Constable Gwete P v The Trial Officer (Superintendent Nekati) and The Commissioner General Office

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HB 126/19
HC 1238/17
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CONSTABLE GWETE P

Versus

THE TRIAL OFFICER

(SUPERINTENDENT NEKATI)

And

THE COMMISSIONER GENERAL OFFICE

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 3 JULY & 3 OCTOBER 2019

T. Mabika for the applicant

L. Duve for the respondents

Opposed Application

MOYO J:	The applicant in this matter is seeking a review of the decision of a Single Trial Officer on the grounds that:

The 1st respondent decided to proceed with the matter where he had no jurisdiction to do so in view of the fact that the applicant had already been charged over the same matter in terms of the ordinary law.

The relief sought is that:

The trial proceedings conducted by the 1st respondent against the applicant be and are hereby set aside.

The prosecution of the applicant in terms of the Police Act be and is hereby stayed permanently.

The respondent’s are ordered to pay the costs of suit.

The factual basis of the application for review is enunciated in pages 3 - 4 of the founding affidavit and it reads as follows:

“4.	On the 27th of October 2010, I was charged for contravening paragraph 35 of the schedule to the Police Act as appears on the charge sheet and the state outline which forms art of the record of proceedings which I have attached hereto as annexure “A”.

I was self acting when I commenced trial and I then decided to engage a lawyer during the course of my trial.  My lawyer then made an exception to the charge and the allegations during the course of the trial on the 31st of January 2017 and the 1st respondent made the ruling on the 19th of April 2017 which ruling also forms part of the record of proceedings already attached hereto as annexure “A”.

It is apparent that the trial officer (1st respondent) has no locus standi or jurisdiction to try me in terms of the Police Act and its ancillary Regulations, in particular the standing order Volume 1 and the Uncoded Rules.

At the time I was charged in terms of the Police Act, I had already been charged in terms of the ordinary law on the same allegations.”

Paragraph 7 of the founding affidavit seems to compliment the only ground for review, in fact that is the very basis of the application itself.

Although applicant does not elaborate on the specific charge that he faced at the Magistrates’ Court, he simply says over the same allegations and over the same matter.  He does not elaborate on the exact nature of the charge.  Respondents have opposed the application and contended that a police officer can face criminal charges, be acquitted on same and still face disciplinary proceedings on the same issue.  I hold the view that the respondent is correct in its contention.  In fact that is exactly what MATHONSI J, as he then was, stated in the case of Felix Sangu v Commissioner General of Police and 2 others.  The learned judge explained this very same issue.  In that case Mr Sangu had submitted that he was tried by the Magistrates’ Court in Bulawayo on a charge of theft involving $264,00 and was in August 2015, found not guilty and acquitted and for that reason he submitted that it was improper for the police authorities to prefer a charge of improper conduct against him arising out of the same set of facts.  The learned judge went on to explain why applicant’s contention was misplaced.  It is trite that the same conduct can give rise to both criminal and civil sanction.  Where an employee has allegedly stolen from an employer, the latter is entitled to prefer criminal charges against such employee to be pursued in a criminal court.  That, however, does not oust the employer’s jurisdiction to discipline such an employee under the civil law, an exercise which may result in a misconduct charge being preferred against the employee and disciplinary sanction eventually.  As an employee, the applicant remains subject to disciplinary law internally even if a criminal trial process has taken place.  The acquittal by a criminal trial court cannot exonerate an employee from the consequences arising from disciplinary law  (emphasis mine)  The learned judge went on to quote section 278 (2) and (3) of the Criminal Law Codification and Reform Act Chapter 9:23 which provides as follows:

“(2)	A conviction or acquittal in respect of any crime shall not bar civil or disciplinary proceedings in relation to any conduct constituting the crime with the instance of any person who has suffered lose or injury in consequence of the conduct or at the instance of the relevant disciplinary authority.

(3)	Civil or 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.”

As well as section 30(5) and section 34(9) of the Police Act which provide that a member found guilty in terms of the Police Act shall not be regarded as having found guilty for purposes of any other law.

It therefore follows that applicant’s contention is misplaced.  Nothing bars the applicant’s employer from proceeding with the disciplinary measures under the Police Act despite the acquittal in the criminal charges before the Magistrates’ Court.  The only ground for review thus fails as applicant has not made a case for the relief he seeks both on the facts and on the law.

It is for these reasons that this court finds that applicant has failed to sustain the only ground for review and I accordingly dismiss the application with costs.

Mugiya & Macharaga Law Chambers, applicant’s legal practitioners

Attorney General’s Office, Civil Division, respondents’ legal practitioners