TAKUVA J: This is an
application for review in which the grounds have not been put in a
concise and precise manner. The order sought is couched as follows:
“1. That the proceedings of the
trial held up to the 23rd
of March 2012 by the 2nd
respondent subsequently confirmed by the 1st
respondent be and are hereby set aside.
2. That the confirmation by the
1st
respondent of the decision initially made by his single officer be
set aside.
3. That the convening of the
Board of Inquiry (suitability) by the 1st
respondent against applicant before finalisation of this review
application be deemed unlawful.
4. The conviction of applicant
under paragraphs 27, 35 and 34 of the schedule to the Police Act
[Chapter 11:10] be and is hereby quashed.”
The facts are that the applicant
is a constable in the Zimbabwe Republic Police. He appeared before a
police disciplinary trial facing three counts of contravening
paragraphs 27, 34 and 35 of the Schedule to the Police Act.
In Count 1, he was alleged to
have solicited or accepted a bribe. Count 2 relates to an allegation
that he acted in an unbecoming or disorderly manner and in Count 3
the averment was that applicant omitted or neglected to perform any
duty or performed a duty in an improper manner. The detailed facts
of what applicant is alleged to have done are not relevant for
purposes of this application, suffice to state that at the end of the
trial on 28 February 2012 applicant was found guilty in respect of
the 3 counts. He was dissatisfied and informed the trial officer that
he intended to note an appeal to the 1st
respondent.
Applicant requested for a record
of proceedings to enable him to prepare grounds of appeal. Instead
of furnishing this record, the 2nd
respondent refused to grant applicant access to the record and
ordered applicant's immediate detention at Mkwasine Police Station.
The following day, applicant was on 2nd
respondent's instructions whisked away to ZRP Fairbridge where he
commenced serving the 14 days imprisonment. Meanwhile applicant's
legal practitioner filed a notice of appeal without perusing the
record of proceedings. He subsequently filed an urgent chamber
application under cover of case number HC5404/12 for applicant's
release since he had filed this notice of appeal within the
stipulated 7 days. The order was granted and he was released after
serving a term of 6 days imprisonment.
Applicant's erstwhile legal
practitioners addressed a letter to the 2nd
respondent on the 26th
March 2012. The full letter reads as follows:
“… We have been instructed to
act on behalf of Cst Moyo. Please note our interest. We write to
advise that we have been instructed to follow the matter up and make
an appeal on his behalf. In fact we have been advised that a notice
of appeal was given soon after trial. We kindly advise that we are
here to file the notice and grounds of appeal.
However to enable us to file
comprehensive grounds of appeal to the Commissioner General and
review proceedings in the High Court we require a record of
proceedings. To achieve this end we kindly request your good officers
to furnish us with the record of proceedings timeously so that we
deliver the grounds before the expiration of seven days.
Please note that this is the
right of a member to have a copy of record of proceedings so that he
prepares his appeal and review proceedings thoroughly and to test the
correctness of the procedure adopted.
The appeal is against both
conviction and sentence.”
The 2nd
respondent's reply is in the following terms:
“1. …
2. We received your
correspondence pertaining your appointment by above member to
represent him in lodging an appeal against both conviction and
sentence, to the Commissioner General of Police.
3. Be
advised that the record of proceedings will not be released to you
are this is an internal disciplinary matter.
4. The
appellant will assist you with his notes of the trial as he was in
attendance throughout the proceedings
…” (my emphasis)
The letter is dated 2 April 2012
and signed by the 2nd
respondent. Upon receipt of the letter applicant's legal
practitioners took the matter to the 1st
respondent by letter dated 15th
May 2012. The letter states:
“Please find enclosed herein
notice and grounds of appeal in the matter that were filed and issued
by the Chiredzi District Clerk on 29 March 2012 who promised to
transmit same to the Headquarters. Further,
take notice that we requested a record of proceedings from the
District Clerk and the trial officer Superintendent Nyamaropa who
refused with it on wrong legal conception as his letter to us
depicts.
We would like to advise that we
do not want to proceed in the manner we did in the Sgt Largest Tsumba
against Dispol Mbare District.” (my emphasis)
The first respondent did not
reply but proceeded to dismiss the appeal on a technicality on 28
August 2012.
Aggrieved, applicant filed this
application on the 5th
of October 2012 on a litany of grounds, the bulk of which are
irrelevant and inappropriate in an application for review. His legal
practitioner properly conceded that the only valid ground is the
denial of access to the record of proceedings by the 2nd
respondent. He amended the prayer to align it to the sole ground for
review.
The issue in
casu is whether or not
the audi alterum partem
principle was adhered to. Put differently, did 2nd
respondent's refusal to supply applicant with the record of
proceedings amount to a violation of applicant's right to
procedural fairness? What is procedurally fair must be determined in
the light of the whole of the circumstances.
The audi
principle was described by MILNE
JA in the South African
Roads Board v
Johannesburg City
Council SA 1 (A) as
being;
“… a rule of natural justice
which comes into play whenever a statute empowers a public official
or body to do an act or give a decision prejudicially affecting an
individual in his liberty or property or existing rights, or whenever
such an individual has a legitimate expectation entitling him to a
hearing, unless the statute expressly or by implication indicates the
contrary.”
