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

The applicant, an ex-constable in the Zimbabwe Republic Police, was charged under para 35 of the Schedule to the Police Act and convicted. She appealed to the first respondent (Commissioner-General of Police) who dismissed her appeal without furnishing reasons. A Suitability Board was convened and recommended her discharge from the Police Service, which was implemented. In November 2018, the applicant successfully applied under HC 42/18 to compel the respondent to furnish reasons for her discharge. Despite a court order requiring reasons within 14 days, the respondent did not comply until 14 February 2019, after the applicant wrote on 24 December 2018. The applicant then filed for a declaratur under HC 2450/20 on 20 May 2020, which was heard on 6 July 2021 and struck off the roll as she should have sought review instead. On 14 July 2021, the applicant filed this application for condonation of late filing of her review application, which should have been filed within 8 weeks of receiving the reasons in February 2019.

• Whether condonation should be granted for late filing of a review application
• Whether the applicant provided a satisfactory explanation for the delay
• Whether the applicant had reasonable prospects of success in the main review matter
• Whether reasons for dismissal furnished by an assistant commissioner (R.M. Basera) rather than the Commissioner-General himself were valid
• Whether failure to provide proper reasons for a judicial decision constitutes a reviewable irregularity

The application for condonation was granted as prayed. The court allowed the applicant to proceed with her review application despite it being filed outside the prescribed 8-week period.

The binding legal principles established are: (1) A judicial officer exercising judicial or quasi-judicial functions cannot delegate the duty to provide reasons for their decisions to another person, even a subordinate; (2) Reasons for a decision must be provided by the actual decision-maker who heard the matter, as only that person knows why the decision was made; (3) Reasons provided by someone other than the decision-maker are invalid and of no legal effect; (4) Failure to provide proper reasons for a judicial or quasi-judicial decision constitutes a serious irregularity that vitiates the proceedings; (5) In condonation applications, courts must weigh multiple factors holistically, including the degree of non-compliance, the explanation given, the importance of the case, prospects of success, the respondent's interest in finality, convenience of the court, and avoidance of delay in administration of justice; (6) Delays caused by factors beyond the applicant's control (such as COVID-19 or mistakes by legal practitioners) are relevant considerations in assessing whether to grant condonation.

The court made several non-binding observations: (1) That no person is infallible, including legal practitioners and judges, which is why appeal and review processes exist in law; (2) That COVID-19 was a reality that adversely affected court operations worldwide and brought commerce and industry to a virtual standstill; (3) That the Commissioner-General of Police has dual functions - administrative and judicial - and while administrative functions can be delegated, judicial functions cannot; (4) That condonation is not granted for the mere asking but only in deserving cases where the applicant shows candidness, honesty and contrition; (5) That an applicant who delays in filing an application must explain not only the delay in the main application but also any delay in seeking condonation; (6) That in employment matters affecting a person's livelihood (bread and butter), the court should be mindful of the paramount importance to the applicant while also considering the employer's interest in maintaining standards.

This case is significant in Zimbabwean administrative and labour law for several reasons: (1) It reinforces the principle that judicial officers (including those exercising judicial functions like the Commissioner-General hearing appeals) cannot delegate their duty to provide reasons for decisions; (2) It clarifies that reasons must come from the actual decision-maker, not a subordinate; (3) It demonstrates judicial willingness to grant condonation where delays are not entirely attributable to the applicant and where prospects of success are high; (4) It acknowledges the impact of COVID-19 on court proceedings and litigants' ability to comply with prescribed timelines; (5) It emphasizes that failure to provide proper reasons for a judicial or quasi-judicial decision is an irregularity that vitiates proceedings; (6) It balances the interests of finality against the interests of justice, particularly in employment matters affecting a person's livelihood.