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Leopold Mudisi and Patrobs Dube and Dereck Charamba and Musekiwa Mbanje and Mehluli Tshuma v Johannes Tomana and Florence Ziyambi and Tawanda Zvekare
HH 121-12HH 121-122012
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HH 121-12
HC 11251/11
LEOPOLD MUDISI
and
PATROBS DUBE
and
DERECK CHARAMBA
and
MUSEKIWA MBANJE
and
MEHLULI TSHUMA
versus
JOHANNES TOMANA
and
FLORENCE ZIYAMBI
and
TAWANDA ZVEKARE
HIGH COURT OF ZIMBABWE
HLATSHWAYO J
HARARE, 7 March 2012
OPPOSED APPLICATION
Mrs B. Mtetwa,for the appellants.
Mr C. Mutangadura with Mr. N. Mutsonziwa, for the respondents.
HLATSHWAYO J: The applicants are employees of the Public Service Commission
(PSC) employed as either law officers or public prosecutors and assigned to the prosecution
department of the Attorney-General’s Office. The applicants are also executive committee members
of the Zimbabwe Law Officers Association (ZILOA), whose membership at a meeting held on 18
September 2011 resolved to embark on a work stoppage from 4 October, 2011 if certain grievances
were not met by the PSC. The work stoppage did take place as resolved, and some of the applicants,
as spokespersons of the association, gave media interviews on behalf of their membership during the
work stoppage.
The 1st respondent, the Attorney-General (A-G), addressed a letter dated 17 October, 2011 to
the applicants, requiring each one of them to respond to charges and allegations set out therein, thus:
“I hereby write to you requesting for written reasons to justify your conduct. I am satisfied
that the conduct I refer to below admits of the conclusion that you have on dates that appear
in each of the publications attached to this letter failed to conduct yourself with the decorum
and integrity expected of a Public Prosecutor.
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From the publications I have attached hereto, it is apparent that in common purpose with each
other, Leopold Mudisi, Petrobs Dube, Musekiwa Mbanje, Dereck Charamba and Mehluli
Tshuma actively participated in the incitement of Law Officers to embark on an industrial
action purportedly based on salary discrepancies between the Law Officers and the
Magistrate. I hereby narrate the history of your indecorous conduct in sequence…
After the Public Service Commission revealed the correct salaries earned by prosecutors and
Law Officers you conditionally called off the illegal strike. Given the above exposition of the
facts surrounding your unlawful actions I am of the firm belief that the above rendition of
facts justifies me demanding an explanation in writing showing cause why I must continue to
reposing my confidence in you as my representative practising under my Certificate.
You are called upon to deliver your response to me within seven days of service upon you of
this letter.”
The applicants declined to respond individually but under the auspices of ZILOA in
three brief paragraphs addressed some of the allegations. However, in a final letter penned
by their lawyers the applicants declined to cooperated with the Attorney General, thus:
“We have considered the powers conferred upon your office by the Constitution together with
our client’s contract of employment including the governing legislation. We have come to the
conclusion that your inquiry or request has no foundation at law. To that end, our clients
reserve their rights until such time they are lawfully advised of the legal basis upon which the
request is made.”
The Attorney-General then took the view that by ignoring his request for written
responses, the applicants were admitting to all the allegations, and accordingly withdrew his
authority to prosecute from the applicants, as follows:
“My constitutional mandate and duty to uphold the Constitution of Zimbabwe and the laws of
Zimbabwe and in particular my duty to administer criminal justice, does not envisage a
situation in which I would rely on a prosecutor of the disposition you admit to.
I accordingly hereby and with immediate effect withdraw my authority and power to
prosecute conferred upon me under section 76 of the Constitution of Zimbabwe.
