IN
THE COURT OF APPEAL OF SWAZILAND
APPEAL
CASE NO. 12/2000
In
the matter between:
ELIAS
V. DLAMINI APPELLANT
AND
PRINCIPAL
SECRETARY IN THE MINISTRY
OF
AGRICULTURE AND COOPERATIVES 1st RESPONDENT
SWAZILAND
GOVERNMENT 2nd RESPONDENT
CORAM: J.
BROWDE, J.A.
J.H.
STEYN, J.A.
C.
E.
L.
BECK, J.A.
For
the Appellant: P.R. DUNSEITH
For
the Respondents: M.
L.
M.
MAZIYA
JUDGMENT
Beck
J.A.
On
the 23 March 1999 the appellant, who is a civil servant employed as
Senior Clerical Officer in the Ministry of Agriculture and
Co-operatives, was notified in writing by the first respondent, who
is the Principal Secretary in the afore-mentioned Ministry, that
disciplinary action was being contemplated against the appellant on
the strength of allegations of corruption and that pending the
outcome of a Departmental Commission of Enquiry the Prime Minister
had authorised the first respondent to interdict the appellant in
terms of clause 39 of the Civil Service Board (General)
2
Regulations,
1963. The first respondent further informed the appellant that during
the period of interdiction he would be paid only half of his salary.
In
November 1999 the appellant applied to the High Court by way of
notice of motion for the following relief:-
1.
Waiving the usual requirements of the rules of Court regarding
notice and service of application and hearing the matter as one of
urgency.
2.
Declaring the interdiction of the Applicant by the 1st Respondent
from performing his duties as unlawful and null and void ab initio.
3.
Reinstating the Applicant to his post of Senior Clerical Officer.
4.
That the deduction of the Applicant's salary by half his normal
Emoluments be declared unlawful and null and void and that Applicant
be refunded all amounts deducted from his salary.
5.
Setting aside such interdiction on the grounds that the Applicant
had not been afforded a hearing prior to his interdiction and that no
disciplinary hearing has been held within a reasonable time.
6.
A Rule Nisi do hereby issue calling upon the Respondent to show
cause on a date to be determined by this Honourable Court why orders
2, 3 and 4 should not be made final.
7.
Costs, but only in the event of this application being opposed.
Various
grounds were advanced by the appellant for the relief that he sought.
He contended firstly that both the interdiction and the reduction of
his salary were unlawful in that nobody other than the Prime
Minister, or any Minister specially delegated by the Prime Minister,
has the right to interdict, and to reduce the emoluments of a
government employee, pursuant to the power to do so that is conferred
by section 39 of the Civil Service Board (General) Regulations, 1963,
3
whereas
it was the first respondent, and not the Prime Minister or a Minister
delegated by him to do so, who in fact purported to interdict the
appellant and to halve his emoluments.
This
contention was rejected in the court a quo. The learned judge who
heard the application in the High Court held that section 12 (1) of
the Interpretation Act, 1970, empowers the Prime Minister to delegate
to any person he chooses such powers as he, the Prime Minister, is
lawfully entitled to exercise, and therefore the delegation by the
Prime Minister to the first respondent of the powers conferred on the
Prime Minister by section 39 of the Civil Service Board (General)
Regulation, 1963, was a lawful delegation.
That
decision is now challenged by the appellant in this appeal, and if
this challenge succeeds it becomes unnecessary to deal with any of
the other grounds upon which the appellant unsuccessfully relied for
the relief that he sought from the High Court. I turn therefore to
consider whether the power to interdict the appellant and to reduce
his emoluments was a power that could lawfully have been delegated to
the first respondent to exercise.
The
starting point is to be found in section 3 (1) of the Civil Service
Order No. 16 of 1973. That section reads:-
"3(1)
There shall be a Civil Service Board for Swaziland which shall
consist of a chairman and not less that four members who shall be
appointed by the King on such terms and conditions, including the
amount of remuneration payable to them, and for such period as he may
deem fit, bur subject to this King's Order
-
in
-
Council
and the Proclamation, the appointment, promotion, transfer,
termination of appointment, dismissal and disciplinary control of
public officers are vested in the Prime Minister who may however
delegate such functions and duties to an Assistant Minister."
The
portion of the above-quoted provision that is of importance to the
issue under consideration is that which vests "disciplinary
control" of public officers in the Prime Minister, and which
empowers the Prime Minister to delegate his functions and duties to
an Assistant Minister. The appellation "Assistant Minister"
is not statutorily defined and can only be taken to mean any Minister
other than the Prime Minister.
4
The
interdiction of officers and the reduction of their emoluments during
interdiction are powers that are conferred on Ministers by
sub-sections (1) and (3) of section 39 of the Civil Service Board
(General) Regulations, 1963. That section is contained in Part V of
the said Regulations, the heading of which reads "Disciplinary
Control and Proceedings".
