High Court reinstates dismissed police officer

The High Court has reinstated a police constable who was dismissed for allegedly releasing an impounded vehicle without following the required procedures, ruling that the disciplinary proceedings against him were legally flawed and procedurally unfair.

Constable Edson Chitembetembe successfully challenged the decision of a police trial court before the High Court, citing Chief Superintendent Ngirazi, who presided over the disciplinary hearing, the Commissioner-General of Police and the Police Service Commission as respondents.

Chitembetembe had been charged under Paragraph 35 of the Schedule to the Police Act, which deals with conduct considered unbecoming of a police officer or likely to bring the police service into disrepute.

The allegations stemmed from an incident on July 18, 2024, in which Chitembetembe was accused of unlawfully releasing an unregistered silver Toyota Sienta to its owner, Takudzwa Sakhala, and failing to ensure the vehicle was registered within the period required by law.

However, during the disciplinary hearing, the prosecution sought to amend the factual basis of the charge, informing the tribunal that the facts differed from those contained in the original charge sheet.

The defence objected, arguing that the original allegations centred on the vehicle being used to ferry passengers to and from Kadoma, while the amended case focused instead on the failure to register the vehicle within the prescribed period.

Evidence presented during the hearing further complicated the prosecution's case.

Inspector Moyo testified that it was the vehicle's driver—not Chitembetembe—who had been intercepted after municipal police found the vehicle parked at what they regarded as an undesignated loading point.

The driver was subsequently prosecuted for operating without an operator's licence and for parking at an undesignated loading point but was convicted only of the parking offence.

Seeking a review before the High Court, Chitembetembe argued that the disciplinary proceedings were tainted by gross irregularities because he had effectively been convicted on a shifting and legally uncertain case in which the essential elements of the alleged misconduct were never properly established.

In his judgment, Justice Joel Mambara agreed, finding that the prosecution itself appeared uncertain about the misconduct it sought to prove.

The judge noted that the police trial court had acknowledged that officers from the Zimbabwe Republic Police's Kadoma Traffic section had not investigated why the vehicle owner had failed to register the vehicle or charged him with breaching the relevant registration regulations.

"If the specific regulatory breach of late registration was not itself charged, and was not proved in any precise and legally anchored way, paragraph 35 could not lawfully be used as a catch-all substitute simply because the tribunal disapproved of the overall circumstances," Justice Mambara ruled.

He emphasised that while disciplinary tribunals have broad powers, those powers remain subject to the principles of legality and procedural fairness.

"A disciplinary jurisdiction is broad, but it is not at large. It remains constrained by legality and fairness. The applicant was not fairly and lawfully convicted on facts and elements that cohered," the judge said.

The ruling sets aside the disciplinary conviction and effectively reinstates Chitembetembe, underscoring the courts' insistence that internal disciplinary proceedings must comply with fundamental standards of fairness and legal certainty.