Urgent Chamber Application

CHAREWA J: This matter was set down on 22 June 2017 as an urgent chamber application. The applicant sought stay of his detention pursuant to disciplinary proceedings in accordance with the Police Act [Chapter 11:10], pending finalisation of his application for review, by the High Court, of the proceedings before a single trial officer.

The judge declined to hear the matter citing conflicting High Court judgments on matters arising out of police disciplinary proceedings. He thus directed the parties to agree on a statement of agreed facts and contentious points of law for a two judge panel to render an authoritative decision regarding this Court's powers over police disciplinary processes.

Facts

The applicant was found guilty, by a single trial officer, of accepting or considering accepting a bribe in connection with his position or duties as a member contrary to paragraph 27 of the Schedule to the Police Act [Chapter 11:10]. He was sentenced to 5 days detention in the detention barracks. He appealed to the Commissioner General of Police in terms of section 34(1) of the Police Act. His appeal was dismissed and he was notified to start serving his detention. He therefore filed an application for the High Court to review and set aside the decision of the Single Trial Officer.

The respondents opposed the application.

Pending such review, the applicant filed this urgent chamber application to stay his detention. 

Background

The High Court has been inundated with applications seeking to review, or appeal against, the decisions of single trial officers or the Commissioner General of Police (the Commissioner General) after he has exercised his appellate power over decisions of single trial officers in terms of the Police Act. These applications have often been accompanied with applications seeking to stay necessary administrative procedures, either in pursuance of police disciplinary processes or the ordinary management function of the Commissioner General of Police, pending such review and/or appeal.

Issues for determination

In view of conflicting jurisprudence emanating from the High Court with regards to numerous matters of the same ilk, in circumstances where the Supreme Court has not yet had occasion to pronounce itself on these issues, the parties referred the following issues for determination by a two judge panel:

1. Whether or not there is a review that lies to the High Court against the decision of the single officer after appeal to the Commissioner General of Police?

Consequential issues flowing from the main issue, in my view encompass the following:

(i) Whether or not a review lies against the decision of the Commissioner General of Police?

(ii) Whether or not when the applicant files a review application against the decision of the Commissioner General of Police, the determination to detain a member by the Commissioner General of Police should be stayed pending the outcome of the review process?

(iii) Whether or not a Board of Suitability should be stayed pending review of the decision of the Commissioner General of Police?

2. Whether or not there is right of appeal to the High Court against the decisions of the single officer in Police disciplinary matters?

3. Whether or not an appeal lies against the decision of the Commissioner General of Police?

4. Whether or not when the applicant files an appeal against the decision of the Commissioner General of Police, the determination to detain a member by the Commissioner General of Police should be stayed pending the outcome of the appeal?

5. Whether the determination to detain a member by the Commissioner General of Police shall be automatically stayed pending the outcome of appeal proceedings?

6. Whether or not a Board of Suitability should be stayed pending appeal against the decision of the Commissioner General of Police?

7. Whether or not dual prosecution is allowed in terms of the Police Act on the same allegations in view of section 278 of the Criminal Law (Codification and Reform) Act and section 70(1) (m) of the Constitution?

8. Whether or not a member who has a pending criminal case is entitled to full terminal benefits before the finalisation of the criminal case?

The court notes that some of these issues do not flow from the facts, and, ordinarily, would not have been subject of this judgment. However, for the reason that Mr Mugiya and the Attorney General's office are the legal counsel primarily responsible for bringing before the High Court and arguing on matters emanating from police disciplinary proceedings; and have requested the court's decision on all these issues, for the avoidance of further jurisprudential conflict, this judgment will thus address all the issues which I have listed above and which the parties have argued before this court.

Further, I believe that it is only proper to deal with all the issues that have been argued before the court in order to close the door on the opportunity to forum shop which has been created by the divergent decisions handed down thus far.

The parties' omnibus submissions:

(a) Applicant's submissions

The applicant submits that in terms of section 70(5)(a) and (b) and section 171(1)(b) of the Constitution, the High Court has jurisdiction to entertain appeals from and carry out reviews of decisions of subordinate courts. Resultantly, any person is entitled to approach the High Court on appeal from a lower court.

As regards reviews, the High Court has inherent jurisdiction to entertain any application for review in terms of section 27(1) of the High Court Act [Cap.7:06]. Further, applicant submits, it can be inferred that the Police Act [Chapter 11:10], being silent on these issues, does not bar a member from so appealing from or seeking a review of the decision of the Commissioner General. Thus, any member is entitled to approach the High Court on appeal or to seek a review of the decision of the single trial officer or the Commissioner General.¹ In addition, applicant submits that it is trite that any appeal or review automatically stays the decision being appealed against² or upon which review is sought³ as “generally, all litigants are expected to await the finalisation of a matter before the court.”

Further, applicant submits that, given that the Constitution, in section 193, clothes disciplinary tribunals with the same criminal jurisdiction as the Constitutional Court, the Supreme Court, the High Court and the Magistrates Court, it could not have been the intention of the legislature to subject members of the disciplined forces to dual prosecution on the same standard of proof beyond a reasonable doubt. This is particularly so, applicant argues, because conviction allows for imprisonment for a term with no limitation. As a result, the Commissioner General crafted Standing Orders, section 45.3 of which limits the jurisdiction conferred in section 34 of the Police Act, to try only those members who would not have been charged with a criminal offence, as members charged with criminal offences must be dealt with in accordance with the Criminal Procedure and Evidence Act, [Chapter 59].

These Standing Orders, applicant avers, define criminal offences as any offence in terms of common law or any enactment other than the Police Act. Where an offence under the Police Act might also be an offence under the common law, therefore, the docket will be sent to the Attorney General to decide the forum for trial. Further, applicant submits that section 70(1)(m) of the Constitution does not allow for a person to be tried for an offence for which they have been pardoned, acquitted or convicted on the merits. In that respect, applicant submits, section 278 of the Criminal Law (Codification and Reform) Act does not apply to members of the police force as it conflicts with the Constitution and the specific provisions of the Police Act.

In any case, applicant avers, the court has already pronounced that disciplinary processes should be stayed where a member has been tried in the Magistrates Court.⁴

Finally, the applicant submits that administrative processes like Boards of Suitability should be stayed pending the outcome of any appeal or review, otherwise the outcome of the appeal or review would be rendered a brutum fulmen, resulting in irreparable harm should a member be dismissed from employment as an outcome of those administrative processes. Proceeding with administrative processes which are based on allegations and convictions which are under challenge, he avers, would in fact amount to contempt or disrespect of court process.⁵

(b) Respondents' submissions

On their part, with regard to the issue of whether or not a member of the police force suffers double jeopardy should he face both disciplinary and criminal prosecution, the respondents submit that the Constitution, in section 193, permits for the establishment of courts to deal with disciplinary matters and accords those courts the jurisdiction to deal with criminal matters in a disciplinary context. Therefore, the Police Standing Orders which the applicant relies on as limiting the scope of the Police Act are contrary to the provisions of the Act, and being subsidiary legislation, are therefore invalid to the extent of such conflict. In particular, respondents argue that section 34(9) of the Police Act clearly provides that no member suffers double jeopardy when he faces disciplinary processes as conviction for contravening the Police Act shall not be regarded as conviction under any other law. Besides, respondents further argue, the level of proof on disciplinary matters differs from criminal matters, and so do the levels of punishment, even if the same conduct by a member may give rise to both disciplinary and criminal charges. This is amplified by the provisions of section 278 of the Criminal Code which provides for a distinction between acquittals in disciplinary and criminal matters. Therefore, respondents submit, there is no dual prosecution as prohibited by section 70(1)(m) of the Constitution.

