Const Chihwai v Board President N.O. Chief Supt. Nyathi M & Anor (HC 409 of 2017; HMA 12 of 2018) [2018] ZWMSVHC 12 (7 February 2018)

CONSTABLE CHIHWAI

versus

BOARD PRESIDENT N.O., CHIEF SUPERINTENDENT NYATHI M

and

COMMISSIONER GENERAL OF POLICE

HIGH COURT OF ZIMBABWE

MAFUSIRE J

MASVINGO: 18 January 2018 & 7 February 2018

Urgent chamber application

Mr N. Mugiya, for the applicant

Mr T. Undenge, for the respondents

MAFUSIRE J:

(a) Introduction

[1] This was an urgent chamber application. The relief sought was poorly laid out in the draft order. But its essence was basically an interim interdict to bar the police board of enquiry [hereafter referred to as “the suitability enquiry board” or, in short, “the SEB”] from investigating the suitability or fitness of the applicant, a police constable, to remain a member of the force, or to retain his rank or salary. The interdict was sought pending the determination of a certain review application that was filed in this court under case no HC 392/17.

[2] The first time the application was placed before me, I declined to set it down. My view was that the matter was not so urgent as to be given preference over a glut of other cases awaiting determination by this court. Mr Mugiya, for the applicant, did not agree. He sought audience to convince me that the matter was indeed urgent. I obliged. On the day of hearing, Mr Mugiya made submissions on urgency, as a preliminary point. Mr Undenge, for the respondents, expressed no view. I stood down the point in limine and allowed argument on the merits.

[3] In the course of the hearing, and following several queries by myself, Mr Mugiya felt he needed to supplement the application by submitting certain other documents that he said had a material bearing on the merits. Mr Undenge had no objection. This now is my judgment, after the submission of those further documents by Mr Mugiya.

(b) The facts

[4] The founding affidavit was frugal on detail. It had several gaps in the narrative. So having gleaned the several documents filed with this court, including the review application aforesaid, and following submissions at the hearing, I can say the factual matrix, in summary, was this. The applicant had been nine [9] years in the police force when in June 2017 he was charged and convicted by an internal disciplinary tribunal for contravening Para 35 of the Schedule to the Police Act, Cap 11:10, as read with s 29 of the same Act.

[5] Section 29 of the Police Act says a member who contravenes any provision of the Act, or an order made thereunder, or who commits an offence specified in the Schedule, shall be guilty of an offence and liable to a fine not exceeding level ten, or to imprisonment for a period not exceeding five years, or to both such fine and such imprisonment. The offence specified in Para 35 of the Schedule 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.

[6] The substance of the charge against the applicant before the disciplinary tribunal was that he had been manning a road block or check point with other colleagues when he wrestled with a member of the police anti-corruption unit who had swooped on them to conduct a search. In the process, the applicant had dropped some bond notes, Zimbabwe’s current surrogate currency.

[7] Upon conviction, the applicant was sentenced to fourteen [14] days imprisonment at the police detention barracks and to a fine of ten dollars [$10]. He appealed. On 11 August 2017 the appeal was dismissed.

[8] On 1 November 2017 the police convened the SEB. It was chaired by the first respondent herein, assisted by two other members. The SEB had until 1 December 2017 to submit its findings. But the proceedings never got off the ground. On five occasions the hearing was aborted. The developments were as follows:

• The hearing was scheduled to be held on 17 November 2017. The applicant pitched up but said he wanted to be represented by a lawyer. However, he said his legal practitioner, Mr Mugiya, was engaged elsewhere. Mr Mugiya would only be available on 1 December 2017. The SEB, citing its deadline to submit its findings, resisted a postponement. However, following the applicant’s persistence, it reluctantly postponed the proceedings to 22 November 2017.

• On 22 November 2017 the applicant insisted he wanted to be represented by his legal practitioner of choice and said he could not just switch to any other lawyer as had been suggested by the SEB. He stressed that Mr Mugiya could only be available on 1 December 2017. The proceedings were postponed to 1 December 2017.

• On 1 December 2017 the applicant was represented by some other lawyer but from the same firm with Mr Mugiya. The lawyer raised several technical objections on the lawfulness of the SEB, particularly the manner it had been set up. The SEB dismissed the applicant’s challenge and gave its reasons. The applicant asked for another postponement to 4 December 2017 to allow Mr Mugiya to take over. The record does not show whether or not it was explained why Mr Mugiya had not availed himself on that day.

• On 4 December 2017, the fourth sitting, the applicant was represented by yet another legal practitioner who was not Mr Mugiya. The applicant produced a doctor’s sick report. He had been awarded three days sick leave up to 16 December 2017. The matter was postponed to 18 December 2017. But on 11 December 2017 the applicant filed the review application challenging the lawfulness of the SEB and its decision to dismiss his challenge.

