BDO Zimbabwe Chartered Accountants v Robin Vela and The Auditor General of Zimbabwe v Robin Vela

BDO Zimbabwe Chartered Accountants, a private partnership of chartered accountants, was contracted by the Auditor General of Zimbabwe to conduct a forensic audit of the National Social Security Authority (NSSA) for the period January 2015 to February 2018. Robin Vela had been the board chairman of NSSA from July 2015 to March 2018. The forensic audit produced adverse findings against Vela, including overpayment of board fees, interference in management issues, and questionable dealings with Medbank investments that yielded losses. Vela brought a review application in the High Court under section 3(1)(a) read with section 4 of the Administrative Justice Act, arguing that BDO was exercising public power subject to judicial review, that the audit was conducted without jurisdiction, and that it was biased, malicious, irrational, incompetent and unfair. The High Court upheld the review and set aside the forensic audit report insofar as it pertained to Vela, with costs at the higher scale. Both BDO and the Auditor General appealed to the Supreme Court in two consolidated appeals.

• Whether a partnership trading under a firm name has locus standi to sue and be sued in its own name
• Whether BDO, as a party cited in the judgment, had the right to appeal
• Whether a private entity contracted by a public administrative authority to conduct a forensic audit thereby exercises public administrative authority subject to judicial review
• Whether the conduct and processes of a private auditor hired by the Auditor General constitute administrative action reviewable under the Administrative Justice Act

The appeal succeeded with costs. The judgment of the High Court was set aside and replaced with an order dismissing Vela's application with costs.

A private entity contracted by a public administrative authority to conduct investigations or gather information does not thereby exercise public administrative authority and is not subject to judicial review under the Administrative Justice Act. The statutory definition of 'administrative authority' in section 2(1) of the Administrative Justice Act does not include private entities, and the Constitution does not authorize the Auditor General to delegate or confer administrative authority on private agents. A private auditor hired under section 9 of the Audit Office Act remains a mere functionary or aid without administrative power or authority to make administrative decisions. Only the public authority itself exercises reviewable administrative power when it makes decisions based on information gathered by private contractors. Under Order 2A of the High Court Rules 1971 (now rule 11 of the Supreme Court Rules 2018), partnerships and unincorporated associations may sue and be sued in their firm or association name, and under rule 8C, persons may sue or be sued in their trade name.

The Court noted that it would be manifestly unjust and would offend against the dictates of reason and fundamental justice to allow a party to sue another, obtain judgment with punitive costs against them, and then bar that party from appealing the judgment on technical grounds regarding legal personality or citation. The Court observed that both parties had arguable cases and the complexity of the issues meant that pursuit of the case could hardly be said to amount to abuse of court process, justifying an ordinary costs order rather than punitive costs. The Court also observed that the development and change of the archaic common law regarding citation of partnerships was a progressive endeavour to facilitate easier citation of parties without being bogged down in unnecessary cumbersome citation technicalities.

This case establishes important principles in Zimbabwean administrative law regarding the scope of judicial review. It clarifies that private entities contracted by public administrative authorities to perform specific tasks do not themselves become administrative authorities subject to review merely by virtue of that contractual relationship. The decision protects private service providers from administrative law challenges when they act as agents or functionaries of public bodies, limiting reviewable administrative action to decisions made by the public authority itself. The case also confirms the modern approach to citation of partnerships and unincorporated associations under the procedural rules, moving away from common law technicalities that required citation of all individual members. The judgment provides guidance on interpreting the definition of 'administrative authority' under the Administrative Justice Act and the constitutional provisions establishing the office of Auditor General.