076638b EX Constable Blessing Muhoni V THE Commissioner General OF Police AND THE Police Service Commission

### Preamble
1
HH 690-18
HC 2275/17
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076638B EX CONSTABLE BLESSING MUHONI

versus

THE COMMISSIONER GENERAL OF POLICE

and

THE POLICE SERVICE COMMISSION

HIGH COURT OF ZIMBABWE

MANZUNZU  J

HARARE, 18 & 25 October 2018

Opposed Application

N Mugiya, for the Applicant

T  Jaricha, for the respondent

MANZUNZU J: This is an application for condonation for late filing of an appeal. The application is opposed.

The simple facts of this case are that applicant was a member of the Zimbabwe Republic Police “ZRP”. In 2015 he was convicted by the Magistrate for domestic violence. He was sentenced to perform community service of which he did. The applicant was later in October 2015 arraigned before a single trial officer for disciplinary hearing in terms of the Police Act. He was convicted and sentenced to pay a fine of $5.

Applicant was however informed by the first respondent that he was discharged from the Police Service in terms of s 48 of the Police Act. He was so informed on 19 February 2016.

Due to financial constraints the applicant said he was unable to engage for legal services. His wish is to appeal against his dismissal to this court but seeks condonation to file his notice of appeal a copy of the draft he attached.

I will not go into the details of the causes of the delays in filing the Notice of appeal before attending to one critical issue. The issue is, before the court deals with the issue of condonation does it have jurisdiction to deal with an appeal against the decision of the first respondent. Mr Mugiya who appeared for the applicant says the High Court has jurisdiction. He said while there is no express provision in the Police Act which says an appeal against the first respondent’s decision shall lie with the High Court, the same Act does not prohibit an appeal to lie with this court. Mr Mugiya relied on the case of Assistant Inspector Chatukuta v Trial Officer & Others HH 705-14 and Others to support his view.

However, the recent case of Sergenat Khauyeza v Trial Officer and Commissioner General of Police, HH 311-18 dealt with this legal question of whether or not an appeal lies against the decision of the Commissioner General of Police, and more so with the High Court. In dealing with this question the learned Judges, Chiweshe JP and Charewa J at pp 23 and 24 of the judgment had this to say, in part, “The Police Act does not provide for any right of appeal to the High Court against the decision of the Commissioner General,….Given the specific provisions of section 171 of the Constitution and section 30 and section 34 of the High Court Act, that any appellate jurisdiction must be specifically enacted.” The court in the judgment disagreed with Mr Mugiya’s argument that, “the absence of a specific bar against such appellate jurisdiction is tantamount to a right of appeal.”

I can’t do any better than agree with the reasoning of the court in that judgment. I do not know of any rule of law which says appellate jurisdiction in a court is conferred by the silence in a statute. The common law principle of inherent jurisdiction does not stretch itself to conferring appellate jurisdiction.

Mr Mugiya raised the same argument in this case which was rejected in the Khauyeza judgment.

Section 171 (1) (d) of the Constitution is specific in that, the High Court has such appellate jurisdiction as may be conferred on it by an Act of Parliament.

There is no Act of Parliament later alone the Police Act which says the High Court  has appellate jurisdiction to hear matters arising from the decision of the Commissioner General of Police. Mr Mugiya’s argument must fail.

If no appeal lies with the High Court, then it follows that this court cannot deal with the issue of condonation. The court cannot condone something which does not lie with it.

For this reason the application for condonation must suffer a still birth.

Accordingly, the application is hereby dismissed with costs.

Mugiya & Macharaga Law Chambers, applicant’s legal practitioners

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