Urgent Chamber Application
CHAREWA J: This matter was
set down on 22 June 2017 as an urgent chamber application. The
applicant sought stay of his detention pursuant to disciplinary
proceedings in accordance with the Police Act [Chapter 11:10],
pending finalisation of his application for review, by the High
Court, of the proceedings before a single trial officer.
The judge declined to hear the
matter citing conflicting High Court judgments on matters arising out
of police disciplinary proceedings. He thus directed the parties to
agree on a statement of agreed facts and contentious points of law
for a two judge panel to render an authoritative decision regarding
this Court's powers over police disciplinary processes.
Facts
The applicant was found guilty,
by a single trial officer, of accepting or considering accepting a
bribe in connection with his position or duties as a member contrary
to paragraph 27 of the Schedule to the Police Act [Chapter 11:10]. He
was sentenced to 5 days detention in the detention barracks. He
appealed to the Commissioner General of Police in terms of section
34(1) of the Police Act. His appeal was dismissed and he was notified
to start serving his detention. He therefore filed an application for
the High Court to review and set aside the decision of the Single
Trial Officer.
The respondents opposed the
application.
Pending such review, the
applicant filed this urgent chamber application to stay his
detention.
Background
The High Court has been inundated
with applications seeking to review, or appeal against, the decisions
of single trial officers or the Commissioner General of Police (the
Commissioner General) after he has exercised his appellate power over
decisions of single trial officers in terms of the Police Act. These
applications have often been accompanied with applications seeking to
stay necessary administrative procedures, either in pursuance of
police disciplinary processes or the ordinary management function of
the Commissioner General of Police, pending such review and/or
appeal.
Issues for determination
In view of conflicting
jurisprudence emanating from the High Court with regards to numerous
matters of the same ilk, in circumstances where the Supreme Court has
not yet had occasion to pronounce itself on these issues, the parties
referred the following issues for determination by a two judge panel:
1. Whether or not there is a
review that lies to the High Court against the decision of the single
officer after appeal to the Commissioner General of Police?
Consequential issues flowing from
the main issue, in my view encompass the following:
(i) Whether or not a review lies
against the decision of the Commissioner General of Police?
(ii) Whether or not when the
applicant files a review application against the decision of the
Commissioner General of Police, the determination to detain a member
by the Commissioner General of Police should be stayed pending the
outcome of the review process?
(iii) Whether or not a Board of
Suitability should be stayed pending review of the decision of the
Commissioner General of Police?
2. Whether or not there is right
of appeal to the High Court against the decisions of the single
officer in Police disciplinary matters?
3. Whether or not an appeal lies
against the decision of the Commissioner General of Police?
4. Whether or not when the
applicant files an appeal against the decision of the Commissioner
General of Police, the determination to detain a member by the
Commissioner General of Police should be stayed pending the outcome
of the appeal?
5. Whether the determination to
detain a member by the Commissioner General of Police shall be
automatically stayed pending the outcome of appeal proceedings?
6. Whether or not a Board of
Suitability should be stayed pending appeal against the decision of
the Commissioner General of Police?
7. Whether or not dual
prosecution is allowed in terms of the Police Act on the same
allegations in view of section 278 of the Criminal Law (Codification
and Reform) Act and section 70(1) (m) of the Constitution?
8. Whether or not a member who
has a pending criminal case is entitled to full terminal benefits
before the finalisation of the criminal case?
The court notes that some of
these issues do not flow from the facts, and, ordinarily, would not
have been subject of this judgment. However, for the reason that Mr
Mugiya and the Attorney General's office are the legal counsel
primarily responsible for bringing before the High Court and arguing
on matters emanating from police disciplinary proceedings; and have
requested the court's decision on all these issues, for the
avoidance of further jurisprudential conflict, this judgment will
thus address all the issues which I have listed above and which the
parties have argued before this court.
Further, I believe that it is
only proper to deal with all the issues that have been argued before
the court in order to close the door on the opportunity to forum shop
which has been created by the divergent decisions handed down thus
far.
The parties' omnibus
submissions:
(a) Applicant's submissions
The applicant submits that in
terms of section 70(5)(a) and (b) and section 171(1)(b) of the
Constitution, the High Court has jurisdiction to entertain appeals
from and carry out reviews of decisions of subordinate courts.
Resultantly, any person is entitled to approach the High Court on
appeal from a lower court.
As regards reviews, the High
Court has inherent jurisdiction to entertain any application for
review in terms of section 27(1) of the High Court Act [Cap.7:06].
Further, applicant submits, it can be inferred that the Police Act
[Chapter 11:10], being silent on these issues, does not bar a member
from so appealing from or seeking a review of the decision of the
Commissioner General. Thus, any member is entitled to approach the
High Court on appeal or to seek a review of the decision of the
single trial officer or the Commissioner General.1
In addition, applicant submits that it is trite that any appeal or
review automatically stays the decision being appealed against2
or upon which review is sought3
as “generally, all litigants are expected to await the finalisation
of a matter before the court.”
Further, applicant submits that,
given that the Constitution, in section 193, clothes disciplinary
tribunals with the same criminal jurisdiction as the Constitutional
Court, the Supreme Court, the High Court and the Magistrates Court,
it could not have been the intention of the legislature to subject
members of the disciplined forces to dual prosecution on the same
standard of proof beyond a reasonable doubt. This is particularly so,
applicant argues, because conviction allows for imprisonment for a
term with no limitation. As a result, the Commissioner General
crafted Standing Orders, section 45.3 of which limits the
jurisdiction conferred in section 34 of the Police Act, to try only
those members who would not have been charged with a criminal
offence, as members charged with criminal offences must be dealt with
in accordance with the Criminal Procedure and Evidence Act, [Chapter
59].
These Standing Orders, applicant
avers, define criminal offences as any offence in terms of common law
or any enactment other than the Police Act. Where an offence under
the Police Act might also be an offence under the common law,
therefore, the docket will be sent to the Attorney General to decide
the forum for trial. Further, applicant submits that section 70(1)(m)
of the Constitution does not allow for a person to be tried for an
offence for which they have been pardoned, acquitted or convicted on
the merits. In that respect, applicant submits, section 278 of the
Criminal Law (Codification and Reform) Act does not apply to members
of the police force as it conflicts with the Constitution and the
specific provisions of the Police Act.
In any case, applicant avers, the
court has already pronounced that disciplinary processes should be
stayed where a member has been tried in the Magistrates Court.4
Finally, the applicant submits
that administrative processes like Boards of Suitability should be
stayed pending the outcome of any appeal or review, otherwise the
outcome of the appeal or review would be rendered a brutum fulmen,
resulting in irreparable harm should a member be dismissed from
employment as an outcome of those administrative processes.
Proceeding with administrative processes which are based on
allegations and convictions which are under challenge, he avers,
would in fact amount to contempt or disrespect of court process.5
(b) Respondents' submissions
On their part, with regard to the
issue of whether or not a member of the police force suffers double
jeopardy should he face both disciplinary and criminal prosecution,
the respondents submit that the Constitution, in section 193, permits
for the establishment of courts to deal with disciplinary matters and
accords those courts the jurisdiction to deal with criminal matters
in a disciplinary context. Therefore, the Police Standing Orders
which the applicant relies on as limiting the scope of the Police Act
are contrary to the provisions of the Act, and being subsidiary
legislation, are therefore invalid to the extent of such conflict. In
particular, respondents argue that section 34(9) of the Police Act
clearly provides that no member suffers double jeopardy when he faces
disciplinary processes as conviction for contravening the Police Act
shall not be regarded as conviction under any other law. Besides,
respondents further argue, the level of proof on disciplinary matters
differs from criminal matters, and so do the levels of punishment,
even if the same conduct by a member may give rise to both
disciplinary and criminal charges. This is amplified by the
provisions of section 278 of the Criminal Code which provides for a
distinction between acquittals in disciplinary and criminal matters.
