Ex-Constable Artwell Kamhesi v The Commissioner General of Police and The Police Service Commission

The applicant was a police constable attested on 2 June 2011 and discharged on 31 July 2012. He appeared before the Magistrates' Court on two counts: theft (s 113(1) of the Criminal Code) and escaping from lawful custody (s 185(1)(a) of the Criminal Code). He was convicted on both counts and sentenced to six months imprisonment for theft (three months suspended for five years on condition of good behaviour, three months suspended on condition of restitution) and a fine of ZWL$30,000 (or 30 days imprisonment in default) for escaping custody. He was also internally charged under the Police Act, found guilty, and fined ZWL$1,000. Following his conviction for theft and sentence to imprisonment without option of a fine, he was discharged from the Police Service in terms of s 48 of the Police Act. The applicant was notified of his discharge on 15 January 2024. He filed an application for condonation on 22 November 2024, approximately eight months outside the eight-week timeline prescribed by Rule 62(4) of the High Court Rules, 2021 for filing a review application. He claimed he was not provided with reasons until 4 September 2024 and was in Mozambique until 16 November 2024.

• Whether the applicant provided a reasonable explanation for the inordinate delay in filing the application for condonation
• Whether the applicant had good prospects of success in the intended review application
• Whether s 48 of the Police Act was properly invoked where the applicant was sentenced to imprisonment without option of a fine, even though the sentence was suspended
• Whether the Commissioner-General had lawful authority to discharge the applicant
• Whether the second respondent's opposing affidavit was valid where it was not commissioned
• Whether failure to seek a court order compelling supply of reasons under s 6 of the Administrative Justice Act constitutes a reasonable explanation for delay

The application for condonation was dismissed with costs in favour of the first respondent. The second respondent's un-commissioned statement was expunged from the record.

The binding legal principles established are: (1) A litigant who has not been supplied with reasons for an administrative decision within a reasonable period cannot rely on mere correspondence requesting reasons as a reasonable explanation for delay in filing review proceedings, but must invoke the statutory remedy under s 6 of the Administrative Justice Act to compel supply of reasons. (2) Section 48 of the Police Act is properly triggered where a police member is sentenced to imprisonment without the option of a fine, regardless of whether the sentence is suspended and regardless of the conditions attached to the suspension; conditions of restitution and good behaviour do not constitute a 'fine' for purposes of this provision. (3) The Commissioner-General has express statutory authority under s 48(1)(a) of the Police Act to discharge a member sentenced to imprisonment without option of a fine. (4) An un-commissioned statement filed as an opposing affidavit is invalid and must be expunged, as it does not constitute a valid affidavit for purposes of the court rules.

The court observed that applicants seeking condonation should attach a draft copy of the intended application to enable the court and respondent to properly assess the grounds and prospects of success, though this is not necessarily a fatal omission. The court also noted that criticisms of the second respondent's appeal process were both unsubstantiated and ultimately irrelevant since the intended review would target the first respondent's decision to discharge the applicant, not the appeal decision.

This case is significant in Zimbabwean administrative and procedural law for: (1) clarifying that litigants who are not timeously provided with reasons for administrative decisions cannot simply wait indefinitely but must actively seek relief under s 6 of the Administrative Justice Act to compel supply of reasons; (2) interpreting s 48 of the Police Act to confirm that a sentence to imprisonment without option of a fine triggers the provision even where the sentence is wholly suspended on conditions, and that conditions of restitution and good behaviour do not constitute a 'fine'; (3) reinforcing that condonation applications require consideration of all factors cumulatively (degree of delay, explanation, prospects of success, importance of case, respondent's interest in finality) and that flagrant breaches with inadequate explanations may be refused regardless of merits; (4) emphasizing the importance of attaching draft applications to condonation applications to enable proper assessment of prospects of success; (5) confirming the procedural requirement that opposing affidavits must be properly commissioned to be valid.