Ex-Constable Kalani v The Commissioner General of Police and The Chairman Police Service Commission

### Preamble
1
HB 141.19
HC 3201/17
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EX-CONSTABLE KALANI

Versus

THE COMMISSIONER GENERAL OF POLICE

And

THE CHAIRMAN POLICE SERVICE COMMISSION

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 13 SEPTEMBER 2018 & 26 SEPTEMBER 2019

Opposed Application

Applicant in person

P. Taruberekera for the respondents

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

“1.	The findings of the board of inquiry which was held on the 16th of February 2017 be and is hereby declared null and void.

2.	The respondents are ordered to reinstate the applicant back into the Police Service forthwith with full benefits and privileges as from the 7th of November 2017 up to date.

3.	The respondents are ordered to pay costs of suit.”

The facts

The appellant was attested into the Police Service on 23 January 2010.  He was stationed at ZRP Ntabazinduna Training Depot until his discharge on 23 March 2017.  Sometime in April 2013 whilst at Ntabazinduna, applicant ordered a total of 36 trainees to pay US$10,00 each.  The applicant was paid a total of US$3 060,00 contrary to the provisions of the Depot Standing Orders.  Applicant was charged with contravening para 34 of the Schedule to the Police Act (Chapter 11:19) (the Act) “Performing any duty in an improper manner”.  Upon conviction he was sentenced to 14 days imprisonment.  In addition he was also ordered to pay a fine of US$10,00.

On 5 November 2013 the 1st respondent convened a Board of Inquiry (Suitability) in terms of section 50 of the Act.  The applicant successfully stopped the commencement of the Board’s proceedings by way of an interdict that granted him an interim relief.  However applicant failed to prosecute his case resulting in its dismissal for want of prosecution on 21 October 2015.  This development prompted the 1st respondent to resuscitate the Board of Inquiry (Suitability) by notifying the applicant on 9 February 2017.

Meanwhile, after the initial convening of the Board of Inquiry on 5 November 2013 applicant was on 11 December 2014 again convicted of contravening par 7 of the Schedule to the Act that is, “being insubordinate by word, act or demeanor”.  This charge arose on 24 March 2014 when applicant photographed his superior Sergeant Chauke without his consent and went on to attach some obscene statements to the superior’s photograph.  He further circulated the picture on social media including Whatsapp.  Applicant was convicted and sentenced to 5 days imprisonment at the Detention Barracks.  Following this second conviction applicant was served with an “initial Memorandum of Warning” on 31 July 2015 by Chief Superintendent Shoniwa.

In par 7 the memorandum states:

“I strongly warn you that if you are again convicted of any offence under disciplinary or criminal codes during next twelve months then recommendation would be made to the Commissioner General of Police to convene a board of inquiry to look into your suitability to remain a member of the Zimbabwe Republic Police.”

After receiving notice to attend the inquiry, applicant wrote a report to the President of the Board expressing his grievance that the convening of the board in circumstances where he had not breached the terms of the Administrative Initial Memorandum “would be unconstitutional. The Chairperson informed him that his grievance would be dealt with at the hearing.  Applicant appeared before the board on 16 February 2017 and applied for a postponement on the grounds that his lawyer was busy at the Harare High Court.  The application was dismissed and the inquiry continued.  At the end, the Board recommended that applicant be discharged from the Police Service.  Applicant was advised of this decision on 23 March 2017 and he immediately appealed to the Police Service on 27 March 2017.

Applicant was reinstated pending the determination of his appeal.  After losing his appeal, he was finally discharged from the Police Service on 7 November 2017 as being unsuitable for police duties.  Dissatisfied he filed this review application.  From his founding affidavit it appears that his grounds for review are that:

The convening of the Board of Inquiry (Suitability) was unlawful and unconstitutional;

The failure by 3rd respondent to supply him with reasons for the dismissal of his appeal amounts to gross irregularity in that it violates his right to administrative justice as contrived in “section 68 of the Constitution of Zimbabwe.”

