Robert Madamombe v Commissioner General of Police and Others

The applicant, a Constable in the Zimbabwe Republic Police stationed at Hwange, was convicted before a single officer on 3 September 2015 for contravening paragraph 12 of the Schedule to the Police Act (leaving a point of guard without permission or reasonable excuse). He was sentenced to seven days imprisonment at detention barracks at Fairbridge. He appealed to the Commissioner General in terms of section 34(7) of the Act, but the appeal was dismissed and the sentence executed. On 12 May 2016, he was served with convening orders that a Board of Suitability would sit to enquire into his suitability to remain as a member and retain his salary or seniority. The Board was scheduled to sit on 18 May 2016. The applicant sought an urgent interdict to stop the Board from convening, arguing that his constitutional rights to administrative justice would be violated and that the Commissioner General's power to discharge members had been removed by section 223(1)(a) of the Constitution, making sections 34(7) and 50 of the Police Act unconstitutional.

• Whether the applicant established a prima facie right for the grant of an interim interdict
• Whether section 50 of the Police Act, which empowers the Commissioner General to convene a Board of Suitability, is ultra vires the Constitution of Zimbabwe
• Whether section 223(1)(a) of the Constitution divests the Commissioner General of the power to discipline members of the Police Service
• Whether sections 34(7) and 50 of the Police Act are inconsistent with the Constitution and should be referred to the Constitutional Court
• Whether the applicant had an alternative satisfactory remedy

The application was dismissed without an order of costs.

Section 223(1)(a) of the Constitution of Zimbabwe divests the Commissioner General of Police only of the power to appoint members to the Police Service, which now vests in the Police Service Commission, but does not remove the Commissioner General's disciplinary powers over members. Section 221 of the Constitution expressly confirms that the Police Service is under the command of the Commissioner General, which includes disciplinary authority. Section 50 of the Police Act, which empowers the Commissioner General to convene a Board of Inquiry into a member's suitability to remain in the force, is not ultra vires the Constitution but is consistent with and confirmed by section 221. An applicant for an interim interdict must establish a prima facie right requiring protection; failure to do so results in dismissal of the application. Where an adequate alternative remedy exists that can provide the same protection, an interdict will not be granted.

The court, associating itself with remarks in Magwala Nkululeko v The Commissioner General of Police HC 11-16, observed that police officers appear increasingly unwilling to subject themselves to the disciplinary authority of their superiors sitting as a suitability board. The court emphasized that police officers must be reminded that they are like any other employee and are subject to disciplinary action by their superiors. The court will only step in where there has been a clear violation of a police officer's rights, and cannot be used as a shield against impending lawful disciplinary action. The court noted that the applicant had relevant previous convictions despite his assertions to the contrary in his papers. The court suggested that if the legislature had wanted to grant disciplinary powers to the Police Service Commission, it would have done so expressly in the Constitution as it did with appointment powers. The court observed that it would not be ideal or practical to make the Police Service Commission a court of first instance in disciplinary matters involving thousands of members.

This case is significant in Zimbabwean law for clarifying the constitutional division of powers between the Police Service Commission and the Commissioner General of Police following the adoption of the Constitution of Zimbabwe. It establishes that while the Constitution transferred appointment powers to the Police Service Commission, disciplinary authority remains with the Commissioner General as the operational commander. The judgment affirms that section 50 of the Police Act remains constitutional and that courts will not interfere with lawful disciplinary processes in the Police Service absent clear violations of rights. The case also reaffirms the requirements for interim interdicts and emphasizes that the existence of adequate alternative remedies will defeat an application for interdict. It serves as a reminder that police officers, like other employees, are subject to lawful disciplinary action by their superiors.