Asha Mukote v Commissioner General of Police N.O. and Others

On 16 June 2009, the applicant, a police officer, was convicted of contravening Section 29 of the Schedule to the Police Act [Chapter 11:10] as read with Section 34 of the said Act for improperly disposing of 85 litres of diesel for tillage. The 3rd and 4th Respondents unearthed the theft of diesel at ZRP Springs farm. The trial before a single officer was presided over by the 3rd Respondent, while the 4th Respondent prosecuted the matter. Both the 3rd and 4th Respondents were also complainants/witnesses in the same case. The applicant sought review of the conviction and penalties on the basis of this irregularity.

• Whether the trial violated the principles of natural justice, specifically the audi alteram partem rule and the nemo judex in sua causa rule
• Whether the proceedings constituted a gross irregularity justifying review under Section 27 of the High Court Act [Chapter 7:06]
• Whether persons who were complainants/witnesses in a case could simultaneously act as adjudicator and prosecutor in the same matter

1. The decision of the trial by a single officer on 15th and 16th June 2009 was set aside. 2. The matter was remitted back to the 1st Respondent for a trial to be conducted before a different officer. 3. Respondents were ordered to bear the costs of the application.

Where persons who are complainants/witnesses in a matter simultaneously act as prosecutor and adjudicator in the same proceedings, this constitutes a violation of the principles of natural justice (specifically the nemo judex in sua causa rule and audi alteram partem rule), amounts to interest in the cause and constitutes a gross irregularity in the proceedings under Section 27 of the High Court Act [Chapter 7:06], thereby justifying review and setting aside of the decision.

The court expressed puzzlement that despite the Respondents' counsel conceding that the proceedings were a flagrant miscarriage of justice, they still opposed the application, questioning how they could be of the view that such a fundamental breach could be overlooked by the court.

This case reinforces the fundamental principle that the rules of natural justice must be adhered to in all judicial and quasi-judicial proceedings, including police disciplinary tribunals. It establishes that proceedings where the same individuals act as complainants/witnesses, prosecutor and adjudicator constitute a flagrant violation of natural justice and amount to a gross irregularity. The case is significant for emphasizing that the nemo judex in sua causa rule (no one should be a judge in their own cause) applies strictly in Zimbabwean administrative and disciplinary proceedings and that such violations warrant review and setting aside of decisions.