EX Constable Muzorewa W Versus THE Commissioner General OF Police AND THE Police Service Commission

### Preamble
1
HH 91-21
HC 51/18
---------




EX CONSTABLE MUZOREWA W

versus

THE COMMISSIONER GENERAL OF POLICE

and

THE POLICE SERVICE COMMISSION

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 1 October, 14 October 2020 & 9 March 2021

Opposed Application – Review

E. Samundombe for the Applicant

D. Jaricha for the 1st and 2nd Respondent

MUSITHU J:

INTRODUCTION

Applicant is an ex-member of the Zimbabwe Republic Police, (ZRP). He was attested into the Police Service on 2 February 2011. He was discharged from service by 1st respondent on 10 January 2017. He appealed that decision to the 2nd respondent. 2nd respondent dismissed the appeal on 25 October 2017. It is that decision which is the subject of this application for review. The grounds for review are set out ex-facie the application. They are as follows:

“1. There was gross and fatal irregularity in the determination of appeal by 2nd Respondent in that it made a decision without conducting any proceedings.

2.	2nd Respondent also committed a gross and fatal irregularity by making a decision without any reasons to justify it.

3.	2nd Respondent also committed a gross and fatal irregularity by upholding decision of 1st Respondent, which was based on purely wrong information.

4.	2nd Respondent also committed a gross irregularity by treating applicant differently from others he faced the same charge with and with whom he had a similar record of career”

The relief sought is couched in the draft order as follows:

“IT IS ORDERED THAT

The decision by 2nd Respondent to dismiss Applicant’s appeal be set aside and the matter be referred back to the 1st Respondent.

The dismissal of Applicant from the Police Service be set aside and Applicant be reinstated without loss of salary and benefits from date of discharge.

1st Respondent be ordered to convene another board, if he so wishes, based on a correct record of career, that is, one which does not include wrong charges for which Applicant was acquitted.

There be no order as to costs”

The application is opposed.

FACTUAL BACKGROUND

The applicant was a duly attested member of the ZRP for six years before his discharge from the Police Service. The circumstances leading to his discharge were as follows. On 14 January 2015, he was charged for contravening paragraph 35 of the Schedule to the Police Act (the Act). He was acquitted. On 18 November 2015, he was charged for contravening paragraph 12 of the schedule to the Act. He was convicted and sentenced to pay a fine of $10.00. On 7 December 2015, he appeared before a Board of Inquiry (Suitability) (hereinafter referred to as the Board) presided over by a Chief Superintendent Gondo. The Board recommended that he be given a warning, just like fellow officer Constable Chipawo who also appeared before a Board on the same circumstances.

Dissatisfied with the outcome of the Board, the 1st Respondent allegedly convened another board on 7 December 2016. That Board was based on the same summary of career as the first Board. Following what applicant terms “new and directed recommendations”, 1st respondent discharged him from the Police Service on 10 January 2017. No reasons were given for his discharge. Applicant appealed to the 2nd respondent. The grounds of appeal were that: 1st respondent ignored recommendations by the first Board that he be given a warning; the summary of career contained wrong charges some of which he had been acquitted of. For instance it showed that on 6 December 2011, he had been reprimanded for leaving point of guard, yet at no point was he ever reprimanded for any offence. The summary of career also alleged that he committed an assault on 29 October 2012. No charges were ever preferred against him. The arrestee in that case tried to make counter allegations which were found to be false.

There were also allegations of an assault allegedly committed on 6 November 2013. Applicant was acquitted by a court of a single officer presided over by a Superintendent Nyamukuta. He was never tried by a criminal court for the same allegations. It was wrong to include these allegations in the summary of career.  There were also allegations of an assault he allegedly committed on 6 December 2014. He was acquitted by a Chief Superintendent Kapungu at Harare Central District Headquarters. No further criminal charges were preferred. He was also charged with contravening paragraph 35 of the schedule to the Police Act on 19 June 2015. He was acquitted by a Superintendent Madungwe at Chegutu District Headquarters. He was not tried by the criminal court on the same allegations. The only charge that was correctly referred to in the record was that of contravening paragraph 12 of the schedule to the Act. He was convicted and sentenced to pay a fine of $10.00.

