Urgent Chamber Application
UCHENA J: The applicant is
a Detective Assistant Inspector in the Zimbabwe Republic Police. He
was charged and convicted for bringing disrepute to the Zimbabwe
Republic Police in contravention of s35 of the Police Act [Cap
11:10],
herein-after called the Police Act.
He was sentenced to twelve days imprisonment.
The first respondent is the Commissioner General of the Zimbabwe
Republic Police, who is being sued in his official capacity as the
Head of the Zimbabwe Republic Police.
The second respondents are the Co-Ministers of Home Affairs being
sued in their capacity as the Ministers responsible for the Zimbabwe
Republic Police.
The third respondent is the officer in charge of Chikurubi Detention
Barracks, where the applicant will be lodged for twelve days if he is
to serve the sentence imposed on him by the fourth respondent.
The fourth respondent is the officer who tried convicted and
sentenced the applicant to twelve days imprisonment.
The applicant was convicted by the fourth respondent on allegations
that he had sought and obtained a bribe of US$500-00, and stolen a
plasma television from a suspect he had arrested and was about to
lodge in police cells. He was charged under s35 of the schedule to
the Police Act, which provides as follows:
“Acting in an unbecoming or
disorderly manner or in any manner prejudicial to good order or
discipline or reasonably likely to bring discredit to the Police
Force.”
He was convicted and sentenced to twelve days imprisonment.
The suspect, and another, witness gave evidence at the trial leading
to the conviction of the applicant.
In this application the applicant alleges that the fourth respondent
did not warn himself about the dangers of convicting on the evidence
of accomplice witnesses. He also alleged that the fourth respondent
did not warn the accomplices before they testified.
He further alleges that he is being exposed to double jeopardy as he
is also being charged for the same acts under the Magistrate's
court.
He further complains that the sentence imposed by the fourth
respondent induces a sense of shock.
Mr Koworera
for the applicant submitted that s35(1) of the Police Act requires
the trial under the Police Act to closely comply with the procedure
followed in the courts of Zimbabwe. It provides as follows:
“(1) The proceedings before or
at any trial by a board of officers 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 courts of Zimbabwe.”
The intention of the legislature is clear.
The tribunal or trial officer must as nearly as is possible comply
with the rules of evidence and procedure as is done in the courts of
Zimbabwe. Where the tribunal or trial officer, significantly departs
from the procedure set for criminal proceedings in the courts of
Zimbabwe the proceedings may be set aside on review.
The test applied on reviewing proceedings is whether or not the
proceedings are in accordance with real and substantial justice.
That may be satisfied if a record reveals statements made by the
accused admitting having done what is alleged or other things tending
to support the conviction. In other words errors, on the part of the
prosecuting authority may if they do not go to the root of the
proceedings, affect its being held to be in accordance with real and
substantial justice.
A stay of sentence must therefore only be granted if the record shows
prospects of success, which can only be properly assessed from the
totality of the proceedings.
In this case the applicant has not placed the record of proceedings
before the court. In fact the applicant said nothing about it in his
founding affidavit.
Mr Koworera
tried to explain from the bar, but an application must stand or fall
on the papers filed.
The applicant's failure to place the record before this court makes
it impossible for this court to assess the applicant's prospects of
success on review as the standard of assessment on review must comply
with the proviso to s34(3) of the Police Act, which provides as
follows:
“Provided that no conviction or
sentence shall be quashed or set aside by reason of any irregularity
or defect in the record or proceedings unless the Commissioner
considers that a miscarriage of justice has actually occurred”.
The alleged irregularities can not therefore in the absence of
information from the record showing that a miscarriage of justice
actually occurred, persuade the court to stay the execution of
sentence. The standard of review, set by the legislature for the
Commissioner, must be applicable to the review of those proceedings
by this court.
The applicant filed this urgent application seeking an order staying
his imprisonment for twelve days as ordered by the fourth respondent.
He seeks the stay of his imprisonment pending the review of his case.
He says he is taking the proceedings on review before the High Court,
and seeks the stay of the sentence pending review.
He does not state that he has already filed a review, nor does he
state the review case number. There is nothing on the record to show
that the application for review has been filed.
Mr Koworera's
complains that he is facing difficulties in obtaining the judgment
and record of proceedings. If that is true he can initiate other
forms of review.
The applicant can not however rely on an automatic review to this
court because s31 of the Police Act does not apply to the sentence
imposed on him.
Section 31 of the Police Act provides for the review of the
tribunal's proceedings by this court as follows.
“(1) Where a board of officers
imposes on a member a sentence of a fine in excess of level three or
a period of imprisonment in excess of one month, the record of the
proceedings shall forthwith be forwarded to the registrar of the High
Court together with —
(a)
any statement that the president of the board may wish to make; and
(b)
any statement relating to the sentence that the member may wish to
make.
(Subsection amended by s4 of Act 22/2001)
(2) On receipt of the record and statements referred to in subs (1),
the registrar of the High Court shall forthwith place such record and
statements before a judge of the High Court in chambers for review.
