Constable Kanengoni v Trial Officer N.O. [Superintendent Mandigora] and Commissioner General of Police N.O.

### Preamble
1
HMA 43-18
HC 406/17
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CONSTABLE KANENGONI

versus

TRIAL OFFICER N.O. [SUPERINTENDENT MANDIGORA]

and

COMMISSIONER GENERAL OF POLICE N.O.

HIGH COURT OF ZIMBABWE

MAFUSIRE J

HARARE, 28 June 2018 & 12 September 2018

Opposed application

Mr T.T. Musina, for the applicant

Mr. T. Undenge, for the respondents

MAFUSIRE J:

[1]	The applicant was a regular member of the police force. He was a constable. The respondents sought to try him for alleged indiscipline in terms of s 29, as read with s 34 of the Police Act, Cap 11:10, and as further read with paragraph 35 of the Schedule to that Act.

[2]	In terms of s 29 of the Act a member of the police force who, among other things, commits an offence specified in the Schedule shall be guilty and liable to a fine or imprisonment or both. Section 34 of the Act empowers an officer in the police force [i.e. holding a commissioned rank] to try a member charged with any offence specified in the Schedule. The offence created by paragraph 35 of the Schedule is:

“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force”

[3]	The allegations making up the alleged offence were framed in the police charge sheet as follows:

“In that on the 20th of February 2015 and at Target Kopje, Masvingo, the accused, being a member of the Police Service did wrongfully, and unlawfully had sexual intercourse with Precious Mupakwa, a married person being a member of the public without her consent, thereby tarnishing the image of the Organisation.”

[4]	The charge did not mention “rape”. But legally, having sexual intercourse with a woman without her consent is rape. The applicant understood the charge as rape. He objected and said the Police could not possibly try him with that offence. He had already been tried by the magistrate’s court for the same offence. He had been acquitted.  Not only that, but he had ended up suing the complainant, Mupakwa, and her husband, for damages for malicious prosecution and defamation arising out of that charge. He had won the case. The two were actually paying him the damages, as assessed by the court, through a garnishee order. Therefore, the argument concluded, it was wrong for the respondents to purport to bring the same charge against him because it amounted to double prosecution, something prohibited by the Constitution.

[5]	 The other ground for objection by the applicant was that there had been an inordinate delay by the Police in charging him under the Police Act; that as a result of that delay he had suffered prejudice; that he stood to suffer more prejudice if the intended prosecution was not stopped and that at any rate, his constitutional right to, inter alia, a speedy and public hearing within a reasonable time had been violated.

[6]	The period from the time of the alleged offence, 20 February 2015, to the time he was now being charged by the Police, 20 November 2017, was two years and ten months. The applicant had been acquitted of rape in the magistrate’s court on 3 September 2015. He had been granted damages by the civil court on 18 October 2016. He had been granted the garnishee order on 15 February 2017.

[7]	The applicant maintained that the first time the respondents sought to charge him was 21 February 2015; that he had appeared before the first respondent on over four occasions and that after he had been acquitted by the magistrate’s court and subsequently awarded damages in the civil court, Mupakwa, the complainant, had connived with the respondents to “fix” him by reviving the same allegations all over again.

[8]	The respondents denied that the applicant’s acquittal by the magistrate’s court, or his award of damages for malicious prosecution and defamation, was a bar to their right or power to bring disciplinary proceedings against him in terms of the Police Act. They denied that the applicant had appeared on over four occasions before the first respondent on the same charge in question or that he had first appeared on 21 February 2015, but that he had been served with a notice only once, on 20 November 2017, to appear before the first respondent on 24 November 2017, on which date the matter had been remanded to 12 December 2017 because his legal practitioner had come late. They professed no knowledge of the applicant’s acquittal in the magistrate’s court or of his successful claim for damages for malicious prosecution and damages. They denied any connivance with Mupakwa. They denied there had been an inordinate delay and averred that the delay complained of could have been caused by the applicant himself owing to his appearances in the magistrate’s court.