Sub-sections
(1) and (3) of section 39 of the Civil Service Board (General)
Regulations, 1963, read as follows:-
"39.(1) If
the Minister considers that the interests of the service require that
an officer should cease forthwith to exercise the powers and
functions of his office, he may interdict him from the exercise of
those powers and functions, if disciplinary proceedings are being
taken or are about to be taken or if criminal proceedings are being
instituted against him.
(3) An
officer who is interdicted shall...
receive
such emoluments, not being less that one half of his normal
emoluments as the Minister thinks fit."
Section
2 of these Regulations defines the word "Minister" as
follows;
"
'Minister' means the Prime Minister and includes any assistant
Minister to whom he has delegated any duties or functions under the
Civil Service Order, No.16 of 1973."
It
is, I think, clear from the above-quoted statutory provisions that it
is only the Prime Minister, or a Minister delegated by him, who may
interdict an officer and reduce his emoluments. In the instant case
this was not done. The Prime Minister delegated his powers of
interdiction and of reducing the appellant's emoluments, not to
another Minister, but to the first respondent who is a Principal
Secretary, and unless there are other statutory provisions that may
be relevant, Mr Dunseith's submission on behalf of the appellant that
the interdiction was null and void would seem to be unanswerable. In
the court a quo however, reliance was placed, as I have already
indicated, on section 12 (1) of the Interpretation Act, 1970, to lend
validity to this delegation by the Prime Minister to the first
respondent of the Prime Minister's power to interdict the appellant
and to halve his salary. Section 12 (1) of the Interpretation Act
reads as follows:
"
12. (1) Where by law a Minister is empowered to exercise any powers
or perform any duties, he may depute any person by name or the person
for the
5
time
being holding the office designated by him to exercise such powers,
other than the power to delegate and the power to make subsidiary
laws, or perform such duties on his behalf subject to such
conditions, exceptions and qualifications as he may prescribe; and
thereupon or from the date specified by him the person so deputed
shall have and exercise such powers and perform such duties."
Mr
Dunseith submitted that this section in the Interpretation Act cannot
be relied upon to enlarge the limited powers of delegation that are
accorded to the Prime Minister by section 3 (1) of the Civil Service
Order No.16 of 1973 in relation to functions and duties affecting
"the appointment, promotion, transfer, termination of
appointment, dismissal and disciplinary control of public officers,"
these being functions and duties of such importance that the
legislature clearly intended that they should be vested only in the
Prime Minister, or in a Minister delegated by him.
That
submission is, in my view, correct. Moreover it is an accepted
principle of statutory interpretation that where there is a conflict
between two statutes dealing with the same subject (in this case, the
power to delegate) the general rule is that the later statutory
provision should prevail (in this case, the Civil Service Order of
1973). This is more particularly so when the earlier provisions are
contained in an enactment that is of a general nature and are
inconsistent with later provisions that are contained in an enactment
of a special nature, (Kellaway: Principles of Legal Interpretation at
page 369). In the instant case the provisions of section 12 (1) of
the Interpretation Act deal with powers of delegation entrusted not
only to a Prime Minister, but also to any Minister, in relation to
all his Ministerial functions and duties (save only that of making
subsidiary laws), whereas the later provisions of section 3(1) of the
Civil Service Order deal with powers of delegation entrusted to a
Prime Minister only, and only in relation to certain of his functions
and duties that are specified.
For
a reason that I shall mention later I pause here to record that when
Mr Dunseith came to the end of his argument before us, we had reached
the end of the day and the court adjourned to the following morning,
when Mr Maziya, who appears for the respondents, commenced his
argument. Mr Maziya then advanced an argument in relation to the
issue of delegation that had neither been addressed to the court a
quo, nor had it been incorporated in his written Heads of Argument
that were before us.
6
The
reason for this was that overnight Mr Maziya had discovered a piece
of legislation to which no reference had previously been made.
This
piece of legislation is King's Proclamation No. 1 of 1981, section 10
of which is in the following terms:
"10.(1) There
shall continue in existence an independent Civil Service Board or
similar body established by law which shall be responsible for the
recruitment and appointment to, and promotion and discipline of
persons in, the civil service.
(2) The
Board or such other body shall liaise with all the Ministers in
respect of recruitment policy but will be completely independent of
and not subject to any ministerial or political influence in the
selection of persons for appointment or promotion or in respect of
its disciplinary function."
Mr
Maziya submits that this section of the King's Proclamation No.1 of
1981 is inconsistent with the whole of section 3 (1) of the Civil
Service Order No. 16 of 1973 and, being the later statutory
enactment, must prevail. He then submitted further that interdiction,
and reduction of emoluments during interdiction, are not embraced
within the function of "discipline of persons in the civil
service" that is now vested, by the King's Proclamation No.1 of
1981 in the Civil Service Board. If that is so then, so his argument
goes, one falls back on section 39 of the Civil Service Board
(General) Regulations of 1963, as being the only legislation that
pertains to interdiction and reduction of emoluments and therefore,
section 3 (1) of the Civil Service Order No. 16 of 1973 no longer
being operative, the Prime Minister's power to interdict and to
reduce emoluments may be delegated to anyone he chooses in terms of
section 12 (1) of the interpretation Act.
