THE High Court has ordered Zimbabwe Defence Forces commander Valerio Sibanda to reinstate to their positions without loss of benefits six soldiers who were fired by the Zimbabwe National Army (ZNA) in 2019.
The sextet, Collen Chiba, Charles Mhuri, Bothwell Gorekore, Hillary Mubariki, Democracy Murambadoro and Gibson Madzinga, who were represented by Rubaya and Chatambudza, successfully argued that their dismissal was unlawful.
Sibanda and Defence minister Oppah Muchinguri-Kashiri were cited as respondents in this matter.
High Court judge, Justice Webster Chinamora ruled that the six were dismissed unlawfully even though they had been acquitted by the army’s court martial.
“Before the applicants were discharged, they were charged in terms of the Defence Act… with theft of state property, and brought before a court martial for trial.
“They were acquitted… the judge advocate (Squadron Leader Timothy Kambudzi) who presided over the trial wrote a report,” read Justice Chinamora’s judgment.
“He (Kambudzi) said ‘I must explain that at the end of the State case there was no prima facie case against the three accused persons. The defending officer made an application for a discharge at the end of the State case in terms of Section 198 (3) of the Criminal Procedure and Evidence Act.
“The basis of the application was that the State had failed to prove a prima facie case against the three accused’…the court then discharged the three accused after it was also convinced that there was no basis to put the accused to their defences hoping that their evidence will bolster the weak State case.
“The record is clear that the accused were discharged on merit since there was no evidence to put them to their defence. The acquittal was anchored on a legal basis not technicalities.”
Justice Chinamora also agreed that the six were also not given a chance to defend themselves before the Body of Suitability to remain in the army.
“The applicants said that they were neither afforded the opportunity to give evidence nor cross examine witnesses or interrogate documents relied on by the board,” ruled Justice Chinamora.
“Their case was that they were not heard before they were discharged. Thus, they contended that the decision was grossly irregular and irrational, and contravened section 68 (1) of the Constitution as read with section three of the Administrative Justice Act (Chapter 10:28).
“In addition, the applicants submitted that, having initiated a trial process, the first respondent should have respected the decision of the court martial acquitting them.
“Finally, the applicants argued that they were not given reasons for the discharge despite making a request to the first respondent.”
