1
HB 121-15
HC 2384-14
BIGBOY MUVHIMI
versus
CHAIRMAN OF THE POLICE SERVICE COMMISSION
and
THE COMMISSIONER GENERAL OF POLICE
HIGH COURT OF ZIMBABWE
MAKONESE J
BULAWAYO 4 AND 11 JUNE 2015
Court Application for review
Applicant in person
No appearance for the respondents
MAKONESE J: This matter came before me in motion court as an unopposed matter. I dismissed the application and indicated that my reasons would follow. These are my reasons:
Background
The applicant was a constable in the Zimbabwe Republic Police. He was attested into the force on 24 October 2005 and at the time he was discharged from service he was stationed at ZRP Njube. The applicant’s record of service was clean until the 8 of October 2011 when he appeared before a single trial officer for contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10]. The allegations against him were that he had acted in an unbecoming or disorderly manner or a manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police force. He was convicted and sentenced to 14 days imprisonment at Fairbridge, Detention Barracks. The applicant served his sentence.
The circumstances surrounding the allegations against the applicant were that on 23 August 2011 the applicant went to the Crime Prevention Unit, Bulawayo West and booked out a CZ Pistol’ number BASP 168 and a magazine with 15 rounds of ammunition. The applicant did this while he was off duty and without authority from the office-in-charge. The applicant then teamed up with one Constable Muteve and Constable Kahwengwa and proceeded to Bonzo mine in Hillside. The applicant effected an arrest on Decide Sinamane a suspected gold dealer and confiscated a gold scale and two mobile phones from the suspect after threatening to detain them at Hillside Police Station. The matter was reported at Hillsdie Police Station. A criminal charge for contravening section 126 of the Criminal Law (Codification and Reform) Act, [Chapter 9:23], “armed robbery” was preferred against the applicant. The prosecution collapsed due to insufficient evidence to sustain the charge.
On 22 July 2013 the Commissioner General of Police convened a Board of Inquiry (Suitability) to look into the suitability of the applicant to remain in the police force or retain his rank, salary or seniority. The Board sat on 14 August 2013 at Bulawayo West Headquarters and recommended that the member be discharged from the force. The finding of the Board was that applicant was “unsuitable for Police duties.” The recommendations of the Board were approved by the Commissioner General of Police on 18 September 2013. The applicant filed an appeal against the Board’s decision with the Police Service Commission. On 30 September 2013 the applicant was reinstated to his position pending determination of his appeal by the Police Service Commission. The basis of the applicant’s appeal was as follows:
(a) the trial officer denied him the right to appeal to the High Court.
(b) the trial officer refused to recuse himself
(c) the trial and the Board of Inquiry were not supposed to take place according to Police Standing Orders Volume One Part 2 section 45.3 because the case had been heard in a criminal trial.
(d) The Board President violated section 32 of the Police Act [Chapter 11:10] which provides that a member may elect to be tried in a magistrates’ court instead of appearing before a Board of Inquiry (Suitability).
The Police Service Commission considered the appeal by the applicant and dismissed the appeal. The Commissioner General’s decision to discharge the applicant from the police force was accordingly upheld. The Police Service Commission came to its determination on the following grounds:
- the applicant was properly convicted for acting in an unbecoming manner or disorderly manner or in any manner prejudicial to good order or discipline. There was sufficient evidence led and it was common cause that the applicant unlawfully withdrew a CZ pistol from the charge office when he was off-duty. The applicant proceeded to effect an arrest and confiscate a gold scale belonging to a suspect, including two mobile phones.
- The Suitability Board was properly convened by the Commissioner General of the Zimbabwe Republic Police. The Board was convened in terms of section 50 of the Police Act [Chapter 11:10]. The Commissioner General is mandated to convene a Suitability Board of Inquiry.
- The applicant’s acquittal in the magistrates court does not bar the prosecution of a member of the police force in terms of the Provisions of the Police Act.
- The Board President was correct in disregarding the applicant’s election to be tried by a magistrates instead of the Board in accordance with section 32 of the Police Act. The section the applicant sought to take advantage of does not apply to non-commissioned ranks. The relevant section applies to officers of the rank of Inspector and above.
- The Police Service Commission concluded that there were no procedural irregularities as alleged by the applicant.
