(a)
Introduction
This
was an urgent chamber application. The relief sought was poorly laid
out in the draft order. But its essence was basically an interim
interdict to bar the police board of enquiry [hereafter referred to
as “the suitability enquiry board” or, in short, “the SEB”]
from investigating the suitability or fitness of the applicant, a
police constable, to remain a member of the force, or to retain his
rank or salary.
The
interdict was sought pending the determination of a certain review
application that was filed in this court under case no HC392/17….,.
In
the course of the hearing, and following several queries by myself,
counsel for the applicant felt he needed to supplement the
application by submitting certain other documents that he said had a
material bearing on the merits. Counsel for the respondents had no
objection.
This
now is my judgment, after the submission of those further documents
by counsel for the applicant.
(b)
The Facts
The
founding affidavit was frugal on detail. It had several gaps in the
narrative. So having gleaned the several documents filed with this
court, including the review application aforesaid, and following
submissions at the hearing, I can say the factual matrix, in summary,
was this;
The
applicant had been nine [9] years in the police force when, in June
2017, he was charged and convicted by an internal disciplinary
tribunal for contravening paragraph
35 of the Schedule to the Police Act [Chapter 11:10] as read with
section 29 of the Police Act [Chapter 11:10].
Section
29 of the Police Act says a
member who contravenes any provision of the Act, or an order made
thereunder, or who commits an offence specified in the Schedule,
shall be guilty of an offence and liable to a fine not exceeding
level ten, or to imprisonment for a period not exceeding five years,
or to both such fine and such imprisonment. The offence specified in
paragraph 35 of the Schedule is acting in an unbecoming or disorderly
manner, or in any manner prejudicial to good order or discipline, or
reasonably likely to bring discredit to the police force.
The
substance of the charge against the applicant, before the
disciplinary tribunal, was that he had been manning a road block or
check point with other colleagues when he wrestled with a member of
the police anti-corruption unit who had swooped on them to conduct a
search. In the process, the applicant had dropped some bond notes,
Zimbabwe's current surrogate currency.
Upon
conviction, the applicant was sentenced to fourteen [14] days
imprisonment at the police detention barracks and to a fine of ten
dollars [$10=].
He appealed. On 11 August 2017 the appeal was dismissed.
On
1 November 2017, the police convened the Suitability
Enquiry Board (SEB).
It was chaired by the first respondent herein, assisted by two other
members. The SEB had until 1 December 2017 to submit its findings -
but the proceedings never got off the ground. On five occasions the
hearing was aborted. The developments were as follows:
(i)The
hearing was scheduled to be held on 17 November 2017. The applicant
pitched up but said he wanted to be represented by a lawyer. However,
he said his legal practitioner, Mr Mugiya, was engaged elsewhere. Mr
Mugiya would only be available on 1 December 2017. The SEB, citing
its deadline to submit its findings, resisted a postponement.
However, following the applicant's persistence, it reluctantly
postponed the proceedings to 22 November 2017.
(ii)
On 22 November 2017, the applicant insisted he wanted to be
represented by his legal practitioner of choice and said he could not
just switch to any other lawyer as had been suggested by the
Suitability
Enquiry Board (SEB).
He stressed that Mr Mugiya could only be available on 1 December
2017. The proceedings were postponed to 1 December 2017.
(iii)
On 1 December 2017 the applicant was represented by some other lawyer
but from the same firm with Mr Mugiya. The lawyer raised several
technical objections on the lawfulness of the SEB, particularly the
manner it had been set up. The SEB dismissed the applicant's
challenge and gave its reasons. The applicant asked for another
postponement to 4 December 2017 to allow Mr Mugiya to take over. The
record does not show whether or not it was explained why Mr Mugiya
had not availed himself on that day.
(iv)
On 4 December 2017, the fourth sitting, the applicant was represented
by yet another legal practitioner who was not Mr Mugiya. The
applicant produced a doctor's sick report. He had been awarded
three days sick leave up to 16 December 2017. The matter was
postponed to 18 December 2017. But, on 11 December 2017, the
applicant filed the review application challenging the lawfulness of
the Suitability
Enquiry Board (SEB)
and its decision to dismiss his challenge.
