MUKWEREZA V MIN OF HOME AFFAIRS & ANOR

Supreme Court, Harare Judgment No. S-27-04

Sandura J, Cheda JA & Gwaunza JA

Civil application

27 January & 13 May 2004

Interpretation of statutes – intention of legislature – how to be ascertained – speculative opinion as to what legislature probably would have meant – factors to consider in arriving at such opinion

Police – police officer – discipline – officer convicted and sentenced in a magistrates court – sentence consisting of fine plus suspended period of imprisonment – subsequent discharge of member by Commissioner – whether Commissioner entitled to discharge member

Statutes – Police Act [Chapter 11:10] – s 48 (1) – member convicted and sentenced in a magistrates court – sentence consisting of fine plus suspended period of imprisonment – subsequent discharge of member by Commissioner – whether Commissioner entitled to discharge member

The appellant, a police constable, had been convicted in the magistrates court of assaulting a member of the public. He was sentenced to a fine and in addition a suspended term of imprisonment. The Commissioner of Police discharged the appellant from the Police Force, relying on the provisions of s 48 of the Police Act. It was argued for the appellant that the Commissioner had no such power, as discharge was not permissible where only a fine was imposed and the section would not apply where a sentence was made partly of a penalty which entitled the Commissioner to discharge and partly of a penalty which did not entitle him to do so.

Held that: the “intention of the Legislature” may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. What was at issue is what Parliament might have intended to happen in cases where one part of a sentence fell within the ambit of the section in question, while the other did not. The court could resort to speculative opinion as to what the legislature probably would have meant.

Held further that: in such speculation, the court must consider a number of factors: (a) one of the main purposes of the Police Act is to provide for the control of the Police force; (b) the question of police discipline; and (c) what the Legislature has actually enacted, expressly or impliedly.

Held further that: the police’s main responsibility is to maintain law and order. A member who commits an offence that attracts imprisonment acts against such responsibility. The intention of the Legislature is that such a member be dealt with severely. The Legislature must have intended that a member who has been sentenced to a term of imprisonment without the option of a fine, irrespective of other dimensions of the same sentence which may not be applicable, be visited with any of the penalties set out in s 48.

Cases cited:

Zambezi Proteins (Pvt) Ltd & Ors v Min of Environment and Tourism & Anor 1996 (1) ZLR 378 (H)

Legislation considered:

Police Act [Chapter 11:10] s 48

J Zindi, for the appellant

C Muchenga, for the respondent

GWAUNZA JA: This is an appeal against a judgment of the High Court, in terms of which an application by the appellant for reinstatement to his employment with the Zimbabwe Republic Police, was dismissed.

The facts of the matter are not in dispute. The appellant was employed as a constable in the Zimbabwe Republic Police. He was based at Sanyati. On 12 July 2001, the appellant was convicted by the Magistrates’ Court, of assault with intent to cause grievous bodily harm. It was alleged that he had assaulted the complainant, a woman, within the police station at Sanyati, causing her certain injuries. He was sentenced to pay a fine of $3000 or in default thereof, nine months imprisonment with labour. He was also sentenced to a further nine months imprisonment with labour, which was wholly suspended for five years on condition of good behaviour.

Eight months after exhausting, without success, the domestic remedies in terms of appeal, the appellant took his grievance to the High Court. The court found that the appellant’s application, if it was to be taken as one for review, was “hopelessly out of time.”

However, in view of the fact that the appellant was, in the court a quo, a self-actor, the learned trial judge decided to determine the matter on the merits. He then dismissed the application, a circumstance that prompted the appellant to appeal to this Court.

The appellant’s grounds of appeal, having evidently been prepared by him, are not only very detailed, but also inelegantly formulated. What stands out from the grounds of appeal however, is the appellant’s disgruntlement with the decision of the court a quo generally, and in particular, its interpretation of s 48 of the Police Act, (Chapter 11:10). The second respondent invoked this provision in order to dismiss the appellant from his employment. The section reads as follows:

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

1. discharge the member; in which case the discharge may take effect from the date of his conviction; or

2. impose any one or more of the following penalties -

   1. reduction in rank;

   2. loss of seniority;

   3. withholding of an increment of salary; or

3. reprimand the member.”

The learned trial judge considered the appellant’s sentence in the light of this provision. He concluded that the first part of the sentence did not entitle the Commissioner of Police to discharge the Appellant. The learned judge found differently in relation to the second part, and noted as follows in respect thereof:

“But the second portion of the sentence which was imposed on the applicant which was nine months imprisonment wholly suspended for five years does allow the Commissioner of Police in my view to discharge the applicant and in these circumstances the Commissioner of Police was not obliged to convene a Board of Inquiry. He was entitled in terms of s 48 to summarily dismiss the applicant and I am satisfied that he acted lawfully in the circumstances.”

The learned trial judge then went on to dismiss the application, with costs.

Ms Zindi for the appellant contends that in enacting s 48 of the Police Act the Legislature did not envisage a situation where a sentence would have one part falling within the ambit of the section while the other fell outside it, as has happened in this case. She contends further that as this has created an ambiguity, such ambiguity must be resolved in favour of the accused, i.e. the appellant. Ms Zindi seeks to distinguish between the first part of the appellant’s sentence, and the second. She refers to the former as the “main” part, and the latter as the “additional” part. She suggests in effect that the “main” part be considered to the exclusion of the latter part, a situation which would have obliged the Commissioner of Police to act, not in terms of s 48, but s 50 of the Police Act. Section 50 obliges the Commissioner of Police to cause a board of inquiry to be set up, in order to inquire into the suitability of a Regular Force member to remain in the Regular Force, or retain his rank, seniority or salary.