Basis of the Application
It is against this background that on 10 October 2014, the applicant filed a court Application for Review. In his application the applicant seeks a review of the decision of the Police Service Commission dated 30 July 2014. The applicant argues that the first respondent dismissed the applicant from the Zimbabwe Republic Police without reasonable and justifiable cause. The applicant’s grounds for review are stated in the following terms:
“1. The first respondent committed gross irregularity in his proceedings and resultant decision to dismiss my appeal as he omitted to take into consideration pertinent issues raised in my appeal.
2. The first respondent showed malice against me alone when he dismissed me from the police and pardoned my two co-accused police constables irregularly and unprocedurally.
3. Both my trial officer and Board of officers had no jurisdiction to try my case as they were biased and had an interest in the outcome of my case. They both contravened Part 2, section 33.3 of the Police Standing Orders Volume 1 when they presided over my case against the policy of the Zimbabwe Republic Police.
4. The first respondent committed a gross irregularity when he denied me an opportunity to elect to be tried by the magistrates court in accordance with section 32 of the Police Act.
5. The Police Board of Inquiry (Suitability) was improperly consulted as it had no Public Prosecutor to conduct the state’s case as required by law.”
The applicant supported his review application by filing various documents, newspaper cuttings, Statutory Instruments, various police radio signals and other communications between himself and his employer. The application was opposed by both first and second respondents. The relief sought by the applicant in the Draft Order is in the following terms:
“1. The decision of the first respondent to dismiss applicant from the Zimbabwe Republic Police on the 20th August 2014 be and is hereby set aside.
2. The applicant be and is hereby reinstated back into the Zimbabwe Republic Police without loss of benefits and seniority.
3. The matter be remitted back to the second respondent to be referred to the magistrates court in accordance with the law.
4. Respondent to bear the costs of this application.”
It is clear from the application that the applicant seeks a review of the decision of the Board of Inquiry that handed down its decision on 20 September 2013. Applicant became aware of that decision on the same date. It is trite that review proceedings are instituted within eight weeks after the termination of the proceedings or of becoming aware of the decision sought to be reviewed. The application was to that extent not brought in accordance with the provisions of Order 33 Rule 259 of the High Court Rules, 1971. This application for review was filed on 10 October 2014, a year after applicant became aware of his dismissal. No application for condonation for the late filing of the application for review was filed and in that regard the application is not properly before this court. On this basis alone, the application ought to be dismissed.
It would appear, however, that in the same review application the applicant seems to be seeking to review the decision of the Police Service Commission. From a perusal of all the documents filed in this matter there is nothing to suggest that there were any irregularities in the conduct of first respondent. Applicant appealed to the Police Service Commission as he is entitled to do. The appeal was determined from the record. There is no evidence to suggest that the Board of Suitability was not conducted in terms of the law. A finding that the applicant was no longer suitable for police duties was made and valid reasons were provided. The applicant never denied that he took a CZ when he was off duty and used it to effect an arrest. That conduct was not consistant with the manner in which police officers conduct their duties. There was good and sufficient reason to recommend the discharge of the applicant from the police service.
In the circumstances the application for review lacks merit. The assertion by the applicant that his election to be tried by a magistrate was refused is misplaced. The Police Act does not make such a provision in respect of Boards of Inquiry (Suitability). The Board of Inquiry was not a trial but an inquiry. There was no need for a prosecutor to lead the proceedings. The purpose of a Board of Inquiry (Suitability) is to establish whether a person is suitable to remain in the Police Service. These proceedings do not take the nature of a trial. There is no charge sheet. An inquiry is conducted into whether the individual is still a fit and proper person to remain in the police force. The applicant was served with all relevant documents before appearing before the Board of Inquiry. He was given an opportunity to make oral submissions before a determination was made. There was no irregularity in the conduct of such proceedings.
Having considered each of the grounds of review set out by the applicant I am left in no doubt that the application is not properly before the court as it was filed out of time. The application purports to be a review of the decision of the Police Service Commission of 20 August 2014, and yet the substantive matters raised in the application deal with the legality or otherwise of the decision of the Board of Inquiry (Suitability) convened on 14 August 2013. In any event on the merits the application still falls far short of being meritorious.
The powers of the High Court on review have been extensively discussed in the following cases:
Pangeti v Grain Marketing Board 2002 (1) ZLR 454 (H); Fikilini v Attorney General 1990 (1) ZLR 105; Secretary of Transport v Mukwavarara 1991 (1) ZLR 18.
In the instant case the applicant has not established any illegality, irrationality or procedural irregularity in the proceedings conducted by the Board of Inquiry (Suitability). There if therefore no basis for granting the order sought by the applicant in the draft order.
In the circumstances, and for the aforegoing reasons the application for review was dismissed.
