The High Court has overturned the disciplinary conviction of a Zimbabwe Republic Police constable, ruling that he was denied a fair hearing after prosecutors repeatedly changed the factual basis of the case against him during the trial.
AfricaNews UpdatesJustice Joel Mambara set aside the conviction and sentence of Constable Edson Chitembetembe, finding that the disciplinary proceedings were marred by "gross irregularity" because the charge, the facts advanced by prosecutors and the evidence ultimately led at trial did not align.
The judge also ordered the first and second respondents, the trial officer, Chief Superintendent Ngirazi, and the Commissioner-General of Police, to pay costs on the ordinary scale.
The court had initially granted the review application on June 9 before later issuing detailed reasons after the Attorney-General's Office indicated it was considering an appeal.
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"The decisive difficulty for the respondents was the disconnect between the charge preferred, the facts successively advanced, and the facts ultimately proved," Justice Mambara said.
"The purpose of a charge is to inform an accused with clarity of the case he has to meet," the judge added, saying that principle is now protected by Sections 69 and 70 of Zimbabwe's Constitution, which guarantee the right to a fair trial.
Chitembetembe had been charged under paragraph 35 of the Police Act's disciplinary code with "acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the police service."
Initially, the charge alleged that on July 18, 2024, he wrongfully handed his unregistered Toyota Sienta to another man, Takudzwa Sakhala. However, prosecutors later shifted the case, arguing instead that the misconduct stemmed from his alleged failure to register the vehicle within the prescribed period.
Mambara noted that prosecutors openly acknowledged during the disciplinary proceedings that "the facts will be different from what they are now", resulting in the defence objecting that it was now facing an entirely different case.
"Those exchanges are critical," the judge said. "They demonstrate that the factual basis of the prosecution shifted materially during the trial."
Evidence presented showed that another person, not Chitembetembe, had been stopped after parking the vehicle at an undesignated loading point. That driver was prosecuted separately and convicted only of the parking offence.
Investigators also admitted they had not examined why the vehicle had not been registered, while Chitembetembe maintained he had twice attempted to register it but registration plates were unavailable.
Mambara said the disciplinary tribunal went beyond the charge by introducing suspicions that the vehicle was operating as an illegal commuter taxi, commonly known as a "mushika-shika", despite that not forming part of the final charge.
"What it cannot do is proceed on a floating amalgam of possible offences and then convict on a blended formulation of its own making," the judge said.
He ruled that the tribunal improperly created "a composite basis for guilt" by combining different elements of the disciplinary offence instead of proving a clearly identified charge.
"There was a further and equally serious problem," Mambara said, noting that the disciplinary judgment itself acknowledged investigators "did not investigate why the defaulter did not register his motor vehicle, nor did they charge him for failing to register the motor vehicle within the period stipulated by the regulations."
"If the specific regulatory breach of late registration was not itself charged and was not itself proved in any precise and legally anchored way, paragraph 35 could not lawfully be used as a catch-all substitute simply because the tribunal disapproved of the overall circumstances," he said.
The respondents argued that any defects in the charge should have been challenged earlier and that disciplinary proceedings differ from criminal trials.
Mambara rejected that argument.
"This was not a merely technical irregularity," he said. "The record discloses a prosecution that changed shape, an omnibus charge not properly particularised, a conviction on a conjunctive formulation not matching the disjunctive structure of the offence, and an evidential case that never satisfactorily tied the applicant's proved conduct to the limb or limbs relied upon."
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"That combination constituted a gross irregularity in the proceedings and in the resulting decision."
The judge said the High Court was therefore "entitled, and indeed obliged, to intervene in the interests of justice."
While the court quashed the conviction and awarded costs against respondents, Mambara declined to award punitive costs.
Courts& Judiciary"The matter disclosed serious legal misdirection, but not bad faith," he ruled.
The ruling followed an application by Chitembetembe seeking review of his disciplinary conviction on constitutional grounds, arguing that he had not been informed of the case against him with sufficient clarity and had therefore been denied a fair trial guaranteed under Zimbabwe's Constitution.