I also hereby refer you to your employer for further processing according to law”
In truth, though, the applicants did proffer some response, however curt, to most of the
allegations in their collective response under the auspices of ZILOA. However, no response or
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comment whatsoever was made by the applicants pertaining to the most serious charge of “physically
blocking access to offices and courts”. In implementing the Attorney-General’s withdrawal of
authority to prosecute, the 2 nd and 3rd respondents have directed applicants not to carry out their duties
as prosecutors, not to touch any dockets in their offices and to vacate their offices and hand over the
office keys. The applicants have complied with the respondents’ instructions, albeit under protest.
They now approach this Court contending that the actions of the respondents constituted a breach of
the provisions of the Administrative Justice Act, [Cap 10:28], which requires that administrative
action be taken in a fair and lawful manner allowing for the affected party to be heard.
The respondents have raised a number of points in limine, which we consider seriatim below:
No Cause of Action
The respondents contend, in the first instance, that the 1 st respondent’s decision to withdraw
his authority to prosecute from the applicants cannot be contested and for that reason, the applicants
have no cause of action to bring this application. The contention that the exercise of discretion by the
1st respondent’s in the carrying out of his mandate is not subject to judiciary scrutiny is apparently
based on s 76, particularly in para (5), (6) and (7), of the Constitution which states as follows:
76 Attorney-General
(1) There shall be an Attorney-General who shall be the principal legal adviser to the Government
and whose office shall be a public office but shall not form part of the Public Service.
(2)
(3)
(4) The Attorney-General shall have power in any case in which he considers it desirable so to do
—
(a) to institute and undertake criminal proceedings before any court, not being a court established
by a disciplinary law, and to prosecute or defend an appeal from any determination in such
proceedings;
(b) to take over and continue criminal proceedings that have been instituted by any other person or
authority before any court, not being a court established by a disciplinary law, and to prosecute or
defend an appeal from any determination in proceedings so taken over by him; and
(c) to discontinue at any stage before judgment is delivered any criminal proceedings he has
instituted under paragraph (a) or taken over under paragraph (b) or any appeal prosecuted or
defended by him from any determination in such proceedings.
(4a) The Attorney-General may require the Commissioner-General of Police to investigate and
report to him on any matter which, in the Attorney-General’s opinion, relates to any criminal
offence or alleged or suspected criminal offence, and the Commissioner-General of Police shall
comply with that requirement.
(5) The powers of the Attorney-General under subsection (4) may be exercised by him in
person or through other persons acting in accordance with his general or specific
instructions.
(6) The powers of the Attorney-General under subsection (4)(b) and (c) shall be vested in
him to the exclusion of any other person or authority:..
(7) In the exercise of his powers under subsection (4) or (4a), the Attorney-General shall not
be subject to the direction or control of any person or authority. (emphasis added)
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Now, the contention that the AG’s exercise of his discretionary powers cannot
be subject to judicial scrutiny is as astounding as a similar contention made with
regard to another constitutional body, the then Electoral Supervisory Commission, in
connection with which I have had occasion to comment in the case of Tsvangirai v
Mugabe & Anor 2005 (2) ZLR 398 at p. 406 thus:
“The fourth respondent goes on to mount a final startling argument against its
inclusion in this petition, viz., that the manner it conducts its election supervision is a
matter beyond this court’s jurisdiction and therefore cannot be raised before it and
may not be questioned by any court of law. This remarkable submission is ostensibly
based on section 61(6) of the Constitution, which provides thus:
“The Electoral Supervisory Commission shall not in the exercise of its
functions in terms of subsection (3) or (5) be subject to the direction or
control or any person or authority”.
Now, the entrenchment of the independence of a body or person in the above terms is
a well-established constitutional devise, which does not then put such body or person
above the law. The actions of such bodies or persons are still subject to legal review.
