Mashudu Netsianda, Senior Court Reporter
A POLICE officer accused of conniving with accomplices to rob the late founder of His Presence Ministries International Apostle Charles Chiriseri’s corpse of $200 following an accident that claimed his life, has lost an appeal against his bosses’ decision to conduct an internal disciplinary hearing.
Tawanda Mawere (32) and his accomplices allegedly searched and stole $200 which was in the pocket of the Apostle Chiriseri.
Mawere was cleared by a criminal court and he is arguing he cannot be tried for the same offence under the Police Act.
Mawere had filed an urgent chamber application at the Bulawayo High Court citing Police Commissioner-General Godwin Matanga and one Superintendent Ngirazi in his capacity as the trial officer, as respondents.
He sought an order barring his bosses from going ahead with the disciplinary hearing after he was charged under the Police Act for misconduct (discrediting the police service) pending the determination of a court application for review under HCR397/17 in which he is seeking an order directing Comm-Gen Matanga to permanently stay the “unlawful” disciplinary hearing.
Bulawayo High Court judge Justice Nicholas Mathonsi said although Mawere was prosecuted in a criminal court and acquitted, he was still liable for disciplinary action in terms of the Police Act.
“The position of our law at the moment clearly states that a police officer who has been prosecuted in the criminal court is still liable for disciplinary action in terms of the Police Act. The Police Act deals with the enforcement of discipline and the first respondent (Comm-Gen Matanga) has the administrative authority to arrest indiscipline within the police force,” he said.
Justice Mathonsi said Comm-Gen Matanga, like any other employer, is entitled to prefer disciplinary charges against Mawere notwithstanding the fact he was acquitted by the criminal court.
“The legislative interventions were designed to make police officers liable under both criminal and civil and disciplinary law for the same conduct. What this means therefore is that the applicant is standing on sinking ground and the application for an interdict must therefore fail as what is lawful cannot be interdicted,” he said.
“In the result, the application for an interdict against the disciplinary trial is hereby dismissed,” ruled Justice Mathonsi.
The judge ruled that the trial should take place in Bulawayo.
Apostle Chiriseri died at the 388KM peg along the Harare-Bulawayo Highway September in 2016 when his vehicle hit a donkey.
Mawere, it had been alleged, connived with another cop Mkhokheli Mpofu (30) who has since died and Mthandazo Rick Dube (34) from the Bulawayo Fire Brigade to steal the late Apostle Chiriseri’s money.
Mawere and Dube were, however, found not guilty of theft and acquitted by Bulawayo magistrate Ms Sithembiso Ncube last year in September.
In papers before the court, Mawere argued that there was no basis upon which he should be brought before a disciplinary hearing after having been cleared by the court.
“I was acquitted and therefore expected that this clears me of all allegations of theft in line with provisions of the law. However, the first respondent (Comm-Gen Matanga) erroneously pushed that I be charged again on the same allegations in terms of the Police Act,” he said.
Mawere argued that the disciplinary court could not make a criminal finding since the criminal court had already acquitted him.
He said the respondents were clearly attempting to try him for theft unlawfully under the cover of the Police Act, arguing that it was a violation of his constitutional right.
The late Apostle Chiriseri was travelling to Bulawayo with his wife Pastor Pertunia Chiriseri who suffered serious injuries and was admitted in hospital for about a month. Mthandazo was said to have retrieved the deceased’s body from the wreckage and searched it.
He then allegedly took $505,95 from the wallet and recorded it in the Famona Fire Brigade log book and Mawere and Mpofu appended their signatures in the presence of Mount Olives International church Pastor Gordon Dube who was one of the first people to arrive at the scene. When Pastor Dube left the accident scene, the trio allegedly connived to steal $200 from the money they had recovered.
The money and the fire fighter’s log book were not recovered. Investigations led to the accused persons’ arrest.
Mpofu died in March last year after he was hit by a motorist who failed to stop at a roadblock near the Apostle Chiriseri’s accident scene.