Ex-Constable Makumbi v The Commissioner General of Police and Others; Ex-Sergeant Mafenya v The Commissioner General of Police and Others

Two former police officers, Ex-Sergeant Mafenya and Ex-Constable Makumbi, were discharged from the Zimbabwe Police Service in 2016. Ex-Sergeant Mafenya was discharged on 2 November 2016 and received radio communication on 7 November 2016. He filed a notice of intention to appeal on 7 November 2016 and notice and grounds of appeal on 14 November 2016 with the Police Service Commission (2nd respondent). Ex-Constable Makumbi was discharged on 1 September 2016, served with discharge radio on 27 October 2016, and filed his appeal. He was initially reinstated on 10 November 2016. Both applicants' appeals were dismissed by the Police Service Commission on 24 March 2017 without written reasons being provided. Both applicants claimed they verbally requested reasons but received none. They filed court applications seeking declaratory orders that their discharge was unlawful and wrongful, and seeking reinstatement. The two cases were consolidated at the hearing due to similar facts and legal issues.

• Whether the applicants were properly furnished with reasons for the dismissal of their appeals by the Police Service Commission as required by section 68 of the Constitution and the Administrative Justice Act
• Whether the Police Service Commission was properly constituted in terms of the Constitution
• Whether Ex-Sergeant Mafenya noted his appeal against discharge within the prescribed timeframe and in the prescribed manner
• Whether the applicants met the requirements for the grant of a declaratory order under section 14 of the High Court Act

Both applications dismissed with costs

1. Under section 68 of the Constitution of Zimbabwe and section 3(1)(c) of the Administrative Justice Act, an affected person must first request reasons for an administrative decision before the decision-maker can be deemed to have failed to comply with the obligation to provide written reasons. The right to reasons is not automatic but must be asserted through a proper request. 2. Compliance with section 15(1) of the Police (Trials and Boards of Inquiry) Regulations 1965 is mandatory and peremptory - an appeal must be filed with the officer commanding within the prescribed timeframe and manner. Failure to comply renders the appeal a nullity. 3. A party asserting that they requested reasons bears the onus of proving such request was made, including details of to whom, where, and when the request was made. Unsubstantiated verbal requests are insufficient to discharge this burden.

The court observed that the issue of whether the Police Service Commission was properly constituted under section 227 of the Constitution was not fully argued and the information supplied was too scanty for the court to make a determination. The court noted that applicants could file an application with the Constitutional Court if they wished to pursue this issue. The court also noted, without deciding, that it did not share the view that under the Constitution, applicants are entitled to be furnished with reasons even without the need to request same, suggesting that administrative authorities are not required to automatically provide reasons for every single administrative action taken without a request being made.

This case is significant in Zimbabwean administrative law for clarifying the requirements under section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 regarding the right to administrative justice and written reasons for administrative decisions. The judgment establishes that affected persons must actively request reasons for administrative decisions before authorities can be deemed to have violated the constitutional right. It also emphasizes strict compliance with procedural requirements for appeals in the police disciplinary context, holding that failure to follow prescribed procedures (filing appeals through proper channels) renders appeals nullities. The case demonstrates the interplay between constitutional rights and statutory procedural requirements, and the court's approach to declaratory relief applications.