Assistant Inspector Jefinias Mazambani v Trial Officer: Chief Superitendent L Mutadza N.O. and The State

### Preamble
1
HMT 44-21
HC 41/21
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ASSISTANT INSPECTOR JEFINIAS MAZAMBANI

versus

TRIAL OFFICER: CHIEF SUPERITENDENT L MUTADZA N.O.

and

THE STATE

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 21 June 2021 and 15 July 2021

Opposed Application

H. B.R. Tanaya for the Applicants

P. Garwe, for the Respondents

MUZENDA J: Applicant, who is a detective in the Zimbabwe Republic Police received a report of theft of a cellphone gadget on 4 March 2019. After investigations he recovered it from Ernest Jamela a form four student at St Joseph’s Mission, Sakubva, Mutare. He arrested Ernest Jamela and handed him over to the charge office. On 5 March 2019, at his parent’s home he rearrested him over a second cellphone belonging to Delight Mureba. On 7 March 2019 a complaint of assault was lodged by Ernest Jamela against applicant.

On 8 February 2021 applicant was served with papers for disciplinary hearing which had been scheduled for 11 February 2021. Applicant was charged for contravening Paragraph 21 of the Schedule of the Police Act [Chapter11:10] as read with sections 29 and 34 of the said Act as amended with section 2(b) of Part LXXI of the Criminal Penalties Amendment Order Number 22/01: “Using unnecessary violence towards or neglecting or in any way in treating any person in custody or other person with whom he may be brought into contact in the execution of duty”. In that (or about) on 4 March 2019 and 5 March 2019 and at House No. 318 Zororo, Sakubva, Mutare applicant did wrongly and unlawfully used unnecessary violence towards Ernest Jamela, assaulted him using open hands, booted foot, a log and fist all over the body and he sustained injuries.

On 11 February 2021 applicant appeared before first respondent a single officer for hearing. He was legally represented. Applicant applied for a postponement of the hearing to 23 February 2021 the reason being that the legal practitioner had been given late instructions and needed time to go through the papers. On 23 February 2021 another postponement was granted at the request of applicant and the defence wanted to prepare a notice to invoke a constitutional matter in terms of section 175 of the Constitution of Zimbabwe. The hearing was deferred to 9 March 2021. On 9 March 2021 the state was served with the notice and in turn applied for postponement to 18 March 2021 in order to file its response. On 18 March 2021 the hearing resumed. Applicant in his notice had pleaded not guilty and proceeded to outline what he perceived raised a constitutional  question relating to the undue delay by the state to have applicant tried within a reasonable period of time. On 24 March 2021 first responded dismissed the application for referral of the matter to a constitutional court and ordered the disciplinary hearing to proceed. Dissatisfied by the dismissal of the  request for referral applicant filed an application for review relying on section 26, 27 and 28  of the High Court Act, [Chapter 7:06] in tandem with Order 33 of the High Court Rules, 1971 seeking the following relief:

IT IS ORDERED THAT:

The application for review of the first respondent made on 24 March 2021 be and is hereby granted.

The first respondent’s ruling dismissing the applicant’s request for referral of constitutional matters to the Constitutional Court of Zimbabwe be and is hereby set aside for being grossly irregular, and substituted with the following:

It is ordered as follows:

The request for referral of Constitutional matters to the Constitutional Court of Zimbabwe for determination be and is hereby granted.

The following matters are referred for determination by the Constitutional Court of Zimbabwe

Whether or not the respondent’s conduct of conducting disciplinary proceedings against applicant twenty three months after the respondent become aware of the facts from which the offence allegedly arose is constitutionally invalid in that it violates applicant’s rights to fair labour practices, to administrative conduct that is lawful, prompt, reasonable and both substantively and procedurally fair, and to a fair hearing within a reasonable time, enshrined in sections 65(i), 68(i) and 69(i) and (2) of the Constitution of Zimbabwe Amendment (No. 2) Act of 2013  respectively.

Whether or not the respondent’s conduct of conducting disciplinary proceedings against the applicant after the respondent had initially decided not to institute some and had given applicant a legitimate expectation that no disciplinary proceedings would be conducted on the complainant lodged against him, is constitutionally invalid in that it violates applicant’s rights to fair labour practices, to administrative conduct that is lawful, reasonable and both substantively and procedurally fair, and to a fair hearing as enshrined in section 65(i), 68(i) ad 69(i)-(2) of the constitution.