[9]	It was common cause or evident that the applicant had been tried of the rape of Mupakwa in the regional court and had been acquitted. In separate civil proceedings in the magistrate’s court he had been awarded damages for malicious prosecution and defamation arising out of the same rape allegations and had proceeded to execute through a garnishee order.

[10]	So broadly, and in a nutshell, the issues before me were twofold, namely:

Was it still competent for the Police to bring disciplinary proceedings against the applicant in terms of the Police Act on the same allegations forming the charge of rape in respect of which he had previously been acquitted by the magistrate’s court?

Was there such an inordinate delay in bringing the applicant to discipline after the allegations of rape had surfaced as would entitle him to a permanent stay of prosecution under the Police Act?

[11]	I now proceed to determine these issues.

i/	Whether it was still competent for the applicant to be tried before the respondents in terms of the Police Act

[12]	The fulcrum of the applicant’s argument was s 70(1)(m) of the Constitution. It reads:

“(1)	Any person accused of an offence has the following rights –

(m)	not to be tried for an offence in respect of an act or omission for which they have previously been pardoned or either acquitted or convicted on the merits.”

[13]	For the respondents, the fulcrum was s 278(2) of the Criminal Law (Codification and Reform) Act, Cap 9:23, (“the Code”). It reads:

“A conviction or acquittal in respect of any crime shall not bar civil or disciplinary proceedings in relation to any conduct constituting the crime at the instance of any person who has suffered loss or injury in consequence of the conduct or at the instance of the relevant disciplinary authority, as the case may be.”

[14]	Obviously the Constitution is the superior law. It brooks no conflict with any other. If it says no accused person gets tried twice for the same offence with which he was previously pardoned or acquitted or convicted, then no other law can say anything to the contrary and remain valid. But I see no other law saying anything to the contrary. The Code, in the cited section, is addressing a different situation altogether. The one situation is the effect of an outcome from a criminal court on the rights and obligations in the civil court. The victim of a crime is not precluded, by an acquittal of the culprit by the criminal court, from suing him in the civil court for damages arising out of that crime. Conversely, except for situations contemplated by s 358 and Part XIX of the Criminal Procedure and Evidence Act, Cap 9:07 [relating to orders for restitution or compensation by the criminal court], which are not relevant here, a conviction in the criminal court is no automatic entitlement to an order for compensation from the civil court to the victim of the crime.

[15]	The other situation being addressed by s 278[2] of the Code is the effect of an outcome in the criminal court to the power of a disciplinary authority to bring disciplinary proceedings against someone subject to its authority in relation to their conduct that formed the subject of the criminal proceedings. Thus, that someone might have been acquitted by the criminal court on certain charges is no bar to the disciplinary authority bringing disciplinary proceedings on them based on the same facts as those forming the charge in the criminal court. Conversely, that someone was convicted by the criminal court is no automatic ground to pass a disciplinary penalty on them solely on the basis of such conviction without having gone through the disciplinary process.

[16]	In s 70(1)(m), the Constitution is referring to criminal proceedings in a criminal court after another set of criminal proceedings on the same set of facts or allegations. But in s 278(2) the Code is referring to civil proceedings by a civil court or disciplinary proceedings by a disciplinary tribunal following proceedings in a criminal court.

[17]	However, the applicant argued that in relation to disciplinary proceedings the situations being addressed by the Constitution and the Code in the cited sections are one and the same. He said disciplinary proceedings under the Police Act are criminal, not civil, in nature. I summarise his submissions as follows:

By s 193 of the Constitution, tribunals that deal with cases under disciplinary law may exercise or be given jurisdiction in criminal cases. That means the disciplinary process under the Police Act is criminal in nature.

By virtue of s 29A of the Police Act a member who commits an offence as specified in the Act or Schedule, may be tried by the conventional courts or an officer such as the first respondent, and be liable to punishment as prescribed. The kind of penalty that the conventional courts or the trial officer may mete out shows that the proceedings are criminal in nature.

