Factual Background
The respondents are employees of the Public Service
Commission, engaged as law officers or public prosecutors and assigned by the
Public Service Commission to the Attorney-General's Office. They are all
members of the Zimbabwe Law Officers Association (the Association) and were
elected as office-bearers of its Executive Committee in July 2011.
On 18 September 2011, acting under the auspices of the
Zimbabwe Law Officers Association, the respondents, together with a majority of
their colleagues, resolved to embark on a work stoppage in order to redress
their salary-related grievances. On 17 October 2011, the appellant wrote to the
respondents asking them to respond within seven (7) days to various allegations
of unbecoming conduct not befitting a law officer. The respondents purported to
reply to some of the allegations on 24 October 2011 in a letter from the
Zimbabwe Law Officers Association. Subsequently, through a letter dated 26
October 2011, from their current lawyers, the respondents indicated that a
substantive response would be availed in due course. A day later, on 27 October 2011, their lawyers wrote to the
appellant stating that “your inquiry
[sic] or request has no foundation at law” and that “our clients reserve their rights until such
time they are lawfully advised of the legal basis upon which the request is made.”
Subsequently, in
his letter dated 3 November 2011, the appellant took the position that the
respondents had chosen to ignore his request and had therefore admitted all the
allegations levelled against them. He then proceeded to state that “with immediate effect [I] withdraw my
authority and power to prosecute conferred upon me under section 76 of the
Constitution of Zimbabwe.'' He also referred the respondents “to your employer for further processing
according to law.” Thereafter, his deputies directed the respondents not to
carry out their duties as prosecutors, not to deal with any dockets in their
offices, to vacate their respective offices and to hand over their office keys.
The respondents complied with these instructions, under protest, and lodged an
urgent application in the High Court alleging that the appellant had breached
their rights to administrative justice.
Proceedings
in the High Court
The appellant raised two points in limine before the High Court;
(i) The first was that the respondents had no valid cause
of action vis-à-vis the Attorney-General's constitutional authority.
(ii) The second point was that the court lacked
jurisdiction over a dispute that was essentially a labour matter.
The learned judge dismissed both of these preliminary
points.
He held that a representative of the Attorney-General could
only be dismissed lawfully and following due process. Accordingly, the
Attorney-General's actions could be impugned and set aside by a competent
court. He remained autonomous and independent but operating under the law as he
was not above the law. As for its jurisdiction, the court held that the
withdrawal of prosecutorial powers was essentially not a labour issue inasmuch
as its impact would be felt by the general public as well…,.
As to the merits, the court a quo noted that every administrative authority was required, under sections
3 and 5 of the Administrative Justice Act [Chapter 10:28], to act lawfully,
reasonably and in a fair manner, without any material error of law or fact. The
court further noted that under section 11 of the Criminal Procedure and
Evidence Act [Chapter 9:07] the Attorney-General acts through public
prosecutors who represent him and are subject to his instructions. However, the
withdrawal of his instructions did not terminate their relationship and they
remained employed by the Public Service Commission as prosecutors until they
were discharged.
The court held that the appellant committed a material
error of law by withdrawing his authority to prosecute and referring the
respondents to the Public Service Commission for further processing according
to law. The proper procedure was to suspend the respondents pending a full
inquiry, leading either to their discharge from the Public Service Commission or
their full reinstatement. Accordingly, the letter of 3 November 2011, from the
appellant to the respondents, as well as all the consequential instructions
issued by his deputies were declared
to be null and void and were set aside. The court ordered that the respondents
should be restored to their positions without any loss of rights….,.
Grounds of Appeal
The grounds of appeal herein are confined to the
declaratory orders of the court a quo nullifying
the appellant's letter and the consequential instructions. They do not
challenge or impugn the decisions of the court pertaining to its jurisdictional
competence or the reviewability of the actions of the Attorney-General qua administrative authority. Indeed, at
the hearing of this matter, counsel for the appellant, unreservedly accepted
this inherent power of review vested in the superior courts. I have no doubt
that this position is correct and incontrovertible. The only possible
qualification is that the courts cannot usurp the functions of the
administrative authority and must limit the exercise of their review powers to
ensuring that the authority's conduct is legal, rational and procedural, viz. in accordance with due process.
