Immanuel v Minister of Home Affairs and Others (PA 315 of 2005) [2006] NAHC 30 (28 August 2006);
“REPORTABLE”
CASE
NO.: (P) A 315/2005
SUMMARY
SUSANA DIMBULUKWENI IMMANUEL
versus THE MINISTER
OF HOME AFFAIRS & 2 OTHERS
DAMASEB, JP
28/08/2006
POLICE ACT 19 OF 1990:
APPLICATION FOR REVIEW IN TERMS OF RULE 53
S8(1) enquiry whether member of the
Police Force fit to retain rank. Review application to set aside
proceedings which resulted in discharge of member convicted of
schedule 1 offence to Police Act.
Held: - Such
proceedings competent in terms of s8(1).
Review
grounds must be supported by evidence under oath. Not enough to
simply state review grounds in heads of argument.
Purpose
of judicial review stated: applicant for review bears onus to prove
conduct complained of is reviewable.
Application
for review lacking in merit and dismissed with costs.
“REPORTABLE”
(CASE NO.: (P) A 315/2005
IN THE HIGH COURT OF NAMIBIA
In the matter between:
SUSANA
DIMBULUKWENI IMMANUEL APPLICANT
and
THE
MINISTER OF HOME AFFAIRS 1ST RESPONDENT
THE
INSPECTOR-GENERAL OF POLICE 2ND RESPONDENT
THE
CHAIRPERSON OF THE BOARD OF ENQUIRY 3RD RESPONDENT
CORAM: DAMASEB, JP
Heard on: 28.02.2006
Delivered on: 28.08.2006
JUDGMENT
[1]
DAMASEB, JP: This is a review application in which the
following relief is sought:
“1. Reviewing
and correcting or setting aside the decision taken by the first and
second respondents during or about 25 June 2004 to discharge the
applicant from the Namibian Police.
2. Reviewing
and correcting or setting aside the decision taken by the third
respondent in June 2004 recommending the discharge of the applicant
from the Namibian Police.
Declaring
the aforesaid decision unconstitutional, and/or null and void.
Directing
that the respondents pay the costs of this application.”
[2] The
applicant was employed as a constable by the Namibian Police Force
(‘the Force’). Whilst in that employ she was found guilty of
theft on 15th October 2003 in the Magistrate’s court and
sentenced to a fine of N$ 2, 500.00, or to imprisonment for 2 years
in default of payment. That conviction and sentence were never
appealed against. Following conviction and sentence, the applicant
was brought before a board of inquiry (the board) in terms of the
Police Act No. 19 of 1990 (the Act). The amended, s8 (1)1
reads as follows:
(1) A
member may be discharged from the Force or reduced in rank by the
Inspector General, if after enquiry by a board of enquiry in the
prescribed manner as to his or her fitness to remain in the force or
to retain his or her rank, the Inspector General is of the opinion
that he or she is incapable of performing his or her duties
efficiently: Provided that if a member is still serving his or her
probation period in terms of section 4 such a prior enquiry shall not
be required , but such member shall be afforded an opportunity to be
heard prior to any discharge.
(2)
A member who has been discharged from the Force or reduced in rank
by the Inspector- General in terms of subsection (1), may in the
prescribed manner appeal to the Minister against the decision of the
Inspector- General, and the Minister may set aside or confirm such
decision.
The proviso to subsection (1)
makes it clear that the only circumstance in which the Inspector –
General (IG) is relieved from the obligation to hold an enquiry is if
the member is on probation. But the audi principle must still
be observed, and he is not under an obligation to discharge. Prior to
the 1993 amendment, s8(2) provided as follows:
“Notwithstanding
the provisions of subsection (1), the Inspector-General may discharge
any such non-officer from the Force in the absence of any such
enquiry if the non-officer has been sentenced to imprisonment without
the option of a fine.”
[3] The 1993 amendment produced
the result that even if a member has been sentenced to imprisonment
without the option of a fine, an enquiry must still be held if the
discharge of a member is contemplated.
[4] The board conducted an
enquiry and recommended to the IG that the applicant be discharged
from the Force on account of the conviction and sentence in the
Magistrate’s court. The I.G. then, acting on that recommendation,
discharged the applicant from the Force. She then appealed against
the decision of the I.G. to the Minister of Home Affairs (first
respondent) as she was entitled to under the Act. Based on a report
placed before him by the I.G., the Minister refused the appeal and
approved the applicant’s discharge from the Force.
