MAKONESE J: The applicant
in this case is a Sergeant in the Zimbabwe Republic Police stationed
at Entumbane Police Station, Bulawayo. He was charged and convicted
by a single officer for contravening paragraph 35 of the Schedule to
the Police Act as read with section 34 of the said Act (Chapter
11:10), “acting in an unbecoming or in any manner prejudicial to
the good order or discipline or reasonably likely to bring discredit
to the police service”.
He was sentenced to pay a nominal
fine of US$10. Aggrieved by that decision he launched an appeal with
the Commissioner General of Police in terms of the Police Act. The
appeal was dismissed by the 1st
respondent. The applicant paid the fine but has approached this court
seeking a review of the decision by 1st
respondent.
The order sought by the applicant
is couched in the following terms:-
“1. That the conviction which
was confirmed by 1st
respondent be and is hereby set aside.
2. That after the setting aside
of the conviction, no Board of Inquiry/Suitability may be instituted
on the matter.
3. That there are no order as to
costs.”
The application is opposed by the
respondents who contend that the application is baseless and is
devoid of merit.
The respondents argue that the
applicant has not pointed to any irregularity in the proceedings
conducted by the single officer or in the manner in which the appeal
was handled by the 1st
respondent.
Factual Background
On the 6th
June 2012 one Mxibi Masuku a driver at Townsend High School, Bulawayo
was given a note by the school head authorizing him to park a school
minibus at Entumbane Police Station overnight for security reasons.
It is common knowledge that members of the public often park their
vehicles outside police stations overnight, where they perceive
security to be tighter, than at their own residences. In this
instance the school driver resided near the police station and it was
found prudent that after completing his runs, he would park the
school bus at a safe place. What appeared to be a simple and straight
forward request to park the school bus suddenly turned ugly leading
to the police disciplinary inquiry, which is now the subject of this
review.
Masuku walked into the charge
office at Entumbane late in the night. Behind the desk was the
applicant. He was the duty officer on that particular night. Masuku
handed a written letter to the applicant which had been authored by
the school head. The applicant took the letter and read it. The
school driver was not quite prepared for the response he received
from the applicant. The applicant was not amused. He asked Masuku
whether the police station was a car park. He was not yet done with
the stunned driver. He stated that the police were not “Safeguard”
personnel who looked after people's properties. He then examined
the letter again and said the letter was not properly written. The
applicant pointed out that the letter from the school head was not
“requesting” but “authorizing” that the vehicle be parked at
the police station. The applicant took the letter and made some
comments in red ink at the bottom of the letter. The words endorsed
on the letter by the applicant were certainly not kind but strong
words. He remarked as follows:-
“Mrs M. Moyo
Please be advised that it is not
our mandate and requirement as our organisation ZRP to safeguard your
vehicle at our camp.
Find your own means, police
officers are not security guards and there is no car park for
safekeeping vehicles.
Signed
Sgt Mabhunu”
Masuku parked the minibus outside
the police station and left.
I cannot quite comprehend what it
is that caused such response from the applicant. I am sure that the
school head at Townsend High School knew very well that Entumbane
Police Station was not a car park. I am also certain she was aware
that the Zimbabwe Republic Police had no mandate to provide security
services to members of the public. Mrs Moyo, the school head at
Townsend High School found the letter to be rude and utterly
unprofessional. She filed a complaint with the Zimbabwe Republic
Police. I reproduce hereunder the complaint letter that eventually
set in motion disciplinary proceedings against the applicant:-
“Assistant Commissioner Gora
Zimbabwe Republic Police
Bulawayo
14 January 2013
Dear Sir,
Re: Complaint on attached
response from Sergeant Mabhunu
Please find attached a letter
which was written by the Head of Townsend High School authorizing the
school driver to park the school kombi at Entumbane Police camp
during the Youth Education through Sport (YES GAMES) which were being
hosted by Bulawayo from 6 December to 9 December 2012 and the SRC had
requested for a donation in the form of transport from Townsend High
School.
The driver Mr Masuku resides in
Entumbane and due to the late hours that he was going to be working
during this National event, it was only logical to allow him to take
the kombi to Entumbane and then, because he had no safe place to park
the car overnight, it was seen fit that he be authorized to park the
kombi at the nearest police station with the understanding that the
ZRP is always there to offer security in time of need, especially
during National events.
It is therefore very surprising
and disappointing to get the response that is written in red ink from
Sergeant Mabhunu. He even chose to underline and write in red ink on
the same letter written by the head and this office views that as
gross disrespect and very unprofessional. This school enjoys very
cordial relations with the ZRP in general and would not like to spoil
the relationship because of Sergeant Mabhunu's rudeness. We feel
that he should have denied us the service in a polite manner if at
all it was necessary to deny that service. Townsend High is a
Government school and will always rely on the ZRP to offer assistance
when it is needed.
Our apologies if the school erred
in requesting for your organisation's service and please do not
hesitate to correct the school. If the school did not err, then we
request that corrective action be taken to mend the relations that
have turned sour because of Sergeant Mabhunu's response.”
The Officer In Charge, Entumbane
was instructed to institute disciplinary proceedings against the
applicant. A trial by a single officer was conducted by
Superintendent Evelyn Taurai Philip in terms of the Police Act.
Applicant was duly convicted. His appeal against both conviction and
sentence was dismissed by 1st
respondent.
On 29th
July 2014, applicant filed a Court Application For Review. The broad
grounds for review are that:
1. The single officer had no
jurisdiction to preside over the matter.
