GARWE
JA:
At the conclusion of the hearing of this appeal, this Court dismissed
the appeal with costs and indicated that the reasons for that decision would
follow in due course. These are the
reasons.
This
is an appeal against the judgment of GUVAVA J in which she set aside a council
resolution rescinding the election of the respondent and the second appellant
as mayor and deputy mayor of the Bindura Municipality respectively and declaring
the first appellant as the duly elected mayor of the Bindura Municipality.
The background to this
matter is as follows. The respondent was
one of several candidates who were elected in 2008 as councillors of the Bindura
Municipality. On 1 August 2008, the
council of the Bindura Municipality held its first meeting at which the
respondent and the second appellant were elected mayor and deputy mayor
respectively. On 13 October 2008 one of
the councillors C Mazembe, drafted a motion for the rescission of the
resolution in terms of which the respondent had been elected mayor. In the same draft C Mazembe made it clear
that the intention was to move a motion to pass a vote of no confidence on the
respondent as mayor. In the draft a number
of allegations of impropriety on the part of the respondent were given as
justifying the motion. The motion, having
been seconded by other councillors, was referred to the acting chamber
secretary who in turn referred the same to the third appellant who was the town
clerk.
On 24 October 2008 the
town clerk convened a council meeting to deliberate on the motion. The respondent queried the correctness of the
procedure that had been followed. When
it became clear that some of the councillors present supported the procedure
adopted, the respondent declared the meeting closed and left the chamber in the
company of three other councillors. The
remaining councillors continued with the motion under the chairmanship of the
second appellant who was the deputy mayor.
Following those deliberations the resolution in question was rescinded
and the appointment of the respondent and the second appellant as mayor and deputy
mayor was rescinded. Immediately
thereafter the first and second appellants were elected mayor and deputy mayor
respectively.
In the court a quo the respondent sought an order
declaring the election of the first and second appellants to be null and void
and further declaring the respondent as the lawfully elected mayor of the
Bindura Municipality. The court a quo was of the view that s 89 of the
Urban Councils Act [Cap. 29:15] ("the
Urban Councils Act")on which the appellants sought to rely related to general
resolutions of council in ordinary meetings and did not apply to the situation where
council sought to remove a duly elected mayor from office. In particular the court a quo was of the view that a councillor elected as mayor cannot be
lawfully removed from the position by a resolution passed by councillors in a meeting
in the absence of the seat of the mayor falling vacant as provided for under s
103 of the Act. In the result the court a quo granted the declaration sought by
the respondent. Against that order the
appellants have appealed to this Court.
In their notice of
appeal and heads of argument the appellants raised several issues. In essence they attacked the decision of the
court a quo on the following basis:
(a)
That the court erred in
failing to understand that all questions, including the election of mayor,
arising before a council meeting, are decided by a resolution by a majority and
that in terms of the Urban Councils Act the council has the power to rescind or
alter all its resolutions.
(b)
As the Minister of
Local Government, Rural and Urban Development who administers the Urban
Councils Act had not been cited, such non-joinder was fatal and the court a quo
should have dismissed the application on that basis alone.
(c)
In reviewing the
proceedings of a statutory body lawfully vested with discretion, the
jurisdiction of a court of law is limited to the question whether or not that
body exercised its discretion and not the correctness of the conclusion arrived
at by it.
(d)
That since it is the
council which appoints a mayor of council, in terms of s 28 of the
Interpretation Act [Cap 1:01] ("the
Interpretation Act"), council has the power to dis-appoint a mayor and the
consequential power to appoint another person into that vacant post.
It seems to me that there are two basic issues that
fall for determination by this Court.
The first is whether the non-joinder of the Minister of Local
Government, Rural and Urban Development was fatal. The second is whether a duly elected mayor of
council can be removed from office by council through the instrumentality of a
resolution passed by that council.
The question whether the non-joinder of the Minister
is fatal need not detain this Court and can easily be disposed by reference to
r 87 of the Rules of the High Court which provides:
"(1) No cause or mater shall be defeated by reason
of the mis-joinder or non-joinder of any party and the court may in any cause
or matter determine the issues or question in dispute so far as they affect the
rights and interests of the persons who are parties to the cause or matter.
