HIGH COURT OF SWAZILAND
MKHWANAZI 1st Respondent
HILLARY 2nd Respondent
GENERAL 3rd Respondent
GENERAL 4th Respondent
Case No. 467/2003
MAPHALALA – J
the Applicant MR. M. SIMELANE
the Respondents MISS S. MASEKO
Applicant has instituted proceedings by way of motion in the long
form before court for review of disciplinary proceedings which were
instituted by the Respondents against him, which proceedings resulted
in his dismissal from his employment as a police officer.
Applicant prays that the decision of the second Respondent dismissing
him from being a member of the Royal Swaziland Police Force be
reviewed, corrected, and set aside.
prayer 3 he seeks an order that the third Respondent be ordered to
pay the Applicant his arrear salary with effect from April, 2001 to
February 2003, further at prayer 4 that the 2nd Respondent be ordered
to reinstate him to his position as a member of the Royal Swaziland
Police Force; and furthermore, he seeks for costs of this
his founding affidavit he details the alleged irregularities
committed by the 2nd Respondent. The Respondents have filed their
opposing papers in this matter.
avers that the 1st Respondent in his capacity as Chairman of the
Board of Enquiry constituted to conduct a disciplinary enquiry
against him, being a Senior Superintendent in the Royal Swaziland
Police and stationed at the Lubombo Regional Police Headquarters.
or about 24thOctober 2001, he was served with documents which
documents purported to be a charge sheet in the face whereof he was
charged for an alleged contravention of item 15 of the schedule of
offences to the police regulations framed under Section 20 (1) as
read with Section 12 (2) of the Police Act. No. 29/1957.
avers that in spite of the charge having been laid against him on the
241 October 2001, no hearing ever took place until the 9th October
2002, which was about a year later after he had requested his lawyer
to communicate with one Inspector Motsa who he knew was supposed to
be the Prosecutor in the proceedings, to request an explanation as to
why he was being made to sit at home for such a long time without
paragraph 9 to 18 the Applicant's founding affidavit outlines the
sequence of events in this matter and for the sake of completeness, I
shall reproduce them hereunder in extenso, thus:
spite of the fact that I had presented myself to Inspector Timothy
Mamba on or about 12th October 2001, as one who had come back to work
after a long illness I could not perform my duties without a uniform
which apparently had been removed from my house at Matsapha Police
Station during my illness.
I reported back at my station on the said date I was not allowed to
resume my duties, but as the said Inspector Timothy Mamba stated
under oath during the hearing, he "handed" me over to Mr.
Magagula who the Superintendent in charge of the Operational Support
Services Unit at the time. During the said inquiry Mr. Mamba stated
he does not know what Superintendent Magagula did. I also know
nothing as to what he (the said Superintendent Magagula did).
fact at all material times as I worked as a Royal Guard under the
Operational Support Services Unit, the most Senior Officer who was in
charge of the Royal Guards Unit was one Matsamo Shongwe.
was not tried and or convicted at any stage by the said Matsamo
Shongwe in his capacity as the Senior Officer under whose command I
was, nor was I even tried or convicted at any stage by Superintendent
Magagula who is mentioned above.
am not aware of the circumstances which led to the appointment of
the1st Respondent's Board by the 2nd Respondent former Inspector
Timothy Mamba who gave his evidence before the Board after he had
retired from the Royal Swaziland Police was unable to say during the
hearing how the decision to constitute a Board was reached nor was he
able to say what the said Superintendent Magagula did after the
former handed (me) my case to the latter.
the commencement of the enquiry I raised through my representative
objections to the proceedings which included:
I had a suspicion, which suspicion I considered reasonable of a
likelihood of bias by the members of the Board in trying the matter,
because my uniform and all personal property had already been
removed from the house I occupied in absentia, the fact that I had
not received a salary even though I had not been interdicted, the
inordinate delay in fixing a date for my trial on this offence, all
of which indicated to me that such a total disregard for my rights
as a member of the office could be explicable by the fact that both
the Board, the Senior Officer under whose command I was based and
the 2nd Respondent had already prejudged the outcome of the inquiry.
appropriateness of the proceedings before a board having regard to
the factthat I had not been tried and convicted by a Senior Officer
as contemplated by the Police Act.
