Ex-Constable Nzonzo P.T. and Ex-Constable Sokole D. v The Commissioner General of Police and Others

On 26 July 2016, both applicants were discharged from the Zimbabwe Police Service by the 1st respondent (Commissioner General of Police). Both applicants appealed against their dismissal to the 2nd respondent (Chairperson of the Police Service Commission) in terms of section 51 of the Police Act (Chapter 11:10). The 1st respondent did not reinstate the applicants pending the appeal. The 1st applicant received notice on 7 November 2016 that his appeal was dismissed, while the 2nd applicant received a similar notification on 6 April 2017. Both applicants claimed they verbally requested reasons for the dismissal of their appeals but were not furnished with written reasons. The applicants filed an application seeking a declaratur that their discharge was unlawful and wrongful, and sought reinstatement. The respondents opposed the application on grounds that: (1) the applicants failed to comply with section 15(1) of the Board of Inquiries (Regulations) 1965 by not filing their appeals through their Officer Commanding, but filed them directly to the 2nd respondent; and (2) the applicants did not properly request reasons from the 2nd respondent.

• Whether the failure by the 1st respondent to reinstate applicants pending determination of their appeal against discharge was wrongful and unlawful
• Whether the dismissal of applicants from the Police Service without giving reasons was unlawful and wrongful
• Whether the Police Service Commission was properly constituted in terms of the Constitution
• Whether section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 requires automatic provision of reasons for administrative decisions or whether reasons must be requested
• Whether the applicants complied with section 15(1) of the Police (Trials and Boards of Inquiry) Regulations 1965 in filing their appeals

The application was dismissed with costs.

The binding legal principles established are: (1) Section 51 of the Police Act and section 15(1) of the Police (Trials and Boards of Inquiry) Regulations 1965 require mandatory compliance with the prescribed appeal procedure, including filing appeals through the Officer Commanding rather than directly with the Police Service Commission; (2) A decision under appeal is only stayed by an appeal that complies with the regulations; (3) Section 68 of the Constitution of Zimbabwe Amendment (No. 20) Act 2013 and section 3 of the Administrative Justice Act (Chapter 10:28) require that a person seeking written reasons for an administrative decision that adversely affects them must request those reasons - there is no automatic obligation on the decision-maker to provide reasons without a request; (4) An applicant seeking a declaratory order bears the onus of proving compliance with procedural requirements and substantiating factual allegations.

The court made the following non-binding observations: (1) The fact that the 2nd respondent determined the appeals despite procedural non-compliance was neither here nor there, as the procedural point was not raised before the 2nd respondent; (2) Since reinstatement was to be effected by the 1st respondent, it was crucial that he be made aware of the appeal, which reflects the spirit of section 51 of the Act and section 15(1) of the Regulations; (3) Regarding the constitutionality of the Police Service Commission, the court observed that applicants would be free to file any application with the Constitutional Court, but this court was unable to make a determination based on unsubstantiated allegations; (4) The court noted that the right to be furnished with reasons under section 68 of the Constitution is very wide and applies to every person whose rights or interests are affected by administrative action, but the practical interpretation is that reasons must be furnished to affected persons who assert the right to be furnished with reasons.

This case establishes important principles in Zimbabwean administrative law regarding: (1) the interpretation of constitutional and statutory rights to reasons for administrative decisions, specifically that such reasons must be actively requested by the affected party and are not automatically provided; (2) the mandatory nature of compliance with prescribed appeal procedures in employment matters within the Police Service; (3) the application of declaratory relief principles in employment disputes; and (4) the burden of proof on applicants to establish proper compliance with procedural requirements. The case demonstrates the Zimbabwean courts' willingness to follow South African jurisprudence on similar constitutional provisions relating to administrative justice.