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Mashudu Netsianda, Senior Court Reporter
THE Labour Court has ordered the Civil Service Commission (CSC) to reinstate a Bulawayo man it fired two years ago for allegedly attending a gay party at a city hotel.

Bulawayo Labour Court judge Justice Evangelista Kabasa also ordered the CSC to compensate Raymond Sibanda, who was fired from his youth officer position in Mzilikazi District, for the time he went without a salary following his dismissal.

Sibanda lost his job in 2014 for allegedly performing an indecent act in a public place the previous year.

He was accused of putting the name of the ministry into disrepute in violation of 44 (2) (a) of the Civil Service Regulations of 2000 following a disciplinary hearing.

The CSC took the action after Sibanda was arrested at a city hotel where there was a Gays and Lesbians Association of Zimbabwe (GALZ) end of year party and subsequently paid an admission of guilty fine.

Sibanda filed an application at the Labour Court challenging his dismissal citing Youth, Indigenisation and Economic Empowerment Minister Patrick Zhuwao and the CSC as respondents.Justice Kabasa ruled that the alleged misconduct charges were premised on a non-existent crime and argued that the conviction could not stand.

“The misconduct charges were premised on a non-existent crime of contravening a section of the Miscellaneous Offences Act, which at the relevant time had been repealed. It is therefore clear that the charges were as a result of the appellant’s arrest for criminal nuisance. If there was no such offence it means he committed no offence,” said the judge.

Justice Kabasa said Sibanda was wrongly convicted of misconduct by the disciplinary authority.

“The disciplinary hearing proceedings made no mention of anything remotely linked to gay practices whatever that is supposed to mean. How can a mere presence at a party be described as engaging in gay practices?” queried the judge. She ruled that Sibanda’s appeal had merit and ought to succeed.

“The appeal be and is hereby allowed with costs on attorney-client scale. The respondents be and is hereby ordered to reinstate the appellant to his original position without loss of salary or benefits from the date of dismissal,” added the judge.

“Sibanda, in the 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.

Sibanda had gone to Windermere Hotel and coincidentally there was a Gays and Lesbians Association of Zimbabwe (GALZ) end of year party.

Police came and raided the place and arrested people among them Sibanda, all suspected to be part and parcel of the GALZ party.

They were subsequently taken to Sauerstown Police Station where they paid $10 as an admission of guilt fines.

Sibanda said based on the admission of guilt fine, the respondents conducted a disciplinary hearing 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.

He said when he noted an appeal against the findings of the disciplinary authority it was opposed.

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.

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.The lawyer further argued that the respondents 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 is 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 is not tolerable,” said the respondents’ lawyers.

“There is no doubt that Sibanda’s conduct which may be judged by the society is tantamount to tarnishing the image of the 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 Civil Division in the AG’s Office further argued that section 78 of the Constitution Amendment (No.20) prohibited persons of the same sex from marrying each other.