in the circumstances having regard to the reasonable suspicion of a
likelihood of bias ray proposal was that the alleged offence could
be tried more appropriately by a Magistrate.
the aforesaid objections were overruled I stated through my legal
representative that my rights to change the proceedings as being
irregular were reserved,
the enquiry there was evidence both from myself and from Inspector
Timothy Mamba who was called by the Prosecutor to the effect that my
health was at the beginning of 2001 not good and that I had
complained at various time of numbers and sometimes serious lack of
ability to function on my left hand, arm and the whole side, which
medically was described to me as a partial stroke. Inspector Mamba
also confirmed during the hearing that there were records in my
personal file which was under his custody and was administered by him
at my duty station at Police College, whichshowed that I had been
attended at varioustimes by various medical Practitioners who had
recommended on some occasions that I ought to be excused from work
for specified days of periods.
was also evidence at the hearing which was uncontradicted by any
evidence at the hearing that in April 2001 I had made arrangements
with my colleagues in accordance with accepted practice in my unit
for someone to stand in for me and take my place during shift for
three days, on which date I had arranged to go to Mozambique as a
result of my depreciating health I had to attend. In fact in so far
as what I have just stated my evidence was in line with the evidence
of the prosecutor's witnesses. There was further uncontradicted
evidence on oath by me that on the day I went to Mozambique I
suffered a more serious stroke and admitted in hospital whereupon I
could neither talk nor do anything for myself and this condition
lasted for over (4) months.
I recovered at the beginning of October 2001, I cam back home and
reported for work on the 12thOctober 2001, no evidence contradicted
this during the enquiry and further this aspect of my evidence was
even placed in issue during cross-examination by the prosecutor.
Accordingly, there was no evidence upon which the Board could
reasonably have come to the conclusion that any absence was without
excuse of justification. The Board's conclusion was so grossly
unreasonable at that it cannot be explained otherwise than that it
said to apply its mind to the issue namely; whether my absence was
justified or was excusable. The Board did not even have regard to the
fact that whether my absence had a legal excuse or justification was
prosecutor. I have not been paid as a member of Swaziland Police as
from April 2001 to date.
these paragraphs the following grounds for review emerge:
Board as constituted did not comply with Section 13 (1) of the
Police Act which required that the "Commissioner ...shall
appoint three Senior Officers to constitute such 3oard".
is nowhere in the answering affidavit where it is stated that the
Board was set up by the Commissioner;
was no compliance with Section 12 (2) which required that the
disciplinary enquiry be conducted by a Senior Officer nor was he
called as a witness by the Board, i.e. Matsamo Shongwe;
is nowhere it is stated that the Senior Officer was of the opinion
that the "offence would, by reason of its gravity or by reason
of its repetition or nay other reason, be more properly dealt with by
a court or a Board".
Commissioner does not have powers to dismiss an officer as such
powers lie with the Minister in terms of Section 22. However, in the
present case the Board went beyond Section 18 and recommended an
order that it did not have.The Commissioner can only consider a
sentence in terms of Section 20.
decision to dismiss the Applicant yet he had served in the police
force for 13 years and his professional record was not blemished
with any disciplinary record is harsh and induces a sense of shock.
must say though that during argument the first ground was abandoned
by Mr. Simelane for the Applicant in that the Minutes reflect that
there were 3 members.
opposition as gleaned from the answering affidavit of the Respondent
is three fold. Firstly, the Respondent avers that the explanation in
paragraph 11 of the answering affidavit is reasonable and
sufficiently explained the allegations of bias. The explanation is
that the police who were members of the Board were from outside the
Police College where Applicant was stationed. There is nothing to
show that any member of the Board was involved in the removal of
second leg of the opposition is that Applicant suffered no prejudice
because he was represented by an attorney.
it is contended for the Respondent that the Board took into account
all relevant considerations. The Applicant absented himself from duty
from the 18th April 2001, and came back on the 12 October 2001. No
report was made to his superiors of the cause of his absence. The
Applicant absented himself from work without permission nor without
approved leave. He said he had been sick but in the absence of a
medical report the truthfulness or otherwise of such an allegation
cannot be confirmed.
