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Comm-Gen Chihuri

Daniel Nemukuyu Senior Court Reporter—

The Zimbabwe Republic Police has lost its bid to oppose the retirement of an officer on the basis that he was bonded to the organisation when he was only granted study leave, but financed his own studies at the University of Zimbabwe.Assistant Inspector Tymon Tabana, a lawyer who was attached to the ZRP’s legal services department, properly gave three months’ notice for retirement after serving a pensionable 20 years in the police force.

However, the authorities did not authorise his retirement on the basis that he had been granted an opportunity to study law between 2010 and 2013.

According to the police, Asst Insp Tabana was to serve the organisation until 2021 despite the fact that he financed his own studies at the university.

On November 1 this year, Asst Insp Tabana stopped coming to work as per his retirement notice, but the police stalked him and threatened to arrest him for deserting the force.

He rushed to the High Court seeking an interdict against the ZRP.

Advocate Thabani Mpofu, instructed by Mr Admire Rubaya of Rubaya and Chatambudza represented Asst Insp Tabana while Advocate Sylvester Hashiti argued on behalf of the police.

Justice David Mangota on Tuesday ruled that since the police did not pay Asst Insp Tabana’s fees, the bonding agreement becomes questionable and invalid.

“It was evident, from the foregoing, that the validity or otherwise of the contract was being put into question.

“It was, accordingly, ill-advised for the respondents to have insisted that the contract was valid and to hold the applicant to it. It was evident that the bonding of the applicant was premised upon a condition precedent, which the police did not fulfil.

“The police could not, on the mentioned basis, hold him to the contract,” the judge ruled.

The judge barred the police from arresting Asst Insp Tabana or forcing him to continue working for the ZRP.

“The respondents be and are hereby ordered to forthwith stop forcing the applicant to perform work with the Zimbabwe Republic Police.

“The respondents be and are hereby interdicted from arresting and detaining the applicant or interfering with his liberty in any way.

“The bonding agreement, which the applicant and the second respondent signed in 2010, be and is hereby declared unenforceable,” the operative part of the judgment reads.

Justice Mangota said the Commissioner-General of police, in terms of the law has no power to decline retirement of a person who has reached the retirement age.

“The respondent’s assertion that was to the effect that the applicant could not retire until the second respondent (Commissioner-General) allowed him to do so was misplaced.

“The applicant’s retirement was in terms of Section 22 (1) of the Act, which does not confer any power on the second respondent to allow or refuse an officer who is in the category of the applicant from retiring,” said Justice Mangota.

Another High Court judge Justice Davison Foroma, presided over another case involving the same parties a few months ago and ruled as follows:

“The provisions of Section 22(1) (of the Police Act) do not give the Commissioner-General the power to refuse a member the right to proceed on retirement at the end of the three months period.

“In view of the right of the retiring in terms of Section 22(1) to proceed to retire at the end of notice, any purported exercise of a power to decline or restrict such member’s right to proceed on retirement at the end of the notice period would be ultra vires the Act and thus null and void.”