The
applicant brought this matter on review on the grounds that he was not given an
opportunity to call three defence witnesses, namely, Sgt Masiyemvura, Cst
Rwizhi and Sgt Zhou. He alleged that those witnesses would have explained to
the Board the reasons why he had failed to report for duty on the two occasions
that he was not on duty.
He
also alleged that the Commissioner General Police disregarded his medical
record which explained the reason why he had failed to report for work….,.
Further,
he alleged that he had not been given the requisite notice of 72 hours to
convene the Board…,.
The
brief circumstances giving rise to this case were that on two occasions he
allegedly was absent from work without leave. The first count related to the
failure to report for duty from 7 to 8 August 2010. Secondly, he allegedly
failed to report for duty on 16 and 17 August 2010. What he allegedly did was
in contravention of paragraph 13(1) of the Schedule to the Police Act [Chapter
11:10] and was accordingly charged with the two counts. He was found guilty of
both counts and was sentenced to undergo five (5) days detention in barracks at
Fairbridge in respect of each count. While he was still serving his ten days
punishment he was summoned to attend a Board of Inquiry into his suitability or
otherwise as a member of the force. The Board found him to be unsuitable to
remain in the police force and recommended that he be dismissed therefrom. His
dismissal was then confirmed by the Commissioner General Police resulting in
the applicant being discharged on 4 April 2011.
On
19 April, the applicant launched this application seeking the recommendation
and subsequent discharge set aside for the reasons set out in his grounds for
review…,.
At
the hearing, counsel for the respondent was constrained to concede that there
was a gross irregularity in the proceedings before the Board in that the
applicant was not afforded an opportunity to call his defence witnesses. Chief
Superintendant Lancelot Matange did not deny, in his opposing affidavit, that
the Board he chaired refused to hear his witnesses. He, however, denied that
the applicant was not given the requisite 72 hours notice. Instead, he said the
applicant was given 96 hours. He averred that the Board came to the conclusion
that the applicant was malingering. His conduct of lying on the floor was a
deliberate ploy to scare the Board so as to delay proceedings unnecessarily.
But
what sticks out like a sore thumb is the fact that he was denied the
opportunity to call his witnesses.
The
Commissioner General Police, however, did advert to the issue of the calling of
defence witnesses and held the view that their evidence was of no probative
value. But the applicant said his witnesses would have furnished the Board with
the reasons why he had failed to report for duty on the respective days. Those
were material and favourable witnesses to the applicant's case. The applicant
should have been given a full opportunity to call his defence witnesses he
wished. He has a right to do so as enshrined in section 18(3)(e) of the
Constitution of Zimbabwe and is a fundamental principle of natural justice. In
terms of section 18(3)(e) of the Constitution of Zimbabwe, an accused is
entitled to obtain the attendance of witnesses on the same condition as those
applying to witnesses called by the prosecution. This includes the right to
subpoena reluctant witnesses. The failure to call the applicant's witnesses
constituted an irregularity. It would amount to a gross injustice where the
tribunal bars the calling of the witnesses just because it erroneously feels
their evidence had no probative value. See the case of Yusuf 1997 (1) ZLR 102
(H).
The
proceedings in this matter were highly irregular and the Commissioner General
ought not to have upheld the result following such irregularity….,.
It
is ordered that:
1.
The proceedings and the recommendations of the Board held on 5 March 2011 whose
members were the 1st, 2nd, 3rd and 4th
respondents be and are hereby set aside;
2.
The confirmation by the Commissioner General Police of the said recommendation
made by the said Board be and is hereby set aside;
3.
The matter be remitted to the police force to be heard by a Board comprising
new members.
