IN THE HIGH COURT OF SWAZILAND
Held at Mbabane Case No.: 525/2009
In the matter between
BONGANI GUMEDZE Applicant
THE CHAIRMAN OF THE CIVIL SERVICE COMMISSION 1st Respondent
THE COMMISSIONER OF CORRECTIONAL SERVICES 2nd Respondent
SUPERITENDENT S.J. SIHLONGONYANE 3rd Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL AFFAIRS 4th Respondent
THE ATTORNEY GENERAL 5th Respondent
Neutral Citation: Bongani Gumedze Vs The Chairman of The Civil Service Commission& 4 Others (525/2009)  SZHC 180 (25th August 2017)
Coram: Mabuza PJ, Hlophe J, M. Dlamini J.
For the Applicant: Mr T. R. Maseko
For the Respondent: Mr N. Dlamini
Dates Heard: 31 July 2017
Date Judgement Handed Down: 25 August 2017
Application Proceedings –Review of Second Respondent’s decision terminating the services of the Applicant as an officer at His Majesty’s Correctional Services .
Applicant allegedly failing to comply with an instruction by one of his Superiors calling upon him to attend a certain meeting of various departments preparing for a sports day and to thereat submit a report from the Juvenile Industrial School Department – Applicant allegedly failed to attend the meeting but asked a colleague to attend on his behalf and present the required report.
Although report presented, applicant charged with failure to comply with a lawful instruction by his superiors –Applicant found guilty of the charges concerned and dismissed from service.
Matters of Discipline governed by the Prisons (Disciplinary Offences) Regulations of 1965 –Whether procedure as set out in the Regulations adhered to –What the procedure says –Effect of failure to adhere to the procedure –Whether the disciplinary offence in question was a dismissible one –Respondents allegedly acted too harshly in the circumstances in dismissing applicant as offence not shown to be dismissible in terms of applicable Regulations.
Whether in view of the decision reached, it was still necessary to decide the constitutional question on the propriety or otherwise of the disciplinary hearing being conducted by a different body than by a service commission as envisaged by the constitution – Issue of discipline as envisaged by the Constitution is an issue that is already being addressed in Parliament – It is unnecessary therefore to decide constitutional question in those circumstances although the delay in passing its legislation is of great concern.
Consequently decision by the Respondents set aside on their failure to follow the Regulations –Effect of setting decision aside in law considered –Appropriate remedy in these circumstances –Court has discretion on what an appropriate remedy should be –Remedy by the court pronounced –Costs to follow the event.
 The Applicant instituted these proceedings seeking an order of this court reviewing and setting aside a decision of the First to Third Respondents terminating the services of the Applicant as an officer at His Majesty’s Correctional Services together with costs.
 The background to the matter is that on or about the 14th March 2007, the applicant, an officer at His Majesty’s Correctional Services, was called by one of his superiors, Chief Officer Sibusiso Dlamini and instructed or ordered to attend a meeting in preparation for a Sports Day event and to there at present a report of the Juvenile Industrial School.
 It would appear that the day of the meeting coincided with that of the hearing of an application instituted at the High Court in terms of which the question as to the propriety or otherwise of the officers of His Majesty’s Correctional Services to form or be part of a union was meant to be decided. Instead of heeding the instruction given to him by the Chief Officer to attend the sports meeting and present the aforesaid report, the applicant went to the High Court for the hearing of the matter mentioned above. He instead asked a colleague of his, one Officer Qeda Mthupha, to attend to the meeting and there at present the Report he had been instructed to present. It is apparent that the applicant was one of those in the forefront of the push for him and his colleagues to be allowed to unionise, which was hitherto prohibited by law.
 After apparently ascertaining that the applicant had failed to attend the meeting as directed, despite that the report he was meant to deliver thereat had been delivered by officer Qeda Mthupha, the Applicant was charged with a disciplinary offence where he was accused of having failed, without lawful excuse to carry out a lawful order or an instruction by one of his superiors. By so doing, it was further contended, the applicant had contravened Regulation 3 (n) of the Prisons (Disciplinary Offences) Regulations, 1965 as read with regulation 7 of the same Regulations.
