HICKMAN v ATTORNEYGENERAL 1980 ZLR 24 (G)

HICKMAN v ATTORNEYGENERAL 1980 ZLR 24 (G)

Citation 1980 ZLR 24 (G)

Case No Details not supplied

Court General Division, Salisbury

Judge Goldin, J

Heard 24th January, 1980; 6th February, 1980

Judgment 6th February, 1980

Counsel N M R Gardener, for the petitioner.

W J Millar, SC, for the respondent.

Case Type Petition

Annotations Link to case annotations

Flynote

Defence Act [Chapter 94] — section 12 (1) — power of President to retire officers — whether limited by section 17A and regulations made under section 15 — extent of Minister’s powers to retire of Ricers under section 12 (2).

Statute — interpretation — “subject to” — meaning of. D

Headnote

The words “subject to the provisions of section seventeen A and of regulations referred to in section

fifteen” in section 12 (1) of the Defence Act [Chapter 94] limit the President’s power to place

officers on a retired list in terms of that section. Thus the President may retire officers on the

grounds of abolition E of office or reorganization of the Force concerned only in terms of section

17A, and officers with twenty years’ service or more only in terms of the regulations concerned.

The Minister’s power to retire certain officers under section 12 (2) of the Act is, however, subject

to no such limitation.

Cases cited F

Akisatan Apena of Iporo & Ors v Akinwande Thomas & Ors [1950] AC 227;

Hawkins v Admin of SWA 1924 SWA 57;

Vizirgianakis v Karp, 1965 (2) SA 145 (W);

MasseyHarris Co v Strasburg [1941] 4 DLR 620; G

C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 All ER 513

Books cited

Words and Phrases Legally Defined, 2nd edition.

Case information

N M R Gardener, for the petitioner.

W J Millar, SC, for the respondent. H

Judgment

Goldin J: On the 6th March, 1979, the petitioner, a LieutenantGeneral and Commander of the

Rhodesian Army, was placed on the retired list of officers of Rhodesia.

1980 ZLR p25

Golding J

The petitioner contends that the Acting President acted ultra vires in placing him on the retired list

of officers, and his decision should be A declared to be of no force and effect. I am concerned

essentially with questions of law. The reasons for placing him on the retired list have not been

relied upon or even mentioned in the affidavits before me.

The Defence Act [Chapter 94] provided in section 12 as follows: B

“12. (1) The President may place any officer on a retired list.

(2) The Minister may place an officer of the rank of

(a) major, in the case of an officer in the Army; or

(b) squadron leader, in the case of an officer in the Air Force; or any lower commissioned rank, on a

retired list. C

(3) An officer placed on a retired list in terms of this section shall be entitled to retain his rank and wear

uniform on appropriate occasions.”

By section 8 (a) of the Defence Amendment Act, 1976 (No. 51 of 1976), section 12 (1) was amended

by adding the words “subject to the D provisions of regulations referred to in section fifteen”

between the word “may” and the word “place”. By section 8 of the General Laws Amendment Act,

1978 (No. 41 of 1978), this section was again amended as follows: E

8. (1) The Defence Act [Chapter 94] is amended

(a) in section 12 by the insertion in subsection (1) after ‘provisions of of ‘section’

(b) by the insertion after section 17 of the following section

Discharge on redundancy.

‘17A. (1) Subject to the provisions of subsection F (2)

(a) the President may at any time place any officer in the Regular Force on a retired list; and

(b) the Commander may at any time discharge any G member of the Regular Force, other than an

officer;

on the grounds that the abolition of his office or the reorganization of the Regular Force necessitates

such an action.

(2) The H Commander shall not discharge a member of the Regular Force in terms of paragraph (b)

of subsection (1) unless the Minister has approved the abolition of office or reorganization of the

Regular Force or the discharge of the member of the Regular Force concerned.’.”

1980 ZLR p26

Golding J

In the result, the President’s powers to place an officer on the retired list at the relevant A time

were governed by section 12 (1) as amended which, for the purpose of clarity, reads:

“The President may, subject to the provisions of section 17A and of regulations referred to in section 15,

place any officer the retired list.”

