Ex Constable Mbaimbai v The Commissioner General of Police and Minister of Home Affairs

The applicant, Cannan Mbaimbai, was a member of the Zimbabwe Republic Police for eleven years, employed as a constable until he was cashiered on 20 June 2017. He was discharged after being convicted by a Single Officer for acting in an unbecoming or disorderly manner prejudicial to good order or discipline under section 50(3)(a)(1) of the Police Act Chapter 11-10. His appeal to the Commissioner General (first respondent) was unsuccessful. He requested reasons for dismissing his appeal but received none. He then filed an appeal to the Minister of Home Affairs (second respondent) under section 51 of the Police Act, which was also dismissed. The applicant alleged he was not reinstated upon noting his appeal, his salary was stopped, and he was evicted from Police accommodation. He brought this review application challenging the second respondent's decision on grounds of procedural irregularities.

• Whether the second respondent afforded the applicant the right to be heard before being discharged from the Police Service
• Whether the failure to furnish reasons for the discharge and dismissal of appeals was lawful
• Whether the discharge was procedurally fair and complied with constitutional requirements
• Whether a review application can proceed without the record of proceedings being placed before the court

The application was struck off the roll with no order of costs.

A review application cannot proceed without the record of proceedings being placed before the court. A review is fundamentally based upon the record of proceedings, and without it, there is nothing for the court to review. Where an applicant seeks to review a decision that is the culmination of multiple levels of proceedings and appeals, the absence of the complete record of proceedings from the initial disciplinary hearing renders the court unable to assess the procedural or substantive correctness of the final decision. Both parties bear responsibility for ensuring compliance with rule 62(5) of the High Court Rules 2021 regarding lodgment of the record.

The court made several obiter observations: (1) In an affidavit, the deponent must be correctly named - the applicant swore to the founding affidavit stating his name was "Ex Constable Mbaimbai" which was not correct, though the court did not mero motu disqualify or rule the affidavit invalid since no issue was raised by the respondents. (2) The applicant did not properly state why each respondent was cited or their relationship with the cause of complaint. (3) The court noted that the applicant was "ill advised" to seek to argue the review without the record. (4) The court commented that both parties were at fault with regards to furnishing the record - respondents are required by rule 62(5) to lodge the record without prompting, which they did not do, and the applicant did not take steps to ensure compliance after his requests for the record were allegedly refused.

This case illustrates the critical importance of placing the complete record of proceedings before the court in review applications. It reinforces the procedural requirement under rule 62(5) of the High Court Rules 2021 that respondents must lodge the record of proceedings within twelve days of being served with a review application. The case demonstrates that a court cannot conduct a substantive review of administrative decisions, particularly those involving disciplinary proceedings with multiple levels of appeal, without access to the foundational record of proceedings. It also highlights the duty on applicants to take active steps to ensure compliance with procedural requirements, including seeking postponements or court orders to compel production of records when necessary.