MAWERE & ANOR v CENTRAL INTELLIGENCE ORGANISATION 2007 (2) ZLR 246 (S)

Flynote

Constitutional law ” Constitution of Zimbabwe 1980 ” Declaration of Rights ” s 18(9) ” right to fair hearing within a reasonable time ” disciplinary hearing ” members of Central Intelligence Organisation ” not members of public service ” not governed by public service regulations ” disciplinary board set up by CIO ” not an adjudicating authority established by law ” no protection given by Constitution

Public service ” public servant ” who is ” employee of Central Intelligence Organisation ” not a member of the public service

Headnote

The applicants were members of the Central Intelligence Organisation, an ε organisation established in the President's Office for the protection of national security. In October 1998, they were suspended from duty on disciplinary grounds, the allegation being that they had defrauded the State. In 2006 a disciplinary board was eventually convened. When the CIO set up the Board it purportedly acted in terms of the Public Service Regulations 2000, published in SI 1 of 2000. The Regulations were made ε by the Public Service Commission in terms of s 31 of the Public Service Act [Chapter 16:04], with the concurrence of the Minister of Public Service, Labour and Social Welfare. The applicants asked the Board to stop the hearing in order for them to file an application with the Supreme Court in terms of s 24(1) of the Constitution, in which they sought a declaratory order that the delay by the respondent in dealing with their σ suspension from duty for more than eight years was a violation of their right to a fair hearing within a reasonable time guaranteed by s 18(9) of the Constitution.

Held, that the first question was whether the Board was a court or other adjudicating authority established by "law", as defined in s 113 of the α Constitution. In terms of s 14(e) of the Public Service Act, members of the CIO are not members of the Public Service. This being so, the applicants were not governed by the Act and the Regulations, and the disciplinary procedure set out in the Regulations did not apply to them. The Board set up by the CIO, purportedly in terms of the Regulations, was thus not covered by the expression "other adjudicating authorityestablished by law" in s 18(9) of the Constitution, as it was not set up in terms of any law governing the members of the CIO.

Held, further, that the fact that, in terms of the contract of service, the conditions of service, including disciplinary procedures, were in general aligned to those of the Public Service, did not mean that s 14(e) of the Act had been amended and that the employment contract had made the applicants part of the Public Service. That could only have been done by means of an Act of Parliament. Nor did it mean that the disciplinary authority set up by the CIO was a disciplinary authority established by law, because the Board was not set up in terms of any "law". Consequently, the right claimed by the applicants in terms of s 18(9) of the Constitution did not exist, and the application could not succeed.