The real question that arises for decision is whether the amendments to section 12 (1) have the

effect of curtailing the President’s original B powers of placing an officer on the retired list. This was

contended to be the position on behalf of the petitioner. Mr Millar, for the respondent, submitted

that the words after “subject to” do not have this result but are to be interpreted so as to leave the

President’s powers unaffected, and to treat the two amendments as not curtailing the wide powers C

originally conferred under section 12 (1). He therefore contended that the words “subject to” should

be interpreted as meaning “without prejudice to” or, for that matter, “notwithstanding these

amendments”.

The rights conferred upon the President in; the unamended section 12 D (1) vested in the President

unfettered and unlimited discretion or power to place any officer on the retired list. If it had been

the intention of the Legislature to retain his powers regardless of the provisions of section 17A or

relevant regulations made in terms of section 15, it could have been achieved by the use of

appropriate language. I appreciate that that E is precisely what Mr Millar contends, by submitting

that the words “subject to” have that effect. The use of the words “subject to” does in my view

prima facie curtail his powers unless, in the context in which they appear and on a study of the Act

as a whole, the Court is justified in interpreting them as meaning “without prejudice to” or

“notwithstanding” F or some similar wording, which is usually employed to preserve existing rights.

Generally speaking, the words “subject to” have the effect of introducing a qualification, limitation

or condition precedent, thereby G curtailing a person’s exercise of otherwise unlimited or

unrestricted rights. It does not, in this sense, mean an alternative or optional right which does not

affect an unfettered original right. I was referred to the case of AkisatanApena of Iporo&Ors v

Akimwande Thomas &Ors [1950] AD 227. In that case, the words “subject to” were held not to H

constitute a limitation of original rights, but as equivalent to “without prejudice to”. A study of this

decision, however, shows that it was arrived at by reference to relevant antecedent legislation and

the context in which the term “subject to” was used. In Hawkins v Administration

1980 ZLR p27

Golding J

ofSouthWest Africa, 1924 SWA 57 at 67, the words “subject to” were interpreted to mean “except

as curtailed by”. (See also Vizirgianakis A v Karp, 1965 (2) SA 145 (WLD) at 147; MasseyHarris Co.

v Strasburg [1941] 4 DLR 620 at 622; C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 All

ER 513 at 520, Butterworths Words & Phrases Legally Defined, 2nd edition, volume 5, at 134.) B

Section 15 of the Defence Act reads as follows:

“15. Subject to the provisions of this Act, the Minister may, in terms of subsection (1) of section one

hundred and twentyone, make regulations providing for the conditions of engagement and service of

members.” C

In terms of section 15 the Defence (Regular Force) (Officers) Regulations, 1976, published in

Rhodesia Government Notice 99 of 1976, came into existence. These regulations provide, inter alia,

in section 8 (2):

“(2) The Minister may, on giving twelve months’ written notice to the officer of his intention to do so,

require a permanentservice officer whose D pensionable service amounts to twenty years or more to

retire.”

Accordingly, section 17A, as introduced by section 8 (1) of Act 41 of 1978, gives the President power

to place any officer in the Regular Force on the retired list on the grounds that the abolition of his

office E or the reorganization of the Regular Force necessitates such action. Section 8 (2) of the

Regulations provides for the retirement of a permanent service officer whose pensionable age

amounts to 20 years or more. The effect of section 8 (2) of the Regulations and section 17A of the

Act is to confer rights and deal with the treatment of an officer in the Regular F Force or a

permanent service officer in prescribed circumstances. It was the intention of the Legislature that

where a Regular Force officer is retired on the grounds of abolition of office or the reorganization of

the Regular Force, he should be retired in terms of section 17A. If it had been intended to retain the

wide powers originally given to the President G by section 12 (1), there would have been no need for

the provisions of section 17A because the President could have retired as he was entitled to do

any officer irrespective of the reasons which justified such a step. Accordingly, section 17A was

introduced so that a Regular Force officer who is retired on the grounds of abolition of his office H

should be retired as provided in section 17A. To be retired in terms of section 12 (1) can often carry

a stigma or result in dissatisfaction or doubt and general speculation concerning the possible but

unknown reasons for being retired. Section 17A was therefore introduced so that a Regular Force

officer would be retired on the grounds mentioned in

1980 ZLR p28

Golding J

that section when that was the reason for his retirement, so that he and everybody else would know

the grounds upon which he was retired. The right to respire him already existed under section 12