Further, respondents submit that while the High Court has original jurisdiction over all civil and criminal matters, and while each person is entitled to appeal against the decision of a lower court, the High Court's appellate jurisdiction is limited to the extent that it is conferred by statute. And, in this case, the relevant statute, the Police Act, does not clothe the High Court with appellate power over decisions of single trial officers. Such appellate power is reserved for the Commissioner General in terms of section 34(7) of the Police Act.

With regard to reviews, the respondents submit that the proceedings before the single trial officer are subject to automatic review by the Commissioner General in accordance with section 34(3) of the Police Act. However, since section 26 of the High Court Act gives the court power to review all and any proceedings and decisions of lower courts, tribunals and administrative authorities, it is quite proper for a member to seek review of either the decision of the single trial officer, or the decision of the Commissioner General (exercising his appellate or review power over decisions of single trial officers) or both, in terms of the Court's review powers as long as such review is in accordance with the High Court Rules.

The only limitation, according to respondents, is that section 34 of the Police Act obligates members to exhaust internal remedies before approaching the High Court on review.

Thus, respondents submit, where a litigant has appealed to the Commissioner General against the decision of the single trial officer, the review may be of either the decision of the single trial officer or the Commissioner General.

As for whether or not administrative proceedings must be stayed pending finalization of appeal or review, respondents submit that, that is not necessary as administrative proceedings are divorced from disciplinary or criminal proceedings. This is because administrative processes normally relate to the statutory requirement to inquire as to the suitability of retention of a person in the force, or retaining a particular rank, salary or seniority. Moreover, the administration boards merely make recommendations which do not bind the Commissioner General, and do not have the effect of automatically discharging a member from the force. According to respondents, it makes no sense to automatically suspend the function of administrative boards of suitability pending review when, in general, the institution of a review process does not of itself, normally carry the same power. Therefore interdicting the Commissioner General from administering the force pending review merely serves to unnecessarily interfere with his management function.

With regard to appeals, respondents submit that since no appeal lies to the High Court against the decision of a single trial officer, suspension of administrative processes pending a non-existent right to appeal serves no useful purpose.

Finally, respondents submit that a member with a pending criminal case is not entitled to full terminal benefits pending the finalization of the criminal case as the determination of the criminal matter may affect the benefits payable.

The Law

The parties agreed that this, and other similar matters, are rights based cases, predicated on rights to administrative justice emanating from employment conditions. Thus, they involve the right to review of disciplinary processes, the right to appeal against disciplinary decisions, the right to stay of sentence and general stay of other administrative proceedings pending determination of review or appeal, as well as the right to freedom from dual prosecution.

It seems to me clear therefore that, in addition to the provisions of the Bill of Rights in our Constitution, given that Zimbabwe is signatory to African and international human rights instruments, the starting point governing the disposition of this matter is that basic principles of human rights law, including principles accepted in international human rights jurisprudence, are applicable.

(a) Applicable principles in international human rights law

In that regard, it is an accepted principle of human rights law that it is not every interference with a person's rights that must receive a remedy. This is particularly so where the right is not an absolute right, but is subject to other competing interests: viz security, public interest⁶ or as in this case the need for a disciplined force to aspire to standards not normally expected of ordinary citizens. And in this respect, the Zimbabwean Constitution provides, in Chapter 4, Part 5 for limitations on the enjoyment of fundamental rights and freedoms enshrined therein.⁷

Consequently, a margin⁸ is accorded to authorities, to, where necessary, interfere with or place limitations on rights, to enable authorities to effectively function.

However, the United Nations Human Rights Committee has ruled that the law limiting or interfering with an individual's rights must be sufficiently precise to allow individuals to regulate their conduct.⁹

The African Commission on Human and Peoples' Rights has gone further to state that any limitation placed on rights must be founded on legitimate interests and be strictly proportionate with and absolutely necessary for the advantages to be obtained from such limitation. Therefore, the limitations should never have the consequence of making any right illusory.¹⁰

As a result, international human rights jurisprudence has distilled the following step-by-step test to establish whether someone's rights have been infringed and if so whether he should receive protection or a remedy:

1. Firstly, a court must enquire whether a right does exist. Does domestic or international law prescribe such a right? This is normally a matter of fact: viz, is there a law in existence which prescribes a particular right?

2. If the right does not exist, the matter ends there. However, if the right does exist the second step is to enquire whether there was an interference with the right. This is also a matter of factual evidence, viz: what actions were committed by an authority, and did they impact on a person's enjoyment of his existing rights? In other words, was the applicant prevented from enjoying the right that the law has prescribed for his benefit?

3. Should there be no interference with the right, then that will be the end of the matter. However, if an applicant was prevented from enjoying duly prescribed rights, then an inquiry must be made whether the interference was prescribed by law. Any interference with a right which is not sanctioned by law must of necessity result in a remedy accorded to the applicant against such interference. In assessing whether the interference was prescribed by law, regard must be had to the accessibility of the law sanctioning such interference and its foreseeability as well as the quality of the law, i.e. whether it is compatible with Constitutional and/or treaty obligations.¹¹

4. Where the interference was not prescribed by law, then the applicant is entitled to a remedy. On the other hand, where the interference was sanctioned by law, the next step is to enquire whether the interference pursues a legitimate aim. That the interference is sanctioned by law is not enough justification unless the objective of the interference is legitimate or the interference is within legitimate expectations i.e. was there sufficient basis in the domestic law?¹²

5. If the objective of the interference is not legitimate, an applicant must be accorded relief. However, even where the objective of the interference was legitimate, it must be necessary in a democratic society for it to pass muster. The word “necessary” has been interpreted NOT to be synonymous with “indispensable”, or to be as flexible as “desirable”, “useful”, or “reasonable”, but to denote whether there is a pressing social need. The question a court must address is therefore whether there are relevant and sufficient reasons for the interference, and, if so, whether the interference was proportional as between the interests of the individual and his institution or society at large? ¹³

Where the interference was in the general interest, it must not be manifestly without reasonable foundation. ¹⁴

6. Ultimately, the authorities should be accorded a margin of appreciation to protect other persons' rights and be able to manage or carry out their executive function. The European Court of Human Rights has affirmed that the doctrine of margin of appreciation is a useful and convenient tool to allow authorities to govern, manage or make executive decisions. However, its scope is not identical in every case, but varies according to context depending on the right in issue, its importance for the individual and the nature of activities concerned. ¹⁵ At the end of the day, there must be a fair balance or reasonable relation of proportionality to avoid an individual excessive burden which would amount to too wide a margin accorded to the authorities.¹⁶

The sum total of the test is that, as a general rule, an individual must have peaceful and unfettered enjoyment of his lawful rights. Any deprivation of such enjoyment must be both lawful and on good faith otherwise the individual is entitled to a remedy or compensation.¹⁷

In the case of Layla Sahin (supra), a university in Turkey had banned the wearing of head scarfs by Moslem women. The European Court of Human Rights, in applying the test elucidated above, held that there was interference with the rights of Moslem women, which interference was prescribed by law and pursued the legitimate aim of promoting secularism in the university and was thus justified. Further, since the ban did not bar Moslem women from wearing head scarfs outside the confines of the university, it was proportionate to the aims pursued and was thus necessary in a democratic society. Similarly, in the De Palle (supra) case, where a couple had built a house on a prohibited coastal area, the court held that there was no ¹⁸

The African Court on Human and Peoples' Rights has weighed in with the suggestion that the right to an available, effective and sufficient remedy which is not unduly prolonged goes hand in hand with the right to a reasoned judgment which is inherent in the right to a fair trial. ¹⁹ It goes without saying that, without a fair trial, even the right to any appeal becomes illusory and ineffectual.

