REPORTABLE (ZLR)
(26)
Judgment
No. SC 30/07
Civil Application No.
229/06
(1) RICKY
NELSON MAWERE (2) DAVID NYABANDO v
THE CENTRAL
INTELLIGENCE ORGANISATION
SUPREME COURT OF
ZIMBABWE
CHIDYAUSIKU CJ,
SANDURA JA, CHEDA JA, ZIYAMBI JA & MALABA JA
HARARE, JANUARY 25 &
OCTOBER 15, 2007
O Takaendesa,
for the applicants
C Muchenga, for
the respondent
SANDURA JA: This application was filed in terms of s 24(1)
of the Constitution of Zimbabwe (the Constitution).
The applicants seek a
declaratory order stating that the delay by the respondent (the
C.I.O.) in dealing with their suspension
from duty for more than
eight years was a violation of their right to a fair hearing within a
reasonable time guaranteed by s 18(9)
of the Constitution.
The background facts
in the matter are as follows. At the relevant time the applicants
were employed by the C.I.O., an organisation
established in the
Presidents Office for the protection of national security. In
October 1998 they were suspended from
duty.
The letter of
suspension, received by the first applicant (Mawere) on
10 November 1998, in relevant part, reads as follows:
Chief Transport Officer, Ricky N Mawere, you are
hereby notified that with effect from 06 October 1998, you
are
suspended from all duties that you would normally be required to
perform as a member of the Organisation.
During the period of
your suspension you will receive your normal salary.
A Board will be
convened in due course to look into allegations that you committed an
act of misconduct as defined in the Second Schedule
of the Public
Service (Disciplinary) Regulations 1992. The act of misconduct is
reflected in the Audit Report on Phase One Construction
Projects.
The second applicant
(Nyabando) received a similar letter.
What happened after
the applicants had been suspended from duty is set out by Mawere in a
letter addressed to the Director of Administration
(the Director)
and dated 15 February 1999 (the year should be 2000). The
letter, in relevant part, reads as follows:
Your good office is requested to kindly consider review of my
suspension from duty without pay. Suspension was effected in
October
1998 to (the) present date. I was on full salary up to
(the) end of January 1999.
I appeared before a
Disciplinary Board in January 1999. I was again suspended, this
time without pay until this date.
In January 1999 when I
appeared before the Board, I was told that I would receive a
Questionnaire in two weeks time and answer to
the allegations of
Fraud. I never received anything from C.I.O. Headquarters till this
date. Its now a period (of) over a
year whilst waiting for the
Questionnaire to answer.
In March 1999 I was
detained by C.I.D. Frauds to face fraud charges reported to the
Police by (the) Central Intelligence Organisation.
I was granted
bail of $10 000.00, the following day. I have been on remand
for almost a year. On 28 January 2000,
my lawyer successfully
applied for Refusal for further Remand (sic). He was granted
the order on 31 January 2000.
I submit that I have
been on suspension for over a year, a period I consider unreasonable
and unrealistic
.
On 21 February
2000 the Director replied as follows:
Please be advised that your continued suspension is in terms of
Public Service Regulations, 2000 (S.I. 1 of 2000).
This minute also serves
as notice that in terms of the Regulations, your suspension remains
in force until such time that the criminal
investigation into your
alleged fraud case are concluded, and or you are convicted or
acquitted of the criminal charge.
The Director-General
has also reiterated that no salary shall be paid to you because the
allegation levelled against you involves
financial prejudice to the
Government.
Thereafter, on
13 November 2000 Mawere wrote to the responsible Minister
requesting him to review the suspension and order
his reinstatement.
On 22 February
2001 the Minister replied as follows:
1. Reference is made to your letter dated 13 November 2000,
seeking a review of your suspension from work.
2. Please be advised
that the review of your suspension will be carried out after the
hearing of your case and others in the High
Court. We understand
the case will be heard in May 2001.
Subsequently, on 29 December 2005 Mawere received a written
notification of the setting up of a Board of Inquiry (the Board)
which, in relevant part, reads as follows:
You are hereby notified that in terms of Public Service
(Disciplinary) Regulations of 2000, a Board of Inquiry has been
convened
to inquire into your contravention of Paragraph 8 of
the First Schedule (Section 2) which states:
Theft of, or failure to take reasonable care of or account for, or
making improper or unauthorised use of, public moneys or the
moneys
of any statutory body.
The Board will assemble
in the 9th Floor boardroom, Chaminuka Building, on
13 January 2006 at 1030 hours.
The Inquiry will be
based upon the allegations that you were involved, together with
Lovemore Itai Mukandi, in a financial scum (scam)
from the C.I.O.
Construction Projects which resulted in the Organisation suffering
financial prejudice to the tune of $16 972 784.32.