(1), but section 17A specified a reason for doing it and how to do it when such grounds for A

retirement were invoked. Similarly, section 8 (2) of the Regulations confers benefits on permanent

service officers whose pensionable service amounts to 20 years or more, by providing them with

adequate prior notice of the fact of their retirement, the precise reason for being retired and an

assured income for a period of 12 months. B

On this approach, section 12 (1), as amended, was intended to confine the President to the right to

deal with an officer who is retired on the grounds mentioned in section 17A, to his power under that

section. C Similarly, the President is deprived of the power to place a permanent service officer

whose pensionable service amounts to 20 years or more, on the retired list in terms of section 12

(1), thereby preserving the benefits which section 8 (2) of the Regulations confer upon such an

officer. The President, of course, retains the power of retiring all other officers who do not D qualify

for retirement or whose retirement is not possible in terms of the amendments inserted in section

12 (1).

It will be observed that section 12 (2) confers upon the Minister the same powers of placing an

officer of the rank of major or squadron leader E or any lower commissioned rank, on a retired list

in the same manner as the President was entitled to do. No amendments similar to that now

contained in section 12 (1) have been made to section 12 (2). Mr Millar, for the respondent,

understandably raised the question why a major can be placed on the retired list, thereby depriving

him of the benefits and F advantages contained in section 17A of the Act and section 8 (2) of the

Regulations, but not an officer of higher rank who is retired by the President. This can only be

answered on the basis that for reasons best known to the Legislature the aforesaid amendments

were introduced in section 12 (1), which deals with the President’s powers, but have not been

applied G to section 12 (2), which deals with the Minister’s powers. On any view of the matter, even

if the words “subject to” in section 12 (1) are to be given the meaning contended for by Mr Millar,

namely as not affecting the President’s rights to place any officer on the retired list, the question

‘still remains why it was found necessary to amend section 12 (1) and not to H amend section 12 (2)

if the amended section 12 (1) means the same as the unamended section 12 (2). It can certainly be

said that section 12 (1) was amended in 1976 and in 1978 for necessary and meaningful reasons. It

could not have been done for the purpose of conferring wider powers

1980 ZLR p29

Golding J

than those in existence. The President’s powers were unlimited. The intention was either to curtail

his powers or to leave them unaltered. If A amendments were required to leave his powers

unaltered, then similar amendments would have had to be introduced in respect of section 12 (2),

so that the Minister and the President would each continue to enjoy their respective identical wide

power. The Minister’s powers were left unamended, retaining their existing unlimited scope.

Therefore the B amendments to section 12 (1) concerning the President’s powers must have been

introduced to curtail his powers in respect of officers mentioned in section 17A of the Act and

section 8 (2) of the Regulations. This fortifies the view that the words “subject to” have to be

interpreted and applied as curtailing the President’s original powers. It may not be readily C

understandable or explicable why junior officers can be retired by a Minister under section 12 (2),

thereby depriving them of the benefits and advantages conferred under section 17A and, in

particular, under section 8 (2) of the Regulations. The Legislature has, however, amended section 12

(1), which deals with the President’s powers and left the Minister’s D powers under section 12 (2)

unaltered.

The petitioner was not retired and could not have been retired on the grounds provided in section

17A of the Act. He was, however, eligible E by reason of his length of service as a permanent

service officer, for retirement in terms of section 8 (2) of the Regulations. The respond dent’s

answer to this in his affidavit is relevant. It reads:

“With reference to paragraphs 8 and 9, it is admitted that it would have been legally possible for the then

Joint Ministers of Defence to have given F the Applicant notice in terms of section 8 (2) of the Defence

