CHATUKUTA v NLEYA NO & ORS 2014 (2) ZLR 852 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — Declaration of C Rights — right to appeal or seek review (s 70) — right only subject to any reasonable restriction — decision of Commissioner-General of Police dismissing appeal of member of police force convicted by a single officer — appeal lying to High Court against such decision

Police — discipline — trial of member by single officer for disciplinary offence in terms of s 34 of Police Act [Chapter 11:10] — appeal to Commissioner-General in terms of s 34(7) of Act — Commissioner-General dismissing such appeal — whether appeal lies to High Court against Commissioner-General's decision

Headnote

The applicant, a police officer, was tried by a single officer in terms of s 34 of the Police Act [Chapter 11:10] on a disciplinary charge. He was convicted and sentenced to nine days' detention. He appealed to the Commissioner-General of the Police in terms of s 34(7) of the Act. On appeal the conviction was confirmed and the sentence of nine days' imprisonment was altered to four days' imprisonment. Reasons for the dismissal of the appeal were not given to the applicant. When he was informed that he was to be detained to serve the four days' imprisonment, he approached the High Court on an urgent basis, averring that the first respondent had virtually barred him from filing an appeal with the G High Court against the decision of the Commissioner-General. He contended that his constitutional rights under s 49 of the Constitution (the right to personal liberty) and s 70(5)(b) of the Constitution (the right to appeal against conviction and sentence) were being violated by the respondents. The respondents averred that no further appeal lies to the High Court against the decision of the Commissioner-General once he has dismissed an appeal in terms of s 34(7) of the Act. The Commissioner-General is the highest and final court of appeal in disciplinary matters presided over by a single trial officer in terms of s 34 of the Act, unlike the situation of a trial by a board of officers or by a magistrates court, where a right of appeal to the High Court is specifically provided for. They further argued that such a member could only approach the High Court on review, but not by way of appeal. The question was thus whether a member tried by a single officer in terms of s 34 who has unsuccessfully appealed to the Commissioner-General in terms of s 34(7) should be denied the right to appeal to the High Court and consequently to the Supreme Court, a right enjoyed by members of the Police Force tried by either a board of officers or the magistrates court.

Held, that the right to appeal or to seek review is now enshrined in s 70(5) of the Constitution. The courts would therefore not deprive any person of such a right unless there are reasonable restrictions prescribed by the law. The Police Act does not provide for such reasonable restrictions, but is simply silent on the right of appeal by an aggrieved member against the decision of the Commissioner-General made in terms of s 34(7) of the Act. Under s 171 of the Constitution, the High Court, being a superior court of record, has original jurisdiction in all civil and criminal matters in Zimbabwe. The inherent jurisdiction conferred upon the High Court is exercised unless it is specifically ousted. In terms of s 171(d) the appellate jurisdiction of the High Court may be limited by a statute; this led to the question as to whether there is indeed a statute which limits the appellate jurisdiction of the High Court in the circumstances of this case. In terms of s 13 of the High Court Act [Chapter 7:06], the High Court has full original civil jurisdiction over all persons and over all matters within Zimbabwe. The jurisdiction of the High Court, whether appellate jurisdiction or otherwise, cannot be ousted by implication; it must be expressly excluded. The High Court, unlike other, inferior, courts (which may only do what the law permits), may do everything which the law does not forbid. Disciplinary proceedings held in terms of the Police Act are of a civil rather than criminal nature, despite the fact that convicted members of the Force may be sentenced to terms of imprisonment. In terms of s 30 of the High Court Act, the High Court can, firstly, exercise its appellate jurisdiction in respect of any proceedings of any tribunal if the relevant Act governing those proceedings provides for an appeal to the High Court. The second instance where the High Court will exercise its appellate jurisdiction is where the relevant Act governing the proceedings of such a tribunal does not oust the jurisdiction of the High Court. The Police Act does not oust the appellate jurisdiction of the High Court in relation to proceedings held in terms of s 34 of the Police Act. While an appeal lies to the Commissioner-General against the decision of a single trial officer in terms of s 34(7) of the Act, there is no provision in the Act which states that no appeal lies against the decision of the Commissioner-General made in terms of s 34(7), nor is there a provision which bars an aggrieved member from approaching the High Court on appeal against the decision of the Commissioner-General. The appellate jurisdiction of the High Court is not specifically ousted and there was therefore no legal bar to the applicant appealing to the High Court against the decision of the Commissioner-General made in terms of s 34(7) of the Police Act.