Constable Kaisi v The Trial Officer (Superintendent Sithole) and Commissioner General of Police

The applicant, a police constable based at Mzilikazi police station in Bulawayo, was manning a roadblock on Old Victoria Falls Road on 10 December 2015 at around 0900 hours. When officers from Police Internal Investigations arrived to conduct a routine audit, the applicant allegedly ran away into a drainage trench, threw $20 in bank notes into the drainage, and became belligerent and violent when ordered to retrieve the money and when officers attempted to arrest him. The money had not been declared in the group's books as required by police procedures. Following a trial before a single officer on 4 January 2016, the applicant was convicted of contravening paragraph 35 of the Schedule to the Police Act (acting in an unbecoming or disorderly manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police force) and sentenced to 14 days detention. The Commissioner General dismissed the appeal against conviction but reduced the sentence to 10 days detention on 19 December 2016, finding that the trial officer had not given reasons for sentence. The applicant then brought review proceedings.

• Whether the review application was brought within the prescribed time period under Rule 259 of the High Court Rules
• Whether the applicant was entitled to amend his grounds of review at the eleventh hour after the matter was set down for hearing
• Whether the conviction was sustainable under paragraph 35 of the Schedule to the Police Act
• Whether conduct must occur in the presence of members of the public for a conviction under paragraph 35
• Whether the record of proceedings was proper
• Whether the failure to give reasons for sentence at first instance was fatal to the conviction and sentence
• Whether the evidence established the essential elements of the offence

The application for review was dismissed with costs.

The binding legal principles established are: (1) The time period for bringing review proceedings under Rule 259 of the High Court Rules begins to run from the date when domestic remedies are exhausted, not from the date of the initial decision being challenged. (2) Litigants must exhaust available domestic remedies before approaching the High Court for review, unless there are good reasons for not doing so. (3) Paragraph 35 of the Schedule to the Police Act contains several disjunctive offences separated by the word "or" - a member can be convicted for acting in an unbecoming manner OR in a disorderly manner OR in a manner prejudicial to good order or discipline OR in a manner reasonably likely to bring discredit to the police force. Proof of any one element is sufficient. (4) Where a police officer's conduct is objectively unbecoming and occurs in public (such as at a roadblock in broad daylight on a busy public road), the principle of res ipsa loquitur applies and there is no need to lead evidence from members of the public that they witnessed the conduct or that it brought discredit to the force. (5) A failure to give reasons for sentence at first instance, while irregular, can be cured on appeal if the appeal authority gives full reasons and exercises the sentencing discretion afresh in accordance with proper principles.

Mathonsi J made several important obiter observations: (1) He emphasized that an application stands or falls on its founding affidavit, citing Mobil Oil Zimbabwe v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H). (2) He noted that attempts to amend pleadings at the eleventh hour, particularly after a matter has been set down for hearing and without moving for leave to amend, are improper and prejudicial to the opposing party who has already filed opposition. (3) He observed that the Police Service is colloquially referred to as "the disciplined or uniformed force" for good reason, stating that "discipline is administered strictly and the conduct of its members is strictly regulated. The enforcement of discipline is the corner stone of Police Service and can never be compromised. If it were compromised there would be dire consequences to national security." (4) He noted that police conduct is regulated 24 hours a day. (5) Regarding corruption, he stated that "corruption of any form is viewed by the courts with abhorrence, particularly when resorted to by police officers whose duty it is to uphold the law and by their conduct set an example of impeccable honesty and integrity" (quoting S v Ngara 1987 (1) ZLR 91 (SC)). (6) He observed that a sentencer cannot close his or her eyes to the realities of society and cannot ignore obvious facts because an unrepentant offender expects lenient treatment. (7) He stated emphatically: "We cannot have police officers behaving like rogue elements running into sewer drains or even running behind shrubs being chased by internal investigations officers to hide incriminating evidence. It brings the entire edifice to the ground."

This case is significant in Zimbabwean administrative and police disciplinary law for several reasons: (1) it clarifies that the time period for bringing review proceedings only begins to run after domestic remedies (such as internal appeals) have been exhausted; (2) it confirms the principle that litigants must exhaust available domestic remedies before approaching the High Court on review; (3) it provides important guidance on the interpretation of paragraph 35 of the Schedule to the Police Act, clarifying that it contains several disjunctive offences and that proof of any one element is sufficient for conviction; (4) it establishes that in cases of obviously unbecoming conduct by police officers in public, there is no need to lead evidence from members of the public that they found the conduct offensive or that it brought discredit to the force - the principle of res ipsa loquitur applies; (5) it confirms that an irregularity at trial (such as failure to give reasons for sentence) can be cured on appeal if the appeal authority gives proper reasons and exercises the sentencing discretion afresh; and (6) it emphasizes the importance of discipline in the police force and the need to maintain public confidence in law enforcement.