CHAIRMAN PUBLIC SERVICE COMMISSION & ANOR v HALL 1992 (2) ZLR 271 (S)

Flynote

Constitutional law — Declaration of Rights — s 16 — protection against compulsory acquisition of property — the imposition of a fine by Public Service Commission in terms of Public Service misconduct regulations — whether in violation of s 16 of the Constitution

Employment — discipline of public service officers found guilty of misconduct — whether constitutional to impose fine upon such officers

Headnote

In a cross-appeal, the respondent argued that the Public Service (Officers) (Misconduct and Discharge) Regulations, 1986 (SI 161/86) are ultra vires the Constitution insofar as they purport to allow for a fine to be imposed upon a public officer found guilty of misconduct. It was argued that the imposition of such a fine under these regulations is in contravention of s 16(7) of the Constitution which prohibits the compulsory acquisition of property and it does not fall under any of the exceptions permitted, namely fining for a breach of law or for contempt of court or parliament.

Held, that the power to fine a public officer for misconduct was not in violation of the Constitution. In terms of s 75(1)(f) of the Constitution, the Public Service Commission is specifically empowered to "punish" members of the public service found guilty of misconduct. This is in addition to the power granted to the Commission by s 75(1)(d) to exercise disciplinary control over public officers and to remove them from office. As the Commission clearly cannot imprison or sentence to death public officials, the only power which remains to give a meaning to the Commission's constitutional power to punish, not already given

McNally

by the other provisions, is the power to impose a financial penalty, either by way of a fine or by way of reducing the rank and salary of the officer or withholding an increment or promotion.

Held, further, that the decision of the Privy Council in the case of Norton v Public Service Commission [1988] LRC (Const) 944 that the fining of a Mauritian public servant for misconduct violated the provision in the Mauritian Constitution forbidding the deprivation of property was distinguishable. Under the Constitution of Zimbabwe the Public Service Commission was specifically empowered to "punish" public officials guilty of misconduct. Such a provision was absent from the Constitution of Mauritius.