Ex-Constable Jimu Malvern v The Officer in Charge (Chief Inspector Chauke) & 3 Ors

### Preamble
1
HB 96/20
HC 2522/17
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EX-CONSTABLE JIMU MALVERN

Versus

THE OFFICR IN CHARGE

(CHIEF INSPECTOR CHAUKE)

And

THE COMMISSIONER GENERAL OF POLICE

And

THE CHAIRPERSON OF THE POLICE SERVICE COMMISSION

And

THE MINISTER OF HOME AFFAIRS

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 19 JULY 2019 AND 2 JULY 2020

Opposed Application

N. Mugiya for the applicant

L. Dube for the respondents

TAKUVA J:	This is an application for a declaratur in which the applicant seeks the following relief:

The discharge of the applicant from the Police Service by the 2nd respondent is hereby declared unlawful and wrongful.

The 2nd and 3rd respondents are ordered to reinstate the applicant into the Police Service without loss of salary and benefits.

The respondents are ordered to pay the costs of suit on a punitive scale.”

Applicant is one of those naughty police officers who when its checkmate attempt to wriggle out through filing frivolous and vexatious applications with this Court.  It appears they only realise the value of their contracts of employment post facto.  When they do realise or pretend to realise, the majority of them run to one law firm for salvation.

Background facts

Applicant was employed by the 4th respondent and was stationed at Zimbabwe Republic Police, Mwenezi.  On 27 May 2016 applicant was duly convicted of fraud by a magistrate at Mwenezi Magistrates’ Court.  He was sentenced as follows:

“18 months imprisonment of which 6 months imprisonment is suspended for 5 years on condition accused does not within that period commit an offence involving dishonesty for which upon conviction he will be sentenced to imprisonment without the option of a fine.  The remaining 12 months imprisonment is suspended on condition accused performs 420 hours of community service at Chamatundu Primary School starting 27 May 2016 …”  See annexure “A” on page 14 of the record of proceedings.

Following his conviction and sentence, the 2nd respondent discharged the applicant from the Police Service with effect from 17 June 2017.  The 2nd respondent acted in terms of section 48 of the Police Act.  The discharge was communicated to the applicant through a radio signal DIS 479/16 dispatched on 16 June 2016 to the 1st respondent among others.  The full radio signal appears on page 15 of the record as annexure “B”.  It reads in part:

“Be advised that the above named member was discharged from the Police Service for Misconduct on 17 June 2016 repeat on 17 June 2016.  STOP”.  (my emphasis)

The radio signal was served upon the applicant personally by the 1st respondent on 18 June 2016.  Despite this knowledge, applicant did nothing to remedy the situation.  He did not challenge the 2nd respondent’s decision by way of review which option was open to him.  Instead he waited for 16 months before filing this application for a declaratur.

Applicant’s argument goes like this.  He is entitled to the declaratur because his dismissal is unlawful and wrongful on the ground that he was not furnished with reasons for the discharge.  He denies being served with the radio signal.  However he has chosen to be mean on the criminal conviction and sentence on a charge of fraud.  No reference is made to this fact in the founding affidavit.  Applicant’s main contention is captured in paragraph 13 of his founding affidavit wherein he stated:

“13.	I have not been able to get the reason why I was discharged from the police service up to this day”

On this basis, applicant contends that the failure by the respondent as to promptly supply written reasons is a clear violation of section 68 (2) of the Constitution of Zimbabwe Amendment (No. 20) Act 2013.

Applicant’s core argument is brought out in paragraph 16 of his heads of argument where he states;

“If it is not in dispute that the right to reasons is a constitutional right and that the Constitution of Zimbabwe is the supreme law of the land, any law which purports to sanction that which the Constitution prohibits should be declared unconstitutional to the extent of the inconsistency.  No law can then purport to say reasons should be requested for which the Constitution itself does not say so.”  (my emphasis)

Clearly, applicant had in mind here the provisions of the Administrative Justice Act (Chapter 10:28) which inter alia requires that in such cases, reasons should be requested by the person requiring them.

Throughout the pleadings the parties agreed that the sole issue for determination is whether or not the discharge of the applicant without being furnished with reasons is lawful.  Parties filed their heads of argument on this sole issue.  However, during the hearing Mr Mugiya raised two points in limine namely; (a) the opposing papers were filed out of time  in violation of O32 r232 of the High Court Rules 1971 and (b) the opposing affidavits of 1st, 2nd and 4th respondents were not properly commissioned.

The application was opposed by all the respondents.  As regards the 1st point in limine, Mr Dube for the respondents submitted that respondents’ papers were filed within the dies induciae in view of the fact that respondents are resident more than 400km away from the court house.  They therefore added two more days to the ten day period.  On the merits, respondents insisted that applicant was served with the radio signal which gave the reason for dismissal as “misconduct”.  They also argued that in any event the applicant, with four years experience as a police officer behind him knew that one may be discharged upon being sentenced to a term of imprisonment without an option of a fine in terms of s48 of the Police Act.  It is common cause that applicant’s case falls within this category.

As regards the interpretation of s68 (2) of the Constitution, the respondents relied on sections 3 and 6 of the Administrative Justice Act on the duty of an administrative authority to furnish a person with reasons.  They argued that in terms of these provisions there is a two stage approach.  Firstly, the person concerned must request to be supplied with reasons for the decision.  Secondly, if the person concerned is not furnished with reasons after a reasonable period may apply to the High Court for an order compelling the administrative authority to supply reasons in terms of the Administrative Justice Act.

