A POLICE officer based in Bulawayo, who was dismissed for allegedly failing to arrest a motorist involved in a hit-and-run accident, but instead arrested the mechanic who was repairing the vehicle, has filed an application for review of the internal police proceedings that led to his dismissal, including a ruling which dismissed his appeal.
BY SILAS NKALA
A constable Zibako A, who was stationed at Bulawayo Central Traffic, filed an application for review at the Bulawayo High Court last Thursday citing the trial officer, a Superintendent Chabata and Commissioner-General of Police Godwin Matanga as first and second respondents, respectively.
“The first respondent [Chabata] has no jurisdiction to try applicant in terms of the Police Act for the same facts and allegations he has been acquitted of in terms of the ordinary law by another competent court. The conduct of the first respondent is in violation of the applicant’s right to a fair trial in terms of section 70 (m) of the Constitution as read with section 86 (3) of the Constitution and the entire proceedings should, therefore, be set aside,” Zibako submitted.
“The trial proceedings being presided over by first respondent against applicant are pregnant with gross procedural irregularities in that the first respondent dismally failed to give cogent reasons for his decision to dismiss the application made by applicant.”
He then submitted that the proceedings by the respondent against him should be set aside.
In his founding affidavit, Zibako submitted that on April 2018 he was charged and acquitted by a magistrate’s court for contravening Section 174 of the Criminal Law, Codification and Reform Act, Chapter 9:23.
“Few days after my acquittal, I was arraigned before the first respondent for contravening paragraph 34 of the schedule to the Police Act, which allegations arose from the same facts and circumstances I was acquitted for in terms of the ordinary law. I made an application that the first respondent lacked jurisdiction as I was already tried and acquitted for those facts and allegations by a magistrate’s court, which application was dismissed,” he submitted.
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“As the record of proceedings shows I managed to establish that the first respondent had no jurisdiction to try me in terms of the Police Act. I am advised that trials conducted in terms of Section 30 and 34 of the Police Act are criminal trials. It is clear from the reading of section 29 of the Police Act that any contravening of the schedule to the Police Act is an offence and (the) upper limit for the sentence is level 10 or imprisonment to five years or both.”
He said he was convinced that he was likely to be convicted as the first respondent was determined to convict him even where he has no jurisdiction.
“My right to fair trial is seriously compromised in casu and it is ideal that this court intervene at this stage to protect the law and the integrity of the due process of law and to enforce its acceptability and applicability.
Zibako’s charges stem from allegations that on December 23 last year he failed to perform his duty after he was given a docket of a hit-and-run accident to investigate. He allegedly failed to meet the deadline to arrest the suspect and instead arrested Enwell Ndudzo a mechanic who was repairing the vehicle. He then impounded the vehicle with intent to allegedly extort money from him. He towed the car to Drill Hall traffic section and did not inform his bosses about it.
Chabata and Matanga are yet to respond to the application.