Therefore, respondents submit, there is no dual prosecution as
prohibited by section 70(1)(m) of the Constitution.
Further, respondents submit that
while the High Court has original jurisdiction over all civil and
criminal matters, and while each person is entitled to appeal against
the decision of a lower court, the High Court's appellate
jurisdiction is limited to the extent that it is conferred by
statute. And, in this case, the relevant statute, the Police Act,
does not clothe the High Court with appellate power over decisions of
single trial officers. Such appellate power is reserved for the
Commissioner General in terms of section 34(7) of the Police Act.
With regard to reviews, the
respondents submit that the proceedings before the single trial
officer are subject to automatic review by the Commissioner General
in accordance with section 34(3) of the Police Act. However, since
section 26 of the High Court Act gives the court power to review all
and any proceedings and decisions of lower courts, tribunals and
administrative authorities, it is quite proper for a member to seek
review of either the decision of the single trial officer, or the
decision of the Commissioner General (exercising his appellate or
review power over decisions of single trial officers) or both, in
terms of the Court's review powers as long as such review is in
accordance with the High Court Rules.
The only limitation, according to
respondents, is that section 34 of the Police Act obligates members
to exhaust internal remedies before approaching the High Court on
review.
Thus, respondents submit, where a
litigant has appealed to the Commissioner General against the
decision of the single trial officer, the review may be of either the
decision of the single trial officer or the Commissioner General.
As for whether or not
administrative proceedings must be stayed pending finalization of
appeal or review, respondents submit that, that is not necessary as
administrative proceedings are divorced from disciplinary or criminal
proceedings. This is because administrative processes normally relate
to the statutory requirement to inquire as to the suitability of
retention of a person in the force, or retaining a particular rank,
salary or seniority. Moreover, the administration boards merely make
recommendations which do not bind the Commissioner General, and do
not have the effect of automatically discharging a member from the
force. According to respondents, it makes no sense to automatically
suspend the function of administrative boards of suitability pending
review when, in general, the institution of a review process does not
of itself, normally carry the same power. Therefore interdicting the
Commissioner General from administering the force pending review
merely serves to unnecessarily interfere with his management
function.
With regard to appeals,
respondents submit that since no appeal lies to the High Court
against the decision of a single trial officer, suspension of
administrative processes pending a non-existent right to appeal
serves no useful purpose.
Finally, respondents submit that
a member with a pending criminal case is not entitled to full
terminal benefits pending the finalization of the criminal case as
the determination of the criminal matter may affect the benefits
payable.
The Law
The parties agreed that this, and
other similar matters, are rights based cases, predicated on rights
to administrative justice emanating from employment conditions. Thus,
they involve the right to review of disciplinary processes, the right
to appeal against disciplinary decisions, the right to stay of
sentence and general stay of other administrative proceedings pending
determination of review or appeal, as well as the right to freedom
from dual prosecution.
It seems to me clear therefore
that, in addition to the provisions of the Bill of Rights in our
Constitution, given that Zimbabwe is signatory to African and
international human rights instruments, the starting point governing
the disposition of this matter is that basic principles of human
rights law, including principles accepted in international human
rights jurisprudence, are applicable.
(a) Applicable principles in
international human rights law
In that regard, it is an accepted
principle of human rights law that it is not every interference with
a person's rights that must receive a remedy. This is particularly
so where the right is not an absolute right, but is subject to other
competing interests: viz security, public interest6
or as in this case the need for a disciplined force to aspire to
standards not normally expected of ordinary citizens. And in this
respect, the Zimbabwean Constitution provides, in Chapter 4, Part 5
for limitations on the enjoyment of fundamental rights and freedoms
enshrined therein.7
Consequently, a margin8
is accorded to authorities, to, where necessary, interfere with or
place limitations on rights, to enable authorities to effectively
function.
However, the United Nations Human
Rights Committee has ruled that the law limiting or interfering with
an individual's rights must be sufficiently precise to allow
individuals to regulate their conduct.9
The African Commission on Human
and Peoples' Rights has gone further to state that any limitation
placed on rights must be founded on legitimate interests and be
strictly proportionate with and absolutely necessary for the
advantages to be obtained from such limitation. Therefore, the
limitations should never have the consequence of making any right
illusory.10
As a result, international human
rights jurisprudence has distilled the following step-by-step test to
establish whether someone's rights have been infringed and if so
whether he should receive protection or a remedy:
1. Firstly, a court must enquire
whether a right does exist. Does domestic or international law
prescribe such a right? This is normally a matter of fact: viz, is
there a law in existence which prescribes a particular right?
2. If the right does not exist,
the matter ends there. However, if the right does exist the second
step is to enquire whether there was an interference with the right.
This is also a matter of factual evidence, viz: what actions were
committed by an authority, and did they impact on a person's
enjoyment of his existing rights? In other words, was the applicant
prevented from enjoying the right that the law has prescribed for his
benefit?
3. Should there be no
interference with the right, then that will be the end of the matter.
However, if an applicant was prevented from enjoying duly prescribed
rights, then an inquiry must be made whether the interference was
prescribed by law. Any interference with a right which is not
sanctioned by law must of necessity result in a remedy accorded to
the applicant against such interference. In assessing whether the
interference was prescribed by law, regard must be had to the
accessibility of the law sanctioning such interference and its
foreseeability as well as the quality of the law, i.e. whether it is
compatible with Constitutional and/or treaty obligations.11
4. Where the interference was not
prescribed by law, then the applicant is entitled to a remedy. On the
other hand, where the interference was sanctioned by law, the next
step is to enquire whether the interference pursues a legitimate aim.
That the interference is sanctioned by law is not enough
justification unless the objective of the interference is legitimate
or the interference is within legitimate expectations i.e. was there
sufficient basis in the domestic law?12
5. If the objective of the
interference is not legitimate, an applicant must be accorded relief.
However, even where the objective of the interference was legitimate,
it must be necessary in a democratic society for it to pass muster.
The word “necessary” has been interpreted NOT to be synonymous
with “indispensable”, or to be as flexible as “desirable”,
“useful”, or “reasonable”, but to denote whether there is a
pressing social need. The question a court must address is therefore
whether there are relevant and sufficient reasons for the
interference, and, if so, whether the interference was proportional
as between the interests of the individual and his institution or
society at large? 13
Where the interference was in the
general interest, it must not be manifestly without reasonable
foundation. 14
6. Ultimately, the authorities
should be accorded a margin of appreciation to protect other persons'
rights and be able to manage or carry out their executive function.
The European Court of Human Rights has affirmed that the doctrine of
margin of appreciation is a useful and convenient tool to allow
authorities to govern, manage or make executive decisions. However,
its scope is not identical in every case, but varies according to
context depending on the right in issue, its importance for the
individual and the nature of activities concerned. 15
At the end of the day, there must be a fair balance or reasonable
relation of proportionality to avoid an individual excessive burden
which would amount to too wide a margin accorded to the
authorities.16
The sum total of the test is
that, as a general rule, an individual must have peaceful and
unfettered enjoyment of his lawful rights. Any deprivation of such
enjoyment must be both lawful and on good faith otherwise the
individual is entitled to a remedy or compensation.17
In the case of Layla Sahin
(supra), a university in Turkey had banned the wearing of head scarfs
by Moslem women. The European Court of Human Rights, in applying the
test elucidated above, held that there was interference with the
rights of Moslem women, which interference was prescribed by law and
pursued the legitimate aim of promoting secularism in the university
and was thus justified. Further, since the ban did not bar Moslem
women from wearing head scarfs outside the confines of the
university, it was proportionate to the aims pursued and was thus
necessary in a democratic society. Similarly, in the De Palle (supra)
case, where a couple had built a house on a prohibited coastal area,
the court held that there was no 18
The African Court on Human and
Peoples' Rights has weighed in with the suggestion that the right
to an available, effective and sufficient remedy which is not unduly
prolonged goes hand in hand with the right to a reasoned judgment
which is inherent in the right to a fair trial. 19
It goes without saying that, without a fair trial, even the right to
any appeal becomes illusory and ineffectual.
