In
the High Court of Swaziland
Civ.
Case No. 1299/93
In
the matter between;
Noel
Bonginkosi Nkumane
vs
The
Attorney General
The
Chairman Civil Service Board
The
Civil Service Board
CORAM:
Hull, CJ.
FOR
APPLICANT Mr. Mamba
FOR
RESPONDENTS No appearance
Judgment
(13/10/93)
This
is an application for review. According to paragraph (a) of his
notice, which is described as a "notice of review" but is
in substance a notice of motion by way of review in accordance with
sub-rules (I) and (2) of rule 53 of the High Court Rules, Mr. Nkumane
seeks an order "that the decision of the Civil Service Board of
the 20th July 1993 terminating the applicant's employment shall be
reviewed corrected and set aside."
The
notice of motion, which is supported by an 'affidavit (inter- alia)
from Mr. Nkumane, was served on the Chairman of the Board, on the
Board itself and on the Attorney General on 13th September 1993.
2
There
has been no response at all from any of the respondents. The Chairman
has not despatched to the Registrar of the High Court the record of
the proceedings which Mr. Nkumane seeks to review.
None
of the respondents has given notice under sub-rule (5) that he or it
intends to appose the granting of the order sought, or filed any
affidavit in answer.
Sub-rule
(7) of the rule provides that the provisions of rule 6 as to the set
down of applications "and sub-rule (11) thereof" shall
mutatis mutandis apply to the set down of review proceedings.
Rule
6 (11) , as it now stands, provides that where a respondent does not,
on or before the day specified in his notice of application, notify
the applicant of his intention to oppose, the applicant may place the
matter on the Roll for hearing by giving the Registrar notice of set
down not later than two court days before the day assigned by the
Registrar or directed by the Chief Justice upon which the application
is to be heard. That requirement has to be construed as being
modified in the case of a notice of motion for review, I think,
because sub - rules (1) and (2) of rule 53 contain no provision
corresponding to rule 6 (10) (which requires the applicant in an
ordinary inter partes notice of application to state a day on which
the application, if not opposed, will be set down.) I do not think
the effect of rule 53(7) is to apply rule 6 (10) to notices of motion
by way of review. In the result, the requirement in rule 6 (11) that
is applicable on unopposed applications for review, in my view, is
simply that the notice of set down must be given to the Registrar not
later than 2 court days before the date of hearing.
In
this instance, the applicant gave notice of set down on Wednesday 6th
October and the application was set down on Friday 8th October. That
complies, in my view, with rule 6 (11) and in the circumstances there
is clearly no prejudice to any of the respondents.
3
In
Motaung v. Mukhubela and Another NNO 1975 (1)SA 618 (O) at 625-6, M.
T. Steyn J. held that in the corresponding South African rule, the
requirement for a respondent to deliver the record conferred a
benefit on the applicant which he could waive.
In
the present instance, Mr. Marnba indicated that he wishes to proceed.
It has sometimes been the practice in this court, where a respondent
has given notice of his intention to oppose but has not produced a
record in compliance with rule 53, to make first an order directing
him to do so, and only to proceed in the absence of a record If that
order is not complied with. Here, however, there has been no notice
of intention to oppose at all. Accordingly, I will proceed on the
applicant's papers.
In
his own supporting affidavit, Mr. Nkumane has said that he has been
employed in the Ministry of Justice since January of 1986, initially
as a Clerk of Court. On 1st September 1986 he was promoted to be a
Crown Prosecutor and in September of 1992 "to act" as the
Senior Crown Prosecutor for Hhohho.
At
3.30 p.m. on 13th July 1993, he received a letter from the Secretary
of the Civil Service Board, requiring him under "section 18 of
the Public Service Act 1963 (No 34 of 1963)" to appear before
the Civil Service Board at 10 o'clock on the following morning. He
duly appeared before the Board but asked for a postponement and for
leave to be represented at the hearing by an attorney "in terms
of Regulation 46 of the Act." He was granted a postponement
until 11.30 a.m. on the following morning - i.e 15th July -and he was
also given leave to be represented by an attorney.
He
has also deposed that what he described as "the charge"
against him, which he has attached as Annexure "B" to his
affidavit, was only served on him at 11.15 a.m. on 14th July.
4
This
document, which is a memorandum dated 13th July 1993 and is according
to its tenor addressed by the Acting Director of Public Prosecutions
to the Chairman of the Civil Service Board, states in its substance
as follows:
"DERELICTION
OF DUTIES - BONGINKOSI NOEL NKUMANE SENIOR CROWN PROSECUTOR.
