REPORTABLE
CASE NO: SA 68/2024
IN THE SUPREME COURT OF NAMIBIA
In the matter between:
WERSIMUS HAIPA | Appellant |
and | |
MINISTER OF HOME AFFAIRS, IMMIGRATION, SAFETY AND SECURITY | First Respondent |
CHAIRPERSON: BOARD OF INQUIRY | Second Respondent |
INSPECTOR-GENERAL: NAMIBIAN POLICE | Third Respondent |
Coram: SHIVUTE CJ, DAMASEB DCJ and SMUTS JA
Heard: 28 October 2024
Delivered: 29 November 2024
Summary: The appellant was a Detective Inspector in the Namibian Police attached to the Protected Resources Sub-Division. He had served in the police for 26 years. On account of his seniority and experience, he was assigned the responsibility of protecting wildlife, including the endangered rhinoceros in Etosha National Park.
The appellant was charged with conspiracy to commit the illegal hunting of two black rhinoceroses in Etosha, the very species he was responsible for protecting. It was alleged that the appellant conspired with others to illegally hunt the rhinoceroses by supplying firearms, ammunition and food to poachers who did the actual illegal hunting. After his arrest, his homestead was searched and an unlicensed firearm as well as a telescope were found there.
While in custody, the Inspector-General of the Police convened a Board of Inquiry to determine the appellant’s fitness to remain a member of the Police. The Board of Inquiry found that the appellant was not fit to remain in the Police.
Following receipt of the Board of Inquiry’s report, the Inspector-General discharged the appellant from the Police. The appellant appealed to the Minister against the Inspector-General’s decision as he was entitled to do. The Minister dismissed the appeal and confirmed the appellant’s discharge.
The appellant then brought a review application challenging the lawfulness of the decisions of the Board of Inquiry, the Inspector-General and the Minister on several grounds. The High Court dismissed the review application, holding that the decisions were fair and reasonable.
Not satisfied with the High Court’s judgment, the appellant appealed to this Court asking this Court to overturn the High Court’s decision.
Held that; the Inspector-General was under a duty to regulate discipline and efficient functioning of the Police by ensuring that police officers were beyond reproach and served the public with integrity. He was also under a duty to ensure that criminal elements do not infiltrate the Police and undermine its efficiency and effectiveness from within its ranks.
Held that; the appellant was accused of egregious conduct that is inimical to his status as a senior detective assigned to a most sensitive Unit within the Police Force.
Held that; it goes without saying that a person alleged to be working in cahoots with poachers to commit illegal hunting could not be expected to discharge his police duties efficiently and effectively.
Held that; reading the pleadings in context and as a whole, although there were shortcomings in the manner the respondents dealt with some of the appellant’s averments in their pleadings and the way the Board of Inquiry handled certain aspects of the inquiry, the irregularities complained of were not of the type that ordinarily vitiate fairness and result in a failure of justice.
The appeal was dismissed.
APPEAL JUDGMENT
_________________________________________________________________
SHIVUTE CJ (DAMASEB DCJ and SMUTS JA concurring):
Introduction
The appellant has appealed against the decision of the High Court dismissing his review application. In the review application, the appellant sought an order reviewing and setting aside the decision of the Minister (cited herein as the first respondent), dismissing the appeal lodged by the appellant against the decision of the Inspector-General of the Police discharging the appellant from the Namibian Police Force; and reviewing and setting aside the findings of the chairperson of the Board of Inquiry (the second respondent herein) and that of the Inspector-General that the appellant was unfit to be a member of the Police as being unlawful, unfair and irrational. Extraordinarily, the appellant also sought in the review an order reinstating him in the position he was in prior to his discharge as well as the payment of his remuneration. He also sought the costs of suit.
Background
The appellant was a Detective Inspector in the Namibian Police Force, having served the police for 26 years. Given his seniority and experience the appellant was deployed to the Protected Resources Sub-Division in Oshana Region to protect the wildlife, particularly the endangered rhinoceros in Etosha National Park, which had been hard hit by illegal hunting. On 13 January 2020, the appellant was arrested and charged with an offence of conspiracy to commit the offence of illegal hunting of specially-protected game, namely two black rhinoceroses in Etosha National Park, the very species he was assigned to protect. The allegation was that the appellant supplied firearms, ammunition and food to his co-conspirators.
