Court name
Supreme Court of Zimbabwe
Case number
SC 27 of 2004

Mukwereza v Minister of Home Affairs and Another ( S-27-04) (SC 27 of 2004) [2004] ZWSC 27 (12 May 2004);

Law report citations
Media neutral citation
[2004] ZWSC 27


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