CHEDA AJ: This is an urgent chamber
application issued by the applicant who seeks a provisional order to restrain
the 4th and 5th respondents permanently from attending
any council meetings of the 3rd respondent pending resolution of a
court application to be instituted by the applicant within 7 days of the grant
of the order and challenging the 1st respondent's appointment of the
4th and 5th respondents.
In his founding affidavit the applicant
says he is a resident of number 61047 Pelandaba Township in Bulawayo, is a
registered voter and ward chairman of the Bulawayo Progressive Residents
Association. He is also a rate payer of the Bulawayo City Council (“the
City Council”). He says as such he has locus standi to institute
this action.
He says he is challenging the appointment
of the 4th and 5th respondents to the City Council as
Special Interest Councillors, and seeks to interdict them from attending City
Council meetings.
He says the appointments are irregular in
that they are made when the term of the City Councillors is coming to an end by
operation of law in the next month or so, and as such the appointments shall
not benefit the City Council, but will instead drain financial resources to
which he is a contributor. He says the swearing in of the two respondents
was done secretly in a ceremony hidden from the public on 25 February 2013 when
the swearing in of councilors is a public matter.
He submitted that the appointment of the
two respondents is actuated by a desire other than genuine concern to ensure
that the special interest groups are catered for, and the appointment is void ab
initio for gross unreasonableness. He alleges that the appointments
have serious consequences for rate payers like himself. The appointments
are regarded as irrational and in defiance of logic that no person at all who
has applied his mind to the mater, may act in such a manner.
When the urgent chamber application was
placed before me I ordered that it be served on the respondents and that they
appear in chambers for the matter. When they so did, the respondent had
not had time to file their papers, so that matter was postponed to enable the 1st
respondent to do so. When the matter resumed the 1st
respondent had not filed any papers but opted to make opposing submissions
verbally.
After hearing the applicant's legal
practitioner, the 1st respondent's legal practitioner submitted that
the 1st respondent acted in terms of section 4(a) of the Urban
Councils Act Chapter 29:15 and the appointments were proper. However, he
could not explain why the appointments were being made so late and towards the
end of the councilors' term of office. He said the Minister could make
the appointments at any time.
Indeed the Urban Councils Act, gives the 1st
respondent power to appoint Special Interest Councillors in section 4.
The assumption is that these councilors
sit in Council and take part in the deliberations of the Council with special
concern for special interest groups.
No explanation was given as to why, the 1st
respondent, the Minister, who had these powers, did not make the appointments
of these special interest councilors for the whole life period of the Council
which is 5 years, and only decided to do so when the period of the Council
concerned is due to end in a month's time. It is difficult to imagine
what interest of the special groups will be served by Councillors who are
appointed to the Council for less than a period of about a month.
I am inclined to agree that no purpose
will be served by these appointments. It is too late to make them.
The unreasonableness of the 1st respondent's action raises questions
from any person properly applying his mind to the matter. It is clear
that the Council's term will come to an end before the appointees even
understand the business of Council, and as such, cannot be in a position to be
of any benefit to the special group for which the appointments are made.
In his provisional order the applicant
used the words “permanently interdicted”. After debating the issue the
legal practitioner of the applicant conceded that such wording was
inappropriate where a party seeks an order pending the determination of a
matter.
Accordingly, the provisional order is
amended by the deletion of the word permanently where ever it appears. In
the result the order is granted in terms of the amended provisional draft
order.
Job Sibanda & Associates, applicant's legal practitioners
Civil
Division of the Attorney General's Office, 1st
respondent's legal practitioners