(v)
On 18 December 2017, the fifth sitting, the applicant appeared. He
produced the present urgent chamber application and argued against
the hearing proceeding. The application had been filed on 15 December
2017. The proceedings were postponed to 9 January 2018. However, it
seems they have since been left in abeyance altogether.
The
applicant's arguments on the unlawfulness of the Suitability
Enquiry Board (SEB),
in my own words, are these:
(i)
The second respondent, i.e. the Commissioner-General of Police
[hereafter referred to as “the
CGP”],
is the only person empowered to convene the Suitability
Enquiry Board (SEB).
In the present case, it has been convened by an unknown person. As
such, its deliberations, and all the resultant decisions by it, will
be a complete nullity.
(ii)
The order convening the SEB [which is some kind of charge sheet,
indictment or summons] does not have the applicant's full record of
service. Some four annual performance appraisals on himself [“APRs”]
have been excluded. This robs the SEB of such vital information about
his whole career as to disable it from making an informed decision.
(iii)
In terms of some police internal circular, the Suitability
Enquiry Board (SEB)
is only convened after three [3] convictions. But, in his case, the
SEB is being convened after only one conviction.
(iv)
The offences specified on the convening order, and which form the
reason for the enquiry on his suitability to remain in service, are
different from the offences which he was convicted of by the
disciplinary tribunal.
The
Suitability
Enquiry Board (SEB)
dismissed the applicant's preliminary challenge on the following
grounds:
(i)
In respect of the argument that the power to convene the Suitability
Enquiry Board is
reposed exclusively in the Commissioner-General of Police (CGP), the
Police Act authorises the Commissioner-General of Police to delegate
his powers.
(ii)
In respect of the missing annual performance appraisals (APRs), the
applicant refused to sign one of them. Nothing turns on the other
three. In any case, the applicant is free to bring them up himself if
he considers that there is anything in them that may be useful to his
case.
(iii)
In respect of the Suitability
Enquiry Board being
convened after only one conviction instead of three, this is not
mandatory where the offence in question involves an element of
dishonesty.
(iv)
In respect of the offences before it being different from those
preferred at the disciplinary tribunal, the Suitability
Enquiry Board (SEB)
is not responsible for crafting the charges. Furthermore, its
deliberations have nothing to do with the charges that might have
been preferred, or the facts that might have been proved at a
disciplinary tribunal. The Suitability
Enquiry Board only
looks into the suitability of a member remaining in service since the
date of his or her attestation.
(c)
Urgency
My
initial refusal to set down the matter on the basis that it was not
urgent was informed by a number of factors. Nowhere does the
applicant explicitly spell out in his founding papers the impending
harm to himself or his interests; a harm that is perilous or
irreplaceable should he not be allowed to jump the queue; and a harm
that is not the obvious and natural consequence of soured relations
between an employer and an employee.
Furthermore,
all that the applicant says in his founding affidavit is that he
raised preliminary points at the commencement of the proceedings
before the Suitability
Enquiry Board (SEB),
including the alleged unlawfulness of the convening order, and that,
therefore, the proceedings would be a nullity. There were no further
details. I had to call for the record for the review application. It
was no better. It is only after listening to Mr Mugiya's persistent
argument that I have been able to piece together the coherent
narrative above….,.
(d)
On the merits – whether the Suitability
Enquiry Board
and
its deliberations are null and void
All
the papers before me acknowledge that the Suitability
Enquiry Board (SEB)
is set up in terms of section 50 of the Police Act [Chapter 11:10].
Both counsel
also do. This section reads:
“50
Board of inquiry: procedure where member unsuitable or unfit to
remain in Regular Force or to retain his rank, seniority or salary
(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:
Provided
that…, [Not relevant]…,.
(2)…,.
[Not relevant]…,.
(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 -
(i)
Discharge the Regular Force member; or
(ii)
Impose any one or more of the following penalties -
A.
Reduction in rank or salary;
B.
Loss of seniority;
C.
Withholding of an increment of salary;
(iii)
Reprimand the Regular Force member.
(4)…,.
[Not relevant]….,.”
