MOYO v SECRETARY FOR JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS 1988 (2) ZLR 185 (HC)

Flynote

Administrative D law — audi alteram partem rule — inquiry into allegation of misconduct by public servant — officer conducting inquiry required to report findings to higher authority — higher authority empowered to take disciplinary action on basis of those findings — public servant entitled to be heard during inquiry.

Headnote

The applicant was clerk of court at Mbare Magistrates Court. He was suspected of having paid witness expenses to a non-existent witness and suspended from duty. He was charged with misconduct in vague terms which did not specify the witness concerned; he denied the allegation. The respondent then, in terms of s 23(2) of the Public Service (Conditions of Service for Employees) Regulations 1971, appointed an official F to inquire into the applicant's alleged misconduct. The inquiry was confined to an examination of certain documents; the applicant was not given an opportunity to be heard. On the basis of the official's report, the respondent advised the applicant that he had been found guilty of misconduct and that he would be discharged from the public service. The applicant sought an order setting aside the respondent's decision and directing the respondent to reconsider the matter. The essence of the applicant's complaint was that the audi alteram partem rule had not been observed and that he had not been made aware of the specific charge against him.

The respondent's reply was that since the investigating official did not havethe power to decide anything, the audi alteram partem rule did not apply; alternatively, in the way the applicant was dealt with, the rule had notbeen violated.

Held, that since the very purpose of the inquiry was to enable the deciding authority to come to a decision and the report by the inquiring official constituted the very causa causans of that decision, the principles of natural justice applied. Further, a reading of the relevant provisions of the regulations themselves clearly indicated that before disciplinary action is taken against him an employee must be heard.

Held, further, that on the facts the audi alteram partem rule had not been observed. The applicant's denial of the vague allegations should have shown the investigating official that a thorough inquiry was needed.