Ex-Constable Tswatswa A v The Commissioner General of Police and The Police Service Commission

The applicant was discharged from the Zimbabwe Police Service by the first respondent (Commissioner General of Police) on 4 December 2014, having been found unfit to remain a member of the Police Service following disciplinary proceedings. The applicant appealed to the second respondent (Police Service Commission), which dismissed his appeal. The applicant then filed an application seeking a declaratory order that his discharge was unlawful and wrongful, and seeking reinstatement. The applicant complained that: (1) he was not furnished with the record of proceedings or written reasons for his discharge; (2) he was not given an opportunity for an oral hearing on appeal, as the second respondent disposed of the appeal on the papers; and (3) the Police Service Commission was improperly constituted.

• Whether an application for a declaratory order was the appropriate remedy or whether the matter should have been brought as a review application
• Whether the failure to provide written reasons for administrative decisions constitutes grounds for a declaratory order or grounds for review
• Whether the failure to conduct an oral hearing on appeal constituted a violation of the audi alteram partem rule and constitutional rights to a fair hearing
• Whether the applicant discharged the onus of proving that the Police Service Commission was improperly constituted
• Whether the application should have been brought before the Labour Court rather than the High Court

The application was dismissed. The applicant was ordered to pay the 1st and 2nd respondents' costs of suit.

The binding legal principles established are: (1) An application that is in substance seeking to review administrative action cannot be disguised as an application for a declaratory order, regardless of how it is styled. The court will look at the substance of the relief sought and the grounds relied upon. (2) Allegations that administrative decision-makers failed to provide written reasons (as required by s 68(2) of the Constitution) or failed to provide records of proceedings constitute grounds for review based on gross irregularity under s 27(1)(c) of the High Court Act, not grounds for declaratory relief. (3) Allegations that the audi alteram partem rule was violated (such as by failing to conduct an oral hearing) constitute gross procedural irregularities and are grounds for review, not for declaratory orders. (4) Where an applicant alleges that an administrative body was improperly constituted, the onus rests on the applicant to adduce evidence proving the improper constitution. Mere allegation is insufficient to shift the burden to the respondent administrative body. (5) Section 68(3)(a) of the Constitution requires that an Act of Parliament must provide for review of administrative conduct by a court or tribunal - the proper remedy for challenging administrative decisions on procedural grounds is review, not declaratory relief.

The court made several non-binding observations: (1) The court expressed regret that the same counsel who had appeared in the previous matter of Mutote Renias v The Charging Officer (HH 233/19), where the same error was made, repeated the mistake in the present case. (2) The court noted that if an application for review were to be filed (which would be the appropriate remedy), applications for condonation for late filing and extension of time would need to be filed with the Labour Court, suggesting that jurisdiction over such matters lies with the Labour Court rather than the High Court. (3) While acknowledging that the applicant's right to written reasons under s 68(2) of the Constitution was "beyond debate," the court observed that this did not automatically translate into grounds for a declaratory order. (4) The court observed that even if the ground regarding improper constitution of the Police Service Commission had been established (which it was not due to lack of evidence), it would have entitled the applicant to an order voiding the decision rather than the declaratory relief sought. (5) The court's reliance on criminal law authority (S v Makawa 1991 (1) ZLR 142 (S)) was noted as "apposite" even in the administrative law context for the principle regarding gross irregularities, suggesting cross-application of procedural fairness principles across different areas of law.

This case is significant in Zimbabwean administrative law for several reasons: (1) It reinforces the distinction between applications for declaratory orders and applications for review, emphasizing that litigants cannot circumvent review procedures by framing substantive review grounds as applications for declaratory relief. (2) It confirms that failures to comply with constitutional and procedural requirements in administrative decision-making (such as providing written reasons under s 68(2) of the Constitution or observing the audi alteram partem rule) constitute grounds for review under s 27 of the High Court Act rather than grounds for declaratory orders. (3) It clarifies the allocation of the onus of proof in administrative law matters, confirming that an applicant cannot shift the burden to a respondent merely by making unsubstantiated allegations. (4) It demonstrates judicial enforcement of proper procedural approaches in administrative law litigation and discourages attempts to use inappropriate remedies. The case also highlights the importance of constitutional rights to written reasons and fair hearings in administrative justice while clarifying the proper procedural mechanisms for enforcing those rights.