Inspector Muza Clarkson 040571Y v The Board President (Chief Superintendent Antonio) and Others

The applicant was a police Inspector employed by the Zimbabwe Republic Police. In 2010, he was involved in an accident and sustained injuries. In April 2013, he successfully had a transfer reversed due to his medical condition. On 21 July 2016, he was transferred to ZRP Nyamapanda but did not assume duty at that station due to medical reasons. On 30 August 2016, he was cleared to resume duty on light duties for a month but failed to report for duty for 21 days. On 20 September 2016, a board of inquiry was convened to inquire into his absence from duty. Inspector Pfumbirai deposed to an affidavit stating that the applicant could not be located. The board found that the applicant had deserted the service and recommended his discharge. The recommendation was communicated to the President of Zimbabwe, resulting in the applicant's discharge from the police service in February 2017. The applicant contended that the affidavit contained false information, as the person identified as his wife was actually his ex-wife, and that he was available at his residence. He filed a review application in 2020 seeking to set aside his discharge.

• Whether the decision to discharge the applicant from the police service was grossly irregular and reviewable under section 27(1)(c) of the High Court Act
• Whether the procedures followed in terms of section 50(1) of the Police Act and section 13(1)(b) of the Police (Trials and Boards of Inquiry) Regulations 1965 were properly complied with
• Whether alleged falsification of information in an affidavit used by the board of inquiry constitutes a gross irregularity justifying judicial review
• Whether the applicant was denied a fair hearing (audi alteram partem rule) in the desertion proceedings
• Whether the decision to discharge the applicant was grossly unreasonable

The application for review was dismissed with costs.

Judicial review is concerned with the decision-making process, not with the decision itself. A court conducting judicial review must not usurp the powers of the administrative body by scrutinizing the merits of the decision. A decision made by an administrative tribunal following proper legal procedures and based on evidence properly placed before it cannot be set aside on review merely because an applicant alleges that evidence was false, unless there is proof that the tribunal knew of the falsity or acted irregularly. The onus on a litigant seeking to set aside the exercise of administrative discretion on grounds of unreasonableness is considerable; the applicant must show that the decision defies all logic and is completely wrong, not merely that it is incorrect. Where statutory procedures for discharge from the police service (sections 49, 50, and 72 of the Police Act and the Police Regulations) are properly followed, the decision will not be set aside on review absent gross irregularity in the proceedings.

The court noted that the applicant's grounds of review were numerous but all essentially spoke to the same issue: the discharge on grounds of desertion. The court observed that there could be no issue of denial of hearing (audi alteram partem) when the issue was desertion and the applicant had not been located or accounted for during the relevant period. The court commented that the applicant's reference to events in 2013 and 2018 related to periods outside the February 2016 discharge decision. The court also noted that an amendment sought at the hearing to include an order for convening a medical board was not granted as it did not speak to the issue of desertion and dismissal on that ground. The court observed that the applicant had been cleared for light duties and therefore there was no medical issue that the respondent could be accused of failing to appreciate at the relevant time.

This case clarifies the limited scope of judicial review in Zimbabwe, particularly in administrative law matters involving disciplinary proceedings in the police service. It reinforces the principle that judicial review is concerned with the legality of the decision-making process rather than the correctness or merits of the decision itself. The case demonstrates the high threshold required to establish gross irregularity or unreasonableness as grounds for review under section 27(1)(c) of the High Court Act. It also illustrates that alleged factual inaccuracies in evidence before an administrative tribunal, without proof that the tribunal knew of such inaccuracies or acted improperly, do not constitute grounds for setting aside an administrative decision on review. The judgment emphasizes that courts will not interfere with administrative decisions made in accordance with proper procedures and based on evidence properly before the tribunal, even if that evidence is later contested.