HIGH COURT OF SWAZILAND
the matter between;
COMMISSIONER OF POLICE 1st Respondent
CIVIL SERVICE BOARD 2nd Respondent
ACCOUNTANT -GENERAL 3rd Respondent
ATTORNEY-GENERAL 4th Respondent
RIGHT HON. PRIME MINISTER 5th Respondent
the Applicant : Ms. M. da Silva
the Respondents ; Mr. V.D. DIamini
6th July, 2004
of and key events in the matter
matter has ricocheted to me. At the initial hearing, the Applicant
sought an Order in the following terms: -
the First and Second Respondents to re-instate and/or employ the
Applicant as a police officer,
aside the decision of the First Respondent dismissing the Applicant
from the Police Service as of no legal force and effect.
that Applicant be paid his full salary with effect from November,
1997 to date.
of the application.
listening to written and oral submissions made on behalf of the
parties at that hearing, I declined to pronounce upon the validity of
the Applicant's dismissal because I was of the view that he had
failed to exhaust the local remedies provided by the Police Act No.29
of 1957. In particular, Section 30 provides that a member of the
Force who has been dismissed in terms of provisions of Section 29
(b), (c), (d) or (e) or (f) may lodge an appeal against the 1st
Respondent's decision to the Minister i.e. the Prime Minister. It was
after realising that the Applicant had jumped the gun that he was
ordered to exhaust the statutory remedies available.
Applicant, in line with the judgement, appealed to the Prime Minister
as directed. The Prime Minister, in his wisdom, dismissed the appeal
and confirmed the Commissioner's decision, by letter dated 22nd
March, 2004. The Applicant, in addition to the relief sought as set
out above, further seeks an Order setting aside the Prime Minister's
decision stated above. In the fresh Notice of Motion, he prays for
the following relief:-
the First, Second and Fifth Respondent to reinstate the Applicant as
a member of the Royal Swaziland Police Force.
and setting aside the decision of the Fifth Respondent confirming
the decision of the First Respondent in dismissing the Applicant
from the Royal Swaziland Police Force as a Police Officer.
the Third Respondent to pay Applicant his full salary with effect
from November 1997 to date.
the first and firth Respondents to pay costs of suit.
and/or alternative relief.
is worth pointing out that in the Affidavit, accompanying the Notice
of Motion, the Applicant alleges that he was never called upon to
appear before the Prime Minister in order to place his side of the
story, before the Prime Minister took the decision to confirm the
decision of the Commissioner of Police, dismissing him, the
Applicant, He submits that the principle "audi atteram partem "
was not observed by the Prime Minister.
Respondents were served with the new application on the 14th May
2004, but notwithstanding service, they did not oppose the
application and took the decision not to file opposing papers. It
must therefor be borne in mind that the Applicant's allegations of
fact stand and must be accepted as uncontroverted.
the judgement I handed down on the 27th November, 2002, I closely
examined statutory enactments relevant to this case and interpreted
them in line with precedent from this Court. I therefor consider it
tautologous to once again revisit the background and the issues
raised. For a full compendium of the relevant issues, it is advisable
that this judgement is read in tandem with that dated 27th November,
referred to above. I will venture into the detail necessary to place
this matter in its proper historical context and to the extent that I
deem necessary or expedient.
Applicant, a Police Officer had been engaged as such in August 1989.
In November, 1997, he left the country for KwaZulu, Natal, where he
stayed for many months, purportedly as a result of an undisclosed
sickness, which according to him, required the expertise of a
traditional doctor. On his return, purportedly after recovery, and on
an unspecified date, he was arrested on suspicion of the theft of a
motor vehicle. The trial culminated in his acquittal on the said
charge, on the 5th July, 1999.
acquittal did not mark the end of his misery as he was thereafter
called upon to answer to disciplinary charges relating to absenteeism
by a Disciplinary Board constituted in terms of Section 12 of the
Act. That Board found him guilty of the said offence and imposed a
sentence on him as follows: - E50.00 fine and the forfeiture of the
salary due to him in respect of the period during which he was absent
1st Respondent was apparently unhappy with the sentence meted out by
the Board and he, in a memorandum dated 6th December, 1999, purported
to dismiss the Applicant from the Force in accordance with the
provisions of Section 29 (d) read with Section 22 of the Act.