(Regular Force) (Officers) Regulations, 1976, as read with section 15 of the Act, to retire on twelve

months’ notice. Nevertheless it was not considered that such a course was appropriate in the

circumstances of the Applicant and, accordingly, it was recommended on what were deemed good and

sufficient grounds (the nature of which have been communicated to the Applicant and are not G

understood to be disputed for the purpose of these proceedings) to the Acting President that he exercise

the alternative power vested in him by section 12 (1) of the Act to require the immediate retirement of the

Applicant.” H

For the reasons already mentioned, I do not agree with the contention that section 12 (1), as

amended, has the effect of leaving the President’s wide powers of placing an officer on the

retirement list unaltered or unrestricted, and that section 17A of the Act and section 8 (2) of the

Regulations are merely alternative ways or means of retiring officers.

1980 ZLR p30

Golding J

I was referred to the insertion of the words “Subject to the provisions of section seventeen A” in the

existing section 18 (1) of the Defence Act. That section deals with the right of commanders to

discharge a member, other than an officer, for various reasons, including when such person “is A

found to be mentally or physically unfit for further service by a medical board”. I confess that I fail

to see how the provisions of section 17A have any bearing in respect of a soldier who is mentally

unfit for service. If he is mentally or physically unfit for further service, then it is not easy and B I

find it impossible to understand how the right to discharge him on such a ground is in any way

affected or can be affected by whether or not there has been abolition of office or reorganization of

the Regular Force. Nevertheless, the difficulty imposed by the amendment of section 18 (1) of the

Act by section 8 (1) (c) of the General Laws Amendment Act, 1978 (No. 41 of 1978), C only causes

its own problem but does not shed any light (upon the interpretation of the amendments to section

12 (1).

It was also contended by Mr Millar that in any event the President enjoyed the right summarily to

dismiss the petitioner under the common D law. Assuming this to be correct, the President has not

done so. It is common cause that the President exercised powers under section 12 (1) of the Act. It

is nowhere alleged that he acted under or was entitled to or had grounds for dismissing him under

the common law. E

For these reasons, I am of the view that the application must succeed.

As I have said, it is common cause that the applicant would have been entitled to the benefits

conferred by section 8 (2) of the Regulations. I have not overlooked that section 8 (2) confers a

right upon a Minister to retire such an officer, but in my view by including the Minister’s right in F

section 12 (1) concerning the power of the President to retire officers, this is of no significance. I

therefore uphold the petitioner’s contention that the Acting President acted ultra vires in placing the

petitioner on the retired list of officers in terms of section 12 (1). G

The petitioner asserts in his petition that he has no intention of seeking reinstatement as

Commander of the Army of Rhodesia, but merely seeks an order declaring that his placing on the

retired list was invalid. It appears from earlier proceedings (case No. GD 684/79) that the petitioner

is seeking additional payments to which he would have become entitled if he had not been retired

under section 12 (1). Respondent agrees that “it would be inappropriate in the circumstances for

applicant to be reinstated as the Commander of the Army in the event of this Honourable Court

finding in petitioner’s favour”. In any event, an officer can be

1980 ZLR p31

Golding J

removed from office or from army service in terms of other provisions of the Act. Moreover, the

fact that he was wrongly placed on the retired A list may not necessarily preclude or prevent other

proceedings or procedures which may have the same result, even in a more undesirable form. The

reasons far placing him on the retired list are not before me, and are not in issue. The only

reference to this aspect is in paragraph 5 of respondent’s affidavit. These considerations would also

justify an order that B he should not be reinstated as Commander of the Army.

The parties agreed that costs should follow the result, including the costs incurred in case No. GD

684/79. C

Accordingly, it is ordered

(a) that the action of the Acting President of Rhodesia placing the petitioner on the retired list

of officers on the 6th day of March, 1979, is declared to have been ultra vires and of no

force or effect, D

(b) that it is declared that the petitioner is not entitled to be reinstated as Commander of the

Army of Rhodesia;

in case No. GD 684/79.

Gill, Godlonton & Gerrans, attorneys for the applicant.

State Attorney, attorney for the respondent.

HICKMAN v ATTORNEY­GENERAL 1980 ZLR 24 (G)

HICKMAN v ATTORNEYGENERAL 1980 ZLR 24 (G)