[5] The applicant relies on
the following review grounds:
“1. I
was not properly informed of the status of enquiry, in particular
that I am illiterate;
I
was not informed of any rights to a legal representative before or
at the time of enquiry;
I
was not informed of the finding of the Chairperson of the purported
enquiry;
I
was not asked to make presentations for mitigation or place material
before the enquiry before I was discharged, nor was I given an
opportunity to controvert any allegation against me. Nor was I at
any stage informed that I was at risk of being discharged or other
action would be taken against me;
I
was not served with any charges and no evidence was led that I am
incapable of performing my duties efficiently, nor was I asked to
address this issue in any sense;
There
was thus no inquiry as contemplated by the legislation in any proper
sense;
The
Second Respondent made a decision without any proper record as to
why is should be discharged from the Namibian Police;
I
reasonably apprehend that the Chairperson of the inquiry was biased
against me in reaching his conclusion or finding in these
circumstances, alternatively took into account irrelevant matter or
failed to apply his mind to the enquiry;
I
was not given any opportunity to cross-examine any witnesses and in
fact there were no witnesses;
The
Minister failed to consider and decide my appeal and instead
abdicated his responsibility to the Second Respondent who
accordingly acted ultra vires his powers; the wrong
decision-maker purported to make the decision;
I
was not accorded the right to be heard on appeal.
The
decision maker misconstrued the nature of his powers and/or the
discretion vested in him.
The
Second Respondent used unsupported allegation that I stole the
government property although there was no evidence to such effect.
The
decision making by the different respondents against me was unfair
and unreasonable and in conflict with Article 18 of the
Constitution.
[6] This review application
faults the decisions of all three instances which dealt with the
applicant’s case in terms of the Act. The applicant attacks the
decisions on a very broad front. In respect of the board the nub of
the attack is that there was no enquiry as envisaged under the Act in
that she was not informed of the status and outcome of the enquiry;
there were no witnesses called and she was not able to cross examine
any witness; she was not afforded the opportunity to controvert any
allegations against her; she was not explained or afforded the right
to legal representation; no charges were served on her and no
evidence was led to the effect that she is unfit to remain in the
Force; she was not afforded to deal with her unfitness; she was not
allowed to lead evidence or make submissions in mitigation; and she
was not informed she faced the risk of discharge. She faults the
second respondent for taking a decision ‘without any record’
as to why she should be discharged, and the third respondent for
acting on the recommendation of the second respondent and not
applying his mind independently. She says, in essence, that the
second respondent decided the appeal for the third respondent. She
adds, for good measure, that the allegation that she stole was not
supported by any evidence.
The applicant’s evidence
[7] In her founding affidavit,
the applicant deposes that she was served with a convening order on
3rd June 2004 and told to be in Eenhana on 11th
June 2004 because of her criminal conviction of 15th
October 2003. The convening order informed her that a board of
enquiry was being set up for the purpose of inquiring into and making
a finding and recommendation whether the applicant is fit to retain
her rank or to remain in the Namibian Police as a result of her:
convictions
of misconduct, as per Pol. 174 or J14
unfitness
to perform her duty properly
inability
to perform her duty in an effective manner
improper
or indecent behaviour and/or conduct and any other fact(s) or
matters concerning her.
[8] The convening order was
issued by deputy commissioner Armas Kasita Shivute who appointed
chief inspector Schalk Coenraad Meuwesen (third respondent) as
chairman of the board.
[9] The applicant deposes that
she, accompanied by Sgt. Theresia Onesmus, met the third respondent
on 11th June 2004. According to the applicant, at the
meeting no witnesses were called and no charge was read out to her.
She was only told third respondent would write to second respondent
about her criminal conviction. According to her, she was also not
informed that she could face discharge from the Force; nor was she
asked to present mitigating circumstances. She says that the record
of the proceedings in the Magistrate’s court which resulted in her
conviction was not placed before the board of enquiry. She was also
not informed of her right to legal representation, and she says she
could not ask for such opportunity because she is ‘functionally’
illiterate.