Secondly, that a local remedy is
inconvenient, unattractive or does not produce a favourable result is
not enough to absolve one from pursuing such remedies, nor are doubts
about the effectiveness of local remedies or prospects of financial
costs involved.20
It is incumbent upon a complainant to take or attempt to take
necessary steps to exhaust local remedies. According to the European
Court of Human Rights, even if an applicant has reason to believe
that available local remedies and possible appeals will be
ineffective, he should still seek them to allow local or domestic
courts and/or tribunals and authorities the opportunity to develop
existing procedures and rights by way of interpretation.21
This is particularly important for the maintenance of public order in
a democratic society, and in casu, there is no doubt that
indiscipline in the police force would negatively impact on public
order.
(b) Relevant domestic law
(i) The Constitution
Now, in our case, vide the matter
at hand and similar matters, the principle of human rights law that
it is not every interference with a person's rights that must
receive a remedy, particularly where the right is not an absolute
right, is captured, in Chapter 4, Part 5 of our Constitution, which
places limitations on the enjoyment of fundamental rights and
freedoms enshrined therein.22
And, in further consonance with the international principles
discussed above, especially, that any rights must be provided for by
the law, the Constitution, in section 70, provides a broad brush
stroke of the rights due to persons accused of any offence. In
particular, section 70(1)(m) provides that an accused person has the
right “not to be tried for an offence in respect of an act or
omission for which they have previously been pardoned or either
acquitted or convicted on the merits;”
Further, section 70(5) provides
that;
“(5) 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.”
And, zeroing in on the principle
that any limitations to rights must also be prescribed by law,
section 171(1)(d) of the Constitution provides that the High Court
has such appellate jurisdiction as may be conferred on it by Act of
Parliament. Consequently, deriving from this constitutional
framework, section 33(2) of the Police Act gives the right to appeal
to the High Court only to members convicted of a disciplinary offence
by a board of officers, not by a single trial officer. It is thus
clear that an appeal from a single trial officer only lies to the
Commissioner General of Police, and not to the High Court. It seems
to me therefore that section 70 provides the broad framework which
protects an individual from double jeopardy and upon which the right
to review or appeal is founded.
Section 171, on the other hand,
provides for the extent and limits of the power of the High Court in
dealing with the broad rights created in section 70. With particular
reference to the matter in casu, section 171(1)(b) and (d) gives the
High Court power to “…. to supervise magistrates courts and other
subordinate courts and to review their decisions;” and to sit as an
appellate court as mandated by an Act of Parliament.
Thus, section 171(1)(b) gives
unlimited power to the High Court to review decisions of subordinate
courts, while section 171(1)(d) limits its appellate power to the
extent that an Act of Parliament provides.
Further, in section 193(b), the
Constitution allows disciplinary tribunals to deal with criminal
matters, but only for purposes of enforcement or maintenance of
discipline, as it provides that the following may exercise or be
given criminal jurisdiction:
“… a court or tribunal that
deals with cases under a disciplinary law, to the extent that the
jurisdiction is necessary for the enforcement of discipline (my
emphasis) in the disciplined force concerned.”
The question that requires to be
resolved in interpreting section 193(b) therefore is whether
disciplinary processes, which aim to maintain and enforce discipline
in the Police Force, are interchangeable with the ordinary criminal
proceedings instituted by the State for the purpose of maintenance of
law and order, or are the two parallel processes with different
objectives and which are not meant to meet?
The test that has been developed
in international law has been applied in our jurisdiction to one
extent or other in the various matters that have been decided by the
superior courts and is thus part of our case law.23
Such application is predicated on the provisions of section 3(1)(c)
of the Constitution which provides that fundamental human rights and
freedoms are part of the founding principles and values of the State
of Zimbabwe; and Chapter 4, Part 1-4 which codifies and domesticates,
within the Zimbabwean context, fundamental human rights as enshrined
in international instruments, including the duties and obligations
relating to the enforcement of such rights.
(ii) The High Court Act
With regard to review, the High
Court Act provides in Part V for review of decisions of subordinate
courts and administrative authorities in line with the constitutional
provisions. In that respect, section 26 echoes section 171(1)(b) of
the Constitution, vesting the High Court, as it does, with extensive
power to exercise its review function, while section 27 prescribes
the grounds upon which the High Court may exercise such power.
Sections 28 and 29 circumscribe the powers of the High Court on
review. Sections 30 and 34 rhyme with section 171(d) of the
Constitution in that the High Court will exercise appellate
jurisdiction where an enactment has so provided.
(iii) The Police Act
Now, with respect to members of
the police force, Part V of the Police Act provides in section 29
that any member who “…. contravenes any provision of this 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 Act goes on, in section 29A,
to give jurisdiction to try any contraventions in terms of section 29
to the High Court, Magistrates Court, Board of Officers and a single
trial officer. Further, it prescribes the limits of such
jurisdiction, starting with the single trial officer dealing with
minor infractions which punishment does not exceed 14 days
imprisonment or a level two fine or both, with progressively more
serious infractions being referred to the higher courts.
Section 31 provides for automatic
review by the High Court of decisions of the Board of Officers where
a sentence in excess of a level three fine or one month imprisonment
is meted out, while section 33 grants appellate jurisdiction, to the
High Court, against the decisions of the Board of Officers. A member
arraigned before a Board of Officers has the option to elect to be
tried by a magistrate (section 31), but no such right is granted to a
member appearing before a single trial officer.
Section 34(3) provides for
automatic review by the Commissioner General of all decisions of
single trial officers, with power, in the interests of justice, to
confirm, alter, quash remit for fresh trial or with other
instructions any such decision. Where the Commissioner General is of
the view that the sentence was inadequate, the matter may be referred
to a judge of the High Court to deal with as he deems fit. Further,
any member may appeal to the Commissioner General against the
decision of the single trial officer - section 34(7). However, unless
an appeal is noted, the decision of the single trial officer shall be
executed forthwith - section 34(8).
Finally, the decision of a single
trial officer shall not be regarded as a conviction for purposes of
any other law - section 34(9).24
The import of this is to separate
purely disciplinary proceedings emanating from single trial officers
from criminal matters which consequences culminate in a criminal
record.
Section 39 empowers recovery of
any disciplinary penalties through stoppages of pay, while sections
40 and 41 allow the long arm of the law to reach a member who may
have ceased to be a member not to escape the consequences of his
infractions. Sections 48, 49 and 50 provides for purely
administrative and managerial functions, to permit the Commissioner
General to inquire into the suitability of a member to remain in the
force, retain his rank, salary or seniority, etc. and these processes
may be quite independent of any disciplinary processes. And unlike
disciplinary processes, appeals against these administrative and
management decisions lie to the Police Service Commission (section
51).
In the instant case, the
international principle of exhaustion of local remedies has been
captured in such a localised law as the Police Act, Police
regulations and Standing Orders made thereunder requiring members of
the police to undertake or refrain from undertaking, certain acts on
pain of facing disciplinary or administrative processes peculiar to
the police force.
(iv) The Criminal Law
(Codification and Reform) Act [Chapter 9:23] (the Criminal Code)
In line with section 193 of the
Constitution, section 278 of the Criminal Code provides for the
relationship between criminal and disciplinary proceedings as
follows:
“(1) In this section
'disciplinary proceedings' means any proceedings for misconduct
or breach of discipline against a public officer or member of a
disciplined force or a statutory professional body, or
against any other person for the
discipline of whom provision is made by or under any enactment;
'disciplined force' means -?
(a) ……… ; or
(b) the Police Force; or
(c) ………………….; or
(d) ………….. ……………………….
