Constable F. Chengeta v The Board President (Chief Superintendent E. Wilson) and The Commissioner General of Police

The applicant, an ex-constable in the Zimbabwe Republic Police, appeared before a single officer on 18 December 2015 charged with contravening paragraph 34 of the Schedule to the Police Act (omitting or neglecting to perform any duty). He was convicted and sentenced to imprisonment. His appeal to the 2nd respondent was dismissed. On 24 November 2016, he was served with a convening order for a board of inquiry (suitability) in terms of section 50 of the Police Act, set for 1 December 2017. At the hearing, the applicant applied for a postponement as his legal practitioner was engaged in the High Court at Harare and had sent an e-mail which the applicant was to retrieve. The 1st respondent (Board President) dismissed the application and ordered the hearing to proceed. The applicant again tried to have the hearing adjourned to obtain documents from his lawyer, which was also denied. The hearing proceeded, and the Board recommended dismissal from the Police Service. Acting on this recommendation, the 2nd respondent discharged the applicant on 15 December 2016. The applicant filed a review application on 14 February 2017 seeking to set aside the Board proceedings and his discharge.

• Whether the review application was properly before the court having regard to the 8-week time limit under Order 33 Rule 259
• Whether the applicant was deprived of his constitutional right to legal representation
• Whether the Board of Suitability proceedings were procedurally grossly irregular
• Whether the record of proceedings was deficient and unreliable
• Whether the Board President properly exercised his discretion in refusing the postponement application

1. The Board of Suitability proceedings presided over by the 1st Respondent against the Applicant are set aside. 2. The decision by the 2nd Respondent to discharge Applicant from the Regular Force acting on the recommendation of the Board of Suitability is set aside. 3. The matter is remitted to the 2nd Respondent to convene a different Board of Suitability which will allow Applicant his constitutional right to legal representation. 4. The Respondents to pay costs of suit on an ordinary scale.

1. The constitutional right to legal representation under section 69(4) of the Constitution is absolute and must embrace the right to be afforded a reasonable opportunity to secure it. 2. A refusal of a postponement arising from an injudicious exercise of discretion constitutes a denial of the right to legal representation and the right to a fair hearing, amounting to a gross irregularity in proceedings. 3. A presiding officer has a duty to inquire into the absence of legal representation where papers indicate the party elected to be legally represented, and failure to do so or to record such inquiry constitutes a gross irregularity. 4. Substantial and material deficiencies in the record of proceedings, where the record is the only reliable source of ascertaining what took place, constitute gross irregularity necessitating the quashing of the decision. 5. Review proceedings under Order 33 Rule 259 must be instituted within 8 weeks of termination of proceedings, computed in accordance with Rule 4A (excluding Saturdays, Sundays and public holidays).

The court made a general observation warning presiding officers (particularly in disciplinary proceedings) of their duty to write down completely, clearly and accurately everything that is said and happens before them which can be of relevance to the merits of the case. The court emphasized that records must not be recorded in a way which is meaningless or confusing or does not give the real sense of what the witness says, and that obscurities must be removed by asking questions, as the record is the only reliable source of ascertaining whether justice was done. The court also observed that a party cannot be allowed to approbate and reprobate at the same time - referring to the 1st respondent's contradictory positions on whether a postponement application was made. The court commented on the fallacy of the argument that another lawyer from the firm should have applied for postponement, noting this presupposes it would be incompetent for the applicant to apply in person.

This case is significant in Zimbabwean administrative and constitutional law for reinforcing the absolute nature of the constitutional right to legal representation before courts, tribunals and forums. It establishes that this right must include a reasonable opportunity to secure legal representation, and that injudicious refusal of a postponement to obtain legal representation constitutes a gross irregularity and denial of the right to a fair hearing. The case also emphasizes the critical importance of maintaining accurate, complete and reliable records of proceedings in disciplinary and quasi-judicial proceedings, holding that substantial and material deficiencies in the record constitute gross irregularity warranting setting aside of the proceedings. The judgment demonstrates the court's willingness to scrutinize administrative proceedings carefully and to protect constitutional rights even in the context of internal police disciplinary matters.