[10] Applicant says she then
got a letter on 5th July 2004 from the second respondent,
informing her that she was discharged from the Force. She then, on
10th July 2004, wrote a letter, assisted by a colleague,
to appeal against her discharge. In the letter she asks for
‘re-installation’ because she is the mother of 4 children and
looks after her aged mother and additional 5 orphaned children as
their only bread-winner, without any other income. She also said
that at her age, and because of her lack of education, it would be
difficult to find another job. As must be discernable, the letter is
really a plea for mercy.
[11] On 10th August
2004, applicant’s legal practitioner wrote a letter to the second
respondent in which he challenged the proceedings that resulted in
the applicant’s discharge from the Force on grounds which are
substantially and materially the same as those set out in the present
application as review grounds.
[12] In the third paragraph of
that letter, her legal practitioner states the following:
“… our
instructions are that on 11th June 2004 and at Eenhana,
one Chief-Inspector Schalk Coenraad Meuwesen intimated to our client
that there was an enquiry related to a criminal matter that
was reported against our client at the Onhangwena Police Station.”
(My emphasis)
This does not support
applicant’s earlier allegation that third respondent merely told
her that he was going to write to the second respondent about her
criminal conviction.
[13] On 17th August
2004, after being presented by the second respondent with what is
clearly the record of the s8(1) enquiry proceedings which resulted in
the applicant’s discharge from the Force, applicant’s legal
practitioner wrote a letter to the first respondent captioned “Appeal
in terms of section 8(2) of the Police Act, Act 19 of 1990 as
amended.” The grounds of appeal are set out as follows:
“a) The
member was not properly informed of the status of the enquiry.
The
member was not at any stage informed of her right to a legal
representative at the enquiry.
The
member was not informed of the findings by the Chairperson of the
purported enquiry.
The
member was not provided with the specific allegations against her
and no record of the conviction was served on her.
The
member was not given an opportunity to make representations as to
why she should not be discharged.
The
Inspector-General made a decision improperly, particularly because
he was not provided with all the required materials and documents
from the convening authority as required by Police regulation 12(a).
The
Chairperson was biased as he led and gave evidence himself during
the enquiry.
The
Chairperson failed to give the member an opportunity to
cross-examine witnesses and/or to rebut evidence against her.
The
Chairperson failed to properly record the proceedings.
Clause
C.3 of the standing order of the Administration Manual read with
Schedule I to the Police Act, is unconstitutional as it fetters the
Inspector General’s discretion.” ( footnote)
[14] The
latter ground is not included as a review ground in the present
application. It has also not been included by reference as a review
ground. In any event, it was before the first respondent on appeal
and I must assume that it was considered by him. No allegation is
made that the first respondent did not have regard to it on appeal
or, alternatively, that even if he did the process was tainted any
way.
[15] The
applicant avers that following the appeal, enquiries were made by her
legal representative to the first respondent’s office about the
progress of her appeal and the first respondent’s secretary
advised2
that the appeal was forwarded to second respondent ‘to consider
and decide.’ She says this is wrong and vitiates the decision
on appeal. That the second respondent decided the appeal, she avers,
was confirmed when she received a letter from second respondent
informing her that her appeal was not successful.
The respondent’s evidence
[16] The
respondents oppose the relief sought. An opposing affidavit was
deposed to by third respondent, and confirmed by General Hangula who
was the IG at the time, in so far as third respondent makes
allegations concerning the actions of the second respondent. The
first respondent also deposed to a confirmatory affidavit. Third
respondent confirms that he was the chairperson of the enquiry
convened on 11th June 2004.
[17] Third
respondent deposes that the admitted conviction of the applicant took
place in open court and members of the public are aware the applicant
is a convicted criminal. It is the fact of this conviction, he
avers, that resulted in the s8(1) proceedings against the applicant.
[18] Third
respondent states that the applicant was properly served with the
convening order by Onesmus Theresia3.
He also states that on the ‘Pol 174’ served on the applicant
together with the convening order, she admits the fact of the
conviction. (I only need add that the inscription ‘I
admit the conviction’ is in English and is signed by the
applicant: This is significant in view of applicant’s assertion
that she does not understand English. She offers no explanation in
her papers how this inscription came about in a language she says she
does not understand.)