of Applicant's dismissal-the law applicable
crisp legal question, which this Court is now called upon to answer,
is whether the 1st Respondent is at large to issue a dismissal in the
absence of such recommendation from the Disciplinary Board as
constituted in terms of Section 12 of the Act.
is necessary, in returning an answer on this question to have regard
to the applicable Sections of the Act and to the various letters
annexed to the papers. Section 29 (d), under which the 1st Respondent
purported to Act provides the following: -
to section 10 of the Civil Service Order No. 16 of 1973, the
Commissioner may, in the case of any member of the Force of or below
rank of inspector at any time –
dismiss such member if he is recommended for dismissal from the Force
under Section 22 (Emphasis my own).
22, which is referred to in Section 29 (d), on the other hand, reads
as follows: -
conviction by a Senior Officer, a Board or a magistrate's court, such
officer Board or court may, in addition to or lieu of any regulations
made thereunder, recommend to the Minister that the person convicted
be dismissed from the Force or be reduced, in the case of a member of
the Force below the rank of inspector but above the rank of constable
to a lower or the lowest rank. "
interpolate to state that the use of the word "Minister",
occurring above is a misnomer and resulted from an error when the
Section in question underwent an amendment. Properly construed, the
word should have read "Commissioner".
support of this view, I cite with approval the judgement of Dunn J.
in THEMBELA MATHENJWA VS THE COMMISSIONER OF POLICE AND ANOTHER HIGH
CASE NO. 1006/91 (unreported), where the learned Judge reasoned as
is clear that section 22 creates some confusion in the disciplinary
and appeals procedure provided for under the Act but that does not in
my view, affect the clear provisions of Section 29 (d). The
representative of the Attorney-General pointed out that there had
been an omission in the Police (Amendment) Act No. 5/1987 in which
the word "Minister" in section 20 was replaced with the
word "Commissioner". It was pointed out that a similar
replacement should have been made under section 22, in the amendment.
The explanation given would place section 22 in keeping with the
general approach of the Act regarding disciplinary proceedings; the
powers of the Commissioner and the right to appeal to the Prime
Minister. It would to be irregular for the Prime Minister to be
vested with the power to act on a recommendation under Section 22 and
at the same time exercise the powers of appeal set out under Section
entirely agree with the reasoning and conclusions of the learned
Judge above. Similarly, Sapire C.J. agreed with the above reasoning
in SHADRACK DLAMINI VS COMMISSIONER OF POLICE AND ANOTHER CIVIL CASE
this aspect is cleared and set in its proper perspective, it is clear
that the Applicant, who was in the rank of Constable at the time, was
of a rank below inspector and for that reason, the provisions of both
Section 22 and 29 (d) applied to him. A plain reading of both
sections shows indubitably that where the Commissioner decides to
dismiss an officer from the Force, he can only do so on the
recommendation of a senior officer, Board or Magistrate's Court, as
the case may be, who heard the disciplinary case. The Commissioner
may therefor not dismiss in the absence of that recommendation, which
becomes the sine qua non for him
the power to dismiss. Both Counsel agreed with this conclusion regard
had to the clear and unambiguous provisions referred to above.
are the views I expressed in the earlier judgement and they are
buttressed by Dunn J's sentiments expressed in the THEMBELA MATHENJWA
case (supra) at page 5, where the learned Judge held the following: -
29 (d) can and must be read as conferring a clear power on the
Commissioner to act where he has knowledge of a recommendation made
under Section 22. In acting under Section 29 (d) the Commissioner
does so independently of whatever powers may be conferred on the
Prime Minister under Section 22". (my own underlining)
to the Board's ruling on sentence, it reads as follows from the
record of proceedings;
WITH BRIEF REASONS".
