Ex-Constable Ngwazi T. 083860B v The Commissioner General of Police and Police Service Commission and The Minister of Home Affairs

### Preamble
1
HH 179-21
HC 7683/18
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EX-CONSTABLE NGWAZI T. 083860B

versus

THE COMMISSIONER GENERAL OF POLICE

and

POLICE SERVICE COMMISSION

and

THE MINISTER OF HOME AFFAIRS

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE,27 March 2019, 29 May 2019 & 21 April 2021

Opposed Matter

T. Muvharu, for the applicant

D. Jarida, for the respondents

FOROMA J: This is a court application in terms of which the applicant seeks a declaratur. The applicant an ex-constable in the Zimbabwe Republic Police sued The Commissioner General of Police, The Police Service Commission and the Minister of Home Affairs for the following order:

‘(1)	That refusal by the 1st respondent to furnish applicant with reasons for his discharge be and is hereby declared unlawful and wrongful.

(2)	The failure by the 1st respondent to afford applicant the right to be heard before being discharged from the Police Service be and is hereby declared to be wrongful and unlawful.

(3)	The discharge of the applicant from the Police Service by the respondents be and is hereby declared wrongful and unlawful and accordingly set aside.

(4)	The respondents are hereby ordered to reinstate the applicant into the Police Service forthwith without loss of salary and benefits.

(5)	The respondents are ordered to pay costs of suit on attorney client scale.

The application was opposed by the first and second respondents.

The applicant claimed that the first and second respondents wrongfully and

unlawfully dismissed him in December 2015 without giving reasons for such dismissal. The applicant was jointly charged with two other members of the Police Service for contravening the Provisions of the Police Act. In his application the applicant complained that his co-accused namely Constable Mavinga and Constable Ndalema were not discharged but that he was discharged for no apparent reason. The applicant also complained that he was discharged without being afforded an opportunity to defend himself. He also complained that the first respondent failed to provide the reasons for his dismissal despite demand.

In their opposition the respondents disputed the applicant’s entitlement to a declaratur given that the applicant effectively was seeking a reinstatement in terms of para 4 of the draft order. The respondents argue that the applicant was properly discharged from Police service at the end of his contract. In this regard applicant was notified in terms of Annexure B that he would be discharged from the police service on expiration of his contract. Clearly therefore the reason for discharge was the termination of his contract at the expiration of the said contract. For this reason it is incorrect for applicant to suggest that he was not given any reasons for his discharge despite demand.

On the date of hearing of this application Mr Mugiya persisted that the applicant had not been notified of the set down of a board of Inquiry into applicant’s suitability despite Annexure A which is a record of the Board of Suitability. Consequently a dispute of fact arose which needed to be resolved through viva voce evidence as at the initial hearing of the application the dispute of fact was perceived as one not capable of resolution on the papers. It was therefore considered necessary and appropriate that viva voce evidence be adduced to assist the court resolve the matter. On the date of hearing the viva voce evidence the applicant however raised a new ground of objection to the Board of Inquiry namely that the proceedings were not stood down (adjourned to 1500 hours) as reflected in Annexure A to first respondent’s opposing affidavit but postponed sine die and that he was not advised of the new date of hearing. As the onus was on applicant to prove his apparent shift of goal posts applicant applied for a postponement of the matter to a new date to enable applicant to apply for an order to compel the respondents to produce the original record of the Board of Inquiry into his suitability from which he expected a clearer position as to whether the matter was adjourned to 1500 hours or was postponed sine die on 3 September 2015. The court dismissed the application for a postponement as in his answering affidavit applicant had not disputed the accuracy of Annexure A. Besides applicant’s position in regard to notification of the convening of the Board of Inquiry into suitability as reflected in para 5 of Ad para 8 of the Answering affidavit was that applicant had never been served with any papers calling upon him to appear before a board of suitability. Clearly applicant was prevaricating.

In the circumstances I find that the applicant has failed to prove that he was deprived an opportunity to be heard by the Suitability Board. I also find that the radio message reflected in Annexure B to the first respondent opposing affidavit was an adequate reason for his discharge. This application is totally without merit and I find it to be a clear abuse of process.

It is accordingly dismissed with costs which costs are to be on the higher scale of legal practitioner and client.

Mugiya & Macharaga Law Chambers, applicant’s legal practitioners

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