For example, in section 79B of the Constitution the independence of the judiciary is
entrenched in exactly the same terms, but it would be quite a novel proposition to
interpret that entrenchment as removing from legal review the conduct of the
judiciary in the exercise of its functions. The kind of protection that the constitutional
provision extends to the ESC is the independence in the conduct of its duties of
monitoring, for example, the criticism of how its official discharged their duties
quoted at length above is completely inappropriate. No court can interfere or inquire
into the manner in which the ESC conducts its duties, no court can order that ESC
officials be more active in the discharge of their duties, etc. But if the grievance is
that the ESC was not properly constituted, acted illegally or failed to discharge its
duties altogether, such a challenge cannot be answered by reference to the provision
which constitutionally entrenches the independence of the Commission.”
In the same vein, I am of the firm view that the allegation of lack of cause of action in
this matter cannot be sustained. Compare also Benjamin Paradza v The Minister of Justice,
Legal and Parliamentary Affairs & Ors SC 46/03. The A-G has a wide discretion to choose
his or her representatives, but those so-selected must be qualified in terms of statute. If they
are not, the selection is null and void and will be struck down by the courts. And once the A-
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G has chosen a representative, the relationship so-established is governed by law. The
representative can only be dismissed lawfully and following due process, failing which the
actions of the A-G can be impugned and set aside by a court of law. All this does not
encroach on the autonomy and independence of the office of the A-G. It remains an
independent and autonomous office, but operating under the law. To hold otherwise would
be to make the A-G’s office a law unto itself, contrary to the fundamental constitutional
principle that no person or office, however powerful or important, should be above the law.
Absence of Jurisdiction of the High Court to deal with matter
In terms of s 89(1) of the Labour Act, [Cap 28:02], the Labour Court has the same
powers of review as would be exercisable by the High Court in respect of labour matters.
Then s 89(6) of that Act provides that “no court other than the Labour Court shall have
jurisdiction in the first instance to hear and determine any application, appeal or matter
referred to in subsection (1)”.
In the case of Tuso v City of Harare HH 1/2004 BHUNU J decided that this court did
not have jurisdiction to consider reviews arising out of contracts of employment as that power
had been bestowed upon the Labour Court by virtue of s 89(6) which also ousted the
jurisdiction of the High Court to review such decisions in the first instance. In Sibanda &
Anor v Chinemhute N.O. & Anor, MAKARAU J (as she then was) had to consider whether or
not, in the construction of s 89(6) this court still retained the power to issue declaratory orders
and concluded:
“Thus, the power to issue a declaratory order is not available in all courts that apply
common law. It is specific to this court. It is common cause that the Labour Court
has not been specifically empowered to issue declaratory orders as this court has been.
It cannot create such relief or the procedure for granting such relief as it is not a court
of inherent jurisdiction.”
The applicants in this matter seek a declarator that the letter withdrawing prosecuting
authority from the applicants and consequential actions be pronounced as null and void. The
withdrawal of powers of prosecution from a public prosecutor is not a “quintissential labour-
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related issue, based on the right to fair labour practices” as was stated in Gcaba v Minister of
Safety and Security [2009] ZACC 26. Its impact is felt not only by the applicants, but also by
the general public, whose cases may be pending or partly-heard before a given prosecutor.
Thus, there consideration by the High Court rather than the Labour Court is justified even
under a regime which distinguishes between purely labour and administrative law matters as
the South African one apparently does. In our legal system, as already noted, the applicants
are justified to approach this court on the basis of a declarator as the Labour Court does not
possess such competence.
On the Merits
According to the Administrative Justice Act, an administrative authority which has
the responsibility or power to take any administrative action which may affect the rights,
interests or legitimate expectations of any person has a duty to “act lawfully, reasonably and
in a fair manner”. (s.3(1)(a). The administrative authority would not have discharged its
obligation above where in the exercise of its responsibilities, inter alia, a “material error of
law or fact has occurred” (s.5(c)). A person aggrieved by the failure by an administrative
authority to comply with the provisions of section 3 is entitled to approach High Court for
relief which may include the confirmation or the setting aside of the decision concerned
(s.4(2)(a)).
