Constable Muganhu Robert (076756e) AND Constable HAMA David (083706j) V THE Commissioner General OF Police

### Preamble
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HH 499 - 25
Case No HCH 3238/24
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CONSTABLE MUGANHU ROBERT (076756E)

and

CONSTABLE HAMA DAVID (083706J)

versus

THE COMMISSIONER GENERAL OF POLICE

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE: 12 May 2025 & 4 September 2025

Opposed Application-Review

K.F. Chipudya, for the applicants

F. Chimunoko, for the respondent

MUSITHU J:    The applicants approached this court with an application for the review of the respondent’s decision to dismiss their appeal against the judgment of an internal police tribunal. The relief sought in the event of the court finding for the applicants was set out in the draft order as follows:

“1.	The application for review be and is hereby granted.

2.	The ruling by Respondent dated 17th June 2024 be and is hereby set aside and substituted with the following:

i.	Applicants’ conviction is quashed

ii.	Applicants are hereby found not guilty and acquitted.

3.	There shall be no order as to costs

Alternatively:

The sentence imposed against Applicants be set aside and substituted with the following;

“Applicants be and are hereby reprimanded”

Or

“An increment in Applicants’ respective salaries be held for two years from the date of this order”

There shall be no order as to costs.”

The Applicants’ Case

The applicants’ case was motivated as follows. They were arraigned at Mazowe District Headquarters court before a single Trial Officer (the Tribunal) facing charges of contravening paragraph 35 as read with sections 29 and 34 of the Schedule to the Police Act [Chapter 11:10], that is:

“Acting in an unbecoming or disorderly manner or in a manner which is prejudicial to good order or discipline or which is reasonably likely to bring discredit to the police service”. 	The allegations giving rise to the charge as against the first applicant were that:

“Upon (or about) the 31st of January 2023 and at Howard Police base, Glendale the defaulters did wrongfully and intentionally acted in a manner prejudicial to good order or discipline or which is reasonably likely to bring discredit to the police service by disposing dagga amounting to a half full plastic container which was an exhibit thereby defeating or obstructing the course of justice in a case of contravening section 157(1)(b) of the Criminal Law Codification and Reform Act Chapter 9:23 (FOUND IN POSSESSION OF DAGGA) in which Loveness Tsoora of Chikubve village, Chief Chiweshe was the accused person.”

As against the second applicant, the allegations forming the basis of the charge were that:

“In that on the 31st day of January 2023 and at Howard Police Base, Glendale the defaulter did wrongfully and intentionally acted in any manner prejudicial to good order or discipline or which is reasonably likely to bring discredit to the Police Service by disposing 5 litres of dagga which was the exhibit thereby defeating or obstructing the course of justice in a case of contravening section 157(1)(b) of the Criminal Law Codification chapter 9:23 “Found in possession of dagga” in which Loveness Tsoorai of Chikubve Village Chief Chiweshe, was the accused person. The defaulter acted unlawfully in breach of police regulations.”

The applicants pleaded not guilty but were convicted after a full trial. The disciplinary proceedings were commenced after the applicants had been acquitted on appeal by the High Court under CA 110/23, against the decision of the Magistrates Court (criminal), that had found them guilty of a criminal charge. The applicants averred that the allegations which formed the charge under which the applicants were acquitted were the same as those of the matter under review.  Aggrieved by the trial court’s decision the applicant appealed to the respondent who dismissed their appeal.

The applicants’ application for review was predicated on the following six grounds for review:

The respondent’s decision upholding the conviction of the applicants is grossly irregular in light of the fact that applicants were acquitted on the same allegations, evidence and standard of proof by the High Court under CA 110/23.

The respondent’s decision upholding the conviction of applicants is grossly irregular given that no evidence was adduced beyond any reasonable doubt that applicants had disposed of or tampered with the dagga as alleged.

Applicants’ conviction as upheld by the respondent is further grossly irregular taking cognisant of the fact that their defence was never discredited and remained probable such that a conviction could not be sustained in the circumstances.

The respondent’s determination is also grossly irregular bearing in mind that no evidence was adduced that applicants acted in a manner prejudicial to the good order or discipline or reasonably likely to bring discredit to the police service.

The sentence imposed and upheld by Respondent is also grossly irregular given that it is too harsh and induces a sense of shock in light of the mitigatory factors of the matter which outweighed the aggravatory features of the offence.

Respondent’s determination upholding a sentence of imprisonment is further grossly irregular in that no serious consideration of a fine was made and no reasons were given for not imposing a fine despite that the penal provisions provide for an option of a fine and in terms of SI 146 of 2023 a fine was supposed to have been considered.

The second applicant filed a supporting affidavit in which he associated himself with the averments made by the first applicant in his founding affidavit.