Let me deal with the points in limine first.  In terms of 032 r232 opposing papers must be filed within ten (10) days.  However where the respondent is more than 200km away from the court house an extra day is added.  The respondents are more than 400km away.  They therefore added 2 extra days and filed their papers on 13 October 2017 instead of the 11th f October 2017.  Mr Mugiya simply said respondents were entitled to add 1 day and not 2.  He did not proffer any explanation for this interpretation of r232.  All I can say is that it is patently wrong.  This point in limne is therefore dismissed.

The second point in limine is equally without merit.  Applicant’s counsel made a stark naked submission from the bar that the District Registrar Mwenezi is not a Commissioner of Oaths despite the fact that his name, designation and status as a “Commissioner of Oaths for Zimbabwe”.  Again without any authority or some legal justification, counsel stated that 2nd respondent’s affidavit is invalid because it was commissioned by a legal practitioner in the Civil Division of the Attorney General’s office who happens to be his legal practitioners.  How does the court know that “”Mukucha” is an employee in the Attorney General’s Office?  Even if he is, did he prepare the affidavit?  The 4th respondent’s affidavit was challenged on the ground similar to that against the 1st respondent.

Both points in limine are not well taken.  They are hereby dismissed.

On the merits, section 68 of the Constitution provides that;

“Right to Administrative Justice

Every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

Any person whose right, freedom, interest or legitimate expectation has been adversely affected by administrative conduct has the right to be given promptly and in writing the reasons for the conduct.

An Act of Parliament must give effect to these rights, and must –

Provide for the review of administrative conduct by a court or where appropriate by an independent and impartial tribunal;

Impose a duty on the State to give effect to the rights in subsection (1) and (2); and

Promote an efficient administration.”  (my emphasis)

This right is contained in Part 2 of the Constitution that has fundamental human rights and freedoms.  What the Constitution does is to provide an entitlement to the right to administrative conduct that is stipulated. There should be elements of both substantive and procedural fairness in the conduct.  In subsection (2) there is an entitlement to the right to be given reasons for the conduct while subsection (3) stipulates that an act of parliament must give effect to those rights.  In other words the enjoyment of these rights must be regulated by an Act of Parliament.  Judicial review of the conduct and the imposition of a duty on the State to give effect to the rights are provided for.

It is clear that it is the Constitution that creates an Act of Parliament to give effect to these rights.  The Act that does this in our jurisdiction is the Administrative Justice Act.  Section 3 (1) (c) whereof provides that;

“An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall –

…

…

Where it has taken the action supply written reasons therefore within the relevant period specified by law or if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”  (my emphasis)

During the hearing I pointed out to Mr Mugiya that I had in the past decided the point in issue namely that this section requires the person concerned to request reasons for a decision adversely affecting his/her rights.  He however insisted in arguing the case.  As I said elsewhere, this meaning or interpretation is consistent with the practical approach adopted by the judiciary and administrative authorities in performing their tasks.  It is not feasible for reasons to be supplied forthwith in every case.  In fact promptly does not mean at once.  If this were the case then there would be administrative inefficiency as fewer matters would be finalised.  In some cases decisions are made ex tempore with full reasons given within a reasonable period upon request.

I am fortified in this interpretation by the provisions of section 6 (1) (a) (b) of the Administrative Justice Act.  It provides as follows:

“(1)	Subject to this Act and any other enactment, any person –

whose rights, interests or legitimate expectations are materially and adversely affected by any administrative action; or

who is entitled to apply for relief in terms of section four; and who is aggrieved by the failure of an administrative authority to supply written reasons for the action concerned within –

the period specified in the relevant enactment; or

In the absence of any such specified period a reasonable period after a request for such reasons has been made; may apply to the High Court for an order compelling the administrative authority to supply reasons.”  (my emphasis)

Now what is noteworthy is that this statute does not say if you are not given reasons you can have the decision declared unlawful through an application for a declaratur.  In my view a court should not grant a declaratory order where the legal position like in casu has already been clearly laid down by statute.  It is common cause that the applicant in casu neither requested to be furnished with written reasons nor approached this court for a compelling order.  The decision as to how best the right stated in s68 of the Constitution should be given effect or enjoyed should be left to the Legislature.

By analogy, this is the approach the law has adopted with similar fundamental human rights like the rights of arrested and detained persons enshrined in s50 (1) (d) of the Constitution.  Although the right to be released is granted therein, it is given effect by the provisions of s117 of the Criminal Procedure and Evidence Act Chapter 9:07.

I take the view that it would be preposterous to argue that all arrested and detained persons must be released without first applying for bail.  Equally untenable would be the argument that the bail procedure as outlined in the Criminal Procedure and Evidence Act is ultra vires the Constitution.

It is my considered view that this is not an appropriate case for the grant of a declaratur.  Although there is no time limit for filing an application for a declaratur, it must nevertheless be filed within a reasonable period.  In casu there has been no explanation for a delay of sixteen (16) months.

In the circumstances the application is dismissed with costs.

Mugiya, Macharaga Law Chambers, applicant’s legal practitioners

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