Constable Zamani O. 067546 T v The Chairman of the Police Service Commission & 4 Ors

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HB 303/20
HC 3135/17
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CONSTABLE ZAMANI O. 067546 T

Versus

THE CHAIRMAN OF THE POLICE SERVICE COMMISSION

And

THE COMMISSIONER GENERAL OF POLICE

And

THE PRESIDENT

CHIEF SUPERITENDENT MANINGWE

And

INSPECTOR MUSHONGAHANDE K 035773 E

IN THE HIGH COURT OF ZIMBABWE

MABHIKWA J

BULAWAYO 11 SEPTEMBER 2018

Court application for review

Applicant in person

P. Taruberekera for the respondents

MABHIKWA J:		The applicant made this application and simply titled it, “Court application for review”.  He listed the grounds for review as follows:

“The dismissal of the applicant’s appeal against discharge by the 1st respondent are full of procedural irregularities in that:

By dismissing the applicant’s appeal against discharge, when the state had failed to prove a prima facie case, against applicant, respondents gave themselves power where it is not supposed to exist.

The 2nd respondent dismally failed to give reasons for their decision of dismissing applicant’s appeal against discharge.  By so doing it is clear that the applicant can consider himself notwithstanding what the law requires.

In dismissing the applicant, respondents actually convicted the applicant yet applicant was a mere state witness.  The state failed to prove its case and acquitted the two accused persons who alleged to have stolen the herd of cattle which was cleared by the applicant.

The respondent erred when they dismissed appellant ambiguous and misleading documents.  The convening order which was used to set applicants Board of Suitability cited applicant as co-accused whereas in actual fact he was just a mere state witness.

The respondents were misdirected when they took into consideration whose facts were non-existent.  As such the respondent created a case for the applicant where there was none.

The respondents have taken the law into their own hands and have decided to act contrary to the law.”  (the underlining is mine)

I have copied the applicant’s grounds of appeal together with any errors or omissions.  I have added only the underlining for a purpose.

From the onset, I must say that the applicant does not seem to know what exactly he is asking this court to review.  Secondly, he does not seem to understand the difference between an appeal and a review.  Thirdly, the grounds are just long, incoherent sentences that are so vague as to be embarrassing as grounds for review.

I am cognizant of the fact that the applicant is legally unrepresented and that at a disciplinary hearing, the rules were obviously more relaxed than the strict rules of a criminal court.  However, I must still state that matters relating to review proceedings are properly governed by Order 32 Rule 257 of the High Court Rules, 1971.  In this case, the matter would be dealt with in terms of that rule, as read with section 27 of the High Court Act, [Chapter 7:06].

Section 27 of the High Court Act [Chapter 7:06] states as follows:

“27.	Grounds for Review

Subject to this Act and any other law the grounds on which any proceedings or decision may be brought on review before the High Court shall be –

(a)	Absence of jurisdiction on the part of the court, tribunal or authority concerned;

Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case may be;

Gross irregularity in the proceedings or the decision.”

Rule 257 of the High Court Rules is to the effect that an application for review shall state shortly and clearly the grounds upon which the application seeks to have the proceedings set aside or corrected and the exact relief prayed for.  Apart from boldly stating the phrase “grossly irregular” the grounds for review, founding affidavit or argument must show the proceedings to be so.  Quite often, an application for review has been used as an escape route for the failure to comply with the strict appeal rules.  In any event it has been correctly argued in my view, that the alleged grounds of review are in fact grounds of appeal.

Looking at the current grounds, they attack the decisions right from the beginning.  It has therefore been correctly argued by the respondents that even the application for review does not comply with order 259 of the High Court Rules which stipulate that any proceedings by way of review shall be instituted within eight (8) weeks of the determination of the suit, action or proceedings in which the irregularity or illegality complained of is alleged to have occurred, provided that the court may, for good cause shown, extend the time.

For record purposes, the brief history of the matter at hand is as follows;

The applicant was charged with contravening paragraph 34 of the Schedule to the Police Act [Chapter 1110] (“Omitting or neglecting to perform any duty in an improper manner.”)

On 30 November 2020, he appeared before a court of a single officer. The proceedings in my view, commenced and progressed well in a procedure almost similar to the proceedings in a criminal trial.  Initially, the applicant pleaded not guilty to the charge.  Somewhere amid trial, he changed his plea to one of guilty.  Again the trial officer asked him if his change of plea was a genuine one.  The applicant admitted that he had done his work improperly and in the process assisted the alleged stock thieves to succeed in stealing cattle.  He admitted that he had not followed the laid down procedures in the clearance of stock as laid down in Circular No. 2/2005.  For instance, he admitted that he endorsed one Reason Sibindi’s particulars as the village head on the ZRP Form 392 when in actual fact the said Sibindi was not a village head.  From the papers, the owner of the alleged cattle and stock card (Stephen Sibanda) was actually in South Africa at the time the alleged thieves Zibusiso Mhlanga and Reason Sibindi were clearing the cattle.  They themselves did not own any cattle.  It would appear also that the cattle were “cleared” in the evening with discriptions of the cattle being dictated to him.