it is contended for the Respondent that the Applicant's salary was
stopped on the basis of the no work no pay rule of the common law. He
absented himself for about six months without permission and that his
uniform and his property were removed from bis house for safekeeping
since he was no longer staying in the house.
are a number of issues in this matter and I have divided them into
various heads; for ease of address. They are referred ad seriatum
thus: (1) whether the Board as constituted complied with Section 13
(1) of the Police Act; (2) whether Section 12 (2) of the Police Act
was complied with; (3) whether the Commissioner had the power to
dismiss an officer as he did in casu; (4) whether the Board acted
properly in terms of Section 18 in recommending an order that it did,
and (5) whether the Commissioner of Police exceeded his power
conferred by Section 20 in sentencing the Applicant.
shall proceed to address these questions sequentially thus;
the Board as constituted complied with Section 13 (1) of the Police
I have mentioned earlier on in the judgment Mr, Simelane for the
Applicant abandoned this ground for review conceding that the minutes
reflect that there were three members. Therefore, I will not address
this point any further.
Section 12 (2) of the Police Act was complied with.
12 reads in extenso as follows:
(1) Any offence against discipline on the part of a senior officer
shall be dealt with in accordance with the law relating to public
officers (Amended A.5/1987).
member of the Force below the rank of Inspector shall be liable to
trial and conviction for any offence against discipline by nay senior
officer under whose command such member is or any other senior
officer deputed thereto by the Commissioner: (Amended A.5/1987).
that where it appears to such senior officer that the offence would,
by reason of its gravity or by reason of its repetition or for any
other reason, be more properly dealt with by a court or a Board, he
shall defer bis verdict and report the facts to the Commissioner who
may either return the report for further enquiry or order the accused
to be tried before - (Amended A.5/1987).
senior officer, or
court. (Replaced A.5/1987).
any member while a member of the Force has committed an offence trial
under this section and thereafter ceases to be a member of the Force,
he shall, unless he has been so tried, be liable to be triad for such
offence by any court of competent jurisdiction; (Amended A.5/1987).
that, except in the case of mutiny or desertion, no prosecution shall
be commenced after the lapse of three months from the date when such
person ceased to be a member of the Force, (my emphasis).
argument advanced by the Applicant in this regard in that the proviso
to Sub-Section 2 as high-lighted above has not been complied with in
that nowhere is it stated that the Senior Officer was of the opinion
that the "offence would, by reason of its gravity or by reason
of its repetition or any other reason, be more properly dealt with by
a court or a Board".
Respondents contends in the answering affidavit of Norman Mkhwanazi
who is the Senior Superintendent, stationed at Siteki at the Lubombo
Regional Headquarters, that it is true that Applicant was not tried
by the officer under whose command he was in terms of Section 12 (2)
of the Police Act. He however advanced a reason for this that when he
was served with the charge sheet, the Applicant indicated that he
be represented during the trial. That in terms of Section 17 of
theaforesaid Act an officer is entitled to representation by a legal
practitioner at trial before a Board or a Magistrate's Court not
before a Senior Officer.
on this point, it is contended that during the course of the
proceedings, the Applicant never at any point through his attorney
raise any objection to the jurisdiction of the Board.
would appear to me that the reason advanced above by the Respondent
suffices for purposes of Section 12 (2) on two grounds. Firstly,
there is no evidence either way that any other Senior Officer was not
detailed thereto by the Commissioner; and secondly, the proviso to
the Section provides that a court or Board may hear the matter "by
reason of its gravity, or by reason of its repetition or any other
reason..." (my emphasis). In my opinion the "any other
reason" may well have been the fact that the Appellant desired
to be legally represented and for this reason the officer opted to
proceed by way of Section 17 of the Act. The said Section provides as
all trials under this Act before a Board of officers or a
Magistrate's Court the person accused shall be entitled to be
represented by a legal practitioner admitted to practice in Swaziland
or, except in the case of an appeal heard as provided in Section 21
(4) by a Senior or subordinate officer approved for the purpose by
is also to be noted that in terms of the Interpretation section of
the Act in Section 2 the word "Senior Officer" is defined
to mean, the Commissioner, Deputy Commissioner, Assistant
Commissioner, Senior Superintendent, Superintendent and Assistant
Superintendent of the force. Therefore the deponent to the answering
affidavit Senior Superintendent Norman Mkhwanazi is a "Senior
Officer" for purposes of the Section.
