Literally translated audi alteram partem means “hear the other party”. It is an elementary notion of fairness and justice that a decision should not be made against a person without allowing the person concerned to give his side of the story. Put in the context of administrative decision making, the audi principle requires that a decision affecting a person’s rights or his or her legitimate expectations of receiving a benefit, advantage or privilege should only be made after hearing first from that person and taking into account what he or she has said. Section 3(1) of the Administrative Justice Act provides that “an administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person” must act in a fair manner (i.e. a procedurally fair manner.) Section 3(2) lays down what the administrative authority must do to comply with this. It must
- give adequate notice of the nature and purpose of the proposed action;
- give a reasonable opportunity to make adequate representations; and
- give adequate notice of any right of review or appeal, where applicable.
If the decision-maker is holding prejudicial information against the person concerned that prejudicial information must be disclosed to the person and he or she must be given a chance to refute that information.
Where a tribunal is tasked with settling disputes between parties, both parties to the dispute must be heard from before the decision is made and it is obviously unfair to hear from one party and not the other party to the dispute.
The main purpose of the audi rule is to ensure accurate, informed and fair decision-making that inspires public confidence in administrative action. See M & J Morgan Investments (Pvt) Ltd v Pinetown Municipality 1997 (4) SA 427 (SCA)
In Decimal Invstms (Pvt) Ltd v Arundel Village (Pvt) Ltd & Anor HH-262-12 a rent dispute arose between the applicant and the first respondent and was referred to arbitration in terms of the lease agreement. The second respondent was appointed as arbitrator. Following submissions made by both the applicant and the first respondent, the arbitrator issued an award in terms of which he set the rentals for the leased premises. The applicant was not happy with that award and made an application in terms of article 34(2) of schedule to the Arbitration Act [Chapter 7:15] for the setting aside of the arbitral award on the basis that it offends the public policy of Zimbabwe. The applicant argued that the award was in conflict with public policy in that there was a breach of the audi alteram partem rule because, although it was given an opportunity to be heard, its submissions were rejected by the arbitrator in favour of those of the first respondent. Secondly, it argued that the arbitrator was biased, as well as having an interest in the cause, given that he was an estate agent himself and therefore benefitted from high rentals in the form of commission. Finally, it argued that the size of the rent increase awarded by the arbitrator was so unconscionable as to induce a sense of shock and that the increase benefitted elitist estate agents and militated against legitimate businesses, forcing them to overprice their goods and services. For that reason it was against public policy.
The court held that a tribunal does not breach the audi alteram partem rule by rejecting the story of one party in favour of that of its opponent. The rule connotes that both parties must be heard before a decision is taken. Where, in considering the submissions of the parties the tribunal favours those of one of the parties for reasons that it gives, there is full compliance with the rule. To hold otherwise would lead to an absurdity. Even if the arbitrator’s conclusion is wrong, that does not equate to a breach of the audi alteram partem rule and does not entitle the court to interfere with the award.
In H v St John’s College 2013 (2) ZLR 621 (H) the applicant had been disciplined by the school authorities for breach of the school rules by barring him from attending the school leavers dance. Before it had done so, it had called for an explanation. This had been ignored. The school had then taken measures in an effort to get a response. It had withheld applicant’s entitlement to attend the leavers’ dance. That had been the only event of significance still remaining for the applicant at the school. There was no fault in the measures taken by the respondent, which had been what the exigencies of the situation had demanded. The applicant had spurned the opportunity that he had been afforded to explain his absenteeism. The school authorities had not breached the audi alteram partem rule.
In Augar Investments OU v Minister of Environment & Anor 2015 (1) ZLR 502 (H) the Minister issued a notice declaring an area to be a wetland in terms of the Environmental Management Act. Under that Act and the Administrative Justice Act the Minister was obliged to give notice to the parties affected by such declaration and allow them time to make representations. The Minister had failed to do this.
There are two possible ways in which the decision-maker can gather information in order that he or she can reach a decision. Firstly, it can ask the party or parties involved to appear personally before the tribunal and to present their evidence orally. Secondly, it can ask the party or parties to make written submissions. In the great majority of cases tribunals allow the parties to appear in person and to present their evidence orally.
Obviously, if the statutory provisions or contractual terms require the holding of an oral hearing, then the tribunal is obliged to have such a hearing. In the case of Machiya v BP Shell Marketing Services (Pvt) Ltd 1997 (2) ZLR 473 (H) an employee had been dismissed after disciplinary proceedings. No oral hearing had been held but the employee had only been able to submit a written report responding to the allegations against her. The review court decided that it was an irregularity not to have held an oral hearing. Under the code of conduct it was expressly provided that the rules of natural justice applied. The provisions of the code pointed unmistakeably to the requirement to hold an oral hearing.
If, however, the statutory or contractual provisions do not lay down that an oral hearing must be held, the question which arises is whether it is a breach of natural justice for the tribunal to decline to hold an oral hearing?
The Supreme Court has ruled that an oral hearing of witnesses is not always required for a fair hearing. In Metsola v PTC & Anor1989 (3)ZLR 147 (S) at p 154, the court said–
The audi maxim is not a rule of fixed content, but varies with the circumstances. In its fullest extent, it may include the right to be apprised of the information and reasons underlying the impending decision; to disclosure of material documents; to a public hearing and, at that hearing, to appear with legal representation and to examine and cross-examine witnesses … The criterion is one of fundamental fairness and for that reason the principles of natural justice are always flexible. Thus the ‘right to be heard’ in appropriate circumstances may be confined to the submission of written representations. It is not the equivalent of a ‘hearing’ as that term is ordinarily understood.
See also Secretary for Transport & Anor v Makwavarara 1990 (1) ZLR 18 (S) and Sibanda v Law Society of ZimbabweS-162-911991). In the case of Chairman, PTC v Marumahoko 1992 (1) ZLR 304 (S) at p 314, the Supreme Court said that the dicta in the court below in this case regarding the need for an oral hearing should not be taken as laying down a new law conflicting with the ruling of the Supreme Court in this regard.