[19] The
third respondent denies the convening order was merely served on the
respondent, as alleged, and states (duly confirmed by Onesmus) that
when the documents were served on the applicant Onesmus explained the
contents of the convening order in Oshivambo. She also explained to
the applicant that she has the right to legal representation during
the hearing. Onesmus also said to the applicant that on the date of
the hearing she will be on leave and that Cst. Ngololo will accompany
the applicant to the enquiry. Onesmus further avers that upon
serving the convening order on the applicant, she told the applicant
that in her experience people convicted of theft are usually
discharged after an enquiry in terms of s8(1); and that the
applicant was crying upon hearing that and Onesmus comforted her.
[20] Third respondent confirms
that he chaired the s8(1) enquiry in respect of the applicant, and
that at the enquiry the applicant was accompanied by Cst. Ngololo.
He states that at the enquiry he introduced himself to the applicant
as the chairman of the enquiry and explained the nature and purpose
of the enquiry. He also explained to applicant her right to legal
representation. All this, he alleges, was explained to the applicant
in her native tongue, Oshivambo.
[21] Third respondent also
avers that he explained to the applicant that she could be discharged
from the Force but that the decision lay with the I.G. He says that
the applicant said she wanted the matter to be finalised as soon as
possible.
[22] Third respondent admits
that the record of the proceedings resulting in the applicant’s
conviction and sentence in the Magistrate’s court was not placed
before the enquiry, and that it was unnecessary to do so as the
applicant admitted the conviction. He states further that at the
enquiry Cst. Ngololo was called as a witness to put the ‘relevant
documents before the tribunal’.
[23] The third respondent
denies that the enquiry was short and says it lasted from 09h00 to
lunch. He says he informed applicant of the findings of the inquiry
and the recommendation to the I.G., advising her that, because of the
criminal conviction, she would likely be discharged. He also states
that the applicant admitted that she made a mistake and wished to be
given another chance.
[24] Third Respondent states,
duly confirmed by the first respondent, that the decision on appeal
was taken by the Minister. He insists he and the I.G. were entitled
to place their views before the Minister on appeal. He avers that
the letter informing the applicant that her appeal to the Minister
was unsuccessful was written to her after the Minister took the
decision on 16th September 2004.
[25] Third respondent asserts
that the ‘import and purport’ of s8(1) is that it is not a
disciplinary enquiry but an enquiry into the fitness of a member to
remain on the Force, and that the enquiry relates to such matters as
the integrity and reputation of the Force and the individual member.
He then states the following in paragraph 17.2:
“The question is
whether the Applicant is a fit (and proper) person to remain in the
Namibian Police Force, taking into account that she has been
convicted in an open court of a crime of theft, a crime which has an
element of dishonesty. The capacity to perform her duties
efficiently is thus looked at from the perspective of the other
members of the force and the general public at large. What type of
trust does a convicted criminal engender in the general public?
Members of the general public should be able to rely on the Namibian
Police in the time of their greatest need. The police force should
not be seen as a force that has been infiltrated by thieves and other
criminals. The force has a duty to guard against such a reputation,
lest it becomes more and more inefficient. This I submit is the
rational for enactment of section 4(2B) of the Police Act, and this
theme applies with equal force to an enquiry in terms of section 8(1)
of the Police Act.”
[26] The minute of the enquiry
is attached to both the founding papers and the answering papers, and
was under Rule 53 dispatched as part of the record to the applicant
who, as third respondent says, did not supplement her papers in terms
of Rule 53 (4) after receiving the record. I will refer to salient
elements of the record of the s8(1) enquiry. It shows that Gloria
Ngololo testified at the hearing and handed in the convening order
and Pol 174. It then says those documents were examined by the board
and the applicant, whereafter they were handed in as ‘Exhibit 1’.
Ngololo also testified about the applicant’s conviction and
sentence and handed in the extract of the ‘Punishment Book’ dated
2003.10.15, and form ‘J14’, which were then, the record shows,
examined by the board and the applicant and handed in as ‘Exhibit
2’. Other documents were also handed in which I do not find
necessary to refer to here. Ngololo’s testimony at the enquiry
concludes in the following terms:
“I did not
encounter any problems with her for the time that she served under my
command. She is well disciplined and reports always on time for
duty”.
[27] The record then states
that there was no cross-examination of Ngololo. At the end of that
the record shows that the ‘evidence on behalf of the Board’
was concluded and that the ‘defendant does not wish to call
witnesses’ but wishes to give evidence. Her evidence is then
recorded.