(2) A conviction or acquittal in
respect of any crime shall not bar …….. disciplinary proceedings
in relation to any conduct constituting the crime at the instance of
any person who has suffered loss or injury in consequence of the
conduct or at the instance of the relevant disciplinary authority, as
the case may be. (3) ………… disciplinary proceedings in
relation to any conduct that constitutes a crime may, without
prejudice to the prosecution of any criminal proceedings in respect
of the same conduct, be instituted at any time before or after the
commencement of such criminal proceedings.”
Legislation therefore has taken
care to ensure the attainment of discipline in the “disciplined
forces” outside the criminal processes.
(v) Interpretation of Statutes
With respect to the effect and
interpretation of subsidiary legislation, the law is trite: anything
contained in subsidiary legislation that is in conflict with or
contradicts the enabling Act shall be void and of no effect.
Consequently, any provision in the Police Standing Orders, including
the current section 45.3 thereof, which is inconsistent with the
Police Act is ultra vires and thus a null and void.
(vi) Consequence of noting an
appeal or applying for review
Finally, the consequences of
noting an appeal or applying for review are also trite. It is an
established and general principle that once an appeal is noted; all
proceedings are automatically stayed pending the determination of the
appeal, unless leave is obtained to proceed with any consequence of
the decision appealed against.
With regard to reviews, the
converse is true: unless an order of stay is granted on good cause
shown, the consequences of a decision are not automatically stayed
pending review.
ANALYSIS
(i) Whether or not there is a
review that lies to the High Court against the decision of the single
officer after appeal to the Commissioner General of Police;
The respondents have suggested
that because the High Court has wide powers of review, even where a
complainant appeals to the Commissioner General, such complainant is
entitled to come back to the High Court to seek review of the
decision of the single trial officer should he be unhappy, with the
decision of the Commissioner General on appeal.
Certainly, I agree that the wide
powers of the High Court, as prescribed by law, seem to allow a
complainant to seek a review of the decision of a single trial
officer at the High Court. However, this right to approach the High
Court directly remains, in my view, subject to the principle of
exhaustion of local remedies. In this case these local remedies
include the Commissioner General's automatic review of all
decisions of single trial officers, and the right to appeal the
decisions of single trial officers to the Commissioner General.
It defies logic, that in creating
the right to approach the High Court, the legislature intended a
party to willy nilly forego elaborately provided local remedies and
approach the High Court in circumstances where there is no challenge
as to the accessibility and availability of those local remedies. It
could not have possibly been the intention of the legislature that a
party should ignore the principle that a local remedy which is
available, effective, sufficient and not unduly prolonged should be
overlooked perhaps because it is unattractive, inconvenient or does
not produce a favourable result, and in the process create an onerous
burden on the High Court.
Further, despite respondents'
concession in that regard, I cannot agree that where a complainant
has opted to appeal to the Commissioner General, against the decision
of the single trial officer, he can bring the matter back again to
seek a review of such a decision where his appeal is unsuccessful.
The absurdity of such a course is best illustrated by the argument
that a person who has appealed to the Magistrate Court against the
decision of a Community Court Presiding Officer can, upon losing the
appeal, subsequently approach the High Court to review the decision
of the Community Court Presiding Officer. Such a procedure is not
provided by law.
In casu, the logical procedure
which is provided by law is to seek a review of the decision of the
Commissioner General which he will have rendered after appeal from
the single trial officer. Such a limitation to the right of review of
decisions of single trial officers is sanctioned by a principle of
law of general application: that there must be an end to litigation.
This principle is in accordance with the Constitution in so far as it
allows for smooth, quick and effective administration of justice,
which is a legitimate aim necessary in a democratic society. It is
certainly not in the interests of the administration of justice to
allow for a back and forth process that has the effect of clogging
the system and creating blockages to effective justice delivery.
In any event, a complainant will
not be without a remedy should he not be able to seek a review of a
single trial officer's proceedings after appealing to the
Commissioner General as a review is still available as against the
decision of the Commissioner General. And in reviewing the decision
of the Commissioner General, of necessity, the High Court judge will
have access to the decision of the single trial officer to decide
whether or not the Commissioner General arrived at a proper decision.
Therefore the right to review, in the circumstances, is legitimately
interfered with in accordance with a principle of law. Such
interference is necessary for the good administration of justice in a
democratic society and is proportional as applicant is not left
without a remedy.
(ii) Whether or not a review
lies against the decision of the Commissioner General of Police?
A consequential issue arising
from applicant's right of review of the decision of a single trial
officer, is his right to a review of the appellate decision of the
Commissioner General.
In casu, the applicant
unsuccessfully appealed to the Commissioner General and then turned
round and sought a review of the decision of the single trial
officer. The respondents having conceded, improperly in my view, that
a review of the single officer's decision was appropriate, it is
necessary to deal with whether the review ought not to have lied
against the decision of the Commissioner General. Applying the law
and the test distilled from rights jurisprudence as discussed above,
it seems to me clear that the right of review against the decision of
the Commissioner General does exist and is prescribed by law. Section
171(1)(b) of the Constitution as read with section 26 of the High
Court Act clothes the High Court with unlimited powers of review. On
the circumstances of this case, the complainant was not prevented
from enjoying this right of review. The difficulty was that in
HC5385/17, the applicant sought to review the decision of the single
trial officer in circumstances where he had appealed such decision to
the Commissioner General of Police and was awaiting the outcome of
the appeal. Certainly, this conduct cannot be acceptable as it
amounts to double dipping. It is trite that a party is not entitled
to reprobate and approbate. He must select the option which best
protects his interests and pursue it. The applicant ought to have
decided whether he wanted to seek a review, by the High Court, of the
decision of the single trial officer or to appeal that decision to
the Commissioner General and pursued the one option to its logical
conclusion.
And since he had opted to appeal,
the appellant ought to have abided with the principle of exhaustion
of local remedies and awaited the decision on appeal before seeking a
review of that decision. It cannot be proper for the High Court to
review the proceedings of a single trial officer after the member has
exercised his right to appeal to the Commissioner General and has not
withdrawn or abandoned such appeal. In the circumstances, the
applicant's right to administrative justice is adequately protected
and it is not necessary in this respect to answer the rest of the
questions in the test.
(iii) Whether or not when the
applicant files either a review application against the decision of
the Commissioner General of Police, the determination to detain a
member by the Commissioner General of Police should be stayed pending
the outcome of the review?
No law exists creating a right to
stay of proceedings pending review. The normal consequence of an
application for review is not to stay any proceedings pending the
determination on review but that a court will only stay proceedings
on good cause shown. Therefore, in the absence of a specific
provision in the Police Act to the contrary, the determination by the
Commissioner General to detain a member shall not be automatically
stayed pending the outcome of any review processes. Consequently,
here too, the applicant fails at the first hurdle.
(iv) Whether or not a Board of
Suitability should be stayed pending review against the decision of
the Commissioner General of Police?
The question whether or not any
proceedings (disciplinary or administrative) ought to be
automatically stayed pending review has already been dealt with under
sub-heading (iii) above: no law provides for any right to stay of
anything pending review. Any party requiring stay will have to apply,
subject to the principle of exhaustion of local remedies, and show
good cause why that should be granted. A judge is at liberty to
decide, on the merits and the circumstances of each case whether,
having regard to the implications for good and effective management,
to interfere with the normal administrative function of an authority.
After all, it is not the function of the court to make an institution
ungovernable by excessive and intrusive incursion into matters under
the purview of administrative authorities. A Board of Suitability is
a management tool designed to assist the Commissioner General to
manage the service in accordance with necessary discipline. It
therefore facilitates the removal of medically unfit, lazy,
incompetent or unqualified members from the force, including those
found to be unsuitable under disciplinary processes. Any person
aggrieved by the outcome of a Board of Suitability is entitled to
appeal to the Police Service Commission in terms of section 51, and
in those circumstances, the outcome of the Board is stayed pending
such appeal. However, to seek to stop the convening of a Board of
Suitability is tantamount to interfering with the local remedies
available to a member consequent upon the management and
administrative function of the Commissioner General.