Applicant Case

Applicant contends that he was improperly discharged. The record was replete with patently false information. He was treated unfairly considering a constable Chidawa who faced similar allegations and had a similar summary of career escaped with a warning. Further, Detective Constables Chapwanya and Phiri who were also charged for the same offence never appeared before any Board. Applicant avers that he was made to appear before a Board because of wrong information in the summary of career. Applicant contends that 1st respondent was wrong in discharging him on that basis. 2nd respondent was similarly wrong in upholding 1st respondent’s decision, which was based on those irregularities. 2nd respondent is also accused of dismissing applicant’s appeal without conducting any proceedings. No reasons were given for the 2nd respondent’s decision.

1st Respondent’s Case

In response, 1st respondent raised a point in limine. It was clear from the papers that applicant was seeking to impugn the decision of the Board that handed down its decision on 6 January 2017. Applicant became aware of the recommendations on 17 January 2017. Review proceedings were supposed to be instituted within 8 weeks of the handing down of the decision sought to be reviewed. The application was irregular. It was not properly before the court. The application for review was filed on 4 January 2018, almost one year after applicant became aware of his dismissal. No condonation for the late filing of the application was sought. The application had to be dismissed on that basis.

On the merits, 1st respondent admitted that applicant indeed appeared before a Board chaired by a Chief Superintendent Gondo. He denied that the Board recommended that applicant be given a warning. In its letter of 14 December 2015, the Board recommended that applicant be discharged from service as he was unsuitable for Police duties. In any case, the recommendations of the Board were not binding on the 1st respondent. 1st respondent denied that a new Board was convened as a result of his dissatisfaction with the decision of an earlier Board.

1st respondent conceded that the summary of career contained some disciplinary cases for which applicant was acquitted. It also contained criminal cases for which he was never tried in a court of law. However, the decision to convene a Board was triggered by what 1st respondent referred to as “leaving his guard, post, beat, patrol or other place of duty without permission or reasonable excuse”. While admitting that applicant was acquitted on charges relating to the assault cases which occurred on 6 November 2013 and 6 December 2014, 1st respondent denied that the summary of career was the basis for convening the Board leading to applicant’s discharge. He further averred that a summary of career was not just confined to indiscipline. It also covered positive attributes of a member.

2nd Respondent’s Case

In its opposing affidavit, 2nd respondent denied ever receiving a request for the record of proceedings from the applicant. The record had since been mailed to the applicant’s lawyers. It further averred that applicant appeared before a single trial officer and also a Board in terms of section 50(1) of the Act.  The basis of the allegations were that applicant proceeded to investigate a case of culpable homicide without authority from his Officer in Charge. Before that incident, applicant had been charged for assault three times and twice for leaving his place of guard.

Applicant’s Reply

In reply, applicant insisted that he was challenging the decision of 2nd respondent. 1st respondent only came into the picture because it was his decision that 2nd respondent considered on appeal. To that end, the application was not filed out of time. 2nd respondent did not record the proceedings, and neither did it avail reasons for its decision. Applicant also insisted that he was acquitted on the charge of contravening paragraph 35 of the schedule to the Act.

2nd Respondent’s Record of Proceedings

At the first hearing, I struck off the matter from the roll to allow applicant to avail 2nd respondent’s record of proceedings. The record was filed on 15 July 2020. On 23 September 2020, I postponed the matter to 1 October 2020 to allow applicant’s counsel to repaginate the record following its filing. The charge upon which applicant’s discharge was premised was recorded as follows:

“On 18 November 2016, ex-Constable Muzoriwa appeared before a Single Trial Officer for contravening paragraph 12 of the Schedule to the Police Act, [Chapter 11:10], “Leaving his guard, post, beat, patrol or other place of duty without permission or reasonable excuse, or being required to remain at a station or in a camp, quarters or a district, absenting himself from duty without leave or reasonable excuse” for investigating a culpable homicide case without authority from his Officer In Charge. He was sentenced to US$10.00”

Applicant’s grounds of appeal were recorded as follows:

“5.1 Ex-member’s claims that the Commissioner General of Police-;

5.1.1 	Erred when he convened two Boards of Inquiry (Suitability) on the same matter. The 	outcome of the first Board of Inquiry (Suitability) was not communicated to him and 	he was later dragged to another Board of Inquiry (Suitability).