Whether the description of the applicant in the respondent’s charge sheet and synopsis for disciplinary proceedings and during disciplinary proceedings as a “defaulter’ renders the proceedings constitutionally invalid in that it violates applicants right to be presumed innocent until proved guilty as enshrined in section 70 (i)(a) of the constitution.

Second respondent shall pay costs of suit’”

Grounds For Review

Applicant spelt out grounds for review as follows:

The trial officer (first respondent) misdirected himself and committed a gross irregularity in his decision in finding that he was being asked to determine constitutional matters yet what was before him was explicitly a request for him to refer them to the Constitutional Court for its determination.

The first respondent committed a gross irregularity in failing to consider the request before him and to find that the applicant’s request was neither frivolous nor vexatious in light of the uncontroverted or clear evidence demonstrating that the request was seriously and well meant.

Applicant amplifies his grounds for review averring that first respondent failed, neglected or refused to consider the propriety of his request by ruling that the application for referral was frivolous and vexatious. In fact applicant states that first respondent was referring to an imaginary application for him to determine the constitutional matters which application was not before him. By so doing the applicant added, first respondent never applied his mind to the true application. In effect the applicant submitted that first respondent did not address he application for referral but focused on substantive determination of the Constitutional matters on their respective merits. By so doing first respondent dealt with a question not before him. Applicant goes on to contend in his founding affidavit that first respondent created his own question for determination.

Applicant submits that it will be in the interests of justice for this court to set aside first respondents decision and refer the matter to a Constitutional Court. He submitted that the questions as contained in the draft order sought herein constitute constitutional matters as contemplated in section 332 of the constitution. They all go to the root of the lawfulness of the disciplinary proceedings. They also impact on his fundamental rights, applicant submitted. To the applicant the request for referral is not meant to delay proceedings but, genuinely aimed at quashing terminating, staying and permanently interdicting the proceedings through a Constitutional Court declaration. Applicant coins first respondent’s decision outrageous in defiance of logic and prays that it be set aside on review.

Respondents raised preliminary points to the application. They argue that applicant’s application is based on wrong procedure, the reasons advanced by the applicant fall short of the requirements in terms of this court’s rules. None of the grounds for review exist in the record of proceedings. Applicant failed to establish procedural impropriety to trigger review proceedings, respondents submit. They add that there is no basis for this court to interfere with unterminated proceedings. It is the argument by the respondent that first respondent’s correctly followed the laid down trial procedure provided in the Police Act and manual and duly gave a decision to the application for referral. Respondent proceeded to contend that the remedy provided at law if a request for a referral is refused by the trial officer lies with an appeal at the end of the trial proceedings or applicant can make a request for direct access to the constitutional court and consequently applicant only intends at delaying trial proceedings by adopting a wrong procedure and respondents prayed for the dismissal of the application with costs.

On the merits respondent contend that first respondent did not misdirect himself at all. He was right in dismissing applicant’s application as being frivolous and vexatious. The mere consideration by applicant that first respondent’s decision to refuse his request was wrong did not amount to a procedural irregularity contemplated in terms of the law, first respondent averred. To first respondent there is nothing to show that grave injustice might otherwise result from the proceedings. First respondent adds that he properly applied his mind to the request and in his view concluded that the application for referral was frivolous and vexatious. Respondents pray that on the merits the application should equally be dismissed.

Submissions by the Parties

In his heads of argument applicant was not pleased by the attitude and conduct of first respondent in filing an opposing affidavit. To the applicant first respondent ought to have sought someone else to file papers than for him to take sides with second respondent, the state to defend what took place during the proceedings. First the applicant went on to cite a number of cases highlighting the undesirability of a quasi-judicial officer to file opposing papers in application for review proceedings.  Applicant urged the court to show its displeasure for this type of conduct by the first respondent who opted to “pitch up camp with and rendering assistance to or joining forces with the state against appellant” In response to the preliminary points on the adoption of a wrong procedure applicant basically and principally submitted that he has followed the correct procedure. To the applicant this court can interfere in unterminated proceedings at any staged an exercise its review powers though applicant qualifies his position by stating that the power to interfere with unterminated proceedings is to be sparingly exercised where grave injustice might not by other means be attained. Moreso the court will hesitate to intervene especially having regard to the effect of such a procedure upon the continuity of proceedings in the court below, and to the fact that redress by means of review or appeal will ordinarily be available.

