IN
THE HIGH COURT OF SWAZILAND
CASE
NO.2904/99
In
the matter between:
ELIAS
V. DLAMTM APPLICANT
AND
PRINCIPAL
SECRETARY - AGRICULTURE 1st RESPONDENT
SWAZILAND
GOVERNMENT : 2nd RESPONDENT
CORAM
: MATSEBULA
J
FOR
THE APPLICANT :
FOR
THE 1st & 2nd RESPONDENT :
JUDGMENT
The
applicant moved a notice of motion under a certificate of urgency for
the following relief:
Waiving
the usual requirements, the rules of court regarding notice and
service of application and hearing the matter as one of urgency;
Declaring
the interdiction of applicant by the first respondent from
performing his duties as unlawful and null and void ab initio;
Reinstating
the applicant to his post as Senior Clerical Officer;
That
the deduction of the applicant's salary by half his normal emolument
be declared unlawful and null and void and that applicant be
refunded all amounts deducted from his salary;
Setting
aside interdiction on the grounds that the applicant had not been
afforded a hearing prior to his interdiction and no disciplinary
hearing has been held within a reasonable time;
2
A
rule nisi do hereby issue calling by 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;
Costs,
but only in the event of this application being opposed.
The
notice of motion was accompanied by an affidavit deposed to applicant
itself. In it applicant states the following inter alia: (I will
quote from paragraph 4)
"On
the 17th March 1999 the respondent requested authority to interdict
me from the Secretary to Cabinet on the allegation that I was
implicated in practising unorthodox methods of recruiting certain
cadres of employees, A copy of this letter requesting such authority
from the Secretary to Cabinet is annexed here, marked "A"",
I
may just point out at this juncture that no such letter was annexed
and in the book of pleadings no such letter exists.
"On
the 18th March 1999 the Secretary to Cabinet responded to annexure
"A" herein and informed the first respondent that His
Excellency the Right Honourable Prime Minister had granted the
authority requested by the first respondent. A copy of the letter in
response to annexure "A" herein is annexed hereto and
marked "B"".
Here
again no annexure "B" was annexed and in the book of
pleadings there is no annexure "B".
"On
the 18th March 1999 first respondent informed me through a letter
that (See subsection 1) that disciplinary action was being
contemplated against me on the basis of serious allegations of
practising unorthodox methods in recruiting certain cadres of
employees.
Other
matters are under investigations, additional charges may be preferred
against me at a later stage.
Pending
the outcome of the departmental commission of enquiry His Excellenpy
the Right Honourable Prime Minister had authorised my interdiction in
terms of the Civil Service Board Regulations 1963 (39).
That
during the period of interdiction I shall be paid 50% of my salary. A
copy of the letter aforesaid is annexed hereto and marked "C"'
3
Again
this annexure "C" was not amongst the papers and was not in
the book of pleadings.
"I
submit that my interdiction in terms of the Civil Service Board
Regulations 1963 which was wrongly cited as 34 of 1963 since such Act
does not exist was both procedurally defective and ultra vires as
well as null and void ad initio for the following reasons:
7.1.
I could not lawfully be interdicted by the first respondent
notwithstanding the authority and/or order of the Prime Minister's as
it clearly appears in annexure "A" and "B"
herein;"
I
have already said that no such annexures were among the papers.
7.2.
"It is only the Prime Minister and/or any Minister to whom he
has delegated his authority who can interdict me and certainly not
the first respondent;
7.3.
It is only the Prime Minister and/or any Minister delegated by him
who decides such emolument not being less than one half of my normal
emoluments which I should be paid as it is clearly provided for in
terms of Clause 39(3) of the Civil Service Board Regulations 1963;
7.4.
The Prime Minister has in the circumstances delegated authority and
all power to a person who cannot in law carry out the Prime
Minister's orders. The instructions which are in the Prime Minister's
own handwriting contained in annexure "A" herein and
subsequently conveyed to the first respondent in annexure "B"
herein are in the circumstances unlawful and as such null and void;
7.5.
I also aver that the Prime Minister and the respondents did not
afford me a hearing prior to their decision to interdict me. I submit
that on this ground alone my interdiction should be set aside. Legal
arguments in support thereof shall be made at a hearing of this
matter.
I
submit further that the fact that the first respondent has not called
me to any disciplinary hearing after more than eight months since I
was interdicted is unreasonable and amounts to an abuse of power.
8.1. The failure to prosecute me and/or bring the matter to a final
conclusion is intended to humiliate me and perpetuate the final
embarrassment I find myself in."
Those
are the paragraphs that I will deal with so far. I have left other
paragraphs which in my view are not relevant to the decision that I
am about to make.
First
respondent filed an answering affidavit and deponent being a Mr.
Nkambule, Principal Secretary in the Ministry of Agriculture and
Co-operatives. In its paragraph 7, Mr. Nkambule states the following
and I quote: (In paragraph 7 Mr. Nkambule deals with 7.1, 7.2, 7.3,
7.4 of the founding affidavit of the applicant)
4
"The
contents of this paragraphs are false, wrong conclusions and designed
mislead this Honourable Court in that in terms of Section 12(1) of
the Interpretation Act 20 of 1970, a Minister if perfectly entitled
to delegate any function or duty which ordinarily rests on his
shoulders, to anyone of his choice.
