MAKARAU JP: The applicant was the Attorney-General
for the Republic of
Zimbabwe up to May 2008
when he was removed from that office.. His removal from office was publicly
announced by a notice appearing in the Government Gazette of 16 May 2008.
Following this, a letter was dispatched to him by the Chief Secretary to the
President and Cabinet on 23 May 2008, informing him of the termination of his
services as Attorney-General.
Prior
to the removal of the applicant from office, the respondent and two other
members were appointed to form a tribunal as provided for in section 110 (5) of the Constitution of Zimbabwe to inquire
into the question of and make recommendations on the removal of the applicant
from office for alleged misbehaviour. The respondent has been cited in this application
in his capacity as Chairperson of that tribunal.
It
is common cause that the tribunal recommended that the applicant be removed
from office and after receiving this recommendation, the President acted on it.
On
14 July 2008, the applicant filed this application, seeking to have reviewed
the decision of the tribunal to recommend that he be removed from office for
misbehaviour. In attacking the decision of the tribunal, the applicant alleged
that it was grossly unreasonable and utterly perverse in its defiance of logic
and reason that no tribunal, properly addressing its mind to the facts before
it and to the law, and having regard to the evidence before it, could have
arrived at such a decision. He further alleged that having regard to the
totality of the report of the report produced by the tribunal and its
assessment of the evidence adduced before it, the tribunal was biased against
him. He concludes his attack on the decision of the tribunal by alleging that
the recommendation made by it to the President arose not only out of bias
against him but also as a result of the consideration of improper motives.
The
application was opposed.
Firstly
in opposing the application, it was contended on behalf of the respondent that
the application, which, in terms of Order 33 Rule 259 of the High Court Rules,
must be filed within eight weeks of the termination of the proceedings sought
to be impugned, was filed out of time.
Secondly,
it was further contended that the applicant's application did not comply with the
rules of this court in that it did not state on its face the clear and concise
grounds upon which the applicant sought to have the proceedings of the tribunal
set aside.
Finally,
it was contended that the decision of the tribunal was actually the decision of
the President in terms of s31K (2) of the Constitution and that being the case,
this court has no review jurisdiction over the decision.
At
the hearing of the application, the second objection alleging that the
applicant's application does not state the grounds of review clearly and
concisely on its face was not pursued.
I
return to the first point.
It
is trite that unless the time is extended by the court for good cause shown, an
application for review must be filed within eight weeks of the decision being
impugned. The calculation of time for the purposes of the rules is governed by
common law. The rule is to include the last day when the event occurred and to
exclude the last day. Thus the eight week period is to be reckoned from the
date when the applicant was notified of the fact that the proceedings against
him had terminated. (See Nair v Naicker
1942 TPD 3, at 6ff).
The
issue that falls for decision in this matter is the actual date upon which the
applicant was notified of the decision to terminate his appointment. The
applicant contends that it is the date of the letter from the Chief Secretary
to the President and Cabinet whereas the respondent contends that it is the
date of the publication of the termination in the Government Gazette.
I
have not been advised in argument the legal provision that bears out the
contentions of the respondent in this regard. My attention has not been drawn
to any provision of the Constitution or any other law that requires the
termination of the appointment of the Attorney-General to be published in the
gazette. My own limited research into the matter reveals no such requirement.
It would appear to me that the publication of the termination of the applicant's
appointment was intended to give notice to the public at large that the
applicant was no longer the Attorney –General of the Republic and that the
pubic should be guided accordingly perhaps? In my view, publication of the
termination of the applicant's appointment could not have been meant to constitute
personal notice to the applicant of the fact. Personal notification of the
termination of his appointment was effected through the letter of 23 May 2008.
It
is my finding that that the operative date upon which the eight weeks that the
applicant had to challenge the decision terminating his employment was the date
of the letter advising him of such and not the date of the publication of the
termination in the Gazette.
He
was not out of time in filing the application for review.
Assuming
that I have erred in holding that the eight weeks within which the applicant
had to file his application for review was reckoned from 23 May 2008 and not
from 16 May 2008, I would have condoned the delay by the applicant in this
matter. The delay in filing the application was by four days only and the
importance of this matter is in my view such that it must be determined on its
merits.
I
now turn to the final issue in this application.
The
respondent has argued that the decision of the tribunal to recommend the
termination of the applicant's appointment is actually a decision of the
President and one which this court has no jurisdiction to review.
In
my view, it is not necessary that I decide the matter on this basis.
At
the hearing of the matter, I raised the non- citation of the President as an
issue and requested the parties to address me on whether or not such was fatal
to the applicant's case. The parties
addressed me on this point during the hearing and Advocate Zhou took advantage
of my invitation to the parties at the end of the hearing and has since filed
additional written submissions on the issue.