THE
XING VS 1. NTOMBI NZALO
THULANI
SHIBA NHLANGANO MAGISTRATE COURT CASE NO. 235/92
"Mr.
Bonginkosi Noel Nkumane was the prosecutor in the above mentioned
case. The 2 accused had been charged with Robbery and Contravening
Section 12 of the Pharmacy Act respectively. In the Robbery, a motor
vehicle was allegedly stolen. On 10th February, 1993 the case was
heard by Mr. M.L.M. Maziya, Senior Magistrate, at the Nhlangano
Magistrate Court.
"Although
there was evidence that accused persons were in possession of the
said motor vehicle and the Blue Book was a fake, Mr. Nkumane made
sure they were acquitted by informing the said Magistrate to acquit
them. The Magistrate, on the" submissions made by Mr. Nkumane,
acquitted and discharged accused.
"2.
THE KING VS. EPHRAEM VUSIE DLAMINI - MBABANE MAGISTRATE COURT CASE
NO. 166/93
"The
abovementioned accused was charged with Contravening Section 84 bis
(1) of the Road Traffic Act, No. 6 of 1965. The facts of the case was
that the accused failed to give way to His Majesty's Convoy at
Lobamba on 27th May, 1993. Accused drove in such a reckless way, the
whole convoy (including His Majesty's car) had to take evasive action
to avoid collision. Nkumane ought to have charged the accused with
the appropriate and more serious offence of negligent driving under
the Act but he did not do so.
5
"Accused
also faced a. second count of Contravening Section 116(1) of the Act,
in that he drove under the influence of alcohol.
"On
11th June, 1993 the case was tried before Magistrate, Mr. Sabelo
Mngomezulu, in the Mbabane Magistrate Court. Mr. Nkumane negligently
misplaced the docket but proceeded to prosecute.
"On
Count 1 (i.e failing to give way to His Majesty), he led evidence
from some officers in the Royal Escort. Although they gave evidence
to establish the offence, Nkumane himself submitted to the Magistrate
that they should be acquitted and of course, the Magistrate did so.
"On
Count 2, Nkumane completely did not lead evidence which led to their
acquittal as well.'
"It
is; clear that Mr. Nkumane would prefer to perform the duties of a
defence attorney rather than those of a public prosecutor and I
request the Board" to give him the opportunity to go into
private life and perform those duties."
The
applicant , Mr. Nkumane was not able, in the time available to him,
to secure the services of his attorney of choice, Mr. C.S. Ntiwane,
to appear for him. Consequently he appeared before the Board the
following day with Mr. Mamba, an attorney employed by the same firm
who has since represented him, in order to seek another postponement.
The
Board consisted of the Chairman, three members and the Secretary. The
Acting Director of Public Prosecutions was present as well as the
applicant and Mr. Mamba.
Mr.
Mamba applied for a postponement on the grounds that having regard to
the seriousness of the allegations, there had been insufficient time
to prepare, and that the attorney
involved
(i.e. Mr. Ntiwane) was engaged elsewhere.
6
The
Acting Director objected to this, saying that the matter was urgent.
At 11.45 a.m. the Chairman said that the Board wished to reached a
decision by 2.00 p.m.
Mr.
Mamba then drew attention to the need for the applicant to have
access to the court records on which the allegations were based. The
Acting Director suggested that he be given half an hour to do so..
Mr.
Mamba also questioned the Acting Director's "position on the
Board" and pointed out in effect that he could not both sit with
the members and be the prosecutor. It is not asserted explicitly in
the supporting affidavits that the Acting Director was in fact
purporting to sit with the Board, though it is stated that thereafter
the Chairman then ordered the applicant and Mr. Mamba to withdraw for
5 minutes during which time the Acting Director remained behind with
the members of the Board.
On
their return, they were informed by the Chairman that the proceedings
were not a trial but an enquiry and that they, i.e. the Board, had
asked- the Acting Director to assist them, that the- applicant and
Mr. "Mamba would be allowed 30 minutes to read the court
records, and that the proceedings would resume at 12.20. The Acting
Director then gave him those records. They withdrew, while he
remained behind with the Board members.
At
paragraph 23, the applicant's affidavit states "The records
which we were meant to study in just thirty minute were a hand
written 126 page long and hand written 11 page record." I am not
sure what that means. However he goes on to say that on their return,
Mr. Mamba sought a further postponement on the grounds that the
records were bulky... and hand written and could not be studied in
thirty minutes, and that it was in any case apparent that the
applicant would have to call four named witnesses.