Applicant further submitted that this court can intervene in unterminated proceedings in that the facts and circumstances of the matter are so exceptional as to justify a review, largely because they relate to fundamental constitutional rights. To applicant, all courts and tribunals are obliged to respect protect, promote and fulfil constitutional rights and freedoms and to give effect to them. Applicant urges the court to review proceedings at this stage than wait for review or appeal after the proceedings are completed. To applicant there is no right to direct access where one has chosen to request referral. Applicant adds that the fact that one may appeal at the end of the trial is not a bar to bring the decision of first respondent for review. Further applicant submitted a decision can very possibly be both appealable and reviewable.

On the merits applicant further submitted that his dual grounds for review hold firm. He added that his request for referral to the Constitutional Court was procedurally correct and soundly brought under the auspices of section 175(4) of the Constitution of Zimbabwe. It is further argued by the applicant that first respondent by declining to deal with the application for referral on grounds of lack of jurisdiction as a single officer, he misdirected himself and constitutes a gross irregularity on his part. Applicant went on to impugn first respondent’s decision as failing to give reasons for his judgement and in that respect such failure to avail reasons for a decision amounts to gross irregularity. He goes on to cite a number of judgements dealing with failure by a judicial officer to give reasons or providing perfunctory reasons for judgment. To the applicant a valid judgment is one that is clear backed by cogent reasoning and qualified first respondents judgment as being no judgments at all.

On the second ground for review applicant submitted that first respondent committed a gross irregularity in failing to consider the request before him. First respondent, applicant contended, wrongly focused on whether or not he had jurisdiction to deal with a constitutional matter. He should have dealt with the matter. Applicant went on to aver that the two year period of non-prosecution of disciplinary proceedings ought to have been sufficient enough for first respondent to refer the matter for deliberations by the constitutional court. The respondents did not treat applicant fairly. In view of interim recognition of good workmanship accorded to applicant by this employer, it did not appear logical for the same employer to charge him with a misconduct.to make matters worse, the respondent referred to applicant as “defaulter” yet applicant is presumed innocent until proved guilty. Applicant in his heads of argument went at sea to define the words “frivolous and vexations” and concluded that his application was far from those two words. Applicant criticised first respondent’s judgment as being unreasonable that no reasonable authority could have come to it and as such moved the court to interfere with it. He further added that reference of section 180(2) (h) of the Criminal Procedure and Evidence Act [Chapter 9:07] did not bar applicant from applying for a referral to a Constitutional Court. In any case he went on, delay was not the sole basis relied upon by the applicant for referral. He summarised his submissions by stating that throughout in his pleadings and defence outline go to the root of the lawfulness of the disciplinary proceedings against the applicant. The request cannot be said to be groundless or hopeless and without foundation. First respondent’s decision, applicant persisted was grossly irregular in the sense that his conclusion was arrived at without a display of proper engagement and weighing of the facts and law in question.

I will pause for a moment on the heads of arguments of the applicant. Heads of arguments must be equally precise and not repetitive. Applicant’s heads of argument occupy an enormous stretch of thirteen pages of the record, from page 70 to 83. If a litigant wishes to cite a case law authority which is apposite there is virtually no need for it to cite upto four or five case law authorities dealing with the same point. One case authority suffices especially given by an apex court. The point could have been heard and a prudent. It is not the length and volume of work that matters but the substance and weight reposed by the jurisprudence. Nothing is achieved by a party by covering two to three pages addressing essentially the same issue. Such lengthy submissions are discouraged. The heads of argument should be cogent and brief covering the essential sub-headings and law that would assist a judicial officer in arriving at a decision.

Respondents in their heads of argument submitted that the application is premised on a wrong foundation of procedure, applicant failed to meet the threshold of s 27 of the High Court Act. The respondents added that there is no procedural impropriety which would move the court to review the proceedings at this stage of disciplinary hearing. Procedural impropriety, respondents went on, is a ground which covers not only to observe the cardinal rules of natural justice but also failure to observe the procedural rules expressly laid down in a particular legislative instrument. No advanced grounds depict where the first respondent derailed. Respondents added that this court will only exercise its review powers of unterminated proceedings in fairly exceptional cases where grave injustice might otherwise result or where justice might not by any means attained. To the respondents, applicant should have proceeded with the hearing and then make an appeal as envisaged by the law. They added that where a request for referral of a matter to a constitutional court is refused, an aggrieved party has an option of an appeal at the end of the trial proceedings or request for a direct address to a constitutional court.

