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.
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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
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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
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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
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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.
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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.
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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
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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
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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
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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
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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
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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.
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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