Additionally, the appellant was charged with offences in the Arms and Ammunition Act 7 of 1996 for being in possession of a firearm without a licence and failing to secure a firearm in a place of safety. In relation to these last charges, it was stated in the incident report submitted to the Inspector-General, that on 13 January 2020, a search warrant was executed at the appellant’s homestead where he did not reside at the time as he resided in Oshakati.
During the search, an unlicenced 7.65 mm pistol, one magazine with two rounds of ammunition and one telescope were found in a store room. A loaded and licenced shotgun as well as 25 live rounds of ammunition were also retrieved from a wardrobe. Although there was a safe in the room, the shotgun was allegedly not stored in the safe. The appellant was arrested and kept in custody for about two years before he was released on bail.
Board of Inquiry
While the appellant was in custody at Oluno Correctional Facility awaiting trial, the Inspector-General of the Police convened a Board of Inquiry (the inquiry) in terms of s 8(1) of the Police Act 19 of 1990 read with Regulations 4 and 12 of the Regulations of the Namibian Police. The purpose of the inquiry was to determine whether the appellant was fit to stay in the Police due to ‘improper or indecent behaviour and/or conduct or any other fact(s) or matter(s) concerning him’. In a letter dated 28 October 2020 addressed to the Regional Commander of Oshana Region, the Inspector-General noted that the appellant had not yet been convicted of the offences he was charged with, but that the inquiry should be conducted ‘due to the seriousness of the offences which puts his efficient and effective discharge of duties into question’.
The Convening Order also stated that the Board would assemble at a place, date and hours to be determined by its chairperson who should, on conclusion of the inquiry, forward the record of proceedings to the Inspector-General together with his findings and recommendations.
After several postponements, the inquiry commenced. The appellant was represented by a legal practitioner at that point in time. The record shows that prior to the commencement of the inquiry, the appellant’s rights were explained to him in writing and in detail. He signed a document embodying the explanation of those rights, thereby confirming that he understood them. Among the rights contained in that document was the right to the ‘disclosure of all documents relevant to his case, and to inspect any document handed in as evidence by the prosecutor’.
The first witness called at the inquiry was the head of Boards, Discipline and Trial Unit at the Oshana Police Regional Headquarters. His evidence related to the rights explained to the appellant and the documents relevant to the inquiry which he served on him. He stated that apart from giving him the document containing his rights, he also handed over to him the following documents: the Convening Order issued by the Inspector-General; the Instruction of the Convening of the Inquiry issued by the Inspector-General; two incident reports addressed to the Inspector-General and Oshana Regional Commander concerning the charges preferred against him, including the circumstances in which firearms were found at his homestead; the list of Schedule 1 offences in terms of the Police Act; the appellant’s suspension notice or letter; a copy of the functions of the Police Force as well as the powers and duties of a member of the Police Force; the Police Code of Conduct; a copy of the relevant Chapters of the Administration Manual, and a copy of the relevant section of the Police Act.
This witness was cross-examined by the appellant’s legal practitioner. However, the cross-examination did not raise issues of substance. It centred on peripheral matters such as whether there was a difference between a specially-protected game and protected game and whether being in possession of a firearm without a licence was a serious offence that could give rise to an inquiry in terms of s 8 of the Police Act. Proceedings were adjourned to 29 June 2021, but resumed only on 1 September 2021. The proceedings could not resume on 29 June 2021 because the appellant had applied for the recusal of the chairperson and the pro-forma prosecutor.
On 1 September 2021, the appellant insisted that the chairperson recuse himself from chairing the inquiry. He added a new demand that he be provided with the content of the docket ‘otherwise he would not allow the hearing to continue’. At this point in time, his lawyer did not appear and the appellant insisted that he be furnished with the content of the docket so that he could hand it over to his lawyer.
When the chairperson ordered the inquiry to proceed, the appellant walked out of the proceedings. The hearing continued nevertheless with the head of the Protected Resources Sub-Division, where the appellant was attached, called next to testify. He testified about the appellant’s performance as an investigating officer. As the appellant’s immediate commander, he rated the appellant’s performance as ‘below to average’.
