KOMBAYI & ORS v MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING & ORS

HIGH COURT, BULAWAYO

[Opposed Application HB 57-16]

February 18 and 22, 2016

BERE J

Constitutional law  –  Constitution of Zimbabwe, 2013  –  Local Government  –  Section 278  – Establishment of independent tribunal on the removal of mayors and councillors from office  –  Absence of such a tribunal  –  Whether Minister’s powers to suspend a mayor under section 114 of the Urban Councils Act [Chapter 29:15] is consistent with section 278 of Constitution.

The applicants, the mayor of Gweru and 10 other councillors of Gweru City council, had been suspended from office by the Minister of Local Government in terms of s 114 of the Urban Councils Act [Chapter 29:15]. The suspension was without benefits. They were summoned to appear before a tribunal appointed by the Minister. The tribunal had been tasked by the Minister to conduct a hearing and determine whether or not to dismiss the applicants from their positions as councillors. The applicants challenged both their suspensions and the proceedings presided over by the tribunal on the basis that the actions contravened s 278 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”). Section 278 requires an Act of Parliament to provide for the establishment of an independent tribunal to exercise the function of removing from office mayors and councillors.

Held, that s 114 of the Urban Councils Act was inconsistent with s 278 of the Constitution and was therefore void. Section 278 of the Constitution covers both suspensions and dismissals. Accordingly, the Minister no longer has the powers to suspend.

Held, further, that a tribunal whose members are handpicked by the Minister in the absence of an Act of Parliament defining their qualifications cannot be an independent tribunal within the contemplation of s 278 of the Constitution.

Cases cited:

Fose v Minister of Safety and Security 1997 (3) SA 786 (CC); 1997 (7) BLCR 851 (CC), referred to

Kombayi & Ors v Minister of Local Government, Public Works and National Housing & Ors HB 188-15 (unreported), referred to

Pharmaceutical Manufacturing Association of South Africa, In re Ex p President of the Republic of South Africa [2000] ZACC 1; 2000 (2) SA 674 (CC); 2000 (3) BCLR 241, referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 2, 175 (6)(b), 278, 278 (2) and (3), Part 4 of the Sixth Schedule

Urban Councils Act [Chapter 29:15], ss 114, 114 (1)(c), (d)(i) and (ii)

Books cited:

Baxter L Administrative Law (1984, Juta & Co Ltd, Cape Town)

Hoexter C Administrative Law of South Africa (2nd edn, Juta & Co Ltd, Cape Town, 2012)

Woolman S and Bishop M (eds) Constitutional Law of South Africa (2nd edn, Juta & Co Ltd, Cape Town, 2005) (Frank R Michelman “The Rule of Law, Legality and the Supremacy of the Constitution” chapter 11)

R Chidawanyika with E Mandipa and L Mudisi, for the applicants

E Mukucha and R Hove, for the respondents

BERE J:

This matter was originally brought to this Court as an urgent application and argued on 22 September 2015.

Pursuant to that, in a well-reasoned judgment my sister Judge Moyo J granted a provisional order couched as follows:

“INTERIM RELIEF GRANTED

That pending the confirmation of the Provisional order the applicants are granted the following relief:

1. That pending finalization of this matter, all disciplinary proceedings against applicants that are pending before the tribunal appointed by the first respondent are hereby stayed.

2. That first respondent and second respondent jointly and severally bear the costs of this application.”

The applicants’ application before me now seeks the confirmation of the provisional order and the final order desired by the applicants is to the following effect:

“FINAL ORDER

1. That the conduct of the first respondent to appoint a tribunal set to hear charges against applicants be and is hereby declared to be ultra vires the Constitution.

2. That the first respondent’s letter dated the 25th of August to applicants be declared to be null and void and of no force or effect and is hereby set aside.

3. That the proceedings presided by the tribunal be and are hereby declared to be null and void ab initio.

4. That the second respondent’s letter dated the 27th of August to the applicants be declared to be null and void.

5. That the first and second respondents bear the costs of suit.”

The respondents have rigorously opposed the confirmation of the provisional order sought and have instead sought to have the order discharged.

Perhaps, in passing, and before dealing with the substantive arguments in this case, I note that the second part of the provisional order alluded to the respondents having to bear costs of suit. It is not normal that a provisional order would contain such a provision as the issue of costs is generally reserved for consideration or determination on the return day when the granting or non-granting of the final order is determined. I sincerely hope that no effort has been made by the applicants to enforce part 2 of the provisional order granted.

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