MANYENYENI v MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING & ANOR (2)

HIGH COURT, HARARE

[Urgent Chamber Application HH 385-16]

June 17 and 29, 2016

MAKONI 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 has powers to re-suspend a mayor under section 114 of the Urban Councils Act [Chapter 29:15] where first suspension lapsed by operation of law due to absence of tribunal envisaged under section 278 of Constitution.

The applicant had previously challenged his first suspension under s 114 of the Urban Councils Act [Chapter 29:15] (“the Act”) on the basis of it being inconsistent with s 278 of the Constitution of Zimbabwe Amendment (No 20) Act, 2013. That challenge failed after the High Court held that s 278 did not affect the Minister’s powers of suspension. However, that suspension lapsed by operation of law as the tribunal envisaged in s 278 had not yet been established. Within a day of the applicant’s resumption of his duties, he was suspended again. The applicant returned to the High Court arguing that there was no scope for a second suspension whether on the same or different grounds if the allegations founding the previous suspension were never determined by the tribunal envisaged in s 278 of the Constitution.

Held, that the second suspension was unlawful on the basis that s 114 of the Act, read in the context of s 278 of the Constitution, required the Minister to be specific regarding the ground of suspension. He had failed to do so, thus rendering the suspension null and void.

Cases cited:

B Tengwe Estates (Pvt) Ltd v Minister of Lands & Anor 2002 (2) ZLR 137 (H), dicta applied

Graspeak Investments (Pvt) Ltd v Delta Corporation (Pvt) Ltd & Anor 2001 (2) ZLR 551 (H), followed

Gwaze v National Railways of Zimbabwe 2002 (1) ZLR 679 (S), referred to

Horowitz v Borck and Others 1988 (4) SA 160 (A), referred to

Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H), referred to

Naidoo v Director of Indian Education; Naidoo v Director of Indian Education and Another 1982 (4) SA 267 (N), applied

Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd (No 2) [1938] Ch 174; [1937] 4 All ER 405 (CA), dicta applied

Tsvangirai & Ors v Registrar General 2002 (2) ZLR 653 (S), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 278 (2), (2)(b), (2)(d)

Urban Councils Act [Chapter 29:15], ss 114, 114 (1), (1)(b), (1)(d)

Book cited:

Cilliers AC, Loots C and Nel HC Herbstein and Van Winsen, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa (5th edn, Juta & Co Ltd, Cape Town, 2009) p 609

L Madhuku, for the applicant

E Mukucha, for the respondents

MAKONI J:

The applicant approached this Court on a certificate of urgency, seeking the following relief:

“1.1 It is ordered that pending the final resolution of this matter either in the court of first instance or on appeal:

(a)-(c) ...

(d) The letter of re-suspension of the applicant from the first respondent dated 6 June 2016 be and is hereby suspended;

(e) The applicant be and is hereby allowed to continue to carry out council business and receive allowances in line with his post of mayor;

(f) The first respondent be and is hereby ordered to refrain from suspending, dismissing or engaging in any other activity with a view to removing applicant from the office of mayor of Harare...

TERMS OF THE FINAL ORDER:

1. The letter of re-suspension of the applicant from the first respondent dated 6 June 2016 be and is hereby declared null and void.

2. The first respondent be and is hereby interdicted from suspending the applicant until the Supreme Court has determined the appeal in SC 324/2016.

3. The first respondent to pay the costs of this application on a legal practitioner client scale.”

The background to the matter is that, on 20 April 2016 the first respondent suspended the applicant in terms of s 114 (1)(d) of the Urban Councils Act [Chapter 29:15] (“the Act”) from carrying out the functions of the office of the mayor and councillor. The applicant brought an urgent chamber application before this Court under HC 416/16 wherein he challenged the powers of the first respondent to suspend him. A judgment was rendered dismissing his application. He then appealed to the Supreme Court. The suspension lapsed by operation of the law after the expiry of 45 days before he was brought before a competent tribunal as envisaged by s 278 (2) of the Constitution of Zimbabwe Amendment (No 20) Act, 2013 (“the Constitution”) to answer to his charges. On 6 June 2016, he resumed his duties as mayor and councillor.

On 7 June 2016, the first respondent, again, suspended the applicant. The letter of suspension reads:

“With reference to the above cited matter, it has come to my attention that on 27 July 2015, you were advised in writing of very serious allegations of corruption at Easipark and City parking and ordered by Honourable S Kasuku were in terms of s 316 of the Act to cause a forensic audit of the two entities and to provide a preliminary report to the Minister on same within six weeks of the engaging of the auditors.

This section of the article is only available for our subscribers. Please click here to subscribe to a subscription plan to view this part of the article.

Please click here to login