For the respondents, the contention is made that since the last portion of the appellant’s sentence constituted a sentence of imprisonment without the option of a fine, the Police Commissioner was entitled to and did properly, invoke s 48. In other words, the argument is that the latter portion, in as much as it fell within the ambit of s 48 should so eclipse the first part of the sentence, as to attract the penalty imposed in the section. The parties therefore have put interpretations on s 48 that seek to give primacy to the part of the sentence that best served their different interests. Neither party cited any authorities to support their respective propositions. I am of the view that the only way to resolve the dispute is to determine what the intention of the legislature was. E A Kellaway, the learned author of “Principles of Legal Interpretation of Statutes, Contracts & Wills” looked at a number of British and South African authorities on what is meant by “Legislative intention” and concluded as follows at pg 175:

“In summary, the purpose of the rules of construction is to discover the intention of the law-giver, and such intention should be deduced from the actual words used by the legislating body, its general plan and its objects” (Lion Match Company Limited v Wessels 1946 OPD 376 at 380; S v Takaendesa 1972(4) SA 72 (RA); Van Heerden v Queen’s Hotel (Pty) Limited 1973 (2) SA 14 (RA) 16; S v Robinson 1975 (4) SA 438 (RA) 442; S v Hotel & Liquor Trade Association (Tvl) 1978 (1) SA 188 W 192).

GM Cockram expanded on this theory at pg 45 of his “Interpretation of Statues” Third Edition and stated that such objects must be gathered from “a comparison of its (the law’s) several parts, as well as from the history of the law and from the circumstances applicable to its subject matter.”

The learned author, EA Kellaway, in the same book mentioned above, went on to say at page 177:

“ However, Lord Watson said (Salomon v A. Salomon & Company 1897 AC 23 at 38; 75 LR 426; 14 TLR 46):

The ‘intention of the Legislature’ is a common but slippery phrase, which popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the Legislature probably would have meant, although there has been an omission to enact it … What the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.” (my emphasis)

This dictum, I find, can aptly be applied to the circumstances of this case in order to ascertain the intention of the Legislature in enacting s 48 of the Police Act.

Firstly there can be no doubt that the wording of s 48 is clear and unambiguous. There is no need to give the words other than their natural or popular meaning. Secondly, it is evident that what is at issue in casu is what Parliament might have intended to happen in cases where one part of a sentence fell within the ambit of the section in question, while the other did not.

On the authority of the dictum cited above, the court can resort to “speculative opinion” as to “what the Legislature probably would have meant, although there has been an omission to enact it,” in its endeavour to establish the intention of the Legislature.

It appears to me, in casu, that in such speculation, the court must consider a number of factors. The first such factor in my view is one of the main purposes of the Police Act, which is to provide for the control of the Police force. Subsumed under such control is the question of police discipline. The whole of Part V of the Act, under which s 48 falls, is concerned with discipline. That, therefore, should be the second factor to be considered. The third factor (and drawing from the dictum cited above) should be what the Legislature has actually enacted, expressly or impliedly.

The police’s main responsibility is to maintain law and order. It follows that a member who commits an offence that attracts imprisonment acts against such responsibility. The intention of the Legislature is that such a member be dealt with severely.

I am satisfied these considerations together lead to the safe assumption that the Legislature must have intended that a member who has been sentenced to a term of imprisonment without the option of a fine, irrespective of other dimensions of the same sentence which may not be applicable, be visited with any of the penalties set out in s 48.

This interpretation in my view accords with the main purpose of the Police Act, the Part under which s 48 falls, and the words that were used in the same section.

Ms Zindi contends that even if the Commissioner of Police was correct in invoking s 48, the circumstances of the case did not justify the imposition of the harshest penalty provided.

I am not persuaded there is merit in this argument. The provision in question clearly gives a discretion to the Commissioner to choose whichever of the penalties outlined, he deems appropriate. In this respect I am persuaded by the argument advanced for the respondents that the court can only interfere with an administrative decision on the grounds of unreasonableness if such unreasonableness is gross. (See Zambezi Proteins (Private) Limited & Ors v Minister of Environment and Tourism & Anor 1996 (1) ZLR, 378 H). The Court in the same respect was referred to Professor Feltoe’s “Guide to Zimbabwean Administrative Law” at page 31 where the following is said:

“it would seem to follow that on review the court has no power to overturn a decision simply because it considers it to be unreasonable. If it was to do so, it would in effect be substituting its own decision in place of the decision of the body empowered to make this decision.”

The appellant assaulted a member of the public and was convicted of assault with intent to do grievous bodily harm. The public trust and look to the police for protection. The appellant’s actions in my view not only constituted a breach of such trust but must also have offended against the rules governing the conduct of the police force.

I am satisfied the decision to dismiss the appellant given such conduct, was not grossly unreasonable.

During the hearing of the appeal, the Court enquired as to whether the appellant had noted an appeal against his conviction and sentence. The information was not immediately at hand, and was communicated to the Court later. Appellant’s counsel Ms Zindi in a letter informed the Court that the appellant had advised her that he had filed the appeal in August 2002. No documentary evidence of this fact was tendered. It appears to me, even if he did note the appeal, that the appellant might have been out of time, since his conviction had taken place almost a year earlier in July 2001. The appeal was also noted some eight or so months after the appellant received notice of his discharge from the police force. The appeal, if indeed it was noted, therefore has no effect on these proceedings.

I find in the result that the appeal lacks merit and must be dismissed.

It is accordingly ordered as follows:

“ The appeal is dismissed with costs.”

Sandura JA and Cheda JA concurred

Messrs Kantor & Immerman, appellant’s legal practitioners

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