Magagula v The Commissioner of Police and Another (345 of 2005) [2006] SZHC 120 (4 August 2006)

[1] In terms of two Letters or Memoranda one dated the 25¹ day of May 2005 and the other on the 27^th June, 2005 the applicant was informed of his dismissal from the Royal Swaziland Police by the 1^st respondent. At the time of his dismissal the applicant was ranked as a constable and his police force number was 3393. I shall return to the letter of dismissal of the applicant presently herein.

[2] The applicant was dismissed from the police force following his conviction by a Board of 3 Senior officers appointed by the 1^st respondent to hear certain serious internal disciplinary charges against the applicant. This Board was appointed in terms of section 13 (1) of the Police and Public Order Act 29 of 1957 (as amended) (hereinafter referred to as the Act.) The applicant was sentenced by the Board to a fine of E200-00 and a recommendation was made to the 1^st respondent that he be sacked from the police force. The trial of the applicant was conducted in terms of section 12 (2) which lays down that;

"Any member of the Force below the rank of Inspector shall be liable to trial and conviction for any offence against discipline by a Senior officer under whose command such member is or any other Senior officer designated thereto by the Commissioner; ...

Provided 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 his 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 ... (b) a Board; ..."

[3] In terms of section 18 (b) of the Act the only sentence that may be imposed by a Board on a conviction under the above circumstances is one or more of the following punishments, namely: "admonition, reprimand, severe reprimand or a fine not exceeding Two Hundred Emalangeni." I pause here to observe that the fine of E200-00 imposed by the Board on the applicant was within the competence of the Board and the applicant as I understand it, is not challenging that. He is, however, challenging his conviction and was with leave of this court, granted on the 24 February 2006 permitted or allowed to file his notice and grounds of appeal out of time which he claims he did on the 28^th day of February, 2006.

[4] This appeal, he says, is pending and the respondents aver that no such notice of appeal was filed with the Board as required by Section 21 (3) of the Act which provides in peremptory terms that the notice of appeal and "grounds thereof shall be lodged within seven days after the conviction with the ...Board who tried the case and it shall be the duty of the ...Board ...forthwith to transmit the record of the proceedings to the Minister," to whom the appeal lies. In this case the relevant Minister is the Prime Minister. The applicant alleges that he served and filed or lodged his notice of appeal and the grounds thereof directly with the Prime Minister. He argues further that there is no prejudice suffered or to be suffered by the respondents by him not lodging his appeal with the Board that tried him but serving it directly on the Prime Minister.

[5] It is not necessary for me in this judgement to express any view on whether the applicant's notice of appeal is valid or not. I observe though that a notice of appeal is, in the main, an act or step in the court or tribunal whose judgement is appealed against and has to be filed with that court or tribunal.

[6] The applicant has applied to this court for an order that pending his appeal he be paid his salary with effect from the month of May 2005 and that the sentence imposed upon him by 1^st Respondent be stayed. In support of his application he has relied on the provisions of section 21 (2) which states that;

"(2) If an appeal has been lodged under Sub-section (1), no sentence shall be carried out until the decision of the Minister is made known."

[7] Applicant argues that "having filed an appeal ...the decision of the 1^st respondent dismissing me from the Police force has to be suspended in terms of the Police Act pending the outcome of my appeal...[and] the implementation of the 1^st respondent's decision deprives me of my means of livelihood, as I have no source of income."

[8] Implicit in the aforegoing allegation is that since his dismissal from the police force, the applicant has not been paid his wages. It would seem to me prima facie at least that if a notice of appeal and the grounds thereof has been properly or validly filed by the applicant, the execution and or carrying out of the sentence imposed by the 1^st respondent on the applicant has to wait until the outcome of that appeal. There is, however, neither rhyme nor reason why such a stay should be with effect from the date on which the applicant was dismissed. Whilst a notice of appeal may be looming or in prospect, the appeal itself does not become pending until and unless such notice is filed. In casu applicant alleges that he filed his notice of appeal on the 28^th February, 2006, following an order of this court.

[9] I now return to the two letters of dismissal of the applicant by the 1^st respondent.

[10] In the 1^st memorandum or letter which is dated the 27^th day of June, 2005 the 1^st respondent states that the applicant's dismissal is with effect from the 30^th day of June, 2005 whilst in the other memorandum or letter dated 25^th day of May 2005 the dismissal is said to be with effect from 23^rd May 2005. In his opposing affidavit the first respondent has not sought to clarify this apparent inconsistencies or contradictions and has instead muddied the already murky waters by saying "that the exact date on which applicant was dismissed is the 24^th March 2005" (per paragraph 4) This assertion is again regrettably not motivated or explained further.

[11] It is the duty of Counsel to guide and assist clients in the preparation and drafting of court documents. Where Counsel is involved in the preparation and presentation of court documents only material that is relevant in the sense that it explains or advances the case in one way or the other should be submitted to court. During preparation of documents, litigants should not be permitted by Counsel to, as it were, throw everything including the kitchen sink to the court or their opponents.

[12] As stated above, it is common cause, that the Board recommended to the 1^st respondent that the applicant be dismissed from the police force and this recommendation was adopted by the 1^st respondent. In both letters, the 1^st respondent stated that "Following the Board's recommendation, and in the exercise of my powers in terms of section 29 (e) of the Police Act 29/1957, I hereby inform you that you are dismissed from the police service..."

[13] Section 29 provides that;

"Subject to section 10 of the Civil Service Order No. 16 of 1973 the Commissioner may, in the case of any member of the force of or below the rank of inspector, at any time -

(a) Terminate the appointment of such a member on probation, if the Commissioner considers that he is unlikely to become an efficient member of the force;

(b)Retire such member on reduction of establishment;

(c) Retire such member if a Board of Government medical officers appointed by the Director of Medical Services finds that he is mentally or physically unfit for service and that such unfitness is likely to be permanent; …

(d)Dismiss such member if he is recommended for dismissal from the force under section 22; (e)Dismiss such member on conviction of an offence other than an offence under this Act or regulations made thereunder; (fjRetire in the public interest any such member who displays an habitual inattention to orders or general competence or fails to obey orders or fails to cooperate with other members of the force or manifests a quarrelsome disposition or want of courage, ability or zeal, although he may not be guilty of a specific offence ..."