(3) A judge before whom a record and statements are placed in terms
of subs (2) may —
(a)
if the proceedings appear to him to be in accordance with substantial
justice, confirm the proceedings and endorse the record to that
effect; or
(b)
exercise the powers conferred upon a judge of the High Court by subs
(5) of s29 of the High Court Act [Cap
7:06]
as if the proceedings were the proceedings of a magistrate's
court”.
In terms of s31(1) of the Act the proceedings in which the applicant
was convicted and sentenced are not subject to an automatic review.
Automatic review only applies to sentences, imposed by a Board, and
exceeding level three or imprisonment exceeding one month.
The applicant was tried by one officer in terms of s34(I) of the
Police Act. Section 34(3) of the Act provides for a review of such
proceedings, by the Commissioner. The section provides as follows:
“(3) Every officer who convicts
and sentences a member under this section shall forthwith transmit
the proceedings for review by the Commissioner, who may —
(a)
confirm the conviction and sentence;
(b)
alter or quash the conviction or reduce the sentence or substitute a
different but not more severe sentence;
(c)
quash the conviction and sentence and remit the matter for trial
afresh before a different officer;
(d)
remit the matter to the officer with instructions relative to the
further proceedings to be held in the case as the Commissioner thinks
fit:
Provided that no conviction or sentence shall be quashed or set aside
by reason of any irregularity or defect in the record or proceedings
unless the Commissioner considers that a miscarriage of justice has
actually occurred.”
Section 34(3) therefore establishes that the Commissioner is the
reviewing authority.
The case can therefore only be
reviewed by this court if an application for review, is filed, or in
terms of s29(4) of the High Court Act [Cap
7:06], which provides
as follows:
“(4) Subject to rules of court,
the powers conferred by subss (1) and (2) may be exercised whenever
it comes to the notice of the High Court or a judge of the High Court
that any criminal proceedings of any inferior court or tribunal are
not in accordance with real and substantial justice, notwithstanding
that such proceedings are not the subject of an application to the
High Court and have not been submitted to the High Court or the judge
for review.”
Section 29(4), of the High Court Act, gives this court or a judge of
this court wide review powers. It allows a judge to call for and
review any proceedings of an inferior court or tribunal it becomes
aware of and forms the view that they are not in accordance with real
and substantial justice. The judge is empowered to call for and
review any proceedings even those he may hear about through the
press, or a letter or any other source of complaint, or information.
This procedure can however not be used to review these proceedings
because the applicant claims to have filed an application for review.
His legal practitioners must be allowed to represent him and seek
justice for him. The courts should not be seen to be championing the
cause of a legally represented applicant. That is why trials in the
magistrate's courts, in which the accused is represented by a legal
practitioner, are not subject to an automatic review.
The applicant's case has actually been heard by the Commissioner as
an appeal in terms of s34 (7) of the Police Act. See the
Commissioner's affidavit in which he said he has dismissed the
appeal.
The applicant did not respond to the Commissioner's opposing
affidavit.
This means the applicant is not being candid with the court. He
clearly did not initially consider the reviewing of the proceedings
necessary until his appeal was dismissed. This tends to show that the
review is an afterthought, and an act of desperation aimed at
avoiding imprisonment That must be why he does not even state that he
has already applied for the review nor state the review case's
number.
The record of proceedings has not been placed before the court. The
sentence cannot be stayed without assessing the applicant's
prospects of success on review.
There is no proof that the applicant is seriously pursuing a review
of the proceedings. What would happen if the sentence is stayed but
the application for review is not filed.
I can not therefore grant a stay of the execution of a sentence when
there is no proof that an application for the review of the
proceedings has been filed.
Mr Koworera
raised the issue of
the appropriateness of the sentence of twelve days imprisonment.
The charge under s35 of the schedule is intended to protect the
reputation of the Police force from being damaged by the conduct of
its officers. There is no doubt that asking for bribes by police
officers is like a cancerous disease which does not only seriously
damage the image of the police, but poses a danger which can destroy
the foundations on which the police force is founded. Therefore the
sentence imposed can on its own not be a basis for staying the
execution as it does not in my view induce a sense of shock. The
Police Force must act decisively against corrupt officers.
On the question of the accused person being exposed to double
jeopardy as he is being tried in the magistrate's court for the
same offence, I am satisfied that he can raise his conviction and
sentence as a mitigating factor if he is convicted in the
magistrate's court.
A trial and conviction in terms of section 34(1) is, in terms of
s34(9) of the Police Act not regarded as a conviction in terms of any
other law. It is regarded as a disciplinary action. Section 34(9)
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.”
This means the applicant is not exposed to double jeopardy as
alleged. The trial in the magistrate's court does not therefore
justify the staying of a sentence imposed for disciplinary purposes.
In the circumstances the applicant's application is dismissed.
The applicant shall pay the respondent's costs.
Nyikadzino, Koworera & Associates, applicant's
legal practitioners
Attorney General's Civil Division, respondents' legal
practitioners
