Cop wins dismissal case
Lebogang Mosikare | Friday February 28, 2020 18:06
Herbert Nkgasapane had filed a review application before Justice Ookeditse Maphakwane seeking an order to review the decision of the respondents (Chairperson of Police Council, Commissioner of Police and Attorney General respectively) and set aside the decision of the review council as a nullity.
The applicant also wanted his dismissal from BPS to be declared invalid, set aside and that the respondents pay the costs of the application.
According to the background of the application, Nkgasapane was dismissed from BPS on April 16 in 2018 by the Commissioner of Police following his conviction on disciplinary offences by a Class II Disciplinary Board set up by the Commissioner at Kutlwano police station.
“The applicant was charged with two counts of disciplinary offences (discreditable conduct and insubordination) contrary to the Police Act.
The particulars of the offence in respect to the first count were that the applicant between 30 April in 2016 and May 8 in 2016 at Gerald police station stole a black LD torch and its charger and a silver Sirche torch being the property of the Government of Botswana.
In the second count, the State alleges that on May 8, 2016, the applicant uttered disrespectful words to his superior by saying the words, “Otla swa. Otla ntatela sergeant ke wena. Ke tla go betsa. Wena o nyetse, ga o ke o nna le mathata le mosadi wa gago,” or words to that effect.
In English the words mean: “You will die. You will follow me you sergeant. I will beat you up. You are married and you never have problems with your wife.”
Upon his arraignment before the Class II Disciplinary Board, the applicant pleaded not guilty to both counts and enjoined the prosecution to prove his guilt on a balance of probabilities, said the Judge.
“However, before the Disciplinary Board, applicant was not represented by defence attorney Tshekiso Tshekiso, who happens to be his attorney of record in this review application,” said Justice Maphakwane.
The proceedings before the Board were conducted in earnest and resulted in the conviction of the appellant in both counts, with a verdict of dismissal on the first count and a fine of P250 in respect of the second count, said Maphakwane.
“Consequently, the record of proceedings from the Board following the conviction was forwarded to the Commissioner of Police for his consideration and confirmation. Acting adjunctly, the Commissioner then confirmed the conviction and sentence and dismissed the Appellant from the police service effective April 16, 2018,” said Maphakwane.
The applicant, Maphakwane noted, appealed against the decision of the Commissioner to dismiss him but the Commissioner endorsed the Board’s decision, hence he made the review application.
“The applicant has raised several grounds of review dealing with procedural impropriety on part of the Police Council and disciplinary procedures such as the violation of the audi alterum partem rule (let the other side be heard as well) in relation to the Council’s alleged failure to allow his attorney to make oral representations, lack of impartiality by both the Council and Class II Disciplinary Board, an alleged lack of evidence to sustain the charges and lack of ordinary fairness in the conduct of the proceedings by the Council,” said Maphakwane.
As a prelude to the examination of facts and legal analysis of judicial review, Maphakwane explained, a reinstatement of general principles on the law of judicial review is necessary as some of the applicant’s complaints don’t necessarily fall into the realm of judicial review as they concern the merits and adequacy led to prove the charges before the Class II Disciplinary Board which can be best addressed in an appeal hearing other than review…
“The applicant’s first contention is that when he lodged the appeal with the Police Council, a request was made by his attorneys that they be allowed to appear before the Police Council to motivate his appeal. The request was made by way of a letter dated May 28, 2018. This letter it seems was not placed before the Police Council as the respondents answer this query by stating that the letter never reached the Council, and as such, it did not act upon it as the official who had received it, one Ms. Santo did not deliver it,” said Maphakwane.
She added: “Thus, the applicant contends that the failure to allow his attorneys to appear and motivate his appeal was tantamount to denial of a fair hearing or violation of the audi alterum partem rule against him.
The applicant amplified the basis why the appearance by his attorney before the Police Council was even more important. Applicant argues that his professional life as police officer was at stake more so that the Council was the last body, which is not limited in its consideration. The Applicant added that he had previously accused the Police Commissioner of bias in one of his attorney’s correspondences, so he wanted to come and explain the rationale behind these accusations.”
On the other hand, Maphakwane stated that the respondents vehemently opposed this argument by simply referring to the Police Act, which empowers the Council to regulate its own procedure.
“They argued that even if the applicant had made such as a request, the fact that the applicant was not given the opportunity to appear before the Council physically or his attorneys does not mean that he was not given a proper and fair hearing as his grounds of appeal were considered by the Council. This court is however persuaded by the respondents’ argument that the audi alterum partem principle does not require the holding of an oral hearing as the beneficiary thereof need not be afforded all the facilities which are allowed to a litigant in a judicial trial,” said Maphakwane…
Another argument raised by the appellant, Maphakwane stated, was the alleged lack of impartiality by the Police Council as it adjudicated over the appeal.
“…Allied to the above argument, is another contention that a certain member of BPS Senior Superintendent Gaobuswe Sefhako sat with the Police Council as a secretariat.
According to the argument, this arrangement is legally objectionable as the Police Act does not provide for the appointment of secretariat of the Police Council…The contention went further and decried that the Police Council was too entangled with the Commissioner of Police to be able to dispense justice without fear or favour or at the very least, been seen to dispense justice fairly,” said Maphakwane.
…A critical examination of the section 62 (1) of the Police Act, Maphakwane enunciated, under which members of the Police Council are appointed and section 63 of the Act, under which the duties of the Council are spelt out, there is no provision for the appointment of the secretariat as it was done. This additional appointment which was not sanctioned by the statutory framework, irregularly compromised the desired impartiality of the Council as now the Commissioner of Police’s interests had a representative agent…
“It was also argued that the investigating officer who investigated charges against the applicant was also a complainant in relation to the second count… Thus, conviction was confirmed by the Police Council and invariably formed the basis of the plaintiff’s dismissal by the Commissioner… This investigating officer was an interested party such that his motive was not necessarily to present the truthful facts of the case, but to ensure that the case was won against the plaintiff at all costs including misrepresentations of investigation outcomes,” said Maphakwane…
It is therefore, this court’s view, Maphakwane explained, the desired procedural fairness in the applicant’s case was not as the process was manifestly unfair and adverse such that no procedural fidelity reposed in the disciplinary process was guaranteed… There was no justification why a different police investigator was not engaged other than an interested party.
“In this case, the Police Council’s decision falls to be reviewed on account of the identified infractions which rendered the applicant’s disciplinary hearing both irregular and legally defective…
In the result, following the filing of the applicant’s amended notice of motion on May 14, 2019, the following order is granted: the decision of the Police Council be and is hereby reviewed, corrected and set aside as being a nullity; that it be and is hereby declared that the dismissal of the Applicant from BPS is a nullity; that the order for the forfeiture of the Applicant’s salary be and is hereby declared a nullity and costs on an ordinary scale are awarded to the Applicant,” Maphakwane concluded.