By virtue of the Police Standing Orders and the Uncoded Rules governing disciplinary proceedings in the Police Force made by the second respondent in terms of the powers vested in him by s 9 and s 72 of the Police Act, any member charged with a criminal offence shall not be tried by, among others, a single officer such as the first respondent, but shall be dealt with in accordance with the provisions of the Criminal Procedure and Evidence Act. On this particular aspect the applicant’s point was that once a member is charged with an offence under the Police Act that also constitutes a crime under the ordinary law, then a single officer such as the first respondent lacks the jurisdiction to try him. The trial before him must stop and be referred to the conventional courts.

[18]	The applicant’s arguments had force. But they were flawed. Regarding the argument that by virtue of s 193 of the Constitution disciplinary tribunals may exercise or be given criminal jurisdiction in the same way as the conventional courts, the applicant glossed over the full import of the provision and placed selective emphasis on some aspects of it. In terms of s 193(b) of the Constitution, the criminal jurisdiction that may be exercised or be given to disciplinary tribunal is not open-ended. It is for a specific purpose. It is to the extent that it is necessary to enforce discipline. That is what the provision says. Conventional criminal courts punish errant members of the society on behalf of the general public. On the other hand special disciplinary tribunals punish their errant members for the good of their particular organisations.

[19]	The power to sentence a convicted member that is bestowed by s 29A of the Police Act on a single officer such as the first respondent is limited to a trifle level two fine [$15], or imprisonment for no more than a mere fourteen days, or to both such fine or imprisonment. In comparison, the magistrate’s court or the High Court can sentence a convicted member up to a level ten fine ($700), or imprisonment up to five years, or both such fine or imprisonment. The flaw in the applicant’s argument under this head is that nothing in s 29A or in the sentencing jurisdictions of the various courts suggests that the proceedings before them are criminal in nature. These provisions fall under that part of the Police Act titled “Discipline”, suggesting that the whole object of conferring criminal jurisdiction on disciplinary tribunals is solely the enforcement of discipline.

[20]	The position is made clearer by the Police Act itself. Under s 34(9) it says:

“A member who is found guilty of a contravention of this Act by an officer shall not be regarded as having been convicted of an offence for the purpose of any other law”(emphasis added)

[21]	Thus, what s 34(9) above means is that if the applicant had been tried by the Police Tribunal of the rape of Mupakwa before being charged of the same offence in the regional court, he could not possibly plead, in the regional court, autrefois acquit, if the tribunal had acquitted him, or autrefois convict, if the tribunal had convicted him. The converse should also be true. He cannot now plead autrefois acquit just because the regional court found him not guilty. Section 39(4) of the Police Act is making the point that such circumstances do not constitute double prosecution.

[22]	In Sangu v Commissioner General of Police & Ors HB 110-16, the applicant was convicted by a single officer, such as the first respondent herein, under paragraph 34 of the Schedule to the Police Act for the theft of funds belonging to a police canteen. He was sentenced to a fine of $10 and to detention for a period of 10 days in some police barracks. He was subsequently summoned to appear before a police board of enquiry in terms of s 50 of the Act to enquire into his suitability or fitness to remain a member of the Police Force or to retain his rank, seniority or salary. He sought to interdict that board on the basis that he had already been acquitted of the theft charges by the magistrate’s court. Dismissing the application, MATHONSI J held that despite the applicant’s acquittal by the magistrate’s court, the police were not precluded from bringing disciplinary proceedings against him under the civil law on the same facts as those forming the criminal charge in the magistrate’s court.

[23]	I need not be detained by the applicant’s reference to the so-called Police Standing Orders or the Uncoded Rules, which he extensively quoted from. These are documents not in the public domain. The applicant did not produce them. I have previously dealt with a similar problem in a case prosecuted by the same law firm as the present one, namely Chihwai v Board President NO & Anor HMA 12-18. These rules or orders or whatever they are or whatever they say, cannot possibly override the clear provisions of the Police Act, the Code or the Constitution.

