GOWORA
J: The applicant is a service police
officer within the Zimbabwe Republic Police. On 13 August 2003 he was charged
under the Police Act of having contravened para 35 of the schedule to the
Police Act as read with ss 29 and 34 of the same Act. He was convicted on 25
August 2003 and was sentenced accordingly. An appeal against the conviction and
sentence to the second respondent met with no success. In addition, apart from
dismissing the appeal the second respondent ordered his transfer from Morris
Depot. The applicant was at that stage resigned to taking the punishment meted
out to him and decided against further appeals. However, in May 2004, the
incident which had led his subsequent conviction was referred to a board of
inquiry which board was tasked to enquire into his suitability to remain in the
force and on 4 August 2004 he received communication that the second respondent
had approved that his rank be reduced to that of sergeant and that his transfer
to another posting be confirmed.
The applicant was aggrieved by this
development and on 12 August 2004 he lodged an appeal with the first respondent
against the reduction in rank through the Morris Depot Acting Officer in
Charge. Despite numerous letters from his legal practitioners for a speedy
resolution it was not until 27 June 2007 that the first respondent wrote a letter
advising the applicant that the appeal had not been successful. His legal
practitioners received the letter on 3 July 2007. The applicant has also
complained that during the period that the applicant and his legal
practitioners were processing his appeal he was placed on suspension on the
basis that the applicant had appealed against his reduction in rank. Happily
for him wiser counsel prevailed and the suspension was lifted. Although no
remedy is being sought from the suspension it is obvious that the suspension
was meant to bully him into withdrawing his appeal. It is also because of
unjustified actions such as this that made the applicant conclude that he was
being victimized. Following receipt of the letter of 27 June dismissing his
appeal the applicant then filed this motion for a review of the decision by the
first respondent in upholding the decision of the disciplinary board. In the
application the applicant had cited a number of grounds as being the basis of
review but Mr Ruzengwe indicated from
the bar that he would no longer move for all of them.
The first ground being sought to be
relied on was that the first respondent had misdirected itself in failing to
take into account that the convening of the board of inquiry and its subsequent
decision were a nullity as the applicant had already been sentenced for the
alleged transgression. Counsel has accepted that a mis-direction is not a
ground for review and has also accepted that the second respondent has the
discretion under the Act to set up a board of inquiry into an officer's conduct
or suitability to remain a member of the police force. The second alleged
ground for review was a failure to appreciate the facts. Again counsel accepts
that this is not a ground for review but for appeal.
The third ground for review was
framed in this manner:
“C) even assuming, without admitting,
that the Board of Inquiry was properly convened and empowered to hear the
matter, the first respondent failed to appreciate the fact that the punishment
imposed upon me by the Board was unduly harsh, grossly unreasonable and not in
tandem with the facts of the case. The
Board of Inquiry/Suitability (sic)
usually sits to determine cases of incorrigible members of the Police who
despite being convicted several times for misconduct, remain unrepentant and
those who will have committed “one off” serious offences-in which cases such
punishment as reductions in rank would suffice. As a first offender with a
clean 16-year record in the Police Force, I did not and does (sic) not deserve the punishment of
reduction in rank, but at most a reprimand.”
I raised a query with the applicant's counsel
as to whether or not this additional ground was for a review or an appeal.
Counsel was adamant that it was a ground for review. I am unable to agree.
It
is appropriate at this juncture to consider the function that a court is
exercising when it reviews the actions or decisions of an administrative body.
Judicial review is a process which is concerned with the examination and supervision
by the courts of the manner in which administrative bodies have observed their
obligations when related to the legislative requirements. It is a process in
which the three arms of government, the executive, the judiciary and the
legislature are enmeshed in a trilateral relationship. The power to review is
inherent in courts of superior jurisdiction, but such power is limited to the
legality of the administrative action or decision.
In
casu, the board was empowered in
terms of the Act to convene an enquiry into the suitability of the applicant to
remain a member of the force. Section 50 of the Act provides as follows:
“A board of
inquiry consisting of not less than three officers of such rank not being below
that of superintendent, as may be considered necessary by the Commissioner, may
be convened by the Commissioner to inquire into the suitability or fitness of a
Regular Force member to remain in the Regular Force or to retain his rank,
seniority or salary:
Provided that no
officer who is a material witness or has a personal interest in the matter
shall be appointed to such a board.”
