Muchena v The Police Service Commission and Another (65 of 2025) [2025] ZWSC 65 (29 July 2025)

Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 1 REPORTABLE (65) LIBERTY MUCHENA v (1) THE POLICE SERVICE COMMISSION (2) COMMISSIONER GENERAL POLICE SUPREME COURT OF ZIMBABWE GWAUNZA DCJ, MAKONI JA & CHATUKUTA JA HARARE: 20 NOVEMBER 2024 & 29 JULY 2025 The appellant in person T. Tembo, for the respondents CHATUKUTA JA: [1] This is an appeal against the whole judgment of the court a quo wherein it dismissed the appellant’s application for a declaratur. FACTUAL BACKGROUND [2] The appellant was employed by the first respondent as a constable in the Zimbabwe Republic Police (the ZRP). He was arraigned in the Western Commonage Regional Court, Bulawayo, on a charge of rape as defined in s 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Code). [3] Pending trial in the criminal court, a suitability board was constituted by the ZRP in terms of s 50 of the Police Act [Chapter 11:10] (the Police Act) to determine allegations of misconduct against the appellant. The appellant was charged with and convicted of contravening para 35 of the Schedule to the Police Act, that 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”. As a result of the Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 2 conviction, the appellant was discharged from the Police Force on 16 April 2013. The first respondent confirmed the discharge on 9 December 2013. [4] Aggrieved by the discharge, the appellant filed an application for review in the High Court under case number HC 792/14 on 2 May 2014. The application for review suffered a stillbirth as it had been filed outside the eight weeks period provided for by the repealed High Court Rules, 1971 (High Court Rules). [5] The appellant was found not guilty and acquitted of the criminal charges on 25 February 2016. He then sought condonation for the late filing of the application for review but the application was dismissed on 30 January 2017 by K AMOCHA J under case number HB 20/17. The appellant did not appeal the judgment. It is therefore extant. [6] On 2 June 2017, the appellant filed an application for a declaratur in the court a quo seeking an order declaring his discharge from duty null and void. In motivating the application, the appellant argued that he should not have been subjected to disciplinary proceedings arising from a criminal offence. He contended that the charge under para 35 of the Police Act was a direct consequence of the alleged criminal offence, of which he was acquitted. The appellant contended that the standard of proof in the criminal trial was higher than in the disciplinary proceedings. He argued that he should not have faced a more severe penalty in light of his acquittal on the criminal charges and therefore conviction under the Police Act also fell away. [7] The respondents opposed the application contending that the appellant had brought an application for review disguised as an application for a declaratur. They argued that the appellant had failed to successfully prosecute the application for review when he failed to observe the stipulated time limits. They further argued that the declaratur was Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 3 therefore designed to avoid the time limit hurdle that saw his application for review suffer a stillbirth. It was submitted that the appellant was properly convicted and discharged in terms of the Police Act. [8] The court a quo found that the appellant was not challenging the process that led to his discharge from employment. The court ruled that the application was therefore not an application for review disguised as an application for a declaratur. It found that the appellant’s contention that he had suffered double jeopardy, having been subjected to both disciplinary proceedings and criminal proceedings, had no merit. Irked by the decision of the court a quo, the appellant lodged the present appeal on the following grounds of appeal: GROUNDS OF APPEAL 1. The court a quo erred at law and fact by not appreciating provisions of para 45(3) of the Police Standing Orders Volume 1 which oust jurisdiction of Board of officers and or the single officer from subjecting appellant to disciplinary hearing for offences that emanated from an alleged criminal conduct. 2. The court a quo erred in fact and law when it introduced the grounds of double jeopardy which appellant did not raise either in his founding affidavit and oral submissions. 3. The court a quo erred at law and fact when it failed to observe that Para 35 (1) of Police Act gives a unique standard of proof that is above that of balance of probabilities. 4. The court a quo erred at law and fact when it failed to observe provisions of s 48 of the Police Act under which appellant’s dismissal would have been premised on in Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 4 the event of a conviction or acquittal in terms s 65 of the Criminal Law Codification and Reform Act [Chapter 9:23]. RELIEF SOUGHT The appellant seeks the following relief:- 1. That the appeal succeeds with costs. 2. The judgment of the court a quo is hereby set aside. 3. The dismissal of appellant from the Zimbabwe Republic Police on the 9th of December 2013 be and is hereby declared unlawful. SUBMISSIONS ON APPEAL [9] The appellant argued that he was charged by the first respondent with failure to handle a complainant’s report which had emanated from allegations of rape. He further argued that this was contrary to para 45 (3) of the Police Standing Orders which precludes the respondent from charging a member of an offence arising from criminal conduct. He submitted that the respondents should have waited for the finalization of the criminal trial before instituting a disciplinary hearing. He argued that he was supposed to have been dealt with under para 34 of the Police Standing Orders for performing duty in an improper manner instead of under para 35. He submitted that the respondents were in contempt of an extant order issued by the court a quo interdicting them from conducting the disciplinary hearing that led to his discharge. He argued that the proceedings held in contempt of the interdict were therefore a nullity. [10] The Court inquired from the appellant if the application for a declaratur was not intended to circumvent his failure to have the decision of the