REPORTABLE (8)

Judgment No. SC 15/08

Civil Appeal No. 121/05

ANATOS MPOFU v

(1) COMMISSIONER OF POLICE (2) POLICE SERVICE COMMISSION

SUPREME COURT OF ZIMBABWE

CHIDYAUSIKU CJ, SANDURA JA & GWAUNZA JA

HARARE, OCTOBER 31, 2006, JULY 31 & SEPTEMBER 2, 2008

T P Kawonde, for the appellant

P Ndlovu, for the respondents

CHIDYAUSIKU  CJ:

The appellant in this case (hereinafter referred to as “Mpofu”) was charged with and convicted of assault on 23 July 1999. He was fined $400 or in default of payment two months’ imprisonment with labour. He was further sentenced to imprisonment for one month, all of which was suspended for five years on certain conditions. He successfully appealed against both conviction and sentence.

Following Mpofu’s conviction but before the appeal was heard, the first respondent (hereinafter referred to as “the Commissioner of Police”) summarily dismissed Mpofu from the Zimbabwe Republic Police with effect from 30 December 1999. The Commissioner of Police dismissed Mpofu in terms of s 48(a) of the Police Act [Cap 11:10] (hereinafter referred to as “the Act”). Section 48(a) of the Act provides as follows:

“48 Procedure upon conviction of member for certain offences

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 –

(a) discharge the member, in which case the discharge may take effect from the date of his conviction; …”.

As I have already stated, Mpofu’s appeal against both conviction and sentence was successful. In September 2001 the High Court quashed the conviction and set aside the sentence.

Following the quashing of the conviction, Mpofu asked the Commissioner of Police to reinstate him. The request was refused. Mpofu thereafter appealed to the second respondent (hereinafter referred to as “the Commission”) against the decision to dismiss him. Some fifteen months elapsed between Mpofu’s dismissal and the appeal to the Commission. On 25 August 2003, the Commission dismissed the appeal on the ground that the appeal to it was noted out of time.

Mpofu’s appeal to the Commission was in terms of s 51 of the Act, which provides as follows:

“51 Appeal

A member who is aggrieved by any order made in terms of section forty-eight or fifty 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.”

The Regulations under the Act provide that an appeal against a decision in terms of s 48 of the Act has to be filed within seven days.

Part V of the Police (Trials and Boards of Inquiry) Regulations 1965, s 15(1) thereof, as amended by s 8 of the Police (Trials and Boards of Inquiry) (Amendment) Regulations 1998 (No. 4), provides that:

“A member who wishes to appeal in terms of s 51 of the Act shall –

(a) within twenty-four hours of being notified of the decision of the Commissioner, give notice to his officer commanding of his intention to appeal;

(b) within seven days of being notified of the decision of the Commissioner, lodge with his officer commanding a notice of appeal in writing setting out fully the grounds upon which his appeal is based and any argument in support thereof.”

It is quite clear that Mpofu’s appeal to the Commission against his dismissal by the Commissioner of Police was filed out of time. The probabilities are that this was due to the conviction being quashed well after the time for noting an appeal had prescribed. The Commission, as I have said, dismissed the appeal on the ground that it was filed out of time.

Mpofu was dissatisfied with the decision of the Commission and sought to have it set aside on review by the High Court. On 17 October 2003 Mpofu launched an application in the High Court for the rescission of the decision of the Commission. In the application for review the applicant sought the following relief:

“IT IS ORDERED THAT:

1. The Commission’s decision dated 25 August 2003, which turned down the applicant’s appeal, is hereby nullified and set aside.

2. In place thereof, the following is submitted (substituted?) as the Commission’s decision:

‘(a) the appeal is upheld; and

(b) the Commissioner of Police of the Zimbabwe Republic Police (ZRP) is hereby ordered to reinstate Anatos Mpofu in the ZRP without loss of salary and benefits (including promotions and salary increments)’; and

3. The Commission shall pay the costs of this application.”

I pause here to make the following observation. The application for review was really intended to set aside the Commission’s refusal to hear Mpofu’s appeal. The appropriate relief should have been to ask the High Court to set aside the refusal to hear the appeal and to order the Commission to hear the appeal. The relief sought in the review application was misconceived.

The High Court dismissed the application for review. It is quite clear from the record that the application for review to the High Court was timeous. The Commission dismissed Mpofu’s appeal on 25 August 2003. The application for review to the High Court was launched on 17 October 2003. The application for review was therefore made within the eight weeks stipulated by the High Court Rules.