He stated that the appellant was insubordinate as he threw away dockets assigned to him to investigate. At one point the appellant allegedly threw the assigned dockets to the witness, who had to assign them to other members. The Unit Commander commented that although the appellant did not absent himself from work without leave his ‘general discipline was not good’. The hearing then adjourned to 14 September 2021. When it resumed, the record shows that the appellant again refused to participate in the proceedings, citing the absence of the content of the police docket of his case as the reason for his non-participation.
The hearing continued with the testimony of the third witness, the head of the Syndicate Sub-Division of the Protected Resources Division, who was based in Khomas Region. He was also the investigating officer of the criminal case lodged against the appellant. He proceeded to give details of the appellant’s alleged role in the criminal matters, pointing out that the appellant was not at the scene where the rhinoceroses were poached, but that he conspired with his co-accused to commit the offences. The witness quoted an unnamed co-accused of having alleged that he had sold and delivered rhino horns to the appellant for some time.
The appellant allegedly encouraged the co-accused to bring him more rhino horns in exchange for money. On the day of the co-accused’s arrest, there were cell phone calls made between the co-accused and the appellant, during which call the former informed the appellant that he had obtained rhino horns. The appellant allegedly replied approvingly, in effect, that they had done well. The witness alleged that data confirming the calls had been obtained from the service provider. Ironically, the witness produced the content of the docket to the inquiry, but as noted earlier the appellant was not in attendance to peruse it.
The Board’s findings and recommendation
In its ruling, the Board noted that as the appellant had boycotted the proceedings, his personal circumstances could not be placed on record. The Board observed that the appellant was charged with the offences in contravention of the Nature Conservation Ordinance 4 of 1975 and the Arms and Ammunition Act. It is noted that he was detained in police custody prior to being released on bail. The Board found that the appellant’s conduct and discipline were rated poor by his Unit Commander, which conduct was also displayed during the inquiry when he failed to co-operate with the Board. The Board ultimately found that the appellant was not fit to remain in the Force and it recommended to the Inspector-General accordingly.
The Inspector-General’s decision
Upon receipt of the Board’s findings and recommendation, the Inspector-General accepted these and by a letter dated 4 October 2021 discharged the appellant. The appellant then exercised his right of appeal to the Minister as he was entitled to do. In his grounds of appeal to the Minister, the appellant contended that the letter of 4 October 2021 by the Inspector-General stated that the appellant had committed a Schedule 1 offence while he had been charged with conspiracy to commit the offence of illegal hunting of specially-protected game; that he had not been convicted of any offence and thus remained innocent, and that his discharge prior to a conviction constituted a violation of the presumption of innocence. He thus demanded an immediate reversal of the discharge action, his reinstatement, and payment of salary and other benefits due to him.
The Minister’s decision
In a wide-ranging written decision, the Minister upheld the Inspector-General’s decision and dismissed the appeal. The detailed consideration of the appeal by the Minister is a model for an administrative functionary providing justification for his decision. The Minister considered the provisions of s 8(1) of the Police Act, noting that the offence the appellant had been charged with was serious and conflicted with his duty to maintain law and order. The Minister also considered that through his conduct, the appellant had brought the name of the Police into disrepute.
The Minister noted that the Police had lost confidence and trust in the appellant, a position that would be an impediment to the effective discharge of his functions as a police officer. Accordingly, the Minister upheld the Inspector-General’s decision.
The review
Despite what was stated in the notice of motion as recorded in the introductory part of this judgment, the overall scope of the review as gleaned from the appellant’s founding affidavit was essentially three-fold. First, the review sought to set aside the Minister’s decision dismissing the appellant’s appeal. Second, it sought to have the Inspector-General’s decision to discharge the appellant reviewed and set aside. Lastly, the review sought a declarator that the decisions of the Minister and the Inspector-General were unlawful, unfair and irrational and at the same time an order setting them aside.
