MPOFU v COMMISSIONER OF POLICE & ANOR 2008 (2) ZLR 117 (S)

Flynote

Police — discipline — dismissal from force — dismissal in terms of s 48(a) of Police Act following conviction — conviction set aside on appeal — dismissal thereby rendered unlawful

Headnote

The appellant was a police officer. He had in 1999 been convicted of assault and sentenced to a fine, together with a suspended short term of imprisonment. He appealed against conviction and sentence, but before the appeal was heard the first respondent, the Commissioner of Police, acting in terms of s 48(a) of the Police Act [Chapter 11:10], summarily dismissed him from the police force. In September 2001 the High Court quashed the conviction and set aside the sentence. The appellant applied for reinstatement. The Commissioner rejected his application. An appeal to the Police Service Commission was rejected as being out of time, s 51 of the Act requiring that an appeal be noted within seven days. In October 2003 the appellant launched an application in the High Court for the rescission of the decision of the Commission. The judge a quo dismissed the application on the ground the appeal to the Commission was out of time and prescribed.

Held, that the judge a quo was correct in holding that the appeal to the Commission was out of time. However, it is quite clear from s 48 of the Act that a member of the police force has to stand convicted of an offence before he can be dismissed in terms of the section. At the time that the Commissioner of Police discharged the appellant, the appellant stood convicted of assault, but on appeal to the High Court the conviction was quashed and the sentence set aside. The successful appeal had the retrospective effect of obliterating the conviction which was the basis of the appellant's dismissal. To hold that the appellant stood discharged from employment on the basis of a conviction that was quashed would be a travesty of justice and totally irregular. His dismissal in terms of s 48(a) of the Act in casu was unlawful because he stood convicted of no offence.

Held, further, that this was a proper case for the court to exercise the review powers conferred by s 25 of the Supreme Court Act [Chapter 7:13] to correct a blatant irregularity by an administrative authority in dismissing the appellant. The matter would be remitted to the High Court for the purposes of determining whether following the unlawful dismissal of the appellant he should be reinstated, as he requests, or be paid damages in lieu of reinstatement.