The Botswana Police Service (BPS) has succeeded to overturn a Francistown High Court decision which ordered the commissioner to reinstate dismissed police constable, Herbert Nkgasapane.
The Court of Appeal (CoA) last Friday, ruled in favor of the commissioner of Police, chairperson of Police Council and Attorney General, reversing the decision by Justice Ookeditse Maphakwane to reinstate the former crime scene investigator to work back in February 18, 2020. According to the background of the application, Nkgasapane was dismissed from BPS on April 16, 2018 by the commissioner of Police following his conviction on disciplinary offences by a Class II Disciplinary Board and later confirmed by the Police Council.
At the time of his dismissal, Nkgasapane worked as a crime scene investigator based at Gerald Police Station.
He was convicted and dismissed after his girlfriend reported him for stealing a black LD torch and its charger and a Silver Sirche torch, which were BPS properties, as well as fined P250 for insubordination after he allegedly threatened to use violence against his senior.
Following his dismissal, Nkgasapane filed a review application seeking an order to review and set aside decision of both the Police Council and Commissioner. He succeeded after the High Court declared that his dismissal from BPS and the order for the forfeiture of his salary was a nullity.
The BPS then approached the CoA, appealing the High Court’s decision.
CoA president, Ian Kirby alongside Justices Monametsi Gaongalelwe and Leatile Dambe upheld the appeal on all grounds. They all concurred that the High Court erred in nullifying the decision of the Police Council on the ground that a senior police officer was present as its secretariat and that it was an error with serious implication “since the police always render secretarial services of the council”. When handing down judgement, Kirby said the function of the Police Council was to hear complaints leveled against members of the police service and also adjudicate on disciplinary appeals brought by police officers, so it follows that its members must be independent of the service.
“There is no suggestion that, that was not the case here, or that the ‘secretariat’ formed part of that membership. It is also not suggested that the senior superintendent played any part at all in the proceedings of the Council,” read CoA’s judgement in part.
The CoA Justices also reasoned that there is no reference made in the Act to the Secretarial or other support services which the Council may require, such as provision of recording equipment or refreshments, or messenger services. “As found by Maphakwane J. there is nothing remiss in the Commissioner providing a room and other facilities for the Council’s meetings. By Section 38(2) of the Act, the Police Council is empowered (subject to compliance with the Act) to regulate its own proceedings. This extends, I have no doubt, to arranging a secretariat to record the minutes of its proceedings,” the panel reasoned.
CoA said the Police Council is an independent committee appointed by the President, as such it cannot be expected to do its own secretarial work.The justices said the decision of the High Court in suggesting that the presence of the senior officer, although playing no part, with respect, was outrageous and misguided, as such should be set aside. In conlcusion, the CoA said the Police Service is a discplined force, whose whole structure and effectiveness rests upon firm and predictable discipline among all ranks, so technicalities raised to undermine the effectiveness of straightforward and sensible disciplinary proceedings will seldom prevail if substantial justice is found to have been done.