AN ex-police inspector, who sued the President, Home Affairs minister and commissioner-general seeking a review after having been dismissed from the force for being absent without official leave for 21 days, had his case dismissed at the High Court recently.
Clarkson Muza approached the court seeking reinstatement without loss of salary and benefits.
High Court judge Justice Jacob Manzunzu ruled that a party can either seek a declaratur or review as one cannot institute proceedings for both at the same time.
“The applicant asks for an order for the discharge granted against him in 2017 to be declared void and of no effect. The applicant also wants to be reinstated to the police service without loss of salary and benefits. This is clearly not a declaratory order,” he ruled.
“The preliminary point raised by the commissioner-general is that the relief sought is incompetent in that it is a review disguised as a declaratur. The preliminary point has merit and the matter must, therefore, be struck off the roll.”
Muza was attested into the police service as a constable on September 14, 1992 and rose through the ranks and was promoted to inspector on April 11, 2013.
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At the time of his discharge, he was stationed at ZRP Nyamapanda after being transferred on July 21, 2016, from ZRP Western Commonage through recommendations from the Officer Commanding Bulawayo Province.
On August 2, 2016, he went to his new station but failed to resume duty on three consecutive days before he was given two weeks off on medical grounds.
On August 16, 2016, Muza was advised to resume work performing light duties for a month, but did not report for duty until August 26, while his whereabouts were unknown.
After the expiry of 21 days, a board of inquiry (desertion) was convened by the commissioner-general in terms of the Police Act as read with the Police (Trials and Boards Inquiry) Regulations, to look into the circumstances surrounding his absence from duty.
The board recommended that Muza be declared a deserter and discharged as unfit for police duties in terms of section 49(b) of the Police Act.
The commissioner-general also recommended Muza’s discharge and the President implored Muza’s discharge from the force.
Muza was discharged on February 8, 2017.
He, however, said he was arraigned before a trial officer to answer to the charge of contravening paragraph 6(1) of the schedule to the Police Act [Chapter 11:10] as read with sections 29 and 34 of the Act.
He pleaded not guilty to the charge, arguing that the matter was not concluded following the retirement of the trial officer.
He was also charged at the magistrates’ court with an offence of contravening paragraph 6(1) of the schedule to the Police Act for deserting the police service and was acquitted.
Muza argued that the order was extant and the only impediment to his return to duty was the decision by the board of inquiry, hence the application for reinstatement with full benefits.
He further argued that, in terms of section 14 of the Police Act, an officer may be dismissed by the President on the advice of the Home Affairs minister in consultation with the Commissioner-General of Police.
The President dismissed Muza based on the recommendation of a board of inquiry, which found that he had deserted, but he argued that the trial court did not establish that he had in fact deserted the police service.
He further argued that in a letter dated August 22, 2022, the chief staff officer (human resources) advised him that he would not be reinstated unless he was cleared or absolved of any wrongdoing by the board of inquiry.
However, the commissioner-general raised a preliminary point arguing that Muza’s application was for review, which was disguised as an application for a declaratur.
He argued that the application should be dismissed for want of compliance with Rule 62(4) of the High Court Rules, 2021.
The commissioner-general submitted that the President’s determination was lawful and Muza was dismissed because the board of inquiry found that he had absented himself from duty without official leave for more than 21 days.