7
The
request was refused. The proceedings then went ahead.
The
Acting Director led four witnesses against the applicant.
Notwithstanding Mr. Mamba's objections, he was not permitted to
question them fully himself, his cross-examinations being interrupted
and stopped by the Chairman.
After
the Acting Director had called his witnesses, the Chairman informed
the applicant that he would be told of the Board's decision in due
course. Thereupon he adjourned the proceedings without affording the
applicant any opportunity to reply.
On
21st July, the applicant received from the secretary to the Civil
Service Board a letter, annexed at "D" to his affidavit and
dated the previous day, in the following terms":
"Dear
Sir,
"Following
your appearance before the Board on the- 14th and 15th instant, the
Board noted in the - last sentence of the second paragraph of your
memorandum reference DPP.1PRO/14/98 dated 7th July, . 19.93 addressed
to the Director of Public Prosecution that both dockets in the matter
between Rex V. Ephraem Dumisani Dlamini, case No. 166/93, were handed
over to you by Miss Matse before the 11th June, 1993. That this was
corroborated by Miss Lindiwe Matse in her evidence on the 15th July,
1993 at the inquiry conducted by the Civil Service Board.
"2.
Further, noted in the fourth paragraph referred to in my first
paragraph hereof that on the 11th June, 1993 when you were called
upon to go to court for this matter you looked for the dockets in
your office and inquired from your colleagues but to no
avail.......and that you went to court .
without
the dockets. That this was corroborated by Court Interpreter Mr.
Christopher Magagula.
Further,
that during the trial of the case referred above, you smell of
liquor. That this piece of evidence was not challenged.
8
"3.
Further, that in Staff Performance Appraisal Report for the period
from 1st January, 1987 to 31st December, 1987 you in your own hand
writing you wrote that one of your duties as a Public Prosecutor
was/is "to study the docket before taking the matter to court to
establish whether there is sufficient evidence to prosecute".
"4.
Further, that though you were first appointed to the Service of the
Swaziland Government on the 21st January, 1986 you are still on
probation.
"5.
Further, that you neglected or omitted to apply for a postponement of
the above matter when you well knew that you had no docket before you
on the 11th June, 1993 and further, that as a result of your
negligence, or omission you failed to call the evidence or Mr.
Leornard Dlamini, chemist, who would give evidence to the effect that
alcohol content in the accused was 21 grammes per 100 grammes against
1 legal limit.
"6.
The Board culminating from the above has directed me to inform you
that your probationary appointment will be terminated on the 23rd
July, 1993."
The
applicant's grounds of complaint about this matter have been set out
in paragraphs 30 to 36 of his affidavit, in the following terms:
"30.
It is my humble submission that there has been a gross miscarriage of
justice in the handling of this matter by Civil Service Board in that
the Board disregarded the two basic principles of natural justice Vis
nemo judex in re sua and audi altiram partem.
"31.
I am advised and I verily believe that a Board like the respondent
was a exercising quasi - judicial junction and was obliged to follow
the rules of natural justice.
9
"32.
I submit that Mr. Donkoh was a judge in his own cause in the matter
in that he being the accuser was, in the words of the Chairman
"advising the Civil Service Board." and actually sat in
with the members of the civil board whilst they were deliberating
over it.
"33.
Further, I respectfully submit that I was denied a fair hearing in
that:-
I
was not given sufficient notice of the hearing;
I
was not allowed to be represented by an attorney whom I had fully
instructed and thereby refused le representation;
I
was effectively denied access to the records in respect of which the
charges against me were based;
I
was not given the opportunity to cross-examine the witnesses who had
testified against me, and most importantly;
I
was denied the opportunity to present my version of the case and to
call witnesses.
"I
respectfully submit that the Civil Service Board actions are so
unreasonable and unjust as to be inexplicable except on grounds of
ulterior motive and/or mala fides.
"36.
I therefore submit that good course exists for the court to set the
Board's decision aside."
(Paragraph
36 should, correctly, be numbered 35).
Mr.-
Nkumane has also annexed, at "C" to his own affidavit, a
further affidavit by Mr. Mamba confirming his evidence to the extent
that it relates to Mr. Mamba. It seems to me
10
that
this affidavit should strictly stand by itself as an additional
supporting affidavit. I will treat it as such. It is, generally,
undesirable for counsel to give an affidavit in proceedings in which
he appears, though here, in the event, his deposition is not
disputed.