• On 18 December 2017, the fifth sitting, the applicant appeared. He produced the present urgent chamber application and argued against the hearing proceeding. The application had been filed on 15 December 2017. The proceedings were postponed to 9 January 2018. However, it seems they have since been left in abeyance altogether.

[9] The applicant’s arguments on the unlawfulness of the SEB, in my own words, are these:

• The second respondent, i.e. the Commissioner-General of Police [hereafter referred to as “the CGP”], is the only person empowered to convene the SEB. In the present case, it has been convened by an unknown person. As such, its deliberations, and all the resultant decisions by it, will be a complete nullity.

• The order convening the SEB [which is some kind of charge sheet, indictment or summons] does not have the applicant’s full record of service. Some four annual performance appraisals on himself [“APRs”] have been excluded. This robs the SEB of such vital information about his whole career as to disable it from making an informed decision.

• In terms of some police internal circular, the SEB is only convened after three [3] convictions. But in his case, the SEB is being convened after only one conviction.

• The offences specified on the convening order, and which form the reason for the enquiry on his suitability to remain in service, are different from the offences which he was convicted of by the disciplinary tribunal.

[10] The SEB dismissed the applicant’s preliminary challenge on the following grounds:

• In respect of the argument that the power to convene the SEB is reposed exclusively in the CGP, the Police Act authorises the CGP to delegate his powers.

• In respect of the missing APRs, the applicant refused to sign one of them. Nothing turns on the other three. In any case, the applicant is free to bring them up himself if he considers that there is anything in them that may be useful to his case.

• In respect of the SEB being convened after only one conviction instead of three, this is not mandatory where the offence in question involves an element of dishonesty.

• In respect of the offences before it being different from those preferred at the disciplinary tribunal, the SEB is not responsible for crafting the charges. Furthermore, its deliberations have nothing to do with the charges that might have been preferred, or the facts that might have been proved at a disciplinary tribunal. The SEB only looks into the suitability of a member remaining in service since the date of his or her attestation.

(c) Urgency

[11] My initial refusal to set down the matter on the basis that it was not urgent was informed by a number of factors. Nowhere does the applicant explicitly spell out in his founding papers the impending harm to himself or his interests; a harm that is perilous or irreplaceable should he not be allowed to jump the queue; and a harm that is not the obvious and natural consequence of soured relations between an employer and an employee.

[12] Furthermore, all that the applicant says in his founding affidavit is that he raised preliminary points at the commencement of the proceedings before the SEB, including the alleged unlawfulness of the convening order, and that therefore the proceedings would be a nullity. There were no further details. I had to call for the record for the review application. It was no better. It is only after listening to Mr Mugiya’s persistent argument that I have been able to piece together the coherent narrative above.

[13] The certificate of urgency accompanying the application is defective. There is a plethora of cases on what a certificate of urgency is, and what it ought to contain. For example, the legal practitioner certifying the matter as urgent, must, at the very least, state why in his or her opinion it should be treated as urgent. In UZ – UCSF Collaborative Research Programme v Husaiwevhu and Ors¹ I said a certificate of urgency in terms of Order 33 r 244 is a condition precedent to a chamber application being heard on an urgent basis. Even though the judge who ultimately deals with the matter will still decide whether or not the matter is urgent, he or she is entitled to rely on the opinion of the legal practitioner who certifies the matter as urgent. In General Transport & Engineering [Pvt] Ltd & Ors v Zimbabwe Banking Corporation [Pvt] Ltd² GILLESPIE J stated that the reason behind requiring a legal practitioner to apply his or her own mind and judgment, and to make a conscientious submission as to the urgency of the matter, is because the court is only prepared to act urgently on a matter the legal practitioner himself or herself is prepared to give his assurance that such treatment is required. In Chidawu & Ors v Shah & Ors³ GOWORA JA stated that in order for a certificate of urgency to pass the test of validity, it must be clear ex facie the certificate itself that the legal practitioner who signed it actually applied his or her mind to the facts and the circumstances surrounding the dispute.

[14] In the present case, the certificate of urgency was signed by one Yvonne N. Motsi who says she is a duly registered legal practitioner. When the record was brought to me and I perused the certificate, I did not discern any of the qualifying criteria as spelt out by case authority. All that the certificate says is that the proceedings of the SEB are null and void because they are not being held in terms of s 50 of the Police Act; that the SEP dismissed the applicant’s preliminary challenge; that the applicant then applied for review; that when the applicant asked for a postponement of the deliberations, the first respondent told him that she does not get instructions from the High Court; that the applicant was left with no choice but to bring the urgent application; and that the balance of convenience favours the granting of the application as the respondents will lose nothing from a stay of proceedings.