 Following a Disciplinary Hearing that was subsequently held before one of his superiors, the applicant was found guilty and dismissed. The applicant reacted thereto by instituting the current proceedings, seeking the reliefs referred to above. Applicant contended in his said application that his dismissal was unlawful because there was allegedly no basis for his dismissal in law, given that the order had in fact been carried out following his having asked a colleague of his to do so and also because his matter had, according to him, been dealt with in a high handed manner resulting in his dismissal.
 A summary of his grounds for review was that the Second Respondent had no power in law to deal with issues of discipline of officers of His Majesty’s Correctional Services given that since the advent of the constitution, that power was reserved for the relevant sector service commission which had to be established in terms of the constitution. This, it was contended, is provided by Sections 190 (5) as read with Section 176 (1) and Section 178 of the constitution. The thrust of this contention is that the constitution provided as it did to ensure that the officers of the Correctional Services are insulated from possible victimization if their disciplinary matters are dealt with by an independent body as opposed to their superiors given that this is what he said the constitution emphasizes.
 The other ground was that in dealing with the matter in the manner that it did, the 3rd Respondent as the person who chaired the Disciplinary process, failed to appreciate that the applicant was a first offender, which should have counted in his favour with regards the appropriate disciplinary sentence or sanction. Although this was not elaborated in the papers, it became clear when one considered closely the Regulations that this was a weighty factor in determining the seriousness or otherwise of a charge together with the concomitant consideration whether that offence or charge was dismissible or not. For instance according to Regulation 4(2) and 4(3), as shall be seen herein below, committing the same offence and being found guilty of it on at least three different occasions would ground a dismissal just as would having been convicted of at least six (6) different offences previously. The significance of this observation is in that the opposite is necessarily true.
 Whereas Applicant had also contended in his papers that he was not afforded an opportunity to give his evidence, it turned out, upon consideration of the record, that he was not correct as he had infact been given such an opportunity. Clearly this ground could not be pursued in argument and was abandoned when the court brought this aspect of the matter to the attention of Mr Maseko.
 The case by the Respondents on the otherside, and in a nutshell, was a denial that the applicant was entitled to ignore the instruction given to him by his superior, in a place of discipline like the Correctional Service Institution, under the guise that he had a right to attend a case in which he had an interest at the High Court. Because of the significance of discipline and the taking of instructions in a place like the Correctional Services Institution, it was argued that the dismissal of the applicant was an appropriate decision to have been reached. In this sense, it was argued, there was no irregularity in the handling of the disciplinary process. Whatever strength could attach to this argument, it can hardly override the reality that the failure to take instructions is not, on its own and in terms of the Disciplinary Regulations, a dismissible offence. Even if the Respondents on their own felt that such an offence had to be so elevated, they did not follow the Regulations on what to do when dealing with a matter the senior officer or Director viewed as being serious, as covered in Regulation 6, and as shall be seen herein below. There can therefore be no doubt, that during the Disciplinary hearing of the applicant, the offence was dealt with as one that was not dismissible in terms of the Regulations.
 The purpose of a review was expressed as follows in Johannesburg Consolidated Investments Company V Johannesburg Town Council 1903 TS 111:-
“Whenever a public body has a duty imposed on it by statute and disregards important provisions of the statute, or is guilty of gross irregularity in the performance of the duty, this court may be asked to review the proceedings complained of and set aside or correct them. This is no special machinery created by the Legislature; it is a right inherent in the court, which has jurisdiction to entertain all civil causes and proceedings arising within its territorial jurisdiction..”
 In my understanding from the grounds of review, the applicant’s contention is that the Third Respondent, when dealing with his matter disregarded the provisions of the applicable Statute and Regulations in so far as it did not take into account his being a first offender which formed the hallmark of the decision whether or not the offence was dismissible when viewed from the angle of Regulation 4(2) and (3). This in my view forms the foundations of the usual review as opposed to a constitutional one. In other words the procedure adopted was ultra vires the enabling statute or its Regulations which here is Section 64 of the Prisons Act of 1964 as read with the applicable Prisons (Disciplinary Offences) Regulations of 1965.
