Nester Chidembo and Emmanuel Masendeke v Commander Zimbabwe National Army and Others

The first applicant (wife) was a Lance Corporal in the Zimbabwe National Army (ZNA) who joined on 1 March 2010 under a short service contract expiring 28 February 2013. The second applicant (husband) was a Lieutenant at the School of Signals. They married on 11 February 2011. On 20 July 2012, the first applicant was granted authority to alter her class of engagement from short service to medium service engagement in terms of s 8 of SI 172/1989. She subsequently fell pregnant between September and October 2012. The first applicant was discharged on 4 March 2013 in terms of s 16 of SI 172/1989. The second applicant was charged before a Board of Inquiry with impregnating a Zimbabwe Women Service member still serving her initial engagement. His commission was cancelled and he was discharged on 14 July 2014 in terms of s 18(1) of the Defence Act read with s 10(1) of the Defence (Regulation Forces) (Officers) Regulations 1988. Both applicants sought review of their discharge decisions, contending they were illegal, procedurally unfair, and based on retrospective application of regulations.

• Whether the first applicant remained on initial engagement despite being granted approval to change to medium service engagement
• Whether the first applicant committed an offence by falling pregnant after her class of engagement was altered
• Whether the second applicant could properly be charged with impregnating a member still on initial engagement when his wife had been reclassified
• Whether domestic remedies had to be exhausted before approaching the court
• Whether the discharge decisions were based on an irrelevant legal provision
• Whether the principle of audi alteram partem was violated

The proceedings leading to the cancellation of the second applicant's commission and consequent discharge from the ZNA were set aside. The second applicant was ordered to be reinstated to his position as Lieutenant School of Signals. Respondents were ordered to pay costs jointly and severally, the one paying the others to be absolved.

When a military member's class of engagement is changed from short service to medium service engagement in terms of s 8(1) and (2) of SI 172/1989 (Defence (Regular Force) (Non-Commissioned Members Regulations)), the member is deemed to have been engaged on the longer period of engagement from the date of attestation, not from the date of completion of the initial engagement. Once reclassified, the member is no longer subject to the conditions and restrictions applicable to members serving their initial engagement period. A discharge or disciplinary action based on breach of initial engagement conditions after such reclassification is ultra vires and unlawful. The doctrine of exhaustion of domestic remedies does not apply where the military regulations expressly provide no right of appeal and the decision comes from the highest military authority not subject to further internal review.

The court observed that the first applicant's review application was filed outside the 8-week period prescribed by Order 33 r 259 without seeking condonation, rendering her application not properly before the court until condonation was sought. The court commented that it would have been prejudicial to the second applicant to postpone the entire application pending resolution of the first applicant's condonation issue, justifying the separation of the applications. The court also noted that the Board of Inquiry proceeded on the erroneous assumption that the first applicant had "committed an offence" by falling pregnant, which assumption was fundamentally flawed given her reclassification.

This case establishes important principles regarding the interpretation of military regulations governing service engagement classifications in Zimbabwe. It affirms that administrative law principles, particularly the requirement for proper legal basis for dismissal and fair procedure, apply to military disciplinary proceedings. The judgment demonstrates judicial willingness to review military decisions where they are based on incorrect legal foundations, and establishes that clear statutory language regarding reclassification of service engagement must be given effect from the date specified in the statute, not from some later administrative completion date. The case is also significant for holding that where military regulations expressly provide no right of appeal and the decision-maker is the highest military authority, the exhaustion of domestic remedies doctrine does not bar judicial review.