See Affretair (Pvt) Ltd & Another v MK Airlines (Pvt)
Ltd 1996 (2) ZLR 15 (S)…, and the
more recent decision of this Court in Telecel Zimbabwe (Pvt) Ltd v
Attorney-General N.O. SC01-14…,.
The first ground of appeal is that the court a quo erred at law in nullifying the
appellant's letter withdrawing the delegated prosecutorial authority given to
the respondents. The second ground is that the court erred at law in nullifying
the decision of the Deputy Attorney-General and the Acting Director of Public
Prosecutions to stop the respondents from carrying out their prosecutorial
duties and using their offices.
The appellant prays that the order of the court a quo be set aside and substituted with an
order dismissing the application before it with costs.
Relationship
between Attorney-General and Public Prosecutors
It is common cause that the respondents, as is the case
with all public prosecutors, are appointed by the Public Service Commission and
not by the Attorney-General. It is the Public Service Commission that regulates
their terms and conditions of service, including the imposition of disciplinary
measures and the termination of their employment. However, insofar as concerns
the day-to-day performance of their prosecutorial functions, they are subject
to the direction and control of the Attorney-General. In effect, their status is analogous to that of an employee who
is engaged by one employer but is temporarily, or periodically, seconded to
another. During the tenure of such secondment, he remains susceptible to discharge
by the former but is required to comply and carry out his duties in accordance
with such instructions as he may receive from the latter.
It is also common cause that section 76(4) of the former
Constitution vests the Attorney-General with the power to prosecute criminal
matters throughout Zimbabwe. Additionally, section 76(5) empowers the
Attorney-General to delegate his prosecutorial
authority.
What is contentious in casu is the modality by which he confers that authority and then
withdraws the same as may become necessary.
Counsel for the respondents submits that the
Attorney-General can only issue public prosecutors with certificates to
prosecute but cannot terminate their functions as prosecutors. The issuance of
such certificates is effected as a matter of practice rather than as a
requirement of the law. Since prosecutors are appointed by the Public Service
Commission to work within the Attorney-General's Office, the certificates per
se do not confer any prosecutorial
status and therefore their withdrawal does not have any legal consequence.
Counsel for the respondents further contends, albeit without any affidavit or other evidence
to that effect, that none of the respondents ever received individual
certificates to prosecute.
Counsel for the appellant accepts that the Attorney-General, unlike the Director of Public
Prosecutions, is specifically excluded from the Public Service. Thus, he is not
a Head of Department for disciplinary purposes and therefore cannot suspend any
miscreant prosecutor. Nevertheless, all prosecutors are delegates of the
Attorney-General and that status is specially conferred by certificates to
prosecute. He was unable to indicate whether or not the respondents themselves
were given such certificates.
Having regard to the relevant provisions of the Criminal
Procedure and Evidence Act [Chapter 9:07], I am inclined to agree with the
position taken by counsel for the appellant.
By virtue of section 11(1) of the Criminal Procedure and
Evidence Act [Chapter 9:07], all public prosecutors are charged with the duty
of prosecuting in the magistrates courts to which they are attached. Proof of
such delegation is ordinarily evidenced by a certificate to prosecute signed
and issued by the Attorney- General. This is clearly recognised in section
180(1)(g) of the Criminal Procedure and Evidence Act [Chapter 9:07] which
enables every accused person to challenge the authority of any prosecutor
appearing at his trial, by pleading that he has no title to prosecute. It follows that a certificate to prosecute
is a legal requirement that extends to all public prosecutors. It constitutes
formal evidence of the Attorney- General's delegated authority to prosecute and
its withdrawal or expiry carries the legal effect of terminating that authority.
