Attorney-General v Leopold Mudisi and Others

The respondents were public prosecutors employed by the Public Service Commission and assigned to the Attorney-General's Office. They were elected as office-bearers of the Zimbabwe Law Officers Association in July 2011. On 18 September 2011, they and their colleagues resolved to embark on a work stoppage to address salary grievances. On 17 October 2011, the Attorney-General wrote to the respondents asking them to respond within 7 days to allegations of unbecoming conduct. The respondents replied through the Association on 24 October 2011, but did not address specific allegations. Their lawyers wrote on 26 and 27 October 2011, initially indicating a substantive response would follow but then disputing the legal basis of the Attorney-General's request. On 3 November 2011, the Attorney-General concluded that the respondents had admitted all allegations by failing to respond and withdrew their prosecutorial authority with immediate effect, referring them to their employer for further processing. The respondents were directed to vacate their offices and hand over their keys. They complied under protest and launched an urgent application in the High Court alleging breach of their rights to administrative justice.

• Whether the Attorney-General has the power to withdraw delegated prosecutorial authority from public prosecutors
• Whether the Attorney-General complied with the requirements of natural justice and procedural fairness under the Administrative Justice Act when withdrawing prosecutorial authority
• Whether the withdrawal of prosecutorial authority constituted a labour matter within the jurisdiction of the Labour Court or a matter for the High Court's review jurisdiction
• Whether the High Court has jurisdiction to review actions of the Attorney-General as an administrative authority
• What constitutes adequate notice and opportunity to make representations under section 3 of the Administrative Justice Act

The appeal was dismissed. The High Court's order declaring the Attorney-General's letter of 3 November 2011 and all consequential instructions null and void was upheld. The respondents were to be restored to their positions without loss of rights. No order as to costs was made in the Supreme Court.

The binding legal principles established are: (1) The Attorney-General has the constitutional and statutory power under section 76(4) and (5) of the Constitution and section 11 of the Criminal Procedure and Evidence Act to delegate prosecutorial authority and to withdraw such delegation; (2) Certificates to prosecute are legal requirements that constitute formal evidence of delegated prosecutorial authority; (3) The common law principle cuius est instituere eius est abrogare (he who institutes may also abolish) applies, such that the power to delegate prosecutorial authority inherently includes the power to withdraw it; (4) The Attorney-General is an administrative authority subject to the requirements of section 3 of the Administrative Justice Act, which requires administrative authorities to act lawfully, reasonably and in a fair manner; (5) Fairness requires adequate notice of specific allegations, a reasonable opportunity to make representations, and compliance with natural justice principles before withdrawing prosecutorial authority; (6) Public prosecutors have a legitimate expectation of continuing to prosecute and cannot be deprived of that right without just cause and due process; (7) A strict standard of compliance with administrative justice requirements applies to senior governmental legal authorities.

The Court made several non-binding observations: (1) The relationship between public prosecutors and the Attorney-General is analogous to a secondment arrangement, where prosecutors are employed by the Public Service Commission but subject to the Attorney-General's direction and control in their prosecutorial functions; (2) The Attorney-General could have instructed the Director of Public Prosecutions to institute disciplinary proceedings under the Public Service Regulations rather than directly withdrawing prosecutorial authority; (3) The withdrawal of prosecutorial functions may require the Public Service Commission to redeploy the affected prosecutor to other suitable duties; (4) While the respondents' conduct was insubordinate and could justify disciplinary measures, the Attorney-General should have written to each respondent individually, identifying specific allegations, indicating that their defiance justified withdrawal of authority, and warning of his intention to withdraw the mandate unless persuaded otherwise; (5) The appeal, while unsuccessful, provided a useful opportunity for the Court to clarify critical aspects of the relationship between the Attorney-General and his delegates.

This case is significant in Zimbabwean administrative law for establishing clear principles regarding the relationship between the Attorney-General (now Prosecutor-General) and public prosecutors. It confirms that: (1) the Attorney-General is an administrative authority subject to judicial review; (2) prosecutorial authority is delegated through certificates to prosecute which can be withdrawn; (3) the common law principle that the power to create includes the power to abolish applies to administrative delegations; (4) withdrawal of prosecutorial authority must comply with natural justice and the requirements of section 3 of the Administrative Justice Act; and (5) a high standard of procedural fairness applies to actions by senior legal and governmental authorities. The case reinforces the supremacy of law over executive action and the courts' supervisory jurisdiction over administrative decisions, even those made by constitutionally established offices like the Attorney-General.