Liberty Muchena v The Police Service Commission & Commissioner General Police

The appellant was employed as a constable in the Zimbabwe Republic Police (ZRP). He was charged with rape under s 65 of the Criminal Law (Codification and Reform) Act. Pending the criminal trial, a suitability board was constituted under s 50 of the Police Act to determine allegations of misconduct against the appellant. He was convicted of contravening para 35 of the Schedule to the Police Act for acting in a manner prejudicial to good order or likely to bring discredit to the Police Force. He was discharged from the Police Force on 16 April 2013, confirmed on 9 December 2013. He filed an application for review on 2 May 2014 which was dismissed as filed outside the prescribed eight weeks period. On 25 February 2016, the appellant was found not guilty and acquitted of the criminal charges. His application for condonation for late filing of the review was dismissed on 30 January 2017, which judgment was not appealed. On 2 June 2017, the appellant filed an application for a declaratur seeking to have his discharge declared null and void, arguing he should not have been subjected to disciplinary proceedings arising from a criminal offence for which he was acquitted.

• Whether the application before the court a quo was properly characterised as an application for a declaratur or was in fact a disguised application for review
• Whether an applicant can circumvent the time limits and requirements for review proceedings by filing an application for a declaratur based on the same grounds
• Whether the principle of double jeopardy is a procedural or substantive issue
• Whether the court a quo erred in determining the nature of the application before it

The appeal was struck off the roll with no order as to costs. In the exercise of the Court's review powers pursuant to s 25 of the Supreme Court Act, the judgment of the court a quo was set aside and substituted with an order striking the matter off the roll with costs.

The binding legal principles established are: (1) In determining whether an application is for review or declaratur, courts must examine the grounds of the application and the evidence supporting them, not merely the relief sought; (2) An application that challenges the procedural regularity or validity of proceedings, or the manner in which a decision was made, is an application for review regardless of how it is styled; (3) A declaratory order cannot be used to circumvent the time limits and procedural requirements applicable to review proceedings; (4) An applicant who has failed to successfully prosecute a review application cannot seek a "second bite of the cherry" by filing a declaratur application based on the same grounds arising from the same record; (5) The principle of double jeopardy is a procedural defence relating to the legitimacy of legal process, not a substantive issue.

The Court made observations about the scope and utility of its review powers under s 25(2) of the Supreme Court Act, noting that this power may be exercised at any time whenever it comes to the Court's attention that an irregularity has occurred, notwithstanding that the decision is not the subject of an appeal. The Court cited with approval the Constitutional Court's reasoning in Gonese v Minister of Finance and Economic Development CCZ 11-23 regarding the necessity of such review powers to enable the Court to act when irregularities come to its attention. The Court also noted that Police Standing Orders made under s 9 of the Police Act serve as guidelines for police operations and procedures, providing for the conduct of police members and disciplinary procedures.

This case is significant in Zimbabwean administrative law and civil procedure as it clarifies the distinction between applications for review and applications for declaratur. It establishes that courts must look beyond the relief sought to examine the grounds of the application and the nature of the challenge being made. The case confirms that applicants cannot circumvent the strict time limits and procedural requirements for review proceedings by disguising their applications as declaraturs. It also clarifies that the principle of double jeopardy is a procedural rather than substantive issue. The case demonstrates the Supreme Court's willingness to invoke its inherent review powers under s 25 of the Supreme Court Act to correct irregularities in lower court proceedings, even when determining an appeal.