In terms of the Public Services (Officers) (Misconduct and Discharge) Regulations the Commission is entitled to dispense with an inquiry (i.e. an oral hearing) where there is no dispute as to the facts. If there is a real dispute of fact then an enquiry must be held. See the Chairman, PTC & Anor v Marumahoko case 1992 (1) ZLR 304 (S) at 312.
In the case of Chataira v ZESA S-83-01, the Supreme Court decided that in a disciplinary hearing against an employee, natural justice requires that the employees should know of the accusations he has to meet; that he should be given an opportunity to state his case; and that the internal tribunal acts in good faith. It is not necessary that viva voce evidence be led. The employee must be shown any statements or documentary evidence that is being produced before the disciplinary committee but he need not be afforded all the facilities which are allowed to a litigant in a judicial trial. He need not be given an oral hearing; or allowed representation by an attorney or counsel; he need not be given an opportunity to cross-examine; and he is not entitled to discovery of documents.
Thus, in some cases, cases can be dealt with perfectly fairly by allowing the parties to make their submissions in writing. Indeed, in certain cases, where for example an extremely large number of persons have the right to make submissions, the only practical way to proceed may be by way of receiving written evidence. See Metsola v Chairman, PSC & Anor 1989 (3) ZLR 147 (S). In respect of applications for licences and permits usually applicants are required to fill in application forms in which they provide details of their eligibility to hold the licence or permit. If the applicant establishes that he or she is eligible for the licence or permit there will be no need to hold an oral hearing. Only where there is doubt as to whether the applicant qualifies will it be necessary to hold a hearing or at least to require the applicant to supply further information in writing.
On the other hand, in some cases it may be unfair to refuse to hold an oral hearing. For instance, in a serious disciplinary matter where a person’s entire livelihood may be at stake, in order to deal with the matter fairly it would seem to be essential that the person accused should be given a full right to give evidence orally, to call his witnesses and to cross-examine the witnesses called to testify against him. Oral evidence may be of vital importance in this sort of case, especially if the outcome is likely to turn upon credibility of witnesses. Indeed, customarily where disciplinary mechanisms are established, oral hearings are built into the procedures.
If the legislative or contractual provisions provide that a person must be permitted to be legally represented if he so wishes, then it would be a breach of the statutory provision or the contract to disallow him from being legally represented.
Assuming that the provisions governing the procedures of the tribunal do not state that the person must be permitted to be legally represented (in which case the tribunal is obliged to allow this), the question is whether the denial of the right to be legally represented is a breach of the principles of natural justice. In the case of Mlambo v City of Mutare HH-114-91, the applicant’s employer had held a “commission of enquiry” into allegations against him. The applicant had been denied the right to be legally represented at the enquiry on the basis that the enquiry was not a criminal investigation. The High Court ruled that the denial of the right to be legally represented amounted to a failure to afford the applicant a fair hearing and constituted a gross irregularity. As the appeal in this case [City of Mutare v MlamboS-229-91] was decided on a different basis, this made it unnecessary for the Supreme Court to decide whether, in the particular circumstances of the case, natural justice required that the respondent be allowed to be represented by a legal practitioner. The court said it preferred to leave this matter open. It did however say obiter that “such factors, perhaps combining together, as inarticulacy, a lack of familiarity with the setting and procedures, a failure to grasp the critical matters in issue and to distinguish the relevant from the irrelevant, and intelligence inadequately to appreciate the issues of law or complex fact would … make legal representation before a disciplinary tribunal or board” essential for the achievement of natural justice. Although not referred to in the Mlambo case, presumably another factor that should be taken into account is whether the matter is of a serious nature and could have grave consequences for the person in question, such as dismissal from employment. In the case of Chirenga v Delta Distribution 2003 (1) ZLR 517 (H) a High Court judge ruled that if an employee who is facing a charge of misconduct which might lead to his dismissal wishes to have legal representation, and his request is refused, the requirements of the audi alteram partem rule would not be met. This is so even where the code of conduct makes no mention of a right to representation.
In the case of Vice-Chancellor, University of Zimbabwe & Anor v Mutasah & Anor 1993 (1)ZLR 162 (S) the court said obiter that while it remained to be decided whether a provision purporting to remove the right to legal representation before a disciplinary tribunal violates s 18(9) of the Constitution, there was much to be said for the view that where an individual’s career is at stake before a tribunal he may be entitled as of right, by reason of natural justice, to legal representation if he so wishes.
Whether there is a constitutional right to legal representation has still to be ruled on in a relevant case after argument on this matter but in the light of the various observations made in a number of judgments, the Supreme Court has advised the Public Service Commission to seek legal advice whether the prohibition of legal representation that was contained in ss 20(1) & 91(3) of the Public Service (Officers) (Misconduct and Discharge) Regulations 1986 (now repealed) was ultra vires the Constitution. See Chairman, PSC & Anor v Marumahoko 1992 (1) ZLR 304 (S) at p 314. See also Chairman, PSC & Ors v HallS-49-89 at p 7; Metsola v Chairman, PSC & Anor 1989 (3) ZLR 147 (S) at pp 157-158 and Chairman, PSC & Anor v Gwisai S-188-91.
In deciding this issue the court would obviously have reference to s 18(9) of the Constitution which provides that “every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”
The Administrative Justice Act is silent on the issue of legal representation. In other words this Act does not make legal representation a mandatory requirement. In South Africa section 3(3)(a) of the South African Promotion of Administrative Justice Act provides that in order to give effect to the right to a procedurally fair administrative act the administrative authority may in its discretion give the person concerned the opportunity to obtain assistance and, in serious or complex cases, legal representation.
