Constable Kaisi v The Board President (Chief Superintendent Ndlovu N) and The Commissioner General of Police

The applicant, a police officer, was convicted in 2016 of contravening para 35 of the Schedule to the Police Act. A board of suitability was convened in terms of s 50 of the Police Act, leading to his discharge. The applicant successfully challenged this in HC 674/17, where the board proceedings of 30 January 2017 were set aside and he was reinstated with full pay and benefits on 12 April 2018. On 16 July 2018, the applicant was served with a new convening order for a board of suitability on the same allegations. The applicant filed an application for permanent stay of proceedings (HC 6984/18) which was still pending. On 6 August 2018, when the new board convened, the applicant sought a stay pending HC 6984/18, which was granted by the first respondent. However, on 21 September 2018, the applicant was served with another notice to appear on 27 September 2018. This prompted the present urgent application seeking stay of the board proceedings pending determination of HC 6984/18.

• Whether the applicant showed good cause for stay of board of suitability proceedings pending determination of the application for permanent stay
• Whether the applicant demonstrated reasonable prospects of success in the pending application for permanent stay
• Whether the convening of a fresh board of suitability constituted contempt of the court's order in HC 674/17
• Whether the respondents were entitled to convene a fresh board of suitability after the first proceedings were quashed
• Whether it is in the interests of justice for the court to interfere with pending administrative proceedings

The application for stay of board of suitability proceedings was dismissed with costs.

Where administrative or disciplinary proceedings are quashed by a court for procedural irregularities, and there has been no inquiry into the merits of the matter, the relevant authority is entitled to convene fresh proceedings to properly inquire into the matter. The quashing of proceedings on procedural grounds returns the parties to the position before those proceedings and does not constitute a bar to fresh proceedings. For an application for stay of proceedings pending determination of another matter to succeed, the applicant must show good cause, which includes demonstrating reasonable prospects of success in the pending matter. An order setting aside defective proceedings and ordering reinstatement does not amount to a prohibition on convening fresh proceedings on the same subject matter; such fresh proceedings do not constitute contempt of the earlier order where that order did not expressly prohibit such action.

The court made several non-binding observations: (1) It is not the desire of the court to constantly interfere with administrative proceedings and make institutions ungovernable, preferring to have those proceedings finalized with aggrieved parties approaching the court on review thereafter. (2) For permanent stay of proceedings to be granted, the applicant needs to allege violation of constitutional rights, state how they tried to assert those rights, and state the specific prejudice suffered. Areas of actual prejudice need to be isolated and identified. (3) The remedy of permanent stay is only granted in extremely rare or exceptional circumstances, and the applicant bears a heavy onus to discharge. (4) The court emphasized the importance of attaching written judgments when relying on previous court decisions to establish facts or legal positions. (5) A person guilty of misconduct should not escape consequences simply because of another employee's failure to conduct disciplinary proceedings properly; they should escape consequences only if innocent.

This case is significant in Zimbabwean administrative and labour law as it clarifies several important principles: (1) the court's approach to interim relief pending determination of other applications - requiring demonstration of good cause and reasonable prospects of success; (2) the distinction between quashing defective proceedings and prohibiting fresh proceedings on the same matter; (3) the principle that where disciplinary proceedings are set aside for procedural irregularities without examination of merits, authorities may institute fresh proceedings properly conducted; (4) the high threshold for permanent stay of proceedings, requiring demonstration of constitutional violations and specific prejudice; and (5) the judiciary's reluctance to constantly interfere with administrative processes, preferring to allow their completion followed by review if appropriate. The case reinforces that procedural defects do not necessarily render the underlying cause of action impermissible.