GUVAVA
JA:
1.
This is an appeal against part of a judgment of the High Court dated
17 July, 2019 in which the court a
quo
set aside the respondents dismissal from the police service
commission and ordered his reinstatement without loss of salary and
benefits.
2.
After hearing submissions from both the appellants' counsel and the
respondent we gave an ex
tempore
judgment and made the following order:
“1.
Accordingly, the appeal succeeds with no order as to costs. The
decision of the court a
quo
is set aside and substituted with the following:
“(a)
The appeal by the respondent to the Police Service Commission is
upheld.
(b)
The decision of the Police Service Commission is hereby set aside.
(c)
The matter is remitted to the Police Service Commission for a hearing
de
novo.
(d)
There shall be no order as to costs.”
3.
The respondent has requested written reasons. These are they:
BACKGROUND
FACTS
4.
The first respondent is a Commission established in terms of s221(1)
of the Constitution. Its mandate, amongst others, is to fix and
regulate the affairs of the members of the Police Service Commission.
The
respondent was a member of the Zimbabwe Republic Police. Before his
discharge from the service, he was stationed at Rose Camp in
Bulawayo.
On
28 December 2015, the respondent was discharged from employment. The
respondent alleges that his discharge was not in accordance with the
Police Act as he was not informed of the charge preferred against him
nor was a Board convened to enquire into the merits of the matter.
It
was on these allegations that he approached the court a
quo
seeking a review of the proceedings that led to his discharge. He
prayed for the setting aside of his discharge and reinstatement
without loss of salary and benefits.
5.
The court a
quo
found that there were procedural irregularities as the respondent was
not given an opportunity to be heard. It was on that basis that the
court a
quo
ordered the respondent's reinstatement.
6.
Aggrieved by the order granted a
quo
the appellants appealed to this Court. The main gripe of the
appellants was that the court a
quo
erred in ordering the reinstatement of the respondent when there was
no evidence of malice or bias towards the respondent and no evidence
to show that the respondent had been improperly discharged.
7.
In the court's view the crisp issue that presents itself is whether
or not the order of the court a
quo
was competent.
THE
LAW
8.
The law relating to reviews in terms of the High Court Act [Chapter
7:06]
and the Rules of that court is settled. The application for review
must be made within 8 weeks of the decision and on such grounds as
are set out in s27 of the High Court Act.
9.
Section 28 of the High Court Act provides for the powers that the
court is imbued. It reads:
“on
a review of any proceedings or decision other than criminal
proceedings, the High Court may, subject to any other law set aside
or correct the proceedings or decision.”
APPLICATION
OF THE LAW TO THE FACTS
10.
It is trite and this appears clearly from the above cited provisions
that in an application for review the court must confine itself to
establishing whether or not the proceedings were afflicted with
irregularities.
Once
it found, as it did in this case, that there were irregularities in
the process in which the appellants discharged the respondent then
its power should have been exercised in terms of s27 of the High
Court Act.
As
set out above, s28 provides that the High Court can only set aside or
correct the proceedings or decision complained of. The High Court has
no power to order the reinstatement of a person if a matter is
brought on review.
11.
This was clearly stated in Standard
Chartered Bank of Zimbabwe Ltd v J. Chikomwe and
211 Ors s77–2000.
“This
is because reinstating the respondents in the circumstances implies a
finding that the respondents were innocent of the charges of
misconduct against them by the hearing officer. It should be borne in
mind that the respondent in their appeal to the Appeals Board were
mainly challenging the procedural irregularities in the hearings
before the disciplinary Committee. The merits of the case were not
really challenge……………”
See
also Air
Zimbabwe Ltd v
Mensah
SC 89/04.
So
too, in this case, the respondent was not happy with the manner in
which his matter was handled. It was his case that there was no
Suitability Board which was convened neither was he called to answer
to any charges.
12.
The court a
quo
agreed with him but then ordered his reinstatement. Clearly this was
ultra
vires
the powers of the court where it finds an irregularity. Its powers
are limited to setting aside, or correcting the decision of the
Tribunal.
As
the matter is not an appeal on the merits the court a
quo
would not have had the power to set aside the decision of the Police
Service Commission and substitute it with its own decision.
13.
It was not in dispute that the record of the suitability Board was
not before this Court. There was no valid explanation as to why it
was not part of the record as it is in dispute whether or not the
record was placed before the Police Service Commission or before the
court a
quo.
14.
In view of these irregularities and the fact that these documents do
not appear to have been placed before the court a
quo
the proper relief should have been the setting aside of the decision
of the first appellant, and a remittal of the matter so that it can
be determined following the proper procedures.
DISPOSITION
15.
It was for the above reasons that we issued the order set out at the
beginning of this judgment.
UCHENA
JA: I
agree
KUDYA
AJA: I
agree
Civil
Division of the Attorney General's Office,
appellant's legal practitioners
