THE COMMISSIONER GENERAL OF POLICE
OFFICER COMMANDING POLICE – BULAWAYO PROVINCE
CHIEF SUPERINTENDENT CHIKUNGURU
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 26 MAY, 8 JUNE & 16 JULY 2015
Urgent Chamber Application
E. Mlalazi with Miss S. Sihwa for applicant
L. Musika for respondent
TAKUVA J: This is an urgent chamber application wherein the applicant seeks the following order:
“Terms of final order sought
That you should show cause to this honourable court why a final order should not be made in the following terms:
1.1st, 2nd and 3rd respondents be and are hereby ordered to refer applicant’s disciplinary hearing before a magistrate.
Interim relief granted
(i)1st, 2nd and 3rd respondents be and are hereby interdicted from authorizing an officer in the ZRP to preside over the matter involving applicant.
(ii)Should 1st, 2nd and 3rd respondents have authorized an officer in the ZRP to preside over the matter involving applicant before the hearing of this matter, the proceedings or any decision arrived thereat be and are hereby set aside and a trial de novo is ordered before a magistrate”.
The facts are not in dispute. They are as follows:
The applicant is an attested Sergeant in the ZRP currently stationed at ZRP Gwanda District Headquarters. The applicant was served with a notice to appear before a Police Disciplinary Hearing on the following charge:
“Contravening paragraph 35 of the Schedule to the Police Act Chapter 11:10 as read with section 34 of the said Act that 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.”
The factual allegations are that on or about the 8th day of November 2014 and at corner Fife Street and Jason Moyo Avenue, the applicant being a member of the Force did wrongfully and unlawfully incite five members of the public who had been arrested for “illegal pirating” and whose vehicles had been impounded, to file a petition at the High Court against the Police. Applicant was also accused of having filed an affidavit bearing a false name “Emmerson Mdala” which was produced in the High Court.
Applicant then filed this application on the following grounds:
- that he has a strong apprehension that he will not receive a fair hearing since all senior officers were instructed by 3rd respondent to convict him;
- that his possible witnesses are likely to be intimidated since members of the ZRP have already visited them enquiring about the issue.
- that despite the right of appeal to the 1st respondent, that appeal will never be decided fairly since the 1st respondent is an interested party.
- that although he does not qualify to appear before a Board of Officers, he still prays for an order in terms of the draft provisional order.
The sole issue for determination in this application is whether or not a member of the ZRP in applicant’s position may elect to be tried by a magistrate’s court? The starting point is section 32 of the Police Act Chapter 11:10. It provides:
“Member may elect trial by magistrates’ court
If notice is given in the manner and time prescribed by a member whom it is proposed to try before a board of officers in terms of paragraph (c) of subsection (1) of section twenty-nine that he wishes that the charge against him be tried by a magistrates’ court and not by a board of officers, the charge shall be tried by a magistrates’ court.”
In terms of this section, only those members whose trials are before a Board of Officers have the right to elect to be tried by a magistrates’ court – see Edmos Gabarinocheka v Officer Commanding Traffic Central Business District Byo and Ors HB-15-12 where NDOU J stated that;
“It has to be emphasised that the election provided for in section 32 only applies to a trial before board of officers and not trial before a single officer. The procedure under section 29(1) (c) is for serious offences yet the procedure under section 29 (1) (d) is for minor infractions of the Police Act and regulations made thereunder …”
In casu, the applicant is a sergeant and therefore not an officer. Commenting on the provisions of section 32, the applicant stated in paragraph 21 of his founding affidavit that;
“However, such provision is only applicable to members of the police who are holders of the rank of Inspector and above, such members are termed as “OFFICERS” and do not appear before a single officer when facing disciplinary action but before a Board of Officers. Section 32 of the Police Act makes such a provision. I am a “member” and not an “Officer” in terms of the Police Act. I do not qualify to appear before a Board of Officers and I cannot therefore exercise the right to be tried by a magistrate, hence my urgent application for relief in my provisional order”. Quite clearly the applicant himself appreciates that in terms of the Police Act he has no right to elect to be tried by a magistrates’ court. However, he seems to be inviting the court to exercise its inherent jurisdiction to override a statute. This court cannot exercise its discretion to grant an order that is contrary to clear statutory provisions.
Counsel for the applicant perhaps upon realizing that his client’s position was dire submitted during the hearing that applicant’s case was premised on section 29A of the Act. The section provides:
“29A Trial of member for offence and jurisdiction of court or tribunal
(1)Subject to this Part, a member who commits an offence in terms of section twenty-nine may be tried by –
(a)the High Court; or
(b)a magistrates’ court
(c)a board of officers; or
(d)an officer in terms of section thirty-four.
The argument here is that since the applicant is a member who is alleged to have contravened some provision of the Police Act he is entitled to choose the court from amongst those listed. In my view, this argument is flawed for a number of reasons. Firstly, it would render section 32 superfluous. Secondly, it is contrary to the aim and object of sections 30 and 34 of the Act. Section 30 grants the Commissioner General of Police the power to appoint boards of officers for the trial of members. It states:
“30 Composition of boards of officers
(1)Boards consisting of not less than three officers of the rank of superintendent or higher rank may be convened by the Commissioner for the trial of members.”
This section read together with the penal provisions in section 29A grants the Commissioner regulatory powers regarding the choice of a court or a tribunal to try members. Put differently, the Commissioner is guided by the severity of the penalty indicated in section 29A. The higher the punishment or penalty, the more serious the offence is viewed. Where therefore, the Commissioner does not appoint a board of officers, section 34 becomes relevant.
“34 Trial before court consisting of one officer
(1)A member, other than an officer, who is charged with a contravention of this Act or any order made thereunder or any offence specified in the Schedule, may be tried by an officer of or above the rank of Superintendent and sentenced to any punishment referred to in paragraph (d) of subsection (2) of section twenty-nine”. (emphasis added)
Basically, Part V of the Police Act stratifies members into two categories for purposes of discipline. One group consists of “officers” while the other is made up of “non-officers”. This stratification coupled with the severity of the punishment affects the court or tribunal that eventually handles a disciplinary matter in terms of the Act. However, a close reading of section 34 shows that the Commissioner is not precluded from convening a board of officers to try a member who is not an officer, and if he chooses to do so, that member will be entitled to invoke the provisions of section 32 on the choice of the court to try him.
In casu, since the Commissioner has not convened a board of officers, the applicant must be tried in terms of section 34 of the Act. He has no right to elect to be tried by a magistrates’ court in terms of section 32.
Accordingly, the application is dismissed without an order of costs.
Dube-Banda, Nzarayapenga & Partners, applicant’s legal practitioners
Attorney General’s Office, respondent’s legal practitioners