The grounds of review
Seven grounds of review were advanced in the founding affidavit and these form the central plank of the appellant’s arguments in this Court. First, the appellant complained that the inquiry was conducted while he was detained at the Oluno Correctional Facility without authority of a magistrate. Secondly, the appellant argued that he was not treated equally and fairly as other members who faced serious criminal cases were not subjected to a Board of Inquiry prior to conviction. Thirdly, the Board of Inquiry was conducted as if it was a disciplinary proceeding under s 18 of the Police Act. This, the appellant contended, was demonstrated by the consideration that proceedings were subjected to a review under s 18(4) of the Act.
Fourthly, the chairperson of the Board of Inquiry and the pro-forma prosecutor refused to provide relevant and essential documents, including the content of the police docket of the criminal cases opened against him. Fifthly, the dates and places of the hearings were not determined and fixed by the chairperson with the concurrence of the Inspector-General. Sixthly, no sufficient and reliable evidence was led showing that the appellant was not fit to remain as a member of the Police Force. Lastly, the chairperson of the Board of Inquiry committed gross irregularities by neglecting to determine the appellant’s application for recusal and to render a ruling thereon.
The respondents’ answering affidavit was deposed to by the Minister, with the rest of the respondents deposing to generalised confirmatory affidavits, confirming and verifying the content of the Minister’s affidavit ‘insofar as it relates’ to them. They did not set out the events from their own perspectives and outline the decisions they made in the circumstances where the context required this. Instead, they relied on what was said by the Minister in relation to them. It is not surprising that this form of lackadaisical pleading was severely criticised by the appellant in his heads of argument.
The High Court judgment
The High Court properly summarised the appellant’s pleadings and the parties’ legal submissions. It also outlined the legal principles applicable to review applications. Having summarised the content of the record that served before the Minister on appeal, the court concluded its judgment by finding that the Minister’s decision had ‘crossed the bar of fair and reasonable administrative action set by the authorities. It accordingly dismissed the review application. The court did not deal with the many grounds of review advanced before it nor did it demonstrate the application of the legal principles to the facts of the case. The court a quo should have considered and decided each ground of review raised before it as each ground of review, if it succeeded, may well have disposed of the review in the appellant’s favour.
It is not surprising that the court a quo’s handling of the matter has elicited a barrage of criticism from the appellant. It was said to have failed to adjudicate the dispute between the parties and of having paid lip service to the dispute. The appellant has thus argued in this Court that none of the grounds of review advanced in the court below had been determined by the court a quo. The submissions on appeal therefore covered all the grounds of review advanced in the court a quo. It has thus become necessary to consider and decide those grounds in this judgment but before doing so, the applicable legal principles must first be identified before they are applied to the facts.
The Namibian Police Force and its functions
The Namibian Police Force is established under s 2 of the Police Act. The functions of the Force are to preserve the internal security of Namibia; to maintain law and order; to investigate offences or alleged offences; to prevent crime; and protect life and property.1 The power to maintain law and order entails, as a basic requirement, that members of the Police Force only conduct lawful activities. If unlawful acts are conducted or even perceived to be conducted by members of the Force, s 13 of the Police Act is thereby violated and public confidence in the police undermined. The members of the Force are appointed by the Inspector-General and for a person to be appointed as a member of the Force, such person must be a fit and proper person.2
Section 8 of the Police Act provides for the discharge or reduction in rank of members of the Force on account of inefficiency. The section provides as follows:
‘(1) A member may be discharged from the Force or reduced in rank by the Inspector-General if, after enquiry by a board of enquiry in the prescribed manner as to his or her fitness to remain in the Force or to retain his or her rank, the Inspector-General is of the that he or she is incapable of performing his or her duties efficiently: Provided that if a member is still serving his or her probation period in terms of section 4 such a prior enquiry shall not be required, but such member shall be afforded an opportunity to be heard prior to any discharge.
(2) A member who has been discharged from the Force or reduced in rank by the Inspector-General in terms of subsection (1), may in the prescribed manner appeal to the Minister against the decision of the Inspector-General, and the Minister may set aside or confirm such decision.’
It is on the basis of these provisions that the Inspector-General convened a Board of Inquiry to look into the appellant’s fitness to remain in the Force or to retain his rank and the Minister considered the appellant’s appeal. Prior to considering the grounds of review in detail, it is necessary to set out the general principles relating to review to understand the context within which the review application stood to be considered and decided.
