Terence Chirau v The Trial Officer (Superintendent Sibanda) and Others

The applicant was a sergeant in the Zimbabwe Republic Police who was dismissed from service on 16 November 2012 following a decision by the Board of Suitability which found him unsuitable for duty as a police officer. The applicant had been tried for the offence of 'leaving point of guard' though he disputed that the Board's decision was based on this fact. On 21 January 2013, the applicant filed an application seeking to have the proceedings leading to his conviction, sentence and subsequent discharge quashed. The applicant alleged various procedural irregularities including unfair trial procedures, inadequate notice, lack of legal representation, absence of records, and lack of reasons for dismissal. Critically, the applicant failed to attach the Board's record/report to his application papers, despite the respondent indicating that such records were available and could be made available on directive of the court. Between 21 January 2012 and 27 June 2014, the applicant did not seek a court order compelling discovery or production of the relevant documents.

• Whether a review application can proceed in the absence of the record of proceedings sought to be reviewed
• Whether the applicant was required to seek an order compelling discovery of the Board's record/report
• Whether the relief sought by the applicant was competent
• Whether the court could rely on the applicant's allegations without the supporting documentary evidence

The application was dismissed with costs.

A review application cannot succeed without the record of the proceedings sought to be reviewed being placed before the court. Review or appeal proceedings are generally based on papers, and in the absence of the relevant record, there is no basis upon which a court can conduct a review. A court cannot rely on an applicant's allegations alone without the supporting documentary evidence. Where documents are not voluntarily provided, an applicant must seek a court order compelling discovery or production of documents in accordance with the rules of court; failure to do so is fatal to the application.

The court noted that the respondent had also raised issues regarding joinder and that the relief sought was incompetent, but did not elaborate on these points as the application was dismissed on the primary ground of absence of the record. The court observed that it would not have been proper to issue a compelling order for production of documents without an application being made for such an order.

This case demonstrates the fundamental principle in Zimbabwean administrative law that review proceedings must be supported by the actual record of the proceedings sought to be reviewed. It reinforces procedural requirements for litigants seeking to challenge administrative decisions, particularly the necessity of placing all relevant documentary evidence before the court and utilizing available court procedures to compel discovery where necessary. The case serves as a cautionary example of the consequences of failing to comply with basic evidentiary requirements in review applications.