Ex-Constable Mukochiwa v The Chairman of the Police Service Commission and Others

The applicant was a police officer stationed at Mzilikazi Police Station who was dismissed from the Zimbabwe Republic Police. On 29 December 2013, he left his place of duty without authority while guarding the Deputy Commissioner General Sibanda's house in Montrose, Bulawayo. He was charged with contravening paragraphs 13(2) and 34 of the Schedule to the Police Act, convicted and sentenced to 10 days imprisonment at Fairbridge Detention Barracks and fined $10.00. Meanwhile, he was facing a theft charge in Chipinge. On 5 January 2015, the 2nd respondent constituted a Board of Inquiry (Suitability) in terms of section 50(1) of the Police Act. The applicant was subsequently discharged from the service as "unsuitable for police duties" on 12 February 2016. He appealed to the 1st respondent who, on 2 June 2016, dismissed his appeal and upheld the decision to discharge him. The applicant then filed this application for review, alleging gross procedural irregularities and failure to provide written reasons as required by section 68(2) of the Constitution.

• Whether the respondents committed gross procedural irregularities in dismissing the applicant from the Police Service
• Whether the applicant was entitled to be reinstated pending determination of his appeal in terms of section 51 of the Police Act
• Whether the failure to furnish written reasons for the administrative decision violated section 68(2) of the Constitution
• Whether the respondents should be barred for failure to file heads of argument timeously in terms of Order 32 Rule 238(b) of the High Court Rules
• Whether the remedies sought by the applicant were competent and grantable at law

The application was dismissed without an order of costs.

The binding legal principles established are: (1) Section 68(2) of the Constitution does not require administrative authorities to furnish reasons simultaneously with administrative decisions, but only "promptly" thereafter, which contemplates that reasons may follow the decision; (2) A person affected by an administrative decision must actively request written reasons from the administrative authority - there is no obligation to furnish reasons automatically without request; (3) Where an administrative authority fails to provide reasons, the proper remedy is to apply under the Administrative Justice Act (Chapter 10:28) to compel the provision of reasons, not to immediately seek to set aside the administrative decision; (4) Failure to request reasons properly means there can be no violation of section 68 of the Constitution; (5) The remedy of reinstatement for failure to suspend pending appeal is incompetent - the proper remedy is damages for loss of income and benefits during the relevant period.

The court approved the reasoning in Vera v Imperial Asset Management H-50-06 regarding the interpretation of Rule 238 on filing heads of argument, noting that the bar against a respondent for non-compliance is automatic and brings about technical default. The court observed that while the Commissioner's practice of furnishing reasons automatically is to be encouraged, this is not what the Constitution requires. The court also noted that it would be prudent for persons requesting reasons to do so in writing with proof of service for record purposes, particularly when dealing with institutional administrative authorities. The court emphasized that to set aside administrative decisions on grounds that no reasons were given without following administrative remedies would result in gross injustice.

This case is significant in Zimbabwean administrative law for clarifying the scope and application of section 68 of the Constitution regarding the right to written reasons for administrative decisions. It establishes that: (1) administrative authorities are not required to provide reasons automatically or simultaneously with decisions, but must do so promptly upon request; (2) litigants must follow the procedures set out in the Administrative Justice Act to request and compel provision of reasons; and (3) failure to provide reasons does not automatically invalidate an administrative decision - the proper remedy is to compel compliance through the statutory framework rather than seeking immediate judicial review. The judgment emphasizes the importance of exhausting administrative remedies and following proper procedures before seeking judicial intervention.