As I have already indicated, section 76(5) of the
Constitution empowers the Attorney-General to exercise his prosecutorial
functions under section 76(4) “through other persons acting in accordance with
his general or specific instructions.” This position is replicated in section
11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] which
designates public prosecutors as “representatives of the Attorney-General and
subject to his instructions.” What emerges, unequivocally, from these provisions,
is that public prosecutors carry out their prosecutorial duties as delegates of
the Attorney-General and in that capacity are subject to his general or
specific instructions. To put it differently, the Attorney-General, as the
principal repository of prosecutorial authority, is empowered to supervise,
direct, and instruct every public prosecutor in the performance of his
functions, and, conversely, the latter is required to obey and comply with
every lawful order or instruction given by the former. In the event that a
prosecutor fails to carry out his mandate in accordance with any such order or
instruction, the Attorney-General is entitled, subject to the dictates of due
process, to withdraw the prosecutorial authority delegated to that prosecutor.
This must be so not only as a matter of administrative
efficacy but also as a matter of legal principle.
In terms of section 114(1a) of the Constitution, every
power conferred by the Constitution includes any other powers that are
reasonably necessary or incidental to its exercise. Section 24(1) of the
Interpretation Act [Chapter 1:01] provides to the same effect in relation to
every power to do any act or thing conferred upon any person or authority under
any enactment. In addition, there is the time-honoured common law principle
that the power to do or create a particular thing ipso jure encompasses and carries with it the power to undo or abolish that
thing. In the words of KOTZE CJ in Brown v Leyds N.O. (1897) 4 OR 17…,:
“The general rule
is that the same authority, which introduces anything, may also abolish it, and
usually in the same manner. Cuius est instituere eius est abrogare; and
naturale est quod libet dissolvi eo modo quo
ligatur.”
This general proposition was affirmed in Blankfield v
Mining Commissioner of Barberton 1912
TPD 553…, (and by implication on appeal at 558- 559); and in Holden v Minister
of the Interior 1952 (1) SA 98 (T)…,.
One final aspect raised by counsel for the respondents concerns the fact that a prosecutor who
is divested of his prosecutorial functions can no longer be deployed as a
prosecutor.
While this may be inevitable, it is a matter that falls
outside the Attorney-General's remit and squarely within the purview of the Public
Service Commission. The latter may opt either to institute disciplinary
measures against its officer or redeploy him to such other duties as he may be
deemed suitable for and qualified to perform.
The
Requirements of Due Process
One of the fundamental precepts of natural justice,
encapsulated in the maxim audi alteram partem, is the right of every person to
be heard or afforded an opportunity to make representations before any decision
is taken that might impinge upon his rights, interests or legitimate
expectations. This precept of the common law forms part of the larger duty
imposed upon every administrative authority to act legally, rationally and
procedurally. See Telecel Zimbabwe (Pvt) Ltd v Attorney-General N.O. SC01-14…,.
That common law duty is now codified in section 3(1)(a) of
the Administrative Justice Act [Chapter 10:28] as the duty to “act lawfully,
reasonably and in a fair manner.” The obligation to act in a fair manner is
further expanded in section 3(2) of the Administrative Justice Act [Chapter
10:28] to require the giving of “adequate notice of the nature and purpose of
the proposed action” and “a reasonable opportunity to make adequate
representations” as well as “adequate notice of any right of review or appeal
where applicable.”
It is this statutory duty, in particular, that the
respondents invoked in the court a quo to
challenge the appellant's actions presently under consideration.
There can be no doubt that the Attorney-General is an
administrative authority as defined in section 2 of the Administrative Justice
Act [Chapter 10:28] and that he is subject to the requirements of section
3(1)(a) as read with section 3(2) of the Administrative Justice Act [Chapter
10:28].
The crisp question for determination in casu is whether the appellant complied with
those requirements by withdrawing, as he did, the authority to prosecute
conferred upon the respondents.
In his first missive to each of the respondents, dated 17
October 2011, the appellant took the view that the respondents had failed to
conduct themselves with the decorum and integrity expected of public
prosecutors. He proceeded to narrate what he regarded to be their “indecorous
conduct”, as illustrated in various media reports, and demanded an explanation,
in writing, showing cause why he should continue reposing his confidence in
them as his representatives practising under his certificate.