record of disciplinary proceeding on the 19th September 2002, at 0930
records, inter alia as follows;
President introduced all the members and produced the convening order
from Commissioner of Police and that they were detailed according to
Section 12 (23 of the Polka Act 29 of 2957..."
appears from excerpt reproduced immediately above that Section 12 (2)
was complied with in so far as the appointment of the senior officer
by the Commissioner as required by the said Section.
my mind, in casu there was no failure of justice occasioned by the
Board as constituted in terms of Section 17 of the Act. In the case
of Davies vs Chairman, Committee of the J.S.E. 1991 (4) S.A. 43 the
following was laid down: and I quote:
law the court will not interfere merely because that the decision was
one which it would not have arrived at ... in review proceedings a
court is concerned with irregularities which result in a "failure
of justice", the mere possibility of prejudice is insufficient".
the Applicant has not shown that the Board had failed to act
judicially. The Applicant has not shown the existence of real
likelihood of bias (see de Smith, Constitutional Law and
Administrative Law page 583 - 6).
on the basis of the above-mentioned reasons the Applicant cannot
succeed under this ground for review.
the sentence meted out was in accordance with the Act.
I have stated above this aspect of the matter covers three other
issues touching on sentence viz, whether the Commissioner had the
power to dismiss an officer as he did in casu; whether the Board
acted properly in terms of Section 18 in recommending the order that
it did; and whether the Commissioner of Police exceeded his powers
conferred by Section 20 in sentencing the Applicant. It appears to me
that the first and last questions relate to the same thing, they both
question the power of the Commissioner of Police. I shall proceed to
address these questions as one, for convenience.
to the Applicant at paragraph (e) of his Heads of Argument in the
present case the Board went beyond Section 18 when it recommended an
order it had no authority to make. At page 16 of the record of the
disciplinary hearing the following appears:
accused is found guilty as charged and fined (E200-00) two hundred
recommendation for dismissal from the police service to Commissioner
18 provides as follows:
member of the force, other than a Senior Officer to whom Section 12
(1) applies, who
guilty of an offence against discipline shall be liable to any one or
more of the following
Where a disciplinary proceedings are conducted by a Senior fficer –
a subordinate officer, such subordinate officer
be liable to admonition; reprimand, severe reprimand, or a fine not
exceeding one hundred emalangeni.
ommissioned officer shall be liable to admonition, reprimand or
sever reprimand or a fine not exceeding fifty emalangeni; and
a member belonging to other ranks, such member shall be liable to
admonition, reprimand or severe reprimand, a fine not exceeding
thirty emalangeni, confinement to police lines for a period not
exceeding fourteen days with or without punishment drill, extra
guards, fatigues or other duty in addition to normal duty or to extra
guards, fatigues or other duties,
Where disciplinary proceedings are conducted by a Board, the member
shall be liable to admonition, reprimand, severe reprimand or a fine
not exceeding two hundred emalangeni".
Applicant on the above-cited Section contends that the matter should
have been dealt with in terms of Section 18 (b) and he should have
been liable to admonition, reprimand, severe reprimand or a fine not
exceeding two hundred Emalangeni. Tied to this contention is the
argument that when the Commissioner sentenced the Applicant he did so
outside the ambit of Section 20 of the Act.
20 provides as follows:
of sentence by Commissioner.
senior officer who sentences any member of the force under this Act
or any regulations made thereunder, except when such sentence is one
of adnotion or of extra guards, fatigues or other duties, shall
forthwith transmit the record of proceedings to the Commissioner who
may alter, reverse or confirm the conviction, or increase, reduce,
vary or confirm the sentence.