[15] Evidently, the drafting of the certificate of urgency was most perfunctory. With all due respect to them, both Ms Motsi, who signed such a dud document, and Mr Mugiya, who filed and relies on it, are evidently innocent of the functions of a certificate of urgency.

[16] However, after granting Mr Mugiya the audience that he had requested to convince me that my preliminary view on urgency was wrong, I only stood down my decision on the point to reflect on something else that he vigorously pressed home. He said the SEB’s insistence on proceedings with its deliberations in the face of the review application that is pending before this court amounts to contempt of court. He also said an application to stop proceedings that are in contempt of court are always urgent.

[17] I also stood down the point on urgency because Mr Undenge had no views on it. Furthermore, having initially taken the view that the application was not one of urgency, I was mindful of what GUBBAY CJ, in Health Professions Council v McGowan⁴, said about the “the human inclination” to adhere to a decision previously made, even though it might have been wrong. He said this must be avoided.

[18] Although nothing said by Mr Mugiya cures the defect in the founding papers, particularly the certificate of urgency, I have abandoned the point. I have exercised my discretion in terms of Order 1 r 4C of the Rules of this Court and condoned the non-compliance with the Rules, especially given that the respondents are non-concerned. At any rate, I have since heard argument on the merits.

(b) On the merits – whether the SEP and its deliberations are null and void

[19] All the papers before me acknowledge that the SEP is set up in terms of s 50 of the Police Act. Both Counsel also do. This section reads:

“50 Board of inquiry: procedure where member unsuitable or unfit to remain in Regular Force or to retain his rank, seniority or salary

[1] A board of inquiry consisting of not less than three officers of such rank not being below that of superintendent, as may be considered necessary by the Commissioner-General, may be convened by the Commissioner-General 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:

Provided that ……… [Not relevant] ………………………..

[2] …………….. [Not relevant] …………………………

[3] If a Regular Force member, other than an officer, is found after inquiry by a board to be—

[a] unsuitable or inefficient in the discharge of his duties; or

[b] otherwise unfit to remain in the Regular Force or to retain his rank, seniority or salary; the Commissioner-General may—

[i] discharge the Regular Force member; or

[ii] impose any one or more of the following penalties—

A. reduction in rank or salary;

B. loss of seniority;

C. withholding of an increment of salary;

[iii] reprimand the Regular Force member.

[4] ……………. [Not relevant] ……………….”

[20] Section 51 of the Act provides for the right of appeal by any member who may be aggrieved by an order made in terms of inter alia s 50.

[21] This application was deficient, not only in regards to the question of urgency, but also in regards to the cause of action. The applicant’s point that only the CGP is empowered to convene an SEB and that in the present case it was convened by an unknown person was spurious. The convening order [gleaned by myself from the record for the application for review, as nothing was placed before me] was signed by the Deputy Commissioner-General of Police [Human Resources]. Section 10 of the Police Act allows the CGP to delegate his powers. It reads:

“10 Delegation of Commissioner-General’s functions

Subject to this Act, the Commissioner-General may from time to time delegate to any officer of or above the rank of superintendent any right, function, power or duty conferred upon him by this Act or any other enactment, other than the power of further delegating the right, function, power or duty so delegated.”

[22] Mr Mugiya, following several exchanges with myself, eventually seemed to realise the futility of the application. He sought a postponement. He wanted the chance to supplement the applicant’s papers by submitting certain documents that he referred to as the police uncoded rules, or standing orders. He said the respondents had violated their own internal regulations that govern the conduct of disciplinary proceedings. He said in terms of those rules, among other things, no member gets dragged before an SEB on less than three convictions by the disciplinary committee. He also said in terms of s 9 of the Police Act, the CGP is empowered to make such rules. Section 9 of that Act says:

“9 Standing orders

Subject to this Act, and in consultation with the Minister, the Commissioner-General may make Standing Orders with respect to the discipline, regulation and orderly conduct of the affairs of the Police Force.”

[23] Mr Undenge had no view on the application for a postponement. But since he was not opposed to it; and since Mr Mugiya said the regulations he was referring to were the exclusive preserve of the CGP, and that the respondents could not properly deny their existence; and since I wanted to get to the bottom of the matter, I postponed, not the hearing of the application, but the passing of judgment. My directive was that Mr Mugiya was free to submit whatever documents he was referring to and that Mr Undenge could comment on them, for as long as these reached me before 23 January 2018. From this date I would start preparing my judgment without going into another hearing, and with or without the further documents.

