Ewallet costs police constable job

Mpho Mokwape | Monday November 6, 2023 06:00

The judgement of the CoA bench comes after the Commissioner, Attorney General, chairperson of Botswana Police Council and charperson of Class II Board, Mahalapye, were appealing the September 28, 2022 Francistown High Court decision by Justice Bengbame Sechele, which ruled that the decision by the Commissioner to dismiss Ngala was unlawful. In the judgement, CoA Judge Goemekgabo Tebogo-Maruping said the review application by Ngala had no merit and therefore, ought to have been dismissed by the court a quo.

He explained that the Commissioner of Police acted within the parameters of the prescribed statutory powers conferred upon him under the Police Act and that since he is not a lawyer by training, his choice of words in dismissing Ngala should not be allowed to invalidate a legitimate exercise of power by him. “In any event, the court was in error by reviewing the decision of the Commissioner of Police and setting it aside. The appeal in the circumstances succeeds,” he said. The judge pointed out that he agrees that the judge of the High Court fell into an error because he read and interpreted the dismissal letter completely out of context and divorced it from the entire disciplinary process that ultimately recommended Ngala’s dismissal. He noted that during the disciplinary process, the Board made conclusions and that it was apparent that the Board reached a verdict and never imposed any penalty but recommended one.

Justice Tebogo-Maruping said the decision of the court a quo was that despite the unequivocal decision of the disciplinary Board to recommend a dismissal penalty to the Commissioner, what happened was that the Commissioner dismissed the officer under the review provision with a section of the Police Act. He noted that the judge observed in his judgement that it was because of the choice of words used in the letter of dismissal dated March 18, 2020 and that according to him, the decision to dismiss the officer was in that regard unlawful or beyond his powers for lack of consideration and input by the branch Commander. He concluded that court a quo erroneously drew its conclusion from the wrong interpretation of the dismissal letter saying it is correct that the usage of the words ‘show cause why your punishment cannot be confirmed and you be dismissed from Botswana Police Service’ were inaccurate reflection of the decision maker’s responsibility or mandate at that stage of the proceedings as there was no punishment to confirm but a recommendation to impose the stated sanction. “It is clear that at that stage no punishment had been imposed. What was before the appointing authority at that stage was only a recommendation by the disciplinary board to dismiss the police officer. As indicated, the board had not imposed any penalty or sentence at that stage on December 19, 2019. The penalty was only imposed on March 18, 2020, which was the date on the letter of the dismissal letter. The dismissal was not made retrospective,” the judge said. Meanwhile, the background of the case is that Ngala was employed as a police officer and held the rank of Constable. She was stationed at the Dibete Police Station.

According to court papers, on July 9, 2018 she and another police officer, Constable Dimakatso mounted a speed trap next to Leshibitse junction along the A1 road and a motorist by the name of Keitumetse Madafini was at the time driving a Mazda motor vehicle from a northerly direction towards Gaborone. It was reported that the speed camera operated by Constable Dimakatso indicated that the said motorist Madafini was over speeding and as a result was stopped by Constable Dimakatso and confronted the driver about the speed of which he was later directed to Constable Ngala sitting inside a police patrol vehicle. “The police officer prepared a charge and issued the motorist with a form and the fine payable was indicated as P1, 240.00,” reads the court papers

. It was alleged that after a brief exchange between the motorist and the police officer, the motorist sent the officer (Ngala) the sum of P300 directly to Ngala by e-Wallet and the form under the hand of Ngala was later found to reflect wrong motor vehicle registration numbers and not that of the motorist who had been stopped and so were his cellular phone numbers incorrectly recorded. The officer was then placed under investigation and subsequently charged with 21 counts of neglect of duty and one count of discredit conduct and appeared before a Class II Board. After a fully fledged disciplinary hearing, she was found not guilty and was discharged and acquitted on the 21 counts for the offence of neglect of duty.

She was however, convicted on one count of discredit conduct. In its verdict, the Class II Board was reported to have recommended that she be dismissed from the police service and the record forwarded to the appointing authority in terms of the Police Act. In terms of the Act, the appointing authority is the Commissioner of Police and he ultimately dismissed the officer from the service by a letter dated March 18, 2020.