Principles relating to review
In review proceedings, a court has limited jurisdiction and supervises administrative action in appropriate cases on the basis of ‘gross irregularity’.3 There is no onus on the body whose conduct is the subject-matter of review to justify its conduct. The onus rests upon the applicant to satisfy the court that good grounds exist to review the conduct complained of.4 The rules relating to judicial proceedings do not necessarily apply to quasi-judicial proceedings.5 The body whose conduct is under review is entitled, subject to its own rules, to determine its own rules of procedure.6 The rules of natural justice do not require a domestic tribunal to apply technical rules of evidence observed in a court of law.7 On review, the court is concerned with irregularities or illegalities in the proceedings which may go to show that there has been a ‘failure of justice’. A mere possibility of prejudice not of a serious nature will not justify interference by a superior court.8
What constitutes reasonable administrative conduct for the purpose of Article 18 of the Namibian Constitution will always be a contextual inquiry and will depend on the facts of each case. As O’Regan AJA, writing for a unanimous court, pointed out in Trustco Ltd v Deeds Registries Regulation Board,9:
‘The concept of reasonableness has at its core, the idea that where many considerations are at play, there will often be more than one course of conduct that is acceptable. It is not for judges to impose the course of conduct they would have chosen. It is for judges to decide whether the course of conduct selected by the decision-maker is one of the courses of conduct within the range of reasonable courses of conduct available.’
It is against the above principles that the appeal stands to be decided and with the summary of the legal principles out of the way, time is now ripe for the consideration of the multiple grounds of review highlighted in the appellant’s heads of argument. It will be recalled that the first ground of review was the complaint that the inquiry was held while the appellant was detained unlawfully. This ground does not appear to have been properly articulated, but if I understand it properly, the contention is that while in custody the appellant was kept at Oluno Correctional Facility for the period between 15 January 2020 and 7 September 2021. He was kept at the correctional facility as if he was a sentenced offender. This was allegedly done without authorisation by the magistrate who remanded him in custody. His detention was then contended to have been unlawful. Therefore, so it was argued, the inquiry should not have taken place while he was detained unlawfully as doing so would offend his right to dignity.
In my respectful view, the consideration that the appellant was kept in custody allegedly without following proper procedures could not have precluded the holding of the inquiry. The alleged unlawful detention is a separate issue that was open to be pursued in another forum if the appellant was so advised or minded. In light of the paucity of information on the alleged unlawfulness of the detention and the fact that review proceedings were not appropriate avenue to vindicate his rights based on alleged unlawful detention, this ground for review cannot succeed.
The next ground for review was that the appellant was not treated fairly and equally by being subjected to a Board of Inquiry as other members of the Force who faced serious criminal cases were allowed to remain in the Force until criminal proceedings had been finalised. The decision whether or not to institute a Board of Inquiry was allegedly only done after the finalisation of the criminal proceedings. The appellant had attached a letter, addressed to the Inspector-General by his erstwhile legal practitioner, containing a list of seven police officers who were allegedly convicted of crimes or had pending cases but had not discharged from the Force.
The list of names is unhelpful as it does not give the circumstances in which those offences and/or crimes were allegedly committed. No details other than the name, the rank, the police station and the offence charged or the member allegedly convicted of are given. This Court is at a loss to make a meaningful comparison between the circumstances alleged in the appellant’s cases and those of the named individuals. Again, because of the paucity of information provided, the review application could not succeed on this ground.
Another ground of review predicated on alleged irregularity is the contention that the Board of Inquiry was conducted as if it was disciplinary proceedings under s 18 of the Police Act. This was said to be the case, because the proceedings were subjected to a review similar to proceedings conducted under s 18 of the Act. There can be no doubt that the Board of Inquiry was convened pursuant to s 8(1) of the Police Act. The Convening Order issued by the Inspector-General and all the other relevant documents expressly referred to the section. This is how everyone involved in the inquiry on the side of the respondents understood the position if the documents forming part of the record of the review application are anything to go by.