Secondly, that a local remedy is inconvenient, unattractive or does not produce a favourable result is not enough to absolve one from pursuing such remedies, nor are doubts about the effectiveness of local remedies or prospects of financial costs involved.²⁰ It is incumbent upon a complainant to take or attempt to take necessary steps to exhaust local remedies. According to the European Court of Human Rights, even if an applicant has reason to believe that available local remedies and possible appeals will be ineffective, he should still seek them to allow local or domestic courts and/or tribunals and authorities the opportunity to develop existing procedures and rights by way of interpretation.²¹ This is particularly important for the maintenance of public order in a democratic society, and in casu, there is no doubt that indiscipline in the police force would negatively impact on public order.

(b) Relevant domestic law

(i) The Constitution

Now, in our case, vide the matter at hand and similar matters, the principle of human rights law that it is not every interference with a person's rights that must receive a remedy, particularly where the right is not an absolute right, is captured, in Chapter 4, Part 5 of our Constitution, which places limitations on the enjoyment of fundamental rights and freedoms enshrined therein.²² And, in further consonance with the international principles discussed above, especially, that any rights must be provided for by the law, the Constitution, in section 70, provides a broad brush stroke of the rights due to persons accused of any offence. In particular, section 70(1)(m) provides that an accused person has the right “not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits;”

Further, section 70(5) provides that;

“(5) Any person who has been tried and convicted of an offence has the right, subject to reasonable restrictions that may be prescribed by law, to —

(a) have the case reviewed by a higher court; or

(b) appeal to a higher court against the conviction and sentence.”

And, zeroing in on the principle that any limitations to rights must also be prescribed by law, section 171(1)(d) of the Constitution provides that the High Court has such appellate jurisdiction as may be conferred on it by Act of Parliament. Consequently, deriving from this constitutional framework, section 33(2) of the Police Act gives the right to appeal to the High Court only to members convicted of a disciplinary offence by a board of officers, not by a single trial officer. It is thus clear that an appeal from a single trial officer only lies to the Commissioner General of Police, and not to the High Court. It seems to me therefore that section 70 provides the broad framework which protects an individual from double jeopardy and upon which the right to review or appeal is founded.

Section 171, on the other hand, provides for the extent and limits of the power of the High Court in dealing with the broad rights created in section 70. With particular reference to the matter in casu, section 171(1)(b) and (d) gives the High Court power to “…. to supervise magistrates courts and other subordinate courts and to review their decisions;” and to sit as an appellate court as mandated by an Act of Parliament.

Thus, section 171(1)(b) gives unlimited power to the High Court to review decisions of subordinate courts, while section 171(1)(d) limits its appellate power to the extent that an Act of Parliament provides.

Further, in section 193(b), the Constitution allows disciplinary tribunals to deal with criminal matters, but only for purposes of enforcement or maintenance of discipline, as it provides that the following may exercise or be given criminal jurisdiction:

“… a court or tribunal that deals with cases under a disciplinary law, to the extent that the jurisdiction is necessary for the enforcement of discipline (my emphasis) in the disciplined force concerned.”

The question that requires to be resolved in interpreting section 193(b) therefore is whether disciplinary processes, which aim to maintain and enforce discipline in the Police Force, are interchangeable with the ordinary criminal proceedings instituted by the State for the purpose of maintenance of law and order, or are the two parallel processes with different objectives and which are not meant to meet?

The test that has been developed in international law has been applied in our jurisdiction to one extent or other in the various matters that have been decided by the superior courts and is thus part of our case law.²³ Such application is predicated on the provisions of section 3(1)(c) of the Constitution which provides that fundamental human rights and freedoms are part of the founding principles and values of the State of Zimbabwe; and Chapter 4, Part 1-4 which codifies and domesticates, within the Zimbabwean context, fundamental human rights as enshrined in international instruments, including the duties and obligations relating to the enforcement of such rights.

(ii) The High Court Act

With regard to review, the High Court Act provides in Part V for review of decisions of subordinate courts and administrative authorities in line with the constitutional provisions. In that respect, section 26 echoes section 171(1)(b) of the Constitution, vesting the High Court, as it does, with extensive power to exercise its review function, while section 27 prescribes the grounds upon which the High Court may exercise such power. Sections 28 and 29 circumscribe the powers of the High Court on review. Sections 30 and 34 rhyme with section 171(d) of the Constitution in that the High Court will exercise appellate jurisdiction where an enactment has so provided.

(iii) The Police Act

Now, with respect to members of the police force, Part V of the Police Act provides in section 29 that any member who “…. contravenes any provision of this Act or an order made thereunder, or who commits an offence specified in the Schedule, shall be guilty of an offence and liable to a fine not exceeding level ten or to imprisonment for a period not exceeding five years or to both such fine and such imprisonment.”

The Act goes on, in section 29A, to give jurisdiction to try any contraventions in terms of section 29 to the High Court, Magistrates Court, Board of Officers and a single trial officer. Further, it prescribes the limits of such jurisdiction, starting with the single trial officer dealing with minor infractions which punishment does not exceed 14 days imprisonment or a level two fine or both, with progressively more serious infractions being referred to the higher courts.

Section 31 provides for automatic review by the High Court of decisions of the Board of Officers where a sentence in excess of a level three fine or one month imprisonment is meted out, while section 33 grants appellate jurisdiction, to the High Court, against the decisions of the Board of Officers. A member arraigned before a Board of Officers has the option to elect to be tried by a magistrate (section 31), but no such right is granted to a member appearing before a single trial officer.

Section 34(3) provides for automatic review by the Commissioner General of all decisions of single trial officers, with power, in the interests of justice, to confirm, alter, quash remit for fresh trial or with other instructions any such decision. Where the Commissioner General is of the view that the sentence was inadequate, the matter may be referred to a judge of the High Court to deal with as he deems fit. Further, any member may appeal to the Commissioner General against the decision of the single trial officer - section 34(7). However, unless an appeal is noted, the decision of the single trial officer shall be executed forthwith - section 34(8).

Finally, the decision of a single trial officer shall not be regarded as a conviction for purposes of any other law - section 34(9).²⁴

The import of this is to separate purely disciplinary proceedings emanating from single trial officers from criminal matters which consequences culminate in a criminal record.

Section 39 empowers recovery of any disciplinary penalties through stoppages of pay, while sections 40 and 41 allow the long arm of the law to reach a member who may have ceased to be a member not to escape the consequences of his infractions. Sections 48, 49 and 50 provides for purely administrative and managerial functions, to permit the Commissioner General to inquire into the suitability of a member to remain in the force, retain his rank, salary or seniority, etc. and these processes may be quite independent of any disciplinary processes. And unlike disciplinary processes, appeals against these administrative and management decisions lie to the Police Service Commission (section 51).

In the instant case, the international principle of exhaustion of local remedies has been captured in such a localised law as the Police Act, Police regulations and Standing Orders made thereunder requiring members of the police to undertake or refrain from undertaking, certain acts on pain of facing disciplinary or administrative processes peculiar to the police force.

(iv) The Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code)

In line with section 193 of the Constitution, section 278 of the Criminal Code provides for the relationship between criminal and disciplinary proceedings as follows:

“(1) In this section 'disciplinary proceedings' means any proceedings for misconduct or breach of discipline against a public officer or member of a disciplined force or a statutory professional body, or against any other person for the discipline of whom provision is made by or under any enactment; 'disciplined force' means -?

