MAWUTA v SEC FOR FINANCE 2003 (2) ZLR 323 (H)

Flynote

Administrative law ” fair hearing ” oral hearing ” requirement for c witnesses to give evidence in presence of person charged ” person excluded while witnesses gave evidence ” procedural irregularity justifying setting aside of proceedings ” recalling witnesses for cross-examination not sufficient

Headnote

The applicant, a public servant, was charged with a disciplinary offence. He was denied the right to be legally represented at the hearing. When the witnesses gave evidence, he was excluded.

Although he was told that the witnesses would be recalled for cross-examination, only two out of the six witnesses were recalled.

Held, that where an oral hearing takes place, it must do so with the person charged being present to hear all the evidence against him so that he can, if he wishes, seek to controvert it. It was an irregularity for the disciplinary committee to have excluded the applicant from the hearing at the time when six witnesses' evidence was being led. The procedure adopted flew in the face of the spirit of an oral hearing, which was the intent and purpose of the regulations. It went against the grain of what constituted a fair hearing. It offended one's sense of fairness and justice. It could not be cured by recalling each witness to afford the applicant an opportunity to cross-examine that witness. Any cross-examination that followed upon this procedure would be a sham and a travesty of justice. The proceedings were flawed by this irregularity and would be set aside.