Section
51 of
the Police Act [Chapter 11:10]
provides for the right of appeal by any member who may be aggrieved
by an order made in terms of, inter alia, section 50.
This
application was deficient, not only in regards to the question of
urgency, but also in regards to the cause of action. The applicant's
point that only the Commissioner
General of Police (CGP)
is empowered to convene a Suitability
Enquiry Board (SEB)
and that in the present case it was convened by an unknown person was
spurious. The convening order [gleaned by myself from the record for
the application for review, as nothing was placed before me] was
signed by the Deputy Commissioner-General of Police [Human
Resources]. Section 10 of the Police Act [Chapter 11:10] allows the
Commissioner
General of Police (CGP)
to delegate his powers. It reads:
“10
Delegation of Commissioner-General's functions
Subject
to this Act, the Commissioner-General may, from time to time,
delegate to any officer of or above the rank of superintendent any
right, function, power or duty conferred upon him by this Act or any
other enactment, other than the power of further delegating the
right, function, power or duty so delegated.”
Counsel
for the applicant, following several exchanges with myself,
eventually seemed to realize the futility of the application. He
sought a postponement. He wanted the chance to supplement the
applicant's papers by submitting certain documents that he referred
to as the police uncoded rules or standing orders. He said the
respondents had violated their own internal regulations that govern
the conduct of disciplinary proceedings. He said in terms of those
rules, among other things, no member gets dragged before a
Suitability
Enquiry Board (SEB)
on less than three convictions by the disciplinary committee. He also
said in terms of section 9 of the Police Act, the Commissioner
General of Police (CGP) is empowered to make such rules. Section 9 of
the Police Act [Chapter 11:10] says:
“9
Standing orders
Subject
to this Act, and in consultation with the Minister, the
Commissioner-General may make Standing Orders with respect to the
discipline, regulation and orderly conduct of the affairs of the
Police Force.”
Counsel
for the respondents had no view on the application for a
postponement. But since he was not opposed to it; and since counsel
for the applicant said the regulations he was referring to were the
exclusive preserve of the Commissioner General of Police (CGP), and
that the respondents could not properly deny their existence; and
since I wanted to get to the bottom of the matter, I postponed, not
the hearing of the application, but the passing of judgment. My
directive was that counsel for the applicant was free to submit
whatever documents he was referring to and that counsel for the
respondents could comment on them, for as long as these reached me
before 23 January 2018. From this date I would start preparing my
judgment without going into another hearing, and with or without the
further documents.
Three
documents were filed of record subsequent to the sitting. I have
presumed them to be the documents counsel for the applicant had
referred to.
The
one document is inscribed “Uncoded Rules” at the bottom. It has a
portion dealing with boards of inquiry on suitability or fitness of a
member. Other than provisions dealing with the need to give notice of
the enquiry to the member, this document says nothing, materially,
outside the Police Act.
The
second document is Circular No 3/12 dated 24 April 2012 from Police
General Headquarters to all stations. The subject of that circular is
the management of progressive discipline. It largely deals with
disciplinary procedures against errant members. It is following such
disciplinary procedures that a member may be issued with the various
types of warnings; or that a disciplinary trial for him may be set
up; or that the member may be discharged from service. It is this
document, under the subject “Final Memorandum of Warning”, that
says that a final memorandum of warning is usually issued when a
member sustains three convictions under the Police Act, or the
Criminal Code, or in terms of section 48(c), 50(3)(iii) or 50(4)(ii)
of the Act. On boards of enquiry on suitability or fitness of a
member, the circular simply lists them as one of the procedures
following which a member may be discharged from service.
The
last document was some extract inscribed “All Senior Officers'
Circular 2001” “Disciplinary Trials and Boards of Inquiry”. It
merely re-states the provisions of section 50 on the purpose and
manner of setting up a Board of Inquiry.
Additional provisions on this circular are on the need for some
period of notice to the member; his rights to legal representation;
and his entitlement to postponements of proceedings in appropriate
circumstances.
None
of the documents above has any relevance.
Counsel
for the applicant's submissions were misleading. Circular No.3/12,
for example, does not say that a Suitability
Enquiry Board (SEB)
can only be set up after three convictions. It says a final
memorandum of warning is issued when a member sustains three
convictions. None of the rest of the documents says any of the things
counsel for the applicant said at the hearing.