(2) At any
stage of the proceedings in any cause or matter the court may on such terms as
it thinks just and either of its own motion or on application -
(a) ....
(b) order any person who ought to have been
joined as a party or whose presence before the court is necessary to ensure that
all matters in dispute in the cause or matter may be effectually and completely
determined and adjudicated upon, to be added as a party;
But
no person ...".
The above provision is
clear and allows of no ambiguity. The
non-citation of the Minister is not, in the circumstances, fatal. Indeed, this Court restated this position in
the recent decision in Sobusa Gula
Ndebele v Chinembiri Energy Bhunu SC-29/11 (p2 of the cyclostyled
judgment).
The second issue that falls
for determination is one of interpretation and that is whether a duly elected mayor
can be removed from office following a resolution of council to that
effect. On a careful perusal of the
provisions of the Urban Councils Act, it is clear that there is no specific
provision dealing with the removal of a mayor from office. In order to determine the intention of the
legislature on this important issue, one must, I think, have regard to the
entirety of the provisions of the Urban Councils Act and the Interpretation Act.
It is correct, as
submitted by the appellants in their heads of argument, that in terms of s 28
of the Interpretation Act, the power to appoint necessarily includes the power
to remove or suspend a person. Section
28 of the Interpretation Act provides as follows:
"28 Appointments
An
enactment which confers power to make an appointment of a person to any office
or post shall confer on the appointing authority -
(a)
power at the discretion of that
authority to remove or suspend him; or
(b)
power exercisable in the like manner and
subject to the like consent and conditions, if any, applicable on his
appointment -
(i)
to reappoint or reinstate him; or
(ii)
to appoint another person in his stead
or to act in his stead, and to provide for the remuneration of the person so
appointed; or
(iii)
to fix or vary his remuneration, to
withhold his remuneration in whole or in part during any period of suspension
from office, and to terminate his remuneration on his removal from office".
However, on a careful reading of the Act, it is
clear that such a power is not absolute and that the provision must be read
against the specific provisions of a particular enactment. Section 2 of the Interpretation Act provides:
"2 Application of this Act
(1)
The provisions of this Act shall extend
and
apply to every enactment as
defined in this Act, including this Act, which was in force in Zimbabwe
immediately before the 1st November, 1962, or thereafter comes into
force in Zimbabwe, except in so far as any such provisions -
(a)
are
inconsistent with the intention or object of such enactment; or
(b)
would give to any word, expression or
provision of any such enactment an interpretation inconsistent with the
context; or
(c)
are in such enactment declared not
applicable thereto.
(2)
Nothing in this Act shall exclude the
application to any enactment of any rule of construction applicable thereto and
not inconsistent with this Act."
Whilst there is no doubt
that the Interpretation Act empowers an appointing authority to remove a person
from office, that provision is a general provision which is applicable to
enactments generally but cannot supercede the specific provision of a
particular enactment. For purposes of
this appeal, whilst one should not lose sight of the provisions of the
Interpretation Act, regard must be had to the pertinent provisions in the Urban
Councils Act.
The Urban Councils Act
prescribes how a councillor is elected as mayor or deputy mayor and how such
person ceases to hold such office. The
relevant section is 103 which provides as follows:
"103 Election
of mayor, deputy mayor, chairperson and deputy chairperson
(1)
At the first meeting of a council after
it has been established and thereafter at the first meeting held-
(a)
after the general election of
councillors; or
(b)
after an initial election of councillors
referred to in section 17(1)(c); or
the
councillors present at that meeting shall, under the chairmanship of the
district administrator or in the case of the Harare and Bulawayo Municipal
Councils the Provincial Administrator within whose province the municipal
council lies, elect -
(c)
in the case of a municipal council, one
councillor or other person to be mayor and thereafter another councillor to be deputy
mayor;
(d)
in the case of a town council, one
councillor to be chairperson and thereafter another councillor to be deputy chairperson.