Respondent’s Case

While conceding that the allegations which formed the charge in respect of which the applicants were acquitted in the criminal case were similar, it was important to note that the applicants were convicted by the Tribunal court after a finding that the manner and conduct exhibited by the applicants in handling the exhibits on the day of their arrest, was conduct likely to bring discredit to the Police Service.

The respondent further averred that there was nothing irregular for a member of the disciplined service to be convicted in disciplinary proceedings after being acquitted in criminal proceedings. The criminal trial was concerned with the criminal conduct of the accused, whereas in the disciplinary court, the enquiry was concerned with whether or not the member acted in a manner likely to bring discredit to the police service. It did not matter therefore that the State failed to prove its case in the criminal trial or that the witnesses who testified in both proceedings were the same.

It was further averred that even though no one witnessed the applicants disposing of the dagga, the evidence in the record of proceedings was to the effect that the witnesses saw that the quantity of dagga in the transparent red bucket measured up to half of ten litre bucket. That quantity was later reduced to just two twists of dagga. Even though the size of the bucket was in contention, it was contended that what was corroborated by the witnesses was that the red bucket was transparent such that one could see the contents from outside.

The respondent dismissed the applicants’ assertion that they performed their duties above board, when they actually admitted that no proper handover of the exhibits was done. It was only when the applicants realised that the net was closing in on them that they hurriedly compiled paperwork which had errors. For instance, the accused was identified as Loveness Sithole instead of Loveness Tsoora. In addition, it was also averred that the applicants had failed to satisfactorily explain why they failed to: show the exhibit to the witnesses who accompanied them to arrest the accused; record statements from the same witnesses who had accompanied them to arrest the accused; failed to record the description of the exhibit and failed to inform their officer in charge about the arrest and the recovery of the exhibit.

As regards the issue of sentence, it was contended that the sentence was not only within the trial officer’s jurisdiction, but it also met the justice of the case since the nature of the misconduct flew in the face of the Government’s “no to drugs” campaign.

The Submissions

Mr Chipudya for the applicants submitted that the charges preferred against the applicants were that they disposed of a five litre red bucket half full of dagga that they had recovered from an accused person whom they had arrested. According to counsel, two of the witnesses who gave evidence in the hearing distanced themselves from having knowledge of the five litre container to a ten litre container. A half full five litre container would not hold the same quantity of dagga as a half full ten litre container.

Mr Chipudya further submitted that there was no evidence of tampering before the court. The disciplinary tribunal therefore erred in convicting if regard was had to the evidence of the witnesses. Counsel also submitted that the person from whom the dagga was recovered was not called to testify as a witness, even though she had been charged with the two applicants in the criminal court. What caused the arrest of the applicants was the complaint that Loveness Tsoora who happened to be the source of the dagga, was seen roaming about at the shops following her earlier arrest by the police.

In response, Mr Chimunoko for the respondent urged the court to dismiss the application for lack of merit. He submitted that the trial officer had occasion to examine the witnesses and assess their evidence. Aaron Muza who was initially found with the dagga and his mother accompanied the police to where the recovery of the container was made. The teacher and the headmaster also saw the police holding a bucket and they observed that it was half full.

According to Mr Chimunoko, the alleged tempering with the dagga occurred at the police base, where the loose dagga had been replaced by twists of dagga. The applicants were simply required to take the dagga and its container and just label it as an exhibit. Counsel also submitted that the applicants were properly convicted after the presiding officer took into account the evidence that was placed before him.

Analysis

The genesis of the complaint against the applicants which culminated in the institution of the disciplinary proceedings against them was that after arresting Loveness Tsoora and Aaron Muza, they recovered a five litre red bucket half full of dagga. The applicants took Tsoora and Muza together with the recovered dagga to their Police Base. It was alleged that at the Police Base, the applicants connived with the Loveness Tsoora and disposed of most of the dagga leaving only three twists. The officer in charge at Glendale Police Station, Chief Inspector Chauke received a tip off of the unprocedural conduct by the applicants and went on the ground to investigate for himself.

As stated above, the case for a review of the respondent’s decision was motivated on the basis of six grounds for review which I will relate to hereunder in the context of the evidence on record. The first ground for review was that the respondent’s decision upholding the conviction of the applicants was grossly irregular because the applicants were acquitted on the same allegations, evidence and standard of proof by the High Court under CA 110/23. This ground for review is clearly without merit because the mere fact that the applicants were acquitted by a criminal court is no bar to the preference of misconduct charges against the applicants. In the present matter, the applicants were not charged with the same offence as the one before the criminal court. The present disciplinary proceedings were concerned with the manner in which the applicants had conducted themselves, which it was reckoned, was likely to bring discredit to the police service. The facts or circumstances giving rise to the proceedings before the two different fora may have been the same, but the charges were different.

