This
is a clear case of forum shopping where the applicant has engaged in
the triple jump routine of hop, step and jump from the court of a
single officer, to the appeal court of the Commissioner General of
Police and then to this court where he has arrived panting and
breathless seeking a review of the decision of the single officer in
disciplinary proceedings instituted against him.
The
applicant, a police sergeant stationed at Zimbabwe Republic Police
Gwanda was charged with contravening paragraph 34 of the Schedule as
read with sections 29 and 34 of the Police Act [Chapter 11:10], that
is, omitting or neglecting to perform any duty or performing any duty
in an improper manner. He initially appeared at Gwanda District
Headquarters and pleaded to the charge on 19 August 2016 but the
trial dragged on and on for one reason or the other until 3 January
2017 when he was convicted and sentenced to seven days detention at
Fairbridge Detention Barracks.
The
applicant was aggrieved.
On
9 January 2017 he noted an appeal in terms of section 34(7) of the
Police Act to the Commissioner General of Police against both
conviction and sentence. On 10 January 2017, the trial officer, who
is the first respondent herein, responded to the appeal which
response was served on the applicant on 11 January 2017. The appeal
in question is yet to be determined by the Commissioner General.
Upon
receipt of the first respondent's response, and in a sudden turn of
events, the applicant filed this review application in this court on
11 January 2017 on the following grounds:
“GROUNDS
FOR REVIEW
1.
The 1st
respondent grossly misdirected himself when he convicted the
appellant through retrospective application of the law.
2.
The 1st
respondent erred when he failed to treat the court as a record
(whatever that means).
3.
The 1st
respondent erred when he convicted the applicant on a wrong charge
altogether.”
In
support of the review application, the applicant stated, in his
founding affidavit, that the first respondent had conducted the trial
proceedings in a manner that was contrary to what was expected of a
court of record. This is because the record of proceedings is not a
reflection of what transpired in court in that the objections made by
his defence counsel were not recorded. In addition, the first
respondent did not afford him an opportunity to question witnesses on
issues arising from questions posed by the court.
The
applicant stated, further, that because the trial officer merely
rubber-stamped what was said by the State on an exception to the
charge he had made long after pleading not guilty to it, the trial
officer ended up convicting him on a wrong charge altogether.
Further, because he only became aware of circular 1/2012 and circular
1/2009 on the day of the trial, he could not be charged on the basis
of those circulars as they had not been brought to his attention
before the alleged offence. There was retrospective application of
the law.
It
is significant that the applicant filed this application without
completing the appeal process which he had commenced and without
bothering to withdraw the appeal either. The respondents immediately
took that point in
limine,
namely, that the application for review was incompetent by reason
that the applicant made it without exhausting domestic remedies
available to him in terms of the Police Act, a process which he
commenced and left hanging in preference to this application.
The
respondents also took the preliminary point that there are no valid
grounds of review as the applicant cannot seek review on what are, in
essence, appeal grounds.
In
his answering affidavit, the applicant contemptuously dismissed the
points in
limine
stating:
“AD
IN LIMINE
The
points in limine raised by the 1st
respondent are baseless and meant to test the court's intelligence.
I am advised, which advice I accept, that this Honourable Court
enjoys inherent powers to review proceedings and decisions of the
lower courts. Further, in terms of the Constitution, section
70(5)(a), I have a right to have my case reviewed by a High court.”
So
many words were used in that response which leave one none the wiser
after reading it.
The
issue is simple, after lodging an appeal to the Commissioner General,
which is a remedy available to the applicant aggrieved by the
decision of a single officer, did the applicant exhaust that remedy?
It
does not assist the applicant to use diversionary tactics and say a
lot of things without addressing a simple and pointed issue. There is
therefore no doubt that the applicant has not denied that the remedy
of an appeal was commenced but not completed. That which is not
denied in pleadings is taken to have been admitted.
The
applicant spurned the opportunity to explain why he did not exhaust
internal remedies when it was presented to him electing to grand
stand about the issue. Having left the appeal hanging and making an
early approach to this court, on review, he was obliged to give good
and sufficient reasons for doing so. This is because, this court will
always refrain from exercising its general review jurisdiction where
a party has not exhausted domestic remedies.