Under South African common law the presiding officer has a discretion whether to allow legal representation or not and the key issue is whether legal representation is required in order to allow a person a proper opportunity to present his or her case. See Baxter pp 555-556. In the South African case of Yates v University of Boputaswana 1994 (3) SA 815 (B), the court said at pp 846-7 that legal representation should not be lightly refused. Legal representation is engraved in the Declaration of Rights and is an essential part of the principle that a person before a tribunal should be afforded a fair hearing. (This case concerned disciplinary proceedings against a staff member at a University. His employment was terminated following a Committee of Enquiry investigation.) Where the case involves complex legal issues or complicated facts, the court will be inclined to rule that legal representation was required for there to be a fair hearing. See Moeca v Addisionele Kommissaris Bloemfontein 1981 (2) SA 357 (O). In Dladla v Administrator Natal (1995) there was a disciplinary inquiry into alleged misconduct. The enabling statute neither allowed nor prohibited legal representation. The court held that the official had a discretion whether or not to allow legal representation. The officials should have allowed legal representation in the circumstances. The court found that the need for legal representation was strong because there was no independent tribunal that would decide the matter, jobs and livelihoods were at stake and the persons concerned were at a disadvantage because of their differences in race, culture, language and background to the officials who would deliberate on the matter. In the case Hamata & Ors v Chairperson, Peninsula Technikon Internal Disciplinary Committee & Ors 2002 (5) SA 449 (SCA) the court decided that in determining whether legal representation should be allowed in a disciplinary case the factors to be taken into account included the nature of the charges brought, the degree of factual and legal complexity attendant upon considering them and the potential seriousness of the consequences of an adverse finding.
See also Dabner v SA Railways & Harbours 1920 AD 583 and Bell v van Rensberg NO 1971 (3) SA 693 (C)
In a number of cases in England the courts have ruled that in serious and complex disciplinary matters it would be unfair to disallow legal representation. Thus in Britain, the courts have accepted that a person is entitled to be legally represented in grave disciplinary cases: Pett v Greyhound Racing Association 1 QB 125; Enderby Town FC v Football Association 1 All ER 215, see also Baxter pp 555-556.
There are compelling arguments in favour of obliging administrative authorities to provide reasons when they make decisions. These are:
If a decision-maker has to articulate proper reasons to back up its conclusion, it is forced to think carefully about its decision. It will be obliged to consider the facts, make findings about the facts where they are in dispute, decide what considerations are relevant to its decision and what are not, apply the relevant considerations to the facts, and reach a reasoned conclusion. Requiring reasons to be given will thus be likely to lead to a more rational and systematic decision-making process and it will make it less likely that decisions will be reached on an arbitrary, capricious and unreasonable basis. Where a decision-maker has reached its decision on an unreasonable basis this is more likely to emerge if reasons have to be given.
Citizens will have more faith and confidence in a system where administrators are seen to be respecting the rights of people affected by their decisions by providing them with reasons.
Persons adversely affected by decisions unsupported by reasons are likely to suspect that the decision has been reached on an arbitrary basis without proper consideration of the case. Where a decision maker refuses to give reasons, a person affected by that decision will strongly suspect that the decision-maker reached the decision on a faulty basis and is not now able to advance any convincing reasons to support its decision.
Baxter at p 569 argues that there is the strongest case for arguing that natural justice implies a right to reasons, as an unreasoned decision is arbitrary and unfair. In the United Kingdom both the Donoughmore and the Franks Reports regarded the giving of reasons as an important aspect of natural justice. Even if the giving of reasons is not at present part of natural justice, there is no doubt that the failure to give reasons can be used as part of the evidence upon which to build a case of bad faith or bias.
Unless reasons are given, a review court will have difficulty in deciding whether to uphold the decision.
It is argued that if all administrators were required to give reasons for all their decisions, even in respect of trivial matters, this will increase bureaucracy. There is a danger that administrators, fearing that their decisions will be open to legal challenge on the basis of their reasons, will spend lengthy periods trying to justify their decisions and this will slow down the entire administrative process thereby prejudicing the public as a whole. In fact the giving of reasons will often avoid court challenges because if the decision is a sound one, the reasons given will clearly demonstrate this and this will mean that there will not be any basis for the decision to be challenged in a court of law. The giving of reasons requires a reasoned decision which will be less likely to be challengeable than an unreasoned one.
One way of overcoming this danger is to make it clear that in a routine matter brief reasons will suffice, whereas in a more complex matters fuller reasons will be needed but certainly not the detailed judgment that a court of law will be expected to produce.
The Administrative Justice Act now provides in s 3(1)(c)that administrative authorities which have the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person must give written reasons for their decisions within the period specified by law or, if there is no specified period, within a reasonable period of time. If the authority fails or refuses to give reasons for its decision, a person affected by the decision will be entitled to apply to the High Court for relief.
However, the High Court may decline to order the supply of reasons if it considers that it would be contrary to the public interest for such reasons to be disclosed or it may direct that the disclosure of reasons should be limited and restricted.
Additionally, section 3(3) of the Administrative Justice Act provides that an administrative authority can depart from any of the requirements in subsections (1) and (2), which includes the duty to supply written reasons for action taken, if-
- the enactment under which the decision was taken excludes or varies the requirement; or
- the departure was, in the circumstances, reasonable and justifiable.
Previously under the common law the position was as follows. The statutory provisions under which a decision-maker is empowered to reach a decision may lay down that reasons must be provided, in which case the decision-maker must give reasons for his decision. Also if a right of appeal has been established in the provisions or terms, the court will conclude that this means impliedly that reasons must be given because it is not possible to bring an appeal without knowing the reasons for the original decision.
A domestic contract may also provide that a party to a contract has a right to be given reasons when a decision is made affecting that person. Where there is an explicit provision in a contract making it mandatory for reasons to be given for a decision, a court will give effect to such a provision. A recent case touches indirectly upon this matter. The case in question is that of Foreman & Anor v KLM Dutch Airlines 2001 (1) ZLR 108 (H). In that case in terms of their contract airline employees could apply for reductions on airline tickets. However, the contract explicitly stated that this benefit was a privilege and not a right. The contract also provided that if the employer decided not to grant this benefit the applicant had to be informed of the reason for this decision. The employees had applied for but had been refused the benefit. The decision in this case revolved primarily around the question of whether the employer should have allowed the applicants a right to be heard before refusing them the benefit. In the court application the applicants did not apply for an order obliging the employer to furnish reasons for the refusal. The court held that the failure by the employer to allow the employees an opportunity to be heard and to furnish them with reasons may have been unfair but it did not render the decision unlawful.
