Constable Mbaimbai v The Board of President (Chief Superintendent Meki) and Others

The applicant, a police constable, was discharged from the Police Service by the second respondent. The applicant contended that he was discharged without a Suitability Board being convened in terms of section 80 of the Police Act Cap 11:30 and was not given reasons for his discharge. He appealed against the discharge decision in terms of section 51 of the Police Act to the third respondent (Police Service Commission), but the second respondent (Commissioner General of Police) did not reinstate him as required by law. All respondents were served with the court application. The first and third respondents did not file opposing papers. The second respondent filed opposing papers but filed its Heads of Argument late (on 15 September 2017, when it was served with the applicant's Heads on 28 July 2017), resulting in all respondents being barred.

• Whether the discharge of the applicant from the Police Service was unlawful and wrongful
• Whether the second respondent failed to comply with section 52 of the Police Act
• Whether a Suitability Board should have been convened in terms of section 80 of the Police Act before discharge
• Whether the application for review was properly formulated with adequate factual basis and coherent grounds

The application was dismissed with no order as to costs.

Even where respondents are barred from opposing an application, the court retains discretion under rule 238(2)(b) of the High Court Rules 1971 to dismiss an application on the merits where: (1) the relief sought has no bearing on the stated grounds of review; (2) the founding affidavit fails to provide adequate factual basis for the relief claimed; (3) the grounds of review are not properly expanded upon or substantiated in the founding affidavit; and (4) there is no coherent correlation between the relief sought, the grounds of review, and the factual allegations. An applicant must properly formulate their case with clarity as to what remedies are available and what would be the appropriate application to file.

The court observed that the papers appeared to have been "hurriedly bundled together and filed without much thought as to what remedies were available to the applicant and what would be the appropriate application to file." This suggests judicial concern about the quality of legal preparation and drafting in the matter. The court also noted that Ms Mutsvanga (for the second respondent) failed to take advantage of the High Court Rules to make an ordinary application for condonation in respect of the late filing, which would have been the proper procedural course to avoid being barred.

This case demonstrates the importance of properly formulating review applications in Zimbabwean administrative law. It illustrates that even when respondents are barred from opposing, the court will still examine the merits and will dismiss an application where there is inadequate correlation between the relief sought, the grounds of review, and the factual basis set out in the founding affidavit. The case serves as a cautionary example of the need for careful drafting and coherent legal argumentation in administrative review applications, particularly in the context of police disciplinary matters. It emphasizes that the court will not grant relief simply because respondents are barred if the application itself is fundamentally defective.