The Board denied him the right to legal representation.

Both respondents opposed the application.  They raised a point in limine that the application does not comply with o33 r257 of this court’s rules  in that he did not provide the grounds for review.  Rule 257 states:

“257.	Contents of Notice of Motion

The court application shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”

Respondents argued that in casu applicant did not do so, therefore his application falls fowl of r256-259.

On the merits, respondents submitted that:

The discharge of the applicant was lawfully done.

The memorandum of warning that was signed by the applicant on the 31st day of July 2015 had no force or effect on the Board of Inquiry (Suitability) in that the Board focused on the applicant’s summary of career from the date of his attestation into the Police Service up to 5 November 2013.

There was no violation of s70 (1) (m) of the Constitution as there was no double punishment.  A memorandum of warning is not, on its own, punishment.  Rather it is just a step in a hierarchy of progressive disciplinary penalties.

The applicant was not denied legal representation by the Board.  To the contrary, applicant was given adequate notice of seven (7) days from the date of service.  Applicant appeared without his legal practitioner and applied for a postponement which was refused because he had no proof that he had engaged the services of a legal practitioner or a notice of set down for the matter the legal practitioner was attending at the Harare High Court.  Therefore the Board exercised its discretion judiciously in dismissing the application for a postponement.

The applicant did not submit a written request for the record of proceedings prior to filing this application.  Had he done so, the 2nd respondent would have provided it without fail.  Applicant has as at 10 January 2018 been supplied with a copy of the reasons.  The 2nd respondent acted impartially to ensure that there was substantive and procedural fairness in the manner applicant’s appeal was handled.

Analysis

Applicant’s major grievance is that the Board of Inquiry (Suitability) was unlawfully convened in violation of section 50 of the Act.  The section reads:

“Board of Inquiry: Procedure where a member unsuitable or unfit to remain in regular force or to retain his seniority or salary

A board of inquiry consisting of not less than three officers of such rank not being below that of superintendent as may be considered necessary by the Commissioner, may be convened by the Commissioner to inquire into the suitability or fitness  of a Regular Force member to remain in the Regular Force or to retain his rank, seniority or salary.

…

If a Regular Force member, other than an officer, is found after inquiry by a board to be –

Unsuitable or inefficient in the discharge of his duties; or

…

The Commissioner may –

Discharge the Regular Force member; or

…

…” (my emphasis)

It should be noted that this is but one of the methods in which a Regular Force member may be discharged in terms of the Police Act.  In casu it is agreed that the 1st respondent convened a Board through a convening order and a notice to that effect was duly served on the applicant.  The board sat and inquired into applicant’s suitability.  Applicant attended and participated fully.  The Board made a recommendation that applicant was indeed unsuitable to remain in the Regular Force.  The 1st respondent acting on this recommendation discharged the applicant from the Regular Force.

Applicant’s trump card is the Memorandum of Warning referred to supra.  The meaning applicant ascribes to this memo is that a board of suitability could only lawfully be convened where he had been convicted of any offence within 12 months from the date of its inception.  Since in casu, he had not been convicted of any offence as at 9 February 2017, it was unlawful for 2nd respondent to “convene” the board.  This argument is demonstrated by applicant’s averments in par 17 of his founding affidavit which states;

“17.	…  It is unfair for me to be discharged from the Police Service for the offences I had been punished for.  It is not in dispute that I was punished for both offences explained earlier on and it is also not in dispute that I had been punished, progressive discipline have been administered on me as a measure for my future discipline.  This is exhibited by the issuing of the Memorandum of Warning which is on its own equivalent to a conviction because he repercussion of the two upon a member of the Police Service renders some negative effects to the privileges of a member.  Then to me, I am feeling that I am being double jeopardized by being given two sentences for a single crime.”

I take the view that this argument is banal for the following reasons;

If the events surrounding applicant’s dismissal are examined chronologically it becomes crystal clear that the Memorandum is irrelevant and totally divorced from the convening of the Board.  The Board was convened on 5 November 2013 in terms of section 50 of the Act as read with section 12 and 13(1) (b) of the Police Trials and Boards of Inquiry Regulations 1965.