 On the other hand he complained that there was a gross irregularity because the tribunal or authority or person that dealt with the applicant’s matter had no power to do so, because in terms of the constitution, particularly Sections 172, 176 (1), 178 and 190 the power to discipline Correctional Services Officers, since the advent of the constitution lay with the appropriate service sector commission which has not yet been established. According to the applicant because of this fact the purported disciplining of the applicant by the Respondents was of no force or effect and was therefore irregular. This, no doubt is the basis of the constitutional question raised in this matter.
 That Section 190 (5) of the constitution which deals with among other issues, those of discipline in the Correctional Services, provides that the discipline of members below the rank of Deputy Commissioner, shall, pending the establishment of a relevant sector commission, be dealt with by the Civil Service Commission as before subject to any delegation of that authority, did not mean that the disciplinary action based on the Regulations should be continued with. He urged the court to find that this aspect of the matter was now contrary to the Constitution and should be struck down therefore, because, the subjection of the officers to discipline by their superior’s was naturally unfair.
 One of the questions to decide therefore is whether it will be necessary in the circumstances of this matter to decide it on both grounds referred to above, which are the disciplinary proceedings having been handled outside the Regulations and their having been dealt with by the Applicant’s superiors contrary to the constitution, which was said to be unfair instead of an independent service sector commission. I say this bearing in mind that the latter question is a Constitutional one, which in light of authority may not require to be decided.
 It cannot be denied that even before one can turn to the constitution, the issue of Discipline at the Correctional Services Institution is covered under The Prisons (Disciplinary Offences) Regulations of, 1965. This latter section are themselves founded under Section 64 of The Prisons Act, No 40 of 1964, which empowers the minister to make Regulations for the effective management of discipline in the Prison Institutions (now Correctional Services) of the country.
 The structure of the Regulations is to provide a list of all the possible disciplinary offences in the undertaking; including who qualifies to inquire into an offence allegedly committed by an officer; what the rights of an officer whose conduct is being inquired into are, as well as what the procedure in general and in serious cases is. It also provides what the punishments or sanctions are including who may impose what sanction.
 It is not in dispute that the Applicant as the officer whose conduct had to be inquired into was charged with contravening regulation 3(n) in that he had failed to carry out a lawful order without a good and sufficient excuse. In accordance with regulation 4(3) the offence said to have been committed by the applicant as a subordinate officer was to be inquired into by a Senior Officer or an Officer In Charge because the accused had not previously committed that same offence thrice in the past nor had he previously committed any other offence on at least six occasions. This fact foreshadowed the sanction that was to be imposed should the officer in question be found guilty of the offence, which is itself covered under Regulation 7(2).
 For the sake of completeness and to underscore the point herein being made, it is imperative that I quote Verbatim Regulations 4 (1), 4(2) and 4(3) at this point:-
4.(1) A disciplinary offence alleged to have been committed by a senior officer shall be dealt with in accordance with the Public Service Commission (General) Regulations, 1963.
(2) Subject to Paragraph (3) and regulation 6 a disciplinary offence alleged to have been committed by a subordinate officer shall be enquired into by the Director in accordance with this Act.
(3) Subject to regulation 6 if a subordinate officer has not been found to have committed the offence with which he is charged on three, or any disciplinary offence on six, previous occasions the disciplinary offence alleged to have been committed by him shall be inquired into by the officer in charge or any other senior officer designated by the Director for such purpose.” (emphasis are mine).
 The significance of Regulation 4(2) and 4(3) is found in the sanctions that can be imposed by the officer chairing or conducting the disciplinary inquiry in each such instance. For instance the Director of Prisons would inquire into an offence committed by a subordinate officer who has repeatedly committed such an offence and been convicted of same on at least three previous occasions or where the subordinate officer has in the past been convicted of at least six various offences. The sanction in such an instance, as covered under Regulation 7(1) includes dismissal. For the sake of completeness, Regulation 7(1) provides as follows:-
“7(1). If after an inquiry under these Regulations, he finds that the prison officer has committed a disciplinary offence, the Director may impose one or more of the following punishments _
(a) A reprimand
(b) A severe reprimand
(c) Extra duties;
(d) A fine not exceeding half the amount of the officer’s salary;
(e) Reduction in rank;
(f) Temporary suspension from office without pay;
(g) Dismissal.” (emphasis are mine).