Thus,
the power of the Commissioner to convene a board to inquire into a member's
suitability to remain in the force is undisputed. The board itself is in terms
of the section granted the discretion to either find that a member is no longer
fit to remain in the force or to reduce his rank. The first respondent
confirmed the decision of the board upon appeal. In seeking for an order from
this court to the effect that the punishment of reduction in rank “was unduly
harsh, grossly unreasonable and not in tandem with the facts of the case”, it
is my considered view that the applicant is asking the court to inquire into
the merits surrounding the punishment. That would turn this court into an
appeal court to determine the correctness of the punishment, and that is
synonymous with assessing the merits of the punishment imposed. The Act does
not empower this court to venture into the merits of the punishment imposed or
the wisdom of the decision and if the court were to do so without being
empowered by the Act it would be tantamount to the court usurping the authority
that has been entrusted to the administrative body by the Act. The process of
review is for the court to examine the circumstances under which the
administrative body reached its decision, and it is not open to the court, in a
judicial review, to scrutinize the decision lest the court is accused of
usurping the powers of the administrative body. See Chief Constable v Evans,
where at p 154 LORD BRIGHTMAN stated:
“Judicial review
is concerned, not with the decision, but with the decision making process.
Unless that restriction on the power of the court is observed, the court will
in my view, under the guise of preventing the abuse of power, be itself guilty
of usurping power.”
The
purpose of the review process is to ensure that an individual receives fair
treatment at the hands of the authority to which he has been subjected. It is
however not within the ambit of the reviewing court's power to substitute its
own opinion for that of the administrative body. The function of the court is
to ensure that the administrative body does not abuse the lawful authority
entrusted to it by treating the individual subjected to it under that lawful
authority unfairly. In the event if the circumstances under which the decision
was made are proof that the decision was reached fairly and in a reasonable
manner then clearly the court does not have the power to intervene.
The
applicant has however, as part of his review, alleged that there was bias on
the part of the first respondent. The basis of the alleged bias is that the
first respondent had arrived at a decision without having regard to the record
of proceedings of the board and without affording the applicant or his legal
practitioners a hearing on the appeal lodged. The applicant contends further
that the first respondent's bias is evident from the record where the applicant
is castigated for not being grateful for not having been fired as a result of
his transgressions.
Two affidavits have been filed
in opposing the application. The manner in which the affidavits were drafted
leaves a lot to be desired. Although an attempt was made to respond to the
allegations in the various paragraphs, a number of paragraphs were lumped
together for purposes of responding to the allegations and as a result it is
difficult to make sense of the affidavits. The allegations by the applicant
relating to alleged bias do not appear to have been responded to. I note
however, that in the heads of argument filed on behalf of the applicant,
instead of making reference to the absence of a record, the applicant raises
the issue of the first respondent having recommended that he be discharged from
the service instead of a mere reduction in rank. The applicant also raises in
the heads of argument an allegation of absence of logic on the part of the
first respondent which was proof of gross unreasonableness. A ground for review
cannot be raised for the first time in the heads of argument as the rules
provide that the application including the affidavit must give a concise
statement as the grounds for review. As to the first respondent raising an
issue for the first time which was not in the record, the first respondent has
stated in the opposing affidavit that it was never the intention of the first
respondent to discharge the applicant from the service and that the
recommendation was an apparent error. A reading of the record of proceedings
suggests that the first respondent accepted that the applicant should be
grateful to have his rank reduced and thus keep his job. There is no suggestion
on the record that the first respondent considered that the applicant should be
dismissed from his post. I do not understand the comment in the record to the
effect that the applicant should be grateful that he still had a job to mean
that the commission was biased against him. Rather the remark if read within
the context of the paragraph reveals that the first respondent's members
considered the offence to have been very grave. The first respondent does not
make reference to the record in its findings, but I cannot accept that this
proves that the members did not have the record before them in determining the
appeal. The first respondent states that the appeal was on the record and I
cannot find anything on the papers before me to suggest otherwise. Sight must
not be lost of the fact that the first respondent is not a court of law and
therefore the detail that would be expected from a court of law would be
somewhat lacking in the record produced of the proceedings conducted by the
commission set up under the Act. I am unable to find that there was bias on the
part of the first respondent in considering the appeal before it.
