The Commissioner General of Police and Others v Joseph Mutawu and Joseph Mutawu v The Commissioner General of Police and Others

### Preamble
1
HH 718-18
1. THE COMMISSIONER GENERAL OF POLICE
HC 4304/18
---------


1. THE COMMISSIONER GENERAL OF POLICE			HC 4304/18

and

THE POLICE SERVICE COMMISSION					Ref HC 6101/17

and

CHIEF SUPERINTENDENT MOYO N.O

and

SUPERINTENDENT GOWE N.O.

versus

JOSEPH MUTAWU 055333T

2. JOSEPH MUTAWU  							HC 6101/17

versus

THE COMMISSIONER GENERAL OF POLICE N.O.		           Ref HC 611/15

and

THE POLICE SERVICE COMMISSION

and

CHIEF SUPERITENDENT TEMBO N.O

and

SUPERINTENDENT MOYO N.O

and

SUPERINTENDENT GOWE N.O.

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 20 July and 7 November 2018

Consolidated Opposed Matters

B Mutero, for applicant in HC 6101/17 and for respondent in HC 4304/18

D Jaricha with M Gezera, for applicants in HC 4304/18 and for respondents in HC 6101/17

TAGU J: The counsels for the applicants in Case HC 4304/18 by letter dated 29 June 2018 requested that the two matters be consolidated and be heard at the same time. The request was not opposed and it was granted.

The applicants in HC 4304/18 are basically making a chamber application for condonation for late noting of opposition and upliftment of automatic bar in case HC 6101/17. The applicant in case HC 6101/17 is making a court application for review of the decision to discharge him from the police force which was communicated by the first respondent (first applicant in HC 4304/18) on 25 July 2012 through a radio.

The facts are that the applicant in HC 6101/17 is currently an ex Sergeant after having been discharged from the police force when he had been absent without leave for a period of twenty –one days. The Commissioner General appointed a board of Inquiry (Desertion) to enquire into circumstances of such member’s absence and any deficiencies in the kit and equipment of such member and any other state or force property entrusted to his care. After failing to locate the applicant, a board of Inquiry (Desertion) was convened and the applicant was dismissed from the police force without having been served with the notice of hearing as his whereabouts was unknown. The applicant filed this application for review on the basis that the respondents erred in dismissing him without following the principles of natural justice in that he was not served with the notice convening the board of Inquiry hence he was not heard rendering the decision to dismiss him illegal and unfair in contravention of s 68 of the Constitution of Zimbabwe which guarantees every person the right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.

The application for review was duly served on the respondents. However, the respondents failed to file their Notice of Opposition to the application in time resulting in them being automatically barred in terms of the Rules of this Honourable Court. On realizing that they have been barred the respondents (applicants in case HC 4304/18) mounted a chamber application for condonation and upliftment of the bar. This is the basis why the two applications have been consolidated.

Before I deal with the application for review the court has to first of all deal with the application for condonation and upliftment of the bar.

The applicants in HC 4304/18 explained the circumstances that led to them being barred. Their explanation from Ms Gezera who is the legal practitioner handling this matter is that the application for review was served on them on 5 July 2017. The ten day period lapsed on 19 July 2017. They only filed their notice of opposition on 1 August 2017 after the expiry of the ten day period.

Their explanation for the delay is that on 17 July 2017 the court application was received and the file was allocated to one Mrs P.N. Mutsvangwa. From the 17th of July 2017 Mrs P.N. Mutsvangwa was handling the matter until the first week of April 2018 when she resigned without actioning the file. Ms Gezera only received the file as a reallocation on 3 April 2018. She noted that on the file was endorsed “awaiting heads of arguments. She then filed away the file waiting for the heads of argument. She then discovered on 9 May 2018 as she was writing heads of argument that their notice of opposition was filed out of time. That is when they applied for an upliftment of the bar. Hence from the foregoing the default was not willful.

She then went on to address the court on their prospects of success in case HC 6101/17.

The application for condonation was opposed by the respondent (applicant in HC 6101/ 17 on the basis that the applicants in this application for condonation were tardy in the manner they handled this matter, particularly given the fact that on 15 September 2017 she filed her answering affidavit wherein she indicated that the Notice of Opposition and opposing affidavit had been filed out of time. The applicants only filed this application for condonation after heads of argument had been filed. She too addressed the court on his prospects of success on the main matter.