The courts have always been loath
to substitute themselves for administrative authorities or arrogate
to themselves management functions of authorities mandated with the
power to run institutions, preferring to maintain their role of
judicially supervising the manner in which authorities conduct
themselves.
Specifically, the courts have
refrained from interfering with management processes and have
established clear principles as to when to do so.
25 This is a
position which is not peculiar to this jurisdiction only.26
In my view, the case law thus
supports the proposition that the courts expect administrative
authorities to carry out their normal function, legally, rationally,
properly and justifiably and only interfere where such function has
been carried out in a biased and/or prejudicial manner in
circumstances where the court is in as good a position as the
authority to substitute its decision. Prior to the authority carrying
out its function, the courts will only interfere where there is
likely to be undue delay or the authority will reach a foregone
conclusion. This, in our view, is also in line with the doctrine of
margin of appreciation. Hence courts have generally restricted
themselves to reviewing the manner in which administrative/management
processes have been conducted, rather than stopping the processes
altogether.
I see no reason to depart from
this time honoured and reasonable stance, for if it is the function
of the court to scrutinize the decisions of an administrator,27
it makes no sense for the court to stop such administrator from
making those decisions. I therefore find that, the authorities quoted
by applicant to support the proposition that courts should stop
Boards of Suitability from being conducted in order not to render
orders of the court less effective are misplaced. A Board of
Suitability will not render the subsequent order of the court less
effective, as the proceedings of such a Board remains subject to
scrutiny by the court for its legality, procedural propriety,
justification and rationale.
(v) Whether or not there is
right of appeal to the High Court against the decisions of the single
officer in Police disciplinary matters
The law does not grant
jurisdiction to the High Court to hear appeals from decisions of the
single trial officers. Section 34(7) of the Police Act only provides
for the appellate jurisdiction of the Commissioner General from
decisions of single trial officers. Applicant argues that, because
the right of appeal to the High Court is not specifically prohibited,
in circumstances where section 70(5) of the Constitution provides
that any person who has been convicted of an offence has the right to
appeal to a higher court, this means that police members convicted by
single trial officers are entitled to appeal to the High Court in
terms of section 70(5). For this proposition, he relied on some
decisions of this court which found the Police Act to be inconsistent
with section 70(5) of the Constitution.28
It is my view that applicant's
position is a misinterpretation and misapplication of the law.
Firstly, reliance on Rateiwa v
Kambuzuma29
for his proposition is misplaced. That case is distinguishable
because GOWORA J (as she then was), was speaking to the inherent
jurisdiction of the High Court as a court of first instance, not to
its appellate jurisdiction, which is not inherent.
Secondly, section 70(5) of the
Constitution does not provide for the manner in which to bring an
appeal to the High Court, nor does it provide for the power of the
High Court to deal with any appeal. It only creates a general right
of appeal and provides that the right to appeal provided therein is
subject to any limitations prescribed by law.
Section 171(1)(d) of the
Constitution goes on to explain and prescribe those limits to the
right enshrined in section 70(5) by providing that the appellate
jurisdiction of the High Court must be prescribed by an Act of
Parliament. Thus section 70 and section 171 of the Constitution are
not mutually exclusive, but complement each other. Section 70
provides the broad framework upon which the right to appeal is
founded, while section 171 distils the broad rights in section 70 to
only those instances where an Act of Parliament then ascribes
specific appellate jurisdiction.
Nor is Sadengu (supra) helpful to
applicant's cause as section 70(5) merely creates a right but does
not prescribe how that right is to be accessed. Section 171 does so,
by providing that an Act of Parliament will delineate the appellate
jurisdiction of the High Court. As a consequence, the Legislature, in
enacting the Police Act could have prescribed the appellate
jurisdiction of the High Court for police disciplinary matters
emanating from single trial officers, but deliberately refrained from
doing so. While the High Court Act does prescribe for the appellate
jurisdiction of the court in section 30 and section 34, it goes on to
limit such jurisdiction to the same extent as section 171(1)(d) of
the Constitution: that such appellate jurisdiction will only be
exercised as provided for by an enactment, or by the High Court Act
itself.
Therefore, the provisions with
regard to the appellate jurisdiction of the High Court vis-à-vis
trials from single trial officers must be read in pyramidal fashion,
starting from the wide base: section 70, as limited by section 171 of
the Constitution, and further limited by section 30 and section 34 of
the High Court Act, and finally, section 34(7) of the Police Act.
Applying the test elucidated at
page 9-11 of this judgment therefore, while the right to appeal
exists in general terms as provided for in the Constitution, the
complainant in this case is prevented from enjoying this right. Such
interference is prescribed by law, viz: section 171 of the
Constitution, section 30 and section 34 of the High Court Act and
section 34(7) of the Police Act.
Such interference is compatible
with constitutional and even international treaty obligations since
the right is not absolute but is subject to any limitations
prescribed by law.
In order to test whether the
legal prescription for the interference is appropriate, it then
becomes necessary to inquire whether such interference pursues a
legitimate aim. From the concession made by Mr Mugiya, single officer
trials number in their thousands. He alone deals with at least 1,200
per year. He conceded that, where appeals to be allowed to the High
Court from these single officer trials, the burden of the High Court
would be untenable and interfere with swift and efficient
dispensation of justice. He also conceded that the jurisdiction of
single trial officers is limited to very minor and simple infractions
which call for fast and streamlined procedures the consequence of
which are minor punishments not exceeding level 2 fines or 14 days
imprisonment. Given that these disciplinary convictions and
punishments do not count for purposes of any other law,30
it is obvious therefore that limiting the right of appeal from single
officer trials is both desirable and legitimate and is in the best
interests of effective dispensation of justice.
The sheer numbers of the trials
make it necessary in a democratic society to expeditiously deal with
and finalise these minor matters, leaving the High Court to deal with
weightier cases. In addition, the fact that there is a right of
automatic review by, and appeal to, the Commissioner General, in
circumstances where the member may also opt to seek direct review by
the High Court, means that there is adequate proportionality between
the interests of the member and the wider interests of justice.
Further, in view of the fact that these single trial officer
processes are aimed at promoting efficient and sound administration
of a disciplined police force, it is not unreasonable to allow the
authorities the margin of appreciation to enable the Commissioner
General to manage his police force, more so given that there is no
individual excessive burden militating against the rights of the
members. Consequently, I find that the right to appeal is not
violated as direct appeals from the single trial officer to the High
Court would militate against an end to litigation. Further, the sheer
volume of single officer trials would completely swamp the High Court
were appeals therefrom to be referred to the Court as a matter of
course. A filtering system as is currently in place is therefore
necessarily desirable and legitimate in a democratic society.
(vi) Whether or not an appeal
lies against the decision of the Commissioner General of Police?
The Police Act does not provide
for any right of appeal to the High Court against the decision of the
Commissioner General, either sitting on review or appeal, of
decisions of a single trial officer, or discharging his
administrative function as the executive authority for the police
force. Given the specific provisions of section 171 of the
Constitution and section 30 and section 34 of the High Court Act,
that any appellate jurisdiction must be specifically enacted, I
cannot agree with Mr Mugiya that the absence of a specific bar
against such appellate jurisdiction is tantamount to a right of
appeal.
Rights are not endowed by default
but must be specifically created. Therefore any claim that there was
an interference with the right to appeal fails at the first hurdle:
the right does not exist as there is no law creating any appellate
jurisdiction from decisions of the Commissioner General in
disciplinary matters. Thus, following the logical reasoning on the
preceding sub-heading, the decision of the Commissioner General is
final, and can only be set aside by the High Court on review.
I will not delve into whether the
administrative decisions of the Commissioner General are appealable
in terms of Administrative Law as that is not a question under the
purview of the court in casu.