(2)
A person elected in terms of subsection
(1) shall forthwith enter upon his or her office and shall hold office until
the election or appointment of his or her successor in office.
(3)
A person elected in terms of subsection
(1) shall cease to hold office as such when his or her successor is elected in
terms of that subsection:
Provided that-
(i)
if a deputy is elected in terms of
subsection (4) to be mayor, he or she shall cease to hold office as deputy with
effect from that election;
(ii)
if a deputy chairperson is elected in
terms of subsection (4) to be chairperson, he or she shall cease to hold office
as deputy chairperson with effect from that election;
(iii)
if a mayor, chairperson, deputy mayor or
deputy chairperson resigns, by notice in writing addressed to the town clerk,
he or she shall cease to hold office as such with effect from the date the
notice is received by the town clerk;
(iv)
if the seat of the councillor who is a mayor,
chairperson, deputy mayor or deputy chairperson becomes vacant by virtue of
section 78(2)(b), (c), (d), (e), (f) or (g), he or she shall cease to hold
office as such with effect from the date that seat becomes vacant."
It is clear from the above
provisions that it is the process of an election that gives rise to the
election of a mayor. Indeed subsection
(2) makes it clear that a person so elected shall forthwith enter upon his or
her office and shall hold office until the election or appointment of a
successor. Section 48 of the Act also
makes it clear that a person elected as mayor shall take office on the date on
which he is declared or deemed to have been elected a mayor unless his
predecessor's term of office has not expired.
The submission by the
appellants is that the council can, by ordinary council resolution, remove an elected
mayor from office for any reason. In
support of this submission they rely on the provisions of ss 84 and 89 of the Urban
Councils Act. Section 84 of the Urban
Councils Act provides:
"84 Meetings and special
meetings of council
(1)
A council shall hold its first meeting
on such date and at such place as the Minister may fix and thereafter the
council shall, subject to this Act, meet for the dispatch of business and
adjourn, close and otherwise regulate its meetings and proceedings as it thinks
fit:
Provided that the council shall hold an
ordinary meeting -
(a)
as soon as is practicable after each
general election; and
(b)
at least once in each month.
(2)
Save as otherwise provided in this Act,
at any meeting of a council -
(a)
all the councillors present at that
meeting shall vote on every matter which is put to the vote;
(b)
voting shall be by show of hands or by
any mechanical means approved by the council;
(c)
all the questions coming or arising
before that meeting shall be decided by a resolution passed by a majority of the
votes cast and, in the event of an equality of votes, the mayor shall have a
casting vote in addition to a deliberative vote.
(3)
The mayor may, at any time, and at the
request in writing of not less than one-third of the total membership of the
council or of six councillors whichever is the less, shall, within fourteen
days of such request, call a special meeting of the council.
(4)
Written notice of any special meeting
called in terms of subsection (3) shall be sent to each councillor at least
twenty-four hours before the meeting and shall specify the object of the
meeting, and no matters, other than those specified in that notice, shall be
discussed at that special meeting.
(5)
.
(6)
.".
And s 89 of the Urban Councils Act
provides:
"89 Rescission or alteration of resolutions
of council and committees
(1)
A resolution passed at a meeting of a
council shall not be rescinded or altered at a subsequent meeting of the
council -
(a)
Unless -
(i)
a committee has recommended that the
resolution be rescinded or altered; or
(ii)
a notice of motion to rescind or alter
that resolution has been given at least seven days before the subsequent
meeting to the chamber secretary and the notice of motion has been signed by
not less than one-third of the membership of the council;
and
(b) if
the rescission or alteration occurs within six months from the date of the
passing of the original resolution and the number of councillors present at
such subsequent meeting does not exceed the number of councillors present when
the original resolution was passed, unless at least two-third of the
councillors or members, as the case may be, present at the subsequent meeting
vote in favour of that rescission or alteration.
(2) The chamber secretary to whom any notice of motion has been given in terms of subsection
(1) shall send a copy of the notice to each councillor at least two days before
the subsequent meeting at which the motion is to be moved.