(a) ……… ; or

(b) the Police Force; or

(c) ………………….; or

(d) ………….. ……………………….

(2) A conviction or acquittal in respect of any crime shall not bar …….. disciplinary proceedings in relation to any conduct constituting the crime at the instance of any person who has suffered loss or injury in consequence of the conduct or at the instance of the relevant disciplinary authority, as the case may be. (3) ………… disciplinary proceedings in relation to any conduct that constitutes a crime may, without prejudice to the prosecution of any criminal proceedings in respect of the same conduct, be instituted at any time before or after the commencement of such criminal proceedings.”

Legislation therefore has taken care to ensure the attainment of discipline in the “disciplined forces” outside the criminal processes.

(v) Interpretation of Statutes

With respect to the effect and interpretation of subsidiary legislation, the law is trite: anything contained in subsidiary legislation that is in conflict with or contradicts the enabling Act shall be void and of no effect. Consequently, any provision in the Police Standing Orders, including the current section 45.3 thereof, which is inconsistent with the Police Act is ultra vires and thus a null and void.

(vi) Consequence of noting an appeal or applying for review

Finally, the consequences of noting an appeal or applying for review are also trite. It is an established and general principle that once an appeal is noted; all proceedings are automatically stayed pending the determination of the appeal, unless leave is obtained to proceed with any consequence of the decision appealed against.

With regard to reviews, the converse is true: unless an order of stay is granted on good cause shown, the consequences of a decision are not automatically stayed pending review.

ANALYSIS

(i) Whether or not there is a review that lies to the High Court against the decision of the single officer after appeal to the Commissioner General of Police;

The respondents have suggested that because the High Court has wide powers of review, even where a complainant appeals to the Commissioner General, such complainant is entitled to come back to the High Court to seek review of the decision of the single trial officer should he be unhappy, with the decision of the Commissioner General on appeal.

Certainly, I agree that the wide powers of the High Court, as prescribed by law, seem to allow a complainant to seek a review of the decision of a single trial officer at the High Court. However, this right to approach the High Court directly remains, in my view, subject to the principle of exhaustion of local remedies. In this case these local remedies include the Commissioner General's automatic review of all decisions of single trial officers, and the right to appeal the decisions of single trial officers to the Commissioner General.

It defies logic, that in creating the right to approach the High Court, the legislature intended a party to willy nilly forego elaborately provided local remedies and approach the High Court in circumstances where there is no challenge as to the accessibility and availability of those local remedies. It could not have possibly been the intention of the legislature that a party should ignore the principle that a local remedy which is available, effective, sufficient and not unduly prolonged should be overlooked perhaps because it is unattractive, inconvenient or does not produce a favourable result, and in the process create an onerous burden on the High Court.

Further, despite respondents' concession in that regard, I cannot agree that where a complainant has opted to appeal to the Commissioner General, against the decision of the single trial officer, he can bring the matter back again to seek a review of such a decision where his appeal is unsuccessful. The absurdity of such a course is best illustrated by the argument that a person who has appealed to the Magistrate Court against the decision of a Community Court Presiding Officer can, upon losing the appeal, subsequently approach the High Court to review the decision of the Community Court Presiding Officer. Such a procedure is not provided by law.

In casu, the logical procedure which is provided by law is to seek a review of the decision of the Commissioner General which he will have rendered after appeal from the single trial officer. Such a limitation to the right of review of decisions of single trial officers is sanctioned by a principle of law of general application: that there must be an end to litigation. This principle is in accordance with the Constitution in so far as it allows for smooth, quick and effective administration of justice, which is a legitimate aim necessary in a democratic society. It is certainly not in the interests of the administration of justice to allow for a back and forth process that has the effect of clogging the system and creating blockages to effective justice delivery.

In any event, a complainant will not be without a remedy should he not be able to seek a review of a single trial officer's proceedings after appealing to the Commissioner General as a review is still available as against the decision of the Commissioner General. And in reviewing the decision of the Commissioner General, of necessity, the High Court judge will have access to the decision of the single trial officer to decide whether or not the Commissioner General arrived at a proper decision. Therefore the right to review, in the circumstances, is legitimately interfered with in accordance with a principle of law. Such interference is necessary for the good administration of justice in a democratic society and is proportional as applicant is not left without a remedy.

(ii) Whether or not a review lies against the decision of the Commissioner General of Police?

A consequential issue arising from applicant's right of review of the decision of a single trial officer, is his right to a review of the appellate decision of the Commissioner General.

In casu, the applicant unsuccessfully appealed to the Commissioner General and then turned round and sought a review of the decision of the single trial officer. The respondents having conceded, improperly in my view, that a review of the single officer's decision was appropriate, it is necessary to deal with whether the review ought not to have lied against the decision of the Commissioner General. Applying the law and the test distilled from rights jurisprudence as discussed above, it seems to me clear that the right of review against the decision of the Commissioner General does exist and is prescribed by law. Section 171(1)(b) of the Constitution as read with section 26 of the High Court Act clothes the High Court with unlimited powers of review. On the circumstances of this case, the complainant was not prevented from enjoying this right of review. The difficulty was that in HC5385/17, the applicant sought to review the decision of the single trial officer in circumstances where he had appealed such decision to the Commissioner General of Police and was awaiting the outcome of the appeal. Certainly, this conduct cannot be acceptable as it amounts to double dipping. It is trite that a party is not entitled to reprobate and approbate. He must select the option which best protects his interests and pursue it. The applicant ought to have decided whether he wanted to seek a review, by the High Court, of the decision of the single trial officer or to appeal that decision to the Commissioner General and pursued the one option to its logical conclusion.

And since he had opted to appeal, the appellant ought to have abided with the principle of exhaustion of local remedies and awaited the decision on appeal before seeking a review of that decision. It cannot be proper for the High Court to review the proceedings of a single trial officer after the member has exercised his right to appeal to the Commissioner General and has not withdrawn or abandoned such appeal. In the circumstances, the applicant's right to administrative justice is adequately protected and it is not necessary in this respect to answer the rest of the questions in the test.

(iii) Whether or not when the applicant files either a review application against the decision of the Commissioner General of Police, the determination to detain a member by the Commissioner General of Police should be stayed pending the outcome of the review?

No law exists creating a right to stay of proceedings pending review. The normal consequence of an application for review is not to stay any proceedings pending the determination on review but that a court will only stay proceedings on good cause shown. Therefore, in the absence of a specific provision in the Police Act to the contrary, the determination by the Commissioner General to detain a member shall not be automatically stayed pending the outcome of any review processes. Consequently, here too, the applicant fails at the first hurdle.

(iv) Whether or not a Board of Suitability should be stayed pending review against the decision of the Commissioner General of Police?

The question whether or not any proceedings (disciplinary or administrative) ought to be automatically stayed pending review has already been dealt with under sub-heading (iii) above: no law provides for any right to stay of anything pending review. Any party requiring stay will have to apply, subject to the principle of exhaustion of local remedies, and show good cause why that should be granted. A judge is at liberty to decide, on the merits and the circumstances of each case whether, having regard to the implications for good and effective management, to interfere with the normal administrative function of an authority. After all, it is not the function of the court to make an institution ungovernable by excessive and intrusive incursion into matters under the purview of administrative authorities. A Board of Suitability is a management tool designed to assist the Commissioner General to manage the service in accordance with necessary discipline. It therefore facilitates the removal of medically unfit, lazy, incompetent or unqualified members from the force, including those found to be unsuitable under disciplinary processes. Any person aggrieved by the outcome of a Board of Suitability is entitled to appeal to the Police Service Commission in terms of section 51, and in those circumstances, the outcome of the Board is stayed pending such appeal. However, to seek to stop the convening of a Board of Suitability is tantamount to interfering with the local remedies available to a member consequent upon the management and administrative function of the Commissioner General.