I will quote it verbatim:
“I am a
Constable in the Namibian Police with Force No. 400784 and am
stationed at Ohangwena Installation Unit. I am the defendant in this
inquiry. I understand the evidence given so far as well as the
nature of the inquiry. I admit that I made a mistake and would like
to be given another chance in the Namibian Police. It is the first
mistake I made since my date of appointment and I have no other
convictions recorded against me.
I have four
children to maintain apart from any other monthly responsibilities.
My salary per months is approximately N$1087.56”.
[28] The recorded and typed
testimony is then duly signed by the applicant. The record states
then: ‘statement read over to the defendant and signed by her’.
The record also shows that, having considered all the evidence,
the board found:
“1. The
Defendant was enlisted in the force on 1999/10/01.
She
was convicted on 2003/10/15 in the Magistrate Court at Ohangwena on
a charge of theft and she was sentenced to a fine of N$2 500.00 or
24 months imprisonment.
She
was convicted on criminal charge that is a deed of dishonesty.
The
reliability of the defendant is under question.
Theft
involved government property.
The
defendant submitted evidence in mitigation.
The
contents of paragraph 2, 3 and 5 shows that she is not fit to remain
in the force.” (My emphasis)
The board then recommended that
the applicant be discharged from the Force.
[29] Following the applicant’s
appeal to the Minister, the second respondent prepared a memorandum
to the Minister setting out the history of the matter, including the
applicant’s grounds of appeal. (No allegation is made under oath
by the applicant that in the memorandum to the Minister, the second
applicant included new facts and material which the applicant did not
have the opportunity to deal with.)
[30] The I.G. having set out
the history of the matter then recommended to the Minister that the
appeal be dismissed and the discharge of the appellant be confirmed.
The Minister then, on 16th September 2004, ‘approved’
the recommendation. This is how the appeal was dismissed. The
Minister also deposed to a confirmatory affidavit confirming the
averments relating to him. Constable Gloria Ngololo confirms the
allegations in respect of her.
[31] The applicant in her reply
reiterates that a member can only be discharged in terms of s8(1)
upon evidence that she is ‘incapable of performing her duties
efficiently’. She avers that there was no such evidence in her
case
[32] Nowhere in the reply is
it disputed that the applicant stole from her employer. The applicant
states that she did not find it necessary to supplement her papers
after the record was disclosed to her. That was a serious error of
judgment.
Analysis
[33] The applicant did not
apply to have any of the disputes on the facts referred to oral
evidence. It is trite that where conflicts of fact exist in motion
proceedings and there has been no resort to oral evidence, such
conflicts of fact should be resolved on the admitted facts and the
facts deposed to by or on behalf of the respondent. The facts set
out in the respondent’s papers are to be accepted unless the court
considers them to be so far-fetched or clearly untenable that the
court can safely reject them on the papers: Nqumba v The State
President, 1988 (4) SA 224 (A) at 259 C – 263 D); Walter
Mostert v The Minster of Justice 2003 NR 11 at 21G; Republican Party
of Namibia and another v Electoral Commission of Namibia and 7 others
NmHC (Full Bench) A 387/2005 at pp70-71 (unreported) delivered on
2005.04.26. I often note, with considerable frustration, that it
is not sufficiently appreciated that an applicant in motion
proceedings takes a great risk by not resorting to oral evidence
where a respondent denies the foundational allegations of the
applicant and presents positive facts and proof which a Court cannot,
on the papers alone, find to be far-fetched.
[34] As the summary of the
evidence shows, the respondents have filed detailed affidavits
disputing each of the material factual allegations of the applicant
in support of her review application. They have provided supporting
documents in support of their allegations. Based on the above test
for approaching disputes of fact, I must accept the following
averments of the respondents as I do not consider them to be
far-fetched:
i] The
theft the applicant was convicted of was from her employer.
ii) The
convening order was properly served on the applicant and all her
rights were explained to her in a language she understands. She
understood the import of the convening order and the enquiry which it
envisaged. She knew very well that the enquiry on 11th
June was called because she was convicted of a criminal offence and
that because of this she may be discharged from the Force.
iii) At
the enquiry the applicant’s right to legal representation was
explained in a language she understands. The charge was read out and
explained to the applicant, followed by the leading of evidence
against her and the opportunity for her to cross-examine the only
witness at the hearing. It was explained to her that the enquiry may
result in her dismissal from the force and she was afforded the
opportunity to offer evidence in mitigation and in fact did so. The
applicant admitted the conviction and sentence in the magistrate’s
court and asked for mercy and to be given another chance.
iv) The
appeal was decided by the first respondent himself, not by the second
respondent.