is sentenced to a fine of E50.00. This is subject to review by the
Commissioner of Police. Although the defaulter is a first offender
but what he did was extremely serious. He disappeared from work for a
period of 10 months following his involvement in a criminal offence
which resulted in his escape from Police at Lavumisa border post in
Board recommends that the defaulter's salary for a period of his
absence be forfeited to Government... Defaulter informed that
sentence is subject to review by Commissioner of Police. The
Commissioner of Police may consider a dismissal of the defaulter if
he so decides to do so in terms of Section 22 of the Police and
Public Act 29/1957."
is abundantly clear that the Board considered the seriousness of the
Applicant's absenteeism and also considered that he was a first
offender and meted a sentence that they deemed proper i.e. E50.00
fine and forfeiture of the salary. There was clearly no
recommendation made by them to the Commissioner to dismiss the
Applicant from the
the extent that the Board advised him that the Commissioner may on
review issue a dismissal, they were clearly incorrect for the clear
and unequivocal wording of the Act states that the Commissioner may
dismiss on the basis of a recommendation from them or from persons
similarly placed. He may not, subject to the views and observations I
made in the earlier judgement, unilaterally dismiss an officer from
the Force in the absence of a recommendation, regardless of how
strongly he feels about or views the transgression or misdemeanour by
matrix of the evidence clearly points to the absence of a
recommendation and Mr Dlamini could not successfully argue otherwise.
At page 2 of the earlier judgement, I came to the following view: -
Commissioner in my view may not dismiss an officer under the
provisions of Section 29(d) in the absence of a recommendation by the
Board. If he does so, it is my view that his decision would properly
be regarded ultra vires and liable to be set aside. "
must be the fate of the 1st Respondent's decision be in casu. It is
clear, from the papers later filed that the Applicant, after the
judgement of the 27th November, 2002, did appeal to the Prime
Minister in terms of the Act and further sought condonation for the
late filing of the appeal. The notice of appeal is unfortunately
the grounds of appeal, the Applicant submitted that the 1st
Respondent's decision to dismiss was irregular as it was not made
pursuant to the recommendation alluded to above. A copy of the
judgement appears to have been placed before the Prime Minister, to
assist him in his consideration and final decision of the appeal.
letter dated 22nd March, 2004, the Prime Minister, who must be taken
to have granted the condonation by necessary implication,
communicated his decision on the appeal to the Applicant. He
proceeded to state as follows: -
documents relating to the disciplinary hearing, including the record
of the hearing, and the grounds of the appeal, were forwarded for a
decision by myself
envisaged under Section 21 of the Police and Public Order Act No.29
due consideration of the offence you were found guilty of the
evidence led against you at the hearing your submission and all other
necessary factors, I have reached the following conclusion:
both the verdict and punishment are fair and proper; and (ii) That
there are no sufficient grounds or reasons for me to interfere with
the verdict and punishment.
the circumstances, your appeal is dismissed and both the verdict and
DLAMINI PRIME MINISTER"
Prime Minister does not appear to have addressed the complaint raised
by the Applicant, in his decision i.e. that the Commissioner acted
ultra vires the provisions of Section 22 read with 29 (d) in
dismissing the Applicant. It would appear therefor in my view that
the Prime Minister's decision does not in any way change the fact
that the Commissioner of Police, contrary to the clear and
unambiguous provisions of the Sections mentioned above, dismissed the
Applicant in the absence of the requisite recommendation. For that
reason, I am of the view that the decisions of both the Commissioner
of Police as confirmed by the Prime Minister are ultra vires and
cannot be allowed to stand in the face of the clear and unambiguous
provisions as aforestated.
alterant partem Rule
it is evident from the Applicant's new affidavit, he alleges that he
was never afforded an opportunity to present his case to the Prime
Minister, contrary to the audi alterant partem maxim, which forms
part of our law. This allegation, as observed earlier, was not
challenged by the Respondent.
