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-a-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 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 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 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.
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 section 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 section 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, 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 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 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 pp20-22 of the cyclostyled judgment.
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
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 section 2 of Act and that he is subject to
the requirements of section 3(1)(a) as read with section 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:
(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 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 section 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 section 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, respondents legal
practitioners