[35] The grounds of review (1-6
and 9) predicated on the allegation that procedural safeguards were
not observed before and during the s8(1) enquiry, must therefore
fail.
[36] The respondents admit the
applicant’s allegation that at the enquiry the record of the
proceedings in the Magistrate’s court which resulted in her
conviction was not presented. They say that it was not necessary
because the fact of the conviction and sentence were never denied by
the applicant. It is worthy of note that in the present proceedings
the applicant owns up to the conviction and sentence any way. I do
not see what prejudice she suffered. The applicant was, even by her
own admission, found guilty in a court of law and sentenced and never
appealed against either conviction or sentence. The respondents were
entitled to act on that basis. To imply, as the applicant does, that
the authorities had to prove the fact of the conviction and sentence
by producing at the s8(1) enquiry the record of the trial court’s
proceedings, when the fact of the conviction and sentence is
admitted, is untenable. This ground (7) is therefore specious and
must fail.
[37] I will now consider review
ground (10 and 11) which alleges that the second respondent should
not have made a recommendation to the first respondent when the
matter went on appeal. Neither counsel referred me to the Appellate
Division matter of Terblanche v Wiese 1973 (4) SA 497 (A),
which dealt with a provision of the South African Police Act which is
in pari materia with our s8(1).
[38] In that case the
Appellate Division held that the legislature intended that a
quasi-judicial body (being the board of enquiry) should function
without being bound by the rules of evidence and without being
limited only to the admission of evidence which would be admissible
in a court of law ( at 505). As regards the appeal procedure to the
Minister, the Court held that the commissioner has a ‘duty’ to
submit the appeal, together with the record of the board’s
proceedings and all other relevant documents, to the minister; and
that it is not irregular for the commissioner to submit a memorandum
to the minister suggesting that he dismiss the appeal. Where such a
memorandum contains no new facts it need not be referred to the
appellant in order to afford her the opportunity to reply because the
appellant cannot be prejudiced (at 505-508). In view of the
authority which I have just cited, this review ground too must fail.
[39] The other review ground
falling for determination is the one alleging that no evidence was
led at the enquiry that the applicant was not fit to remain in the
Force or to retain her rank.
[40] The respondents allege and
argue that the enquiry under s8 (1) is aimed at establishing the
fitness of a member to continue as such member. The argument goes
that because of the conviction, a member’s unfitness is presumed
and the I.G. may only retain the convicted member if such member
shows that in spite of the conviction, he or she is a fit person to
be retained on the Force. Mr Narib submitted with great force and
enthusiasm that because of the nature and function of the police
force, s8 (1) was so drafted to create a bias against members of the
Force who get convicted of criminal offences involving dishonesty.
This bias, Mr Narib submits, is reinforced by s4(2B) which states
that a person who has been convicted of a schedule 1 offence (to the
Act) (theft is included) shall not be appointed as a member. He says
that provision must be had regard to in interpreting s8(1). If
I understand this argument properly, Mr Narib suggests that because
the enquiry is aimed at establishing the fitness of the member of the
Force, the affected member must present facts which show that,
regardless of the conviction and the blemish which it places on the
Force, she is still a fit person to remain on the Force. Mr Narib
submits that the applicant failed to present any evidence which could
have led the IG to take the risk of retaining on the Force a person
who has been found guilty in a court of law of a schedule 1 offence.
