Shelton Shangwa v Senior Assistant Commissioner Justice Chengeta and Others

The applicant was a member of the Zimbabwe Republic Police who appeared before a Board of Inquiry facing charges of misconduct. The Board found him guilty and recommended that he be issued with a written warning in accordance with applicable law. The first respondent queried this recommendation and directed that the Board be reconstituted to reconsider its decision by letter dated 28 July 2015. On 14 August 2015, the reconstituted Board reaffirmed its earlier recommendation for the applicant to be given a written warning. However, on 12 August 2015, the same Board produced a fresh set of findings recommending that the applicant be discharged from the police, which was purportedly confirmed on 28 August 2015. This new recommendation was made without recourse to the applicant - he was not notified of it and had no opportunity to be heard.

• Whether the discharge of the applicant from the Zimbabwe Republic Police was procedurally fair
• Whether the Board of Inquiry violated the audi alteram partem rule (right to be heard)
• Whether the proceedings complied with constitutional requirements for a fair hearing
• Whether the administrative action leading to the applicant's discharge was lawful

1. The discharge of the applicant from the Zimbabwe Republic Police based on the recommendation dated 12 August 2015 and confirmed on 28 August 2015 was set aside. 2. The respondents were ordered to pay the costs.

An administrative decision or recommendation that affects a person's rights must comply with the rule of natural justice known as audi alteram partem (the right to be heard). Where a Board of Inquiry reverses its recommendation from a written warning to discharge without notifying the affected party or giving them an opportunity to be heard, such decision is made in violation of natural justice and constitutional requirements for a fair hearing. Administrative action taken in such circumstances, including discharge from employment based on such a defective recommendation, is unlawful and must be set aside on review.

The court observed that the circumstances surrounding the production of the fresh findings on 12 August 2015 (which predated the Board's reaffirmation letter of 14 August 2015) were "inexplicable on the papers," suggesting potential irregularities in the chronology and process that went beyond the natural justice violations. The court also noted that the making of the new recommendation was made "in the face of two other recommendations for a written warning," emphasizing the inconsistency and arbitrary nature of the administrative action.

This case reinforces the fundamental importance of the audi alteram partem rule (the right to be heard) in administrative proceedings affecting employment rights, particularly in the context of disciplinary proceedings. It establishes that administrative bodies cannot reverse their decisions to the detriment of an affected party without affording that party an opportunity to be heard. The case also affirms that constitutional guarantees of fair hearing apply to disciplinary proceedings in the public service, and that administrative decisions made in violation of these principles will be set aside on review. It demonstrates the court's willingness to protect employees from arbitrary and procedurally unfair dismissals or discharges from the public service.