The respondents proceeded to outline requirements suitable for referral to a constitutional court: that there must be proceedings which are extant before a court; that there must be a constitutional matter that arises therein, that a court has a discretion to mero motu refer the matter; or upon being requested, by one of the parties, the court must refer the matter; and in relation to the proceedings point the court can only decline referring the constitutional matter where the person presiding is of the opinion that the request is frivolous or vexatious. Section 332 of the Constitution of Zimbabwe defined constitutional matter, respondent submitted, as a matter in which there is an issue involving the interpretation, protection or enforcement of the Constitution. If the request by a party does not implicate any of these characteristics, a court should not go thorough the motion of hearing the whole application, when from the onset, it is clear that the request fails to meet the requirements provided for in s 175 (4) it was averred by the respondents. It was further submitted on behalf of the respondents that for the request for a referral to be valid, there must be a direct nexus between the alleged constitutional matter and the proceedings before the court in the sense that no other remedy exists, which is within the powers of the trial court, other than referring the matter to the Constitutional Court.

According to the respondents, s 180(2)(h) of the Criminal Procedure and Evidence Act permits an accused to raise the basis of unreasonable delay to be tried as a permissible plea available to him or her. Such a plea or ground can competently be resolved by the court and not necessarily by a constitutional court. Respondents pray for the dismissal of the application with costs.

Statutes

The relevant statutes to this matter are two: the Constitution of Zimbabwe Amendment (No 2) Act 2013 and the Police Act, [Chapter 11:10].

Constitution of Zimbabwe

5. 162 Judicial Authority

Judiciary authority derives from the people of Zimbabwe and is vested in the courts which comprise:

(a) Constitutional Court

(b) Supreme Court

(c) The High Court

(d) The Labour Court

(e) The Administrative Court

(f) The Magistrates Court

(g) The Customary Law Courts

(h) Other courts established by or under an Act.

Section 193 of the Constitution deals with criminal jurisdiction of courts. It provides as follows:

“Only the following courts may exercise or be given jurisdiction in criminal cases:

(a) the Constitutional Court, the Supreme Court, the High Court and Magistrates Court.

(b) a court or tribunal that deals with cases under a disciplinary law, to the extent that  the jurisdiction is necessary for the enforcement of discipline in the disciplined force concerned.” (my emphasis)

Section 175 of the Constitution provides as follows:

“4. If a constitutional court matter arises in any proceeding before a court, the person presiding over that court may and if so requested by any party to the constitutional  unless he or she considers the request is merely frivolous or vexatious” (my emphasis).

Section 30 of the Police Act provides for the composition of board of officers who directly deal with disciplinary proceedings of members. Section 31 of the same Act covers review of proceedings of board of officers by the High Court and the judge of a High Court’s powers are equaled to those the judge can exercise in terms of s 29 of the High Court Act, that is the judge may “if the proceedings appear to him/her to be in accordance with substantial justice, confirm the proceedings and endorse the record to that effect” or “exercise the powers conferred upon a judge of the High Court by subsection (1) of s 29 of the Act, as if the proceedings were the proceedings of a magistrates court.” Section 34 of the Police Act provides for trial before court consisting of one officer. An appeal against the decision of a single officer lies with the Commissioner General of the Police. Referral of matters arising from decisions of the single officer to the High Court is done by the commissioner especially where the Commissioner General is not happy with the sentence passed if it is lenient to the convict.

Section 35 of the Act provides that proceedings before or at any trial by a board or board of officers shall as may be, the same as prescribed for criminal cases in the courts of Zimbabwe.

From an analysis of the Constitution and structures cited above I am satisfied that a single officer tribunal is a court more specifically as provided for in s 193(b) of the Constitution and such a court can entertain an application for referral of a matter to a Constitutional Court if the presiding officer is satisfied that there is a constitutional matter appropriately raised by a party to the proceedings before him. The presiding officer cannot refer the matter to a Constitutional Court if he comes to a conclusion that the request of referral is frivolous and vexatious.