In
my view the fallacy in this argument lies in the contention that the
power to interdict, and that of ordering a reduction of emoluments
during interdiction, is power that falls outside the parameters of
the power to discipline. I have already emphasised that section 3 (1)
of the Civil Service Order No.16 of 1973 vested in the Prime Minister
the function, inter alia, of "disciplinary control" of
public officers, and that the powers of interdiction and of ordering
a reduction in emoluments that is contained in section 39 of the
Civil Service Board (General) Regulations, 1963, are to be found in a
part of those Regulations which falls under the heading "Disciplinary
Control and
7
Proceedings."
The power to interdict a public officer is an important and necessary
aspect of the power to exercise disciplinary control over officers
whose alleged misconduct exposes themselves to being disciplined, and
whose continued performance of the duties entrusted to their office
carries the risk that proper enquiry into their misconduct may be
hampered and/or that the misconduct may continue.
Mr
Dunseith found himself unable, in reply, to counter Mr Maziya's
submission that section 10 of the King's Proclamation No.1 of 1981 is
inconsistent with, and must be taken to have superseded section 3 (1)
of the Civil Service Order, 1973, and it seems to me that this is
clearly the case. However, he submitted that if interdiction is part
of the disciplinary control of public officers that section 3 (1) of
the Civil Service Order, 1973, vested in the Prime Minister, and in
any Minister whom the Prime Minister may delegate, then the 1981
Proclamation must necessarily be inconsistent with section 39 (1) and
(3) of the Civil Service Board (General) Regulations, 1963, as well.
I agree that this conclusion must logically follow if interdiction
and emolument reduction are, as I hold them to be, aspects of
disciplinary control, and therefore of the discipline of persons in
the civil service, which function now reposes in the Civil Service
Board by reasons of the 1981 Proclamation. It seems to me to be very
unlikely that the legislature could have contemplated vesting in the
Civil Service Board the power to discipline persons in the civil
service while leaving in the hands of Ministers the power to
interdict such persons and to reduce their emoluments while under
interdiction.
While
King's Proclamation No.1 of 1981 has vested in the Civil Service
Board, and only in that Board, the power to discipline persons in the
civil service, it has omitted to clothe the Civil Service Board with
the power to delegate any of its disciplinary powers. The consequence
of this is that the interdiction of the appellant in the instant
case, and the reduction of his emoluments, must be held to have been
invalid and void ab initio. Section 12 (1) of the Interpretation Act
can be of no application if the Prime Minister's power to interdict
and to reduce emoluments has been ended by vesting in the Civil
Service Board the power to discipline, leaving the Prime Minister
with nothing to delegate. The situation created by the 1981
Proclamation can, of course, readily be rectified by conferring upon
the Civil Service Board the right to delegate
8
such
functions of disciplinary control as it may be desirable to make
capable of being delegated.
In
conclusion I consider it advisable
to
record that the various enactments to which I have referred, and
which lead to the conclusion that I have reached, are the only
enactments of which we are aware that can have a bearing upon the
issue that has fallen for decision in this case. The need for a
thorough revision and compilation of the statute law of Swaziland is
most necessary, and is pressingly urgent, as the eleventh hour
discovery by Mr Maziya of the 1981 Proclamation has demonstrated.
The
decision that the interdiction of the appellant, and the reduction of
his emoluments, by the first respondent, acting under authority
delegated to him by the Prime Minister, is invalid, has rendered it
unnecessary to deal with the further submissions by Mr Dunseith
concerning the failure by the respondent to observe the natural
justice rule of audi alteram partem. Certainly the reduction of the
appellant's emoluments without affording him an opportunity of making
any representation in that regard was, I consider, indefensible. In
this connection I refer to the judgment of this court prepared by my
brother Steyn J.A. in the matter of Secretary to Cabinet and Others
vs Ben M. Zwane, Civil Appeal 2/2000, which is being delivered
contemporaneously with the judgment in this appeal.
In
the result the appeal is allowed with costs, and the order of the
court a quo is set aside and the following order is substituted:-
1. The
interdiction of the applicant is declared unlawful and null and void
ab initio;
2. The
reduction of the applicant's salary by half his normal emoluments is
declared unlawful and null and void, and the applicant is to be
refunded the amounts so deducted.
3. The
respondents are ordered to pay the costs of the application.
9
C.
E.
L.
BECK
J.A.
I
agree
J.
BROWDE J.A.
I
agree
J.H.
STEYN J.A.
Delivered
in open Court on this
13th
day of December 2000
