E. Filon v The Public Service Commission and The Minister of Lands and Water Resources

The appellant was discharged from the Public Service following a disciplinary inquiry. He had been suspended from duty by the Secretary to his Minister and served with charges by Mr Moyo, on behalf of the Secretary. The appellant replied to the allegations in writing and requested certain documents, which were not supplied to him or his legal practitioners in copy form, though he was allowed access to them and to make notes. The Public Service Commission held an inquiry and found the appellant guilty of misconduct and discharged him. The appellant took the matter on review initially on the ground that the audi alteram partem rule had been breached due to failure to supply requested documents. The court a quo rejected this argument. Before the Supreme Court, the appellant raised several new points for the first time, including issues regarding the validity of his suspension, validity of charges, procedural defects, and failure of the Commission to consider important evidence, particularly a report of a board of inquiry into the late Mr Guyo's activities, to whom the appellant claimed to have shifted blame for the first three charges.

• Whether the audi alteram partem rule was breached by failure to supply copies of documents to the appellant
• Whether the suspension was defective
• Whether the suspension lapsed automatically after three months
• Whether the charges were invalid for being preferred by someone other than the authorized person
• Whether the charges were fatally defective
• Whether the Commission failed to consider the appellant's case fairly by not verifying his answers against documents he referred to
• Whether the Commission misdirected itself by not considering vital evidence relating to Mr Guyo's board of inquiry
• Whether disputes of fact could be resolved on papers only

The appeal was allowed with costs. The matter was remitted to the Public Service Commission for a full hearing.

Where an administrative tribunal such as the Public Service Commission reaches a decision in the absence of vital evidence (for whatever reason), it cannot be said to have reached a decision on the merits, and it would be contrary to justice to allow such a decision to stand. Access to documents, including the ability to examine them and make notes, satisfies the audi alteram partem rule; there is no absolute requirement to provide copies of all documents. Technical irregularities in disciplinary proceedings (such as charges being signed by a delegated person without specific evidence of authorization) will not invalidate proceedings where they are of the most technical kind, of no real significance, and have not resulted in a substantial miscarriage of justice, particularly where section 28(2) of the Public Service Regulations allows the Commission to condone such irregularities.

The Court observed that this appeared to be a case where oral evidence should have been heard rather than the matter being decided on papers only. The Court noted that while points of law can be raised for the first time on appeal, and courts give the greatest latitude to self-actors (self-represented litigants), this latitude operates within limits. Ebrahim JA made reference to the principle omnia praesumuntur rite esse acta (all things are presumed to have been done correctly) but noted that this maxim should not override the requirements of Regulations. The Court also noted that if the Commission were to acquit the appellant on charges where Mr Guyo was allegedly involved, it may take a different view of the penalty on the fourth charge, which did not apparently concern Mr Guyo and was relatively minor.

This case is significant in Zimbabwean administrative and public service law for establishing important principles regarding disciplinary proceedings against public servants. It clarifies the application of the audi alteram partem rule in public service disciplinary proceedings, particularly regarding access to documents versus provision of copies. The case importantly establishes that administrative tribunals must consider all vital evidence before reaching decisions, and that a decision reached in the absence of such evidence cannot be said to be a decision on the merits. It also demonstrates the courts' willingness to allow procedural points to be raised for the first time on appeal and the latitude given to self-represented litigants, while distinguishing between technical irregularities that do not cause substantial miscarriage of justice and substantive failures to consider material evidence.