Mutsago v Police Service Commission Chairman & Anor (HC 4192 of 2014) [2015] ZWHHC 764 (30 September 2015)

1 HH 764-15 HC 4192/14 WILLARD MUTSAGO versus CHAIRMAN OF THE POLICE SERVICE COMMISSION and COMMISSIONER GENERAL OF POLICE HIGH COURT OF ZIMBABWE BHUNU J HARARE, 10 March and 30 September 2015 Opposed matter T. Maanda, for the applicant P. Kapasura, for the respondent BHUNU J: This is an application for condonation of late noting of review. The applicant was employed in the police force as an assistant inspector. He was discharged from the police force on 21 November 20 11 on allegations of engaging in conduct likely to bring discredit to the police force. He is alleged to have been found in possession of a memory stick containing pictures of purported police instructors beating up police recruits. Aggrieved by his dismissal from the police force he appealed to the first respondent for redress on 25 November 2011. Following his appeal he was reinstated to his job pending appeal. He however later had a change of heart and on 31 January 2012 he freely and voluntarily wrote a letter addressed to the Police Service Commission withdrawing his appeal. The letter reads. “Sir; RE: WITHDRAWAL OF APPEAL AGAINST DISCHARGE: - NUMBER 059361 X ASSISTANT INSPECTOR MUTSAGO W. 1. I was discharged from the police force on the 21st of November 2011 (copy of discharge signal attached) after being sentenced for a politically aligned charge and allegations but due to love of my job I appealed to the Police Service Commission against discharge and was reinstated into the force on 07/12/11 pending appeal. 2. Since then I no longer feel comfortable at work and it is very difficult for me to adopt my old devoted style of work. I found that I can no longer serve and submitted my application for discharge form (Form 71) which was returned ‘Not Approved’ HH 764-15 HC 4192/14 3. The instruction of waiting for the outcome of appeal stands but the environment is no longer conducive for me. My frustrated mind is not at work because of future plans, stress and family pressure. 4. I am now applying for the withdrawal of my appeal against discharge and be discharged for the reason mentioned in Compol HR Radio Dis 1216/11 dated 22/11/11 (copy attached) It is my wish that the Organisation release me as a matter of urgency for I am now a useless object in the force. 5. I am doing this to maintain my good behaviour and clear record of service which used to prevail before the above mentioned charge. ……Signed…………………………………….. 059361 X MUTSAGO W. [Assistant Inspector]” From the above letter it is plain that following his reinstatement to his job pending the determination of his appeal the applicant freely and voluntarily tendered his resignation from the police force. He voluntarily withdrew his appeal and specifically asked that his contract of employment be terminated on the original grounds of dismissal. Two years down the line he again had a change of heart and sought to challenge his dismissal from the police force prompting him to file this application for condonation of late noting of review. For the application to succeed he has to proffer a reasonable explanation for the inordinate delay of 3 years and convince me that he has reasonable prospects of success on review. The applicant having voluntarily withdrawn his appeal and accepted dismissal he can hardly be heard to complain that he was unlawfully dismissed from the police force. The adage volenti non fit injuria is apt for no harm is done when one consents to it. The applicant was conscious of this well-known common law position of almost universal application hence his lying dormant for 2 long years. The case of Bishop Jakazi & Others v Anglican Church of the Province of Central Africa & Others SC 101 is instructive. The applicant is not a common man. He is a former senior police officer. In that capacity he must have known and therefore did know that there are time limits within which one must prosecute his case. His excuse that as a layman he was still figuring out how to tackle his case has no merit and is frivolous and spurious. For the foregoing reasons the application cannot succeed. It is accordingly ordered that the application be and is hereby dismissed with costs. HH 764-15 HC 4192/14 Maunga & Maanda, applicant’s legal practitioners The Attorney General’s Office, respondents’ Legal Practitioners