Where there is no statutory provision or term of the contract obliging the giving of reasons for a decision the question is whether the principles of natural justice require that all decision-makers give reasons for their decisions.
In the case of Chairman, PSC & Anor v Marumahoko at 1992 (1) ZLR 304 at 314E the Supreme Court approved the decisions on this question in Public Services Board of New South Wales v Osmond  LRC (Const) 681 and Berlin Motors v Kotze NO (1992). In these two cases, it was ruled that under the common law an administrative tribunal is not required to give reasons for its decision. On the other hand, in the case of Affretair (Pvt) Ltd & Anor v MK Airlines (Pvt) Ltd 1996 (2) ZLR 15 (S) at p 22 the Supreme Court stated that the court will expect various things from an administrative body when it makes decisions. One of these is that the decisions be justifiable, that is that the administrative body “will give its decision, at least when … challenged, with reasons” (emphasis added). It went on to say that the “purpose of requiring reasons is that the court can then more readily determine the propriety and reviewability of the decision.” In certain circumstances the failure to give reasons may lead to an inference that an irregularity has occurred, see also Palley v Knight NO 1961 (4) SA 633 (SR) and Mutare City Council v Mafuya 1984 (2) SA 124 (ZH).
In Barrows & Anor v Minister of Home Affairs & Ors 1995 (2) ZLR 139 (S) the court said that it is not correct to say that aliens had no rights. Every person in Zimbabwe is entitled to the protection of the law, whether a national or not, and if an official has the power to deprive a person of his property or liberty, he should not do so without giving the person a chance of being heard and of making representations. Before a person could be declared to be prohibited under either s 14(1)(a) or 14(1)(g) of the Immigration Act, the Minister himself had to consider whether there were grounds for so declaring. The form handed to a person declared to be prohibited was deficient, in that it did not advise the person that he could make representations to the Minister under s 23.
In the case of Hambly v The Chief Immigration Officer 1995 (2) ZLR 264 (H) the wife of a man who had been declared a prohibited immigrant by the immigration authorities sought to challenge this declaration in the High Court. She had requested the immigration authorities to supply reasons for the decision to declare her husband a prohibited immigrant but the responsible Minister had issued a certificate in terms of s 22(2) of the Immigration Act to prevent the disclosure of the reasons.
The court held that the Ministerial certificate does not bar the disclosure of the reasons to the court. In terms of s 18(12) of the Constitution where a Ministerial certificate has been issued that it is not in the public interest for any matter to be publicly disclosed, the court must make arrangements for the evidence relating to that matter to be held in camera and it must also take necessary measures to prevent the disclosure of that matter.
In the case of Bhatti v Chief Immigration Officer & Anor 2001 (2) ZLR 114 (H) the Minister had issued a certificate in terms of s 22(3) of the Immigration Act that it would not be in the public interest to disclose the reasons for declaring the husbands of the applicants to be prohibited persons. In this case, the court declined to take a “judicial peek” at the Minister’s reasons for declaring the applicants’ spouses to be prohibited person because the applicants had not specifically alleged in the pleadings that they knew of no reasons justifying the proposed action and neither had they challenged the Minister to produce reasons so that these could be answered. The court held that any prejudice to the parties or interests of justice caused by non-disclosure of the reasons was thus either self-inflicted or minimal. In these circumstances the court is justified in preferring to believe the Minister as “the voice of the supreme power of the State.”
In Ngaru v Chief Immigration Officer & Anor 2004 (1) ZLR 501 (S) the applicant, a Zimbabwean citizen, married a citizen of another country while he was working in Zimbabwe in terms of a work permit. When his work permit expired, the respondent Minister eventually declared the husband to be a prohibited immigrant. He refused to disclose the reasons why he did so, claiming that s 22(2) of the Immigration Act [Chapter 4:02] entitled him to decline to disclose the reasons, on the grounds that it was not in the public interest for him to do so. There was no averment that the marriage was one of convenience. It was argued for the applicant that it was impossible for her to discharge the onus of showing the interference with her rights was not reasonably justifiable in a democratic society and that the Minister could and should disclose the reasons in court. The court held that unless the court was made privy to the Minister’s reasons and had the opportunity to hear the applicant’s submissions in light of those reasons, it would not be able to determine whether the interference with the applicant’s right to freedom of movement was reasonably justifiable in a democratic society. It held further that because of the provisions of s 18(12) of the Constitution, the Minister’s certificate could not lawfully bar the disclosure of the reasons to the court.
See also Palley v Knight NO 1961 (4) SA 633 (SR); Edwards & Sons Ltd v Stumbles & Anor 1963 (2) SA 140 (SR); Minister of Home Affairs v Austin 1986 (1) ZLR 240 (S); R v Gaming Board  2 All ER 528 and Breen v Amalgamated Workers Union  2 QB 175.
In dealing with the audi principle it is convenient to deal first with oral hearings and then with cases in which written submissions will suffice. Oral hearings will be sub-divided into disciplinary and non-disciplinary hearings.
With statutory bodies, where the statute requires that an oral hearing must be held, it would obviously be illegal to deal with the matter without holding an oral hearing.
In disciplinary cases governed by statute, the statute will often explicitly lay down that there must be an oral hearing in which case an oral hearing must be held. But even where the statute is silent on this issue the court may still find that the only way in which the particular disciplinary case could be dealt with fairly is by the holding of an oral hearing. For instance, if the facts are in dispute, it will usually be necessary for the witnesses to give oral testimony so that they can be questioned and impressions can be formed as to their credibility. With disciplinary processes that are governed by private contract and not by statute, an oral hearing would again be obligatory if the terms of the contract make it so. If the contractual terms are silent on this matter, then again the courts will have to decide whether it was possible in the particular circumstances of the case to deal with the matter fairly without an oral hearing.
