Judgment No. HB 40/14
Case No. HC 86/13
X REF HC 578/13
OFFICER COMMANDING BULAWAYO PROVINCE
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 5, 7 & 20 FEBRUARY 2014
Applicant in person
R. Basera for respondents
Opposed Court Application
KAMOCHA J: The charge that the applicant was facing was framed like this:-
The state versus FORCE NUMBER 054381 C/D J. RANK SERGEANT
(Hereinafter called the accused) appointed on 27/03/03 rate of pay …
The accused is ordered to appear before the court of an officer/board of officers at place DHQ WEST on the 24/12/12 at (time) 0800 hrs firstly to answer the charges of contravening paragraph 11 of the schedule to the police Act Chapter 11:10 “without good and sufficient cause, disobeying or refusing or committing or neglecting to carry out any order written or otherwise.”
In that upon (or about) in September 2010 and at (or near ZRP ENTUMBANE)
The accused being a member of the force did wrongfully and unlawfully enrolled (sic) with the United College of Education in September 2010 for a Diploma in Education thereby disobeying provisions of Propol Bulawayo Radio number CRC 649/12 DATED 11/04/12 which stipulate that anyone seeking to pursue academic studies must have a clean record of service, amounting to 10 years and as well submit an application well in advance when seeking authority.”
The charge sheet was personally served on the applicant on 21 December 2012 by chief inspector Taduwa. The applicant indicated that he would conduct his own case. The summary of the state case read thus:
“Charge: contravening section 11 of the Schedule to the Police Act Chapter 11:10 “Without Good and sufficient cause, disobeying or refusing or omitting or neglecting to carry out any order written or otherwise.
(1) The accused is a serving member of the Police Force at ZRP Entumbane. Accused is subject to Police disciplinary code.
(2) On the date unknown but in the month of September, 2010, the accused enrolled with the United College of Education for a Diploma in Education without having followed the provisions of Propol Bulawayo Radio CRC 649/12 dated 11/04/12.
(3) The accused must not have been acted (sic) in the manner he did”
The applicant attended the trial on the appointed date and time. When the State closed its case he applied for a discharge but the trial court was not prepared to entertain the application and attempted to force him to present his defence case. He alleged that the presiding officer even threatened to physically assault him if he insisted with his application for a discharge at that stage. That prompted him to file an ex parte application on a certificate of urgency to stop those proceedings and was granted a provisional order in case number HC 578/13.
The applicant is now seeking an order in the following terms in his amended draft:
“It is ordered
(1) That the proceedings of the 9th January 2013 be and hereby set aside.
(2) That after the setting aside of proceedings, no other proceedings on the same charge shall be instituted against the applicant”
The applicant’s complaint hinges on the charges that were preferred against him. He drew attention of the court to the charge sheet which alleged that he disobeyed the provisions of Propol Bulawayo Radio number CRC 649/12 dated 11 April, 2012 which stipulates that anyone seeking to pursue academic studies must have a clean record of service, amounting to 10 years service and as well submit an application well in advance when seeking authority.
The applicant enrolled with the United College of Education in September 2010. The said Propol Bulawayo Radio signal number CRC 649/12 was only formulated two years after he enrolled with the teacher training college and was published on 11 April 2012. It is very difficult to understand how the applicant could have been charged with disobeying provisions of the Propol Bulawayo radio signal number CRC 649/12 which did not exist at the time the applicant enrolled.
The applicant has alleged that the presiding officer had been instructed to convict at any costs. He therefore did not apply his mind to the case before him and was biased against the applicant. He based his allegations on the fact that a colleague of his Sergeant Christopher Mabhunu who appeared before an impartial presiding officer Superintended Pilate Moyo facing similar charges was acquitted at the end of the state case. In acquitting him the presiding officer stated that:-
“(a) The radio signal had nothing to do with sergeant Mabhunu since it was published after he had enrolled with the college.
(b) There was no such a charge in the Police Force.”
Section 11 of the schedule to the Police Act [Chapter 11:10] which the applicant was alleged to have contravened provides as follows:
“(11) Without good and sufficient cause disobeying or refusing or committing or neglecting to carry out any lawful order, written or otherwise”
Quite clearly the lawful order which is disobeyed or refused or neglected to be carried out must be in existence at the time an officer is alleged to contravene the section. In fact the lawful order must be written or otherwise at the time it is disobeyed or refused to be carried out without good and sufficient cause. The section makes no reference at all to future lawful orders written or otherwise.
The applicant was entirely correct when he submitted that there was no such provision at all in the Police Act. He was also not aware of any standing order to that effect. In any event the charge sheet does not allege that he contravened any standing rule or order. It alleged that he contravened section 11 of the schedule to the Police Act. There is no such standing rule in the Police Act and it was not produced in court.
It was submitted by the respondents that the charge preferred against the applicant was correct, because he had violated standing rules. The evidence led in court had clearly showed how the offence had been committed. It was further submitted that applicant had refused to be put on his defence on the basis that the synopsis had quoted a signal dated 2012. A period of two years after he had commenced his teacher training course. Respondents concluded by claiming that the signal was just a reminder and that has been clearly stated in the evidence which was led in court.
These submissions are faulty. Firstly it would have been improper and irregular to charge the applicant with contravening section 11 of the schedule to the Police Act but lead evidence relating to the contravention of standing rules at the trial. When Mr Basera who appeared for the respondents was asked to produce the record of proceedings showing where it was clearly stated the signal was just a reminder and the evidence showing how the offence was committed he conceded he was unable to do so. He even said he did not have such record.
The applicant averred that he had written a letter on 10 July 2010 through his officer in charge seeking permission to enrol with the United College of Education for a teacher training course commencing on 7 September, 2010 to June 2013. When officers seek to communicate with the Officer Commanding Province by letter they write through their officer in charge who transmits the letter to the Officer Commanding Province. The applicant received no response to his request. His letter is filed of record as annexure “F” at page 10 of the bound papers.
The applicant argued that he had good and sufficient cause to enrol for teacher training because he had been suspended from work without salary. He had to prepare for his future. He contended that during the entire period of his teacher training course he never absented himself from duty without official leave and was at school only when he was not at work. He, therefore, did not prejudice his employer in any way.
This court holds that there was no evidence to show that the applicant was absent from work without official leave thereby prejudicing the Police Force.
Further, it is held that the charge preferred the applicant was patently wrong and so was the synopsis of evidence and did not disclose any offence.
Furthermore it is held that the presiding officer Superintendent Ndlovu was partial when handling the applicant’s case.
In the result I would grant the order sought in terms of the amended draft at page 2.
Civil Division of the Attorney-General’s Officer, respondent’s legal practitioners