That
is the point made by NDOU J in Sithole
v Senior Assistant Commissioner and Others
HB17-10 where the learned judge stated:
“If
I am wrong in the above finding, still, the application had to be
dismissed for failure to exhaust internal remedies. Even if it is
true that the applicant failed to get audience with the 1st
and 2nd
respondents, applicant is at liberty to approach the Police Service
Commission for relief - section 16 of the Police Trials and Boards of
Inquiry Regulations, 1965. Thus, applicant's failure, without good
and sufficient cause, to exhaust domestic remedies available to him
is fatal to his application; Tutani
v Minister of Labour and Others
1987 (2) ZLR 88 (H) and Communications
Allied Svc(s) Workers Union of Zimbabwe v Tel-One (Pvt) Ltd 2005
(2) ZLR 280 (H) at 287.”
The
above pronouncement cannot be faulted at all. Domestic remedies in
respect of this matter are those provided for in the Police Act
[Chapter 11:10] to a member aggrieved by the decision of a single
officer. In terms of section 34;
“(1)
A member, other than an officer, who is charged with a contravention
of this Act or any order made there under 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 (a) of subsection (2) of section twenty-nine;
(2)…,.;
(3)…,.;
(4)…,.;
(5)…,.;
(6)…,.;
(7)
A member convicted and sentenced under this section may appeal to the
Commissioner General within such time and in such manner as may be
prescribed against the conviction and sentence, and, where an appeal
is noted, the sentence shall not be executed until the decision of
the Commissioner General has been given.”
As
a sergeant, the applicant is not an officer as defined in section 2
of the Police Act. He therefore falls squarely under the provisions
of section 34 of the Police Act which I have reproduced above. He has
a remedy in terms of the Police Act to appeal to the Commissioner
General. As I have said, he took that route, and, before the appeal
was determined, he set about forum shopping which he cannot do.
It
was stated in Tutani
v Minister of Labour and Others
1987 (2) ZLR 88 (H)…, that where domestic remedies are capable of
providing effective redress in respect of the complaint, and,
secondly, where the unlawfulness alleged has not been undermined by
the domestic remedies themselves, a litigant should exhaust the
domestic remedies before approaching the courts unless there are good
reasons for not doing so. That judgment was cited with approval by
the Supreme Court in Girjac
Services (Pvt) Ltd v Mudzingwa
1999 (1) ZLR 243 (S)…,.
Let
me, therefore, repeat what I stated in Moyo
v Gwindingwi NO & Another
2011 (2) ZLR 368 (H)…, ;
“In
a line of cases, this court has determined that it will be very slow
to exercise its general review jurisdiction in a situation where a
litigant has not exhausted the domestic remedies available to him. A
litigant is expected to exhaust available domestic remedies before
approaching the courts unless good reasons are shown for making an
early approach.”
See
also Makarudze
and Another v Bungu & Others
2015 (1) ZLR 15 (H)…,.
While
it is true that this court has review jurisdiction even in respect of
un-terminated proceedings of an inferior tribunal, it retains a
discretion to decide whether to exercise that jurisdiction or not.
This court will certainly not jump to exercise its jurisdiction where
clearly the applicant has other remedies available to him which he
has spurned in favour of making an early approach to this court. See
Chiwundo
v Zimbabwe National Family Planning Council
HH212-13.
I
am therefore satisfied that there is merit in the point in
limine
taken by counsel for the respondents. I do not agree with counsel for
the applicant that domestic remedies did not provide an effective
remedy in the circumstances or that the applicant was entitled to
pursue both the appeal and the review at the same time because had he
waited for the determination of the appeal he would have been out of
time to bring the review application.
As
I have said, an appeal is a remedy provided for in the Police Act.
The applicant did not provide any explanation in both affidavits that
he filed which could have shown good and sufficient cause for making
an early approach. He could not attempt to do so in heads of argument
filed by counsel. In any event, even the explanation in the heads of
argument does not even begin to constitute good and sufficient cause
required by case law.
This
court has repeatedly stated that the eight weeks period during which
a litigant is entitled to bring the proceedings under review only
begins to run from the time the final decision in terms of the
domestic remedies has been made. See Makarudze
and Another v Bungu & Others
2015 (1) ZLR 15 (H). It was therefore within the rights of the
applicant to exhaust the domestic remedies and then bring the review
application after that. No good and sufficient cause for not doing so
has been given.
In
any event, I am not satisfied that there are valid grounds for review
in this matter because what the applicant has set out as review
grounds, vague as it is, are not proper grounds set out in section 27
of the High Court Act [Chapter 7:06] and indeed the common law. If
anything, the applicant may be able to use them as grounds of appeal
not review.
In
the result, the application is hereby dismissed with costs.