In Mugugu v Police Service Commission & Anor HH-157-10 the applicant was a police officer. He was convicted of a disciplinary offence and his appeal to the Commissioner was rejected. After his conviction, a board of inquiry was convened to determine his suitability to remain in the police force and recommended a reduction in rank and transfer from his existing posting. The Commissioner accepted the recommendation. The applicant unsuccessfully appealed to the first respondent. He then sought to bring the first respondent’s decision on review. One of the grounds was that the appeal had taken place without affording the applicant or his legal practitioners a hearing on the appeal lodged. The court held that that the Act did not specify the manner in which the first respondent ought to determine appeals brought before it and thus it was safe to assume that the appeal would be on the record, as in a normal appeal. The underlying principle in the right to heard is that of fairness and natural justice, in that each person appearing before the administrative body is given an opportunity to put his position to that body. An oral hearing is not an absolute necessity but may be where the person has been given inadequate notice, is not allowed to present his case or has not been furnished with all the information alleged against him. When the initial board of inquiry was held, the applicant was heard. Dissatisfied with the result, he then launched an appeal. There is no suggestion that such an appeal should have been a re-hearing of the initial inquiry.
As disciplinary hearings have certain special characteristics, these will be dealt with separately.
In broad terms, what is required is that the person charged be given a fair hearing. What this means is that he be given an adequate opportunity to state his case fully and to reply to the allegations against him. This broad formulation can be broken down into a number of component aspects.
In cases involving allegations of professional misconduct against legal practitioners, the Zimbabwean courts have held that the burden of proof at disciplinary proceedings before the Disciplinary Tribunal varies with the gravity of the offence charged. Where the offence has strong criminal connotations, such as misappropriation of trust money, the burden is on the Law Society to prove its case beyond reasonable doubt. On the other hand, where the offence bears no criminal implication, the burden is the ordinary civil one of a balance of probabilities. Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S).
The fact that the legal practitioner concerned has already been convicted of a criminal offence would be regarded in the Tribunal as prima facie proof that he has in fact committed the offence. Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S).
In South Africa, the position is different: in all civil cases, including disciplinary proceedings, proof on a balance of probabilities is the acceptable measure of proof. Law Society, Cape v Koch 1985 (4) SA 379 (C).
In misconduct proceedings, care must be taken in formulating the charge so that the person concerned is properly informed as to the nature and extent of the offence with which he is being charged. The charge must be sufficiently clear to enable the person being charged to know the charge against him and to make a meaningful reply thereto. The charge must not mislead him as to what is considered the misconduct. On the other hand, the charge does not have to contain as much detail as would be found in a criminal indictment for a criminal case in court. If the charge has not been clearly formulated the review court will remit the matter for the charge to be reworded and put afresh and for the disciplinary tribunal to proceed to determine the issue in the light of the reply to the charge. See the Chairman, PTC & Anor v Marumahoko case 1992 (1) ZLR 304 (S). See also Adjunk-Minister van Landbou v Heatherdale Farms (Pty) Ltd 1970 (4) SA 184 (T).
Fairness demands that a person accused of a disciplinary offence be placed in such a position that he is able to prepare his defence in advance of the hearing. Thus, it is established that he must be given adequate forewarning of the impending hearing. What is a reasonable period of notice depends on the individual case. The time required for a serious and complex charge will obviously be greater than that required for a petty, simple, straightforward charge. The period of time, however, must be adequate for preparation of a defence and contact to be made with witnesses, if any. See Rwodzi v Chegutu Municipality 2003 (1) ZLR 601 (H) and Adjunk-Minister van Landbou v Heatherdale Farms (Pty) Ltd 1970 (4) SA 184 (T).
See also de Wet v Patch NO 1976 (1) RLR 65 (G); 1976 (2) SA 316 (R) Disciplinary hearing for prisoner; Ford v Law Society 1977 (2) RLR 40 at 55-56; 1977 (4) SA 175 (RAD) Disciplinary hearing for a lawyer); Crow v Detained Mental Patients Special Board 1985 (1) ZLR 202 (H); 1985 (4) SA 83 (ZH); Lake v Law Society of Zimbabwe HH-392-86; Wessels v General Court Martial 1954 (1) SA 220 (EDL); De Vos v Die Ringkommissie 1952 (2) SA 83 (O) (disciplinary hearing for a clergyman); Turner v Jockey Club of SA 1974 (3) SA 633 (A) (disciplinary hearing for a jockey); Holman v Salisbury Defence Exemption Board 1977 (1) RLR 148 (G); van Wyk v Director of Education 1974 (1) SA 396 (N); Wessels v General Court Martial 1954 (1) SA 250 (EDL); Fredericks v Stellenbosch Divisional Council 1977 (3) SA 113 (C); Cooper v Wandsworth Board of Works 143 ER 414; Urban Housing Co Ltd v Oxford City Council  Ch 70; Russell v Duke of Norfolk  1 All ER 109
Often the provisions constituting disciplinary committees will specify the period of notice that must be given. Where this is done, the prescribed notice period must be given.
In the case of Rwodzi v Chegutu Municipality 2003 (1) ZLR 601 (H) the High Court held in a case involving disciplinary charges against an employee that the hearing must be timeous, to ensure that the hearing takes place when the facts are still fresh in the minds of the parties and their witnesses. However, where the person concerned requires time in order to prepare for the hearing or to arrange for representation, he or she should be given a reasonable opportunity to do so.
As it is an oral hearing, it follows that the hearing must take place 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 would thus be an irregularity if evidence was heard from a witness testifying against the person charged in the absence of the latter. In Mawuta v Secretary for Finance 2003 (2) ZLR 323 (H) 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. The court held that where an oral hearing takes place, it is 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.
Where the party, due to his own fault, fails to attend an inquiry hearing after being properly notified to attend, the inquiry can proceed in his absence. In Chitzanga v Chairman PSC & Anor 2000 (1) ZLR 201 (H) a public servant was accused of misconduct. He was notified of the charges and the date when he was to appear before an inquiry board. The court held that the inquiry board was entitled to proceed with the inquiry in his absence because the public servant’s failure to attend was his own fault. See also Rwodizi v Chegutu Municipality 2003 (1) ZLR 601 (H); Silver Trucks (Pvt) Ltd & Anor v Director of Customs and Excise (2) 1999 (2) ZLR 88 (H); Mukarati v Director of Housing & Community Services HH-281-90; S v Sibanda (1) 1980 ZLR 413 (G) and Pillay v Hyde 1950 (2) SA 739 (N).
