IN
THE HIGH COURT OF SWAZILAND
Civ.
T. 1129/91
In
the matter of
CENTRY
BHEMBE Applicant
and
THE
CHAIRMAN OF THE CIVIL SERVICE BOARD 1st Respondent
THE
CIVIL SERVICE BOARD 2nd Respondent
THE
ATTORNEY-GENERAL 3rd Respondent
CORAM
: Hull C.J.
FOR
THE APPLICANT : Mr. S. Earnshaw
FOR
THE RESPONDENT : Mr. Mabuza
JUDGMENT
(ORAL)
(26/3/93)
Hull,
C.J.
It
seems to me that this application must succeed because although there
is a document' R1', which does indeed give Mr. Bhembe notice of his
dismissal from the Service as contemplated on the basis of specified
charges, and that is dated 15th March, 1990, the record does not show
at all -and indeed, it is not asserted - that, when a formal hearing
was held and he was invited to appear, he was told that he was being
called upon to answer the allegations that were made against him and
of course a fundamental principle of the rules of natural justice,
quite apart from the statutory provisions of the Civil Service Board
Regulations which I will come to- in a moment -
2
is
that a person who is accused of a matter of this nature is entitled
to know, in good time in advance, the nature of the charge "against
him and he is also entitled to be given a proper opportunity to
respond to it. Now the record does not show that when he was
eventually summoned to appear or invited to appear before the Board,
he was told that that was what he was invited to appear on.
The
procedure for disciplinary action is set out in the regulations. It
is set out in the Part headed "B. Disciplinary Proceedings",
from Regulation 41 onwards. In the Civil Service Board General
Regulations, that procedure does not abrogate the rules of natural
justice at all. It is compatible with them. That procedure first of
all sets out in Regulation 41 that the Departmental Head is to cause
a departmental preliminary investigation to be made so that he can
decide whether or not to prefer formal charges. Then in Regulation 42
it goes on to say what he shall do if he considers that formal
charges should be preferred.
It
does say, inter alia that he must transmit the formal charges to the
officer and call upon him to state in writing, within a reasonable
specified time, any grounds on which he wishes to rely upon to
exculpate himself. It further says that the officer shall be warned
by the Head of Department that anything he says in writing may be
used in evidence in subsequent disciplinary proceedings.
3
He
was by this notice - which is R1, as I say - told of the contemplated
charges and told that they were brought with his dismissal in
contemplation, and was also given the warning and was also given the
opportunity to exculpate himself. I may say in passing that it was an
error - a misunderstanding - in my view that the Department took the
view that it should insist that he sign it. It could certainly ask
him to sign it. it is easy to understand why a person in his position
may hesitate in signing it, but the fact of the matter is that it is
not necessary to obtain his signature anyway to a notice of this
nature. It is quite sufficient to give it to him, and then for
somebody to make an affidavit, or make a note, that he has duly
served it upon him.
The
real point in the case is that the matter was then subsequently set
down for hearing and, more precisely, he was invited to attend before
the Board in the first instance. Now at that stage he was not tola
that this was going to be a formal enquiry, in which the charges
against him would be heard and determined. The record does not show
that at all.
If
you look at Regulation 43 of these Regulations, it sets out clearly
what is to happen if a person does not exculpate himself to the
satisfaction of the Head of Department. The matter is to be reported
to the Board. Regulation 43 (2) sets out the information - the record
- that is to go before the Board.
Regulation
44 deals with the procedure on the enquiry; 45 deals with witnesses;
45 (2) contains an express provision that no documentary evidence is
to be used against an officer until he has been supplied with a copy
or given access to it.
4
And
it appears to me from the record that those steps were not followed
in this case. It is true that Regulation 49 goes on to say that the
Board can proceed otherwise than formally, but that is only in a case
where the alleged misconduct is not serious enough to warrant formal
enquiry. Now it can not be said in the present case that misconduct
which the Board decided was sufficient for dismissal could not be
serious. There is nothing more serious in the context of an employee
and employer relationship than dismissal.
And
so for those reasons, in my view, this application must succeed. I
think that what happened after that first enquiry is,strictly
speaking, irrelevant, because the fundamental point is that he was
not given a proper opportunity in accordance with the rules of
natural justice to appear and answer the charges at the first trial.
He was not given due notice that the charges were being proceeded
with him. And it would also appear that he was not given all the
papers that he was entitled to to make his defence.
So
in those circumstances the order prayed for, which is that the
decision of the 20th August 1990 dismissing him from the Service with
effect from the 31st August 1990, is set aside and the applicant is
entitled to his costs.
David
Hull
CHIEF
JUSTICE