(3)
Nothing in subsection (1) shall be construed as precluding a council from
rescinding or altering a resolution passed at a previous meeting in a manner
other than that recommended by the committee or specified in a notice of
motion, as the case may be.
(2)
A resolution passed at a meeting of a
committee of a council may be rescinded or altered at any subsequent meeting of
that committee".
The respondent on the
other hand submitted that s 89 is a general provision which relates to meetings
of council and does not empower the removal of a sitting mayor. The respondent further argued that it is s103
which provides for the vacation of office of mayor and that that section does
not provide for such removal to be done through resolutions passed by council. Instead a successor can only be appointed
where the seat of the councillor who is a mayor or deputy mayor becomes vacant
by virtue of the provisions of s 103 as read with the provisions of s 78(2) of
the Urban Councils Act.
Section 78(2) in
relevant part provides
"Subject
to subsection (3) if a councillor -
(a)
dies; or
(b)
resigns his office; or
(c)
ceases to be qualified for election as a
councillor or becomes disqualified for such election in terms of section 119 of
the Electoral Act [Chapter 2:13] (No. 25 of 2004); or
(c1) ceases
to be a councillor in terms of subsection (7) of section forty- one; or
(d)
is absent without leave of the council-
(i)
from the ordinary meetings of the council
during a period of two consecutive calendar months; or
(ii)
from the meetings of any committee of
the council to which he has been appointed during a period of two consecutive
calendar months, if the committee has held at least one meeting in each of
those calendar months or from two consecutive meetings of the committee which
are not held in the same calendar month or consecutive calendar months;
or
(e)
is absent from the ordinary meetings of
the council during a period of six consecutive calendar months, whether or not
leave of the council has been obtained; or
(f)
ceases in terms of paragraph (b)
subsection (1) of section 22 of the Provincial Councils and Administration Act
[Chapter 29:11], to be a councillor; or
(g)
has been suspended in terms of section
one hundred and fourteen for a period longer than thirty days;
his
seat shall become vacant and such vacancy shall be deemed to be a special vacancy."
An urban council is a
creature of statute. It therefore derives
its authority from the Urban Councils Act and other legislative
provisions. As a corollary an urban
council therefore can only do that which the law has specifically or impliedly
authorised. It has no power to do
anything that the law has not authorised.
Having carefully
considered the provisions of the Urban Councils Act and the submissions made by
both parties to this appeal, I am satisfied, on a correct reading of the Urban
Councils Act, that there is no law that allows a council to remove a sitting mayor
on the basis of a mere council resolution.
It is clear that s 89 of the Urban Councils Act refers to rescission or
alterations of council resolutions. The
section cannot possibly apply to the removal of a mayor. The appellants have argued that at the end of
the day a mayor is put into office through such a resolution and consequently
that resolution can be rescinded in terms of the Urban Councils Act. I find myself unable to accept this
submission. It is clear that it is the
electoral process involving the councillors which results in one of them being
elected mayor and another as deputy mayor.
Such process is chaired by the district administrator as provided in the
Urban Councils Act. The suggestion that this
was an ordinary meeting which ended in a resolution is in my view untenable. The law requires that there be an election
and that the person so elected enters office forthwith. There is no legal requirement for the passing
of a resolution before the incumbent assumes the position.
The above interpretation
is re-inforced by the provisions of s 103(3) which prescribe how a person who
has been elected mayor or deputy mayor shall cease to hold office. In particular if the seat of the councillor
who is a mayor or deputy mayor becomes vacant by virtue of any of the
provisions of s 78(2) (b)-(g), he shall cease to hold office as such with
effect from the date that seat becomes vacant.
If the intention of Parliament was simply that a sitting mayor could be
removed pursuant to an ordinary council resolution the Urban Councils Act would
not only have said so but would not have gone further to make provision on how
a person ceases to be mayor. To read the
Urban Councils Act as making provision for the removal of a person as mayor through
a resolution would render the provisions of s 103(3) superfluous.