 Where the offence is neither viewed as serious (which would be determined by same being dealt with in accordance with Regulation 6) nor has the subordinate officer whose conduct is being inquired into been previously convicted of same on at least three occasions or has a previous record of six convictions in various offences, and the inquiry is conducted by a senior officer, he cannot be dismissed according to Regulation 7(2).
 Owing to the relevance of Regulation 7(2) to the case in point herein, particularly that the applicant was a first offender with regards to the particular offence and had no previous convictions totaling 6 various previous offences, it is necessary for me to here extract verbatim the provisions of the said Regulation as regards the sanctions that can lawfully be imposed in terms of it:-
“7(2) If after an inquiry under regulation 4(3) he finds that the prison officer has committed the disciplinary offence, a senior officer may impose one or more of the following punishments –
(a) A reprimand
(b) A severe reprimand
(c) Up to four extra duties
(d) A fine not exceeding three Emalangeni,
Provided that no punishment imposed by such Senior Officer shall be carried into effect until such finding and punishment has been confirmed by the Director.”(Emphasis are mine).
 The offence faced by the officer whose conduct was being inquired into in this matter was not one inquired into by the Director of prisons, which in terms of Regulation 4(2) read together with regulation 7(1) could have justified a dismissal nor was it one considered a serious offence as envisaged in regulation 6 (1) and (2) which conceives a dismissal under certain circumstances, depending on whether the conduct is eventually inquired into by either a Senior Officer or the Director, with procedure set out under that sub – regulation having been followed though.
 Clearly, in the matter of the Applicant as the officer whose conduct was being inquired into, the inquiry was conducted by a Senior Officer which ruled out a dismissal as a punishment according to regulation 7(2). It seems to me that the irregularity that occurred herein, was therefore three – fold; it firstly being the failure to appreciate that the officer whose conduct was being inquired into was a first offender either on that particular offence or any other offence and secondly on the consideration that the disciplinary exercise of the officer in question was handled ultra vires the Regulations in so far it was inquired into by an officer who could not impose a dismissal as a sanction in terms of the Regulations and lastly in so far as a sanction not conceivable in a disciplinary matter handled as that of the concerned officer was, ended up being imposed.
 There can be no doubt that an officer whose conduct was being inquired into for having violated any of the provisions of the regulations, has a legitimate expectation to have his matter dealt with in terms of the Regulations such that any procedure or sanction that falls outside those prescribed therein amounts to an irregularity serious enough to warrant a review of the decision reached by the inquiry concerned. I am therefore convinced that the disciplinary process of the applicant was marred by serious irregularities warranting that it be set aside on the grounds mentioned in the foregoing paragraph.
 The other ground relied upon by the applicant for reviewing and setting aside the decision of the Respondents terminating the services of the applicant as one of the officers at His Majesty’s Correctional Services, is the constitutional one which relates to the propriety of the Third, Second and First Respondents in dealing with the disciplining processes of officers in His Majesty’s Correctional Services, since the advent of the constitution given that such is now supposed to be a preserve of a service sector commission, which it was admitted is currently not in place.
 The genesis of this argument is obviously Sections 172 of the constitution of the Kingdom of Swaziland (The Constitution) as read together with Sections 176 (1), 178 and 190 of the same Constitution. These sections, subject to their being relevant, provide as follows individually:-
(1) The Public Service of Swaziland shall be administered through the service commissions or similar bodies established under this constitution or any other law.
(2) The Public Service may be divided into sectoral units for ease of management and quick delivery.
(3) Each Sectoral Unit may have a separate service commission.”(Emphasis are mine)
(1) The functions of a Service Commission shall include appointments (including promotions and transfers) and selection of candidates for appointment, confirmation of appointments, termination of appointments, disciplinary control and removal of officers within the Public Service or any sector of the Public service.”(Emphasis are mine)
In the performance of its functions under this constitution, a service commission shall be independent of and not subject to any ministerial or political influence and this independence shall be an aspect of the exercise of any delegated powers or functions of the Civil Service Commission or any other service commission or similar body.”(Emphasis are mine)
“Section 190 (2) and ((3)
“ (2) The Superintendence of the Correctional Services is vested in the Commissioner of The Correctional Services.