The learned Judge in the court a quo suggests in his reasons for judgment, in my view erroneously, that the application for review to the High Court was filed out of time. However, a close analysis of the reasons for judgment reveals that this was not the reason for the dismissal of the review application. He dismissed the application for review on the ground that Mpofu’s appeal to the Commission was out of time and prescribed. The Commission, so he reasoned, was correct in dismissing the appeal on the ground that it was noted out of time. The reasoning and conclusion of the court a quo in this regard cannot be faulted. Mpofu’s appeal to the Commission was noted well out of the time prescribed by the Regulations. There was no application to the Commission for condonation of the late noting of the appeal. Even if there had been an application for condonation, I am doubtful of the Commission’s jurisdiction to grant such condonation because the time limits for appeal procedures are statutory.

The learned Judge in the court a quo was correct in holding that Mpofu’s appeal to the Commission against his dismissal was hopelessly out of time.

On this basis the decision of the High Court to dismiss the application for review cannot be flawed.

I, however, do not think that this should be the end of the matter. Section 48(a) of the Act, in terms of which the Commissioner of Police dismissed Mpofu, confers on the Commissioner of Police the discretion to discharge a member of the Police Force, such as Mpofu, upon him being convicted of an offence and sentenced thereafter to imprisonment without the option of a fine. It is quite clear from this provision that a member of the Police Force has to stand convicted of an offence before he can be dismissed in terms of s 48 of the Act.

On the facts of this case, at the time that the Commissioner of Police discharged Mpofu, Mpofu stood convicted of assault, but on appeal to the High Court the conviction was quashed and the sentence set aside. The successful appeal had the retrospective effect of obliterating the conviction which was the basis of Mpofu’s dismissal. In this regard, Mr Kawonde, for Mpofu, submitted that:

“13. The appellant appealed his conviction. On 27 September 2001 the conviction was quashed and substituted by an acquittal. That acquittal rendered the conviction a nullity. It is trite that nothing arises out of a nullity. To the extent that the (respondents) purported that something could, they erred.”

I agree with Mr Kawonde’s submission. To hold that Mpofu stands discharged from employment on the basis of a conviction that was quashed would be a travesty of justice and totally irregular. The dismissal of Mpofu in terms of s 48(a) of the Act in casu is unlawful because he stands convicted of no offence. The Commissioner of Police’s discretion to dismiss Mpofu is predicated on the existence of a conviction which in this case has ceased to exist although it may have existed at the time of the dismissal. On this basis I am satisfied that Mpofu’s dismissal is unlawful and constitutes an irregularity.

Section 25 of the Supreme Court Act [Cap 7:13] provides as follows:

“25 Review powers

(1) Subject to this section, the Supreme Court and every judge of the Supreme Court shall have the same power, jurisdiction and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) The power, jurisdiction and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court or a judge of the Supreme Court that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

It would appear to me that this is a proper case for this Court to exercise the powers conferred by the above section of the Supreme Court Act to correct a blatant irregularity by an administrative authority in dismissing Mpofu.

It is on this basis that this Court hereby sets aside as unlawful the dismissal of Mpofu in the above circumstances.

Having concluded that the dismissal of Mpofu was unlawful, I hold the view that on the facts of this case, in particular the fact that this is essentially a labour dispute and the time that has elapsed since the dismissal of Mpofu, and the nature of the employment involved in this case, the parties should have an opportunity to address the issue of reinstatement or payment of damages in lieu of reinstatement. The issue of whether Mpofu should be reinstated or paid damages in lieu of reinstatement has never been addressed, either in this Court or in the court a quo. In my view, the parties should be given an opportunity to debate that issue before a determination on it is made. The parties have advised the Court that they would prefer the matter to be remitted to the High Court for the determination of that issue. In my view, the Commission would have been the most appropriate authority to determine that issue in the first instance. However, Mpofu is against a remittal to the Commission because the Commission has been party to these proceedings and has expressed its stance. In the light of this, Mpofu entertains some doubt that he will get a fair hearing from the Commission upon remittal of this matter to it. The respondents are agreeable to the matter being referred to the High Court. In the circumstances, by consent the matter will be remitted to the High Court.

In the result the matter is remitted to the High Court for the purposes of determining whether following the unlawful dismissal of Mpofu he should be reinstated, as he requests, or be paid damages in lieu of reinstatement. Mpofu has been substantially successful and should be awarded his costs.

Accordingly, the matter is hereby remitted to the High Court for the determination of the issue of whether Mpofu should be reinstated or paid compensation in lieu of reinstatement and, if so, the quantum of the damages. Mpofu is hereby awarded costs.

SANDURA JA: I agree

GWAUNZA JA: I agree

Kawonde & Company, appellant's legal practitioners

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