The courts have always been loath to substitute themselves for administrative authorities or arrogate to themselves management functions of authorities mandated with the power to run institutions, preferring to maintain their role of judicially supervising the manner in which authorities conduct themselves.

Specifically, the courts have refrained from interfering with management processes and have established clear principles as to when to do so. ²⁵ This is a position which is not peculiar to this jurisdiction only.²⁶

In my view, the case law thus supports the proposition that the courts expect administrative authorities to carry out their normal function, legally, rationally, properly and justifiably and only interfere where such function has been carried out in a biased and/or prejudicial manner in circumstances where the court is in as good a position as the authority to substitute its decision. Prior to the authority carrying out its function, the courts will only interfere where there is likely to be undue delay or the authority will reach a foregone conclusion. This, in our view, is also in line with the doctrine of margin of appreciation. Hence courts have generally restricted themselves to reviewing the manner in which administrative/management processes have been conducted, rather than stopping the processes altogether.

I see no reason to depart from this time honoured and reasonable stance, for if it is the function of the court to scrutinize the decisions of an administrator,²⁷ it makes no sense for the court to stop such administrator from making those decisions. I therefore find that, the authorities quoted by applicant to support the proposition that courts should stop Boards of Suitability from being conducted in order not to render orders of the court less effective are misplaced. A Board of Suitability will not render the subsequent order of the court less effective, as the proceedings of such a Board remains subject to scrutiny by the court for its legality, procedural propriety, justification and rationale.

(v) Whether or not there is right of appeal to the High Court against the decisions of the single officer in Police disciplinary matters

The law does not grant jurisdiction to the High Court to hear appeals from decisions of the single trial officers. Section 34(7) of the Police Act only provides for the appellate jurisdiction of the Commissioner General from decisions of single trial officers. Applicant argues that, because the right of appeal to the High Court is not specifically prohibited, in circumstances where section 70(5) of the Constitution provides that any person who has been convicted of an offence has the right to appeal to a higher court, this means that police members convicted by single trial officers are entitled to appeal to the High Court in terms of section 70(5). For this proposition, he relied on some decisions of this court which found the Police Act to be inconsistent with section 70(5) of the Constitution.²⁸

It is my view that applicant's position is a misinterpretation and misapplication of the law.

Firstly, reliance on Rateiwa v Kambuzuma²⁹ for his proposition is misplaced. That case is distinguishable because GOWORA J (as she then was), was speaking to the inherent jurisdiction of the High Court as a court of first instance, not to its appellate jurisdiction, which is not inherent.

Secondly, section 70(5) of the Constitution does not provide for the manner in which to bring an appeal to the High Court, nor does it provide for the power of the High Court to deal with any appeal. It only creates a general right of appeal and provides that the right to appeal provided therein is subject to any limitations prescribed by law.

Section 171(1)(d) of the Constitution goes on to explain and prescribe those limits to the right enshrined in section 70(5) by providing that the appellate jurisdiction of the High Court must be prescribed by an Act of Parliament. Thus section 70 and section 171 of the Constitution are not mutually exclusive, but complement each other. Section 70 provides the broad framework upon which the right to appeal is founded, while section 171 distils the broad rights in section 70 to only those instances where an Act of Parliament then ascribes specific appellate jurisdiction.

Nor is Sadengu (supra) helpful to applicant's cause as section 70(5) merely creates a right but does not prescribe how that right is to be accessed. Section 171 does so, by providing that an Act of Parliament will delineate the appellate jurisdiction of the High Court. As a consequence, the Legislature, in enacting the Police Act could have prescribed the appellate jurisdiction of the High Court for police disciplinary matters emanating from single trial officers, but deliberately refrained from doing so. While the High Court Act does prescribe for the appellate jurisdiction of the court in section 30 and section 34, it goes on to limit such jurisdiction to the same extent as section 171(1)(d) of the Constitution: that such appellate jurisdiction will only be exercised as provided for by an enactment, or by the High Court Act itself.

Therefore, the provisions with regard to the appellate jurisdiction of the High Court vis-à-vis trials from single trial officers must be read in pyramidal fashion, starting from the wide base: section 70, as limited by section 171 of the Constitution, and further limited by section 30 and section 34 of the High Court Act, and finally, section 34(7) of the Police Act.

Applying the test elucidated at page 9-11 of this judgment therefore, while the right to appeal exists in general terms as provided for in the Constitution, the complainant in this case is prevented from enjoying this right. Such interference is prescribed by law, viz: section 171 of the Constitution, section 30 and section 34 of the High Court Act and section 34(7) of the Police Act.

Such interference is compatible with constitutional and even international treaty obligations since the right is not absolute but is subject to any limitations prescribed by law.

In order to test whether the legal prescription for the interference is appropriate, it then becomes necessary to inquire whether such interference pursues a legitimate aim. From the concession made by Mr Mugiya, single officer trials number in their thousands. He alone deals with at least 1,200 per year. He conceded that, where appeals to be allowed to the High Court from these single officer trials, the burden of the High Court would be untenable and interfere with swift and efficient dispensation of justice. He also conceded that the jurisdiction of single trial officers is limited to very minor and simple infractions which call for fast and streamlined procedures the consequence of which are minor punishments not exceeding level 2 fines or 14 days imprisonment. Given that these disciplinary convictions and punishments do not count for purposes of any other law,³⁰ it is obvious therefore that limiting the right of appeal from single officer trials is both desirable and legitimate and is in the best interests of effective dispensation of justice.

The sheer numbers of the trials make it necessary in a democratic society to expeditiously deal with and finalise these minor matters, leaving the High Court to deal with weightier cases. In addition, the fact that there is a right of automatic review by, and appeal to, the Commissioner General, in circumstances where the member may also opt to seek direct review by the High Court, means that there is adequate proportionality between the interests of the member and the wider interests of justice. Further, in view of the fact that these single trial officer processes are aimed at promoting efficient and sound administration of a disciplined police force, it is not unreasonable to allow the authorities the margin of appreciation to enable the Commissioner General to manage his police force, more so given that there is no individual excessive burden militating against the rights of the members. Consequently, I find that the right to appeal is not violated as direct appeals from the single trial officer to the High Court would militate against an end to litigation. Further, the sheer volume of single officer trials would completely swamp the High Court were appeals therefrom to be referred to the Court as a matter of course. A filtering system as is currently in place is therefore necessarily desirable and legitimate in a democratic society.

(vi) Whether or not an appeal lies against the decision of the Commissioner General of Police?

The Police Act does not provide for any right of appeal to the High Court against the decision of the Commissioner General, either sitting on review or appeal, of decisions of a single trial officer, or discharging his administrative function as the executive authority for the police force. Given the specific provisions of section 171 of the Constitution and section 30 and section 34 of the High Court Act, that any appellate jurisdiction must be specifically enacted, I cannot agree with Mr Mugiya that the absence of a specific bar against such appellate jurisdiction is tantamount to a right of appeal.

Rights are not endowed by default but must be specifically created. Therefore any claim that there was an interference with the right to appeal fails at the first hurdle: the right does not exist as there is no law creating any appellate jurisdiction from decisions of the Commissioner General in disciplinary matters. Thus, following the logical reasoning on the preceding sub-heading, the decision of the Commissioner General is final, and can only be set aside by the High Court on review.

I will not delve into whether the administrative decisions of the Commissioner General are appealable in terms of Administrative Law as that is not a question under the purview of the court in casu.

