Ex Constable Shoko 069995F v The Commissioner General of Police and Others

The applicant, a former police officer, was convicted in the Harare Magistrates Court on 7 March 2013 of contravening section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He was sentenced to 4 months imprisonment, suspended on condition that he perform 140 hours of community service. Following this conviction, the first respondent (Commissioner General of Police) discharged the applicant in terms of section 48 of the Police Act [Chapter 11:10]. The applicant appealed to the second respondent (Chairman of the Police Service Commission) and was reinstated pending the appeal determination. The appeal was eventually dismissed. The applicant then sought a declaratory order that his discharge was unlawful and wrongful, claiming he was not furnished with reasons for discharge and that the procedure was irregular.

• Whether the application for a declaratory order was properly constituted or was in substance a disguised review application intended to circumvent time limits
• Whether criminal proceedings bar subsequent disciplinary proceedings for the same conduct (double jeopardy argument)
• Whether the Commissioner General of Police properly discharged the applicant under section 48 of the Police Act following a criminal conviction
• Whether the applicant was entitled to reasons for his discharge

The application was dismissed with costs.

An application framed as a declaratory order but which in substance seeks review of administrative action (evidenced by complaints about procedural irregularities and seeking reinstatement) will be treated as a review and must comply with the time limits and procedural requirements for review applications. Criminal convictions do not bar subsequent disciplinary proceedings in respect of the same conduct - section 278 of the Criminal Law (Codification and Reform) Act expressly permits disciplinary proceedings following criminal conviction or acquittal. Under section 48 of the Police Act, the Commissioner General has discretion to discharge a member (non-officer) who has been convicted and sentenced to imprisonment without option of a fine, even if execution is suspended, without requiring an inquiry as would be required for officers under section 49.

The court observed that if an applicant has not been furnished with reasons for an adverse administrative decision, there are procedures available under the Administrative Justice Act [Chapter 10:28] that can be utilized. The court also noted that the respondents' explanation that they could not locate the applicant after dismissal of his appeal to furnish him with reasons was reasonable, and that in any event the applicant never actually requested reasons for the discharge.

This case clarifies important principles in Zimbabwean administrative and labour law: (1) Courts will look to substance over form and will not allow litigants to circumvent review time limits by seeking declaratory relief; (2) Criminal convictions do not bar disciplinary proceedings for the same conduct - the principle against double jeopardy does not apply between criminal and disciplinary proceedings; (3) The Commissioner General of Police has wide discretion under section 48 of the Police Act to discharge members (non-officers) following criminal convictions resulting in imprisonment, and such members are not entitled to the same inquiry procedures as officers under section 49.