Detective Constable Mlambo SG 070211Q and Detective Constable Matubu v The Trial Officer N.O. (Superintendent Nyagura) and The Commissioner General of Police

Two police detective constables (applicants) were charged under the Police Act [Chapter 11:10] with two counts: (1) acting in a manner likely to bring discredit to the Police Force by allegedly converting 49 bottles of cough syrup to their own use and soliciting a $3,000 bribe, and (2) performing duty in an improper manner by reacting to information without knowledge and direction of the officer-in-charge. On 21 December 2017, the applicants appeared before the Trial Officer (first respondent) and pleaded not guilty. After pleading, they raised an exception under section 180(2)(f) and (4) of the Criminal Procedure and Evidence Act, arguing that: (a) the Trial Officer had no jurisdiction to deal with two accused persons jointly charged on separate indictments; (b) they should not be tried for disciplinary offences when facing criminal charges; and (c) the charges were vague and embarrassing. The first respondent dismissed the exception and ordered the matter to proceed to trial. The applicants then applied for review of these proceedings on 30 January 2018, seeking to set aside the dismissal of their exception and permanently stay the disciplinary prosecution.

• Whether a superior court should intervene in uncompleted proceedings of lower courts or tribunals
• Whether disciplinary proceedings under the Police Act can be conducted concurrently with criminal proceedings for the same conduct
• Whether joint trial of two accused persons on separate indictments constitutes a procedural irregularity
• Whether the charges against the applicants were vague and embarrassing
• Whether an application for review is the appropriate remedy where an accused is dissatisfied with the dismissal of an exception in unterminated proceedings
• The distinction between appeal and review proceedings

The application for review was dismissed with costs. The order sought by the applicants to set aside the dismissal of their exception and permanently stay the disciplinary prosecution was refused.

A superior court will intervene in uncompleted proceedings of lower courts or tribunals only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means, or where the interlocutory decision is clearly wrong so as to seriously prejudice the rights of the litigant. An application for review is validated by facts showing irregular procedure adopted by the tribunal that prejudiced the applicant, not merely by dissatisfaction with an interlocutory decision. Where an accused person pleads and excepts together under section 171(2) of the Criminal Procedure and Evidence Act, it is within the discretion of the hearing officer whether the plea or exception shall be first disposed of. Disciplinary proceedings under the Police Act can be conducted concurrently with criminal proceedings for the same conduct, as they serve different objectives - disciplinary processes aim at maintenance and enforcement of discipline in the Police Force, whereas criminal proceedings aim at maintaining law and order generally. Joint trials under section 190 of the Criminal Procedure and Evidence Act are permissible where accused persons acted together in commission of offences.

The court made several non-binding observations: (1) Legal practitioners should properly advise their clients, particularly in unterminated proceedings where an interlocutory decision is given by a trial officer, to proceed with the hearing rather than hurriedly bring a matter for review based on flimsy grounds. (2) The court noted that the application for review was essentially a disguised appeal, which is not encouraged or supported by law. (3) The court observed that any defects in the charge sheet can be cured by evidence at trial under section 203 of the Criminal Procedure and Evidence Act. (4) The court emphasized the distinction between appeal and review: appeals challenge the result or correctness of a decision, while review challenges the method of trial or validity of proceedings. The essential question in review proceedings is not the correctness of the decision but its validity. (5) The court noted that the applicants' ability to plead to the charges demonstrated that they comprehended them, undermining their argument about vagueness.

This case is significant in Zimbabwean law (applicable for comparative purposes in South African administrative and labour law) for clarifying the limited circumstances in which superior courts will intervene in uncompleted disciplinary proceedings. It establishes important principles regarding: (1) the distinction between review and appeal remedies in unterminated proceedings; (2) the principle that disciplinary proceedings can run concurrently with criminal proceedings for the same conduct as they serve different purposes (maintaining discipline versus maintaining law and order); (3) the discretion of trial officers in determining whether to first dispose of pleas or exceptions; and (4) the requirement that applicants for review must establish gross irregularity or prejudice to justify intervention in incomplete proceedings. The case also serves as a reminder to legal practitioners to properly advise clients to exhaust remedies in the original proceedings rather than prematurely seeking review.