Suffice it to say that section 51
of the Police Act does provide that appeals from the administrative
decisions of the Commissioner General lie to the Police Service
Commission, not to the High Court.
(vii) Whether or not when the
applicant files an appeal against the decision of the Commissioner
General of Police, the determination to detain a member by the
Commissioner General should be stayed pending the outcome of the
appeal?
Having answered the question
whether or not an appeal lies to the High Court against the decision
of the Commissioner General in the negative, the question whether or
not such appeal stays the determination to detain a member falls by
the wayside.
However, and in any case, section
33(2) is clear that, were an appeal possible, the normal consequences
thereof would be applicable: that is, stay of proceedings pending
appeal.
(vii) Whether the
determination to detain a member by the Commissioner General of
Police shall be automatically stayed pending the outcome of appeal
proceedings?
Section 33(1) of the Police Act
endows the High Court with jurisdiction to entertain appeals against
the decision of a Board of officers. It follows then that the right
of appeal created in section 70 of Constitution is not interfered
with. Such right carries with it the obligation to automatically stay
proceedings once an appeal is noted. In this case, since neither the
Police Act nor any other law limits the right to freedom from
detention pending appeal, any subsequent determination by the
Commissioner General to detain a member in terms of the decision of
the Board of Officers must of necessity be automatically stayed in
accordance with section 33(2) pending the outcome of the appeal.
Where the determination to detain a member is made before the noting
of appeal, such subsequent noting of appeal does not automatically
suspend the determination to detain a member.
As is applicable in general law,
where an accused is already serving his sentence at the time he
appeals, he must apply for bail pending appeal as his sentence of
imprisonment is not automatically suspended pending appeal.
Logically, where a police member is already serving detention at the
time of appeal, an application for stay of detention pending appeal
would have to be made. Such a process is in line with the provisions
of the Police Act which requires that, in the administration of
disciplinary justice, as far as possible, the procedures applicable
in terms of the general criminal justice system applicable in the
courts of Zimbabwe should be followed.31
(ix) Whether or not a Board of
Suitability should be stayed pending appeal against the decision of
the Commissioner General of Police?
My opinion in this regard is no
different to my position with regard to the question whether or not a
Board of Suitability should be stayed pending review. A Board of
Suitability is a management and administrative tool which use is
quite independent of disciplinary proceedings. There is thus no
automatic right to stay administrative functions of an authority
pending appeal. Any application for stay pending appeal will have to
be dealt with on its own merits, the court paying heed to the time
honoured tradition of not substituting itself for an administrative
authority, or unnecessarily interfering with the management function
of such authority.
(x) Whether or not dual
prosecution is allowed in terms of the Police Act on the same
allegations in view of section 278 of the Criminal Law (Codification
and Reform) Act and section 70(1) (m) of the Constitution?
Mr Mugiya argues that, once a
member of the police has appeared in disciplinary proceedings, he
should not be called upon to answer criminal charges in terms of the
Criminal Code. Further, he submits that, if a member has been charged
under the Criminal Code, he should not appear before disciplinary
authorities on the same grounds as that amounts to dual prosecution,
contrary to section 45.3 of the Police Standing Orders which
specifically bar dual prosecution.
In particular, he argues that
this provision, section 45.3, should take precedence over an Act of
Parliament, specifically section 278 of the Criminal Code because
section 278 is a provision of general application which does not
override section 45.3 which is a provision of specific application.
Further and in any case, he submits, for a member of the police to
face both disciplinary and criminal prosecution would be inconsistent
with the Constitution.
I cannot agree with Mr Mugiya.
Firstly, the interpretation of
the section 45.3 of the Police Standing Orders and section 278 of the
Criminal Code hinges on the interpretation of section 193(b) of the
Constitution.
Mr Mugiya's proposition
presupposes that in interpreting section 193(b), disciplinary
processes are interchangeable with ordinary criminal proceedings.
This cannot be correct. The processes have entirely different
objectives and even outcomes. Disciplinary processes aim to maintain
and enforce discipline in the Police Force, while criminal
proceedings aim to maintain law and order. Further, while our
jurisprudence has adopted a more flexible approach in that proof
beyond a reasonable doubt may be required where the gravity of the
disciplinary offence and strong criminal connotations exist32,
nevertheless, disciplinary processes, as a general rule, require
proof on a balance of probabilities33.
Even then, the courts have long recognised the difference between
disciplinary and criminal processes to the extent that a conviction
for a criminal offence is regarded as prima facie proof that a party
had committed a disciplinary offence.34
Certainly, it has not been the
position in our case law or South African jurisprudence, that
conviction on a criminal offence excuses one from disciplinary
liability, or vice versa. Ultimately, disciplinary processes do not
generate criminal records while criminal proceedings do. It is my
view that it is precisely for that reason that section 193(b) of the
Constitution carefully emphasises that any criminal jurisdiction
given to a court or tribunal dealing with cases under disciplinary
law, does so only to the extent necessary for the enforcement of
discipline.
Therefore, the applicant's
seeming suggestion that there is congruence between the disciplinary
and criminal processes, which rules out one if the other is resorted
to otherwise a police officer suffers double jeopardy, is misplaced
and arises out of a misinterpretation of the law.
Secondly, applicant's
proposition that subsidiary legislation overrides an Act of
Parliament is, in my view, also incorrect. Rather, the law is that
any subsidiary legislation which is inconsistent with an enactment is
invalid to the extent of such inconsistency. Therefore, in so far as
the Police Standing Orders are inconsistent with the Police Act, they
are ultra vires and thus invalid.
The principle of provisions of
specific application overriding provisions of general application, in
my view, apply to legislation of the same level and force. Thus a
provision of specific application in subsidiary legislation cannot
override a provision of general application in an Act of Parliament.
For these reasons, the specific provisions of the Police Standing
Orders cannot override the general provisions of section 278 of the
Criminal Code, let alone section 193(b) of the Constitution.
In any event, it seems to me that
Mr Mugiya has misconstrued the tenor and meaning of section 45.3 of
the Police Standing Orders which provide that:
“Any member charged with a
criminal offence (my emphasis) shall not be tried by a Board of
Officers or single officer, but shall be dealt with in accordance
with the provisions of the Criminal Procedure and Evidence Act,
[Chapter 59].”
The operative phrase is “charged
with a criminal offence”.
A member charged with a
disciplinary offence under the Police Act is not charged with a
criminal offence under the Criminal Procedure and Evidence Act. This
interpretation flows from section 193(b) of the Constitution where
disciplinary tribunals are endowed with power to deal with criminal
matters only for purposes of enforcement of discipline, and not for
any other purpose. The constitutional dispensation in section 193 of
the Constitution is then captured in section 278 of the Criminal Law
(Codification) and Reform Act, which distils it further to provide
that disciplinary proceedings for any conduct which amounts to a
crime shall not be a bar to criminal prosecution, and vice versa. The
Police Act captures this same theme by providing that any outcome of
disciplinary processes shall not be construed as a conviction for
criminal purposes.
Therefore, section 39(9) of the
Police Act, section 278 of the Criminal Code and section 193 of the
Constitution rhyme with each other, in creating a distinction and
separation between disciplinary and criminal proceedings and the
consequences thereof.
Thus, section 193 does not clothe
disciplinary tribunals with the same criminal jurisdiction as the
Constitutional Court, the Supreme Court, the High Court and the
Magistrates' Court: disciplinary tribunals do not have power to try
anyone with criminal offences in terms of the Criminal Code.
Ergo, there is no double jeopardy
suffered by a member of the police force. As a member of the
disciplined force, the applicant must be held to the disciplinary
standards required for such a force in disciplinary proceedings, the
outcome of which does not affect his status in terms of the general
criminal law. Where he is to be charged in terms of the general
criminal law, the Police Standing Orders provide that a member will
be dealt with, not in terms of disciplinary law, but in terms of the
Criminal Procedure and Evidence Act. That section 45.4 of the Police
Standing Orders allows for an offence under the Police Act, which
might also constitute an offence under the general law, to be
referred to the Attorney General for a decision whether a member
should be tried by a Magistrate under the Police Act is merely in
line with section 29A, which permits disciplinary matters to be tried
by the High Court, the Magistrates Court, Board of Officers or Single
Officer depending on the gravity of the disciplinary offence in order
to conform with the sentencing jurisdiction accorded to each.
