ATTORNEY GENERAL v MUDISI & ORS

SUPREME COURT, HARARE

[Civil Appeal SC 48-15]

March 20 and July 28, 2015

MALABA DCJ, GARWE AND PATEL JJA

Administrative law – judicial review – Former Attorney General under old Constitution subject to judicial review and the Administrative Justice Act [Chapter 10:28] – Former Attorney General empowered to supervise, direct and instruct every public prosecutor in the performance of his functions.

The appellant, the former Attorney General under the old Constitution, challenged a decision by the High Court to set aside his decision to withdraw the prosecuting authority of the respondents. The appellant had withdrawn the said authority without formally hearing the respondents following acts of insubordination by them.

Held, that the conduct of the Attorney General is subject to the inherent power of review vested in the superior courts. However, the courts cannot usurp the functions of the administrative authority and must limit the exercise of their review powers to ensuring that the authority’s conduct is legal, rational and procedural.

Held, that by virtue of s 11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], all public prosecutors are charged with the duty of prosecuting in the magistrates’ courts to which they are attached. Proof of such delegation is evidenced by a certificate to prosecute signed and issued by the Attorney General. This is recognized in s 180(1)(g) of the Criminal Procedure and Evidence Act which enables every accused person to challenge the authority of any prosecutor appearing at his trial, by pleading that he has no title to prosecute. A certificate to prosecute is a legal requirement that extends to all public prosecutors and is formal evidence of the Attorney General’s delegated authority to prosecute and its withdrawal or expiry carries the legal effect of terminating that authority.

Held, that the Attorney General as the principal repository of prosecutorial authority is empowered to supervise, direct and instruct every public prosecutor in the performance of his functions and the latter is required to obey and comply with every lawful order or instruction given by the former. The Attorney General is entitled, subject to the dictates of due process, to withdraw the prosecutorial authority delegated to any prosecutor.

Held, that although the Attorney General had the right to withdraw the prosecuting authority of the respondents, he could only do so in accordance with the governing tenets of natural justice embodied in s 3 of the Administrative Justice Act [Chapter 10:28].

Cases cited:

Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S), applied

Blankfield v Mining Commissioner of Barberton 1912 TPD 553, referred to

Brown v Leyds NO (1897) 4 OR 17, referred to

Holden v Minister of the Interior 1952 (1) SA 98 (T), referred to

National Foods Ltd v Masukusa 1994 (1) ZLR 66 (S), referred to

Telecel Zimbabwe (Pvt) Ltd v Attorney General NO 2014 (1) ZLR 47 (S), applied

Legislation considered:

Administrative Justice Act [Chapter 10:28], ss 2, 3, 3(1)(a), 3(2), 5

Criminal Procedure and Evidence Act [Chapter 9:07], ss 11(1), 180(1)(g)

Interpretation Act [Chapter 1:01], s 24(1)

Constitution of Zimbabwe Order, 1979 (SI 1600 of 1979 of the United Kingdom) ss 76(4), 76(5), 114(1)(a)

C Mutangadura, for the appellant

B Mtetwa, for the respondent

PATEL JA:

The appellant in this matter is the former Attorney General of Zimbabwe. On the effective date of the new Constitution, ie when that Constitution came into force in its entirety, being 22 August 2013, he became the Prosecutor-General, and his former title was reserved for the new Attorney General, who retained the non-prosecutorial functions of that office.

The respondents are public prosecutors tasked to perform prosecutorial functions at different stations in the country. They were employed as such by the Public Service Commission (the Commission) which, on the aforesaid effective date, was renamed as the Civil Service Commission.

For the purposes of this appeal, I shall refer to the relevant functionaries and authorities by their erstwhile designations. This is both necessary and convenient as the events which form the subject-matter of this appeal occurred in 2011, while the judgment appealed against was handed down on 7 March 2012. Moreover, the provisions of the Criminal Procedure and Evidence Act [Chapter 9:07] that are relevant to the determination of this appeal have not as yet been realigned to the provisions of the new Constitution and continue to refer to the Attorney General as the prosecuting authority.

Factual background

As indicated above, the respondents are employees of the Commission, engaged as law officers or public prosecutors and assigned by the Commission to the Attorney General’s Office. They are all members of the Zimbabwe Law Officers Association (the Association) and were elected as office-bearers of its executive committee in July 2011.

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