5.1.2	Erred when he failed to consider the principle of fairness on the fact that his co-accused were never summoned from Board of Inquiry (Suitability) and neither have been discharged. He was treated unfairly.

5.1.3	Erred when he resorted to the worse punishment when other more accommodative punishments are there which could have met the justice of the matter”

The circumstances were that applicant, who was stationed “at PGHQ Consec acting in common purpose with Detective Constable Phiri, Constable Chidawa and Detective Constable Chapwanya all of CID proceeded to Chikari area in Chegutu. They did not seek authority from their Officer in Charge. They then went to Drillwell 9 mine, Chikari at the house of Carren Jubiya and Chenei Kambudzi. They advised the two that they were investigating a case of culpable homicide in which Carren Jubiya is the accused person. While at the house ZRP Chikari who had picked information of the presence of members stormed the house and arrested the four”

Having highlighted the charge and the circumstances preceding the commission of the offence, 2nd respondent then proceeded to stress other offences applicant allegedly committed before. For instance, on 11 November 2011, applicant was charged for assault as defined in section 89 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code). He is alleged to have assaulted one George Kanyama on 29 October 2011. The disciplinary trial did not materialise after key witnesses failed to attend the trial.  On 13 December 2011, applicant was issued with a minor misconduct for contravening paragraph 12 of the Act. Circumstances were that on 6 December 2011, he left his place of duty at NOCZIM House without leave or reasonable excuse. On 8 December 2014, applicant was charged with assault in terms of section 89 of the Code. He is alleged to have assaulted a civilian Liberty Nziramasanga, while in the company of a Constable Chiduwa. They were both off duty. The case was dropped since the complainant could not be located. On 20 December 2013, applicant was charged with assault in terms of section 89 of the Code. He is alleged to have assaulted a civilian Trust Mutanavhungwa. The case was again dropped since the complainant could not be located.

In its final analysis, 2nd respondent noted:

“7.2.1 Ex-Constable Muzoriwa’s record of service shows that he is unwilling to change despite the numerous chances that he was given to reform. He was charged for assault three times which shows his violent nature. He left his place of guard twice and was issued with Minor Misconduct. All this led to the Commissioner General of Police to convene a Board of Inquiry (suitability) which recommended his discharge. Ex-member’s behaviour of assaulting members of the public is against the statutes of the Zimbabwe Republic Police who advocate for professionalism to safeguard its reputation.

…………………..

7.2.3 Ex-member argues that the principle of fairness was ignored in his case as his co-accused was not discharged. Whilst it is a fact that ex-member and his accomplices all contravened the Police Act [Chapter 9:10], each case was dealt with its merit. It should be noted that ex-member’s record of service has a plethora of convictions in which he was given numerous chances to reform. All of ex-member past conviction were considered during the Board of Inquiry (Suitability) deliberations leading to discharge. In that regard ex-member should not compare his fate with others who might have lean rewords.

7.3 Having looked at the aforementioned facts and events the Police Service Commission turned down ex-Constable Muzoriwa Police’s decision to discharge him from the Police Service…”

SUBMISSIONS ON THE PRELIMINARY POINT

At the hearing on 1 October 2020, Mr Samundombe for the applicant raised a preliminary point. Applicant appealed against 1st respondent’s decision to the 2nd respondent. 1st respondent acted outside the law. Section 223 of the Constitution, as read with 219(4), showed that the power to employ and discharge members of the police force was now reposed in 2nd respondent. The decision by 1st respondent to discharge applicant was therefore a legal nullity. It violated section 223 of the Constitution which now vested powers to discharge in 2nd respondent. Consequently, 2nd respondent’s decision could not be allowed to stand as it was founded on a nullity. Mr Jaricha for the respondents asked for time to consider this legal point. He had been ambushed. Applicant’s counsel had not hinted on raising this very novel point at any stage. While acknowledging that a party could raise a legal issue at any stage of the proceedings, the nature of the legal question required time for further ventilation. It had far reaching consequences.