(3)Subject to any lawful superior orders, the Commissioner of Correctional Services shall be responsible for the administration of and the discipline within the Correctional Services.”(Emphasis are mine).
Subsection (4)does not apply in respect of officers below the rank of officers below the rank of Deputy Commissioner of Correctional Services who pending the formal establishment of a sector service commission, shall continue being the responsibility of the Civil Service Commission, subject to any delegation of that responsibility
(3)For the avoidance of any doubt, in any case in which this section or this constitution does not apply the power to appoint, promote, transfer, or discipline or dismiss public officers shall, pending the establishment of the appropriate service commission or similar body continue to vest where it vests at the commencement of the constitution.”(Emphasis are mine).
 In his submission, Mr Maseko contended that since the advent of the constitution the power to discipline employees under a particular sector service commission vests in that commission. This, he submitted was to ensure that the body that disciplines the said employees is independent and its decisions are not clouded by personal considerations among others. Although the Correctional Sector Commission had not yet been established, he argued, it had taken Government rather too long to establish one and that this court was entitled to find that the disciplinary process of the officer concerned herein, (the applicant) in so far as it was conducted by the Respondents should be found to have been unconstitutional and should therefore be reviewed, corrected and set aside on this basis.
 Although sections 190(5) and 193 (3) of the constitution allowed a situation in a case where a particular sector service commission has not yet been established to continue with the disciplinary mechanism that applied at the time the constitution came into effect, it was argued by Mr Maseko that for the senior officers of the applicant to be allowed to continue with his disciplinary matter such was against the ethos of the constitution and that a disciplinary decision reached under such circumstances should be reviewed, corrected and set aside as it would have among others trammeled the independence required of such a functionary and undermined the provisions of the constitution with regards the fairness of the decision reached. Reference in this regard was made to the observations made by this court per Mabuza J in Eric Zikalala Vs The Commissioner of Correctional Services and Two Others Civil Case No.2810/08 (unreported), with regards the purpose of the Sector Service Commissions having to deal with matters of discipline.
 In light of the decision we have already reached in this matter as indicated above, I find it unnecessary to decide this latter ground for review. I do this in light of the numerous judgements of this court, the Supreme Court and various Courts in other jurisdictions to the effect that where a matter can be decided on a different point other than the constitutional one, then there may be no need to decide the latter one. The following local and foreign cases are authority for this position:-
* The Consolidated Matters under Thulani Maseko And Others Vs The Prime Minister of Swaziland Others; A.C. Civil Case No.2180/2009. (The Minority Judgement).
* Jerry Nhlapho and 24 Others Vs Lucky Howe N.O. Civil Appeal case no.37/2007.
* Daniel Didabantu Khumalo Vs The Attorney General Civil Appeal Case No 31/2010.
* S Vs Makwanyana And Another 1995 ZACC 3 (1995 (3) SA 391 (CC).
* S Vs Mhlungu And Others 1995 (3) SA 867 (CC).
* Zantsi V Council of State, Ciskei And Others 1995 4SA6115 (CC).
* National Coalition For Gays And Lesbian Equality And Others Vs Minister of Home Affairs And Others 2000 (2) SA 1 (CC).
 I would also avoid deciding the constitutional question in this matter on the ground that, that point has a lot to do with the passing of Legislation by the Legislature to provide for the establishment of the service sector commission or the like. This decision was not necessary in the circumstances of this matter because we were addressed during its hearing and informed that a Bill to introduce the structure to deal with matters of discipline in the Correctional Services Department as envisaged by the Constitution was already pending before Parliament. Indeed, on request, a copy of the Bill entailing this was availed by Mr Dlamini. It is on this basis I find it unnecessary to decide that question, in the peculiar circumstances of this matter. It must however be clear that I make no opinion whether or not that Bill meets the rigours of the Constitution. I only acknowledge its existence and that it is on the face of it there to address the constitutional need for a disciplinary structure as envisaged by the constitution.