Having heard submissions by both counsels and reading papers filed of record I came to the conclusion that the applicants for the condonation and upliftment of the bar were not deliberately in default. The officer who had been tasked to handle the matter a Mrs P.N. Mutswangwa was to blame for the delay because she for reasons not known by the applicants sat on the file and then decided to resign from the services of the respondents without bringing to their attention the shortcomings. Further I have decided on the prospects of the applicants’ success and came to the conclusion that at least from the papers there were prospects of success. For these reasons I granted the application for condonation and upliftment of the bar in HC 4304/18.

AD MERITS

The applicant in HC 6101/17 was discharged basing on the recommendations made by the Board of Inquiry (Desertion) which was convened in the circumstances surrounding his alleged absence. The Board of Inquiry (Desertion) was conducted without the applicant’s involvement. The applicant submitted that if there is any Board of Inquiry made in terms of the Police (Trials and Boards of Inquiry) Regulations 1965 s 12 (7) thereof applies to the extent that it is mandatory that he be served with the convening order. This was not done. He submitted that his address was known and the convening order should have been served at his last known address. He submitted further that he was during that time when they were looking for him appearing in Mutare both for Criminal and Disciplinary trials. He argued that even if he could not be located, by the time the findings of the Board of Inquiry was being confirmed on the 20th of July 2012, he had already been served for trial on short notice and the Trial had already commenced on 18 July 2012.

The respondents submitted that the applicant wants the court to review the decision of the Board of Inquiry for desertion which discharged him from the force. They submitted that the applicant is mistaken in that he believed that the Board of Inquiry (desertion) and Board of Suitability are one and the same thing.

They further submitted that there is a difference between Board of Inquiry (Desertion) and a Board of Inquiry Suitability. According to respondents the procedure for conducting a board of Inquiry (Desertion) is outlined in the Police standing orders which state that when any member has been absent without leave for a period of twenty-one days the Commissioner General appoints a board to enquire into the circumstances of such member’s absence and any deficiencies in the kit and equipment of such member and any other state or force property entrusted to his care. If the board is satisfied that such member has absented himself from duty without leave, it shall declare such absence, the place from which the member absented himself and the date and period of such absence. The President of the Board of Inquiry (Desertion) forwards proceedings to the Commissioner General on whose confirmation the absentee is declared a deserter and the facts are published in the force orders.

They further submitted that the procedure of conducting a Board of Inquiry (Desertion) does not mandate that a member be served with a convening order for the best reason that the member’s whereabouts will be unknown. As to the allegations that the applicant could have been located since he was appearing for a trial in Mutare on 16 July 2012, after being arrested and charged for contravening para 13 (1) of the Schedule to the Police Act [Chapter 11.10] as read with ss 29 and 34 of the said Act, “Absent without official leave”, at that time the Board of Inquiry (Desertion) had already sat and as such there was no reason for reconvening the board since it had already been done in accordance with the law. They amplified their arguments by saying when the applicant appeared on 16 July 2012 he was answering to charges on which he had been declared a deserter on 10 May 2012.

In casu the applicant does not dispute that he was absent from work without leave for a period in excess of twenty-one days and a diligent search on his whereabouts was conducted at his last known address of residence. His borne of contention is on the issue of being served with a convening order before the board of Inquiry (desertion) is conducted. With the greatest of respect there was nothing amiss in the manner the Board of Inquiry (Desertion) was conducted because there is no way the applicant could have been served with a convening order because his whereabouts was unknown and he had already been declared a deserter. For these reasons the application for review to set aside the first respondent’s decision to discharge the applicant from the police force communicated on 25 July 2012 cannot be set aside. The applicant cannot be reinstated to his position without loss of salary and benefits.

IT IS ORDERED THAT

1). 	The delay by the Applicants to file their Notice of Opposition and Opposing Affidavit under case number HC 6101/17 is hereby condoned.

2). The Notice of Opposition and Opposing Affidavit filed by the Applicants under case

number HC 6101/17 are deemed to be properly before this court.

3).  The application for review to set aside the decision of the 1st Respondent discharging the

Applicant from the force communicated on the 25th of July 2012 in case number HC

6101/17 be and is hereby dismissed.

4). The applicant in case number HC 6101/17 to pay costs of suit.

Rubaya and Chatambudza, applicant’s legal practitioners

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