The court was satisfied that the legal point was complex and equally fundamental. It touched on the constitutional powers of both respondents. I postponed the matter to 14 October 2020. Counsel were directed to file supplementary heads of argument addressing this point.

At the resumption of the hearing, Mr Samundombe urged the court to consider the legality of 1st respondent’s decision and its resultant implications. He argued that the new Constitution effectively ousted the 1st respondent’s powers to discharge members of the Police Service. On the strength of Attorney General v Leopold Mudisi and 4 Others, Mr Samundombe argued that every power conferred by the Constitution included powers that were reasonably necessary or incidental to the exercise of those powers. Section 223 of the Constitution gave 2nd respondent powers to employ members of the Police Service. It followed that it had the sole mandate to discharge. The court was also referred to section 24 of the Interpretation Act.

In response, Mr Jaricha submitted that amongst 2nd respondent’s Constitutional functions was the power “to employ qualified and competent persons to hold posts or ranks in the Police Service”. The powers conferred did not extend to the discharge of members of the Police Force. That function was still reposed in the 1st respondent in terms of section 50 of the Act. 1st respondent himself was a Constitutional appointee. The power to discharge members was grounded in the Act, and was still within the exclusive dominion of 1st respondent. 2nd respondent enjoyed appellate powers in terms of section 51 of the same Act. In line with the maxim expressio unius, excusio alterius, section 50 of the Police Act was not inconsistent with the implied functions of 2nd respondent not expressly stated in the Constitution. The point in limine was therefore ill-conceived.

ANALYSIS

It is axiomatic that the powers conferred on the 2nd respondent under section 223 (1) (a)-(g) of the Constitution do not extend to the discharge of members of the Police Service. The power to discharge is still reposed in 1st respondent under section 50 of the Act. The question that arises is whether in reposing powers to employ in 2nd respondent, the Constitution effectively ousted 1st respondent’s powers to discipline members of the Police Service. Section 219 of the Constitution falls under the heading “Police Service and its functions”. It deals with 2nd respondent’s responsibilities. Just like section 223 with provides for the functions of 2nd respondent, the section does not refer to matters of discipline amongst members of the Police Service. Section 219 (4) is however instructive in this regard. It states:

“(4) An Act of Parliament must provide for the organisation, structure, management, regulation, discipline and promotion and demotion of officers and other members and, subject to section 223, the conditions of service of members of the Police Service”

In my view, the drafters were aware that certain matters incidental to those outlined in the Constitution would have to be provided for in an Act of Parliament. In the context of the Police Service, that Act of Parliament is the Police Act. Section 50 gives 1st respondent the power to discharge a member once a Board finds such member unsuitable or unfit to remain in service. The submission by Mr Samundombe that on the authority of Attorney General v Leopold Mudisi, as read with section 24 (1) of the Interpretation Act, 1st respondent’s powers to discharge were ousted, is untenable. In the Attorney General v Mudisi case, the court had this to say:

“In terms of s 114(1a) of the Constitution, every power conferred by the Constitution includes any other powers that are reasonably necessary or incidental to its exercise. Section 24(1) of the Interpretation Act [Chapter 1:01] provides to the same effect in relation to every power to do any act or thing conferred upon any person or authority under any enactment. In addition, there is the time honoured common law principle that the power to do or create a particular thing ipso jure encompasses and carries with it the power to undo or abolish that thing. In the words of Kotze CJ in Brown v Leyds N.O. (1897) 4 OR 17 at 39:

“The general rule is that the same authority, which introduces anything, may also abolish it, and usually in the same manner. Cuius est instituere eius est abrogare; and naturale est quod libet dissolvi eo modo quo ligatur.”