 It must be clarified that when the matter was heard in court on the 29th June 2016, and upon realizing the possibility of granting the review application we directed the parties to address the court on a future date on what an appropriate remedy could possibly be in this matter in the event we were to grant the application. We did this having noted that the usual relief, where upon reviewing and setting aside the decision of the tribunal or statutory body would mean that a reinstatement had to necessarily follow, may not be a fair decision in all matters serving before court as each matter turns on its own peculiar circumstances. In this regard one had in mind such cases as Christopher Vilakati And The Prime Minister of Swaziland, Civil Appeal Case.No. 464/2009, which was a case distinguishable from this one in material respects, in my view. Whereas in that case no wrong doing was found on the part of the Applicant, the same thing cannot be said in this matter, as it is true there had been some wrong doing on his part except that a harsher than the provided sanction was imposed, calling for this court to intervene.
 Although in his heads of argument in this regard, applicant’s counsel urged this court to compensate applicant with an amount equivalent to what he was going to be paid if he was reinstated, which is the equivalent of arrear salaries from the day of his dismissal to today’s date, counsel was quick to point out that this court had the power to fashion out what it considered an appropriate remedy in the circumstances. Mr Maseko clarified that his client had moved on with his life and that other than a fair and appropriate compensation in monetary terms, he would not insist on reinstatement.
 Making his submissions on this aspect of the matter, Respondent’s Counsel Mr Dlamini, after having insisted on his earlier argument that there was no basis to find against the Respondents because the conduct of the applicant allegedly warranted a dismissal as it was a failure to take instructions in a place founded on discipline, particularly the taking and carrying out of instructions, argued that if besides his said argument, this court would still find that to review and set aside the decision of the Respondents complained of was an appropriate remedy, it would in the circumstances, be proper to award a monetary compensation not exceeding what in the Industrial Relations parlance would be a maximum compensation.
 According to Mr Dlamini this kind of compensation was favoured because, it was the one applicable in cases of dismissal in matters of general employment which was the prevailing practice in the country. It was argued further that the delay in finalizing the matter since 2009, was not attributable to any of the parties. While I find Mr Dlamini’s argument attractive, I do not think it will be fair in the circumstances of the matter to fix the Applicant’s compensation at a salary of 12 months reckoned on the amount the applicant earned at the time. Given that if the matter had not delayed this much to be heard, a reinstatement could have been an appropriate remedy and would have been given, and that such delay cannot be blamed on any of the parties, it seems to me that it would be fair to order that the compensation to be paid to the applicant be reckoned using the salary currently attaching to the rank he held at the time of his dismissal. The Respondents have advised us that this monthly salary stands at E13, 783.36. This was by means of a Salary advice served and filed in court by the Respondent’s counsel as directed.
 It must be clarified at this point that this court is alive to the fact that the matter before it is a review application which under normal circumstances would require that in the event of applicant succeeding, it be referred to the statutory body or tribunal concerned to rehear it and come up with an appropriate remedy. This however is not feasible in instances where the reference of the matter back would be an exercise in futility. See in this regard Sagila Dlamini Vs Diesel Services LTD and Another High Court Civil Case No.1783/2016 as well as Herstein And Van Winsen’s, The Civil Practice of The Supreme Court of South Africa, Fourth Edition, Juta and Company at 959.
 Usually after reviewing and setting aside a decision of a lower court or body the result would be a referral of a matter back to the structure that heard it. As indicated above however, this will not be feasible in this matter. This would mainly be because it would not be possible for the tribunal concerned to assess matters of an appropriate compensation. It would therefore in that sense be an exercise in futility for this court to refer the matter back. This court should therefore, decide the question of the appropriate remedy. It was in fact in realization of this reality that the parties were urged to address this court on this question. This court expresses its gratefulness to the assistance given it by the parties Counsel in this regard.
 Taking into account all the circumstances of this matter, the following will in my view be an appropriate order to make in the circumstances of the matter:-
37.1 The decision of the First, Second and Third Respondents, terminating the services of the Applicant be and is hereby reviewed, corrected and set aside.
37.2 The First, Second and Third Respondents be and are hereby ordered to pay applicant a compensation amounting to an equivalent of 12 months salary calculated at the current salary of the rank occupied by the Applicant at the time of his dismissal.
37.3 The Second Respondent be and is hereby ordered to pay the costs of these proceedings at the ordinary scale.
N. J. HLOPHE. J
I agree Q.M. MABUZA.PJ
I also agree M.DLAMINI J