The Law

A review is concerned about whether the decision arrived at by a decision maker was done in an acceptable fashion. The court will be determining whether there were any reviewable procedural irregularities or any action which is reviewable because it was ultra vires the powers allocated to the tribunal. There are 3 types of Review open to the parties:

a) 	a review of the proceedings of an inferior court

b)	 the review of decisions of quasi-judicial bodies and in this type of review the court takes into account the principles of natural justice.

c)	reviews in terms of particular statutory provisions.

In the celebrated case of Johannesburg Consolidated Investments Company Limited v Johannesburg Town Council  the court sets out the three types of review succinctly as follows:

“If we examine the scope of this word as it occurs in our statutes and has been interpreted by our practice, it will be found that the same expression is capable of three distinct and separate meanings. In its first and most unusual significance it defines the process by which a part from appeal, the proceedings of inferior courts of justice, both civil and criminal are brought before this court in respect of grave irregularities or illegalities occurring during the course of such proceedings….

There is a second species of review analogous to the first but different from it in certain respects. Wherever a public body has a duty imposed upon it by statute, and disregards important provisions of the statute or is guilty of gross irregularity or clear illegality in the performance of the duty, this court may be asked to review the proceedings complained of and set aside or correct them…

Then as to the third signification of the word the legislature has from time to time conferred on this court or a judge a power of review which in my opinion was meant to be wider than powers which it possesses under either of the review procedures outlined above.”

A review is based on the argument that the method used to arrive at the decision was wrong and may be brought at any stage of the proceedings. A quasi-judicial decision may be reviewed because of a failure by the decision maker to observe principles of natural justice (such as the right to be heard) and because the decision is grossly unreasonable. As clearly spelt out in African Reality Trust v Johannesburg Municipality:

“If a public body or an individual exceeds its powers the court will exercise a restraining influence, and if, while ostensibly confirming itself within the scope of its powers, it nevertheless acts mala fides or dishonestly, or for ulterior reasons which ought not to influence the judgment, or with an unreasonableness so gross to be inexplicable, except on the assumption of mala fides or ulterior motive, then again the court will interfere. But once a decision has been honestly and fairly arrived at upon a point which lies within the discretion of the body or person who had decided it, the court has no function whatsoever, it has no more power than a private individual would have no interference with the decision merely because it is not one it would itself have arrived. (my emphasis)

Hence reviews are concerned with ascertaining whether a decision maker or adjudicating authority in question exceeded his/its powers on whether a procedural irregularity occurred. The question pertinent on reviews is whether a decision is irrational or a decision is “so outrageous in its deference of logic or accepted moral standards that no sensible person who has applied his mind to the question to be decided could have arrived at it.”section 24(2) of the old Constitution whose provisions are almost identical to section 175(4) of the current Constitution of Zimbabwe provides as follows:

“Section 24(2). If in any proceedings in the High Court or in any court subordinate to the High Court any question arises as to the contravention of the declaration of rights, the person presiding in that court may and , if so requested by any part to the proceedings shall, refer the question to the Supreme Court unless in his opinion, the raising of the question is merely frivolous or vexatious.”

In the matter of Mandirhwe v Minister of State Baron JA stated as follows:

“The purpose of s 24 is to provide in a proper case speedy access to the final court in the land. The issue will always be whether there have been any infringement of an individual’s fundamental rights or freedom and frequently will involve the liberty of the individual. Constitutional issues of this kind usually find their way to court but a favorable judgment obtained at conclusion of the normal and sometimes very lengthy judicial process, could well be of little value. And even where speed is not of the essence there are obvious advantages to the litigants and to the public to have an important constitutional issue decided directly by the Supreme Court without protracted litigation.”

In a nutshell s 175(4) of the Constitution of Zimbabwe’s objective is to provide a mechanism for the speedy enforcement of an individual’s constitutional rights.

The learned Judge of Appeal then went on to deal with s 24(2) which is equivalent to s 175(4).

