PATEL JA: The appellant in this matter is the former Attorney-General of Zimbabwe. On the effective date of the new
Constitution, i.e. when that
Constitution came into force in its entirety, being 22 August 2013, he became
the Prosecutor-General, and his former title was reserved for the new
Attorney-General, who retained the non- prosecutorial functions of that office.
The respondents are public prosecutors tasked to perform
prosecutorial functions at different stations in the country. They were
employed as such by the Public Service Commission (the Commission) which, on
the aforesaid effective date, was renamed as the Civil Service Commission.
For the purposes of this appeal, I shall refer to the
relevant functionaries and authorities by their erstwhile designations. This is
both necessary and convenient as the events which form the subject-matter of
this appeal occurred in 2011, while the judgment appealed against was handed
down on 7 March 2012. Moreover, the provisions of the Criminal Procedure and
Evidence Act [Chapter 9:07] that are
relevant to the determination of this appeal have not as yet been realigned to
the provisions of the new Constitution and continue to refer to the
Attorney-General as the prosecuting authority.
Factual Background
As indicated above, the respondents are employees of the
Commission, engaged as law officers or public prosecutors and assigned by the
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
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 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 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.
The first was that the respondents had no valid cause of action vis-à-vis the
Attorney-General's
constitutional authority. 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. Moreover, the High Court has the
requisite jurisdiction to issue a declarator, whereas this power was beyond the
competence of the Labour Court.
As to the merits, the court a quo noted that every administrative authority was required, under
ss 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 s
11 of the Criminal Procedure and Evidence Act 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 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 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 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.
With respect to costs, the court found that the
respondents had followed the wrong procedure and had wrongly cited the
appellant and his deputies in their personal capacities. Therefore, they were
not entitled to costs and each party was ordered to bear its own costs.
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, Mr Mutangadura, 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) at 21-22, and the more recent
decision of this Court in Telecel Zimbabwe
(Pvt) Ltd v Attorney-General
N.O. SC 1/2014 at pp. 22-23 of the cyclostyled judgment.
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 Commission and not by the
Attorney-General. It is the 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 s 76(4) of the former
Constitution vests the Attorney-General with the power to prosecute criminal
matters throughout Zimbabwe. Additionally,
s 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.
Ms Mtetwa, 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 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. Ms Mtetwa further contends, albeit without any affidavit or other evidence to
that effect, that none of the respondents ever received individual certificates
to prosecute.
Mr Mutangadura 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, I am inclined to agree with the position taken by
Mr Mutangadura. By virtue of
s 11(1) of the Act,
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 s 180(1)(g) of the Act 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, s 76(5) of the Constitution
empowers the Attorney-General
to exercise his prosecutorial functions under s 76(4) “through other persons acting in accordance with his general or specific instructions”. This
position is replicated in s 11(1) of the Criminal
Procedure and Evidence Act 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 s 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 at 39:
“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 at 555 (and by
implication on appeal at 558- 559); and in Holden
v Minister of the Interior 1952
(1) SA 98 (T) at 101-102.
One final aspect raised by Ms Mtetwa 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 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 the Telecel case (supra) at pp. 20-22 of the
cyclostyled judgment. That common law duty is now codified in s 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 s 3(2) of the Act 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 s 2 of Act and that he is subject to the
requirements of s 3(1)(a) as read with s 3(2). 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 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 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) at 69. 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: that they incited their
colleagues to embark on collective job action and refused to call off the
illegal strike; and 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 insubordinate 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 s 3 of the Administrative Justice Act. 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 s 3 of the
Administrative Justice Act. 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. As regards
costs, I do not think that the appeal launched in casu is so hopelessly unmeritorious as to warrant a decision to
penalise the appellant with an order for costs. Moreover, the appeal has
afforded the opportunity for this Court to clarify certain critical aspects of
the relationship between the Attorney-General (now the Prosecutor-General) and
his delegates.
It is accordingly ordered that the appeal be and is
hereby dismissed with no order as to costs.
MALABA DCJ: I agree.
GARWE JA: I agree.
National Prosecuting Authority, appellant's legal practitioners
Mtetwa
& Nyambirayi, respondent's legal practitioners
