THE HIGH COURT OF SWAZILAND
Case No. 1302/2001
the matter between:
JOBURG SHONGWE Applicant
COMMISSIONER OF POLICE 1st Respondent
ATTORNEY GENERAL 2nd Respondent
J.P. Annandale, ACJ
Applicant Mr. P.R. Dunseith
Both Respondents: Ms Mkhwanazi
applicant was a Police Officer who was dismissed following his
conviction on a charge of assault. He complains that he was dismissed
without the benefit of a fair hearing. His attempt at conciliation
failed and he now seeks an order to set aside his dismissal. This is
opposed by the first respondent.
his founding affidavit the applicant states that as long ago as
November 1991 he was charged with the criminal offence of assault
with intent to cause grievous bodily harm. He states that on 20th
October 1991 he was convicted in the Magistrate's Court and given a
sentence of 6 months imprisonment. There is an obvious inconsistency
between this date and the date he was charged, i.e. November 1991. On
appeal his conviction was
and the sentence was altered to 600 days fully suspended. The details
of the sentence imposed by the learned Magistrate is also not
correct, since he also had the option of paying a fine in the
alternative to the term of imprisonment. Be that as it may, he did
not serve any term of actual imprisonment.
continues to state that around November 1991, he was suspended from
police duties. He claims that this was orally conveyed to him, a fact
denied by the respondent, but without substantiation of the
repudiation. From December 1992 until September 2000 he received half
of his salary but this ceased as from the date of his dismissal on
the 6th October, 2000.
way of a memorandum from the 1st Respondent dated the 5th October
2000, the applicant was informed that:
exercise of the powers conferred upon me by Section 29(e) of the
Police Act 29/1957, I wish to inform you that you are dismissed from
the force with effect from the 6 October, 2000, following your
conviction against you (sic)on a criminal charge of assault G.B.H. by
Manzini Magistrate Court on 20th December, 1991."
first respondent states that this delay was because of the pending
appeal to the High Court and not of his doing. He goes on to add
applicant informed us at the Disciplinary Hearing that he had noted
another appeal to the Court of Appeal."
his dismissal, abortive efforts to lodge a dispute with the
Commissioner of Labour were instituted. The appointed conciliator
correctly found that the existing legislation precluded him from
dealing with the dispute, hence the present application in the High
a great extent, the matter rests on the assertion that the applicant
"...was not afforded a hearing before my (his) dismissal
contrary to the rules of natural justice." It is further alleged
that the first respondent did not exercise his quasi-judicial
function in a reasonable and just manner. The applicant refers to
three other instances of convictions of other police officers which
did not result in their dismissal. The substance of his complaint is
that the Commissioner of Police did not exercise his discretion under
section 29(e) of the Police Act judiciously and fairly, and further
that the applicant was not given an opportunity to make
Commissioner denies this, stating that a hearing was indeed held on
the 14th and 26th September 2000, in terms of natural justice. He
filed a record of these proceedings, which ex-facie the papers
indicate that on 14 September the applicant was present and
represented by counsel.
was not claimed that the applicant was present on the latter date.
His Counsel was present.
is from this report, annexure "B" in the application, that
it becomes clear why the present application was brought to court.
Quite clearly the only focus was on the appeals against the
conviction and sentence of the police constable and the outcome
thereof. It was common cause that the initial appeal to the High
Court was unsuccessful on the merits of the conviction but that the
initial sentence was altered on appeal on the 11th November 1999 to
result in a fully suspended sentence.
next point of focus was on a further appeal to the Court of Appeal,
which apparently was noted out of time and also the refusal of the
former Chief Justice to grant a certificate of leave to appeal due to
no prospect of success. This second leg of the "enquiry"
was done on the second date, the 26th September 2000, following an
adjournment to allow the applicant to obtain proof that the further
appeal was indeed pending, which was not the case.
that is recorded about the purported "hearing" is that the
applicant was confronted with his conviction and sentence and was
then burdened with a reverse onus. The record or report reads :-
on the basis of information as shown above, you must show cause (my
underlining) why your service should not be terminated in terms of
Section 29(e) of the Police Act 29 of 1957."