2. The trial officer was biased
in the manner she conducted the proceedings.
3. The trial officer denied her
the opportunity to secure legal representation.
I now deal with each of the
grounds for review.
The trial officer lacked
jurisdiction
The thrust of the applicant's
argument is that in terms of the police uncoded Rules dated 17 April
1980 it is provided that:
“As far as possible, and
without serious impairing of efficiency, members of rank of sergeant,
sergeant major and section officer may not be tried by an officer who
has less than three years in rank of Superintendent and above.”
(emphasis mine)
1st
respondent contends that despite the fact that the trial officer was
one year in the rank of Superintendent, she had the jurisdiction to
try the applicant in terms of section 34 of the Police Act (Chapter
11:10), by virtue of being an officer of the rank of Superintendent.
The relevant section provides as follows:
“34. A member, other than an
officer, who is charged with a contravention of this Act or any order
made thereunder or any offence specified in the Schedule may be tried
by an officer of or above the rank of Superintendent and sentenced to
any punishment referred to in paragraph (d) of subsection (2) of
section twenty-nine.”
It is clear that the Police
uncoded rules were essentially crafted for the purposes of enforcing
police discipline in the Zimbabwe Republic Police. These rules do not
replace the Police Act. They compliment the Police Act. The
provisions of the uncoded rules state that “as
far as possible, and without serious impairing of efficiency of
members, a member should be tried by a person holding the rank of
Superintendent for at least three years.”
I have no doubt that the trial
officer had the jurisdiction to preside over the disciplinary
hearing. The power to preside over the matter is derived from the
provisions of section 34(1) of the Police Act. I conclude therefore,
that this ground of review has no merit.
The trial officer was
biased
I have carefully perused the
record of proceedings and there is no evidence of bias or malice on
the part of the trial officer. The applicant was given the chance to
defend himself. He cross-examined witnesses at length and in an
effective manner. He was given the chance to bring his witnesses to
the hearing but failed to do so. He was content to argue that his
witnesses were unwilling to come and testify in his favour. In
particular, the applicant indicated that he wished to call the
officer in charge at Entumbane Police Station at the time. The fact
of the matter is that the report by the Officer In Charge Police
Station Entumbane is part of the record of these proceedings. In that
report the Officer In Charge was of the view that this was a minor
issue, but that was not the view of the Officer Commanding Bulawayo
District who gave a direction for disciplinary proceedings to be
instituted against applicant. The trial officer did not conduct these
proceedings in an irregular manner. The record clearly shows that
whenever the applicant required the case to be postponed his requests
were granted.
On this ground of review, I did
not find any evidence of bias from a reading of the record. If
anything, the trial was conducted in a fair and proper manner.
The trial officer denied
applicant the opportunity to secure legal representation
I observe that the trial before
the single officer was not finalised on a single day but over a
period of time extending from 17 May 2013 to 18 November 2013. The
matter was postponed on four different occasions. The applicant was
given ample time to engage the services of a legal practitioner of
his own choice. This is buttressed by the fact that the applicant
indicated when the trial commenced that he wished to conduct his own
case. In any event, applicant could have engaged a legal practitioner
at any stage of the trial. The trial officer did not prevent the
applicant from engaging a legal practitioner of his choice. The
record reflects that at the close of the State case applicant
requested a postponement to enable him to engage the service of a
legal practitioner. The matter was postponed for continuation to the
5th
July 2013. When the trial resumed applicant was asked whether he had
secured the services of a lawyer. Applicant responded by pointing out
that he did not mean to bring a lawyer as such but that he just
wanted to consult. Applicant then proceeded with his defence case.
Applicant requested a further postponement after leading evidence,
indicating that he wished to call a crucial witness in support of his
defence. The matter was again postponed to the 28th
August 2013 at the instance of the applicant. When court resumed
applicant informed the trial officer that his witness was not going
to attend court. The applicant closed his case and made oral
submissions in quite some detail. It is clear that the trial was
conducted fairly and that at all material times the applicant was
afforded the opportunity to engage the services of a lawyer. There
was no irregularity in the manner the trial officer handled the
proceedings.
Under section 69(4) of the
Constitution of Zimbabwe Amendment (No. 20) 2013, the applicant's
right to a fair hearing is asserted in the following terms:
“Every person has a right, at
their own expense, to choose and be represented by a legal
practitioner before any court, tribunal or forum.”
The question of legal
representation was considered in the following cases:- Dladla
& Others vs
Administrator, Natal &
Others 1995 (3) SA 769
(N); Pett
v Greyhound Racing
Association Ltd [1969]
IQB 125 (CA) [1968] 2 ALL ER 545; Chirenga
v Delta Distribution
HH-75-03.
As I have already pointed out the
applicant was given enough time to secure the services of a lawyer.
The matter was postponed at his instance and when proceedings resumed
he stated that he just needed to consult. The facts of this matter
that clearly indicate that the applicant was not denied the right to
a legal practitioner. His contention that he was not treated fairly
is to say the least, being disingenuous.
The application lacks merit. In
my view the trial officer had jurisdiction conferred upon her under
section 34 Police Act. There is no evidence of bias in the conduct of
the trial. The applicant was at all material times given the
opportunity to engage the services of a legal practitioner. He chose
to represent himself.
In the result, I find that this
application is ill-conceived and make the following order:
1. The application be and is
hereby dismissed.
2. There shall be no order as to
costs.
Dube-Banda, Nzarayapenga,applicant's legal practitioners
National Prosecuting Authority, respondents' legal
practitioners
