Assistant Inspector Mahleka and Others v The Trial Officer (Superintendent Donald Robson) and Another

The applicants were three police officers (Assistant Inspector Mahleka, Sergeant Ndlovu, and Constable Hamadziripi) who were assigned to manage a traffic roadblock near Manyame River in December 2013. They allegedly hid money in a plastic bag at a rubbish dump, which was subsequently found by a ten-year-old girl from a nearby farm. In attempting to recover the money, the applicants allegedly engaged in serious misconduct including pointing a firearm at suspects, handcuffing a woman without cause, and threatening assault. The applicants were initially charged in the Harare Magistrates' Court under the Criminal Law Codification and Reform Act but the charges were withdrawn for want of evidence. Subsequently, they were charged under section 35 of the Schedule to the Police Act for acting in an unbecoming or disorderly manner prejudicial to good order or discipline. After a full disciplinary trial, they were convicted and sentenced to 12-14 days imprisonment at detention barracks. The applicants then challenged the disciplinary proceedings in the High Court, arguing it amounted to double jeopardy.

• Whether a police officer can be charged under criminal law and disciplined under the Police Act for the same conduct
• Whether such dual proceedings amount to double jeopardy or dual prosecution
• Whether section 278(2) and (3) of the Criminal Law (Codification and Reform) Act permits dual prosecution in relation to Police Act proceedings
• Whether section 278(2) and (3) is consistent with section 70(1)(m) of the Constitution
• Whether section 193 of the Constitution allows or bars dual prosecution, especially when read with section 70(1)(m)
• Whether matters under the Police Act are civil or criminal in nature, particularly in light of section 193(b) of the Constitution
• Whether the trial proceedings under the Police Act should be governed by section 278(2) and (3) of the Code and to what extent
• Whether provisions of the Constitution and Acts of Parliament can be limited by Police Standing Orders or subsidiary legislation

The application was dismissed with costs.

The binding legal principles established are: (1) There is nothing unlawful about a police officer being charged under criminal law and simultaneously being disciplined under the Police Act arising from the same conduct; (2) Such dual proceedings do not constitute double jeopardy or dual prosecution as the two processes are meant to achieve different results - criminal proceedings seek punishment for offences against the state, while disciplinary proceedings seek to maintain order and discipline within the force; (3) Section 70(1)(m) of the Constitution, which protects against being tried twice for the same offence, must be read in conjunction with sections 193(b) and 208(1) of the Constitution and section 278 of the Criminal Law (Codification and Reform) Act, which expressly provide that conviction or acquittal for a crime does not bar civil or disciplinary proceedings in relation to the same conduct; (4) Police disciplinary proceedings are essential for maintaining discipline in the force and protecting citizens' rights, and courts will not be used as a shield against legitimate disciplinary action.

The court made several significant obiter observations. Bere J strongly condemned the conduct of the applicants, describing it as "quite deplorable" and "calculated to soil the reputation of the police." The court noted that the evidence presented at the disciplinary hearing would sustain a criminal conviction and strongly recommended that the Prosecutor General revisit the criminal case if it had been closed for lack of evidence, stating that "the evidence of criminal conduct is there in abundance." The court warned that shielding such conduct would result in "the creation of a rotten and corrupt police force which is a serious threat to the maintenance of law and order in this country." The court also emphasized that in all civilized nations, the emphasis is to keep and maintain a highly disciplined police force, and that disciplinary proceedings are an effective guarantee of ordinary citizens' rights. The court quoted with approval the judgment of Mathonsi J (as he then was) in Magwala Nkululeko v Commissioner General of Police, reminding police officers that they are like any other employee and subject to disciplinary action, and that courts will only intervene where there has been a clear violation of rights.

This case establishes important principles regarding the relationship between criminal prosecution and disciplinary proceedings for police officers in Zimbabwe. It confirms that police officers, like other employees, are subject to disciplinary action by their superiors and that disciplinary proceedings do not constitute double jeopardy when criminal proceedings have also been instituted for the same conduct. The case clarifies that section 70(1)(m) of the Constitution must be interpreted harmoniously with other constitutional provisions and legislation that provide for disciplinary tribunals. It reinforces the importance of maintaining discipline within the police force and confirms that the High Court will not shield police officers from legitimate disciplinary action. The judgment also provides guidance on the standard of proof in disciplinary proceedings versus criminal proceedings and confirms that acquittal or withdrawal of criminal charges does not preclude disciplinary action.