29 of the Police Act, 1957, provides for the termination, dismissal
and retirement of police officers. It reads that:-
Subject 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
the rank of Inspector, at any time –
Dismiss such member if he is recommended for dismissal from the force
Dismiss such member on conviction of an offence other than an offence
under this Act or regulations made there under;"
22, which is referred to in Section 29(d), provides for
recommendation as to reduction or dismissal of members of the Force
Upon conviction by a senior officer, a Board or a Magistrate's court,
such officer, Board or court may, in addition to or in lieu of any of
the penalties provided in this Act or any regulation made there
under, recommend to the Minister (my underlining) 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."
sections 22 and 29(d) are not applicable to the present matter as the
dismissal recommendation is to be made to the Minister and not the
Commissioner, also because the rank of the applicant was that of
10 of the Civil Service Order, 1973 (KOIC No. 16 of 1973) to which
Section 29 of the Police Act is subject to, provides that:
In relation to any officer on the Royal Swazi Police Force below the
rank of inspector, none of the functions imposed on the Civil Service
Board under this Order shall apply to the extent to which such
functions are by or under the provisions of any law in force in
Swaziland exercised by the Commissioner of Police or any other
officer in the Royal Swaziland Police Force: Provided that in the
case of disciplinary proceedings an appeal shall lie to the Civil
Service Board against the award by the Commissioner of Police or such
officer of the punishment of, dismissal or reduction in rank."
applicant was dismissed under Section 29(e) of the Police Act,
following a recommendation by three senior police officers. As
indicated below, it was this "hearing" which was tainted to
the extent that it effectively is a nullity. The complaint is that
the Commissioner acted under his powers to dismiss the applicant but
that the hearing conducted by the three senior police officers he had
delegated, was tainted. His delegation of these officers is not in
Civil Service Order referred to above provides for an appeal to be
heard by the Board, following a decision to dismiss. A distinction
has to be drawn between proceedings taken on review and an appeal. In
the present matter, the applicant does not appeal against the
decision of the Commissioner, which, if he did, would have required
of him to first exhaust his domestic remedies. The matter is brought
on review, "...the process by which, where a public body has a
duty imposed upon it by statute, or is guilty of gross irregularity
or clear illegality in the performance of that duty, its proceedings
be set aside or corrected" (on review). It also "denotes
the process by which, apart from appeal, the proceedings of inferior
courts of justice, both civil and criminal, are brought before the
Supreme Court, in respect of grave irregularities or illegalities
occurring during the course of such proceedings." (per Innes,
C.J. in Johannesburg Consol. Invest. Co. v Johannesburg Town Council,
1903 T.S. 111). In Barlin v Cape Licensing Court, 1924 A.D. 472 it
was further stated that proceedings on review can be brought to
interfere with a decision where "its proceedings were conducted
so that the applicant did not have a fair hearing."
the finding of the "enquiry" that they 'failed to find
tangible evidence to suggest that this information is correct",
relating to whether the further appeal was to be heard in the
October-November session of the Court of Appeal, and without having
heard any further recorded submissions or representations by or for
the applicant as to why he should not be dismissed, the following
finding was made.
on the basis of the information, we recommend to the Commissioner to
terminate his service in terms of section 29(e) of the Police Act No.
29 of 1957."
is on the above basis that the first respondent boldly states that
the hearing was in terms of natural justice. He states,
uncontrovertedly so, that the applicant's conviction followed on his
stabbing of an accused person in custody of the police, "...a
criminal offence which constitutes gross misconduct under the Police
Commissioner further says that upon the recommendation of the senior
officers who held the "hearing" he carefully considered the
matter and came to the conclusion that it warranted a dismissal.
this "careful consideration" of the matter, as it was put,
was based on and followed the recommendation of the officers who
conducted the hearing.
is however this very "hearing", which is pivotal in the
matter, which has to pass muster.
the 1st respondent's replying affidavit, further details of the
"hearing" come to light. Although it is in dispute as to
how his attendance at the Police Headquarters was secured, the
applicant was physically present on the first date. It is common
cause that he was asked about the outcome of the noted appeal and
that he could not prove that a further appeal was indeed due to be
heard soon thereafter.
he says that he was not made aware that the meeting was a
disciplinary enquiry. True or not, the filed record of proceedings
substantiates his allegation that he was not heard in respect of
whether he should be dismissed or not. Nor was his counsel, the late
advocate Thwala. The hearing, ex facie the record, centred on the
matter of his appeal and not on whether he should be dismissed. It
does not, in my respectful opinion, comply with any reasonable
concept of what a disciplinary hearing should be. It was not made
clear to the applicant that the purpose of the meeting was to make a
recommendation to the Commissioner about his possible dismissal from
from a cursory inclusion in the record that the constable was
burdened with an onus to show why he should not be dismissed, no
effect was given to the principle of audi alteram partem and nothing
was solicited from the officer in this regard, nor is it recorded
that anything further than the appeal issue was ventilated.
