Sergeant Mloyie v The Trial Officer (Superintendent Makunike) and The Commissioner General of Police

The applicant, a member of the Zimbabwe Republic Police, was charged with contravening paragraph 35 of the Schedule to the Police Act [Chapter 11:10] for allegedly insulting the President of Zimbabwe on or about 5 March 2016 at ZRP Cranborne Barracks, Harare. The charge alleged he acted in an unbecoming manner prejudicial to discipline by making derogatory statements about President Mugabe. The applicant was to be tried before a court of an officer (the first respondent, Superintendent Makunike) in terms of section 29A read with section 34 of the Police Act. The applicant had already been charged in the ordinary criminal courts on the same set of facts. During the disciplinary trial, the applicant unsuccessfully excepted to jurisdiction and applied for the matter to be referred to the Constitutional Court. The applicant also alleged bias by the first respondent and threats made during trial. The applicant filed two review applications and brought this urgent application seeking a stay of the disciplinary trial proceedings pending determination of the reviews.

• Whether the matter constituted an urgent application deserving to jump the queue
• Whether irreparable harm would be suffered by the applicant if the trial was not stayed
• Whether the availability of an appeal remedy under section 34(7) of the Police Act negated urgency
• Whether the first respondent had jurisdiction to try the applicant given concurrent criminal proceedings (not decided on merits)

The matter was declared not urgent and removed from the roll of urgent matters. The applicant was ordered to pay the respondents' costs.

Where a police member charged with disciplinary offences under the Police Act seeks an urgent interdict to stay trial proceedings, urgency is not established merely because the member alleges jurisdictional defects or potential imprisonment, where section 34(7) of the Police Act provides for an automatic suspension of any sentence upon noting an appeal to the Commissioner General. The availability of this adequate statutory remedy negates any claim of irreparable harm necessary to establish urgency under the principles set out in Kuvarega v Registrar General.

The court specifically noted the provisions of sections 29A, 30(5) and 34 of the Police Act regarding the limits on penalties that can be imposed by a court of an officer, and the principle that convictions by boards of officers or courts of officers are not to be regarded as previous convictions for purposes of any other law. While explaining the statutory framework governing police disciplinary proceedings, the court expressly stated: "I express no view on the merits of the review applications save to say that even if the applicant were successful the potential success does not make the matter so urgent as to deserve the case jumping the queue." The court also noted that parties had addressed arguments on the jurisdictional issue of whether the first respondent could try the applicant given concurrent criminal proceedings, but declined to consider these merits given the view reached on urgency.

This case reinforces the strict application of the test for urgency established in Kuvarega v Registrar General in the context of police disciplinary proceedings. It clarifies that the availability of statutory remedies, particularly automatic suspension of sentence upon appeal under section 34(7) of the Police Act, negates claims of irreparable harm and urgency. The case demonstrates judicial restraint in refusing to address substantive issues (such as jurisdictional challenges) when a matter fails at the threshold stage of establishing urgency. It serves as authority that police members facing disciplinary proceedings who have statutory appeal rights cannot ordinarily claim urgency to stay those proceedings pending review applications.