The appellant’s ground appears to be based on a section in the Minutes of the Board of Inquiry submitted by the Regional Commander to the Inspector-General headed: ‘Proceedings Board: Review in terms of section 18(4) of the Police Act, 1990 (Act No 19 of 1990) as amended’. In section B of the Minutes the Inspector who perused the minutes stated the following:
‘Comment: Having perused the proceedings record, I confirm that the proceedings were properly and substantially fair. I fully agree with the Chairman that the member is not fit to remain in his rank. Therefore, No 05318, Detective Inspector W. Haipa, should be discharged from the Namibian Police Force in terms of section 8(1) of the Police Act, 1990 (Act No 19 of 1990) as amended.’
The appellant is correct that there is no express provision in the Act requiring the proceedings of the Board of Inquiry in terms of s 8(1) to be subjected to a review by a person appointed by the Inspector-General as is the position in respect of disciplinary proceedings conducted under s 18 of the Act. The appellant’s contention that the Inspector-General misconstrued his powers by subjecting the Minutes of the Board of Inquiry in terms of s 8(1) to an internal review and that in law there was no lawful inquiry cannot, however, be accepted as correct. The Minister was adamant that the inquiry was conducted under s 8(1) read with Regulations 4 and 12 of the Namibian Police Regulations. He emphasised that there was no intention to conduct the inquiry in terms of s 18.
The Convening Order and all the subsequent documents appear to bear out the contention by the respondents that the Inspector-General and the chairperson of the Board of Inquiry were clear about the nature of the inquiry before them. The reference to s 18(4) in Section E of the Minutes of the Board of Inquiry is unfortunate, but it does not detract from the overall consideration that the dramatis personae understood the nature of the inquiry before them and did not misconstrue their powers. This ground too was incapable of having made the review succeed.
The next ground is that the chairperson of the Board and the pro-forma prosecutor committed an irregularity when they failed to provide and discover to the appellant essential documents, including the content of the police docket of the criminal cases opened against him. It will be recalled that when proceedings at the Board of Inquiry resumed on 1 September 2021, after they failed to proceed on 29 June 2021, the appellant insisted that both the chairperson and the pro-forma prosecutor recuse themselves from the proceedings. He on this day made an additional demand to be furnished with the content of the docket.
The record shows that on that day the proceedings started at 11h00. After the appellant made the demands referred to above, at 11h14, the chairperson ruled that the hearing was going to continue in the appellant’s absence as, in the words of the chairperson, ‘[the appellant] manifested himself that he is not going to be present when the state witness is to give evidence’. The chairperson added that the appellant had ‘indeed [left] the hearing at about 11h15 on 01 September 2021’.
The record does not reveal whether the chairperson made an express ruling dismissing the recusal application, but there can be no doubt that the ruling that the hearing was going to continue has the effect of declining the recusal application. It is also not apparent from the record that the chairperson made a ruling on the request for the disclosure of the content of the docket either. What is clear and as observed earlier is that subsequent to the appellant walking out of the hearing, the content of the docket was ultimately introduced in evidence. It is an unsatisfactory feature of the manner in which the chairperson handled this aspect of the hearing that he did not expressly rule on the applications so as to give the appellant a clear indication of an election he may make going forward.
It is clear on the other hand that by walking out of the hearing, the appellant shot himself in the foot. He should have continued to participate and raise whatever he perceived to have been procedural irregularities. It would seem also that from the right explained to the appellant at the beginning of the inquiry ‘to inspect any documents handed in as evidence by the prosecutor’, the procedure at the inquiry was to inspect such documents, ‘handed in as evidence’ and not before. Moreover, as noted when dealing with the legal principles applicable to the review of administrative actions, bodies such as the Board of Inquiry are not expected to apply technical rules of evidence observed in a court of law. While they are expected to observe the basic requirements of natural justice and stay alive to statutory provisions applicable to their jurisdiction and scope of work, they are not bound by the strict rules of procedure observed in courts of law. This observation is particularly apt to the appellant’s complaints of the failure to be provided with the content of the docket and to the chairperson’s neglect to make rulings. This ground of review too cannot be sustained.