“Section 24(2) contemplates that proceedings have been commenced in the High Court or in a subordinate court in circumstances in which it was not anticipated that the question on a contravention of the Declaration of Rights would be necessarily arise since otherwise one expects subsection (i) to be invoked. The question having arisen, the subsection provides a speedy procedure for the determination by the Supreme Court of, in effect, a constitutional point of law without necessarily first to conclude the trial in the court of first instance and to come to this court by way of appeal. Where the question is referred to this court, the proceedings are merely interrupted. This court (i.e Supreme Court) answers the question but the matter must be concluded in the court a quo. The subsection does not say the matter may be referred, only then constitutional question may be referred for determination. Since therefore the proceedings must generally be concluded in the court in which they were commenced, it follows that a reference under s 24(2) may be made mero motu by the person presiding only if the determination of the question is in his opinion necessary to enable him to reach a decision on the redress sought. Unless the answer to the question is sought for this purpose the court a quo is simply seeking an academic opinion which is not a proper exercise of the discretion given by the subsection.”

In the matter of In Re Chinamasa it was stated:

“Where a request is made by a party to the proceedings before the court for a question to be referred to the Supreme Court, there is at the very least, a duty on the court asked to refer the matter, to satisfy itself that the application and the question referred, prima facie  fall within provisions of s 24 and if they do, it is to be referred, whether it has been drafted by the party asking referral or by the court itself, properly reflects the true issue to be determined by the Supreme Court. If the court is not satisfied that the question drafted by the party to the proceedings falls within the provisions of s 24, then it should indeed must refuse to refer the question. If the question does fall within the provisions of s 24 but the question, as proposed by the party, does not properly set out the question that has arisen in the proceedings and which the Supreme Court is to be asked to determine, the court should not refuse to refer the question. It should refer the question in the form that it considers sets out question in a manner that will enable the Supreme Court to make the appropriate determination. If there is a disagreement between the court and the party requesting reference as to the wording of the question to be referred, the decision of the court is to prevail but the court should in its judgment, advise the Supreme Court of the question that was posed by the party to the proceedings and its reasons for rejecting that question in favour of its own question or wording of the question.”

Further it is now trite law that courts will not normally consider a constitutional question unless the existence of a remedy is available to an applicant under some other legislative provision or on some other basis whether legal or factual, a court will usually decline to determine whether there has been, in addition a breach of the Declaration of Rights.

It is also incumbent upon the court to look out the jurisprudential precedents on the aspect of a trial within a reasonable time. The first question on this concept or topic is when does the time start to tick? Does it start to tick at the time the suspect is charged by the state in criminal cases? Or does it start when a formal report is lodged by a complainant to a disciplinary authority? Or it commences at the time investigations start? In the matter of Shumba v Attorney General it was held by the Supreme Court that a mere investigation into suspected criminal conduct by a person does not start the clock ticking against the state.

Where a person has not been charged, no breach or threatened breach of the right to a fair trial within a reasonable time can arise in respect of that person.Applicant or complainant of the allegation that he or she was not tried within a reasonable time must show actual prejudice to his ability to mount a full and fair defence resulting from the delay. A mere apprehension that there may be prejudice will not suffice.

The next sequential poser is the duration or lengthy of “reasonable time”. How long should the person anticipate to be tried after being charged for an offence? In re Mlambo it was held that a delay of 4 years eleven months was adequate to trigger an enquiry. In re Masendeke, seven years was extremely too long a delay. In S v Musvitusi and Another 2 years and 4 months was adjudged to be adequate in S v Bourne six years was held to be sufficient. In S v Nemutenzi , 4 years eleven months was held to be extra-ordinary lengthy. A great deal of factors or considerations will largely depend upon the particular facts of each individual case including the reasons for the delay.

Analysis and application of the law to the facts.

In his founding affidavit to the application for review as well as defence prepared on his behalf by counsel which defence outline incidentally was used as ground for a request for a referral, applicant chronicles how the charges arose on fourth and fifth March 2019 and the date when a complaint of assault was lodged against him on 7 march 2019 at Sakubva Police Station. He also narrates the sequence of events leading to his criminal prosecution and subsequent conviction, he alludes to the events of the civil suit against him, the Commissioner General and the state and the fact that all the three were found civilly liable to compensate a victim of assault. Meanwhile applicant received awards for excellent work and to him he had been promised that there will be no disciplinary charges against him arising out of the events of 4 and 5 March 2019. It was only on 8 February 2021 that he was served with a notice to attend a disciplinary hearing which had been scheduled for 11 February 2021. To the applicant the proceedings gravely violated his constitutional rights of being tried within a reasonable period. In addition the employer had indicated to him that it will not institute disciplinary proceedings against him and hence applicant had a legitimate expectation that he would not be subjected to disciplinary action and the ultimate decision to proceed with the disciplinary action to applicant amounts to unfair labour practice and an affront to administrative conduct that is lawful reasonable and procedurally fair. Applicant took objection to the use of the acronym “defaulter” contained on the charge sheet and used during the proceedings alluding to him. He felt that he had already been convicted merely by the use of that descriptive word.