On 13 January
2006 Mawere and his lawyer went to the venue where the Board was to
sit and arrived there at 10 am. At
11.35 am they were
informed that the hearing had been cancelled and that they would be
notified about a new date in due course.
They were later advised
that the hearing would be on 6 July 2006.
At the hearing before
the Board Maweres lawyer raised several points in limine,
the most important of which was that Maweres right to a fair
hearing within a reasonable time had been violated. The Board
found
all the points to be without merit and dismissed them.
That decision
prompted Maweres lawyer to ask the Board to stop the hearing in
order for him to file this application in terms
of s 24(1) of
the Constitution. The request was granted and the application was
subsequently filed on 9 August 2006.
At the hearing of the
application, the original draft order was amended in such a way that
what the applicants now seek is the declaratory
order indicated at
the beginning of this judgment.
Section 18(9) of
the Constitution, which the applicants allege was violated in
relation to them, reads as follows:
Subject to the provisions of this Constitution, every person is
entitled to be afforded a fair hearing within a reasonable time
by an
independent and impartial court or other adjudicating authority
established by law in the determination of the existence or
extent of
his civil rights or obligations.
The question which
immediately arises for consideration is whether the Board was covered
by the expression court or other adjudicating
authority
established by law.
In my view, the Board
was certainly not a court. The only issue is whether it was covered
by the expression other adjudicating
authority established by
law.
The word law is
defined in s 113(1) of the Constitution as follows:
law means
(a) any provision of this Constitution or of an Act of Parliament;
(b) any provision of a
statutory instrument; and
(c) any unwritten law
in force in Zimbabwe, including African customary law;.
When the C.I.O. set up the Board it purportedly acted in terms of
the Public Service Regulations, 2000, published in Statutory
Instrument 1 of 2000 (the Regulations). The Regulations
were made by the Public Service Commission (the P.S.C.)
in
terms of s 31 of the Public Service Act [Cap 16:04]
(the Act), with the concurrence of the Minister of Public
Service, Labour and Social Welfare.
In my view, the
Regulations do not apply to the applicants because the Act does not
apply to the members of the C.I.O.. In this
regard, s 14(e) of
the Act provides as follows:
14 Constitution of Public Service
Subject to section 113
of the Constitution, the Public Service shall consist of all persons
in the service of the State, other
than
(a) (d)
; or
(e) members of any organisation established in the Presidents
Office for the protection of national security;.
And s 113(1) of the Constitution, in relevant part, reads as
follows:
Public Service means the service of the State but does not
include
(a) (c)
;
(d) service which this Constitution or an Act of Parliament provides
shall not form part of the Public Service.
It is, therefore,
clear beyond any doubt that the applicants, being members of the
C.I.O., were not part of the Public Service and
were not governed by
the Act and the Regulations. Accordingly, the disciplinary
procedure set out in the Regulations did not apply
to them.
Consequently, the
Board set up by the C.I.O., purportedly in terms of the Regulations,
was not covered by the expression other
adjudicating authority
established by law in s 18(9) of the Constitution, as it was
not set up in terms of any law governing
the members of the C.I.O..
I now wish to
consider the effect of para 2 of the contract of employment
between the C.I.O. and the applicants. It reads
as follows:
2. Your conditions of service are in general aligned to the
provisions of the following legislation:
a. f.
;
g. Public Service
(Officers) (Discharge and Misconduct) Regulations, 1979, published in
Statutory Instrument 561 of 1979 (now
replaced by the Public
Service Regulations, 2000, published in Statutory Instrument 1
of 2000).
In my view, the
effect of the above provision was that the C.I.O. and the applicants
agreed that the disciplinary procedure applicable
to the applicants
would, to a large extent, be the same as or similar to the
disciplinary procedure set out in the Regulations for
the members of
the Public Service.
However, that did not
mean that s 14(e) of the Act had been amended and that the
employment contract had made the applicants
part of the Public
Service. That could only have been done by means of an Act of
Parliament.
In addition, the
above provision did not mean that the disciplinary authority (i.e.
the Board), set up by the C.I.O. for the purpose
of determining the
allegation of misconduct against the applicants, was a disciplinary
authority established by law, because the
Board was not set up in
terms of any law.
As the Board was not
an independent and impartial court or other adjudicating authority
established by law, the right claimed
by the applicants in terms
of s 18(9) of the Constitution did not exist, and the
application cannot succeed.
That being the case,
all the other issues debated in this application fall away.
Finally, as far as
costs are concerned, my view is that there should be no order as to
costs because the matter has been determined
on the basis of a point
not raised by the parties.
In the result, the
application is dismissed with no order as to costs.
CHIDYAUSIKU CJ:
I agree
CHEDA JA: I
agree
ZIYAMBI JA:
I agree
MALABA JA: I
agree
Kwenda & Associates, applicants' legal practitioners
Civil Division of
the Attorney-Generals Office, respondent's legal practitioners
