Liberty Muchena v The Police Service Commission and Commissioner General of Police

### Preamble
1
HB 138/19
HC 1468/17
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LIBERTY MUCHENA

Versus

THE POLICE SERVICE COMMISSION

And

COMMISSIONER GENERAL OF POLICE

IN TE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 12 JUNE 2018 & 12 SEPTEMBER 2019

Opposed matter

Applicant in person

P. Taruberekera for the respondents

TAKUVA J:	Applicant seeks by way of a declaratur the following relief:

“1.	The dismissal of applicant from the Zimbabwe Republic Police on the 9th of December 2013 be and is hereby declared unlawful.”

The facts

The applicant was a constable in the Zimbabwe Republic Police (ZRP).  Following allegations of contravening section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Rape), a criminal docket was opened against him.  The matter was subsequently referred to the Regional Court for prosecution.  Meanwhile the ZRP proceeded to charge the applicant in terms of the Police Disciplinary Code for contravening paragraph 35 of the schedule to the Police Act Chapter 11:10 (the Act).  The applicant was on 4 February 2013 convicted of contravening paragraph 35 of that schedule as read with paragraph 34 of the Act that is “Acting in unbecoming or disorderly manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police force.”  He was sentenced to 10 days imprisonment at Fairbridge Detention Barracks.  The charge arose from applicant’s conduct that led him to face a charge of rape.

Pursuant to the conviction and sentence 2nd respondent convened a Board of Suitability in terms of s50 of the Act.  The purpose of the Board was to “inquire into the suitability or fitness of a Regular Force member to remain in the Regular Force or to retain his rank, seniority or salary.”  The Board at the end of its deliberations recommended that the applicant be discharged from the Police Service for the reason that he was “unsuitable for police duties.”  Acting on this recommendation, the 2nd respondent on 16 April 2013 discharged the applicant in terms of s50 (3) (b) (i) of the Act.  Aggrieved, applicant filed an appeal to the 1st respondent against the 2nd respondent’s decision in terms of s51 of the Act.

Applicant lost his appeal and was dismissed from the Police Service by 1st respondent on 9 December 2013.  Dissatisfied, applicant lodged an application for review under HC 972/14 on the 2nd of May 2014.  Since this application was woefully out of time, applicant unsuccessfully applied for condonation of late noting of an application for review.  This application, filed under HC 1565/14 was dismissed by this court per KAMOCHA J on the 30th of January 2017 see HB-20-17.

On 26 February 2016, applicant was acquitted of the rape charge by a Regional Magistrate sitting at Bulawayo.  He then decided to file this application on 2 June 2017 – one year and 3 months after his acquittal and five months after he had lost his application for condonation.  The basis of this application is well set out in the applicant’s founding affidavit and answering affidavit.  Very briefly his case is that since he was acquitted of the rape charge his dismissal was unlawful.  Applicant alleged that his trial before a single officer violated section 45.3 of the Police Standing Orders Volume 1 p 75 which states:

“Any member charged with a criminal offence shall not be tried by a Board of Officers or single officer, but shall be dealt with in accordance with the provisions of the Criminal Procedure and Evidence Act, Chapter 9:07.”

He maintains he was tried on a rape charge before the single officer.  To support his argument he cites the last pages of the defaulter’s record which states: “The charge of contravening section 65 of the Criminal Law (Codification and Reform) Act, Chapter 9:23 (Rape) which I am alleged to have committed.”

To solidify his argument he states the following in paragraphs 20 and 21 of his founding affidavit;

“20.	However I was acquitted of the criminal allegations of rape which had been levelled against me.  Therefore it was unjustified that I was dismissed from service before the outcome of my criminal allegations was known.  This is the reason why the policy makers saw it fit that a member charged with a criminal offence should not be tried by either a single officer or Board of Officers but by the Criminal Procedure and Evidence Act, Chapter 9:07.  This policy has and had not yet been amended by the time I was unjustly dismissed from the police force, and, the respondents should have complied with that policy without exercising any discretion as they did.

21.	In addition to the above the respondents failed to heed ZRP Circular 03/2012 regarding the observance of the stages in the management of Progressive Discipline within the Police Service.  A Board of Inquiry (Suitability) was irregularly convened against me when I had not been convicted four times prior to my allegations of rape.  Further, I had not committed an offence involving dishonesty requiring a Board to be so convened against me.  As such, the recommendation for my discharge by this Board was also irregular and unlawful under the  circumstances.

22.	…

23.	I have a direct and substantial interest in this matter in that I was deprived of the legal right to my employment in the ZRP unduly by the respondents on the 9th of December 2014.  Now that I was acquitted in the criminal matter which formed the nucleus of my disciplinary conviction and eventually dismissal from the police force, justice and fairness should demand that unlawful administrative conduct against me (of dismissal) be declared unlawful under the circumstances.

