Air Force commander files notice of opposition
Chronicle Mashudu Netsianda, Senior Court Reporter
AIR Force of Zimbabwe (AFZ) commander Air Marshal Elson Moyo, who is being sued by a former subordinate he fired last year for trespassing into a gold mine in Kwekwe, has approached the High Court to defend his decision.
Air Marshal Moyo fired Mr Thembelani Ndlovu, an AFZ serviceman, last year in June for allegedly trespassing into Goodhope Mine in Kwekwe sometime last year.
The mine belongs to one Armstrong Mapanga.
Air Marshal Moyo argued that Mr Ndlovu’s dismissal was fair and above board.
Mr Ndlovu is challenging his dismissal and accuses his former employers of violating his constitutional right by discharging him without conducting a disciplinary hearing.
Mr Ndlovu has filed an application for review at the Bulawayo High Court citing Air Marshal Moyo and the Zimbabwe Defence Forces (ZDF) Commission as respondents.
In his founding affidavit, Mr Ndlovu, who is a self-actor, said he was dismissed from the AFZ without notice.
Air Marshal Moyo, through the Civil Division in the Attorney-General’s Office, yesterday filed a notice of opposition challenging Mr Ndlovu’s application.
In his opposing affidavit, Air Marshal Moyo said the termination of the applicant’s service was done in accordance with the law.
“Authority to sit a board and inquire into the applicant’s suitability to continue serving in the AFZ was obtained through a convening order. Moreover, a member of the Zimbabwe Defence Forces may be subjected to both criminal and disciplinary law in respect of the same set of facts,” Air Marshal Moyo said.
“The applicant cannot therefore exceptionally rely on the outcome of the proceedings in the criminal court without also looking at the disciplinary proceedings.”
Air Marshal Moyo said in discharging Mr Ndlovu, he relied on the reasons that were proffered by the board of suitability in its recommendations.
“The applicant’s behaviour fell short of the required standards of a member of the disciplined force. I, therefore, exercised my discretion judiciously and fairly having taken into consideration the factors in question,” he argued.
Air Marshal Moyo said Mr Ndlovu became aware of his discharge from the AFZ in June 2020 and therefore had ample time to prepare and lodge his application for review before the lapse of time.
“The applicant failed to display a sense of urgency as it took him 14 months to seek condonation. It is humbly submitted that the applicant’s delay was inordinate. His explanation is not at all satisfactory thus the case is doomed to fail on review,” he said.
Air Marshal Moyo said Mr Ndlovu was examined by the board and responded to all its questions. “The applicant was asked if he wanted legal representation to which he declined. This is contrary to his averment that his right to legal representation and to be heard was violated,” he said.
In his application, Mr Ndlovu argued that the respondents’ decision to fire him was arrived at in a malicious manner.
“There was also bias, malice and procedural irregularities in the manner in which the process was conducted,” Mr Ndlovu said.
Mr Ndlovu said he was taken to the Kadoma Magistrates’ Court on allegations of trespassing and the charges were withdrawn before plea.
“Subsequently, the second respondent (Air Marshal Elson Moyo) discharged me from the Air Force of Zimbabwe without any notice whatsoever. Further, he never conducted any disciplinary hearing in terms of the Defence Forces Act and as such his decision is a nullity at law,” he said. — @mashnets