Yet another ground of review was that the dates and places of hearing, including the date on which the Board of Inquiry proceeded in the appellant’s absence, were not determined by the chairperson with the concurrence of the Inspector-General or an officer designated by him as required under Police Regulation 12(3). This ground is premised on Regulation 12(3) that states:
‘The person who is to preside at the inquiry must, with the concurrence of the Inspector-General or an officer designated by the Inspector-General, fix the time and place of the inquiry.’
This highly technical ground loses sight of the fact that the Inspector-General had given his concurrence to the fixing of the time and place of the inquiry when he determined in the Convening Order that this be done at the discretion of the chairperson of the inquiry as narrated in para [5] of this judgment. This ground too could not dispose of the review in the appellant’s favour.
The appellant raised other sundry grounds, including the manner in which the respondents pleaded their case; the alleged lack of sufficient and reliable evidence establishing unfitness to remain in the police; the alleged failure by the first and second respondents to properly apply their minds in making their respective decisions, and the Inspector-General discharging the appellant on the alleged mistaken belief that the appellant had committed the offences he was charged with. I have considered all the review grounds and the pertinent submissions advanced by the appellant and on the facts of this case I am not persuaded that any of these would have disposed of the review application in the appellant’s favour.
The Inspector-General is under a statutory duty to regulate discipline and efficient functioning of the Police Force by ensuring that police officers are beyond reproach and serve the public with integrity. He must also ensure that the Police Force is not infiltrated by criminal elements to undermine its effectiveness and efficiency from within its ranks. It is clear that the charges laid against the appellant were serious. The appellant was accused of egregious conduct of acting in cahoots with poachers to illegally hunt an endangered species which he was assigned to protect.
Such alleged conduct is inimical to his status as a senior detective assigned to a most sensitive Unit within the Police Force. His alleged conduct was bound to undermine public confidence in the Police. Given his rank and experience, allegations of possessing firearms without a licence are also capable of bringing the Police Force into disrepute. It goes without saying that a person alleged to have been working in cahoots with poachers to commit illegal hunting of a specially-protected resource cannot be expected to discharge police duties efficiently and effectively. The Board of Inquiry was entirely justified in so finding.
Reading the pleadings in context and as a whole, although there were obvious shortcomings in the manner in which the respondents dealt with some of the appellant’s averments in their pleadings and the handling of certain aspects of the inquiry by the chairperson, the irregularities complained of are not of the type that ordinarily vitiate fairness and result in a failure of justice. I am persuaded, in light of a careful analysis of the context of the courses of conduct complained of, that they were courses of conduct of reasonable decision-makers. The courses of conduct selected by the respondents, namely to recommend the appellant’s discharge, to discharge him, and to dismiss his appeal are courses of conduct within the range of reasonable courses of conduct available to them.
Conclusion
In the circumstances, although the judgment of the court below was bereft of a detailed analysis of the grounds of review and the submissions advanced by the appellant, its ultimate conclusion that the respondents’ decisions had crossed the bar of fairness and reasonable administrative action is correct. It follows that the appeal cannot succeed.
Order
The following order is accordingly made:
(a) The appeal is dismissed with costs.
______________________
SHIVUTE CJ
______________________
DAMASEB DCJ
______________________
SMUTS JA
APPEARANCES
APPELLANT: S Namandje (with him T Iileka-Amupanda)
Of Sisa Namandje & Co Inc
RESPONDENTS J Ncube
Of Government Attorney
1 Section 13 of the Police Act.
2 Section 4 of the Police Act.
3 National Transport Commission & another v Chetty’s Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735E-G (Chetty’s case).
4 Davies v Chairman, Committee of the JSE 1991 (4) SA 43 (WLD) at 47H.
5 Chetty’s case at 734-735A.
6 National Union of Mineworkers & others v Government Mining Engineer & others 1990 (2) SA 638 (W) at 643H.
7 Meyer v Law Society, Transvaal 1978 (2) SA 209 (T) at 213A.
8 Jockey Club of South Africa & others v Feldman 1942 AD 340 at 359.
9 Trustco Ltd v Deeds Registries Regulation Board 2011 (2) NR 726 para 31.
Cited documents 2
Act 2
| 1. | Police Act, 1990 | 245 citations |
| 2. | Arms and Ammunition Act, 1996 | 175 citations |