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

The applicant, a former constable in the Zimbabwe Republic Police, was charged and convicted by a single officer in terms of section 29A of the Police Act for contravening paragraph 34 of the Schedule to the Police Act. He was convicted on 10 August 2012 for conniving with a known stock thief to steal a heifer and sentenced to pay a fine of $10. On 29 October 2012, the first respondent convened a Board of Inquiry (Suitability) in terms of section 50(1) of the Police Act to investigate the applicant's deteriorating conduct. The applicant was served with notification Form 219 and appeared before the Board. He was discharged from the Police Service by the first respondent. He appealed to the second respondent in terms of section 51 of the Police Act and was temporarily reinstated. On 31 July 2013, the applicant was again discharged from the Police Service after the second respondent dismissed his appeal. The applicant claimed he was not furnished with reasons for his dismissal in violation of section 68(2) of the Constitution and brought an application for a declaratur seeking reinstatement and other relief.

• Whether the applicant brought an application for review disguised as a declaratur
• Whether the applicant was denied reasons for his discharge in violation of section 68 of the Constitution of Zimbabwe
• Whether the applicant was entitled to be heard on appeal
• Whether the application was brought out of time without seeking condonation
• Whether consequential relief can be claimed in a declaratur application under section 14 of the High Court Act

The application was dismissed. The applicant was ordered to pay costs on a legal practitioner and client scale.

1. An application for a declaratur under section 14 of the High Court Act cannot be used to claim consequential relief such as reinstatement. The court must look at the substance rather than the form of an application. 2. A litigant cannot circumvent the eight-week time limit for review applications under Order 33 of the High Court Rules by disguising a review application as an application for a declaratur without seeking condonation for the delay. 3. Under section 68(2) of the Constitution and section 3(1)(c) of the Administrative Justice Act, a person affected by administrative action is entitled to written reasons, but this right is not violated where: (a) reasons were in fact provided to the applicant or their legal representatives, and (b) the applicant was able to use those reasons to lodge an appeal, demonstrating actual knowledge of the reasons for the decision.

The Court observed that section 51 of the Police Act provides for appeals to be determined on paper, and the second respondent's role is to observe whether procedural fairness was observed rather than to hold inquisitorial sittings or hearings. The Court also noted that even assuming the applicant had requested reasons (which was not proven), no violation occurred because reasons were in fact provided through the record of proceedings and radio signal communications.

This case is significant in Zimbabwean administrative and constitutional law as it addresses the proper use of declaratory relief under section 14 of the High Court Act and prevents abuse of process. It establishes that litigants cannot circumvent mandatory time limits for review applications by disguising them as declaratur applications. The case also interprets the constitutional right to reasons for administrative decisions under section 68(2) of the Constitution and the complementary Administrative Justice Act, clarifying that the right to reasons does not mean the applicant can succeed where reasons were in fact provided or where the applicant failed to properly request them. The case emphasizes substance over form in determining the true nature of applications before the court.