[24] Three documents were filed of record subsequent to the sitting. I have presumed them to be the documents Mr Mugiya had referred to. The one document is inscribed “Uncoded Rules” at the bottom. It has a portion dealing with boards of enquiry on suitability or fitness of a member. Other than provisions dealing with the need to give notice of the enquiry to the member, this document says nothing materially outside the Police Act

[25] The second document is circular no 3/12 dated 24 April 2012 from Police General Headquarters to all stations. The subject of that circular is the management of progressive discipline. It largely deals with disciplinary procedures against errant members. It is following such disciplinary procedures that a member may be issued with the various types of warnings; or that a disciplinary trial for him may be set up; or that the member may be discharged from service. It is this document, under the subject “Final Memorandum of Warning”, that says that a final memorandum of warning is usually issued when a member sustains three convictions under the Police Act, or the criminal code, or in terms of s 48[c], 50[3][iii] or 50[4][ii] of the Act. On boards of enquiry on suitability or fitness of a member, the circular simply lists them as one of the procedures following which a member may be discharged from service.

[26] The last document was some extract inscribed “All Senior Officers’ Circular 2001” “Disciplinary Trials and Boards of Inquiry”. It merely re-states the provisions of s 50 on the purpose and manner of setting up a board of enquiry. Additional provisions on this circular are on the need for some period of notice to the member; his rights to legal representation; and his entitlement to postponements of proceedings in appropriate circumstances.

[27] None of the documents above has any relevance. Mr Mugiya’s submissions were misleading. Circular no 3/12 for example, does not say that an SEB can only be set up after three convictions. It says a final memorandum of warning is issued when a member sustains three convictions. None of the rest of the documents says any of the things Mr Mugiya said at the hearing.

[28] The urgent chamber application is bogus. It is no more than an extension of the intolerable pranks the applicant played on the SEB to thwart it from proceeding with its enquiry. The relief sought being an interdict, no effort has been made to satisfy any of the requirements of an interdict. These are:

• a prima facie right, even if it be open to some doubt;

• a well-grounded apprehension of an irreparable harm if the relief is not granted;

• that the balance of convenience favours the granting of the interim interdict;

• that there is no other satisfactory remedy;

• that there are reasonable prospects of success in the merits of the main case.

see Setlogelo v Setlogelo⁵ and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor⁶.

[29] In terms of s 50, the police, through the CGP, has every right to set up an SEB to enquire into the suitability of a member to remain in service, or to retain his rank, or seniority, or salary. Although I have gathered from the record for the application for review that in the applicant’s case, the enquiry before the SEB is predicated on his conviction before the disciplinary tribunal in June 2014, s 50 of the Police Act does not make such a prior conviction a condition precedent. It seems such an enquiry can be triggered by anything.

[30] The SEB is, or should be merely an investigative process. It is the CGP that is reposed with the power to decide on whether a member should be discharged, or should lose his rank or salary.

[31] It is my considered view that the urgent chamber application and the arguments presented have been intended not only to anticipate the recommendations the SEP may eventually make, but also to second guess what those recommendations are going to be. Mr Mugiya said it is a forgone conclusion that the SEB is going to recommend that the applicant be discharged from employment and that the CGP will simply rubber stamp that recommendation. But the SEB is a lawful process expressly provided for by the Legislature. There is even an appeal process after it. No prima facie right has been established to stop it. Beyond the ordinary inconvenience of having to answer questions before it, the applicant has shown no well-grounded apprehension of harm that is irreparable should he appear before SEB. There is an alternative remedy should he be aggrieved by decisions taken following the SEB. He can appeal. When his rights as a member of the police force are counter-balanced against the broader administration of justice, it is more convenient that he goes through the SEB proceedings than rush to this court with fanciful arguments.

[32] Superior courts frown upon invitations to interfere with uncompleted proceedings of the inferior courts or special tribunals. They do so only in exceptional circumstances: see Attorney-General v Makamba⁷; Matapo & Ors v Bhila NO & Anor⁸ and S v John⁹. Furthermore, it is discouraged for litigants to come to this court before they have exhausted such domestic procedures or remedies as may be available to them in any given situation. They are expected to obtain relief through the available domestic channels, unless there are good reasons for not doing so: see Tutani v Minister of Labour & Ors¹⁰; Moyo v Gwindingwi NO & Anor¹¹ and Makarudze & Anor v Bungu & Ors¹².

[33] Whilst by s 69 of the Constitution, it is everyone’s right to access the courts for the resolution of disputes, this right does not detract from the obligation of persons subject to special tribunals, like the applicant is, to appear before them, in appropriate situations. The High Court should not be embroiled prematurely in the internal or domestic procedures of the police force, or of any other body for that matter. Only deserving cases should be entertained. The present application is not one of them.

[34] A matter stands or falls on its founding papers. As demonstrated above, the applicant’s application is deficient in many respects. It has no merit. It is hereby dismissed with costs.

6 February 2018

Mugiya & Macharaga Law Chambers, legal practitioners for the applicant

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