Ex-Constable Chitemere v The Commissioner General of Police and Others

The applicant was a former constable in the Zimbabwe Republic Police who was discharged from the Police Service on 15 September 2017 by the Commissioner General of Police (first respondent) for being unsuitable for police duties. This discharge followed a trial before a single officer where the applicant was convicted. The applicant appealed against the conviction and penalty to the Police Service Commission (second respondent). The applicant contended that he properly filed his appeal and that the second respondent acknowledged receipt. He argued that the noting of the appeal automatically entitled him to reinstatement pending the appeal outcome in terms of section 51 of the Police Act. When the respondents refused to reinstate him, the applicant filed an application for a declaratur seeking to have his discharge declared unlawful and set aside, and to be reinstated to the Police Service.

• Whether the applicant properly complied with the procedure for noting an appeal as prescribed in Section 15(1) of the Police (Trials and Boards of Inquiry) Regulations, 1965
• Whether the applicant's appeal, if validly noted, automatically suspended the execution of his discharge in terms of section 51 of the Police Act
• Whether an application for a declaratur under section 14 of the High Court Act was the appropriate remedy in the circumstances
• Whether the relief sought was more appropriate to review proceedings rather than declaratur proceedings

The application was dismissed with costs.

Where an appeal procedure is prescribed by statute or regulation with specific procedural steps, strict compliance with those procedures is mandatory for a valid appeal to exist. In the context of the Police (Trials and Boards of Inquiry) Regulations, 1965, an appellant must give notice of intention to appeal to the Officer Commanding within 24 hours and lodge written notice with grounds of appeal with the Officer Commanding within seven days. Failure to follow this prescribed procedure means there is no valid appeal, and consequently, the automatic suspension provisions of section 51 of the Police Act cannot apply. An application for a declaratur is not the appropriate remedy where the substantive relief sought (such as reinstatement following discharge) is more properly the subject of review proceedings.

The court observed that if the applicant had followed the procedure clearly provided in the Police regulations, the application before the court would not have been necessary at all. The court also noted that once the intention to appeal is properly given to the Officer Commanding, the process is put into motion and the applicant goes back to work. The court rejected the suggestion that police officials were not cooperative, noting that it was unclear who approached whom about the intention to appeal, and if it was the applicant's legal representative who approached them, an affidavit to that effect should have been filed.

This case is significant in Zimbabwean administrative and labour law as it emphasizes the importance of strict compliance with procedural requirements in administrative proceedings, particularly within disciplined services such as the police force. It clarifies that failure to follow prescribed statutory procedures for noting appeals, even where an appeal mechanism exists, will result in there being no valid appeal. The case also distinguishes between declaratur proceedings and review proceedings, reinforcing that applicants must choose the appropriate procedural remedy based on the substantive relief sought. The judgment serves as a warning that non-compliance with regulatory procedures cannot be cured by direct communication with higher authorities when regulations prescribe a specific chain of command.