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Fidelis Munyoro Chief Court Reporter
SIX soldiers dismissed from service on charges of theft have been reinstated without loss of benefits by the High Court, after a two-year bruising legal battle.
Collen Chiba, Charles Mhuri Bothwell Gorekore, Hillary Mubariki, Democracy Murambadoro and Gibson Madzinga — were all acquitted when they appeared before a court martial presided by Judge Advocate (Squadron Leader Kambudzi) on charges of stealing State property.
Subsequent to the acquittal, the six were hauled before a Board of Suitability to inquire into the fitness to remain in the army.
The board of inquiry looked into the same issues dealt with by the court martial, which cleared them of the charges, but went on to convict the six and subsequently dismissed them from the service on February 28, 2019.
Aggrieved by the decision of the suitability board, the six through their lawyer Adv Garikai Sithole took up the matter for review at the High Court on two grounds.
They complained that the decision to discharge them from service was grossly irregular because it was not made within the legal framework of empowering law.
The six also argued that the decision was irrational and unprocedural since the appropriate procedures and rules of natural justice were not followed.
After hearing arguments from both parties’ legal counsel, Justice Webster Chinamora set aside the Board of Suitability decision on the grounds of irregularities that bedevilled the discharge process.”The decision of the first respondent (army) discharging the applicants (soldiers) from the Zimbabwe National Army Service communicated on 7 February 2019 be and is hereby set aside,” he said. “The applicants be and are hereby reinstated to their positions without loss of benefits.”
Justice Chinamora ruled that the acquittal of the six should have settled the allegation of theft levelled against the six.
In his submissions, Commander Zimbabwe Defence Forces and the Minister of Defence and War Veterans represented by Mr Kenias Chimiti strenuously opposed the application, arguing that the acquittal did not stop the army from enquiring into the suitability of the six to remain in the army.
Justice Chinamora did not agree.
“However, while this may be so, the applicants having been found not guilty of theft, the first respondent (ZDF) could not insist that he was relying on thefts and past conduct for the discharge,” he said.
He found the lower court decision irregular and in breach of the constitution.
To this end, Justice Chinamora said after an assessment of the matter on the whole, he was satisfied that the soldiers had established the requirements for the relief they were seeking and were entitled to the order they had asked for.
Online Reporter