[24]	Apart from the foregoing, I also consider that it was incompetent for another reason for the applicant to have sought an order of permanent stay of prosecution on the alleged double prosecution principle. Throughout his application the basis of his acquittal by the regional court was never disclosed. It could be that he was acquitted because no sexual intercourse ever took place between him and Mupakwa, or if it did, that it was consensual. He attached the full judgment of the civil court awarding him damages for malicious prosecution and defamation. But this judgment did not mention the basis of his acquittal. He did not attach the judgment of the criminal court. He only attached an extract from the criminal record book. It simply said: “Not guilty and acquitted”.

[25]	The point is: the substance of the charge being preferred against the applicant under the Police Act is the tarnishing of the image of the Organisation. As noted already, the way the charge is framed seems to suggest that the crime of rape is the bedrock of that charge. But it also appears that having sexual intercourse with a married female member of the public may be another basis of the charge. But whether or not consensual sexual intercourse between an adult policeman and an adult married female member of the public tarnishes the image of the Police is what is set to be tried by the tribunal in terms of whatever special laws there may exist. It was not an issue before me. Therefore, it would be premature for this court to interfere.

[26]	In the circumstances, the applicant’s objection to being tried by the Police Tribunal on the basis that he has already been acquitted of the same charge by the magistrate’s court is hereby overruled.

ii/	Was there such an inordinate delay in bringing the applicant to discipline after the allegations of rape had surfaced as would entitle him to a permanent stay of prosecution under the Police Act?

[27]	Prima facie a delay of two years and some ten months to bring someone to book is too long. It triggers an enquiry as to the cause of the delay: see Barker v Wingo 407 US 514 (1972) at p 519 – 520, quoted with approval in In re Mlambo 1991 (2) ZLR 339 (SC), at p 350A – B:

“The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.”

[28]	The applicant said he appeared before the first respondent on over four occasions but that the respondents were not yet ready to prosecute. The respondents deny that and say he was only summoned once. For proof of that allegation the applicant referred to some record of proceedings which he alleged was attached. But no such record of proceedings was attached or ever produced. Taken to task over this the applicant changed course and charged that the onus to produce it had been on the respondents themselves once he had launched his application. But the respondents pointed out that all there ever was on this aspect was their summons, or notice to attend proceedings, which incorporated the charge, and the outline of the charges, both of which the applicant himself had produced. These documents showed that the charges had been raised on 20 November 2017 for a trial on 24 November 2017.

[29]	Therefore, there was nothing to suggest that the applicant had appeared before the first respondent on over four occasions on the same charge, or that he had first appeared on 21 February 2015. At p 346E in Mlambo’s case above, the Supreme Court said:

“The time frame to be considered starts to run from the moment a person is charged. The key word is ‘charged’. What does it mean in the context of s 18(2)? Does the provision envisage only the situation where the accused is called upon in court to plead to a formal charge?”

[30]	Cases such as Mlambo above, and S v Nhando & Ors 2001 (2) ZLR 84 (S), that the applicant strongly relied upon, were dealing with a slightly different provision of the old Constitution and a different scenario altogether. The provision of the old Constitution that the Supreme Court was dealing with, s 18(2), in summary, required that a person charged with a criminal offence should be afforded a fair hearing within a reasonable time by an independent and impartial court, unless the charge was withdrawn. The scenario the court was dealing with was the effect of an inordinate delay which was partly occasioned by a withdrawal of the charges before plea, i.e. whether the period before that withdrawal could be included in calculating the period of the delay. The court said the period before the withdrawal would be included if the charge was subsequently reinstated. Thus in Mlambo, a delay of three years, and in Nhando, a delay of eight and half years, were both held to be so inordinate as to warrant a permanent stay of prosecution.