respondents reviewed. The appellant responded that there was nothing that precluded him from bringing the application for a declaratur and that he had been vindicated by his success before the Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 5 court a quo. He however conceded that judgment number HB 20-17 was extant as he had not appealed it. [11] In response, Ms Tembo, counsel for the respondents, submitted that the court a quo was correct in dismissing the application for a declaratur. She further submitted that the court a quo cannot be faulted for determining the issue of double jeopardy as that issue was raised by the appellant in his founding affidavit. She stated that the court a quo was correct in its ruling because a proper charge in terms of the Police Act was preferred against the appellant. Counsel argued that a party who raises the issue of contempt of court should establish the elements of such contempt of court in the appropriate proceedings. ISSUE FOR DETERMINATION [12] Arising from the point raised by Court, the issue for determination is whether or not the court a quo was correct in holding that the application before it was an application for a declaratur. ANALYSIS [13] The essence of the appellant’s first ground of appeal is that the first Police adopted a wrong procedure in convening disciplinary proceedings in terms of the Police Standing Orders when para 45.3 of the Standing Orders, instead, mandates that he should have been dealt with in terms of the Criminal Procedure and Evidence Act [ Chapter 9:13] (the CP&E Act). The ground clearly raises a procedural issue that disciplinary proceedings before the Police were flawed. [14] The question which cries out loud from this ground is therefore whether the application before the court a quo was an application for a declaratur or for review. In answering Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 6 this question, the court a quo correctly set out the law on the factors to be considered in determining whether an application is for review or a declaratur. It remarked at p 3 of the judgment that: “A review is concerned with the regularity and validity of the proceedings. (Liberty Life Association of Africa v Kachelhoffer 2001 (3) SA 1094). The decision-making process is what a review looks at ( Krumm v The Master 1989 (3) SA 944). In Samaya v Commissioner General of Police & 2 Ors HH272-21 MANZUNZU J had this to say: ‘The cardinal principle in deciding whether an application is for a declaratory order or review is not so much of the relief sought but rather the grounds upon which the application is based. In Geddes Ltd v Taonezvi 2002(1) ZLR 479(S) MALABA JA said: ‘In deciding whether an application is for a declaration or review, a court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks a declaratory relief is not in itself proof that that application is not for review.’” In Zvomatsayi & Ors v Chitekwe NO & Anor 2019(3) ZLR 990 (H) DUBE-BANDA J articulated it thus: “A review is not concerned with the merits of the decision but whether it was arrived at in an acceptable fashion. The focus is on the process, and on the way in which the decision-maker came to the challenged decision. Instead of asking whether the decision was right or wrong, a court on review concerns itself with the procedural irregularities. A declaratur and review cover different jurisprudential terrains. The two cannot be deployed interchangeably. It is one or the other, but never both. A declaratory order should not be used to get around the requirements for review proceedings.” [15] After setting out the law, the court a quo then remarked at p 4 that: “I am of the considered view that the applicant’s argument on double jeopardy and his contention that the penalty of dismissal was not commensurate with the criminal charge verdict is what this application is anchored on. He is not harping on procedural irregularities or the process which led to the making of the decision. Section 27 of the High Court Act [Chapter 7:06] provides for the grounds upon which a review can be anchored. The applicant in his oral submissions did not attack the proceedings or the process which led to the decision. His contention is that he suffered double jeopardy in facing both criminal and disciplinary proceedings and the penalty of dismissal did not consider his acquittal on the more serious criminal charge. I am therefore persuaded to hold that the application is not a review disguised as a declaratur.” Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 7 [16] Two issues arise from the above findings. The first is whether the appellant raised procedural issues in his application. The second issue is whether the question of double jeopardy is a procedural issue. [17] The first issue is best considered by having regard to the appellant’s founding affidavit a quo. A reading of the appellant’s case clearly points to a review. The appellant’s concern in the court a quo was that the single officer who tried him did not have jurisdiction to conduct the disciplinary proceedings as the single officer could not preside over a board where the charge against the appellant emanated from a criminal offence, that is rape. He argued that s 45.3 of the Police Standing Orders prescribed that he was supposed to have been dealt with in terms of the CP&E Act. [18] Police Standing Orders are made in terms of s 9 of the Police Act which provides that: “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. They therefore serve as guidelines for police operations and procedures. They provide for the conduct of members of the police and the procedure to be followed when disciplining them. [19] On the other hand, the CP&E Act provides for the procedure applicable to criminal proceedings in the Supreme Court, High Court and Magistrates Court. (See s 3 of the CP&E Act). The CP&E Act relates to procedures which if not followed, would yield an application for review. [20] It therefore follows that when the appellant contended that he ought to have been dealt with in terms of the CP&E Act, he was raising a procedural issue or irregularity. Put differently, the appellant was arguing that the procedures in the Police Standing Orders Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 8 were not applicable. What was applicable, instead, were the procedures in the CP&E Act. [19] The following are