By Mary Taruvinga
SIX soldiers recently discharged from the Zimbabwe National Army (ZNA) on allegations of stealing state property have been reinstated by the High Court.
The six are Collen Chiba, Charles Mhuri, Bothwell Gorekore, Hillary Mubariki, Democracy Murambadoro and Gibson Madzinga.
High Court judge Justice Webster Chinamhora ordered that the decision by Zimbabwe Defence Forces commander Philip Valerio Sibanda to discharge the six be set aside.
“The applicants be and are hereby reinstated to their positions without loss of benefits. It is ordered that the respondents shall pay costs of suit, jointly and severally, the one paying the other to be absolved,” justice Chinamhora ruled.
Chinamhora said the discharge was unfair considering that the soldiers were never given an opportunity to respond to the allegations as shown by the record of proceedings.
They were charged in terms of the Defence Act [Chapter 11:02] with theft of state property and brought before a court martial for trial.
They were acquitted by the judge advocate Squadron Leader Timothy Kambudzi.
Chinamhora said 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 legal basis not technicalities,” he said.
According to the papers, after they were absolved, a body of suitability was setup to determine their suitability to remain in the army.
They however were not given an opportunity to be heard.
Chinamhora said his concern is not the incorrect citation of the law under which the applicants were discharged and preferred to focus on the irregularities which the applicants averred bedevilled the discharge process.
“In my view, the acquittal ought to have decisively settled the allegation of theft. The first respondent submitted that the acquittal does not stop him from enquiring into whether or not a member of the army is suitable to remain in the ZNA.”
“However, while this may be so, the applicants having been found not guilty of theft, the first respondent could not insist that he was relying on theft and past conduct for the discharge. Even if one were to say that past conduct could be considered, I find it irregular and in breach of section 68 of the Constitution, section three of the Administrative Justice Act and the audi alteram partem rule that applicants were not heard on what they had to say about the alleged past conduct and in mitigation,” he ruled.
Chinamora also queried Sibanda’s reasoning that the applicants were not entitled to be heard.
He said he was not in agreement with this view before he ordered reinstatement of the six.