Chrispen Tshuma v M. Manzini-Moyo N.O.

The applicant, a member of the Zimbabwe Republic Police (ZRP), was charged before the respondent (trial officer) with contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10], for allegedly forcibly having sexual intercourse with a complainant without her consent on 13 March 2018 at Entumbane Complex. The trial officer convicted him on 25 March 2019 and sentenced him to ten days detention. The applicant appealed to the Commissioner-General of Police, and the appeal against conviction and sentence was dismissed on 9 April 2020. On 3 June 2021, the applicant was granted condonation for late filing of a review application in case HC 949/20. On 8 June 2021, he filed this review application seeking to set aside the trial officer's decision.

• Whether an applicant can seek judicial review of a trial officer's decision after having appealed that decision to the Commissioner-General and having the appeal dismissed
• Whether the trial officer acted irregularly or with bias by calling witnesses mero moto to clarify the applicant's alibi
• Whether the principles of natural justice were violated in the disciplinary proceedings

The application was struck off the roll with costs on a party-and-party scale to be paid by the applicant to the respondent.

Where an applicant has appealed an administrative decision to a higher authority within the administrative hierarchy and that appeal has been dismissed, the original decision is superseded by the appellate decision. In such circumstances, it is not competent for the applicant to subsequently seek judicial review of the original decision before the High Court. If the applicant remains aggrieved, it must be by the appellate decision, not the original decision. To permit review of the original decision after an unsuccessful appeal would amount to granting the applicant a second opportunity to challenge the same matter, which is impermissible.

The court noted that the applicant's counsel had abandoned the first ground of review relating to the admission of evidence from an allegedly irregular identification parade. While the court did not need to decide the merits of the second ground of review (concerning the trial officer calling witnesses mero moto), the respondent's counsel had submitted that section 232 of the Criminal Procedure and Evidence Act [Chapter 9:07] permits a trial officer to call a witness if the evidence of such person is essential to the just decision of the case. The court also observed that the appeal to the Commissioner-General was in terms of law and could not be of no consequence, contrary to the applicant's counsel's submission that it was merely an internal issue with no bearing on the review application.

This case establishes an important principle in Zimbabwean administrative law regarding the procedural requirements for challenging administrative decisions. It clarifies that where an internal appeal mechanism exists and has been utilized, an applicant cannot subsequently seek judicial review of the original decision that was subject to appeal. The decision emphasizes the principle against allowing litigants a 'second bite at the cherry' and confirms that once an appeal is lodged and determined, it is the appellate decision (not the original decision) that becomes the operative decision for purposes of any further challenge. This promotes finality in administrative proceedings and respects the hierarchy of internal remedies within administrative bodies like the police force.