Eliud Spencer Nhari v Public Service Commission

The appellant joined the Department of Immigration in 1979 and became deputy chief immigration officer in 1991. In 1995, the chief immigration officer suspected him of misconduct, and he was transferred to the department of national archives in 1996 to facilitate investigation. After an inquiry under the Public Service (Disciplinary) Regulations, 1992, he was found guilty and discharged from the Public Service with effect from 12 June 1997. The Supreme Court set aside the discharge on 14 June 1999 and remitted the charges for rehearing. The respondent then informed the appellant that he was suspended with effect from 12 June 1997 under section 23 of the 1992 Regulations and would receive half his salary under section 9(2)(a)(ii). The appellant challenged this suspension and sought payment of his full salary and benefits from 12 June 1997 to 14 June 1999. The High Court refused the order but granted a mandamus directing the hearing to commence within thirty days.

• Whether section 23 of the Public Service (Disciplinary) Regulations, 1992 was constitutional
• Whether the retrospective suspension deprived the appellant of property (earned salary and benefits) without compensation in contravention of section 16(1) of the Constitution of Zimbabwe
• Whether the appellant was entitled to full salary and benefits from 12 June 1997 to 14 June 1999 after his discharge was set aside
• What effect the setting aside of the discharge had on the appellant's employment status and entitlements

The appeal was allowed with costs. The order of the High Court was set aside and substituted with: (1) The applicant's suspension with effect from 12 June 1997 is set aside with costs; (2) The respondent shall pay to the applicant his full salary and benefits from 12 June 1997 to 14 June 1999, together with interest at the prescribed rate on the arrears thereof, taking into account what has already been paid to him in respect of that period.

A regulation that deems an employee suspended with retrospective effect following the setting aside of their discharge by a court, thereby depriving them of salary and benefits already earned during that period without compensation, constitutes an unconstitutional deprivation of property in contravention of section 16(1) of the Constitution of Zimbabwe. When a court sets aside a discharge from the Public Service, the employee reverts to the status quo ante and is entitled to full salary and benefits for the period of unlawful discharge. Section 23 of the Public Service (Disciplinary) Regulations, 1992 was therefore unconstitutional and of no force or effect.

The Court observed that even if the appellant's suspension under section 23 of the 1992 Regulations had been valid, it would have lapsed on 3 January 2000 when the 2000 Regulations came into force and repealed the 1992 Regulations. The Court also expressed the view that the legislature must have realized that section 23 of the 1992 Regulations was unconstitutional, which is why it repealed the section and did not include any corresponding provision in the 2000 Regulations.

This case established an important constitutional principle regarding the protection of earned employment benefits in Zimbabwe. It held that retrospective suspension provisions that deprive public servants of already earned salary and benefits without compensation violate constitutional property rights protections. The case demonstrates the courts' willingness to strike down subordinate legislation that infringes constitutional rights, even in the context of public service disciplinary matters. It also clarifies that when a court sets aside a discharge from public service, it restores the employee to their previous status, including entitlement to all remuneration and benefits as if the discharge had not occurred.