The
letter of 13th July from the Secretary to the Board to Mr. Nkumane
does not state why he is to attend before the Board on the following
morning. There is no such Act as the Public Service Act No. 34 of
1963. The letter is apparently intended to refer to regulation 18 of
the Civil Service Board (General) Regulations 1963 (34 of 1963). What
that regulation provides is that it is a breach of discipline for an
officer to fail without reasonable excuse to appear before the Board
when notified to do so or to comply with any lawful and proper
request of the Board.
The
document at "B" of Mr. Nkumane's affidavit, i.e. the copy
of the memorandum from the Acting Director to the Chairman dated 13th
July, which was handed to Mr. Nkumane in 14th July, is not formally
described as a statement of disciplinary charges. It is clear that it
contains two complaints against the applicant and it is apparent from
his affidavit that he understood that this was what they were.
Nevertheless, in passing, I do express the view that a formal
statement of a complaint - not necessarily in legal technical terms,
but nevertheless in plain language so that the person against whom it
is made understands clearly, so that he knows what he has to answer -
is always desirable.
The
last paragraph of the memorandum is also unsatisfactory. Mr. Nkumane
was not seeking to go into private practice. If, as he obviously did,
the Acting Director meant to allege that he had committed breaches of
discipline, he should have said so in plain language.
It
is apparent "from the letter of 20th July from the Chairman to
Mr. Nkumane (at "D" in his affidavit) that- the Board
reached a finding on at least the second complaint in
11
the
memorandum of 13th July. It was a finding as to the way in which he
had conducted his functions as a prosecutor.
It
also asserted that the applicant, who had been appointed to the civil
service as long ago as 21st January 1986, was still on probation. The
decision expressed in the last paragraph of the letter was that his
probationary appointment would be terminated on 23rd July 1993.
In
some jurisdictions, it is provided by law that persons are 30 be
appointed initially to the civil service on probation, for a
specified period, or for a period not exceeding a certain time limit.
Commonly, their appointments may be terminated without reason during
probation, and decisions must be made within the time limits whether
or not to confirm their appointments at the end of their probationary
periods.
The
position here appears to be somewhat different. I can find no
provision in the civil service statutes or in Government General
Orders that states specifically that all appointments must be on
probation.
The
relevant statutes and orders contemplate that appointments may be
made on probation and they provide for the confirmation (or
non-confirmation) of such appointments: (see regulations 30 and 22
(2) (e) of the Civil Service Board (General) Regulations, and General
Orders A140 and A141, for example.)
I
can find no provision that prescribes the maximum period of probation
nor one that authorises the termination without cause of a
probationer's appointment. Regulation 30(l) appears to contemplate
that probation should be for a specified period. It also sets out in
some detail the processes of confirmation, extension of probation and
non-confirmation. In particular, in sub-regulations (6) and (7), it
affords the probationer the opportunity to make representations if
there is a question as to his confirmation. General Orders A140 and
A141 also contain similar provisions.
12
On
the unchallenged evidence here, notwithstanding the final paragraph
in the Chairman's letter of 20th July to the applicant, the applicant
was not undergoing a process of confirmation or non-confirmation of a
probationary appointment. He was being accused specifically of
misconduct.
Under
the regulations, the Board does not make final decisions. It makes
decisions to tender advice.
Part
V of the Regulations deals with disciplinary proceedings. It is
provided in regulation 29(1), in Part IV (dealing with termination of
appointments), that as a result of disciplinary proceedings taken
under Part V, the Board may advise on the termination of the
appointment of a probationer.
It
appeared to be desirable to clarify at the hearing, of my own motion,
Mr. Nkumane's actual status. Accordingly I called him to give further
oral evidence. He testified that he had never received a letter, in
terms, confirming his appointment in the civil service. It was his
understanding that appointments in practice were initially made on
probation for two years. He had been promoted once in 1986 and then
to the rank of Senior Prosecutor for Hhohho in September of 1992.
Although paragraph 5 of his affidavit might be thought to suggest
otherwise, he also testified that he was promoted substantively to
that rank and not merely in an acting capacity. He said that although
he had never received a formal letter of confirmation, he had assumed
from this sequence of events, as a matter of course, that he had been
confirmed as a permanent officer.