[41] Tala v Village Council
of Wolmarandsstad, 1927, TPD 425 at 428-430 is authority for the
proposition that where the legislature has given a right of appeal
against the exercise of a discretionary power and or requires the
functionary to give reasons for his or her decision, the use of the
expression ‘in the opinion’ of a functionary is not to be
seen as having been intended as a decisive factor precluding judicial
review. Under the scheme of the Act there is a right of appeal to
the Minister from a decision of the I.G. Second respondent’s
exercise of his discretionary power under s8(1) is therefore
subject to judicial review. My reading of the Act is that an enquiry
in terms of s8 (1) must be properly conducted so as to determine the
issue whether a member is fit to remain on the Force and the I.G.
must have a proper basis for forming the opinion that a member
is not fit to remain on the Force. That issue cannot be
predetermined by some administrative device or diktat which prevents
the I.G. from looking at every individual case to determine if a
member is unfit.
[42] If the view propounded by
Mr Narib were to prevail it will amount to rewriting s8 through
interpretation. If that is what the legislature intended, nothing
could have been easier for it to say so clearly. In any event, the
telling argument against it is the scheme of the Act itself: the
amended s8(2) makes clear that the I.G. shall only discharge (having
observed audi) a member who is unfit to remain in the Force or
retain her rank, if such member is at the time still on probation.
The provision which empowered the I.G. to discharge without an
enquiry a member who had been convicted of an offence without the
option of a fine, has since been repealed. What it means is that even
a convicted criminal (member of the Force) is entitled to an enquiry.
That removes the sting in Mr Narib’s argument which is clearly
flawed.
[43] Mr Namandje also submits
that the word ‘efficiently’ in s8(1) must be given its
literal grammatical meaning. Relying on the Mini Oxford
Dictionary, he submits that the word must be interpreted to mean
‘able, productive, competent, useful’. ( I will for the
purposes of this judgment assume this to be correct.) This, in
reality, amounts to saying that a member found guilty of a criminal
offence should not be subject to an enquiry in terms of s8(1). Now,
how can a member of the Force be productive and useful
to the Force if, as the respondents say, the public stand to lose
trust and confidence in them because of the criminal conviction? I
am satisfied that it is perfectly legitimate for the Force to hold an
enquiry against a member in terms of s8(1) if convicted of an offence
such as the applicant was.
[44] I have already found that
the applicant’s procedural rights were explained at the enquiry.
Not only that, the third respondent makes clear that the applicant
was informed that she was facing the prospect of dismissal in view of
the criminal conviction and that the enquiry was directed at that.
The convening order, although not quite elegantly worded, makes clear
that her criminal conviction was considered to render her unfit to
perform her duty efficiently. Onesmus who served the convening order
also explained to the applicant that normally police officers
convicted of criminal offences such as applicant was, are discharged
from the Force. I do not think it should be required of the Force to
approach the matter in the rather formal way suggested by Mr
Namandje, i.e. that she should be told that the enquiry is called to
determine if she is ‘fit to remain in the Force or to retain her
rank. Now please present evidence why you should remain on the
Force.” That may have been even more confusing to her.
[45] This applicant knew she
committed a crime of theft. She knew a board was called to consider
whether because of that she should remain in the Force or not. I
therefore find nothing improper with the manner in which the enquiry
was conducted. The review ground that the enquiry was not concerned
with whether or not the applicant is fit to remain on the Force is
without substance and must fail.
[46] As for what transpired
before the second respondent, I wish to say the following: Second
respondent had before him the report of the board of enquiry stating
that because of applicant’s conviction for theft from her employer,
she was not fit to remain in the Force. This was no ordinary case of
theft: It involved theft from an employer. Theft from the employer
is a very serious matter and normally justifies dismissal. See Model
Pick & Pay v Mwaala 2003 NR 175 A-D and the authorities there
collected.
[47] It is at the s8(1)
enquiry, not before I.G., that the facts and circumstances must be
placed as to why a member found guilty of a criminal offence is not
fit to remain on the Force, and why such member, in spite of the
conviction, should not be discharged from the Force. Both the Force
and the member bear an evidentiary onus. The applicant was fully
aware of the nature of the proceedings of the board of enquiry. She
knew she could be discharged from the Force. The nature of her
mitigation makes that clear: She wanted to be given a second chance
for fear of losing a livelihood. There is no suggestion that the
submissions she made in mitigation were not properly considered. The
recommendation to the second respondent was based on the outcome of
the enquiry.