The
issue that has exercised my mind as a consequence of the non-citation of the
President is whether the recommendation of the tribunal, once acted upon,
continues to have an independent existence and can be impugned without
necessary impugning the action of the President in implementing the
recommendation.
I
will explain in some detail.
It
is common cause that the applicant deliberately chose not to cite the President
as a respondent as he is not seeking reinstatement as the Attorney-General of
the Republic. He wishes his removal from that office to remain extant. In other
words, he does not seek in these proceedings to attack the action of the
President in implementing the recommendation of the tribunal. He argues that
the process of his removal from office consisted of two separate juristic acts,
the inquiry by the tribunal and his actual removal from office by the
President. He is thus seeking to impugn the first and not the second. Therein
lies my difficulty.
It
appears to me that before the tribunal such as the one chaired by the
respondent has made its recommendation to the President, its proceedings may competently
be set aside on review. I must hasten to qualify that I am not expressing this
as a firm position at law as I have not received full argument on the matter
nor does the issue specifically arise before me. It however appears to me that
like the proceedings of any other quasi- judicial body, the proceedings of the
tribunal, if tainted by procedural irregularities recognizable at law as
vitiating such proceedings, may be set aside before they are concluded and
before any recommendation is made. I do not read anything in the Constitution
that would have the meaning of ousting the review jurisdiction of this court
over the proceedings of a tribunal set up under section 110 of the
Constitution.
It
further appears to me, following the reasoning above, that even after
completing its inquiry but before its recommendation is acted upon, the
proceedings and the consequent recommendation of the tribunal can be set aside
on review. In both instances, it appears to me that there may be no need to cite
the President in review proceedings to set aside the decision of the tribunal.
Again I express this view tentatively as the issue does not arise before me. I
simply highlight my views in this regard for the purposes of contrasting the
position after the President has implemented the recommendation and has taken
the action stipulated in the section.
It
presents itself clearly to me however that where the recommendation of the
tribunal has been implemented as required by the Constitution, then the
decision of the tribunal ceases to have any independent status and becomes
imbedded in and forms an integral and inseparable part of the action of the
President.
Section
110 (3) of the Constitution provides:
“Such person shall be removed from office by
the President if the question of his removal from office has been referred to a
tribunal appointed under subsection (5) and that tribunal has advised the
President that he ought to be removed from office for inability to discharge
his functions or for misbehaviour.”
In
my view, the literal and grammatical meaning of the section is that the person
to whom the section applies can only be removed from office by the President if
the President is so advised by the recommendation of the tribunal. Thus, the President
does not take any decision in the matter but is enjoined simply to implement
the recommendation and advice of the tribunal to that effect. The removal of
the Attorney-General from office is thus not a decision that the President can
reach mero motu or against the
recommendation of the tribunal. He
cannot act without a recommendation and advice from a tribunal.
My
reading of the section suggests that the President is bound by the Constitution
to act on the recommendation of the tribunal and once he does that, the removal
of the Attorney –General from office becomes the action of the President albeit
on the recommendations and advice of the tribunal. The two then become
inseparable in my view. While the recommendation and advice can exist on its
own before implementation, once implemented, the two become one. On the other
hand, the implementation cannot exist on its own without the recommendation and
once the recommendation is lawfully set aside, the implementation fails to have
a basis in law and becomes unconstitutional.
Viewed
from another angle, the converse of the above is in my view is to hold that the
President cannot lawfully remove the Attorney-General from office in the
absence of a recommendation to that effect. Any such attempt will be
unconstitutional and thus unlawful.
It
appears to me that the purpose of the section is to protect the Attorney-General
from arbitrary removal from office by the President. I cannot envisage a
stronger provision protecting the office of the Attorney-Genera from arbitrary
decision by the President than this. The
section ties down the President and binds him to only act on the
recommendations of a tribunal of experts. In my view, to read the section in
any other way would be to dilute the protection that the section offers and
thus offend against the clear intention of the legislature.
On
the basis of the foregoing, I find the argument by the applicant untenable. To separate
the proceedings and recommendation of the tribunal from the ultimate act of
terminating the appointment of the Attorney-general is in my view to suggest
that the President can act without such a recommendation of a duly constituted
tribunal of experts as provided for in the Constitution.
It
is therefore my finding that the non-citation of the President in this
application is fatal to the applicant's application. As indicated above, it is untenable
for the applicant to suggest that he can attack the recommendation of the
tribunal only without affecting the act of the President to remove him from
office. The act of removing him from office cannot lawfully exist without the
requisite recommendation and thus to attack one is of necessity to attack the
other. In that regard and to be procedurally correct, the President must be
made a party to the proceedings. This court cannot make an order adversely
affecting the action of the President without affording him the right to be
heard.
In
the result, I make the following order:
The
application is dismissed with costs.
Gula-Ndebele & Partners, applicant's legal practitioners.
Chingeya Mandizira, respondent's legal practitioners.