If a party conducts himself at the hearing in such a manner as to make the continuation of the proceedings in his presence impossible, the tribunal has a discretion to exclude him from the proceedings.
Adequate opportunity to present case
The person appearing before the tribunal must be given an adequate opportunity to put forward his or her case.
The case of Tabakian v DC, Salisbury 1973 (2) RLR 348 (G); 1974 (1) SA 604 (R) involved a licence application.
The case of Mafuya & Ors v City of Mutare 1984 (2) SA 124 (ZH) involved an application for renewal of hawkers licence.
In the case of Nyandinu v Municipality of Chegutu HH-181-84 the court ruled that an authority entering into a lease is not under duty to hear representations from other applicants before entering into the lease.
The case of Carter v Director of Civil Aviation & Anor 1986 (1) ZLR 219 (H) involved an application for a pilot’s licence.
The case of Mhora & Anor v Minister of Home Affairs 1986 (1) ZLR 88 (H) involved the dismissal of a senior policeman.
The case of Mutambara v Minister of Home Affairs 1989 (3) ZLR 96 (H) involved a Ministerial certificate refusing bail. The court ruled that the Minister must allow person affected the right to be heard before certifying that bail is to be refused.
The case of Mukarati v Director of Housing & Community Services HH-281-90 involved the cancellation of right of occupancy of house in high-density area. The court ruled that there had to be a full inquiry and a full opportunity afforded to the person to be affected to present his case.
In the case of Zimbabwe Teachers’ Association & Ors v Minister of Education & Culture 1990 (2) ZLR 48 (H) teachers who had gone on strike were sacked. Under the regulations in terms of which this action was taken, the teachers were entitled to be heard first because the regulations provided that an employee could be summarily dismissed if he went on strikewithout lawful excuse.
See also R.A.N. Mines (Pvt) Ltd v Minister of Labour and Social Services HH-521-86; Abbey Estates v Property Renting Corporation 1981 ZLR 39 (G); District Commandant of SAP v Murray 1924 AD 13; Helderberg Butcheries v Municipal Valuation Court 1977 (4) SA 99 (C) and Heatherdale Farms (Pty) v Deputy Minister of Agriculture 1980 (3) SA 476 (T).
It would seem that our courts have not recognised that a person charged with a disciplinary offence has an automatic right to cross-examine witnesses called against him at an oral hearing. On the basis of fairness, however, it would seem that such a right should be afforded because this is surely the best way, apart from questions from tribunal members themselves, to test the evidence given by such witnesses. In the case of Chataira v ZESA 2001 (1) ZLR 30(H) a person facing disciplinary charges was only allowed to make written representations to the disciplinary tribunal. He had a right to be shown any statements or documentary evidence that is produced at the hearing, but he could insist that the persons who made the statements be called so that they can be cross-examined. The court did, however, say that if the employee wishes to cross-examine these persons he should point out to the disciplinary committee why these persons should be called so that he can cross-examine them. What this suggests is that the disciplinary body may decide to summon the persons concerned and allow them to be cross-examined in appropriate circumstances. In some cases in the interests of fairness this should be done, particularly in serious cases where the entire case rests upon the evidence from the persons who made the statements and the credibility of these persons is put in issue by the employee.
In the United Kingdom, cross-examination is a recognised aspect of natural justice in appropriate circumstances, R v Aston University Senate  2 QB 538. See Baxter pp 554-555 and Bushell v Secretary of State for Environment  AC 75, 97.
Clearly in the interests of a fair hearing the person charged must be allowed to state his case fully and to call witnesses to testify on his behalf. Where a party has already called a whole succession of witnesses who have not given any relevant testimony and he wishes to call further witnesses, the tribunal will have a discretion to at least point out to the party that his previous witnesses have not given relevant testimony and to seek some assurance from the party that the remaining witnesses will testify about relevant matters.
See earlier under heading legal representation.
Not only is the person charged entitled to notice of the charge before the hearing, but he is also entitled to have disclosed to him before the decision is made all information which may influence the tribunal against him in the making of its decision. It is obviously unfair if the tribunal acquires from an outside source some evidence against the person charged and proceeds to rely upon this information without informing the person charged about it and giving him a chance to refute it. To do this constitutes a breach of natural justice.
See Taylor v Prime Minister 1954 (3) SA 956 (SR); Road Services Board & Anor v John Bishop Ltd 1956 (2) SA 504 (FS) at 512-513; Swift Transport Services & Anor v Road Service Board & Anor 1956 (2) SA 514 (SR) at 520; Tabakian v DC, Salisbury 1973 (2) RLR 348; 1974 (1) SA 604 (R); de Wet v Patch 1976 (1) RLR 65 (G); 1976 (2) SA 316 (R); Matambanadzo Bus Services Ltd v Blackie & Anor 1979 RLR 501 (G). (Whether this extends to opinions and conclusions reached); S v Beswick 1980 ZLR 199 (A); Abbey Estates v Property Renting 1981 ZLR 39 (G); Crow v Detained Mental Patients Special Board 1985 (1) ZLR 202 (H); 1985 (4) SA 175 (ZH); Austin & Harper v Minister of State (Security) & Ors 1986 (2) ZLR 28 (S); Evans & Anor v Chairman of Review Tribunal & Anor HH-131-86. Detention; Bell v van Rensburg NO 1971 (3) SA 693 (C); Turner v Jockey Club of SA 1974 (3) SA 633 (A); Home Service Security (Pty) Ltd v Knysna Divisional Council 1975 (2) SA 562 (C); Errington v Minister of Health  1 KB 249.
Tribunals and other authorities deciding cases are obliged to disclose prejudicial information and this applies equally to prejudicial information contained in documents. Thus there is an obligation to disclose at least the substance of the allegations or of the prejudicial information contained in such documents. The question arises, however, as to whether persons charged have a right to demand sight of the actual documents themselves. Provided they are told the substance of the prejudicial information, it would seem that at present our courts do not consider that a refusal to produce for perusal the actual documents constitutes a breach of natural justice principles. See also Heatherdale Farms (Pty) Ltd and Others v Deputy Minister of Agriculture and Another 1980 (3) SA 476 (T) at 486D-F.