That a disciplinary matter is
referred to be tried in the Magistrates' Court or High Court does
not automatically transform it into a criminal matter in terms of the
general law. Rather, the Magistrates' Court or the High Court will
in effect be sitting as disciplinary tribunals. That is why the law
provides that such trials, particularly those by Magistrates, must be
conducted in a police camp or at a police station.35
Further, that section 35(1) of the Police Act requires trial officers
to follow as near as possible the proceedings prescribed in criminal
matters is, in my view, merely meant to promote good administration
of justice. The effect is to protect anyone appearing under
disciplinary proceedings from any prejudice that may follow improper
conduct of disciplinary trials, rather than to convert disciplinary
proceedings into criminal proceedings.
Double jeopardy assumes that a
member is facing either the same criminal or disciplinary charge
twice, which is certainly not acceptable. Consequently, the law has
carefully delineated the processes, outcomes and purposes of
disciplinary charges as opposed to criminal charges. Therefore it
cannot be a correct interpretation that, section 70(1)(m) of the
Constitution, in prohibiting subsequent prosecution for an offence
for which one was pardoned, acquitted or convicted, bars disciplinary
proceedings where a person has been prosecuted under general law or
vice versa.
This position is bolstered by the
definition in section 45.1 of the Police Standing Orders which
defines a criminal offence as any offence under common law or statute
other than an offence under the Police Act. As a result, I do not
agree with Mr Mugiya that once a member is charged in police
disciplinary matters for an offence which may also constitute a
criminal offence, section 34 of the Police Act shall not apply. This
is because the purpose of disciplinary and criminal proceedings is
not the same: the first is to instil discipline and the second is to
hold one accountable to society for observance of societal norms
which govern the social construct.
My view is consistent with the
specific provisions of section 34 which provides that an automatic
review or appeal from the decision of the single trial officer lies
to the Commissioner General rather than to the Magistrates Court,
High Court or Supreme Court, as distinct from the process in criminal
matters. It was thus never the intention of the legislature to
intertwine disciplinary and criminal processes. It is for these very
reasons that I cannot agree with the decision in Assistant Inspector
Chibike v The Trial Officer36
and other like matters, which adjudged disciplinary proceedings to be
unlawful and barred them on the grounds that the member was facing
criminal charges in the Magistrates' Court. Rather, it is my view
that a member of the police, as a citizen of Zimbabwe, is not immune
to the normal vicissitudes that every other citizen faces in terms of
the Criminal Code, merely because he has been disciplined in terms of
the powers conferred on the Commissioner General in section 8 of the
Police Act to command, superintend and control the police service.
This position resonates more
logically with the constitutional and legislative provisions. I
therefore find that while the right to freedom from dual prosecution
is guaranteed by the Constitution, the same Constitution, and
enactments in terms thereof, place limitations to the enjoyment of
that right. As a consequence, the law sanctions interference with
that right in that prosecution for disciplinary matters in the
disciplined forces is allowed to the extent that it does not affect
the criminal liability of a member. Such a limitation pursues the
legitimate aim of instilling and maintaining the discipline in a
disciplined force, which is necessary in a democratic society. This
is because an undisciplined force is a threat to society. The police
authorities must therefore be accorded the margin of appreciation to
protect society from an undisciplined force. The requirements for
discipline are balanced with the need to ensure security for the
citizenry and do not place an undue burden on individual police
officers.
(xi) Whether or not a member
who has a pending criminal case is entitled to full terminal benefits
before the finalisation of the criminal case?
It is trite that terminal
benefits are payable upon termination of employment.
In accordance with section 47 of
the Police Act, pending trial, the Commissioner General is only
entitled to suspend a member, and not terminate his employment.
Further, section 48 provides that termination of employment is only a
consequence of conviction. And in terms of section 39 of the Police
Act, certain penalties consequent upon disciplinary proceedings are
only recoverable by stoppages of pay.
It seems to me that in these
circumstances a member is not entitled to payment of terminal
benefits until the conditions in these provisions are fulfilled.
However, where a member tenders his resignation, pending the
finalisation of a disciplinary matter, section 44 entitles the
Commissioner General to disentitle him to salary and allowances.
Further section 41 provides that if a member ceases to be so before
completion of his sentence, the sentence shall remain valid and
binding.
I presume that would permit the
Commissioner General of Police to withhold his terminal benefits to
meet any penalties he may be obliged to pay. Therefore, while the
right to terminal benefits is provided for by law, such right has
also been limited, by law, in clearly defined circumstances which are
reasonably necessary for the protection of the fiscus for the
generality of the citizenry. The interests of the individual are thus
properly balanced with the public interest in that no terminal
benefits are withheld indefinitely and unjustifiably.
Findings
In conclusion, and following on
from the above discourse, I summarise my findings with regard to the
law pertaining to these issues as follows:
(a) A general review lies
directly to the High Court against the decision of a single trial
officer, only where a complainant opts out of appealing to or seeking
a review by the Commissioner General of Police, and subject to the
principle of exhaustion of local remedies.
(b) A review to the High Court
generally lies against the decision of the Commissioner General of
Police.
(c) The determination to detain a member by the Commissioner
General of Police shall not be automatically stayed pending the
outcome of review proceedings in terms of paragraph (a) and (b)
above.
(d) A Board of Suitability, being
a management function of the Police authorities, shall not be
automatically stayed pending review of the decision of the
Commissioner General of Police.
(e) There is no right of appeal
to the High Court against the decisions of the single officer in
police disciplinary matters.
(f) There is no general right of
appeal to the High Court against any decision of the Commissioner
General of Police.
(g) The question whether a
determination to detain a member by the Commissioner General of
Police shall be automatically stayed pending the outcome of appeal
against the decision of the Commissioner General of Police does not
arise in accordance with the findings in paragraph (f) above.
(h) The determination to detain a
member by the Commissioner General of Police, after the noting of an
appeal, shall be automatically stayed pending the outcome of appeal
made in terms of section 33 of the Police Act.
(i) A Board of Suitability, being
a management function of the police authorities, shall not be
automatically stayed pending appeal against the decision of the
Commissioner General of Police.
(j) There is no double jeopardy,
and dual prosecution is permissible in accordance with section
70(1)(m) of the Constitution, with respect to disciplinary
proceedings in terms of the Police Act and prosecution in terms of
the Criminal Law (Codification and Reform) Act.
(k) A member who has a pending
criminal case is not entitled to full terminal benefits before the
finalisation of the criminal case.
In casu, the applicant having
elected to appeal to the Commissioner General of Police against the
decision of the single trial officer, he cannot be allowed a second
bite of the cherry, by now seeking a review at the High Court, of the
decision of the single trial officer. The proper course should have
been to seek a review of the decision of the Commissioner General in
dismissing his appeal.
Ergo, the legitimate consequence
of the dismissal of his appeal is that the Commissioner General is
now free to order his detention. Applicant cannot now see seek to
stay such detention as he has not questioned the decision of the
Commissioner General. In the circumstances I find that his
application cannot stand.
Who should pay costs and on
what scale?
This being a matter which cried
out for resolution of legal questions, both for the benefit of smooth
management of the Police Force and maintenance of discipline as well
as the better administration of justice, it is just and equitable
that each party should bear its own costs. In particular, I believe
that it would be unfair to penalise the applicant with an order for
costs in circumstances where this case has a wider impact on the
multiplicity of cases and divergence of judgments in similar matters.
CONSEQUENTLY, IT IS ORDERED THAT;
1. The urgent chamber application
is dismissed.