In
answer to a question that I put to him, he testified that the letter
that he received, appointing him to be Senior Prosecutor for Hhohho,
had not been qualified in any way. In other words the appointment had
not been expressed to be on probation.
On
those facts, I think that the proper inference is that he was not a
probationer at the time of the proceedings now
13
under
review. It is difficult to accept that a person could be on probation
for so long. I think it is much more probable that the question of
his formal confirmation was simply overlooked, but I would hold on
the facts that his appointment t the civil service has been impliedly
confirmed, i xxx by his xxxter of appointment as Senior Prosecutor,
or alternatively that he was appointed substantively as Senior
Prosecutor without condition that he was in that post initially to be
on probation.
But
even if that is not so, the Board on the evidence chose to hold a
disciplinary inquiry against him and clearly one of formal nature. In
doing so, it was bound to comply with certain rules of natural
justice. This in the end, is the substance of Mr, Nkumane's
complaint. He says that the way in which the proceedings wore carried
on was grossly irregular, so that he is entitled to nave them set
aside this review.
His
complaint can be summarised under two heads, namely:
he
was denied an opportunity to state his case in answer to the
allegations made against him; and
The
Acting Director of Public Prosecutions was in the proceedings a
judge in his own cause, being the "adviser" to the Board
during their deliberations, and in the absence of the applicant or
his attorney.
In
conducting these disciplinary proceedings in respect of Mr. Nkumane,
the Board was clearly bound to give him a fair opportunity in which
to be heard. Van Coller V. Administrative Transvaal 1960 (1) SA 110
T.
The
courts will insist on the observance of the requirement unless it is
expressly or by necessary implication excluded by statute.
14
The
regulations do not exclude it expressly or by necessary implication.
On the contrary, in the case of formal disciplinary inquiries, at
least, they recognise it in several respects: see Regulations 42 to
46.
The
rule requires that the applicant should have been given a reasonable
opportunity to prepare for the hearing, that at the hearing he should
have been allowed to cross-examine the witnesses who testified
against him, and that he should also have been given the opportunity
to answer the allegations himself and, if he saw fit to do so, to
call witnesses.
On
the unchallenged evidence, these requirements were not fulfilled.
Initially he was not informed of the nature of the hearing. He was at
first given one day's notice of It was only on the following day,
when he appeared before the Board, that he was given the document
containing the allegations. He was then only given one further day in
which to prepare his case in answer, and on that next day he was
denied a further adjournment to be able to study the court records
with his counsel.
Notwithstanding
the requirements of natural justice, and the express provisions of
Regulation 45(1), he was interrupted in his cross-examinations of the
opposing witnesses. At the end of the case against him, he was denied
an opportunity to respond.
In
the absence of any kind of response, I am constrained to say that all
of this, In respect of proceedings which purported to end In a
decision to terminate Mr. Nkumane's services, was unreasonable,
unfair and irregular. On the most favourable interpretation to the
members of the Board, it discloses a profound lack of understanding
of the requirement for fairness in disciplinary proceedings and of
the purpose of a disciplinary inquiry. I think one may fairly ask, if
they chose to act as they did, what they saw as being the point of
the proceedings?
15
On
the evidence before me, I do not think it is demons crated explicitly
that the Acting Director of Public Prosecutions was the adviser bo
the Board . The Chairman said that he was there to assist the Board.
It is open to the Board, in holding a disciplinary inquiry, to
appoint someone to present the case against the officer charged.
In
that event, however, it Is trite that the prosecutor must not be xx
to participate, or to appear to participate, with the Board in its
deliberations. In this case, on the unchallenged evidence, the Acting
Director was allowed to remain with the members of the Board, after
they had ordered the applicant and Mr. Mamba to withdraw, while they
deliberated on Mr. Nkumane's request for a further postponement and
on the submissions made by his counsel as to the functions of the
Acting Director.
There
was also a second occasion on which he was alone with the Board while
the proceedings were continuing. Those circumstances were also a
serious irregularity which gave rise at the least to a real
appearance of partiality, in that the Acting Director appeared at the
least to be sitting in deliberation with the Board members in
proceedings in which he was already the prosecutor.
For
these reasons the application for review succeeds. The decision of
the Board is accordingly set aside. Mr. Nkumane asks for costs on the
attorney and client scale. Although the irregularities complained of
were serious, costs on this scale are not readily granted, and on
balance I think that the appropriate course is to award costs on the
ordinary scale in his favour against the respondents, which I do.
I
make no other order.
DAVID
HULL
CHIEF
JUSTICE
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