Cop escapes dismissal for assaulting colleague
Mpho Mokwape | Tuesday March 26, 2024 06:00
The officer, Badisa Maswe, was reinstated following decisions by both the High Court and the Court of Appeal (CoA) after his dismissal from the Botswana Police Service (BPS) on April 29, 2020, for assaulting another officer.
The BPS' Class II Board initially charged him before the Commissioner reviewed his case.
Both courts found irregularities in Maswe's dismissal by the BPS. In a recent ruling by the CoA, where the Commissioner of Police and the Chairperson of the Police Council were appealing High Court Judge Tshepo Motswagole’s judgment reviewing the dismissal, it was revealed that the BPS had failed to follow statutory procedures outlined in the Police Act, rendering the dismissal illegal.
The bench of judges, CoA President Tebogo Tau, Baaitse Nkabinde, and Johan Froneman agreed with Judge Motswagole’s findings, particularly noting the Commissioner's overreach in dismissing the officer. Justice Tau explained that, as Justice Motswagole found, the powers of the Commissioner are limited by the Police Act.
The Commissioner may only exercise the power to vary, reverse, or confirm the sentence imposed within the confines of the Act's authority on the relevant board. “In other words, the kind of punishment that the Commissioner imposes must be within the competency of the board. So, since Class II which charged Maswe does not have the power to dismiss, the Commissioner would also not be competent to do so when exercising the powers under the Police Act. "It is clear that section 29(2)(b)(c) limits the Commissioner to punishment which the Board concerned is empowered to award, and that section 29(2)(c) applies when a new trial is ordered before a different Board." Justice Tau emphasised that, in terms of the above section, the Commissioner can dismiss the police officer in question and impose other punishments only when there is a new trial before a different Board, which is not what happened in Maswe's case. “The show cause letter addressed to the officer clearly stated that the record of proceedings was forwarded to the Commissioner for review,” Justice Tau said.
She agreed with Judge Motswagole that the show cause letter confirmed that the Commissioner was, in fact, and law, exercising review powers and that the only way he could dismiss the officer in the circumstances was if there was a recommendation for dismissal from the Class II Board. “I agree with Motswagole that, based on the proper reading of the Police Act as a whole, dismissal for a disciplinary offence other than one arising from a criminal conviction, has to be preceded by a positive recommendation by an appropriate Board of Enquiry for the dismissal of the officer,” she said.
In the end, the judge declared that, based on the decision of the Commissioner, as appointing authority, he does not have statutory powers in terms of the Police Act to vary or substitute the sentence of a Class II Board, including the power to dismiss an officer based on the recommendation of the same board.
The background of the case is that the officer, Maswe, was charged with assaulting another police officer contrary to the Police Act. The particulars of the offence were that on November 7, 2019, Maswe, without reasonable cause, assaulted Sub-Inspector O S Mooki with fits. Subsequently, disciplinary proceedings were commenced against him, and at the end of the Class II Board, found him guilty as charged on March 13, 2020.
Following the conviction, the board imposed a fine of P500 and issued a warning letter. According to the court papers, on April 15, 2020, the Commissioner of Police wrote to Officer Maswe, inviting him to show cause why the sentence imposed on him should not be enhanced to one of dismissal from service, to which he responded indicating that he did not want to complicate the matter any further. He was then dismissed from the BPS on April 29, 2020, before filing a review application with the High Court, which was successful.