IN
THE HIGH COURT OF SWAZILAND
CASE
NO: 2026/1994
In
the matter between:-
NOEL
B. NKUMANE Applicant
Vs
THE
ATTORNEY GENERAL Respondent
CORAM :
Hull, CJ.
FOR
THE APPLICANT Mr. L. Mamba
FOR
THE RESPONDENT Mr. Maseko
JUDGMENT
(22/12/94)
By
this application Mr. Nkumane, who is a public prosecutor holding the
rank of Senior Crown Prosecutor in the Ministry of Justice, seeks an
interdict restraining the Civil Service Board and its agents from
proceeding upon disciplinary charges against him. He also seeks to
have set aside his own interdiction from office by the Principal
Secretary for Justice, which interdiction has been in force since the
1st January 1994, pending the outcome of those disciplinary
proceedings.
There
is a history to the matter and it can be stated fairly shortly for
present purposes.
2
In
July 1993 the board purported to hold a disciplinary-enquiry into the
matters that are the subject of the charges that are currently
pursued. These relate to the way in which Mr. Nkumane had conducted
his duties as a public prosecutor. On 21st July 1993, the secretary
to the board informed him that because of his alleged misconduct the
board was terminating his "probationary" appointment from
23rd July 1993. He had been employed in the Ministry since the
beginning of 1986, at first as a Clerk of Court. In September 1986 he
had been promoted to be a Crown Prosecutor. In September 1992 he had
again been promoted to the rank of Senior Crown Prosecutor.
Mr.
Nkumane challenged the action of the Board on review, in Civil Case
No 1229/1993. His application was not opposed. In a judgment
delivered on the 13th October 1993, I made an order setting aside the
decision of the board purporting to terminate his appointment. The
reasons for that order are set out in detail in that judgment. In
summary, I found that by 21st July 1993, he was no longer a
probationer. I also found that the board, in conducting the earlier
disciplinary proceedings, had failed to observe the laws of natural
justice in two respects, i.e. it had denied Mr. Nkumane any
reasonable opportunity to answer the charges and, by the way in which
it had conducted the proceedings, it had given rise to a real
appearance of partiality.
As
far as the first of these matters was concerned, the board had given
Mr. Nkumane initially one day's notice of the proposed hearing. At
that time it had not specified the
3
charges
he had to answer. These were only given to him on the day on which he
had to appear. On that day he was then given one further day in which
to prepare his defence. When, on the following day, his attorney
asked for further time to consider court records amounting to some
one hundred and thirty seven pages, he was only given thirty minutes
in which to do so. Then, after the hearing had commenced, Mr.
Nkumane's counsel was not permitted to cross-examine witnesses fully,
being interrupted and stopped by the chairman of the board. After the
then Acting director of Public Prosecutions had called the witnesses
in support of the charges, the chairman adjourned the proceedings for
decision without allowing Mr. Nkumane any opportunity to reply.
As
to the second ground of review, the board had twice allowed the
Acting Director (by whom the charges were being presented) to remain
alone with its members, while requiring Mr. Nkumane and his counsel
to withdraw. The first of these occasions had been when the Board was
considering Mr. Nkumane's request for a postponement.
The
order setting aside the board's decision was made and was expressed
to be made on the basis that those breaches of the rules relating to
fairness constituted a serious irregularity. The board did not
challenge the judgment on appeal.
Thereafter
Mr. Nkumane reported for duty at the chambers of the Director of
Public Prosecutions. In the meantime
4
however,
his room had been given to someone else. It was not made available to
him again and he was not given further work. Moreover, arrears of his
salary which had been withheld were not paid to him until January
1994.
In
the meantime, by a letter dated 24th December 1993, the Principal
Secretary for Justice informed him that in pursuance of General Order
A 907 (2) he was interdicted from his duties as Senior Crown
Prosecutor with effect from the 1st January 1994, "...pending
the outcome of disciplinary proceedings which are in the process of
being instituted". He was also informed that during his
interdiction he would receive one half of "... his normal
monthly salary", and that in terms of General Order A 907 (5) he
was not allowed to leave his duty station during his interdiction
without the prior permission of the Principal Secretary.
On
3rd August 1994, the Principal Secretary wrote to him again,
enclosing in terms of regulation 42 (2) of the Civil Service Board
General Regulations 1963 a statement of the three formal disciplinary
charges against him that are the subject of the present application.
In the letter, the Principal Secretary called upon him to state in
writing by 25th August any ground on which he might wish to rely to
exculpate himself, and warned him that any statement might be used in
evidence against him in the disciplinary proceedings.
On
19th August, Mr. Nkumane's attorneys responded on his behalf denying
each of the allegations in the charges. Although the Principal
Secretary intends to proceed under regulations
5
43
and 44 on the charges, the matter rested at the time of the present
hearing, so far as communication between the Ministry or the board on
the one hand and Mr. Nkumane on the other was concerned, with the
letter of the 19th August from the latter's attorneys. He had
remained under interdiction on half salary throughout 1994.