Suffice it to say that section 51 of the Police Act does provide that appeals from the administrative decisions of the Commissioner General lie to the Police Service Commission, not to the High Court.

(vii) Whether or not when the applicant files an appeal against the decision of the Commissioner General of Police, the determination to detain a member by the Commissioner General should be stayed pending the outcome of the appeal?

Having answered the question whether or not an appeal lies to the High Court against the decision of the Commissioner General in the negative, the question whether or not such appeal stays the determination to detain a member falls by the wayside.

However, and in any case, section 33(2) is clear that, were an appeal possible, the normal consequences thereof would be applicable: that is, stay of proceedings pending appeal.

(vii) Whether the determination to detain a member by the Commissioner General of Police shall be automatically stayed pending the outcome of appeal proceedings?

Section 33(1) of the Police Act endows the High Court with jurisdiction to entertain appeals against the decision of a Board of officers. It follows then that the right of appeal created in section 70 of Constitution is not interfered with. Such right carries with it the obligation to automatically stay proceedings once an appeal is noted. In this case, since neither the Police Act nor any other law limits the right to freedom from detention pending appeal, any subsequent determination by the Commissioner General to detain a member in terms of the decision of the Board of Officers must of necessity be automatically stayed in accordance with section 33(2) pending the outcome of the appeal. Where the determination to detain a member is made before the noting of appeal, such subsequent noting of appeal does not automatically suspend the determination to detain a member.

As is applicable in general law, where an accused is already serving his sentence at the time he appeals, he must apply for bail pending appeal as his sentence of imprisonment is not automatically suspended pending appeal. Logically, where a police member is already serving detention at the time of appeal, an application for stay of detention pending appeal would have to be made. Such a process is in line with the provisions of the Police Act which requires that, in the administration of disciplinary justice, as far as possible, the procedures applicable in terms of the general criminal justice system applicable in the courts of Zimbabwe should be followed.³¹

(ix) Whether or not a Board of Suitability should be stayed pending appeal against the decision of the Commissioner General of Police?

My opinion in this regard is no different to my position with regard to the question whether or not a Board of Suitability should be stayed pending review. A Board of Suitability is a management and administrative tool which use is quite independent of disciplinary proceedings. There is thus no automatic right to stay administrative functions of an authority pending appeal. Any application for stay pending appeal will have to be dealt with on its own merits, the court paying heed to the time honoured tradition of not substituting itself for an administrative authority, or unnecessarily interfering with the management function of such authority.

(x) Whether or not dual prosecution is allowed in terms of the Police Act on the same allegations in view of section 278 of the Criminal Law (Codification and Reform) Act and section 70(1) (m) of the Constitution?

Mr Mugiya argues that, once a member of the police has appeared in disciplinary proceedings, he should not be called upon to answer criminal charges in terms of the Criminal Code. Further, he submits that, if a member has been charged under the Criminal Code, he should not appear before disciplinary authorities on the same grounds as that amounts to dual prosecution, contrary to section 45.3 of the Police Standing Orders which specifically bar dual prosecution.

In particular, he argues that this provision, section 45.3, should take precedence over an Act of Parliament, specifically section 278 of the Criminal Code because section 278 is a provision of general application which does not override section 45.3 which is a provision of specific application. Further and in any case, he submits, for a member of the police to face both disciplinary and criminal prosecution would be inconsistent with the Constitution.

I cannot agree with Mr Mugiya.

Firstly, the interpretation of the section 45.3 of the Police Standing Orders and section 278 of the Criminal Code hinges on the interpretation of section 193(b) of the Constitution.

Mr Mugiya's proposition presupposes that in interpreting section 193(b), disciplinary processes are interchangeable with ordinary criminal proceedings. This cannot be correct. The processes have entirely different objectives and even outcomes. Disciplinary processes aim to maintain and enforce discipline in the Police Force, while criminal proceedings aim to maintain law and order. Further, while our jurisprudence has adopted a more flexible approach in that proof beyond a reasonable doubt may be required where the gravity of the disciplinary offence and strong criminal connotations exist³², nevertheless, disciplinary processes, as a general rule, require proof on a balance of probabilities³³. Even then, the courts have long recognised the difference between disciplinary and criminal processes to the extent that a conviction for a criminal offence is regarded as prima facie proof that a party had committed a disciplinary offence.³⁴

Certainly, it has not been the position in our case law or South African jurisprudence, that conviction on a criminal offence excuses one from disciplinary liability, or vice versa. Ultimately, disciplinary processes do not generate criminal records while criminal proceedings do. It is my view that it is precisely for that reason that section 193(b) of the Constitution carefully emphasises that any criminal jurisdiction given to a court or tribunal dealing with cases under disciplinary law, does so only to the extent necessary for the enforcement of discipline.

Therefore, the applicant's seeming suggestion that there is congruence between the disciplinary and criminal processes, which rules out one if the other is resorted to otherwise a police officer suffers double jeopardy, is misplaced and arises out of a misinterpretation of the law.

Secondly, applicant's proposition that subsidiary legislation overrides an Act of Parliament is, in my view, also incorrect. Rather, the law is that any subsidiary legislation which is inconsistent with an enactment is invalid to the extent of such inconsistency. Therefore, in so far as the Police Standing Orders are inconsistent with the Police Act, they are ultra vires and thus invalid.

The principle of provisions of specific application overriding provisions of general application, in my view, apply to legislation of the same level and force. Thus a provision of specific application in subsidiary legislation cannot override a provision of general application in an Act of Parliament. For these reasons, the specific provisions of the Police Standing Orders cannot override the general provisions of section 278 of the Criminal Code, let alone section 193(b) of the Constitution.

In any event, it seems to me that Mr Mugiya has misconstrued the tenor and meaning of section 45.3 of the Police Standing Orders which provide that:

“Any member charged with a criminal offence (my emphasis) shall not be tried by a Board of Officers or single officer, but shall be dealt with in accordance with the provisions of the Criminal Procedure and Evidence Act, [Chapter 59].”

The operative phrase is “charged with a criminal offence”.

A member charged with a disciplinary offence under the Police Act is not charged with a criminal offence under the Criminal Procedure and Evidence Act. This interpretation flows from section 193(b) of the Constitution where disciplinary tribunals are endowed with power to deal with criminal matters only for purposes of enforcement of discipline, and not for any other purpose. The constitutional dispensation in section 193 of the Constitution is then captured in section 278 of the Criminal Law (Codification) and Reform Act, which distils it further to provide that disciplinary proceedings for any conduct which amounts to a crime shall not be a bar to criminal prosecution, and vice versa. The Police Act captures this same theme by providing that any outcome of disciplinary processes shall not be construed as a conviction for criminal purposes.

Therefore, section 39(9) of the Police Act, section 278 of the Criminal Code and section 193 of the Constitution rhyme with each other, in creating a distinction and separation between disciplinary and criminal proceedings and the consequences thereof.

Thus, section 193 does not clothe disciplinary tribunals with the same criminal jurisdiction as the Constitutional Court, the Supreme Court, the High Court and the Magistrates' Court: disciplinary tribunals do not have power to try anyone with criminal offences in terms of the Criminal Code.

