Marowa Nyamande v The Minister of Home Affairs and Others

The applicant was a member of the Zimbabwe Republic Police who had attained the rank of assistant inspector. He was charged with contravening paragraph 34 of the schedule to the Police Act (performing any duty in any improper manner) on two occasions between 1 April 2008 and 31 August 2008. The first allegation was that he withdrew maize and exchanged it for cattle and goats without permission and failed to enter them in official records. The second allegation was that he purchased 7 tonnes of maize but only delivered 6 tonnes, taking 18 x 50kg bags to a grinding mill without authority. He was notified to appear before a court presided over by one officer on 3 February 2009. On 29 January 2009, he attempted to elect trial by magistrate's court under section 32 of the Act. He was tried by the officer's court, convicted on the first count, acquitted on the second, and sentenced to 14 days imprisonment. On appeal to the Commissioner General, the conviction was substituted with one under paragraph 39 (improperly using position as a member for private advantage), a charge never put to the applicant.

• Whether a police member to be tried by a court consisting of one officer is entitled to elect trial by magistrate's court under section 32 of the Police Act
• Whether an appeal court can substitute a conviction for a charge that was never put to the accused person
• Whether the substitution of the conviction without the charge being put to the accused violated the audi alteram partem rule
• Whether the essential elements of the offence under paragraph 34 include those of paragraph 39 to permit conviction under section 274 of the Criminal Law (Codification and Reform) Act

The conviction of the applicant which had been substituted by the Commissioner General for that of the court a quo was set aside. No order as to costs was made as the applicant did not seek costs.

1. A police member to be tried by a court consisting of one officer is not entitled to elect trial by magistrate's court under section 32 of the Police Act, as that provision expressly relates only to trials before a board of officers (applying the maxim expressio unius est exclusio alterius). 2. Where it is intended to charge an accused person with an alternative charge, that alternative charge must be put to the accused together with the main charge before trial commences so that the accused can respond to it; failure to do so violates the audi alteram partem rule. 3. An appeal court cannot substitute a conviction for a charge that was never put to the accused person during the original trial. 4. The essential elements of performing duty in an improper manner (paragraph 34) and improperly using position for private advantage (paragraph 39) are completely different, and conviction for one cannot be substituted for the other under section 274 of the Criminal Law (Codification and Reform) Act.

The court noted that the concept of alternative charges is taught to police recruits in depot and should be familiar to someone who attained the rank of assistant inspector, though this knowledge does not excuse the failure to properly charge the accused. The court also emphasized that when alternative charges are properly laid, the accused may elect to plead guilty to the alternative charge while pleading not guilty to the main charge, and the court is not competent to convict on both the main and alternative charge.

This case establishes important principles regarding police disciplinary proceedings in Zimbabwe, particularly concerning the right to elect trial forums and the requirements of natural justice in disciplinary appeals. It reinforces the fundamental principle that an accused person cannot be convicted of a charge that was never put to him, even on appeal. The case also clarifies the interpretation of section 32 of the Police Act regarding election of trial forums, and emphasizes the proper procedure for charging alternative offences in accordance with the Criminal Procedure and Evidence Act and the Criminal Law (Codification and Reform) Act.