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

HIGH COURT, HARARE

[Urgent Chamber Application HH 274-16]

April 26 and May 11, 2016

DUBE 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 affected.

The applicant, the mayor of Harare, 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. The suspended mayor was told that he would, in due course, appear before a “competent authority” to answer allegations that caused his suspension. The applicant challenged his suspension on the basis that it contravened s 278 of 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. There was no such tribunal and the applicant argued that this rendered his suspension unconstitutional.

Held, that while a mayor cannot be dismissed from office outside the provisions of s 278 of the Constitution, a suspension from office was an entirely different matter. Section 278 does not take away the Minister’s power to suspend, and investigate acts of misconduct by mayors and councillors provided always that questions of removal or dismissal are dealt with in terms of the section.

Held, further, that in the circumstances of this case, the suspension of the applicant was lawful in terms of the Urban Councils Act.

Cases cited:

Chotabhai v Union Government (Minister of Justice) and Registrar of Asiatics 1911 AD 13, referred to

Fischer v Liquidators of the Union Bank (1890-1891) 8 SC 46, referred to

Kombayi & Ors v Minister of Local Government, Public Works & National Housing & Ors 2016 (1) ZLR 410 (H), referred to

Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S), referred to

Legislation considered:

Constitution of Zimbabwe Amendment (No 20) Act, 2013, ss 2, 56 (1), 68, 69, 85 (1), (2), 278 (2), (3), Sixth Schedule para 10

Urban Councils Act [Chapter 29:15], ss 114 (1)(d)(ii), (2), (3), 123 (1)(e)

L Uriri with D Hofisi & D Chimbwa, for the applicant

LT Muradzikwa, for the respondents

DUBE J:

This case concerns the first respondent’s power to suspend the applicant. The applicant launched this urgent application challenging the first respondent’s act in suspending the applicant. The applicant seeks interim relief directing that the suspension by the first respondent of the applicant shall be of no force or effect and enabling that the applicant continues to carry out his duties as mayor of the City of Harare and that the first respondent be barred from dismissing, suspending or engaging in any other activity with a view to removing the applicant from office pending resolution of the matter.

The applicant is the councillor for Ward 17. He is also the mayor of Harare. The first respondent is the Minister of Local Government, Public Works and National Housing (“the Minister”). He is cited in his official capacity as the Minister responsible for the administration of the Urban Councils Act [Chapter 29:15]. The second respondent is the Attorney General of Zimbabwe and is cited in his official capacity as the principal legal advisor to the Government of Zimbabwe.

The state of affairs leading to this legal wrangle is put by the applicant as follows:

On 24 March 2016, Council for the City of Harare resolved to appoint Mr James Mushore as town clerk for the City of Harare. Discontented with the appointment, the Minister wrote a letter rescinding the appointment. The letter is now subject of litigation in a matter involving the Combined Residents Association and Another v The Minister of Local Government and Two Others under HC 3231/16. The Minister raised concerns regarding the appointment of the town clerk by Council with him. The Minister’s view was that it was the responsibility of the Local Government Board to decide who gets appointed to the post of town clerk. The Minister wanted the newly appointed town clerk to stop reporting for work. The applicant was directed to ensure that by close of business on 19 April 2016 Mr Mushore ceased to report for work. That directive was not followed. On 20 April 2016, the Minister suspended the applicant in terms of s 114 (1)(d)(ii) of the Urban Councils Act. The allegations levelled against the applicant are summarised in the letter of suspension. The letter of suspension reads in part as follows:

“The grounds of your suspension are that you have, without legal basis, made an employment offer to a person for the position of town clerk without the necessary approval of the Local Government Board as required by the Urban Councils Act, as read with s 265 (1)(b) of the Constitution of Zimbabwe. You went further and defied a lawfully given instruction by implementing a resolution that had been rescinded in terms of s 314 of the Urban Councils Act.

You will be brought before a competent authority to answer the allegations above, in due course.

During the period of suspension, you shall not receive any allowance and you shall not carry out any Council business within or outside council”.

The applicant challenges the Minister’s suspension on the basis that the Minister has purported to exercise powers that are non-existent and not in accordance with the Constitution. The applicant submitted as follows:

The removal of mayors is done by an independent tribunal in terms of an Act of Parliament in terms of s 278 of the Constitution. There is neither the Act of Parliament nor an independent tribunal in place. The applicant maintained that the suspension is null and void for the reason that the Minister’s power to suspend and/or dismiss a councillor or mayor was taken away by the provisions of s 278 of the Constitution. The applicant suggested that the Minister should seek legislative intervention to get a lawful basis to set up the independent tribunal as contemplated by s 278 of the Constitution. The applicant seeks interim relief on the following terms:

“Interim relief sought:

1 It is ordered that pending the final resolution of this matter either in the court of first instance or on appeal – 

(a) The letter of suspension of the applicant from the first respondent dated 20 April 2016 be and is hereby suspended.

(b) The applicant be and is hereby allowed to continue to carry out Council business and receive allowances in line with his post of mayor.

(c) 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...”

The respondents defended the application. They took two points in limine. The respondents attacked the urgency of the matter and the nature of the relief sought. The respondents submitted that the applicant has dirty hands and cannot be allowed to create urgency in this matter because he failed to comply with the directive of the Minister to stop the newly appointed town clerk from attending to his duties. Further, that the applicant continues to breach the provisions of s 123 (1)(e) of the Urban Councils Act in the appointment of the town clerk by allowing him to attend to his duties. The respondents urged the court not to be abused by a litigant who chooses which law to follow only to seek the protection of the law when he views that his own rights are being trampled upon. The respondents’ view is that the applicant is not an executive mayor and should not waste the court’s time pretending that he is a full time employee of a local authority. The respondents refuted the applicant’s assertion that the applicant is likely to suffer harm and prejudice should this application be placed on the normal application roll as he has a good alternative remedy which is to follow the provisions of the Urban Councils Act providing for the appointment of a town clerk. The respondents challenged the interim relief sought on the premise that its para (c) is too wide and is of a final nature.

The respondents’ case on the merits, is that whilst the City of Harare has the right to select a town clerk, the appointment needs to be approved by the Local Government Board in terms of s 123 (1)(e) of the Urban Councils Act. The respondents submitted that Council failed to adhere to this requirement for approval of the town clerk’s appointment leading to the Minister issuing a directive to stop the town clerk from reporting for work. The applicant failed to follow the Minister’s directive and hence the suspension. The applicant should not be allowed to break the law without being reigned in. The provisions of s 114 of the Urban Councils Act have not been repealed, the section remains operational. The section allows the Minister to suspend the mayor. The creation of a tribunal is of the applicant’s own creation as it is not provided for in the Urban Councils Act. In a sudden turn, the respondents argued that the provisions of s 278 (2) and (3) of the Constitution do not yet come into play as no question of dismissal of the mayor arises at this stage. The respondents revealed that the amendment and harmonisation of the Urban Councils Act with the Constitution, in particular s 278 of the Constitution is at an advanced stage.

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