In their reply, through the Zimbabwe Law Officers
Association, on 24 October 2011, the respondents did not address the specific
allegations of misconduct against them. Instead, they took a broad brush
approach by stating that their grievance was a labour issue relating to salary
discrepancies and that they had no control over utterances made in the media.
Subsequently, on 26 and 27 October 2011, their lawyers wrote to the appellant,
initially indicating that they would tender their substantive response to each
allegation, but then pointedly disputing the legal basis of the appellant's request.
Having been denied any meaningful response, the appellant
forwarded his second letter, of 3 November 2011, addressed to each of the
respondents, in which he concluded that by ignoring his request for a response
within seven (7) days they had admitted all the allegations contained in his
earlier letter. He further declared that he could not rely on them as
prosecutors and accordingly withdrew their prosecutorial authority with
immediate effect.
It is evident from the above correspondence that the
respondents had opted, apparently upon advice from their lawyers, to defy the
appellant's authority and that he, in turn, was affronted and chagrined, quite
understandably so, by that open display of defiance. It is also clear that an
employer, whether under a contract of employment or under a secondment
arrangement, has the common law right to summarily dismiss an employee who is
insubordinate or wilfully disobedient to the extent of undermining or
destroying the very core and substratum of their relationship. See National
Foods Ltd v Masukusa 1994 (1) ZLR 66
(S)…,. Nevertheless, it seems to me that the appellant reacted with undue haste
in casu by immediately withdrawing
the respondents' prosecutorial mandate. I take this view for the following reasons;
The allegations against the respondents, as captured in the
appellant's first letter to them, are essentially twofold:
(i) That they incited their colleagues to embark on
collective job action and refused to call off the illegal strike; and
(ii) That they placed key blockers on their office doors to
bar other prosecutors from entering the offices.
Firstly, all of these allegations were premised on
miscellaneous media reports attached to the letter. Secondly, they were
directed against the respondents generally and not individually. Finally, and
more critically, there was no reliable proof of their veracity or any admission
by the respondents that they were guilty of the conduct alleged.
In these circumstances, it seems that the appellant took a
massive leap from the inchoate letters penned by the respondents and their
lawyers to the conclusion that they had admitted all the allegations against
them. The appellant made no attempt to substantiate the allegations or have
them investigated by means of disciplinary inquiry, as he could have done by
instructing the Director of Public Prosecutions, qua Head of Department, to institute disciplinary proceedings in terms
of the applicable Public Service Regulations.
As for the unquestionably insurbodinate conduct of the
respondents, the appellant was perfectly entitled to withdraw their prosecuting
authority as an appropriate and necessary disciplinary measure. However, he
could only do so in accordance with the governing tenets of natural justice
embodied in section 3 of the Administrative Justice Act [Chapter 10:28]. The
respondents are professionals engaged in the business of prosecuting criminal
cases on behalf of the State. They have a legitimate expectation of continuing
to prosecute in that capacity and cannot be deprived of the right to do so
without just cause. What the appellant should have done, at the very least, is
to write to each of the respondents, identifying with greater particularity the
specific allegations levelled against them individually, indicating that their
open defiance of his authority justified the withdrawal of their prosecutorial
mandate, and warning that he intended to withdraw that mandate unless they were
able to persuade him otherwise.
In the event, the unavoidable conclusion is that the
appellant acted precipitately and in breach of the requirements of section 3 of
the Administrative Justice Act [Chapter 10:28]. I take the view that a strict
standard of compliance with those requirements was expected of him in his
dealings with the respondents, particularly in his capacity as the legal
supremo of the Government at the relevant time.
In the result, the unanimous decision of the Court is that
the order granted by the High Court cannot be faulted and must be upheld,
albeit for reasons that differ to some extent from those expounded by the
learned judge a quo….,.
It is accordingly ordered that the appeal be and
is hereby dismissed with no order as to costs.