Commissioner may, in addition to any sentence imposed, order the
reduction of a member below the rank of inspector but above the rank
of Constable to a lower or lowest rank,
sentence shall be carried out until the decision of the Commissioner
under Sub-section (1) is made known.
appears to me that in casu, more particularly as regards the question
of sentence that the Applicant's real grievance is against the result
rather than the method of the proceedings by the Respondents.
to Herbstein et A1 The Civil Practice of the Supreme Court of South
Africa, 4th ed at page 932 the reason for bringing proceedings under
review or appeal is usually the same, so to have the judgment set
aside. Where the reason for wanting this is that the court came to a
wrong conclusion on the facts or the law, the appropriate procedure
is by way of appeal. The learned authors continue to say;
however, the real grievance is against the method of the trial, it is
proper to bring the case on review. The first distinction depends,
therefore, on whether it is the result only or rather the method of
trial which is to be attacked. Naturally, the method of trial will be
attacked on review only when the result of the trial is regarded as
unsatisfactory as well. The
of a judgment not justified by the evidence would be a matter of
appeal and not review, upon this test. The essential question in
review proceedings is not the correctness of the decision under
review but its validity".
my considered view, in the present case the Applicant has not
discharged his onus which rests on him to satisfy the court that good
grounds exist to review the conduct complained of.
is further trite law that where a tribunal directs its mind to legal
issues that it is entitled and bound to decide, for example the
interpretation of regulations or other rules, a wrong decision in law
cannot be said to prevent it from fulfilling its statutory functions
or duties, and the court will not interfere with the decision on
review unless it was one which no reasonable person could have come,
(see Johannesburg City Council vs Chesterfield House (Pty) Ltd 1952
(3) S.A. 809 (A) at 825)
my opinion, the Applicant in casu has not exhausted local remedies as
required by the law. The Applicant ought to have invoked Section 30
of the Act. The Act provides as follows:
against retirement and dismissal.
Any member of the Force retired or dismissed under Section 29 (b),
(c), (d), e) or (f) may within seven days after notification to him
of the Commissioner's decision, lodge notice of appeal, giving
reasons in support of such appeal, with the member of the Force for
the time being in command of the district in which he served
immediately before his retirement or dismissal.
notice shall be forwarded to the Commissioner who shall transmit
such notice and the record of proceedings to the Minister who may
reverse or confirm such retirement or dismissal or subject such
member to some lesser penalty not inconsistent with this Act.
the Minister reverses a retirement or dismissal or imposes some
lesser penalty, he shall make an order for the payment to such
member of the whole, or such portion as the Minister deems fit, of
the emoluments which such member would have received if he had not
been retired or dismissed. (Amended P. 35/1960)."
the above I wish to cite a judgment by Masuku J in the case of
Jabulani B. Simelane vs The Commissioner of Police - Civil Case No.
755/2000 where the earned Judge was dealing with a matter similar to
the present case, as follows:
to exhaust local remedies
to Baxter (op cit) at page 720, the right to seek judicial review
might be deferred until the complainant has exhausted domestic
remedies created in the relevant legislation. In casu, this is done
under Section 30 (1). I: is common cause that the Applicant never
availed himself of those. The learned author proceeds to state that
in considering this issue, there are two paramount considerations.
the domestic remedies are capable of proving effective redress in
respect of the complaint.
the alleged unlawfulness has undermined the domestic remedies
answering the above, I am of the view that (a) must be answered in
the affirmative because if the matter is placed in terms of the
appeal procedures, [he legality of the Commissioner's decision could
be reviewed by the Prime Minister.
respect of (b) above, there is no suggestion that the proceedings
before the Board were in anyway tainted with illegality. On the
contrary, the Applicant was represented and his case was fully and
fairly heard. There is therefore no basis upon which it can be
honestly stated that the unlawfulness complained of has in any was
undermined the domestic remedies themselves.
Applicant is clearly aware that he did not follow the domestic
remedies available and as stipulated in the Act and has not applied
for condonation for his failure. A party who is in default as is the
Applicant should file an application clearly setting out cogent
reasons behind his delay and also disclose the grounds upon which the
court is urged to exercise its discretion in his favour. In casu, it
is proper that the Applicant exhausts the local remedies before
approaching this court. There is no proper basis in my view upon
which this court can entertain the application in the face of
Applicant's failure to avail himself of the domestic remedies".
am in respectful agreement with the views expressed by the learned
Judge and further state that the dicta propounded therein applies on
the facts of the present case.
In the result, the application is dismissed with costs.