It is important to note that the Attorney General v Leopold Mudisi case was dealt with in the context of the provisions of the old constitution. It follows that a reference to section 114(1a) of the old Constitution and section 24 (1) of the Interpretation Act does not help advance the applicant’s cause. The new constitutional regime brought with it a new legal framework dissimilar to the old. The cases are clearly distinguishable. I agree with Mr Jaricha’s submission that section 219(4) of the new Constitution envisaged a scenario where an Act of Parliament can provide for certain matters not explicitly catered for under the Constitution.

That approach finds expression in the maxim expressio unius est exclusio alterius.  It is this court’s view that the express mention of 2nd respondent’s powers to employ qualified and competent persons to hold posts in the Police Service was not done ex abundanti cautela. It was deliberate. It was made with the provisions of section 219(4) of the Constitution and section 50 of the Act in mind. Matters of discipline and the discharge of members of the Police Service are still reposed in 1st respondent, with 2nd respondent enjoying appellate powers. The preliminary point is therefore without merit and is accordingly dismissed.

MERITS

Mr Samundombe submitted that 2nd respondent erred in dealing with matters that had nothing to do with the original convening order. The original error was made by 1st respondent who made a decision based on the findings of a Board that relied on a summary of career tainted with falsehoods. The Applicant referred to the celebrated case of Mcfoy v United Africa Co. Ltd where the court said:

“If an act is void then it is in law a nullity. It is not only bad but incurably bad……and     if the proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

Counsel submitted that the decision of the 1st Respondent was premised on an illegality. It could not be allowed to stand. 2nd respondent fell into error in upholding a decision that was premised on an illegality. The Board ought to have taken into account applicant’s service record which had no previous convictions. In response, Mr Jaricha conceded that, 2nd respondent erred in considering extraneous factors that had nothing to do with the original convening order. He made no further submissions.

As already noted, in its final analysis 2nd respondent referred to a plethora of convictions. No evidence was placed before the court to suggest that the applicant was ever convicted of the assault and abandonment of place of guard. The Board ought not to have allowed its judgment to be clouded by irrelevant issues. 1st and 2nd respondents equally fell into error by relying on the findings of the Board. In that connection, the decision of the 1st respondent, and by extension that of the 2nd respondent cannot be allowed to stand. The concession by Mr Jaricha was in my view, well taken.

COSTS

The general rule is that the successful party is entitled to costs on a scale which must be determined depending on the nature of the case and the manner in which litigation was conducted. The applicant’s founding affidavit left a lot to be desired. It was convoluted and nebulous leaving the court with the unenviable task of sifting through the papers in order to knit the facts together. Affidavits must, for the benefit of the court, set out the background facts germane to the dispute with sufficient detail and clarity. Annexures to affidavits should equally not be attached as a formality. Their connection to the cause of action must equally be explained with sufficient exactitude.

2nd respondent’s record of proceedings was not available at the first hearing resulting in the postponement of the matter. On the second hearing, the entire record of proceedings was in disarray following the filing of the 2nd respondent’s record. It had not been repaginated. The court was left with no choice but to postpone the matter yet again. The missing record of proceedings had just been thrown in amongst the papers. No supplementary affidavit was filed to explain its relevance. The conduct of the applicant’s counsel in this regard is inexcusable. He should have done better. Be that as it may, the matter raised an important legal issue, in respect of which counsel had to file supplementary heads of argument at short notice. While the general rule is that costs follow the cause, I find this a proper case to order that each party bears its own costs of suit.

DISPOSITION

Accordingly, it is ordered as follows;

The application succeeds, and 2nd respondent’s decision to dismiss applicant’s appeal is hereby set aside.

The applicant is hereby reinstated into the Police Service without loss of salary and benefits from the date of discharge by 1st respondent.

1st respondent may convene another Board of Inquiry (Suitability), based on a correct record of career.

Each party shall bear its own costs.

Samundombe & Partners, legal practitioners for the applicant

Civil Division of the Attorney General’s Office, legal practitioners for 1st and 2nd respondents