NDOU J: The applicant is a Detective Assistant Inspector in the
Zimbabwe Republic Police attached to CID Fraud Section, Bulawayo. He was arraigned before a single officer
charged with contravening paragraph 35 of the Schedule to the Police Act
[Chapter 11:10] i.e. “acting in an unbecoming manner or disorderly manner or in
a manner prejudicial to the good order or discipline likely to bring discredit
to the police.” The applicant was
represented by a Mr Munjanja of Munjanja and Associates Legal Practitioners during
his trial. Notwithstanding his vehement
protestations he was convicted and sentenced to pay a fine of $10,00. The applicant evinced his dissatisfaction
with the conviction by appealing to the Commissioner General of Police as
provided for in the Police Act. His
appeal was unsuccessful. The
Commissioner General upheld his conviction and sentence. The applicant was not amused by this turn of
events and launched the current application for review. The application was filed on 1 July
2010. The application was filed and
served out of time. Before he obtained
condonation, the applicant served the application on respondents on 2 July
2010. The applicant's application for condonation
for late noting of review was granted on
30 September 2010. On 11 October 2010
the applicant served on the respondent the notice of set down and notice of
amendment of court application.” On 18
October 2010 he served on the respondents “a copy of the amendment of the court
application.” The respondents filed
their notice of opposition and opposing papers on 20 October 2011. The applicant raised an interlocutory issue
that the opposing papers were filed out of time. This point in limine should fail simply because the applicant is relying on
service that was effected before he obtained condonation for the late filing of
application for review. Applicant cannot
rely on such defective service. The
relevant service from the papers is one of 11 October 2010 which means that the
opposing papers were filed on the seventh day after the service of the
application. I now revert to the merits
of the application. What can be gleaned
from the record of proceedings is that the allegations at the police trial were
the following. On 9 October 2009 Police
(CID Minerals) Bulawayo arrested one Makadzange Mazarire for illegal dealing in
gold. Although the applicant was not
stationed at CID Minerals he somehow became aware of the arrest. He is alleged to have approached Lovemore
Sibanda, a registered miner. He
requested the latter to include Makadzange's name in his mining register so as
to facilitate his release from police custody.
As alluded to above, the applicant was convicted by a single officer and
his appeal to the Commissioner General was unsuccessful. In this application he seeks review of the
decision of the Commissioner General of Police.
He is challenging the Commissioner General's confirmation of the single
officer's judgment. The gravamen of his application is that he was convicted on
the testimony of a single witness.
Factually, this is incorrect because the state called two witnesses i.e.
Lovemore Sibanda and Detective Assistant Inspector Ndabezinhle Mdlongwa of CID
Minerals. It is clear that the applicant
does not seem to appreciate the legal concept of “single witness”. Be that as it may, the single officer made a
finding of fact that these two witnesses were credible. It is trite law that assessment of the
credibility of a witness is the province of the trial court i.e. the single
officer in casu. On appeal, the Commissioner General could
only have interfered with the findings of the trial officer in this regard if
he was satisfied that such a finding of facts defies reason and common
sense. There has to be something grossly
irregular in the proceedings to warrant such interference. The appellate court must never overlook that
the trial officer's living through a drama of a case is in a unique position to
evaluate the evidence in its proper perspective. Questions of credibility are par excellence
the province of the trial court – Mbanda
v S SC-184-90 at page 7; S v Mlambo
1994 (2) ZLR 410 (S) at 413; Shoko v S SC-118-92; Zulu v S HB-52-03 and Marx v S [2005] 4 ALL SA 267 (SCA).
Looking at the papers before me I do not see how the Commissioner
General would have interfered with findings of fact by the trial officer. As alluded to above, I am dealing with the
review of the appeal tribunal presided over by the Commissioner General. It is trite that this court has wide powers
of review in terms of sections 26 and 27 of the High Court Act [Chapter
7:06]. Judicial review is not an appeal
from a decision but a review of the manner in which the decision was made – Chief
Constable of the North Wales Police v
Evans [1982] 3 ALL ER 141 (HL) at 155C; Fikilini
v Attorney General 1990 (1) ZLR 105
(SC) at 109H – 110C. The invitation to
this court to upset the determination made by the Commissioner General cannot
be accepted if it amounts to requiring the court to sit upon the merits of this
determination – Minister of Labour and
Social Welfare & Ors v Pen
Transport (Pvt) Ltd SC-45-89 and National
Foods Ltd v Kare & Ors 1990
(1) ZLR 223 (HC) at 232-233. In casu, the applicant seems to be saying
that the single officer's trial determined his guilt on the basis of inadequate
evidence (i.e. evidence of a single witness).
This is not a ground for review as envisaged by section 27 of the High
Court, supra. In section 27, supra, the grounds for review are the following –
“a) Absence of jurisdiction on the part of
the court, tribunal or authority concerned;
b)
Interest in the cause, bias, malice, or corruption on the
part of the person presiding over the court or tribunal concerned or on the
part of the authority concerned, as the case may be;
c)
Gross irregularity in the proceedings or decision.”
The remedy open to the applicant in
this case is by way of appeal, if any, and not review. I find nothing in this matter that fits the
above requirements or grounds. On
review, it is not enough simply to show that the decision was wrong or unreasonable. Special grounds must exist before a court
will enquire into the merits – Ministry
of Labour Manpower Planning & Social Welfare & Ors v Pen Transport (Pvt) Ltd, supra, at page
4 of the cyclostyled judgment, Makoni v
Liquor Licensing Board 1974 (2) RLR 1
and Quintas v Controller of Customs and Excise 1976 (1) RLR 208. I find no grounds in terms of which I can
review the decision of the Commissioner General.
Accordingly,
I dismiss the application with costs.
Civil Division, Attorney General's Office
respondents' legal practitioners