Applicant in his papers left quite a number of issues dangling, he is not forthright as to when he became aware of the disciplinary charges, moreso as to when such disciplinary action would take place. He supplied a report to his employer explaining his side of the story but that is not what triggered the disciplinary proceedings. It is important that besides disciplinary proceedings the employer needed applicant’s statement to defend a civil suit. The statement applicant attached to his papers does not specifically and exclusively show that applicant wrote that report in response to a charge appropriately relating to the charges which were subject of hearing on 11 February 2021. Annexure C on p 33 of the record is just but a report compiled by applicant in respect of “complaint against Police by Ernest Jamela”. In my view I cannot say that the report set the clock ticking against the state to commence disciplinary proceedings against the applicant.

Applicant alleges in his papers that he had been promised that no proceedings will be brought against him, he fails to mention the details of the officer who gave him that undertaking, the rank, the manner of correspondence and if it was reduced into waiting copy of the document, email or correspondence to that effect. It is but and remains an averment totally unsupported by tangible evidence.

The record of proceedings abundantly show that applicant was duly served with the charge sheet on 8 February 2021 and the hearing was due for the eleventh, 3 days after service. Applicant attended the hearing and applied for postponements on two occasions. The state was ready to proceed with the hearing, witnesses were available and the applicant is the one who forestalled the proceedings. I am not satisfied that applicant vigorously asserted his rights, he computed time from 4 March 2019 to 8 February 2021 as a grid to adjudge the duration of reasonable time and failed to provide data and details of the period between the date he was formerly charged vis-à-vis date of prosecution. Such information where applicant applies for referral of a constitutional matter or question from a subordinate court to a Constitutional Court. That time aspect is in my view critical and central to the referral. It will avail to the Constitutional Court an opportunity to calculate the period applicant had been waiting and the effect on the memory of the witnesses, as well as the impact on the applicant in prosecuting his defence. In this case applicant comes short of establishing all that necessary detail.

Having presented his defence outline before the trial officer the next question for consideration is whether the applicant properly set appropriate questions for referral before the court a quo? In other words the question is did the trial officer misdirect himself in dismissing the application for referral?

The judgment of the trial officer (first respondent) is on pp 51 to 54. In his judgment first respondent gave a brief background of the matter and also outlined facts that occurred during the proceedings. He went on to sift issues that he perceived were those for determination more particularly those issues placed before him that is trial within a reasonable time for hearing premised on legitimate expectation and applicant’s right to be presumed innocent until proven guilty. He considered state’s response to the application for referral as well as oral submissions by applicant in response to the state’s opposing papers. On p 53 of the record of proceedings first respondent singled out issues for determination that is whether according to SI 75 (4) of the Constitution of Zimbabwe, this application is frivolous and vexatious and secondly whether the disciplinary hearing should be allowed to proceed or application for referral be granted. He proceeded to look at the case law authorities and reached a determination to the effect that as a single officer he cannot be tempted to deal with constitutional matters raised by the defence. He added that constitutional matters are a preserve and domain of the Constitutional Court and reiterated that s 175 (4) of the Constitution does not authorise a subordinate court to determine the constitutional matter on merits. He concluded that the request for referral lacked seriousness and was meant to delay the proceedings and referred to the matter of Loverage Makoto v T.K. Mahwe N.O CCZ 29/19. Hence to the first respondent the application for referral was frivolous and vexatious. This is the decision which came under a spirited attack by the applicant’s counsel. It is this judgment which is the subject of review by the court. As discussed above under the caption of the law applicable, the court has to analyse this judgment by first respondent if it is clothed with gross irregularity or clear illegality in the performance of the duty of first respondent so that this court may deal with the review of the proceedings complained of and if the review subsequently succeed set aside or correct the proceedings. Put differently did first respondent use a method which was wrong to come up with the decision or whether the decision is so outrageously irrational that a reasonable tribunal would not have come out with such a ruling? Is the decision outside the norm of these decisions that are expected through practice and jurisprudence to be ruled by courts.