his letter, dismissing the appeal, which was quoted in full above, it
is clear that save for the filing the Applicant's grounds of appeal,
the Applicant was not given an opportunity to make oral and/or
written submissions for the consideration of the Prime Minister,
before the latter came to the decision, which I may add, required the
most anxious consideration and full information and arguments, in
view of its far reaching implications on the Applicant as an
employee. It is also doubtful whether the Commissioner himself did
make any representations to the Prime Minister. If he did, clearly,
these were not brought to the Applicant for his attention and
right to be heard, although not expressly stated in legislative
enactments, is implied. The fact that there is no express requirement
for the Prime Minister in the Act, to receive oral and/or written
submissions from the parties, including the Commissioner, must in no
way be construed to mean that the only information that the Prime
Minister must have at his disposal, in deciding on the appeal is that
listed in Section 21 (3), namely, the record of proceedings and the
appealing officer's grounds of appeal. It certainly does not mean
that a hearing, whether oral or written or a hybrid of the above, is
thereby dispensed with. A hearing, in the context I have stated
above, constitutes an integral and indispensable part of the process.
For that reason, the absence of a hearing renders the decision liable
to be set aside.
can, in this regard, do no better than to refer to unreported
judgement in SWAZILAND FEDERATION OF TRADE UNIONS VS THE PRESIDENT OF
OF SWAZILAND AND ANOTHER APPEAL CASE NO.11/97, where the Appeal Court
stated the following trenchant remarks at page 10 of the judgement:-
audi alterant patient principle i.e. that the other party must be
heard before an order can be granted against him, is one of the
oldest and most universally applied principles enshrined in our law.
That no man is to be judged unheard was a precept known to the
Greeks, was inscribed in ancient time upon images in places where
justice was administered, is enshrined in the scriptures, was
asserted by an 18th century English Judge to be a principle of divine
justice and traced to the events in the Garden of Eden, and has been
applied in cases from 1723 to the present time (see De Smith:
Judicial Review of Administrative Action p. 156; Chief Constable,
Pietermaritzburz vs Ishin (1908) 29 NLR 338 at 341).
in the principle is also the rule that an interested party against
whom an order may be made must be informed of any possibly
prejudicial facts or considerations that may he raised against him in
order to afford him the opportunity of responding to them or
defending himself against them. (See Wiechers: Administratiefreg 2nd
edn. P. 237),
is clear that the manner in which the matter was conducted on review
was not consonant with the principles of natural justice,
particularly the audi alteram partem. It is also on this ground that
the decision of the Prime Minister, however well meaning it was,
cannot be allowed to stand.
view of the foregoing, I grant the Applicant the relief as prayed for
in 1, 2, 3 and 4 of the Notice of Motion.
prayer 3, I am of the view that it would be unfair and unconscionable
for this Court to order the Respondents to pay the Applicant his
salary in relation to the time when he was absent from duty and
without authority. It would set a bad precedent if the Court would
follow that course. The Order for the forfeiture of the salary (which
was in any event not earned), meted by the Disciplinary Board must in
my view stand, as its validity was not challenged. If it can be
sustained on no other premise, then it should succeed on the
principle of "no work no pay". The payment of the
Applicant's salary must therefor be ordered to run retroactively to
the date of his purported dismissal by the Commissioner of Police on
the 6th December, 1999. Prayer 3 is therefor altered to extent that
the salary must be calculated with effect from December, 1999.
the avoidance of doubt, this judgement must not be construed as a
licence by the Courts or a shield to erring officers or be seen as
condonation of, connivance and an endorsement of unscrupulous
activities of officers in the Force. The contrary, rather is true.
The nature, duration and effect of the Applicant's absenteeism in
casu was clearly serious and would understandably irk any reasonable
employer and would possibly lead to the employer, after acting in
terms of the law, dismissing the errant employee. The crux of this
judgement however, is this - in issuing a dismissal, which may be
held to be justifiable in casu, the strictures prescribing the
conditions precedent thereto must be followed to the letter. The
nature, seriousness, duration and effect on discipline of the
absenteeism or whatever other
infraction it is, must not, jaundice the view of the relevant
authorities and cause them to act in complete oblivion of legal
requirements set by our Parliament. The Courts must, in such
instances, ensure that the Legislative solicitudes and intent
apparent from the Lawgiver's choice of language is given full and
interpolate to mention en passant that the observations and
directions given in the judgement dated 17th November, 2002, do not
appear to have been considered and used to resolve the quandary by
the Respondents, and they, in the circumstances, must have no one to
blame. The blame must lie at their respective doors.