Assistant Commissioner Dereck Matsika v Commissioner General of Police

The appellant was a medical doctor holding the rank of Assistant Commissioner in the Zimbabwe Republic Police and was employed as a government Medical Officer at Police Camp Hospital. He was charged with contravening Paragraph 35 read with Section 29 of the Police Act [Chapter 11:10] for acting in an unbecoming manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police force. The allegations were that between February 2009 and July 2011, he supplied pethidine (a dangerous drug listed in the 4th Schedule of the Dangerous Drugs Regulations, 1975) to various individuals who approached him for supply. He sold quantities ranging from 1 to 10 vials at a time, which was beyond regulated dosage. The drug was addictive and was being abused by end users. He was intercepted at a Barclays Bank parking lot with a box containing about 10 ampoules of pethidine as he was about to deliver it to Bennice Rensburg. Several witnesses testified that he sold and administered the drug at various locations including his residence, doctor's rooms, in his car, cafes, his wife's flat in Gweru, and Midlands Hotel. The appellant denied the allegations but admitted knowing and dealing with some of the witnesses. He was tried and convicted by the magistrate court and fined $500 or in default 2 years imprisonment on 30 May 2013.

• Whether the matter constituted a criminal or civil appeal
• Whether the state proved the appellant supplied pethidine to various individuals
• Whether the appellant's conduct as a doctor in private practice could be subject to police disciplinary law
• Whether the appellant's conduct constituted acting in an unbecoming manner or in a manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force
• Whether the sentence imposed was excessive

The appeal against both conviction and sentence was dismissed.

Police officers remain subject to police disciplinary jurisdiction at all times, 24 hours a day, regardless of whether they are in uniform, on duty, or engaging in activities related to another profession. The jurisdiction of police authorities to command, control and superintend the Police Service cannot be ousted depending on the time of day or geographical location of a member. Conduct by a police officer that violates the law or brings discredit to the Police Force constitutes unbecoming conduct prejudicial to good order or discipline under Paragraph 35 of the Police Act, even if such conduct occurs while the officer is engaged in private professional practice. Police disciplinary proceedings are civil in nature, not criminal proceedings. A party cannot raise on appeal a defense that was not placed before the court of first instance.

The court made several obiter observations: (1) The Police Service is colloquially referred to as "the disciplined or uniformed force" because discipline is administered strictly and the conduct of members is strictly regulated, with enforcement of discipline being the cornerstone of the Police Service that can never be compromised as there would be dire consequences to national security; (2) The sentence of $500 fine or 2 years imprisonment was characterized as "just a slap on the wrist" for an offence of this nature, suggesting it was lenient; (3) The court noted that "whatever rule of statutory interpretation one applies" the effect of Paragraph 35 remains the same, as the words "unbecoming" and "disorderly" are disjunctive, separated by "or"; (4) The court observed that Section 208(4) of the Constitution prohibits serving members of security services from being employed in civilian institutions except during public emergencies, suggesting the appellant's private medical practice may itself have been problematic.

This case is significant in Zimbabwean law (which shares jurisprudential principles with South African law given their common legal heritage) for establishing the scope and application of police disciplinary law. It clarifies that: (1) police disciplinary proceedings are civil rather than criminal in nature; (2) police officers remain subject to disciplinary jurisdiction 24 hours a day regardless of whether they are in uniform, on duty, or engaging in private professional practice; (3) the jurisdiction of police authorities to enforce discipline cannot be ousted based on time of day or geographical location; (4) conduct by police officers that violates the law or professional ethics, even if done in the capacity of another profession, can constitute unbecoming conduct under police disciplinary law; (5) new defenses cannot be raised for the first time on appeal that were not pleaded at trial. The case reinforces strict standards of conduct expected of members of security services and the paramount importance of discipline in maintaining the integrity of the police force.