The applicant was then duly convicted on his own plea of guilt.  He was sentenced to a fine of US$10. It appears to me that the applicant had not anticipated what followed thereafter.  A three (3) member (suitability) Board was convened to inquire into his continued suitability as a police officer in terms of section 150 (1) of the Police Act.  The Board recommended that he was no longer suitable for police duties and that he be dismissed from the Police Service.  The 3rd respondent was the Chairperson of the Board of Suitability.

Acting on the Board’s recommendations, the 2nd respondent discharged the applicant from the Police Force.  The applicant appealed to the 1st respondent and his appeal was dismissed. It appears to me that in a very “muddled” way, the applicant appears to challenge, not only the convening of the suitability board, but everything including his being found guilty by the trial officer.  I am fortified in that finding by looking at the portions of his grounds of review that I have underlined.

I must say that it appears to me that sometime before, during or after his own misconduct hearing in terms of the Police Act, the applicant was turned into a state witness against his former co-accused. Applicant testified as a state witness.  Mhlanga and Sibindi were acquitted of the stock theft charge.

Clearly, the applicant cannot, as he now seeks to do, use the fact of his being turned into a state witness and the acquittal of the accused persons as a reason to seek review of his trial, conviction and dismissal from the Police Force.  He cannot legally claim that he was wrongfully or unfairly treated as co-accused when he was “a mere state witness”.  It cannot be reason to have the whole matter reviewed because he was convicted and discharged from the force when the “stock thieves” were eventually acquitted.  He faced completely different proceedings from Mhlanga and Sibindi.  The two faced stock theft criminal charges before a criminal court whilst he faced a “disciplinary hearing for misconduct” before a police trial officer.  As a result, it matters not that Mhlanga and Sibindi were eventually acquitted in their criminal trial.  In fact even in his “application for Review” to the 1st respondent filed with the ZRP General Headquarters on 10 March 2017, applicant appeared to endeavor to undo all that had transpired before the trial officer.  He claimed that he had done nothing wrong but perhaps made a genuine mistake, yet he had actually altered his plea to that of guilty.

In Mugugu vs Police Service Commission & Anor 2010 (2) ZLR 185 (HH-157-10) per GOWORA J (as she then was), the facts were almost similar, save to say that Mugugu had a stronger review case than the one in casu.  Even then, the application was held to be non- suited and was dismissed with costs of suit.

The applicant in that case (Mugugu) was a police officer.  He was convicted of a disciplinary offence and his appeal to the Commissioner of Police was rejected.  After the conviction, a Board of Enquiry was convened to determine his suitability to remain in the police force.  The board recommended a reduction in rank and a transfer from his existing posting.  The Commissioner of Police accepted the recommendation.  The applicant unsuccessfully appealed to the 1st respondent the Police Service Commission.  He then sought the court’s decision on review.

The learned judge held that,

“The purpose of the review process is to ensure that an individual receives fair treatment at the hands of the authority to which he has been subjected.  Judicial review is a process which is concerned with the examination and supervision by the courts of the manner in which administrative bodies have observed their obligations when related to the legislative requirements.  The power to review is inherent in courts of superior jurisdiction, but such power is limited to the legality of the administrative action or decision.  For the court to venture into the merits of the punishment imposed or the wisdom of the decision, without being empowered by the Act, would be tantamount to the court usurping the authority that has been entrusted to the administrative body by the Act.  ……  It is not within the ambit of the reviewing court’s power to substitute its own opinion for that of the administrative body.  The function of the court is to ensure that the administrative body does not abuse the lawful authority given to it by treating the individual subjected to it under that unlawful authority unfairly.”

I must reiterate that review is about the underlying principle of natural justice.  It is about the duty to be fair and to give the person appearing before the administrative body an opportunity to be heard by putting his or her position to that body.

In casu, I am convinced that the rules of natural justice were substantially observed.  The applicant has not claimed otherwise also.  The applicant has only alleged boldly without elaborating, the phrase “gross irregularity”.  He has not alleged interest in the cause, absence of jurisdiction, bias, malice or corruption in the proceedings or decision.  As shown above, he seeks to have this court set aside his dismissal and substitute it with its own opinion which it would have reached had it tried the matter itself.

Further, he seeks to ask this court to substitute its own opinion and make an order based especially on what later transpired to him and the acquittal of the alleged stock thieves.  Such an order would, in my view be wrong and incompetent.

I am also satisfied that in terms of the Administrative Justice Act, Chapter 10:28, as read with the Police Act, Chapter 11:10, particularly section 11 (2) as read with Part II of the Schedule thereof, the force was not obliged to give him reasons for its decision.  In any event, in terms of section 3(1) (c) of the Administrative Act, the applicant should have requested for further reasons if he required them.  It was submitted that the board of inquiry into his suitability took place with his full participation.  He was advised by letter that he was found to “be unsuitable for police duties”.  He never requested for any further and fuller reasons which he should have done if he needed them.

For the foregoing reasons, I find that the application has no merit and dismiss it with costs.

Civil Division of the Attorney General’s Office, respondent’s legal practitioners