'Wrongfully' dismissed cop gets job back
Mpho Mokwape | Wednesday March 6, 2024 08:04
He was dismissed from the Botswana Police Service (BPS) on October 31, 2019, after pleading guilty to neglect of duty, specifically failing to attend to a report of rape and leaving the police camp without permission.
Molebalwa was fined P500 on each count by Class II Board on June 26, 2019, and the disciplinary proceedings were forwarded to the Commissioner, who confirmed his dismissal. Filing a review application before the High Court, he contested the decision, arguing that he should have been tried by the Class III Board, given his lower rank.
Justice Matlhogonolo Phuthego ruled in his favour, saying that the Police Act was breached during the disciplinary proceedings. “The Commissioner’s decision to dismiss the officer from work is set aside on reasons of illegality. He is to be reinstated without loss of pay and benefits,” Phuthego said. Despite this, the BPS appealed the decision and lost the case with costs last week. Justice Johan Froneman, delivering the judgment, emphasised that the Commissioner, in dismissing the officer without meeting the statutory requirements for the exercise of his power, acted beyond his powers.
"The review was properly granted on the ground of illegality. The Commissioner has no other power to appoint a Class III Board in terms of the Police Act. There is nothing on record before us to show that a Class III Board was ever constituted,” Froneman said. He explained that it also never appeared through the evidence of the police that the Class III Board deferred its hearing and reported the facts to the Commissioner as the officer was only charged before Class II when he ought to have been charged by Class III by virtue of his lowest rank of Constable.
“These are all requirements the Act lays down before the Commissioner may a Class II Board for disciplinary against a junior officer. None of them were met in this case,” he said. The judge noted that disciplinary proceedings before a Class II may result in dismissal from the service, but disciplinary proceedings before a Class III Board cannot result in dismissal unless it appears to Class III that, because of the gravity of the offence or any other reason, the matter should be dealt with properly by a Class II Board. “It is a vital distinction that, as far as employment goes, concerns a life and death issue, namely whether a junior officer may be dismissed or not,” Froneman said.
He emphasised that for that reason, prerequisites in the Act must be adhered to before a normal Class III Board process may be converted to a Class II Board process.