[48] In the founding papers no
allegation is made that the second respondent operates a practice,
based on some internal administrative manual, whereby if a member of
the Force is convicted of a schedule 1 offence (which includes
theft), such member be automatically discharged from the Force
without it being considered, at a s8(1) enquiry, whether the member,
because of the conviction, is fit to remain in the Force. Such a
practice if it exists would potentially be ultra vires for
preventing the second respondent from exercising his discretion
whether or not to discharge. (See Johannesburg Stock Exchange v
Witwatersrand Nigel Limited 1988 (3) SA 132 (A) at 152 B-D.)
Based on documents discovered, Mr Namandje relied on this ground
and submits in his heads of argument that such practice is ultra
vires and had a role to play in the present case. It is common
cause that after receiving the record of proceedings sought to be
reviewed and set aside, the applicant did not, in terms of subrule
(4) of Rule 53 ‘by delivery of a notice and accompanying
affidavit, amend, add to or vary the terms of her notice of motion
and supplement the supporting affidavit.”
[49] It has to be mentioned
that it is not enough to list every conceivable review ground without
also presenting evidence on affidavit which supports each and every
ground relied upon. A respondent is under no obligation to counter a
review ground which is not supported by evidence given under oath. Mr
Namandje seems to think that the same result can be achieved by in
his heads of argument relying on review grounds which he discovered
after the record was dispatched by the respondents, without complying
with subrule (4) of Rule 53.
[50] An applicant for review is
not entitled, in heads of argument, to introduce additional review
grounds which were not disclosed in the founding papers or through
exercising the right conferred by subrule (4) of Rule 53. First, the
existence of a practice fettering the second respondent’s
discretion has not been proved. True, the documents show that the
second respondent takes the view that the fact that the Act prohibits
the employment into the Force of persons who had been convicted of a
schedule 1 offence, necessitates consideration of discharge, after a
s8(1) enquiry, of a member of the Force who is convicted of such an
offence. That is not the same thing as saying any member who is found
guilty of a schedule 1 offence will be discharged whatever the
merits. Second, the notice of motion has not even been amended
that such practice, being ultra vires, be declared unlawful
and therefore be set aside.
[51] It is for these reasons
that I do not deal with the additional review grounds improperly
disclosed in the heads of argument.
[52] Review grounds 8 and 12
are cast in such generalised terms and are not supported by any of
the evidence given on affidavit and do not merit special
consideration.
Purpose of judicial review
[53] Judicial review
has two aspects: First, it is concerned with ensuring that the duties
imposed on decision–makers by law (which includes the constitution)
are carried out. A functionary who fails to carry out a duty imposed
by law can be compelled by the High Court to carry it out. Secondly,
judicial review is concerned with ensuring that an administrative
decision is lawful, i.e. that powers are exercised only within their
true limits. If a functionary acts outside the authority conferred by
law, the High Court can quash his or her decision. This is the
doctrine of ultra vires. If the decision is one which the
decision-maker was authorised to make, the only question which can
arise is whether the decision is right or wrong. This involves a
consideration of the merits of the decision. With limited exceptions,
namely an error of law on the face of the record and the
still-evolving doctrine of proportionality, the Courts are in
principle not prepared to review the merits of the decision unless
Parliament has created a statutory right of appeal. (See Davies v
Chairman, Committee of the Johannesburg Stock Exchange 1991(4) SA
43 at 46-48; The Western Australia Law Reform Commission 26(11),
Working Paper on Judicial Review of Administrative Decisions
(1986) at paragraph 1.9.) It must be borne in mind that ‘in
the absence of irregularity or unlawfulness, considerations of equity
do not provide any ground of review’: Davies supra
at 47G.
[54] The applicant’s case is,
in reality and substance, a plea for mercy- to be given another
chance although she was convicted of theft from her employer. The
decision of the respondents not to give her another chance is
not subject to review in the absence of any unlawful conduct on their
part. The applicant failed to establish that the respondents did not
comply with their statutory obligations. The onus rests upon
the applicant for review to satisfy the Court that good grounds exist
to review the conduct complained of: Davies supra at 47 G- H.
[55] I find no irregularity in
the actions of the respondents.
[56] This application for
review is singularly lacking in merit and is accordingly dismissed
with costs.
_______________
DAMASEB,
JP
ON
BEHALF OF THE APPLICANT: Mr S Namandje
Instructed
By: Sisa Namanje & Co
ON
BEHALF OF THE RESPONDENTS: Mr G Narib
Instructed
By: Government-Attorneys