The applicant was an Assistant Inspector and instructor at Ntabazinduna Training Depot in Bulawayo. He was charged and tried by a single officer under section 34 of the Police Act [Cap 11:10] for improperly performing his duties by selling learning materials (handout notes from the Criminal Code) to recruit trainees for US$6.00 without the Depot Commandant's authority. He was convicted and sentenced to 9 days imprisonment at Chikurubi Detention Barracks. The applicant appealed to the Commissioner General of Police under section 34(7) of the Police Act. The conviction was confirmed but the sentence was reduced to 4 days imprisonment (having already served 5 days when a trial de novo was ordered on 20 October 2014). The applicant was not provided with reasons for dismissing his appeal and was advised on 13 November 2014 that he would be detained to serve the 4 days imprisonment. The applicant approached the High Court on an urgent basis seeking to prevent his detention and to protect his right to appeal to the High Court against the Commissioner General's decision.
The point in limine was dismissed. The court granted the interim relief suspending the order committing the applicant to prison pending the finalization of the matter.
The High Court has appellate jurisdiction to hear appeals against decisions of the Commissioner General of Police made under section 34(7) of the Police Act, notwithstanding the silence of the Act on this matter. The appellate jurisdiction of the High Court, as a superior court of record, can only be ousted by express legislative provision in clear and unambiguous terms, not by implication or legislative silence. Section 70(5) of the Constitution guarantees the right to appeal or seek review to a higher court, subject only to reasonable restrictions prescribed by law. The Police Act does not prescribe such reasonable restrictions and does not expressly bar appeals to the High Court from decisions of the Commissioner General. The High Court, being a superior court, may exercise all jurisdiction which the law does not expressly forbid, and such jurisdiction must be guarded jealously to ensure access to justice for all persons.
The court observed that disciplinary proceedings held under the Police Act are of a civil rather than criminal nature, despite the fact that convicted members may be sentenced to terms of imprisonment. The court noted that the respondents' argument that the High Court can only exercise review jurisdiction but not appellate jurisdiction in these circumstances was illogical. The court commented that it would be improper to deny members tried by a single officer under section 34 the right to appeal to the High Court when such rights are enjoyed by members tried by boards of officers or magistrates courts. The court also noted that the terms of the interim relief sought were 'badly and clumsily drafted' but the court was able to discern the applicant's true intention.
This case is significant in Zimbabwean jurisprudence because it establishes that the High Court has appellate jurisdiction over decisions of the Commissioner General of Police in disciplinary matters under section 34(7) of the Police Act, even though the Act does not expressly provide for such an appeal. The judgment reinforces constitutional rights to appeal under section 70(5) of the Constitution and clarifies that the High Court's inherent jurisdiction can only be ousted by express legislative provision, not by implication or silence. It ensures that members of the Zimbabwe Republic Police have the same appellate rights as other accused persons and prevents a two-tier system where some police members (those tried by boards of officers or magistrates) have appeal rights while others (those tried by single officers) do not. The case demonstrates the primacy of constitutional rights and the courts' willingness to interpret legislation in a manner that promotes access to justice.