Baxter, however, argues at pp 550-551 that under certain circumstances discovery of documents may be required as a matter of fairness. For example, if a person is asserting that the document must be a forgery, he could not seek to establish this unless he had access to the document itself.
In the case of Chataira v ZESA 2001 (1) ZLR 30 (H) the High Court ruled that in disciplinary proceedings against an employee, the employee must be shown any statements or documentary evidence that is produced at the hearing, but he cannot insist that the persons who made the statements be called so that they can be cross-examined.
See also Austin & Anor v Minister of State (Security) & Anor 1986 (2) ZLR 28 (S); Ex p Zelter 1951 (2) SA 54 (SR); Huyser v Louw NO 1955 (2) SA 321 (T) and Jooste Lithium Mines v Fricke 1957 (1) SA 133 (S).
In the case of ZFC v Geza 1998 (1) ZLR 137 (S) the court said that, unlike a court of law where accusatorial procedures are used, it is permissible for a disciplinary tribunal to conduct its proceedings along more inquisitorial lines and for the tribunal to play an active part in the gathering of evidence. This case involved disciplinary proceedings that had led to the dismissal of an employee.
Allowing a person to sum up his case after all the evidence has been led may be useful to the tribunal in that it may focus its attention on key points, especially if there has been a large volume of evidence. Thus in an oral disciplinary hearing, to allow such summation would seem to be the fair course of action. There are apparently no cases that specify that, where the provisions governing the procedures of the tribunal do not require this, such a right is recognized as part of the principles of natural justice. Therefore, it would seem that presently, provided that a person has been afforded a proper opportunity to put forward his case, the denial of the right to sum up may not be treated as a breach of natural justice.
Ind e Wet v Patch NO 1976 (1) RLR 65 (G); 1976 (2) SA 316 (R) the court found that the right to address was mandated by regulation.
A 1988 amendment to s 19(3) of the Public Services (Officers) (Misconduct and Discharge) Regulations, 1986 (since repealed) purported to abolish the making of representations in mitigation.
In the Chairman, PTC v Marumahoko case 1992 (1) ZLR 304 (S), the court observed that the abolition of an officer’s right to make representations in mitigation ruled out further evidence and made it difficult for the disciplinary tribunal to be fair in sentencing an officer. This is what the court said–
The difficulty created is this. The Commission may correctly decide that the guilt of the officer is clearly established without the need for an inquiry. In many cases, however, of which Chairman, Public Service Commission & Anor v GwisaiS-188-91 is an example, the extent of that guilt may be impossible to determine without further evidence or an inquiry. Therefore it will be impossible to determine what penalty is appropriate, without further information. Since the amended s 19(3)(a) seems to be intended to rule out further evidence or representations, the Commission may be forced to hold an inquiry, even when the guilt of the officer is established, in order to determine the extent of that guilt and thus to assess the appropriate penalty. Otherwise it runs the risk of imposing an irrational penalty.
For the avoidance of confusion I should add that I am aware that Gwisai supra, was a case in which the guilt of the officer was not established. But the point was made that even if guilt had been established, the seriousness of the offence would have been impossible to establish without inquiry.
Thus, although the regulations allowed a penalty to be imposed without holding an enquiry, in certain circumstances the sentence imposed might be open to attack on the basis of irrationality because of its failure to hear evidence in mitigation.
In the Chairman, PTC v Marumahoko case 1992 (1) ZLR 304 (S), the court also pointed out that a person’s state of mind is a question of fact and where his state of mind is material to the question of punishment, any real dispute on it requires an enquiry. The Commission may however properly decline to hold such an enquiry where any dispute is illusory, as for example where the evidence is so clear that nothing the officer can say will change its view.
See also Bishi v Secretary for Education 1989 (2) ZLR 240 (H)
Normally the body to whom the power to decide a disciplinary case is given must exercise this power itself. However, in the case of Dube v Chairman, PSC 1990 (2) ZLR 181 (H) the court held that the PSC may delegate its disciplinary functions to other officers.
The same basic requirements that apply in respect of oral hearings of a disciplinary character apply to oral hearings of a non-disciplinary nature. Such non-disciplinary matters cover a very wide range of different subject matters. They range from applications for licences and renewal of licences to cases involving action against persons who have erected buildings in contravention of building regulations.
In the case of Associated Newspapers of Zimbabwe (Pvt) Ltd v The Minister of State for Information and Publicity 2005 (1) ZLR 222 (S) 251 a newspaper had applied to be registered. The Commission that decided whether newspapers should be registered denied a newspaper an opportunity to be heard before the Commission refused it registration on the grounds that it had contravened various sections of the Access to Information and Protection of Privacy Act. This was a serious violation of the audi alteram partem principle and a gross irregularity justifying the setting aside of that determination.
Frequently, non-disciplinary cases involve two or more persons who are in dispute. If there are two or more parties, all parties must be given reasonable notice of the impending hearing and it would obviously be a breach of the audi principle for one but not another party to be allowed to give evidence or to hear from one party without the other being present. Again, whenever an administrative authority is contemplating taking action which will affect a person’s existing rights or his legitimate expectations, notice of intention to so act must be given to the person concerned so that he may advance arguments as to why such action should not be taken.
The same basic requirement of allowing the party or parties affected to present their case properly must be observed. Thus, it is not just a matter of permitting the parties to submit their arguments in writing. The parties must be properly advised as to all prejudicial evidence and information and be given the chance to reply thereto. To comply with this, it will be necessary either to allow one party to see the written submissions made by others if they contain prejudicial assertions against the first party, or for the tribunal at least to transmit to the first party the salient details of the assertions contained in the written submissions.