In
the present application, as it was filed, Mr. Nkumane sought inter
alia, a rule nisi calling on the Attorney General to show cause why
his interdiction should not be set aside with costs in his favour on
the attorney and client scale. He had sought an interim order to that
affect pending the return date. In the event the rule nisi was issued
by consent, without interim relief pending the return date.
In
his founding affidavit on this application, Mr. Nkumane asserts in
paragraph 10 that the board is precluded in law from hearing the
charges. He sets out in six sub-paragraphs his basis for saying so.
It is not entirely clear, from the paragraph itself, precisely how
the allegations in the sub-paragraphs are related to each other. They
refer to the fact that the board has already tried the same charges,
hearing the matter on the fact and reaching a "definitive"
conclusion. They also refer to the fact that the board in doing so,
disregarded the rules of natural justice and they refer to this
court's subsequent judgment on review.
6
It
appears from paragraph 11 of the "pleading" that this is
intended to expand on paragraph 10, because it is there asserted that
Mr. Nkumane is advised and believes it to be "unfair and unjust"
to allow the Board to reinstate the matter because the Board is now
res judicata and/or it is also functus officio. Then, in paragraph
12, he goes on to state that he believes that because of their
actions after the judgment given by the High Court in October 1993,
the board and the Ministry have no genuine and bona fide intention of
dealing with him fairly.
In
paragraph 13 he also asserts that in any event, even if the board may
try him again on the charges lawfully, "justice" demands
that they should not be tried before the same members of the board.
Although
Mr. Nkumane was served with the formal disciplinary charges that are
now pending before he brought this present application, he did not at
the outset seek an order interdicting the board or the Principal
Secretary from proceeding with the charges. He only sought to have
his interdiction in the meantime set aside. As it is clearly part of
his case that the board should not proceed further on the charges in
question, I asked Mr. Mamba in the course of his reply about this
apparent omission. He explained that the application had been
restricted in its prayer for relief because, at the time when it was
lodged, the formal disciplinary proceedings had not commenced. In my
view that is not in fact correct. However, Mr. Maseko for the
Attorney General consented (properly, in my view) to the amendment
accordingly.
7
The
Principal Secretary for Justice has given an affidavit in answer. In
it he states that he is duly authorised to make it. The deposition
includes argument as well as assertions of fact. (Perhaps for the
sake of completeness I should interpose that so does the affidavit of
the applicant, and this is something of a practice in this
jurisdiction, but if I may say so, by way of a complete aside, I
think that the issues in legal cases of this nature are much better
defined if argument is dealt with from the bar and affidavits are
restricted to matters of fact.) I will refer only to those statements
of fact that are in my view relevant to the present issue, and I will
assume for the argument that the Principal Secretary is in a position
to depose to those matters which relate to the state of mind of the
board members themselves. It does appear to me that he is not the
right person to swear to such matters, but no objection has been
taken by Mr. Nkumane on that score.
The
Principal Secretary acknowledges that he has already proceeded under
regulations 43 and 44, and referred the matter afresh to the Board.
He denies that the board's failure to oppose the earlier application
was an indication that it had disregarded the rules of natural
justice or that it unfairly found Mr. Nkumane guilty. He also denies
that the board and the Ministry have no genuine and bona fide
intention of dealing with Mr. Nkumane fairly. In doing so, he says
Mr. Nkumane was not given work after the original decision was set
aside because it was intended to have disciplinary proceedings
brought against him properly and to interdict him, so that there was
no point in giving him
8
further
work. He has also said that the delay in the payment of his arrears
of salary was simply a matter of accounting procedure. He says that
the reason for the length of the interdiction is simply that the
Ministry has been conducting a departmental enquiry and collecting
evidence to prove the charges that are now being pursued.
In
responding to Mr. Nkumane's founding affidavit, he also denies that
the penalty imposed originally by the board was out of proportion,
and expresses the view that it was the only appropriate sentence, and
he denies that the board as constituted at the earlier hearing could
not retry the charges fairly.
The
interdicts that are now sought by Mr. Nkumane will be granted. My
first reason for doing so is that when I set aside the earlier
decision of the Board, I did not remit the matter to it for
reconsideration. My order was not challenged on appeal. Th charges
which it is now sought to pursue against Mr. Nkumane are therefore at
an end.
Moreover,
although I did not in my earlier judgment go quite so far as to find
that the board had acted mala fide in its conduct of the earlier
proceedings, its actions were grossly irregular . They involved
fundamental and serious breaches of the requirements for fairness.
Even it were accepted for the sake of the argument that the charges
could be retried, the subsequent course of events itself gives rise
for continuing, serious concern, on a very liberal view. An
9
interdiction
lasting for more or less one year is in my view patently excessive.