We have already noted above the A-G’s constitutional mandate to prosecute and
discretion to delegate the same. The Criminal Procedure and Evidence Act, provides for
further details in the actual discharge of the A-G’s mandate, especially the circumstances and
extent to which such prosecution powers may be delegated, thus:
PROSECUTION AT PUBLIC INSTANCE
A. Attorney-General
5 Criminal proceedings in name of State
6 Delegation of functions of Attorney-General
(1) The Attorney-General may, when he deems it expedient, appoint any legal practitioner entitled
to practice in Zimbabwe to exercise all or any of the rights and powers or perform all or any of the
functions conferred upon him by subsection (5) of section 76 of the Constitution, this Act or any
other enactment, whether or not they relate to criminal proceedings.
(2) A legal practitioner appointed in terms of subsection (1) may, subject to any conditions which
the Attorney-General may impose—
(a) sign any certificate, authority or other document required or authorized by an enactment
referred to in that subsection; and
(b) appoint a legal practitioner entitled to practise in Zimbabwe to exercise the rights and powers
or perform the functions delegated to him in terms of subsection (1) and the provisions of this
subsection shall apply, mutatis mutandis, in respect of that appointment.
8 Presiding officer may appoint prosecutor in certain cases
If for any reason the person appointed in terms of section six to conduct a prosecution is unable to
act or if no person has been so appointed, the officer presiding over the court or examination shall,
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by writing under his hand, designate some fit and proper person for that occasion to prosecute or,
as the case may be, to appear.
[Section amended by section 32 of Act 9 of 2006.]
B. Local public prosecutor
11 Functions of local public prosecutor
(1) All public prosecutors attached to a magistrates court are, as representatives of the Attorney-
General and subject to his instructions, charged with the duty of prosecuting in that magistrates
court, in the name and on behalf of Zimbabwe, all offences which, under any enactment governing
magistrates courts or any other enactment, that magistrates court has jurisdiction to try.
(2) Criminal proceedings instituted in a magistrates court by any local public prosecutor may be
continued by any other public prosecutor.
(3) When there is lodged with or made before a local public prosecutor a sworn declaration in
writing by any person disclosing that any other person has committed an offence chargeable in the
magistrates court to which such public prosecutor is attached, he shall determine whether there are
good grounds for prosecution or not:
Provided that—
(i) he may refer to the Attorney-General the question whether he shall prosecute or not;
(ii) any other person may be specially authorized by the Attorney-General to prosecute in the
matter.
From the statutory provisions above, it appears that where the A-G does not exercise
his functions directly in person, he or she may:
a) appoint a practicing legal practitioner to whom he or she delegates the
prosecutorial powers, with the delegate having powers to further delegate to
another legal practitioner.
b) act through public prosecutors, who represent the A-G and are subject to
instructions.
The above delegation structure suggest a system where in the appointment of a legal
practitioners, the powers delegated are wide and include the power to further delegate. Under
such circumstances, the delegation of the power would be evidenced by some document or
certificate of authority, which document or certificate may, under certain circumstances, be
withdrawn and once withdrawn the erstwhile relationship between the A-G and the delegate
comes to a complete end. The delegation of prosecuting authority to public prosecutors is
different. The public prosecutors represent the A-G, but are subject to instructions. They
cannot appoint sub-delegates. The withdrawal of instructions to prosecute does not terminate
their relationship with the A-G, they remain open to fresh or other instructions. Even if the
A-G were to disown their representation completely, they remained employed by the Public
Service Commission as prosecutors until discharged.
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Therefore, in the light of the above discussion it can be concluded the A-G committed a
material error of law or fact when he purportedly withdrew the prosecutors’ authority to
prosecute. The A-G may not withdraw his/her authority to prosecute from a public
prosecutor because in the first place such authority is never delegated in the complete manner
in which it is done for legal practitioners so-appointed, but public prosecutors prosecute
under instructions from the A-G. The A-G who is displeased with the performance of a
public prosecutor either withdraws the instructions or suspends the public prosecutor pending
investigations and dismissal by the Public Service Commission.