2. There shall be no order as to
costs.
CHIWESHE JP agrees
Mugiya and Macharaga Law Chambers, applicant's legal practitioners
Civil Division of the Attorney General's Office, respondents'
legal practitioners
1. Rateiwa v Kambuzuma Housing Coop & Anor 2007 (1) ZLR (H) @
314; Sadengu v Board President & Anor HH 712-15
2. Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45
@ 49D
3. Ndlovu v Officer Commanding Zimbabwe Republic Police & Ors HB
100-10
4. Assistant Inspector Chibike v The Trial Officer & Anor
HC1832/15
5. Consolidated Fish Distributers (Pty) Ltd v Zive & Ors 1968
(2) SA 517 @ 523. See also R v Secretary of State for Home
Department, ex parte Muboyayi (1991) 4 All ER 72 @81C
6. See African Commission on Human and Peoples' Rights v Republic
of Kenya, Application 006/2012 @ p 37, paragraph 129, where, in
dealing with the right to land for indigenous people, the African
Court on Human and Peoples' Rights (AfCHPR) stated: “…,.
Article 14 (of the African Charter on Human and Peoples' Rights)
envisages the possibility where a right to property including land
may be restricted provided that such restriction is in the public
interest and is also necessary and proportional.”
7. See section 86-7 of the Constitution of Zimbabwe
8. Commonly referred to, in human rights jurisprudence, as the
doctrine of “margin of appreciation”
9. See Human Rights Committee, Keun-Tae Kim v the Republic of Korea
Communication No. 574/1994 CCPR/C/64/D/574/1994, 4 January 1999 @para
25
10. Jawara
v Gambia 2000 AHRLR (ACHPR 2000). See also Lohe Issa Konate v Burkina
Faso Application 004/2013 (AfCHPR)
11. See Kopp v Switzerland
ECHR 13/1997/797/1000 at paragraph 55 where the court stated that:
“The expression “in
accordance with the law”…, requires, firstly, that the impugned
measure should have some basis in domestic law; it also refers to the
quality of the law in question requiring that it should be accessible
to the person concerned, who must moreover be able to foresee its
consequences for him, and compatible with the rule of law.”
12. See Christian Education
South Africa v Minister of Education CCT4/00, a decision of the
Constitutional Court of South Africa where the Court was required to
determine whether the interference, as prescribed by section 10 of
the South African Schools Act 84/96, with the right to administer
corporal punishment, did in fact violate the rights of parents of
children in independent schools who had consented to the resort to
corporal punishment in line with their religious convictions as
guaranteed in the Constitution. The court held that the general aim
of the South African Schools Act, to reduce violence in public and
private spaces, to ensure the dignity, physical and emotional
integrity of the child and security of children's persons from
cruel, inhuman and degrading treatment far outweighed any right of
the parents to be exempted from the prohibition to corporal
punishment on the basis of their constitutional right to religious
freedoms.
13. See Tristant Donoso v
Panama, Series C, No. 193 (2009) where the Inter-American Court of
Human Rights opined that in a democratic society, punitive power is
exercised only to the extent that it is strictly necessary in order
to safeguard essential legally protected interests from the more
serious attacks which may impair them.
14. Christian Education South
Africa (supra) Paragraphs 50-52. See also Lautsi and Others v Italy
ECHR Application 30814/06 where the European Court did not find it
necessary in a democratic society that a centuries old tradition
which was a part of the culture of the country, the crucifix, should
be removed from schools.
15. See Case “Relating to
certain aspects of the laws on the use of language in education in
Belgium: v Belgium Application No. 1474/62; 1677/62; 1691/63;
1769/63; 1994/63; 2126/64 (ECHR). See also Buckley v the United
Kingdom, 25 September 1996, 74 Reports of Judgments and Declarations
1996-IV (ECHR)
16. The Human Rights Committee
explained the notion of proportionality in its General Observations
No.34, on Article 19: Freedom of Opinion and Freedom of Expression,
thus:
“Restrictions should not be
too wide-ranging….,. Restrictive measures must comply with the
principle of proportionality; they must be appropriate to achieve
their protective function, they must be the least disturbing means
among those that help achieve the desired result and they must be
proportionate to the interests to be protected…,. The principle of
proportionality must be respected not only in the law that institutes
the restrictions, but also by the administrative and judicial
authorities charged with enforcing the law.”
See also Lautsi (supra) where
the court found it disproportional to allow the parent of one child
in a class of 30 to enforce her rights to a crucifix-free classroom
as against the wishes of parents of the other 29 pupils.
17. See the jurisprudence of
the African Commission on Human and People's Rights, the African
Court on Human and People's Rights, the United Nations Human Rights
Committee, the European Court of Human Rights and the Inter-American
Court of Human Rights excessive or disproportionate burden on the
couple, on a proper balance with the interests of the community, if
the house was destroyed without compensation. It follows that
limitations on the enjoyment of rights are normally contained in
legislation requiring or obliging individuals to comply with certain
localised laws (local remedy) before accessing laws of wider or
general applicability. Here too, international jurisprudence has
developed guidelines with respect to exhaustion of local remedies
that are applicable. Firstly, for a local remedy to be exhausted, it
must be available, effective and sufficient and not unduly prolonged.
The African Commission has defined “availability” as a remedy
which can be pursued without impediment; “effectiveness” as a
remedy which admits of prospects of success; and “sufficient” as
a remedy capable of redressing a complaint.
18. See Jawara v Gambia
(supra). See also Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008) @
p18 paragraph 78
19.
See Lohe Issa Konate v Burkina Faso (supra)
20
See Human Rights Committee decision in A v Australia
CCPR/C/59/D/560/1993 (A v Australia [1997] UNHRC 7, UN Doc
CCPR/C76/D/900/1993). See also Article 19 v Eritrea (2007) AHRLR 73
(ACHPR2007)
21.
See Layla Sahin v Turkey ECHR 2005-XI (GC) 44774/98. See also DePalle
v France 2010-111 ECHR
22.
See section 86-7 of the Constitution of Zimbabwe
23.
See Bhatti & Anor v Chief Immigration Officer & Anor 2001 (2)
ZLR 114 (H) @ 121 D and Kenderjian v Chief Immigration Officer 2000
(1) ZLR 697 (S) @ 700 A-C, where issues of public safety and order,
pursuance of legitimate aims authorised by the Constitution and
reasonable justification in a democratic society where held to
justify interference particularly with non-absolute rights.
24.
Section 34(9) of the Police Act provides as follows:
“(9)
A member who is found guilty of a contravention of this Act by an
officer shall not be regarded as having been convicted of an offence
for the purpose of any other law.”
25.
See Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2)
ZLR 15 @21 B-C, E-F. See also Arafas Mtausi Gwaradzimba N.O. v Gurta
A.G. SC10/15 (Civil Appeal 416/13)
26.
See Premier Mpumalanga v Association of Estate Agents School 1999 (2)
(CC) 113 at para 50. See also Chief Constable of the North of Wales
Police v Evans [1982] 3 ALL ER 141 (HL) at 143 H-J
27.
Baxter's Administrative Law @ page 681
28.
See Sadengu v Board President & Anor HH 712/15
29.
Rateiwa v Kambuzuma Housing Coop & Anor 2007 (1) ZLR (H) @ 314
30.
Section 34(9) of the Police Act [Cap 11:10]
31.
See section 35(1) of the Police Act
32.
See Mugabe & Anor v Law Society of Zimbabwe, 1994 (2) ZLR 356
(S) @ 363D
33.
See Olivier v Kaapse Balieraad 1972 (3) SA 485 (A). See also Law
Society of the Cape v Koch 1985 (4) SA 379 (C)
34.
See Mugabe & Anor v Law Society of Zimbabwe (supra)
35.
See section 46 of the Police Act
36.
Assistant Inspector Chibike v the Trial Officer & Anor HC1832/15
