By Mashudu Netsianda
A fired senior army cleric, who successful challenged his six-year prison term at the High Court following his conviction on charges of stealing a car belonging to a Gwanda businessman and stripping it, has taken his bosses to court challenging his dismissal.
Solomon Ndlovu (52), an ex-captain in the Zimbabwe National Army (ZNA) and chaplain at Mbalabala Barracks, was in January 2018 convicted of theft of a motor vehicle by Gwanda regional magistrate Mr Mark Dzira after a full trial.
He was sentenced to six years in jail of which two months were suspended for five years on condition of good behaviour. A further six months were suspended on condition he restituted the businessman $2 500 leaving him with an effective 64 months to serve.
Ndlovu borrowed a Toyota Hilux vehicle from the businessman, Mr Osfael Mazibuko, which he allegedly later stripped and stole the engine and gearbox.
He then allegedly fitted the engine and gearbox onto another vehicle.
Aggrieved by both conviction and sentence, Ndlovu through his lawyer Mr Abel Ndlovu of Dube and Associates, filed an appeal at the Bulawayo High Court citing the State as a respondent.
In his grounds of appeal, Ndlovu said Mr Dzira erred and misdirected himself by attaching a criminal liability to him for deviating and failing to perform according to the agreement that allowed him to take lawful possession, use and possession of the car.
He said the agreement between himself and Mr Mazibuko was purely a civil matter. Ndlovu argued that there was misdirection on the part of the magistrate who convicted him.
Bulawayo High Court judge Justice Maxwell Takuva, who was sitting with Justice Thompson Mabhikwa during a criminal appeals court, found Ndlovu not guilty and acquitted him.
Following his acquittal, Ndlovu had hoped to be reinstated, but a letter signed by one Lieutenant T Sibanda, the ZNA director of legal advisory services and litigation, stated that they could not reverse Gen Sibanda’s decision to discharge the ex-chaplain.
The letter stated that instead, the organisation is prepared to pay Ndlovu a pension commensurate with his service and age. Ndlovu through his lawyer, Mr Ndlovu, filed an application at the Bulawayo High Court citing Commander of the Zimbabwe Defence Forces General Philip Valerio Sibanda and one Lieutenant T Sibanda, who is the ZNA director of legal advisory services and litigation, as respondents.
He is challenging Gen Sibanda’s decision to discharge him from the ZNA, arguing that it was only based on his conviction and sentence, which the High Court set aside.
“My discharge was based on my conviction and verily I believe that the decision of the first respondent (Gen Sibanda) to relieve me of my duties and discharging me from the ZNA was unlawful and violated the rules of natural justice,” said Ndlovu.
He argued that the decision to discharge him was taken in the absence of a board of suitability to inquire into his fitness to remain within the ranks of the ZNA.
“The first respondent did not afford me an opportunity to make representations. I now approach the court for a declaration of rights to the effect that the first respondent’s decision to release me from my commission and discharging me from ZNA was unlawful and should be declared null and void,” said Ndlovu.
The respondents are yet to respond.
According to State papers, sometime in July 2016 while in Bulawayo, Ndlovu was given the Toyota Hilux by Mr Mandla Sibanda, a manager at Mazibuko’s farm who had received instructions via the phone to do so from his boss.
The complainant, who lives in Bulawayo, owns Fast Track Electrical Company in South Africa and runs farming and conservancy projects in Zimbabwe. The Chronicle