In this case, the A-G purported to withdraw his authority to prosecute from the public
prosecutors and referred them to the Public Service Commission “for further processing
according to law”. In my considered view, this was a wrong procedure for the following
reasons:
a) The withdrawal of prosecutorial authority was improper as pointed out
already. Its implementation exposed the applicants to double jeorpardy in that
whatever hearing before the PSC would not have the effect of restoring the
prosecutorial authority even if they were found innocent.
b) The proper procedure should have been to suspend them pending a fuller
enquiry which could lead to either their discharge from the PSC or their
reinstatement in their former positions. Now suspension is a common law
procedure which can be invoked summarily or following a preliminary
enquiry. However, a suspension cannot be imposed for an indefinite period.
It must be for a specific reasonable period and subject to the carrying out of a
fuller inquiry during that period. There can be provisions for the extension of
the suspension period to allow for the completion of the inquiry.
c) Now, the procedure adopted in this case was wrong in that instead of a
suspension, a withdrawal of prosecutorial authority was invoked. The
suspension should have had a specific reasonable period within which a fuller
and dispositive inquiry was to take place. Lacking all these quintessential
qualities, the procedure adopted in this case constitutes a material error of law
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or fact, is not supportable and may be declared null and void together with
consequential actions taken on its strength.
Costs
The normal rule is that costs follow the outcome, and exemplary costs are merited
where the losing party’s cause or actions amounted to an abuse of the court process.
However, the winning party may also be guilty of dilatory on unmeritorious pleading which
may justify the court withholding any costs they may be entitled to. This matter was brought
as an urgent application for the vindication of rights under the Administrative Justice Act. It
should, however, have been brought as a court application in terms of Order 33 Rule 256.
This wrong procedure was condoned and the urgent application was allowed to proceed as an
ordinary court application. The applicants were wrong in citing the respondents both in their
official and personal capacities. See Matida v Chairman, PSC & Anor 1998 (1) ZLR 507. A
challenge of an act done by a person in an official capacity must be through citation of the
office and not the individual. The citation must be linked to the terms of the order sought. If
an official act must be done, then the citation must be in an official capacity, otherwise the
official cited in their personal capacity cannot fulfill the terms of the order sought. Even
where an order of costs is being sought against an official, if the relief is official, the citation
should be in the official capacity although the cost clause and the support thereof would be
framed in the personal capacity. Personal citation is justified only when relief is sought
personally from the official as in damages consequent upon an official act allegedly carried
out mala fide or grossly negligently. The applicants also fell foul of this requirement and the
court had to condone this remiss, which was motivated not so much by ignorance of the law,
but more by an excessive exuberance in one’s own cause and a perverse desire to strip the
respondents of the aura of their office. The court is thus justified in withholding the costs
which the applicants were otherwise entitled to. Legal practitioner should take note and be
properly warned that they do not advance their client’s cause by unnecessarily pitching the
political angle of their case, but by assiduously adhering to the rules and dispassionately and
diligently pursuing their claim.
Order
IT BE AND IS HEREBY DECLARED THAT:
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1. The first Respondent’s letter dated 3 November, 2011 to the Applicants is null and
void and of no force or effect and is hereby set aside.
2. All orders, verbal or written, issued to the Applicants consequent upon the said
letter, are equally null and void and, to the extent possible, are hereby set aside
and at any rate must not, in particular, hinder the terms of paragraph 3 below.
3. The Applicants are forthwith restored to the positions they each held prior to each
one’s receipt of the said letter, without loss of their rights.
4. Each party shall bear its own costs.
Mtetwa & Nyambirai, Applicants’ legal practitioners
Attorney-General’s Office, Respondents’ legal practitioners