Former Zimbabwe Attorney General’s unfair dismissal case thrown out
By SINIKIWE MPALA
Published on: 27th January, 2010
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ZIMBABWE – HARARE – Former Attorney-General Mr Sobusa Gula–Ndebele yesterday lost his court challenge over the manner he was dismissed from office almost two years ago.
Mugabe fired Mr Gula-Ndebele in May 2008 after for being too sympathetic to the MDC.
Two months after that, Mr Gula-Ndebele filed a High Court application seeking to review the tribunal’s decision.
He argued that the grounds used by the probe team that recommended his dismissal were “grossly unreasonable and utterly perverse in its defiance of logic”.
However, Judge President Rita Makarau threw out the challenge with costs for several reasons, including the non-citation of the President in the application.
In his application, Mr Gula-Ndebele did not attack the President’s action of implementing the tribunal’s recommendation.
His contention hinged on the process of his removal from office, which he said, consisted of two separate juristic acts — the tribunal’s inquiry and his actual removal from office.
In this case, he sought to challenge the tribunal’s inquiry.
Justice Makarau said where the recommendation had been implemented as required by the Constitution, the tribunal’s proceedings and recommendations ceased to have independent status and become imbedded in and formed an integral and inseparable part of the President’s action.
She said Mr Gula-Ndebele’s argument was, therefore, untenable at law.
“To separate the proceedings and recommendations of the tribunal from the ultimate act of terminating the appointment of the Attorney-General is, in my view, to suggest that the President can act without such a recommendation of a duly constituted tribunal of experts as provided by the Constitution,” Justice Makarau said.
The act of removing Mr Gula-Ndebele from office, the Judge President said, could not lawfully exist without the requisite recommendation and thus “to attack one is of necessity to attack the other”.
To this end, the President must have been cited to afford him the right to be heard.
“This court cannot make an order adversely affecting his action without affording the President the right to be heard.
“The applicant was ill advised to seek to attack the recommendation of the tribunal after it had been implemented.”This is legally untenable as it has the effect of eroding the constitutional basis upon which the action of the President rests.
“To do as the applicant wishes in this matter will render the action of the President unconstitutional,” she said.
Mr Gula-Ndebele was found guilty of assuring then fugitive banker Mr James Mushore that he would not be prosecuted in “circumstances where he was liable for prosecution”.
He consequently instructed his office not to prosecute him.
High Court judge Justice Chinembiri Bhunu, who was cited in the application as respondent, chaired the tribunal that recommended Mr Gula-Ndebele’s dismissal.
Other members of the tribunal were Justice Samuel Kudya and Mr Lloyd Mhishi, a lawyer with Dube, Manikai and Hwacha law firm.
Mr Mushore has since been acquitted of contravening the Exchange Control Act and Regulations.
Mr Johannes Tomana replaced Mr Gula-Ndebele as AG.