The second ground for review was that the respondent’s decision upholding the conviction of applicants was grossly irregular given that no evidence was adduced beyond any reasonable doubt that the applicants had disposed of or tampered with the dagga as alleged. The court finds no basis to fault the findings and the decision of the respondent in disposing of the appeal by the applicants. In disposing of the grounds of appeal number one and number two which challenged the propriety of the evidence placed before the Tribunal, the respondent noted that the applicants did not challenge the witnesses’ evidence on the quantity of dagga recovered during their cross examination of the witnesses.

The respondent had also found that the evidence of the witnesses was so credible as they corroborated each other. The respondent also found the witnesses’ evidence to be reliable and coherent. From a reading of the record, it is clear that Aaron Muza and the teacher, Tafadzwa Zharare, corroborated each other in their evidence on the quantity of the dagga and the type of container which contained the dagga. They both confirmed that the container was ten litres in size, and transparent such that one could see that it was half full. They also saw that it contained loose dagga. The same position was confirmed by Chief Inspector Chauke after he had occasion to interview Aaron Muza and her mother Mwenda Rupiya. The ground for review is accordingly dismissed for lack of merit.

The third ground was that the applicants’ conviction as upheld by the respondent was grossly irregular taking cognisant of the fact that their defence was never discredited and remained probable such that a conviction could not be sustained in the circumstances. There is no merit in this ground for review. The applicants did not set out the nature of their defence that they felt was never discredited. In its analysis of a related ground of appeal, in which the applicants attacked the disciplinary tribunal’s rejection of their defence, the respondent noted that the fact that the recovered dagga was tempered with whilst in the custody of the applicants was uncontroverted. The applicants were also accused of failing to record statements from Aaron Muza and Tafadzwa Zharare.  They were also accused of failing to compile a criminal docket against Aaron Muza who was found in possession of the dagga at school. The respondent also found that the applicants released Loveness Tsoora from their custody unprocedurally after finding her in possession of the dagga.

The fourth ground was that the respondent’s determination was also grossly irregular bearing in mind that no evidence was adduced that applicants acted in a manner prejudicial to the good order or discipline or reasonably likely to bring discredit to the police service. The court finds no merit in this ground for review. As already stated in the third ground for review above, the respondent in his judgment summarised the reasons why he upheld the decision of the tribunal in connection with the finding that the applicants acted in a manner that was contrary to good order or discipline or reasonably likely to bring discredit to the police service.

The fifth ground was that the sentence imposed and upheld by respondent was also grossly irregular given that it was too harsh and induced a sense of shock in light of the mitigatory factors of the matter which outweighed the aggravatory features of the offence. The sixth ground was that the respondent’s determination upholding a sentence of imprisonment was further grossly irregular in that no serious consideration of a fine was made and no reasons were given for not imposing a fine despite that the penal provisions provided for an option of a fine and in terms of SI 146 of 2023. A fine was therefore supposed to have been considered.

These two grounds for review relate to the same complaint about the appropriateness of the sentence meted out by the tribunal which was upheld on appeal by the respondent. The imposition of an appropriate sentence involves the exercise of discretion by the court or tribunal, having considered the circumstances of the case including mitigating and aggravating factors. Generally, this court will be slow to interfere with the sentence imposed by a lower court as that would be tantamount to an intrusion in matters involving the exercise of discretion. The court will only interfere if it reckons that the manner in which that discretion was exercised was so grossly unreasonable as to amount to a miscarriage of justice. The respondent justified the imposition of a custodial sentence. In his own words, he said:

“This Court noted that the sentence imposed by the Trial Officer is not harsh or induces a sense of shock. The Trial Officer imposed a sentence which is within his sentencing jurisdiction as provided for under section 29A (1)(d)(iii) of the Police Act.

The sentence passed was appropriate taking into consideration the gravity and seriousness of the offence committed by the Appellants. The sentence impose is reasonable and justified. A non-custodial sentence does not suffice under these circumstances. The court took into consideration the points raised in mitigation but the points raised were outweighed by the gravity and the seriousness of the offence committed by the Appellants….” (Underlining for emphasis).

Clearly the reasoning of the respondent cannot be faulted on the issue of sentence. He found the reasons given by the tribunal justified in imposing the custodial sentence. It was about the gravity and the seriousness of the offence, and the fact that the aggravating circumstances far outweighed the mitigatory factors. The respondent found no reason to interfere with the exercise of discretion by the tribunal on the issue of sentence.

In view of the foregoing, the court determines that there is no merit in the application for review and it ought to be dismissed.

Costs

The general rule is that costs follow the event. I find no reason to depart from this general rule and award costs to the respondent as the successful part.

Resultantly, it is ordered that:

The application for review is hereby dismissed for lack of merit.

The applicants shall bear the respondent’s costs of suit on the ordinary scale.

Musithu J: ………………………………………………………

Ruth Zimvumi Legal Practice, applicants’ legal practitioners

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