As
to the complaint by the applicant that the first respondent did not call
himself or his legal practitioners for a hearing, I find that the Act does not
specify the manner in which the first respondent ought to determine appeals
brought before it. The precise form of the appeal and the powers that a
statutory body has in the determination of appeal should derive from the
language of the enabling statute. In this instance the Act is silent on the
form of the appeal and it is therefore safe to assume that the appeal would be
on the record as in a normal appeal.
The
applicant has suggested that the failure by the first respondent to call him or
his legal practitioners for the appeal amounted to an irregularity. He has
argued that the conduct of the first respondent was in breach of the audi alteram partem rule. He has
referred this court to a decision of the Supreme Court Metsola v Chairman, Public
Service Commission & Anor as
authority for that proposition. I believe that the applicant's counsel failed
to appreciate that in the authority he quoted the respondents were not acting
as an appeal tribunal but were in fact the equivalent of a court of first
instance. The case however is instructive as the court went to discuss what
constitutes a fair hearing for purposes of the audi alteram rule. At pp 154D-155 where GUBBAY JA (as he then was)
stated:
“The audi maxim is not a rule of fixed
content, but varies with circumstances. In its fullest extent, it may include
the right to be appraised of the information and reason underlying the
impending decision; to disclosure of material documents; to a public hearing,
to appear with legal representation and to examine and cross-examine witnesses.
See generally, Baxter Administrative Law at pp 545-547. The criterion as I have
noted, is one of fundamental fairness and for that reason the principles of
natural justice are always flexible. Thus the right to be heard in appropriate
circumstances may be confined to the submission of written representations. It
is not the equivalent of a hearing as that term is ordinarily understood. This
was stressed by COLMAN J in Heatherdale
Farms (Pty) Ltd & Ors v Deputy Minister of Agriculture & Anor 1980 (3) S.A. 476 (T), where at
486D-G he remarked:
'It is clear on
the authorities that a person who is entitled to the benefit of the audi alteram partem rule need not be
afforded all the facilities which are allowed to a litigant in a judicial
trial. He need not be given an oral hearing, or allowed representation by an
attorney or counsel; he need not be given an opportunity to cross-examine; and
he is not entitled to discovery of documents. But on the other hand (and for
this no authority is needed) a mere pretence of giving the person concerned a
hearing would clearly not be a compliance with the rule. For in my view will it
suffice if he is given such a right to make representations as in the
circumstances does not constitute a fair and adequate opportunity of meeting
the case against him. What would follow from the last mentioned proposition is,
firstly, that the person concerned must be given a reasonable time in which to
assemble the relevant information and to put forward his representations,
secondly he must be put in possession of such information as will render his
right to make representations a real, and not an illusory one'.”
Thus
the underlying principle in the right to heard is that of fairness and natural
justice in that each person appearing before the administrative body is given
an opportunity to put his or her position to that body. An oral hearing is not
an absolute necessity as that may not necessarily that the person has been
heard as may happen where the person has been given inadequate notice, is not
allowed to present his case or has not been furnished with all the information
alleged against him, and yet a hearing may be called. In any event, the
applicant does not state that when the initial board of inquiry was held, he
was not given an opportunity to be heard. He was heard and dissatisfied with
the result he then launched an appeal. There is no suggestion that such an
appeal should have been a re-hearing of the initial inquiry. I am inclined to
find that the applicant was heard and that the first respondent did not commit
an irregularity.
The
last complaint by the applicant is that the first respondent took time to
determine his appeal. He therefore prays that on that basis its determination
be set aside. Going by the relief that the Administrative Justice Act provides
for, I could set aside the decision of the first respondent. That would be a brutum fulmen as the decision of the
board of inquiry would still stand. I also find that even though the appeal
took long to be determined there was no prejudice to the applicant as he
remained on his salary of inspector for the time it took for the initial
decision to be made that his rank be reduced and its eventual implementation.
In the event, the delay in finalization of the process may have in the short
run acted to his benefit in terms of the salary and emoluments that went with
the rank of inspector. I do not find that any relief under the Act would assist
him.
In
the premises, it is my view that the applicant is non suited and the
application is hereby dismissed with costs.
Mapombere, Musakana & Ruzengwe, applicant's legal practitioners
Civil Division of the
Attorney-General's Office, respondents' legal
practitioners