24.	My acquittal shows that I did not commit the crime of rape for which I was charged in the first place.  Therefore it also follows that I should not have been dismissed from the police force at all.” (my emphasis)

In his answering affidavit, applicant repeats these averments extensively.  Applicant also submitted that the 2nd respondent’s opposing affidavit was filed out of time.

This application was opposed by the respondents.  The 2nd respondent argues that the dismissal of applicant from the Police Service was not unlawful in that he was properly charged in terms of para 35 of the schedule to the Police Act and not with rape.  He also argued that in terms of section 278 of the Criminal Law (Codification and Reform) Act, members of the disciplined forces who face criminal charges can also be charged under the disciplinary codes of the respective departments.  Therefore, there can be no question of double jeopardy in that the charges were different.  Second respondent also contended that he is empowered to convene a Board of Inquiry where he deems it necessary.  It was also argued that the applicant was given a reason for his dismissal which was that he was “unsuitable for police duties.”

Finally, both respondents strongly argued that this application is one for review disguised as an application for a declaratur.

The Law

In terms of section 14 of the High Court Act [Chapter 7:06] this court is empowered to grant declaratory orders.  The section provides as follows:

“14.	The High Court may, in its discretion at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that, that person cannot claim any relief consequential upon such determination.”

It has consistently been held that there is a two-stage approach to the question whether a declaratory order should be made in terms of this section.  The 1st leg of the inquiry requires the court to be satisfied that the applicant has an interest in an existing future or contingent right or obligation.  At this stage the focus is only upon establishing that the necessary conditions precedent for the exercise of the court’s discretion exist.  If satisfied the court has to exercise its discretion by demanding either to refuse or grant the order sought.

What constitutes the second leg of the inquiry is the consideration of whether or not to grant the order.

This approach was followed by CHIDYAUSIKU J (as he then was) in Johnson v AFC 1994 (1) ZLR 95 (H).  The learned judge stated the approach thus;

“Firstly, the applicant must satisfy the court that he is a person interested in an existing future or contingent right or obligation.  If satisfied on that point, the court then decides a further question of whether the case is a proper one for the exercise of the discretion conferred on it.”

It has been said that the interest must be a real interest not merely an abstract or intellectual interest.  In that regard, the courts should not be cluttered with actions by well intentioned starry-eyed busy-bodies who have no direct interest in the outcome of the litigation.  See Family Benefit Friendly Society v Commissioner for Inland Revenue 1995 (4) SA 120 (T) AR 104.

In casu, the applicant has an interest in the proper and fair administration of the Police Act.  He also has a direct interest in the right not to be unfairly and unlawfully dismissed from the Police Service.  The fact that he had in the past resorted to other options of enforcing his right does not extinguish the interest in those rights.  I therefore take the view that the applicant, as a dismissed member of the Police Service is an interested person with locus standi in judicio in these proceedings.  Accordingly, the 1st leg of the inquiry has been satisfied.

Turning to the second leg of the inquiry, it is necessary to examine the law as regards double jeopardy which is at the core of the applicant’s case.  The starting point is section 278 of the criminal law (Codification and Reform) Act [Chapter 9:23] which provides as follows:

“278.	Relation of Criminal to Civil or Disciplinary Proceedings

In this section –

“disciplinary proceedings” means any proceedings for misconduct or breach of discipline against a public officer or member of a disciplined force or statutory professional body, or against any other person for the discipline of whom provision is made by or under any enactment;

“disciplined force” means –

the Defence Force; or

the Police Force; or

…

(2)	A conviction or acquittal in respect of any crime shall not bar civil or disciplinary proceedings in relation to any conduct constituting the crime, at the instance of any person who has suffered loss or injury in consequence of the conduct or at the instance of the relevant disciplinary authority, as the case may be.

(3)	Civil or disciplinary proceedings in relation to any conduct that constitutes a crime may, without prejudice to the prosecution of any criminal proceedings in respect of the same conduct, be instituted at any time before or after the commencement of such criminal proceedings. (my emphasis)

In Chilufya v Commissioner General of Police and Ors 2010 (1) ZLR 339 (H) it was held that a trial and conviction in terms of section 34 (1) of the Police Act is, in terms of section 34 (9) not regarded as a conviction in terms of any other law.  It is regarded as a disciplinary action.

Section 34 deals with trials before court consisting of one officer.  This is what happened in casu.  Section 24 (a) states;

“(9)	A member who is found guilty of a contravention of this Act by an officer shall not be regarded as having been convicted of an offence for the purpose of any other law.”

The broad issue for determination in this application is whether or not I should grant the order sought.  However, applicant has precise grievances against both respondents.  In his heads of argument, applicant has stated those complaints as “issues” for determination.  I am going to reproduce them in order to simplify the reasoning herein for the benefit of the applicant.