It should be noted that the duty
to act fairly, however, is concerned only with the manner in which
decisions are taken; it does not relate to whether the decision
itself is fair or not. What the duty to act fairly demands of the
public official or body concerned was succinctly stated by LORD
MUSTIL
in Doodly
v Secretary of State
for the Home Department and Other Appeals
[1993] 3 ALLER 92 (HL) as follows:
“What does fairness require in
the present case? My Lords, I think it is unnecessary to refer by
name or to quote from, any of the often cited authorities which the
courts have explained what is essentially an intuitive judgment. They
are far too well known. From this, I derive the following.
(1) Where an act of Parliament
confers an administrative power, there is a presumption that it will
be exercised in a manner which is fair in all the circumstances.
(2) The standards of fairness are
not immutable. They may change with the passage of time both in the
general and in their application to decisions of a particular type.
(3) The principles of fairness
are not to be applied by rote identically in every situation. What
fairness demands is dependent on the context of the decision and this
is to be taken into account in all its aspects.
(4) An essential feature of the
context is the statute which creates the discretion as regards both
its language and the shape of the legal and administrative system
within which the decision is taken.
(5) Fairness will very often
require that a person who may be adversely affected by the decision
will have an
opportunity to make representations
on his own behalf either before the decision is taken with a view to
producing a favourable result, or
after it is taken, with a view to procuring its modification, or
both.
(6) Since the person affected
usually cannot make
worthwhile representations without knowing what factors may weigh
against his interests, fairness will very often require that he be
informed of the gist of the case which he has to answer.”
(my emphasis)
In Rwodzi
v Chegutu Municipality
HH-86-03, MAVHANGIRA
J (as she then was) stated one of the minimum requirements of a fair
hearing as;
“… the employee is entitled
to be informed of the reasons
for a decision”. (my
emphasis)
Also, in terms of section 35(1)
of the Police Act [Chapter 11:10], the proceedings must be as close
as possible to those in the Magistrates' Court. The section states;
“35 (1) The proceedings before
or at any trial by a board of officials or an officer in terms of
this Act, shall as near as may be, be the same as those prescribed
for criminal cases in the court of Zimbabwe.”
In the Magistrates' Courts
accused persons are not denied access to court records where they
will be applying for review or appealing.
Quite evidently, the denial of
access to the record of proceedings by 2nd
respondent violates section 35(1) of the Police Act. Such violation
amounts to a gross irregularity in the proceedings. In this regard I
associate myself with SMALBERGER
JA's remarks in
Administrator
Transvaal, Ors v
Theletsane and Ors
1991 (2) SA 192 (A) at 206C – D. The learned judge of appeal stated
that;
“What the audi
rule calls for is a fair hearing. Fairness is often an elusive
concept; to determine its existence within a given act or set of
circumstances is not always an easy task. No specific all
encompassing test can be laid down for determining whether a hearing
is fair - everything will depend upon the circumstances of the
particular case. There are, however, at least two fundamental
requirements that need to be satisfied before a hearing can be said
to be fair; there must be notice of the contemplated action and
a proper opportunity to be heard”.
(my emphasis)
In casu,
it cannot be said that the 1st
and 2nd
respondents allowed the applicant the right to be heard fairly.
The 1st
respondent was notified of the irregularity prior to the
determination of the appeal but did not rectify the anomaly. As
regards the 2nd
respondent, he specifically declined to give applicant the record of
proceedings. This is common cause.
It goes without saying that 1st
respondent as the Commander of the Police Service is duty bound to
ensure that rights of all members are protected. Whenever it appears
that these rights are infringed, he should take corrective measures
to rectify the anomaly. The 1st
respondent was supposed to direct the 2nd
respondent to serve the applicant with a copy of the record of
proceedings. Instead, he dismissed the appeal despite that he was
aware applicant had not had sight of the record of proceedings.
In my view, 2nd
respondent by denying applicant the record of proceedings, and 1st
respondent by omitting to direct that the applicant be served with
the record of proceedings, suffocated the applicant's right to be
heard. The applicant was not afforded adequate facilities by the 2nd
respondent. Consequently, it cannot be denied that the applicant was
fighting against the State which had access to the record which he
did not have. It follows therefore that the State was more equipped
than the applicant.
It was contended by applicant's
legal practitioner that proceedings before the 2nd
respondent should be set aside because the 2nd
respondent was clearly biased against the applicant. I do not agree
for the simple reason that the bias manifested itself after
conviction. However, the same cannot be said about proceedings before
the 1st
respondent in that these proceedings were tainted by the apparent
irregularity.
As regards costs, Mr
Sengweni urged me to
make a finding that 2nd
respondent acted out of malice and therefore grant an order of costs
against him on attorney and client scale.
I am not persuaded by this
argument for the reason that from the record, it appears that 2nd
respondent acted out of ignorance. I say so because if he knew of the
correct position of the law, he would not have displayed his
ignorance in writing. However, I should sound a warning to trial
officers that they should seek proper legal advice from their legal
division when in doubt. Failure to conduct proceedings in a
procedurally fair and reasonable manner might expose them to an order
of costs especially where there is malice.
For these reasons, I make the
following order;
(1) The decision of the 1st
respondent be and is hereby set aside;
(2) The respondents be and are
hereby ordered to serve applicant with the record of proceedings
within 14 days of the granting of this order;
(3) The applicant be and is
hereby ordered to file a notice of appeal and grounds thereof within
14 days of receipt of the record of proceedings;
(4) The convening of a board of
inquiry be and is hereby stayed until the determination of the appeal
by the 1st
respondent;
(5) Each party to bear its own
costs.
Sengweni Legal Practice, applicant's legal practitioners
Prosecutor General's Office, respondents' legal
practitioners