[31]	In the present case, I accept the respondents’ version that the first time the applicant was summoned to appear before the Police tribunal was 20 November 2017 and that he actually did appear four days later. Therefore, from that angle there was no delay at all. However, that is not the end of the matter. It cannot excuse the preceding delay of some two years and ten months before the police summons. Section 18(2) of the old Constitution referred to a person charged with a criminal offence (my emphasis). But s 69(2) of the current Constitution refers to a right to a fair and speedy hearing within a reasonable time before an impartial court or tribunal in the determination of civil rights and obligations. It was unreasonable for the Police to bring charges against the applicant some two years and ten months after the alleged act of misconduct. It is not only the actual date the charge is preferred that is relevant in the computation of the delay. Even in the Mlambo case, the court discounted that date as the only relevant date. Gubbay CJ said, at p 346E:

“To my mind, such a restrictive construction has the effect of rendering the protection [rendered by the Constitution] almost nugatory. It squares more with an arraignment. And, of course, it would be susceptible to untold abuse, permitting the State to delay inordinately before bringing a person before the trial court, happy in the knowledge that by so doing there had been no violation of a constitutional right.”

[32]	In the present case, the situation was made worse in that the respondents never satisfactorily explained the cause of the delay. They just made a bare denial. They said if at all there had been a delay, “… it could have been caused by the Applicant as he said he was also appearing in the Regional criminal court …” This was not satisfactory. A delay of two years and some ten months needed to be explained. They seemed to be guessing. At any rate, the applicant was acquitted by the magistrate’s court on 3 September 2015. That was some two years and three months to the time of the police summons. He was awarded damages by the civil court on 18 October 2016. That was some fourteen months to the time of their summons. The respondents said nothing about these milestones.

[33]	What is a fair and speedy hearing in the context of s 69(2) of the Constitution is not defined. It can never be defined. It can only be left to the courts to determine on a case by case basis. The factors to be considered in an application for a permanent stay of prosecution such as this one are (a) the length of the delay, (b) the reasons given by the State for such a delay, (c) whether the applicant asserted his rights to a speedy trial and (d) the prejudice to the accused caused by the delay: see S v Nhando & Ors, supra.

[34]	Neither party satisfactorily dealt with the aspects of whether the applicant had asserted his rights before the police tribunal or not, and what prejudice he suffered by reason of the delay. It was only in the heads of argument by the applicant’s lawyers that it was submitted, without any factual foundation or any supporting detail, that some of his witnesses had died. That seemed manifestly contrived.

[35]	In my view, the factors relevant for deciding whether or not to grant a permanent stay of prosecution by reason of an inordinate delay in the conventional courts also apply to special tribunals such as the one established under the Police Act. In my view such factors are to be taken cumulatively.

[36]	In casu, I have already considered that there was an inordinate delay which has not been explained.

[37]	Even though neither party satisfactorily dealt with the question whether the applicant asserted his rights, I consider it only fair that this be decided in his favour if regard is had to the surrounding circumstances. Until he was summoned on 20 February 2017 he had no reason to do anything. When the Police, as part of the State machinery, eventually charged him with rape in the magistrate’s court, he successfully defended himself. He followed that up with a successful suit against the complainant and her husband for damages for malicious prosecution and defamation arising out of the rape charge. Demonstrably, this was an assertion of rights. When the police, more than two years later, decided to bring him to discipline over the same allegations, he got a lawyer to defend himself.

[38]	With regards to prejudice, anyone who has to answer allegations going back some two to three years potentially suffers prejudice. In the present case, Mupakwa will obviously be the Police star witness. But she was disbelieved by the criminal court. She was disbelieved by the civil court. She and her husband were ordered to compensate the applicant. Under such circumstances, what value will be her testimony before the Police tribunal?

[39]	In the circumstances the application for a permanent stay of prosecution before the Police Tribunal succeeds by reason of the inordinate delay. The following order is hereby made:

i/	The intended prosecution of the applicant before the first respondent on the allegations relating to alleged sexual intercourse on 20 February 2015 with one Precious Mupakwa without her consent is hereby stayed permanently.

ii/	The costs of this application shall be borne by the respondents.

12 September 2018

Mugiya & Macharaga Law Chambers, applicant’s legal practitioners

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