Ergo, there is no double jeopardy suffered by a member of the police force. As a member of the disciplined force, the applicant must be held to the disciplinary standards required for such a force in disciplinary proceedings, the outcome of which does not affect his status in terms of the general criminal law. Where he is to be charged in terms of the general criminal law, the Police Standing Orders provide that a member will be dealt with, not in terms of disciplinary law, but in terms of the Criminal Procedure and Evidence Act. That section 45.4 of the Police Standing Orders allows for an offence under the Police Act, which might also constitute an offence under the general law, to be referred to the Attorney General for a decision whether a member should be tried by a Magistrate under the Police Act is merely in line with section 29A, which permits disciplinary matters to be tried by the High Court, the Magistrates Court, Board of Officers or Single Officer depending on the gravity of the disciplinary offence in order to conform with the sentencing jurisdiction accorded to each.

That a disciplinary matter is referred to be tried in the Magistrates' Court or High Court does not automatically transform it into a criminal matter in terms of the general law. Rather, the Magistrates' Court or the High Court will in effect be sitting as disciplinary tribunals. That is why the law provides that such trials, particularly those by Magistrates, must be conducted in a police camp or at a police station.³⁵ Further, that section 35(1) of the Police Act requires trial officers to follow as near as possible the proceedings prescribed in criminal matters is, in my view, merely meant to promote good administration of justice. The effect is to protect anyone appearing under disciplinary proceedings from any prejudice that may follow improper conduct of disciplinary trials, rather than to convert disciplinary proceedings into criminal proceedings.

Double jeopardy assumes that a member is facing either the same criminal or disciplinary charge twice, which is certainly not acceptable. Consequently, the law has carefully delineated the processes, outcomes and purposes of disciplinary charges as opposed to criminal charges. Therefore it cannot be a correct interpretation that, section 70(1)(m) of the Constitution, in prohibiting subsequent prosecution for an offence for which one was pardoned, acquitted or convicted, bars disciplinary proceedings where a person has been prosecuted under general law or vice versa.

This position is bolstered by the definition in section 45.1 of the Police Standing Orders which defines a criminal offence as any offence under common law or statute other than an offence under the Police Act. As a result, I do not agree with Mr Mugiya that once a member is charged in police disciplinary matters for an offence which may also constitute a criminal offence, section 34 of the Police Act shall not apply. This is because the purpose of disciplinary and criminal proceedings is not the same: the first is to instil discipline and the second is to hold one accountable to society for observance of societal norms which govern the social construct.

My view is consistent with the specific provisions of section 34 which provides that an automatic review or appeal from the decision of the single trial officer lies to the Commissioner General rather than to the Magistrates Court, High Court or Supreme Court, as distinct from the process in criminal matters. It was thus never the intention of the legislature to intertwine disciplinary and criminal processes. It is for these very reasons that I cannot agree with the decision in Assistant Inspector Chibike v The Trial Officer³⁶ and other like matters, which adjudged disciplinary proceedings to be unlawful and barred them on the grounds that the member was facing criminal charges in the Magistrates' Court. Rather, it is my view that a member of the police, as a citizen of Zimbabwe, is not immune to the normal vicissitudes that every other citizen faces in terms of the Criminal Code, merely because he has been disciplined in terms of the powers conferred on the Commissioner General in section 8 of the Police Act to command, superintend and control the police service.

This position resonates more logically with the constitutional and legislative provisions. I therefore find that while the right to freedom from dual prosecution is guaranteed by the Constitution, the same Constitution, and enactments in terms thereof, place limitations to the enjoyment of that right. As a consequence, the law sanctions interference with that right in that prosecution for disciplinary matters in the disciplined forces is allowed to the extent that it does not affect the criminal liability of a member. Such a limitation pursues the legitimate aim of instilling and maintaining the discipline in a disciplined force, which is necessary in a democratic society. This is because an undisciplined force is a threat to society. The police authorities must therefore be accorded the margin of appreciation to protect society from an undisciplined force. The requirements for discipline are balanced with the need to ensure security for the citizenry and do not place an undue burden on individual police officers.

(xi) Whether or not a member who has a pending criminal case is entitled to full terminal benefits before the finalisation of the criminal case?

It is trite that terminal benefits are payable upon termination of employment.

In accordance with section 47 of the Police Act, pending trial, the Commissioner General is only entitled to suspend a member, and not terminate his employment. Further, section 48 provides that termination of employment is only a consequence of conviction. And in terms of section 39 of the Police Act, certain penalties consequent upon disciplinary proceedings are only recoverable by stoppages of pay.

It seems to me that in these circumstances a member is not entitled to payment of terminal benefits until the conditions in these provisions are fulfilled. However, where a member tenders his resignation, pending the finalisation of a disciplinary matter, section 44 entitles the Commissioner General to disentitle him to salary and allowances. Further section 41 provides that if a member ceases to be so before completion of his sentence, the sentence shall remain valid and binding.

I presume that would permit the Commissioner General of Police to withhold his terminal benefits to meet any penalties he may be obliged to pay. Therefore, while the right to terminal benefits is provided for by law, such right has also been limited, by law, in clearly defined circumstances which are reasonably necessary for the protection of the fiscus for the generality of the citizenry. The interests of the individual are thus properly balanced with the public interest in that no terminal benefits are withheld indefinitely and unjustifiably.

Findings

In conclusion, and following on from the above discourse, I summarise my findings with regard to the law pertaining to these issues as follows:

(a) A general review lies directly to the High Court against the decision of a single trial officer, only where a complainant opts out of appealing to or seeking a review by the Commissioner General of Police, and subject to the principle of exhaustion of local remedies.

(b) A review to the High Court generally lies against the decision of the Commissioner General of Police. 

(c) The determination to detain a member by the Commissioner General of Police shall not be automatically stayed pending the outcome of review proceedings in terms of paragraph (a) and (b) above.

(d) A Board of Suitability, being a management function of the Police authorities, shall not be automatically stayed pending review of the decision of the Commissioner General of Police.

(e) There is no right of appeal to the High Court against the decisions of the single officer in police disciplinary matters.

(f) There is no general right of appeal to the High Court against any decision of the Commissioner General of Police.

(g) The question whether a determination to detain a member by the Commissioner General of Police shall be automatically stayed pending the outcome of appeal against the decision of the Commissioner General of Police does not arise in accordance with the findings in paragraph (f) above.

(h) The determination to detain a member by the Commissioner General of Police, after the noting of an appeal, shall be automatically stayed pending the outcome of appeal made in terms of section 33 of the Police Act.

(i) A Board of Suitability, being a management function of the police authorities, shall not be automatically stayed pending appeal against the decision of the Commissioner General of Police.

(j) There is no double jeopardy, and dual prosecution is permissible in accordance with section 70(1)(m) of the Constitution, with respect to disciplinary proceedings in terms of the Police Act and prosecution in terms of the Criminal Law (Codification and Reform) Act.

(k) A member who has a pending criminal case is not entitled to full terminal benefits before the finalisation of the criminal case.

In casu, the applicant having elected to appeal to the Commissioner General of Police against the decision of the single trial officer, he cannot be allowed a second bite of the cherry, by now seeking a review at the High Court, of the decision of the single trial officer. The proper course should have been to seek a review of the decision of the Commissioner General in dismissing his appeal.

Ergo, the legitimate consequence of the dismissal of his appeal is that the Commissioner General is now free to order his detention. Applicant cannot now see seek to stay such detention as he has not questioned the decision of the Commissioner General. In the circumstances I find that his application cannot stand.

Who should pay costs and on what scale?

This being a matter which cried out for resolution of legal questions, both for the benefit of smooth management of the Police Force and maintenance of discipline as well as the better administration of justice, it is just and equitable that each party should bear its own costs. In particular, I believe that it would be unfair to penalise the applicant with an order for costs in circumstances where this case has a wider impact on the multiplicity of cases and divergence of judgments in similar matters.

