The Zimbabwe Defence Forces (ZDF) have approached the courts, seeking to have a High Court application for illegal dismissal filed by a couple fired after the spouse fell pregnant, set aside.
BY CHARLES LAITON
According to court papers the couple, Nester Chidembo and Emmanuel Masendeke, were discharged from the force sometime in February 2013 because Chidembo had fallen pregnant when army policy prohibits serving members to marry or fall pregnant before the expiry of three-year probation.
In her founding affidavit Chidembo, however, had argued that her contract of employment had already been extended to 2020 following the completion of her two-year probation period, which was at the time a requirement, before the introduction of the extended three-year period.
However, following the military’s decision, the pair petitioned the High Court in a bid to challenge their dismissal by seeking a review of the force’s verdict and sought their re-engagement into the military.
But since the filing of the litigation against the Zimbabwe National Army (ZNA) Commander, Edzai Chimonyo, ZDF Commander Philip Valerio Sibanda and Defence minister Vice-President Constantino Chiwenga, in July 2017, the couple is said to have neglected their application prompting the top army bosses to approach the court for recourse.
Through their lawyers from the civil division of the Attorney-General (AG)’s Office, the top military officials filed a chamber application for dismissal of the couple’s application on August 3, 2018 and the matter is yet to be set down for hearing.
In his founding affidavit, the military’s lawyer, Luckson Muradzikwa urged the court to dismiss Chidembo and Masendeke’s application, arguing the couple had “neglected or failed to timeously prosecute their application”.
“A period in excess of twelve (12) months has lapsed after the applicants (Chimonyo, Sibanda and Chiwenga) filed their notice of opposition and opposing affidavit. The respondents (Chidembo and Masendeke) have neither filed an answering affidavit; heads of argument nor set the matter down for hearing,” Muradzikwa said.
“It is evident respondents simply filed the application to derail administrative proceedings and delay the ends of justice with no intention of taking the matter to its finality. The doctrine of finality to litigation demands that once legal proceedings have been instituted before this honourable court, parties have an obligation to see to it that litigation is taken to its finality within the prescribed limits as set out in the rules.
“Respondents have neglected and or shown a lack of interest in prosecuting their court application for condonation of late filing of application for review to finality and I am entitled as I, hereby, do make an application for dismissal for want of prosecution.”
The matter is pending.