdict is granted against
proceedings conducted in terms of the law, a paradox arises. It can
only mean that the interdict itself is what is unlawful or irregular.
I
must say that if an applicant cannot establish the first requirement
of a clear right (in respect of a definitive or permanent interdict)
or a prima
facie
right (in respect of a temporary or interim one), but is able to
establish the other requirements, that will not be enough even though
the requirements are complimentary. The absence of a right is fatal
to the application.
The
applicant insists that his right to an interdict is found in the
appeal that he has noted to the High Court. Mr Tabana
for the respondents submitted that the purported appeal is a nullity
by reason that no right of appeal lies to the High Court against the
decision of the Commissioner General to confirm a conviction and
sentence imposed by a single officer in terms of s 34 of the Police
Act. To the extent that the appeal was a nullity it could not found
an application for an interdict.
The
issue has been a subject of two diametrically different
pronouncements of this court before. MAWADZE J was the first into the
fray in Chatukuta
v The
Trial Officer & Ors
HH 705/14. In that case the applicant had his conviction by a single
officer confirmed by the Commissioner General. He noted an appeal to
this court in terms of s 70 (5) of the Constitution. When his
superiors threatened to execute the sentence of imprisonment he made
an urgent application to stop the execution. The learned judge
concluded that a right of appeal lay in the High Court reasoning
that;
“The
Police Act does not at all oust the appellate jurisdiction of the
High Court in relation to proceedings held in terms of s 34 of the
Police Act. While an appeal lies to the Commissioner General against
the decision of a single trial officer in terms of s 34 (7) of the
Police Act, there is no provision in the Police Act which states
that no appeal lies against the decision of the Commissioner General
made in terms of s 34(7) nor is there a provision which bars an
aggrieved member to approach the High Court on an appeal against the
decision of the Commissioner General. Put simply, the appellate
jurisdiction of the High Court is not specifically ousted.”
To
the learned judge everything turned on the absence of an ouster
provision as opposed to the existence of a provision conferring
appellate jurisdiction.
CHIGUMBA
J was very emphatic in her conclusion in Jani
v The
Officer in Charge ZRP Mamina & Ors HH
550/15. She said;
“The
provisions of the Police Act are clear. There is no provision for an
appeal or review to this court from a decision of a single officer.
This court may only review the decision of a Board of Officers, or
entertain an appeal against the decision of a Board of Officers. The
reasoning behind this discrimination is clear. Single officers may
only adjudicate on simple offences which do not attract stiff
penalties. They preside over a simple and fast and streamlined
procedure designed to clear less serious infractions.”
Therein
lies the conundrum of conflicting views expressed by this court. I
however respectfully disagree with MAWADZE J. Ordinary jurisdiction
and appellate jurisdiction must be treated differently. While this
court will jealously guard its original jurisdiction, it does not
possess the magical crystal ball to guard the appellate jurisdiction
it does not have or to install it merely because a statute had not
specifically ousted it. This is because s 171(1)(d) of the
constitution makes it clear that this court may only exercise
appellate jurisdiction conferred to it by an Act of Parliament. In
line with that s 30(1) of the High Court Act provides that this court
shall determine appeals from courts or tribunals in terms of an
enactment.
In
that respect the appellate jurisdiction cannot be imposed merely
because it is not excluded. Surely it was never the intention of the
law giver in enacting s 70(5) of the constitution that any party
aggrieved by a decision of any tribunal should just rock up at the
High Court with an appeal not provided for in any enactment. Chaos
would ensue if that was to be the case. I am fortified in that view
by the existence of a right of review as opposed to appeal available
to an aggrieved party. Such a party can therefore not foist appellate
jurisdiction on this court which is not conferred by an Act of
Parliament. The Police Act, certainly does not confer such
jurisdiction.
Having
come to that conclusion, it must follow therefore that the filing of
an appeal in the High Court was an exercise in futility, it was a
nullity. This application being predicated upon a nullity cannot be
sustained as a nullity cannot give rise to anything valid. There is
therefore no legal basis for stopping the proceedings before the
board, the applicant having failed to establish the requirements of
an interdict.
In
the result, the application is hereby dismissed with costs.
Mugiya
& Macharaga Law Chambers,
applicant's legal practitioners
Attorney
General's Office,
respondent's legal practitioners