CONSEQUENTLY, IT IS ORDERED THAT;

1. The urgent chamber application is dismissed.

2. There shall be no order as to costs.

CHIWESHE JP agrees

Mugiya and Macharaga Law Chambers, applicant's legal practitioners

Civil Division of the Attorney General's Office, respondents' legal practitioners

1. Rateiwa v Kambuzuma Housing Coop & Anor 2007 (1) ZLR (H) @ 314; Sadengu v Board President & Anor HH 712-15

2. Phiri & Ors v Industrial Steel Pipe (Pvt) Ltd 1996 (1) ZLR 45 @ 49D

3. Ndlovu v Officer Commanding Zimbabwe Republic Police & Ors HB 100-10

4. Assistant Inspector Chibike v The Trial Officer & Anor HC1832/15

5. Consolidated Fish Distributers (Pty) Ltd v Zive & Ors 1968 (2) SA 517 @ 523. See also R v Secretary of State for Home Department, ex parte Muboyayi (1991) 4 All ER 72 @81C

6. See African Commission on Human and Peoples' Rights v Republic of Kenya, Application 006/2012 @ p 37, paragraph 129, where, in dealing with the right to land for indigenous people, the African Court on Human and Peoples' Rights (AfCHPR) stated: “…,. Article 14 (of the African Charter on Human and Peoples' Rights) envisages the possibility where a right to property including land may be restricted provided that such restriction is in the public interest and is also necessary and proportional.”

7. See section 86-7 of the Constitution of Zimbabwe

8. Commonly referred to, in human rights jurisprudence, as the doctrine of “margin of appreciation”

9. See Human Rights Committee, Keun-Tae Kim v the Republic of Korea Communication No. 574/1994 CCPR/C/64/D/574/1994, 4 January 1999 @para 25

10. Jawara v Gambia 2000 AHRLR (ACHPR 2000). See also Lohe Issa Konate v Burkina Faso Application 004/2013 (AfCHPR)

11. See Kopp v Switzerland ECHR 13/1997/797/1000 at paragraph 55 where the court stated that:

“The expression “in accordance with the law”…, requires, firstly, that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.”

12. See Christian Education South Africa v Minister of Education CCT4/00, a decision of the Constitutional Court of South Africa where the Court was required to determine whether the interference, as prescribed by section 10 of the South African Schools Act 84/96, with the right to administer corporal punishment, did in fact violate the rights of parents of children in independent schools who had consented to the resort to corporal punishment in line with their religious convictions as guaranteed in the Constitution. The court held that the general aim of the South African Schools Act, to reduce violence in public and private spaces, to ensure the dignity, physical and emotional integrity of the child and security of children's persons from cruel, inhuman and degrading treatment far outweighed any right of the parents to be exempted from the prohibition to corporal punishment on the basis of their constitutional right to religious freedoms.

13. See Tristant Donoso v Panama, Series C, No. 193 (2009) where the Inter-American Court of Human Rights opined that in a democratic society, punitive power is exercised only to the extent that it is strictly necessary in order to safeguard essential legally protected interests from the more serious attacks which may impair them.

14. Christian Education South Africa (supra) Paragraphs 50-52. See also Lautsi and Others v Italy ECHR Application 30814/06 where the European Court did not find it necessary in a democratic society that a centuries old tradition which was a part of the culture of the country, the crucifix, should be removed from schools.

15. See Case “Relating to certain aspects of the laws on the use of language in education in Belgium: v Belgium Application No. 1474/62; 1677/62; 1691/63; 1769/63; 1994/63; 2126/64 (ECHR). See also Buckley v the United Kingdom, 25 September 1996, 74 Reports of Judgments and Declarations 1996-IV (ECHR)

16. The Human Rights Committee explained the notion of proportionality in its General Observations No.34, on Article 19: Freedom of Opinion and Freedom of Expression, thus:

“Restrictions should not be too wide-ranging….,. Restrictive measures must comply with the principle of proportionality; they must be appropriate to achieve their protective function, they must be the least disturbing means among those that help achieve the desired result and they must be proportionate to the interests to be protected…,. The principle of proportionality must be respected not only in the law that institutes the restrictions, but also by the administrative and judicial authorities charged with enforcing the law.”

See also Lautsi (supra) where the court found it disproportional to allow the parent of one child in a class of 30 to enforce her rights to a crucifix-free classroom as against the wishes of parents of the other 29 pupils.

17. See the jurisprudence of the African Commission on Human and People's Rights, the African Court on Human and People's Rights, the United Nations Human Rights Committee, the European Court of Human Rights and the Inter-American Court of Human Rights excessive or disproportionate burden on the couple, on a proper balance with the interests of the community, if the house was destroyed without compensation. It follows that limitations on the enjoyment of rights are normally contained in legislation requiring or obliging individuals to comply with certain localised laws (local remedy) before accessing laws of wider or general applicability. Here too, international jurisprudence has developed guidelines with respect to exhaustion of local remedies that are applicable. Firstly, for a local remedy to be exhausted, it must be available, effective and sufficient and not unduly prolonged. The African Commission has defined “availability” as a remedy which can be pursued without impediment; “effectiveness” as a remedy which admits of prospects of success; and “sufficient” as a remedy capable of redressing a complaint.

18. See Jawara v Gambia (supra). See also Majuru v Zimbabwe (2008) AHRLR 146 (ACHPR 2008) @ p18 paragraph 78

19. See Lohe Issa Konate v Burkina Faso (supra)

20 See Human Rights Committee decision in A v Australia CCPR/C/59/D/560/1993 (A v Australia [1997] UNHRC 7, UN Doc CCPR/C76/D/900/1993). See also Article 19 v Eritrea (2007) AHRLR 73 (ACHPR2007)

21. See Layla Sahin v Turkey ECHR 2005-XI (GC) 44774/98. See also DePalle v France 2010-111 ECHR

22. See section 86-7 of the Constitution of Zimbabwe

23. See Bhatti & Anor v Chief Immigration Officer & Anor 2001 (2) ZLR 114 (H) @ 121 D and Kenderjian v Chief Immigration Officer 2000 (1) ZLR 697 (S) @ 700 A-C, where issues of public safety and order, pursuance of legitimate aims authorised by the Constitution and reasonable justification in a democratic society where held to justify interference particularly with non-absolute rights.

24. Section 34(9) of the Police Act provides as follows:

“(9) A member who is found guilty of a contravention of this Act by an officer shall not be regarded as having been convicted of an offence for the purpose of any other law.”

25. See Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 @21 B-C, E-F. See also Arafas Mtausi Gwaradzimba N.O. v Gurta A.G. SC10/15 (Civil Appeal 416/13)

26. See Premier Mpumalanga v Association of Estate Agents School 1999 (2) (CC) 113 at para 50. See also Chief Constable of the North of Wales Police v Evans [1982] 3 ALL ER 141 (HL) at 143 H-J

27. Baxter's Administrative Law @ page 681

28. See Sadengu v Board President & Anor HH 712/15

29. Rateiwa v Kambuzuma Housing Coop & Anor 2007 (1) ZLR (H) @ 314

30. Section 34(9) of the Police Act [Cap 11:10]

31. See section 35(1) of the Police Act

32. See Mugabe & Anor v Law Society of Zimbabwe, 1994 (2) ZLR 356 (S) @ 363D

33. See Olivier v Kaapse Balieraad 1972 (3) SA 485 (A). See also Law Society of the Cape v Koch 1985 (4) SA 379 (C)

34. See Mugabe & Anor v Law Society of Zimbabwe (supra)

35. See section 46 of the Police Act

36. Assistant Inspector Chibike v the Trial Officer & Anor HC1832/15