The court of first instance has a role to play in the referral of a constitutional matter to a Constitutional Court. There is a duty of the court to satisfy itself that the application and the question to be referred, prima facie fall within the provision of s 175 (4) of the Constitution of Zimbabwe. The form and structure of the proposed question for referral must in the view of the presiding judicial or quasi-judicial officer fit to be one for referral. As clearly stated by his Lordship Blackie j in the matter of In re Chinamasa (supra) the trial officer or court can mero motu raise the question or referral. The court of first instance can also panel beat a proposed question perfect it to an acceptance standard and proceed to avail reasons in its judgment as to why it rejected the question proposed and opt for the one it finally perfected to properly guide the Constitutional Court. The court of first instance has a wide discretion derived from the legislature and s 175 (4) by the use of the words “may” and where it is satisfied that there is a constitutional question then it becomes mandatory for the court to refer such a constitutional matter as prescribed by s 332 of the constitution to a Constitutional Court. The court of first instance cannot idly rubber stamp the proposed question brought by a party requesting a referral. The party applying for a referral should lay bare facts and evidence that clearly establish that a constitutional question arises and based upon authentic circumstances proved and accepted by all parties involved in the matter.

Looking at the procedure followed and adopted by the first respondent in this matter I hesitate to find a ground of review that impugns the trajectory taken by the trial officer to reach its decision. I discern no misdirection, no illegality nor irrationality on its part. It is not in dispute that first respondent stated in his judgment that he cannot deal with matters relating to constitutional matters, no one asked him to deal with the matters of constitutional nature. What was apparently placed before him was for him to assess, evaluate and analyse whether a constitutional question had been raised which qualified to be one for referral. He decided that the request for referral was frivolous and vexatious. The question is, did he err and misdirect himself by so deciding? I am constrained to make such a finding. The period between notice of hearing and the date of set down is between 8 and 11 February 2021. To me that is the period under consideration in judging reasonableness of the time in which applicant had to be tried. No other date between date of being charged and hearing was proferred by the applicant himself. Such information of the date he was charged by second respondent should have been availed by the applicant and placed before the trial officer to justify the argument based upon delayed proceedings. In any case the matter was ready for hearing with all witnesses called by the state in attendance. I do not see anything wrong in first respondent coming out with a decision labelling the request frivolous and vexatious in light of the circumstances of this matter. Applicant failed to satisfy or meet the basis of bringing the matter for review.

Review proceedings can be brought before this court at any stage of the matter but when it comes to unterminated proceedings the court will interfere in exceptional cases where grave injustice might otherwise result or where justice might not by all means attained. The Police Act also provides instances where the High Court is called by legislation to be involved in matters of discipline and or sentencing of the members. Applicant did not manage to lay such a foundation for such inclusion or involvement.

It is also necessary to point out that where a matter is brought for review and an aggrieved party cites the presiding officer as a nomino officio (N.O) justice demands that such a judiciary or quasi-judicial officer no to file an opposing affidavit. When an arbiter makes common cause with one of the parties in such proceedings,

“any façade of justice is shattered, the arbiter is seen to have discended into the arena with possible consequential blurring of his vision by the dust of battle”.

First respondent should not have filed an affidavit at all. However this unfortunate situation occurred past the events of the proceedings which are sought to be reviewed. This

“pitching up camp with and rendering assistance to joining forces with the state against applicant”

does not form part of the proceedings before application for review. It is raised in an answering affidavit and heads and on the date of hearing applicant’s counsel did not vigorously pursue it. In my view where a party had failed to establish grounds for review in the main application the application should be resolved in terms of the issues dealt with in the founding affidavit. If the application for review succeeds surely the court will take into account the conduct of first respondent in “pitching up camp with the state”. That would have an effect on the outcome of the application if the matter is remitted. That in my view is the unfortunate mistake by the first respondent which came well after the fact.

The question is did applicant manage to prove the prerequisites to have the decision of first respondent set aside on review? The answer is in the negative. He failed and the application for review ought to fail.

Accordingly it is ordered as follows:

The application is dismissed with costs.

MUZENDA J_________________

Tanaya Law Firm, Raystone Chambers, applicant’s legal practitioners

Civil Division of the Attorney General’s Office, 1st and 2nd Respondents’ legal practitioners.