They are;

“3.1	whether it was competent for the Police Disciplinary System to try the applicant for rape disguised under the charge of par 3.5 of the schedule to the Police Act (Chapter 11:10)?

3.2	whether applicant was charged for failure to handle the report he had received which was to the effect that the complainant on the rape case had been found having sexual intercourse at a public place in accordance with police standards?

3.3	whether applicant was properly charged under paragraph 35 given the circumstances of his case?

3.4	whether applicant’s dismissal was justifiable or lawful given that he was later on found not guilty which position, the respondents failed to appeal against up to this day?

3.5	whether a declaratory order to establish applicant’s employment rights is proper under the circumstances.”

I now deal with these “issues” in the order they are listed.  In respect of the 1st one, it is not correct that the applicant was charged with rape “disguised” under par 35 of the schedule.  The applicant was charged under par 35 of the Schedule which relates to Part V of the Act dealing with “discipline” of members.  The Schedule specifies offences whose commission by a member might lead to disciplinary proceedings against such a member.  These are not criminal offences in nature.  This is why section 45.3 of the Standing Orders outlaws the handling of any criminal cases internally.  Despite repeatedly stating that his trial before a single officer was on a charge of rape, the applicant has not attached the charge sheet, state outline or record of proceedings to support his bold averments.  Instead, what he did was to harp on about his defaulter’s record containing only a synthesis by the Board.

What the applicant has decided not to share with the court to his detriment of course is what charge was put to him before the single officer.  What was his plea to that charge?  What were the facts read out to him as constituting the charge?  According to the respondents, applicant was charged under par 35 of the Schedule which reads as follows;

“35.	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.” (my emphasis)

In my view, this charge is an offshoot of the rape allegations, more particularly applicant’s conduct in the whole saga.  It is not a disguise.  It is the kind of procedure permissible in terms of section 278(3) supra.  The offence under par 35 arises from applicant’s conduct constituting the crime of rape regardless of whether or not he is eventually convicted or acquitted of that charge.  I take the view that the respondents cannot be said to have concealed the identity of something that the Legislature has clearly permitted.  Accordingly, I find that there is no question of a disguise here since there must have been some conduct by the applicant that established the elements of an offence under par 35.  This could be enough to convict the applicant under that paragraph.  Indeed respondents complained of the “manner” in which applicant handled the “report”.  Applicant shot back hiding behind the shield of the last page of his record.  By taking this point, I believe the applicant was simply bluffing his way through these proceedings.

In the second and third “issues” the applicant is recycling the same argument.  Whichever way one considers applicant’s argument, the bottom line is he was properly charged at law and in fact.  In any event, applicant does not, and has never contented that he was convicted of rape by the single officer.  It would be absurd to sentence a rapist to 10 days imprisonment.  I find the 2nd and 3rd points to be without merit.

As regards the fourth “issue” relating to whether applicant’s dismissal was “justifiable or lawful” given that he was later acquitted, the full answer is in the positive and its legality is to be found in the provisions of section 278 supra.  The plain, grammatical meaning of the section is that such an acquittal is irrelevant and immaterial to a decision whether or not to prefer charges under par 35.  Therefore the absence of an appeal against the acquittal is a nonsequitur.  If the trial of the applicant and the resultant verdict are lawful so is the convening of the Board of Inquiry and its recommendations.  Equally lawful is the 2nd respondent’s decision to dismiss the applicant.  The applicant was not tried “twice” for the same offence as he alleges.

Further, applicant argues that this is a proper case for the court to grant a declaratory order regarding his employment rights.  There is no better exposition of applicant’s misconception of the law than his averments in par 10 of his answering affidavit where he pronounces self thus:

“10	…   It is a fact that although I was charged under par 35 of the Schedule to the Police Act (Chapter 11:10) that is for “acting in an unbecoming disorderly manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police force” it was in actual fact proved at the criminal court that I did not act in an unbecoming or disorderly manner at all.  I did not bring discredit to the police force by my acquittal at the Magistrates’ Court as shown by the court extract under annexure G.  In  fact it was wrong to charge me under par 35 of the Schedule to the Police Act. … basing on a criminal court.  The fact that I have been cleared of any wrong doing by the criminal court means that I should be restored back to my former position within the Police Service.  My dismissal must be declared to have been unlawful.”  (my emphasis)

This paragraph represents the alpha and omega of the applicant’s case.  He believes that facts constituting a criminal offence can never generate a civil wrong or an act of indiscipline.  This view of the law is patently wrong.  Discipline is the cornerstone of the uniformed forces.  Without it the entire system is rendered ineffective with dire consequences to the country and its citizens.

In the circumstances, I come to the conclusion that this is not a proper case for the exercise of my discretion to grant the declaratory order sought by the applicant as his case fails on legal principles and is devoid of merit.

Accordingly, the application is dismissed with no order as to costs.

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