The applicants were dismissed from the Zimbabwe Defence Forces in 2014 in matters involving sexual abuse of junior cadet officers. The first applicant was acquitted by the court martial but subsequently dismissed by a Board of Inquiry. The second applicant was found guilty by the court martial and given a sentence other than dismissal, but was later dismissed by a suitability board. The applicants sought condonation for late filing of a review application, filed in September 2016, nearly two years after their dismissal. The delay was attributed to lack of resources to hire lawyers, and when lawyers were retained in January 2015, a wrong application (appeal to Supreme Court) was initially filed. A review application was only lodged with the High Court in 2016.
The application for condonation of late filing of a review is dismissed with costs.
1. Courts will refuse to condone late filing of review applications where the delay exceeds six months unless there are very compelling reasons, and will not consider prospects of success where delay is unreasonably long and reasons unacceptable. 2. Disciplinary proceedings are distinct from criminal proceedings and serve different purposes - they focus on maintaining institutional reputation and public confidence rather than criminal culpability. 3. Section 278(2) and (3) of the Criminal Law Codification and Reform Act expressly permits disciplinary proceedings against members of disciplined forces following conviction or acquittal in criminal proceedings. 4. Court martials conduct criminal proceedings applying the law applicable in civilian criminal courts (per section 56 of the Defence Act), and do not have jurisdiction over disciplinary matters such as dismissal from service. 5. Double jeopardy principles (autre fois convict/acquit) do not apply to bar disciplinary proceedings following criminal proceedings.
The court observed that blame lying with a practitioner for filing the wrong application does not necessarily mean a condonation application will be granted, particularly when the merits of the underlying case are questionable. The court also clarified potential confusion about the phrase 'law in force in criminal proceedings in the civil courts' in section 56 of the Defence Act, explaining this merely means court martials apply the same criminal law and procedure as civilian courts, not that they conduct combined criminal and disciplinary proceedings.
This case reinforces important principles in Zimbabwean administrative and military law regarding: (1) the strict approach courts take to condonation applications for late filing of reviews, particularly where delays exceed six months without compelling reasons; (2) the clear distinction between criminal proceedings (including court martials) and disciplinary proceedings within disciplined forces; (3) the principle that acquittal or conviction in criminal proceedings does not bar subsequent disciplinary proceedings; and (4) the limited jurisdiction of courts martial to criminal matters only, with disciplinary matters remaining separate. The case provides guidance on the application of section 278 of the Criminal Law Codification and Reform Act and section 56 of the Defence Act.