Judgment No. HB 56/13

                                                                                                            Case No. HCR 3245/12

                                                                                                            X REF HC 1491/12

REGINALD MAPIKA                                                                                        APPLICANT

Versus

CHAIRMAN OF POLICE SERVICE COMMISSION                                           1^ST RESPONDENT

And

COMMISSIONER GENERAL OF POLICE                                                         2^ND RESPONDENT

And

CHIEF SUPERINTENDENT MASINA                                                                3^RD RESPONDENT

And

OFFICER COMMANDING BULAWAYO PROVINCE                                        4^TH RESPONDENT

And

CO-MINISTERS OF HOME AFFAIRS                                                               5^TH RESPONDENT

IN THE HIGH COURT OF ZIMBABWE

CHEDA AJ

BULAWAYO 28 JANUARY & 7 MARCH 2013

Applicant in person

T. Dodo for the respondents

Opposed Application

            CHEDA AJ:       The applicant, an attested member of the Zimbabwe Republic Police, was dismissed from the force on the 4^th of June 2012.  He has now applied for a review of the decision made by the respondents to dismiss him.  The background to this matter is as follows.

            On the 9^th of February 2009 the applicant was charged before a Regional Magistrate in Harare, for contravening section 93 of the Criminal Law (Codification and Reform) Act Chapter 9:23 (the Code).  It was alleged that on 14 July 2009 at house number 1802 Mapereke Road, Marlborough, Harare, he unlawfully by means of threats of force or the use of fraudulent misrepresentation or otherwise deprived Kimberly Tafadzwa Nyamukapa, an adult of her freedom of bodily movement, intending to cause her such deprivation or realizing that there was a real risk or possibility that such deprivation may result.

            He was found guilty and sentenced to 8 years imprisonment of which 2 years were suspended for 5 years on conditions of good behaviour.

            While he was in Harare Prison waiting for the determination of his bail pending appeal at the High Court the 2^nd respondent discharged him from the force as unfit due to misconduct on the 10^th of February 2011.  He was later released on bail on the 23^rd of March 2011.  In his founding affidavit he says the 2^nd respondent committed both error of law and fact in the manner he handled his case. 

            When he was shown the police radio message of his discharge on the 5^th of April 2011 he immediately lodged an appeal.  He says he only got to know then that he had been discharged on the 10^th of February 2011.  He says his salary was cut off in February unlawfully in violation of section 44 of the Act.

            He says it was not correct that he appealed to the 1^st, 3^rd and 4^th respondents out of time.  He quoted section 51 of the Police Act Chapter 11:10 which states that:

“A member who is aggrieved by any order made in terms of section 48 or 50 may appeal to the Police Service Commission against the order within the time and in the manner prescribed, and the order shall not be executed until the decision of the Commission has been given.”

            He also said the 2^nd respondent committed both an error of fact and law by dismissing him without instituting the disciplinary trial and the Board of Inquiry in terms of section 50 of the Police Act.  He said the failure by the respondent to carry out a disciplinary trial within a reasonable time was unlawful.  He cited a number of cases in which disciplinary trials were held against other police officers in similar cases.

            The 1^st respondent cited section 48(a) of the Police Act Chapter 11:10 which states that:

“If a member other than an officer, is convicted of any offence and sentenced therefore to imprisonment without the option of a fine, whether or not the execution of such sentence is suspended, the Commissioner General of the Police may (a) discharge the member in which case the discharge may take effect from the date of his conviction.”

            There are two sections in the Act which deal with a policeman who is convicted of an offence.  Section 48 deals with a “member” while section 49 deals with an “officer”. 

“Member” is defined as any person by whatever rank or title designated who has been appointed to and is serving in the Police Force.

            “Officer” means a member holding a commissioned rank.

            The applicant is a member.

            Section 48 says:-

            “Procedure on conviction of member for certain offences.

            If a member other than an officer, is convicted of any offence and sentenced thereof to imprisonment without the option of a fine, whether or not the execution of such sentence is suspended, the Commissioner may-

(a)   Discharge the member, in which case the discharge may take effect from the date of his conviction; or

(b)   Impose any one or more of the following penalties:-

(i)                 Reduction in rank

(ii)               Loss of seniority

(iii)             Withholding of an increment of salary or

(c)    reprimand the member”

It is clear from the above that the suspension of execution of the sentence by an appeal does not save the member from discharge.

I do not understand this section to grant a member the same right as an officer, who, under section 49, is subject to an inquiry in terms of the Commission of Inquiry Act.  The Board of Inquiry in section 50 is set up to inquire into the suitability or fitness of a regular force member to remain in the regular force, a different situation from one where there is a conviction for an offence followed by a term of imprisonment.

The applicant in this case is a member, not an officer.  He was convicted of a serious crime generally referred to as abduction and sentenced to 8 years imprisonment.  The Commissioner was within his right to discharge him from the force.

There is therefore no merit in his complaint and application for review.  The application for review is dismissed.

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