Prosecutors reinstated

yesterday, the court ruled that the chief Government legal advisor had adopted a wrong procedure in dealing with the matter.
Mr Tomana withdrew the prosecuting powers from the five leaders of the Zimbabwe Law Officers Association a month after a strike by prosecutors for better remuneration last year.
Justice Ben Hlatshwayo ordered the reinstatement of Mr Leopold Mudisi, Mr Dereck Charamba, Mr Musekiwa Mbanje and Mr Mehluli Tshuma to their positions in the AG’s Office.
He nullified any actions or instructions made after the letter of withdrawal on November 3, last year.
“The first respondent’s (Mr Tomana) letter dated November 3, 2011 to the applicants is null and void and of no force or effect and is hereby set aside.
“All orders, verbal or written issued to the applicants consequent upon the said letter are equally null and void . . .
“The applicants are forthwith restored to the positions they held prior to each one’s receipt of the said letter without loss of their rights.
“Each party shall bear its own costs,” ruled Justice Hlatshwayo.
The court found that the AG was supposed to suspend the prosecutors pending a full inquiry by the Public Service Commission.
“The AG purported to withdraw his authority to prosecute and referred the case to PSC for further processing according. In my view, this was wrong procedure.
“The withdrawal of prosecuting authority was improper as pointed out already. Its implementation exposed the applicants to double jeopardy in that whatever hearing before the PSC would not have the effect of restoring the prosecutorial authority even if they were found innocent.
“The proper procedure should have been to suspend them pending a fuller inquiry which could lead to either discharge from PSC or reinstatement in their positions. Lacking all these quintessential qualities, the procedure adopted constitutes a material error of law or fact. . .” Justice Hlatshwayo said.
The judge took a swipe at the prosecutors’ lawyers for wrongfully citing Mr Tomana and his subordinates Mrs Florence Ziyambi and Mr Tawanda Zvekare in their personal capacities.
He said the citation was calculated at stripping the officers of the aura of their office.
“Legal practitioners should take note and be properly warned that they do not advance their clients’ cause by unnecessarily pitching the political angles of their case.
“Personal citation is justified only when relief is sought personally from the official as in damages consequently upon an official act allegedly carried out mala fide or grossly negligently.
“The applicants fell foul of this requirement and the court had to condone this remiss, which was motivated not so much by ignorance of the law but more by an excessive exuberance in one’s own cause and a perverse desire to strip the respondents of the aura of their office,” he said.
Chief law officer Mr Chris Mutangadura appeared for the AG and his two subordinates while Harare lawyer Ms Beatrice Mtetwa represented the five prosecutors.
Yesterday, the AG’s office indicated their intention to appeal against the ruling.