This
is an application for review in which the grounds have not been put
in a concise and precise manner. The order sought is couched as
follows:
“1.
That the proceedings of the trial held up to the 23rd
of March 2012 by the 2nd
respondent, subsequently confirmed by the 1st
respondent, be and are hereby set aside.
2.
That the confirmation by the 1st
respondent of the decision initially made by his single officer be
set aside.
3.
That the convening of the Board of Inquiry (suitability) by the 1st
respondent against applicant before finalisation of this review
application be deemed unlawful.
4.
The conviction of applicant under paragraphs 27, 35 and 34 of the
schedule to the Police Act [Chapter 11:10] be and is hereby quashed.”
The
facts are that the applicant is a constable in the Zimbabwe Republic
Police. He appeared before a police disciplinary trial facing three
counts of contravening paragraphs 27, 34 and 35 of the Schedule to
the Police Act. In Count 1, he was alleged to have solicited or
accepted a bribe. Count 2 relates to an allegation that he acted in
an unbecoming or disorderly manner and in Count 3 the averment was
that the applicant omitted or neglected to perform any duty or
performed a duty in an improper manner.
The
detailed facts of what the applicant is alleged to have done are not
relevant for purposes of this application, suffice to state that at
the end of the trial, on 28 February 2012, the applicant was found
guilty in respect of the three
(3)
counts. He was dissatisfied and informed the trial officer that he
intended to note an appeal to the first respondent.
The
applicant requested for a record of proceedings to enable him to
prepare grounds of appeal.
Instead
of furnishing this record, the second respondent refused to grant the
applicant access to the record and ordered the applicant's
immediate detention at Mkwasine Police Station. The following day,
the applicant was, on the second respondent's instructions, whisked
away to ZRP Fairbridge where he commenced serving the 14 days
imprisonment. Meanwhile, the applicant's legal practitioner filed a
notice of appeal without perusing the record of proceedings. He
subsequently filed an urgent chamber application under cover of case
number HC5404/12 for the applicant's release since he had filed
this notice of appeal within the stipulated 7 days. The order was
granted and he was released after serving a term of 6 days
imprisonment.
The
applicant's erstwhile legal practitioners addressed a letter to the
second respondent on the 26th
March 2012. The full letter reads as follows:
“…,.
We have been instructed to act on behalf of Cst Moyo. Please note our
interest. We write to advise that we have been instructed to follow
the matter up and make an appeal on his behalf. In fact, we have been
advised that a notice of appeal was given soon after trial. We kindly
advise that we are here to file the notice and grounds of appeal.
However,
to enable us to file comprehensive grounds of appeal to the
Commissioner General and review proceedings in the High Court we
require a record of proceedings. To achieve this end we kindly
request your good officers to furnish us with the record of
proceedings timeously so that we deliver the grounds before the
expiration of seven days.
Please
note that this is the right of a member to have a copy of record of
proceedings so that he prepares his appeal and review proceedings
thoroughly and to test the correctness of the procedure adopted.
The
appeal is against both conviction and sentence.”
The
second respondent's reply is in the following terms:
“1….,.
2.
We received your correspondence pertaining your appointment by above
member to represent him in lodging an appeal against both conviction
and sentence to the Commissioner General of Police.
3.
Be advised that the record of proceedings will not be released to you
are this is an internal disciplinary matter.
4.
The
appellant will assist you with his notes of the trial as he was in
attendance throughout the proceedings…,.”…,.
The
letter is dated 2 April 2012 and signed by the second respondent.
Upon receipt of the letter, the applicant's legal practitioners
took the matter to the first respondent by letter dated 15th
May 2012. The letter states:
“Please
find enclosed herein notice and grounds of appeal in the matter that
were filed and issued by the Chiredzi District Clerk on 29 March 2012
who promised to transmit same to the Headquarters. Further,
take notice that we requested a record of proceedings from the
District Clerk and the trial officer, Superintendent Nyamaropa, who
refused with it on wrong legal conception as his letter to us
depicts.
We
would like to advise that we do not want to proceed in the manner we
did in the Sgt Largest Tsumba against Dispol Mbare District.”…,.
The
first respondent did not reply but proceeded to dismiss the appeal on
a technicality on 28 August 2012.
Aggrieved,
the applicant filed this application on the 5th
of October 2012 on a litany of grounds, the bulk of which are
irrelevant and inappropriate in an application for review. His legal
practitioner properly conceded that the only valid ground is the
denial of access to the record of proceedings by the second
respondent. He amended the prayer to align it to the sole ground for
review.
The
issue in
casu
is whether or not the audi
alterum partem
principle was adhered to. Put differently, did the second
respondent's refusal to supply the applicant with the record of
proceedings amount to a violation of the applicant's right to
procedural fairness?
What
is procedurally fair must be determined in the light of the whole of
the circumstances.