The delay assumes even greater proportions when one takes into
account that one reason given for this is that the Ministry has been
collecting evidence. The same charges were initially taken to a
hearing seventeen months ago. I am not able to accept that it could
reasonably take so long to gather evidence to enable them to be
presented again properly.
Even
assuming that the Principal Secretary can in his affidavit speak for
the members of the board, I cannot accept either that that tribunal
as previously constituted would ensure Mr. Nkumane a fair hearing
now. By its earlier actions, it has in my view in this case
compromised irreversibly its ability to do so. I do not believe that
it could do so in fact, and certainly it could no longer do so in
such a way as to dispel any reasonable suspicions that its members
would not be impartial. In this matter, a hearing before such a
tribunal could not be seen to be a fair one. The fact that the
Principal Secretary persists in averring that a rehearing by the
board itself could be held impartially and has expressed views on the
appropriateness of its earlier verdict, and his assertion that the
board is not to be taken as having indicated by its failure to oppose
the earlier proceedings that there had been irregularities in the
earlier proceedings also cause me concern. He is purporting to speak
on behalf of the board. Strictly, as I have already indicated, I do
not think that it is appropriate for him to do so. I would like to
believe, and it may very well be the case, that the Principal
Secretary
10
in
making his affidavit in answer has acted on advice. If that is so, in
my view he has been advised badly. I do not think that he ought to
have been put in that position. Nevertheless the affidavit has been
sworn and filed. The respondent here relies on it. In the ways that I
have just described it gives in my mind to real concerns, even if the
course were open to the board, as to whether a further hearing would
be impartial. If there were to be a re-hearing of the charges, it
would obviously be necessary for this court to stipulate conditions
(which is a course of action open to it).
One
other concern that I have about this whole affair extends beyond the
relief actually sought by Mr. Nkumane. He is a public prosecutor. He
derives his authority to conduct criminal prosecutions from the
Director of Public Prosecutions, and no one else. The Director is
independently responsible for the control of all criminal
proceedings. There are very important reasons why that is so. the
point of the constitutional and statutory provisions vesting those
responsibilities in him is to ensure that the process of criminal
prosecution is objective, i.e. detached from outside influences. The
charges that the Ministry seeks to pursue relate directly to the way
in which Mr. Nkumane is said to have conducted criminal prosecutions.
In principle, is seems to me that this is a matter solely for the
Director. No prosecutor can appear to conduct a criminal case except
on his authority. I think that it is dangerous to allow a body such
as the Civil Service Board, or for that matter any other person
11
except
the Director, to call into question in disciplinary-proceedings the
way in which a prosecutor discharges his professional duties. In fact
it seems to me that it would be contrary to basic principle to allow
that. In my view, the disciplinary control of prosecutors should be
dealt with under an independent professional regime complementing
that which applies to judicial officers.
As
I say, that has not been raised in the present application but if it
were appropriate to allow these charges to be referred back for
re-hearing, then a question would arise as to what accompanying
directions would need to be given. They would in my judgment have to
be to the following effect:
The
charges would have to be determined by a tribunal that was
demonstrably independent;
It
would, I think, have to include as its presiding member an
independent judicial officer;
Given
that the Civil Service Board itself heard the original charge, it
would in my view in this case have to abide by the decision of the
independent tribunal, whatever that decision might be.
But,
still assuming that it were open to the board to direct a further
hearing, the question then arises whether those conditions would be
sufficient to ensure that Mr. Nkumane had a fair hearing. In the
circumstances of this case, I do
12
not
think that they would be. Mr. Maseko, in his submissions, said that
if the board is not able to proceed on these charges its functions
would be impaired. I took him to mean that if it is not able to do
so, but the charges have substance, then the efficiency of the
process of public administration in the specific context of criminal
justice is going to be impaired, irremediably. On his premise that
may be so, but the underlying reason will be that because of the
serious irregularities in the way that the board originally dealt
with these charges, it has itself vitiated its own disciplinary
process fatally in this case. That sometimes happens. It must live
with the consequences. On the whole of the evidence, I am not at all
satisfied that even if a rehearing were to lie, and even on
conditions imposed by this court, Mr. Nkumane could receive a fair
hearing.
I
therefore grant the interdicts sought. One immediate consequence of
this should be that Mr. Nkumane is reimbursed his arrears of salary
forthwith. I consider it necessary to say that if that does not
happen with all reasonable speed, then on his further application I
can foresee that there may be specific consequences for individual
members of the Civil Service.
The
costs must follow the event. Mr. Nkumane asks, as he had done
unsuccessfully at the earlier hearing, that they be on the attorney
and client scale. On this occasion I agree.
13
In
the way in which the whole matter has been handled by the authorities
he has been denied his entitlements in a way that, for the reasons I
have already outlined, I am obliged to say in my view constitutes a
serious abuse of power.
DAVID
HULL
CHIEF
JUSTICE