I
am verily advised that the word "anyone" is liberal enough
to include myself. Therefore the Honourable Prime Minister did not
act outside the scope of his authority when he delegated his duty to
interdict the applicant herein to me.
I
wish to state that further argument will be advanced on my behalf in
court as per the requirements of the above-cited regulations 39 read
together with Section 12(1) of the Interpretation Act of 1970."
I
may just add that indeed Mr. Msibi who appeared for the respondent
did advance arguments and I was convinced that the Section 12.1 of
the Interpretation Act applied.
"I
am further advised that the Prime Minister or anybody so delegated by
him has a right to determine the amount of emolument which the person
so interdicted should be paid. This right is not amongst other things
listed in Section 12.1, which the Minister cannot delegate to anyone
else. And as such the expression "express mention of one thing
is exclusion of the other" applies fully herein."
I
agree with Mr. Msibi on this point and I have consulted the Sections
to which reference has been made.
Applicant's
affidavit refers to annexures which do not form part of the book of
pleadings. This was a very serious and fatal oversight on the part of
the applicant. The absence of these annexures caused very serious
flaws in the applicant's case.
"Other
matters under investigations and additional charges may be preferred
against me at a later stage.
Pending
the outcome of the departmental commission of inquiry His Excellency
the Right Honourable Prime Minister had authorised my interdiction in
terms of the Civil Service Board Regulation 1963 Clause 39 hereof."
I
will deal in greater detail with the contents of these paragraphs
later when dealing with the provisions of the Civil Service Order
1973 and the Interpretation Act 21 of
5
1970
and simultaneously deal with ratio decidendi in the cases BEN M.
ZWANE AND JOEL LUKHELE CASE NO.113/99 AND 2472/99 respectively:
"It
appears to me though that in the above mentioned cases the court's
attention was never drawn to the provisions of the Interpretation Act
otherwise the Honpurable Chief Justice who gave judgment in those
cases cited above would not have given the judgment he did".
The
Interpretation Act 21/70 Section 12 provides as follows: "Powers
of Ministers to delegate certain powers. (Section 12(1)):
"Where
by law a Minister is empowered to exercise any power or perform any
duties he may depute any person by name, the person for the time
being holding the office designated by Mm to exercise such powers
other than the power to delegate and power to make subsidiary laws or
perform such duties on his behalf subject to such conditions,
sections 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".
To
me, this Section is so clear that no amount of interpretation can
bring any other meaning cither than that the Prime Minister and any
Minister has got these powers to delegate and; Prime Minister was
perfectly authorised to do so in terms of the section.
In
order to avoid contusion one need to read all these different Acts
and orders that are interrelated together and one will find some that
are in a nature of enabling in order to understand exactly whether
the Prime Minister had the authority to delegate. In the light of
Section 12(1) of the Interpretation Act the cases of ZWANE AND
LUKHELE page 3 which reads as follows:
"In
the case of JOEL LUKHELE the empowerment to interdict is granted to
the Prime Minister. This means that it is the Prime Minister alone
who has the power and it is in his discretion to consider the facts
before exercising the power afforded him in terms of the regulation.
This is personal to the individual or board on whom the power is
conferred and may not without special provisions be transferred or
delegated to any other person or any other officer".
This
again is basic to the exercise of the executive power. This paragraph
which I have just read cannot be correct in the light of Section 12
of the Interpretation of the statutes. In my opinion the ratio
decidendi in the ZWANE AND LUKHELE case was decided without taking
into account the provisions of the Interpretation Act.
6
For
the purpose of my judgment I hold that the Prime Minister is
perfectly entitled to delegate. Next I deal with the maxim audi
alteram pattern. Having found as a fact that the Honourable Prime
Minister was perfectly within his right to delegate. I should
consider whether the person so delegated should afford the person
affected an opportunity to defend himself. In terms of the audi
alteram portent rule, any permanent employee in the public service
suspended from service pending disciplinary enquiry should be
afforded an opportunity to be heard and defend himself. However, the
application of this rule of natural justice should take into
consideration the merits of each case. According to first
respondent's answering affidavit paragraph 10 to 10.1 - 10.6 this is
a matter which cannot be dealt with by the first respondent
internally only. It involves a report by the Commission of Enquiry
which was appointed specifically to investigate very wide-ranging
allegations of illegal and criminal activities against the applicant.
A report which emanated from a Commission of Enquiry has since been
referred to the Director of Public Prosecutions for a decision and
advice and it is not clear from the papers before me how far he has
gone. The allegations against the applicant were also referred to the
Anticorruption Unit. There is also an allegation that the applicant
and others as yet unknown individuals operated in a network in
committing the alleged activities which are illegal. There is a
reference to a confirmatory affidavit by an officer from the
Anticorruption Unit which affidavit was unfortunately also not
included in the book of pleadings.
In
my view, and this is my finding that the application by the applicant
should be dismissed with costs, and I am not going to order costs on
the attorney and client scale because in my view even though the
applicant had not set his mind on the contents of the Interpretation
Act it cannot be said this was done deliberately.
J.M.
MATSEBULA
JUDGE
