Ex-Constable Macherera B 072314 B v The Commissioner General of Police and Others

The applicant was a constable in the Zimbabwe Police Service who was convicted by a single officer in terms of the Police Act [Chapter 11:10]. He appealed against both conviction and sentence to the first respondent (Commissioner General of Police), who dismissed the appeal. A Board of Inquiry (Suitability) was convened in terms of s 50(1) of the Police Act, which recommended the applicant's discharge from the Police Service. The first respondent discharged the applicant on 1 June 2016. The applicant filed an application on 21 March 2018 challenging the process leading to his discharge, alleging various procedural irregularities including: (1) the appeal was heard without affording him a hearing; (2) the Board of Inquiry was improperly convened by an unauthorized officer; (3) he was not furnished with the findings and recommendations of the Board; and (4) the radio signal notifying him of discharge did not contain reasons.

• Whether the application was properly brought as a declaratur or was in substance an application for review
• Whether the applicant was required to exhaust domestic remedies before approaching the court
• What is the distinction between a declaratur under s 14 of the High Court Act and a review under s 27 of the High Court Act
• Whether the applicant had properly utilized internal appeal processes available to him

The application was dismissed with costs.

1. In determining whether an application is for a declaratory order or review, a court must examine the grounds of the application and the evidence produced in support, not merely the relief sought. An application seeking declaratory relief may in substance be an application for review. 2. Setting aside of a decision or proceedings is a relief normally sought in an application for review, not a declaratur. 3. Where an applicant has not exhausted available domestic remedies, particularly internal appeal mechanisms, the court will not entertain the application. 4. A court will not exercise its discretion to grant declaratory relief under s 14 of the High Court Act where the application is in substance a review disguised to avoid compliance with review procedural requirements.

The court referenced the requirements for a declaratur as set out in Johnson v AFC 1995 (1) ZLR 65 (S), noting that the applicant must be an "interested person" with a direct and substantial interest in the subject matter, concerning an existing, future or contingent right, and that the court will not decide abstract, academic or hypothetical questions. The court also noted that at the second stage of inquiry, the court must decide whether the case is a proper one for the exercise of its discretion under s 14, taking account of all circumstances of the matter.

This case is significant in Zimbabwean administrative law for clarifying the distinction between declaratory relief and review proceedings. It reinforces the principle that courts will look beyond the form of the relief sought to examine the substance and grounds of the application. The case also emphasizes the importance of exhausting domestic remedies before approaching the courts, particularly in the context of disciplinary proceedings within the police service. It serves as a warning against attempting to circumvent procedural requirements (such as review time limits) by framing an application as a different type of relief.