KNOWER v MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS & ANCHOR 1992 (2) ZLR 356 (S)

Flynote

Administrative law — Public Service (Officers) (Misconduct and Discharge) D Regulations 1986 — impermissible to impose unspecified surcharge on officer — inquiry necessary to establish extent of guilt — whether inquiry therefore necessary to establish guilt itself

Headnote

A considerable amount of stationery ordered by the section under the control of a public official went missing. The public official had failed to keep records of the large amounts of stationery coming in and going out of his section. The Public Service Commission found him guilty of certain charges under the Public Service (Officers) (Misconduct and Discharge) Regulations. These charges related to negligent performance of his duties and to failure to take reasonable care of or to account for stationery ordered by his section. Various penalties were imposed including demotion and the imposition of a surcharge on the officer for the stationery unaccounted for, in a sum to be determined in consultation between the officer's Ministry and the Treasury. This determination was made by the Public Service Commission without holding a Board of Inquiry into the matter.

In a review of this determination in the High Court, the court found that on the evidence before it the Commission was entitled to find him guilty as charged, but that it should have held an inquiry to determine the extent of his guilt and hence what penalty was appropriate. Such an inquiry was necessary in order to allow the officer to offer an explanation for the shortfall in the stationery stocks and how this had come about. The court therefore set aside the penalty imposed and remitted the matter to the Commission to make a fresh determination as to penalty after holding an inquiry.

In appeal against the High Court decision it was argued on behalf of the officer that if an inquiry was necessary to establish the extent of the officer's guilt, then an inquiry was also necessary to establish the guilt itself and that therefore an inquiry into his guilt should have been held.

Dismissing the appeal, it was decided that no inquiry into guilt was required because the officer was clearly guilty of negligence as he had failed to keep any records and he had maintained no control system. The Supreme Court, however, pointed out that it was impermissible to impose an unspecified surcharge as a penalty and referred to the case of Metsola v Chrmin, PSC & Anor 1989 (3) ZLR 147 (S) at 160B et seq in this regard.