some of the paragraphs in which the appellant was raising procedural irregularities. He averred in para 7 that: “On the 26 th March 2013 the second respondent convened a Board of Suitability against me in violation of Part 2, s 45.3 of the Police Standing Orders Volume I.” (Emphasis added) [20] He proceeded to set out the basis for the application in paragraph 15 where he stated that: “I am now approaching this Honourable Court for a declaratory order regarding the unlawful manner in which I was discharged from the Police force by the Respondents.” (Emphasis added) [21] In para 21 he averred that: “In addition to the above, the Respondents failed to heed ZRP Circular 03/12 regarding the observance of the stages in the management of the Progressive Discipline (sic) 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 to that I had not committed any offence involving dishonesty requiring a Board to be so convened against me. As such the recommendation for my discharge by this Board was irregular and unlawful under the circumstances.” (Emphasis added) [22] The main thrust of the appellant’s application a quo, as appears from the above averments, was that he was unfairly dismissed from employment as a result of a process that was flawed. Once a party relates in an application to “the manner” in which proceedings were conducted or to an “irregular and unlawful discharge”, the party will be raising procedural issues. The application would clearly be an application for review and not for a declaratur. [23] The second issue arising from the court a quo’s findings is whether or not the principle of double jeopardy is a procedural issue. As alluded to earlier in para 15, the court a Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 9 quo made a finding that the application was not a review in disguise on the basis that the appellant had raised the question of double jeopardy. [24] The principle of double jeopardy is a procedural defence that relates to the legitimacy of a legal process. The principle is generally applied in criminal proceedings. It is designed to protect an individual from facing multiple trials for the same offence for which he or she has been either convicted or acquitted. Any such multiple proceedings are irregular and are open to review. The court a quo therefore misdirected itself when it considered the principle as a substantive and not procedural issue. [25] It is evident from the sequence of events and these applications that the appellant was discharged from the Police Service on 9 December 2013. The application for the review of that decision to discharge him was filed out of time on 2 May 2014. The application for condonation was filed sixty seven days later. The application was dismissed on 30 January 2017. It is further common cause that the appellant did not appeal the judgment. The judgment remains extant and the appellant could not seek a review of the respondent’s decision in the absence of an appeal against the judgment by KAMOCHA J. It is inescapable that the appellant filed the application for a declaratur on 2 June 2017 clearly as a disguised application for a review in order to get around the requirements of an application for review. [26] In the case of S v Chibaro HH 405-19 it was held at p2 as follows: “It is not open to the applicant to seek to get a second bite of the cherry by crafting arguments arising from the same record which the previous judge relied upon to determine the earlier application. It is not a change of circumstance for the applicant to raise new arguments on the same record or to place the same arguments made before the previous presiding to the next judge.” [27] In casu, the appellant sought a second bite of the cherry by lodging an application for review disguised as a declaratur. Therefore, the court a quo erred in holding that the Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 10 matter before it was not an application for review disguised as a declaratur. This means that the application was not properly before the court a quo. It ought to have been struck off the roll. Consequently, therefore there is no valid appeal before this Court. The matter stands to be struck off the roll. DISPOSITION [28] The court a quo’s decision was irregular. As stated in Gonese v Minister of Finance and Economic Development CCZ 11-23, where the Constitutional Court opted to exercise its review powers in terms of s 19 of the Constitutional Court Act [ Chapter 7:22],: “In anticipation of unforeseen circumstances in which this Court may need to be clothed with jurisdiction to review the proceedings of other courts subordinate to it, s 19 of the Constitutional Court Act has granted the power to this Court and every Judge of the Court to review proceedings and decisions of such subordinate courts. The section makes it clear that such power may be exercised at any time whenever it comes to the attention of the Court, or a Judge that an irregularity has occurred in any proceedings or in the making of any decision, notwithstanding that such decision is not the subject of an appeal or application to this Court. There can be little doubt that this is a useful and necessary provision. In the absence of such a power, the Court or judges of the Court would be utterly powerless to act even where it comes to their attention that there has been an irregularity in the making of a decision in a constitutional matter in a lower court.” [29] The above remarks equally apply to the review powers of this Court in s 25 (2) of the Supreme Court Act [ Chapter 7:13 ]. This Court is therefore inclined to invoke its review powers and set aside the judgment of the court a quo. [30] On the issue of costs, the matter has been determined on an issue raised by the Court. There is therefore no basis for awarding the respondents costs. [31] In the result, it is ordered as follows: 1. The matter be and is hereby struck off the roll with no order as to costs. Judgment No. SC 65/25 Civil Appeal No. R-SCB 85/23 11 2. In the exercise of the Court’s review powers pursuant to s 25 of the Supreme Court Act [ Chapter 7.13], the judgment of the court a quo be and is hereby set aside and substituted with the following: “The matter be and is hereby struck off the roll with costs.” GWAUNZA DCJ : I agree MAKONI JA : I agree Civil Division of the Attorney General, respondents’ legal practitioners.