Constable Mutaurwa L v The Officer-in-Charge (Chikurubi Detention Barracks) and The Commissioner General of Police

The applicant, a constable in the Zimbabwe Republic Police, was charged and tried in a court of a single officer in terms of s 34 read with s 29A(1)(d) of the Police Act [Chapter 11:10]. He was convicted and sentenced to 14 days imprisonment at detention barracks. The applicant noted an appeal to the Commissioner General of Police (second respondent), which was unsuccessful. On 15 November 2016, the applicant filed an application for review of the single officer's court decision under HC 11646/16 and simultaneously filed an urgent application seeking to stay his detention pending finalization of the review. The applicant argued the matter was urgent as serving his sentence would render the review application academic. The respondents opposed the application, raising two points in limine: (i) that the matter was not urgent, and (ii) that there was no competent review application before the High Court as it was filed beyond the 8-week time period prescribed in Order 33 r 259 of the High Court Rules without seeking condonation.

• Whether the applicant had a right to seek review in the High Court of a single officer's decision under the Police Act
• Whether the 8-week period for filing a review application in terms of Order 33 r 259 runs from the date of the single officer's sentence or from the date of the Commissioner General's decision on appeal
• Whether an applicant must exhaust domestic remedies (including appeal) before seeking review in the High Court
• Whether granting review after an unsuccessful appeal amounts to providing a second bite at the cherry
• Whether the review application was filed within the prescribed time limits

The application was dismissed with costs.

There is no right of review to the High Court from a decision of a single officer's court under the Police Act [Chapter 11:10]. The automatic review mechanism by the Commissioner General of Police under s 34(3) of the Police Act constitutes the domestic remedy that must be exhausted. When a litigant elects to pursue an appeal rather than a review, they are bound by that election. The 8-week time period for filing review applications under Order 33 r 259 of the High Court Rules commences from the termination of the proceedings in which the irregularity or illegality complained of occurred (i.e., the single officer's court proceedings), not from the date of an appellate decision. To permit High Court review after an unsuccessful appeal would impermissibly grant a right of appeal against the Commissioner General's decision which the legislature did not intend to confer.

The court expressed reservations about the argument that exhaustion of domestic remedies under the Police Act entails pursuing an appeal before instituting a review application. FOROMA J noted that TSANGA J in Dzikamai Madzivire v The Trial Officer and The Police Commissioner General HH 972/15 did not have an opportunity to consider this point in detail as it was conceded by counsel. The court observed that the Commissioner General, though not a judicial officer, exercises review jurisdiction and will interchangeably determine appeals and reviews on the same criteria - whether there has been a miscarriage of justice. The court also noted that once an election is made between appeal or review, the litigant is bound by that election as the procedures are different.

This case is significant in Zimbabwean police disciplinary law as it clarifies that: (1) there is no right of review to the High Court from decisions of single officer courts under the Police Act; (2) the automatic review mechanism by the Commissioner General under s 34(3) of the Police Act constitutes the exhaustion of domestic remedies for minor infractions; (3) litigants cannot use review proceedings to obtain a second appeal after an unsuccessful appeal to the Commissioner General; (4) the time limits in Order 33 r 259 for filing review applications run from the termination of the proceedings in which the irregularity occurred, not from subsequent appellate decisions. The judgment reinforces the principle that the legislature intended a streamlined, expedited procedure for minor police disciplinary matters without recourse to High Court review.