Instead of attending the inquiry applicant challenged the process through an urgent application seeking an interdict to suspend the convening of the Board.  It appears applicant successfully obtained a provisional or interim relief but failed to have it confirmed resulting in his application being dismissed for want of prosecution giving the 1st respondent the green light to continue with the Board proceedings.

The memorandum in casu was only signed 31st July 2015 after the convening order had been issued on 5 November 2013 in respect of the 1st offence.  Therefore logically the memo can only apply to the 2nd conviction.

In any event the memos are generated in terms of Circular No. 8/92 dated 20 February 1992.  Their purpose is to make a member aware of his deteriorating general conduct and give him a “trouble free” period.  It is just but one of the ways in which a Board may come into existence.  It does not whittle down the 1st respondent’s powers contained in s50 of the Act.

From the record, it is common cause that it is the applicant’s 2nd conviction that he earned in 2014 at a time he was engaged in protracted litigation with respondents that caused the memo to be issued.  Applicant now wants to benefit from the confusion that he deliberately created.

There can be no question of double jeopardy as the memo is neither a conviction nor a sentence but just a warning to the applicant to pull up his socks.  The period that the Board restricted itself to, is from applicant’s attestation up to 5 November 2013.  It did not go beyond that and assuming a lesser penalty than discharge had been meted out by 1st respondent there is nothing that could have prevented 1st respondent from convening another Board of Inquiry in terms of section 50 against applicant after his 2nd conviction.

As regards denial of legal representation, I am of the view that postponements are at the Board’s discretion and in casu the facts showed that it exercised that discretion judiciously in dismissing the application.  Here is a man who had hamstrung the Board for more than three years, sitting on his laurels over time until his application is dismissed for want of prosecution, being timeously notified of the date and place of the hearing but attends only to apply for a postponement.

Not only that, applicant did not provide sufficient proof to back up his word of mouth 1stly that he had secured the services of a legal practitioner and secondly that his legal practitioner was engaged in the High Court.  Applicant could have produced a notice of set down issued by the Registrar or a letter from his legal practitioner confirming that and also requesting for a postponement.  Prejudice to either party is one of the factors considered in an application for a postponement.  In casu applicant did not give the Board notice of his intention to apply for a postponement.  If indeed applicant had engaged a law firm, surely one of the lawyers would have attended to at least out of courtesy apply for a postponement.

In respect of 2nd respondent’s alleged failure to supply applicant with reasons for its decision, it is clear that applicant is bluffing.  If he seriously wanted reasons he should have asked for them in writing. If 2nd respondent had refused to supply him with reasons, his remedy would have been to have it compelled to do so.  I have said previously, the law as I understand it requires that those who require reasons for any action taken against them in administrative matters must request for those reasons.  See section 3(2)(c) of the Administrative Act Chapter 10:22.  In any event applicant was supplied with the record of proceedings and reasons by the 2nd respondent.  Therefore 2nd respondent did not commit any procedural irregularity in the manner it processed the appeal.

The failure to comply with r257 was admitted by the applicant who pleaded with this court to invoke r4c of the court’s rules.  Counsel for the respondents agreed that applicant be condoned for non-compliance.  After being satisfied that the departure is required in the interests of justice, I condoned applicant’s failure to comply with r257.

I must however state that the failure to outline the specific grounds for review shortly and clearly prevents a court from effectively assessing the merits or demerits of the application in that an applicant will raise 2 or 3 issues in the founding affidavit that will most likely increase to 4 or 5 in the answering affidavit and 6 or 7 in the heads of argument.  To prevent his prevarication, the rule requires applicants to nail their colours to the mast.

Finally, I am of the view that the applicant has not shown on a balance of probabilities that the respondents committed any irregularities warranting interference by this court.

Accordingly it is ordered that:

The application be and is hereby dismissed.

Each party shall bear its own costs.

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