The
audi
principle was described by MILNE JA in South
African Roads Board v Johannesburg City Council
SA 1 (A) as being;
“…,
a rule of natural justice which comes into play whenever a statute
empowers a public official or body to do an act or give a decision
prejudicially affecting an individual in his liberty or property or
existing rights, or whenever such an individual has a legitimate
expectation entitling him to a hearing, unless the statute expressly,
or by implication, indicates the contrary.”
It
should be noted that the duty to act fairly, however, is concerned
only with the manner in which decisions are taken; it does not relate
to whether the decision itself is fair or not. What the duty to act
fairly demands of the public official or body concerned was
succinctly stated by LORD MUSTIL in Doodly
v Secretary of State for the Home Department and Other Appeals
[1993] 3 ALL ER 92 (HL) as follows:
“What
does fairness require in the present case? My Lords, I think it is
unnecessary to refer by name or to quote from any of the often cited
authorities which the courts have explained what is essentially an
intuitive judgment. They are far too well known. From this, I derive
the following;
(1)
Where an act of Parliament confers an administrative power, there is
a presumption that it will be exercised in a manner which is fair in
all the circumstances.
(2)
The standards of fairness are not immutable. They may change with the
passage of time both in the general and in their application to
decisions of a particular type.
(3)
The principles of fairness are not to be applied by rote identically
in every situation. What fairness demands is dependent on the context
of the decision and this is to be taken into account in all its
aspects.
(4)
An essential feature of the context is the statute which creates the
discretion as regards both its language and the shape of the legal
and administrative system within which the decision is taken.
(5)
Fairness will very often require that a person who may be adversely
affected by the decision will
have an opportunity to make representations
on his own behalf either before the decision is taken with a view to
producing a favourable result,
or after it is taken, with a view to procuring its modification, or
both.
(6)
Since the person affected usually cannot
make worthwhile representations without knowing what factors may
weigh against his interests, fairness will very often require that he
be informed of the gist of the case which he has to answer.”…,.
In
Rwodzi
v Chegutu Municipality
HH86-03, MAVHANGIRA J…, stated one of the minimum requirements of a
fair hearing as;
“…,
the employee is entitled to be informed of the
reasons for a decision.”…,.
Also,
in terms of section 35(1) of the Police Act [Chapter 11:10], the
proceedings must be as close as possible to those in the Magistrates'
Court. The section states;
“35
(1) The proceedings before or at any trial by a board of officials or
an officer in terms of this Act, shall as near as may be, be the same
as those prescribed for criminal cases in the court of Zimbabwe.”
In
the Magistrates' Courts, accused persons are not denied access to
court records where they will be applying for review or appealing.
Quite
evidently, the denial of access to the record of proceedings by the
second respondent violates section 35(1) of the Police Act. Such
violation amounts to a gross irregularity in the proceedings. In this
regard, I associate myself with SMALBERGER JA's remarks in
Administrator
Transvaal, Ors v Theletsane and Ors
1991 (2) SA 192 (A)…,. The learned judge of appeal stated that;
“What
the audi
rule calls for is a fair hearing. Fairness is often an elusive
concept; to determine its existence within a given act or set of
circumstances is not always an easy task. No specific all
encompassing test can be laid down for determining whether a hearing
is fair - everything will depend upon the circumstances of the
particular case. There are, however, at least two fundamental
requirements that need to be satisfied before a hearing can be said
to be fair; there must be notice of the contemplated action and
a proper opportunity to be heard.”…,.
In
casu,
it cannot be said that the first and second respondents allowed the
applicant the right to be heard fairly.
The
first respondent was notified of the irregularity prior to the
determination of the appeal but did not rectify the anomaly. As
regards the second respondent, he specifically declined to give the
applicant the record of proceedings. This is common cause.
It
goes without saying that the first respondent, as the Commander of
the Police Service, is duty bound to ensure that rights of all
members are protected. Whenever it appears that these rights are
infringed, he should take corrective measures to rectify the anomaly.
The first respondent was supposed to direct the second respondent to
serve the applicant with a copy of the record of proceedings.
Instead, he dismissed the appeal despite that he was aware the
applicant had not had sight of the record of proceedings.
In
my view, the second respondent, by denying the applicant the record
of proceedings, and the first respondent, by omitting to direct that
the applicant be served with the record of proceedings, suffocated
the applicant's right to be heard. The applicant was not afforded
adequate facilities by the second respondent. Consequently, it cannot
be denied that the applicant was fighting against the State which had
access to the record which he did not have. It follows, therefore,
that the State was more equipped than the applicant….,.
For
these reasons, I make the following order;
(1)
The decision of the first respondent be and is hereby set aside.
(2)
The respondents be and are hereby ordered to serve applicant with the
record of proceedings within 14 days of the granting of this order.
(3)
The applicant be and is hereby ordered to file a notice of appeal and
grounds thereof within 14 days of receipt of the record of
proceedings.
(4)
The convening of a Board of Inquiry be and is hereby stayed until the
determination of the appeal by the first respondent.