The
urgent chamber application is bogus. It is no more than an extension
of the intolerable pranks the applicant played on the Suitability
Enquiry Board (SEB)
to thwart it from proceeding with its enquiry. The relief sought
being an interdict, no effort has been made to satisfy any of the
requirements of an interdict. These are:
(i)
A prima facie right, even if it be open to some doubt;
(ii)
A well-grounded apprehension of an irreparable harm if the relief is
not granted;
(iii)
That the balance of convenience favours the granting of the interim
interdict;
(iv)
That there is no other satisfactory remedy;
(v)
That there are reasonable prospects of success in the merits of the
main case.
See
Setlogelo v Setlogelo
1914
AD 221
and
Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent &
Anor
2000
[1] ZLR 234 [H].
In
terms of section 50, the police, through the Commissioner General of
Police (CGP), has every right to set up a Suitability
Enquiry Board (SEB)
to enquire into the suitability of a member to
remain in service, or to retain his rank, or seniority, or salary.
Although I have gathered from the record for the application for
review that in the applicant's case, the enquiry before the SEB is
predicated on his conviction before the disciplinary tribunal in June
2014, section 50 of the Police Act does not make such a prior
conviction a condition precedent. It seems such an enquiry can be
triggered by anything.
The
Suitability
Enquiry Board (SEB)
is, or should be, merely an investigative process. It is the
Commissioner-General
of Police (CGP)
that is reposed with the power to decide on whether a member should
be discharged, or should lose his rank or salary.
It
is my considered view that the urgent chamber application, and the
arguments presented, have been intended not only to anticipate the
recommendations the Suitability
Enquiry Board (SEB)
may eventually make, but also to second guess what those
recommendations are going to be. Counsel for the applicant said it is
a forgone conclusion that the Suitability
Inquiry
Board is
going to recommend that the applicant be discharged from employment
and that the Commissioner
General of Police will
simply rubber stamp that recommendation.
But,
the Suitability
Enquiry Board (SEB)
is a lawful process expressly provided for by the Legislature. There
is even an appeal process after it.
No
prima facie right has been established to stop it. Beyond the
ordinary inconvenience of having to answer questions before it, the
applicant has shown no well-grounded apprehension of harm that is
irreparable should he appear before the
Suitability
Inquiry
Board.
There is an alternative remedy should he be aggrieved by decisions
taken following the Suitability
Enquiry Board (SEB)
- he can appeal. When his rights as a member of the police force are
counter-balanced against the broader administration of justice, it is
more convenient that he goes through the Suitability
Enquiry Board proceedings
than rush to this court with fanciful arguments.
Superior
courts frown upon invitations to interfere with uncompleted
proceedings of the inferior courts or special tribunals. They do so
only in exceptional circumstances: see Attorney-General v Makamba
2005
[2] ZLR 54 [S];
Matapo & Ors v Bhila NO & Anor
2010
[1] ZLR 321 [H]
and S v John
2013
[2] ZLR 154 [H].
Furthermore,
it is discouraged for litigants to come to this court before they
have exhausted such domestic procedures or remedies as may be
available to them in any given situation. They are expected to obtain
relief through the available domestic channels, unless there are good
reasons for not doing so: see Tutani v Minister of Labour & Ors
1987 [2] ZLR 88 [H]; Moyo v Gwindingwi NO & Anor
2011
[2] ZLR 368 [H];
and Makarudze & Anor v Bungu & Ors
2015
[1] ZLR 15 [H].
Whilst
by section 69 of the Constitution, it is everyone's right to access
the courts for the resolution of disputes, this right does not
detract from the obligation of persons subject to special tribunals,
like the applicant is, to appear before them, in appropriate
situations. The High Court should not be embroiled prematurely in the
internal or domestic procedures of the police force, or of any other
body for that matter. Only deserving cases should be entertained.
The
present application is not one of them.
A
matter stands or falls on its founding papers. As demonstrated above,
the applicant's application is deficient in many respects. It has
no merit. It is hereby dismissed with costs.