the applicant was not present on the second date of the "hearing",
although his advocate appeared.
effect of the abovementioned aspects are that the applicant was not
given a fair hearing, or at minimum even heard on his pending and
imminent dismissal, which resulted from the outcome of the "hearing."
his persuasively presented argument in court, Mr. Dunseith referred
to Baxter's standard work on Administrative Law at page 543 et seq.
where the learned author outlines two fundamental requirements
essential to a fair hearing. These are notice of the intended action
and a proper opportunity to be heard.
first of these has been mentioned above, namely whether his
attendance followed an oral message or a telex. Either way, there is
no indication that this was done timeously and certainly not that he
was properly appraised beforehand of the possibility that
administrative action was about to be taken against him. He was not
informed beforehand of the salient factors motivating the proposed
and more important to the outcome of this matter, he was prima facie
and factually, from a reading of the record of the hearing, also not
afforded a fair opportunity to present his case. He presented no case
at all in defence to his possible dismissal.
is no indication that he was given a reasonable time to prepare and
put forward his representations. Nor was he put in possession of such
information as would enable him to make his representations real, and
not illusionary. (See Heatherdale Farms (Pty) Ltd v Deputy Minister
of Agriculture 1980(3) SA 476(T)).
report or record of proceedings of the "hearing" gives no
indication that it was a fair hearing at all. A commonly referred to
principle of a hearing, like the one purportedly held, in respect of
the applicant is that:
(the tribunal or designated senior police officers) can obtain
information in any way they think best, always giving a fair
opportunity to those who are parties in the controversy for
correcting or contradicting any relevant statement prejudicial to
Lord Loreburn, L.C. (p.182) in BORD OF EDUCATION v RICE (1911, A.C.
179), referred to in NANABHAY v POTCHEFSTROOM MUNICIPALITY 1929
latter decision was referred to by Ms Mkhwanazi in support of her
argument that the delegated senior police officers were free to
obtain their facts in any manner they chose to. To that extent, she
is correct, but the principle goes further - before arriving at their
conclusion, they were obliged to give the applicant a fair hearing.
It is this which they did not do.
applicant was not heard on any aspect that relates to the decision
they were to make. His understanding was that he was to provide
information about his further appeal, which he was unable to do. By
all appearances, the outcome of the matter rested exclusively on
whether or not the Court of Appeal was still to hear an appeal
against the decision of the High Court. It seemingly did not matter
whether the applicant had anything to say about his dismissal or even
whether this was an issue.
said, in order to arrive at his own decision, the first respondent
placed reliance on the outcome of the "hearing", in respect
of which he delegated his powers and which resulted in a
recommendation to dismiss the applicant from the Royal Swazi Police.
decision on whether to dismiss the errant police officer or not is a
quasi judicial function which is to be exercised by the Commissioner
of Police. In the present case, the applicant was ostensibly afforded
a hearing, which for the abovementioned reasons was in fact a nullity
but which nevertheless had persuasive value in the ultimate decision,
taken under Section 29(e) of the Police Act. The nett effect of this
is that the application is to succeed.
further aspect that was unsuccessfully raised by the respondents is
that the applicant has chosen the wrong forum to air his grievance in
that he should first have exhausted his domestic remedies. There is
no statutory bar to the application. Also, he was deprived of the
principles of natural justice from the onset, which tainted the
subsequent outcome, and this in turn would also have distorted
subsequent domestic procedures. A fundamental consideration is the
principle of legality.
applicant also had the option to appeal to the Civil Service Board.
The fundamentally flawed recommendation by the designated senior
police officers would by necessity be the basis on which to proceed
and challenge the decision by the Commissioner. Quite understandably,
in my view, the applicant rather chose to seek an order on review
against his dismissal in the High Court, which forum has the
appropriate inherent jurisdiction to entertain his application.
this point also stands to fail.
the event, the application succeeds and it is ordered that the
proceedings and recommendation of Senior Superintendent Dludlu and
two others, held on the 14th and 26th September 2000, which resulted
in the dismissal of the applicant by the first respondent, be set
aside, as is the dismissal itself. It is further ordered that the
applicant be placed in the same position as he was prior to the 14th
September 2000 and that the Commissioner of Police remains at liberty
to determine the consequences of the applicant's conviction and the
subsequent appeal. It remains essential that the applicant be given a
fair hearing before any new determination is made.
are ordered to follow the event.