ZIMBABWE’S prosecutor general is facing possible incarceration after a former prosecutor accused the office of defying a court order for his reinstatement.
Patrobs Dube was fired in 2011 for allegedly instigating an industrial action by public prosecutors.
He was fired along with colleagues Leopold Mudisi, Dereck Charamba, Mehluli Tshuma and Musekiwa Mbanje by late former prosecutor-general Johannes Tomana following the industrial action over poor working conditions.
Dube took the matter to the courts and in 2018, Bulawayo High Court judge Justice Martin Makonese ordered that Dube be reinstated.
However, Ray Goba, who took over from Tomana, refused to do so until he was replaced by Kumbirai Hodzi.
Former Zimbabwe Anti-Corruption Commission chairperson Loice Matanda Moyo has since been appointed Prosecutor-General.
She has also inherited the matter and now faces jail time after Dube filed an application for contempt of court through the Zimbabwe Lawyers for Human Rights represented by Jabulani Mhlanga.
Mhlanga told NewsDay that the contempt of court case failed to start on July 17 before Justice David Mangota due to unavailability of lead lawyers for both parties on the day.
ZLHR in August this year wrote to the Prosecutor-General indicating that their client instructed them to propose to her office for an out-of-court settlement while facilitating his reinstatement to National Prosecuting Authority.
“It is only prudent that we make this request seeing as the contempt of court which is the subject of the current court proceedings was that of your predecessors and should the court then rule in our favour, your personal liberty and right to appear as the current office bearer will be in peril.
“Our client is amenable to waiving the costs of litigation should you agree to have him reinstated,” part of the letter read.
The Prosecutor-General’s office is yet to respond to the letter.
In his draft order filed on August 4 last year, Dube citing the PG, Public Service Commission, Justice, Legal and Parliamentary Affairs minister Ziyambi Ziyambi and Finance, Economic Development and Investment Promotion minister Mthuli Ncube, prayed for an order that the former be declared in contempt of court.
He also sought that the Prosecutor-General be committed to imprisonment for a period of 30 days, the whole of which would suspended on condition that the office complies with the High Court order under number HC2009/16 (XREF LC/MT/65/13).
“That in the event that 1st respondent (Prosecutor-General) fails to comply with this order, he shall in his personal capacity be barred from approaching or appearing as a legal practitioner in any court in Zimbabwe and that 1st and 2nd respondents pay the cost of suit on an attorney-client scale,” he said.
In his founding affidavit, Dube submitted that the Attorney-General withdrew his authority to prosecute and those of four of his colleagues on allegations that they were instigators of an industrial action embarked on by public prosecutors that occurred that year.
He said they approached the courts in Harare challenging the decision on the basis that it constituted a breach of the provision of the Administrative Justice Act.
“The court ruled in our favour and ordered we be restored to the positions we each held without loss of our rights,” Dube submitted.
“In 2012, my colleagues and I were found guilty of misconduct and dismissed by PSC for our role in the 2011 industrial action.
“I then appealed this decision in the Labour Court sitting in Bulawayo under case number LC/MT65/13. The 2nd respondent (PSC) failed to file paper. The labour court ordered that I be reinstated to my work without loss of salary and benefits.
“The Labour Court also ordered that in the event that reinstatement was no longer possible then I must be paid damages in lieu of reinstatement.”
He submitted that in 2014, PSC filed an application to rescind the Labour Court order and the application was dismissed.
Dube said his reinstatement was upheld by the Supreme Court after the AG filed an appeal in 2015.
He noted that his lawyers in 2016 received a letter from the Civil Division of the AG’s office committing to its willingness to comply with the court order, but noted reinstatement was no longer possible.
Dube, through his lawyers, opposed leading to an agreement for his reinstatement but when he presented himself to work several times he was turned away.
In June 2016, he sought a declatueur through the courts and the respondents did not oppose leading to a judgment declaring him a transferred NPA member.
He also received a salary of US$31 446,56 as arrears.
“In 2017, NPA filed an application of rescission of 2016 judgment which was dismissed by the court confirming that I was duly transferred to NPA in terms of section 32 of the Act,” he said.
Dube said all efforts were blocked leaving him with no option but to file for contempt of court.