Regard should also be
had to the fact that prior to the amendment of the Urban Councils Act by Act
1/08, the Minister was empowered by s 54 to suspend a mayor and the President
to dismiss him. Act 1/08 repealed s 54
and substituted it with s 103. It is s
103 that prescribes how a person elected as mayor ceases to hold such
office. In doing so, the intention must
have been that a mayor would only cease to hold office when his successor is
elected or if the seat of a councillor who is a mayor falls vacant.
In any event the
suggestion that a sitting mayor can be removed from office through a mere
resolution can result in an absurdity.
In this particular case it is clear that the councillor who moved the
motion did so, on the basis that the mayor had misconducted himself. A list of the grounds of misconduct were cited
in the motion. The respondent, who was mayor, was not asked to respond. Neither was there any inquiry. All that happened was that the councillors
who remained behind voted to remove the mayor from office without any inquiry
at all and without affording him the opportunity to be heard. If the appellants' submission that a mere
council resolution would suffice to remove a mayor from office were to be taken
to its logical conclusion a situation could arise where there could be a motion
by one councillor removing a mayor and another motion re-electing the same mayor
by another councillor. This surely could
not have been the intention of the legislature.
I am inclined to agree
with the remarks by the court a quo
that:
"The
provisions of s 103(2) are peremptory and in the absence of a cogent argument
as to why council should not comply with the said provision I am unable to find
that s89 applies in the removal of a mayor from office".
The appeal must therefore fail.
Before
concluding it seems to me pertinent that I make certain observations on what are
obviously gaps in the Urban Councils Act, not only on the removal of a mayor or
deputy from office but also on the appointment of the same.
Prior
to 2008, the voters in a council area elected an executive mayor who in terms
of s 64 of the Urban Councils Act controlled the activities of the employees of
the council and was responsible for the suspervision and co-ordination of
council affairs. As already noted the
then s 54 of the Act empowered the Minister to suspend a mayor and the
President to dismiss him or her from office.
In
2008, the Act was amended by the Local Government Laws Amendment Act 1/08. That amendment abolished the post of executive
mayor in favour of a ceremonial mayor.
That amendment made no provision empowering the Minister to suspend a mayor. It is not clear why no specific provision was
made for the removal of a mayor or his deputy but one possible explanation may
be that since the mayor was now ceremonial whatever misconduct he committed
would be committed in his capacity as a councillor and in terms of s 114 of the
Urban Councils Act the Minister could suspend and dismiss him as a councillor
in which case he would automatically cease to be mayor.
Further
the amendment omitted to prescribe the qualifications of the ceremonial mayor. In terms of s 103 (c) the councillors elect
one councillor or other person to be mayor
and thereafter another councillor to be deputy mayor. What this means is that councillors are free
to elect any person as mayor, including one who is not a councillor. Whilst the
Minister can suspend a councillor including a councillor who has been elected mayor,
he cannot act against a mayor who is not a councillor as no provision for such
an eventuality has been made. Moreover,
not only are the qualifications of a mayor missing from the Act but also the
circumstances under which a person is disqualified from holding such office
have not been spelt out. Consequently a
councillor who has been elected mayor but is subsequently suspended and
dismissed in terms of s 114 remains mayor.
Further
the amendment added to the confusion by defining "elected councillor" as "a
councillor other than an appointed councillor and includes a person elected or appointed
as a mayor or deputy mayor in terms of s 103".
Such a definition would have made sense if the Urban Councils Act had
restricted the office of mayor to elected councillors.
The
above observations clearly suggest that when the Urban Councils Act was amended
by Act 1/08, the legislature "forgot" to include a number of important
provisions. The result is that there are
gaps in the Act which have the potential to create problems such as those
exemplified by the present case. The
attention of the relevant government Ministry should be drawn to the contents
of this judgment.
Having
come to the conclusion that a duly elected mayor cannot be removed from office
by ordinary council resolution, this Court was of the unanimous view that there
was no merit in the appeal and for that reason dismissed the appeal with costs.
ZIYAMBI JA: I agree
CHEDA JA: I agree
Mushonaga,
Mutsvairo & Associates, appellants, legal practitioners
Mbidzo, Muchadehama
& Makoni, respondents, legal practitioners