See Silver Trucks (Pvt) Ltd & Anor v Director of Customs and Excise (2) 1999 (2) ZLR 88 (H); Chitzanga v Chairman, PSC & Anor 2000 (1) ZLR 201 (H); Metsola v Chairman, PSC & Anor 1989 (3) ZLR 147 (S); Secretary for Transport & Anor v Makwavarara 1991 (1) ZLR 18 (S) and Sibanda v Law Society of Zimbabwe S-162-91.See also the South African case of Bam-Mugwanya v Minister of Finance and Provincial Expenditure, Eastern Cape& Ors 2001(4) SA 120 (CK).
In the case of Ministry of Labour v PEN Transport S-45-89 the court decided that it is not necessary to have a hearing where the matter involves a purely formal issue.
See Moyo v Secretary for Justice, Legal and Parliamentary Affairs 1988 (2) ZLR 185 (H); Hlabangana v Chairman, PSC HB-76-89; Makwavarara v Secretary for Transport & Anor HH-154-89; Metsola v Chairman, PSC & Anor 1989 (3) ZLR 147 (S); Bishi v Secretary for Education 1989 (2) ZLR 240 (H); PSC & Anor v Makorovodo S-187-89; Gwatirisa v Chairman, PSC & Anor 1989 (3) ZLR 1 (H); Mutemeri v Chairman, PSC S-31-90; Turner v Chairman, PSC S-36-90; Chairman, PSC & Anor v Chigwedere S-56-90; Lee v PSC S-201-90; Rimayi v Minister of National Supplies & Anor S-86-90; Dube v Chairman PSC & Anor 1990 (2) ZLR 181 (H) and Zinyemba v Minister of Public Service & Anor HH-45-90.
In the case of Jiah v PSC 1999 (1) ZLR 17 (S) the court decided that where emergency action is authorized it may be implicit in the statute that a hearing need only be given after the decision is made. Where, on the other hand, there is no urgency, the hearing must take place before the decision is made. However, even where it is a situation requiring urgent action, the subsequent hearing must be sufficiently fair to have the effect of curing the failure to hold the hearing before the decision is made.
This case involved a situation in which striking doctors had been warned by the PSC that they would be sacked if they did not return to work. They were sacked and in their court application they argued that they had been dismissed en masse without considering the individual cases and allowing each doctor an opportunity to present his or her side of the story. In the letter informing them of their dismissal they were notified that they could make written representations within a month. The appellants all applied for reinstatement. Five received letters rejecting their applications; the others were told they would be reinstated, but not paid for the time between their dismissal and reinstatement.
The Supreme Court held that the tenor of the legislation dealing with the public service could not be said to exclude the audi alteram partem principle, either directly or by implication. The respondents should have given the appellants an opportunity to be heard. There was no urgency in this case. The urgency related to the situation in the hospitals, but that did not make it urgent to dismiss the striking doctors and nurses. While the fact that the regulations allowed representations to be made afterwards might have been a valid exception under the common law, the subsequent “hearings” provided for were not sufficiently fair to have the effect of curing the lack of an earlier hearing. It was clear that the appellants were not re-employed because, having represented the doctors and nurses in negotiations with the Government, they were seen as having led the strike. The other doctors and nurses were reinstated. The treatment of the appellants was in breach of the equity principle and should be classified as an unfair labour practice. It therefore declared the dismissals of the appellants to be declared null and void. The court raised the question whether the provision for subsequent hearings would prevail against the mandatory provisions of s 18(9) of the Constitution.
In the case of Students Union, University of Zimbabwe & Ors v Vice Chancellor, University of Zimbabwe & Ors 1998 (2) ZLR 454 (H) the Vice-Chancellor had closed the University for an indefinite period, suspended all the students and ordered them to leave the campus following demonstrations, disruption of classes and violence by students. The University remained closed for a period over four and a half months before it was reopened. Some of the excluded students applied to have the decision of the Vice-Chancellor urgently reviewed by the High Court, arguing that the Vice Chancellor had breached the principle of audi alteram partem by failing to allow the students to make representations before closing the University. The court held that the Vice-Chancellor was faced with an emergency and had to act immediately to prevent further violence, injury and property damage. He was therefore not obliged to hear from the students and their leaders before closing the University. Time did not permit this. However, after closing the University, he was then obliged to observe the audi alteram partem rule. It was a breach of natural justice for him to keep the University closed for a period of over four and a half months without giving the students a hearing. If he had afforded the students an opportunity to be heard, they could have made representations through the Students Union and their student leaders who would then have had an opportunity to offer undertakings acceptable to the Vice Chancellor and the University. They were denied this opportunity. The decision to keep the University closed for this protracted period without allowing the excluded students an opportunity to make representations was thus unlawful and the purported ratification of this decision by the University Council was of no force and effect.
In an arbitration case the parties can elect to decide for themselves procedures by which to settle their dispute and the court will be reluctant to interfere in this situation. In the case of FSI Hldgs Ltd v Rio Tinto Zimbabwe Ltd & Anor HH-42-96, the arbitrator had heard each side only in the absence of the other. There was nothing specific in his terms of reference that allowed the adoption of this procedure. He apprised each of what the other had said and gave them a chance to respond thereto. The court decided that although hearings should be in the presence of both parties, applicant–
- had insisted on giving the arbitrator the widest possible discretion regarding the procedure he would use and the nature and extent of the evidence he would hear; and
- had acquiesced when it was clear that the arbitrator intended to hear each party separately and not together at any stage, and had declined a joint meeting when he later offered one.
Therefore, there was no irregularity in these proceedings.
In the case of Chirasasa & Ors v Nhamo NO & Ors 2003 (2) ZLR 206 (S) the Supreme Court decided that although there is a presumption in favour of the application of the audi rule when the decision is made in the exercise of a statutory power unless the rule is expressly excluded, there is no similar presumption when a decision is taken in the exercise of a contractual right, because the question in the area of contract is whether or not failure to hear the other party constituted a breach of contract. A party cannot be in breach of an obligation which has not been made an express or implied term of the contract. An obligation to afford a hearing was not implied in the pure contract of master and servant in respect of the latter’s dismissal.
For a discussion on this issue and on the difficulty of differentiating between private and public authorities see Devenish, Govender and Hulme Administrative Law and Justice in South Africa (2001) pp 23-24 and 301-304.