Mashudu Netsianda Senior Court Reporter
A BULAWAYO man has dragged the Civil Service Commission (CSC) to court for firing him from his job after he was arrested while allegedly attending a gay party at a city hotel.
Raymond Sibanda, who was employed as youth officer in Mzilikazi District, has filed an application at the Bulawayo Labour Court challenging his dismissal. He cited the Minister of Youth, Indigenisation and Economic Empowerment Cde Patrick Zhuwao and the CSC as the respondents.
Sibanda, in court papers filed through his lawyer, Emmanuel Mlalazi of Dube-Banda Nzarayapenga and Partners, said he was arrested by police and falsely charged for performing an indecent act in a public place in December 2013.
“On December 21, 2013, I went to Windermere Hotel and coincidentally there was a Gays and Lesbians’ Association of Zimbabwe commonly known as GALZ end of year party. Police came and raided the place and arrested people they suspected to be part and parcel of GALZ and I was among the unfortunate ones who were arrested and subsequently taken to Sauerstown Police Station where I paid an admission of guilt fine of $10,” said Sibanda.
He said based on the admission of guilt fine, a disciplinary hearing was conducted on March 6, 2014, in which he was accused of misconduct in terms of section 44 (2) (a) of the Civil Service Regulations of 2000 as read with paragraph 7 of the First Schedule, section 2 (putting the name of the Ministry into disrepute).
“The grounds on which the charge was based on was that I engaged in gay practices and performed an indecent act in a public place and paid a deposit fine of admission of guilt. On July 1, 2014, I was discharged from the CSC,” said Sibanda.
He said when he noted an appeal against the findings of the disciplinary hearing, it was dismissed.
In his heads of argument, Sibanda said there was no conclusive evidence linking him to the alleged crime. He argued that the disciplinary hearing had no basis in its findings to associate him with gays.
“The respondents allege that I was associated with gays, but the supreme law of the country, which is the Constitution under section 58, states that every person has freedom of assembly and association. Are the respondents therefore claiming that I was not supposed to be at Windermere Hotel just because there was a GALZ party being hosted there?” queried Sibanda.
Mlalazi argued that his client was arrested under the non-existent Miscellaneous Offences Act which was repealed more than 10 years ago and replaced by the Criminal Law (Reform and Codification) Act.
He said discharging Sibanda from the civil service was too harsh and induced a sense of shock.
“It (penalty) is not proportional to the misconduct alleged to have been committed by the appellant particularly taking into account that there is no evidence of aggravating circumstances. Appellant was not given an opportunity to advance mitigation submission. While it is admitted that the issue of sentencing is the discretion of the disciplinary authority, it is however, submitted herein that such discretion still should be exercised judicially,” said Mlalazi.
The lawyer further argued that the CSC did not comply with the provisions of section 12B (4) of the Labour Act.
“The appellant is a first offender who allegedly committed a minor offence which is why he was allowed to simply pay an admission of guilt fine and go. A single admission of guilt can never warrant a dismissal,” said Mlalazi.
The respondents, through the Civil Division of the Attorney-General’s Office, defended their actions, arguing that the decision by the disciplinary committee to fire Sibanda was arrived at following adequate evidence linking him to the alleged offence.
“It’s not in dispute that the appellant paid an admission of guilt fine to charges of public indecency linked to gay activities. Admission of guilt entails that one is admitting to the charges preferred against him or her. Public indecency and gay activities by a public official who should lead by example in society are not tolerable,” said the respondents.
“There is no doubt that Sibanda’s conduct, which may be judged by society, is tantamount to tarnishing the image of government and bringing the name of the Ministry into disrepute”.
The respondents argued that the disciplinary hearing led evidence which proved that the people who were arrested were caught engaging in gay activities.
“The appellant was arrested while inside the bar but is now trying to change the position by claiming that he was outside the bar when police arrived at the scene,” said the respondents.
They further argued that section 78 of the Constitution Amendment (No.20) prohibits same sex marriages.
“It is submitted that the gay activities are prohibited in terms of the law. The argument that the law only prohibits same sex marriage is misplaced as our interpretation of the law also implies that everything associated with same sex activities or marriages is prohibited,” said the respondents.