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….,.
The facts giving rise to this case can be briefly
summarized as follows:
The first applicant in this case is the current Mayor of
the City of Gweru whilst the rest of the applicants are councillors of Gweru
City Council, having been so elected in the harmonized election of 2013. On 12
August 2015, the applicants were suspended and immediately evicted from their
offices without remuneration from Gweru City Council by the first respondent in
terms of section 114(1)(c)(d)(i)(ii) of the Urban Councils Act [Chapter 29:15]
(the Act) on a litany of allegations which impacted negatively on their ability
to continue discharging their functions as the servants of the Gweru City
Council.
Following their suspension, on 25 August 2015, the first
respondent then served the applicants with a formal notice to appear before a
tribunal to be chaired by the third respondent together with two other members
cited as the fourth and fifth respondents. Subsequent to this, and on 27 August
2015, the applicants were served with a document containing specific
allegations which had been preferred against them and which the tribunal was
supposed to deal with. For some strange reasons, these charges were now framed
by the second respondent. All the correspondence sent to the applicants clearly
indicated that the first and the second respondents were acting in terms of section
114 of the Urban Councils Act [Chapter 29:15].
The applicants sought legal advice, and the result of their
effort was a fairly detailed letter, dated 2 September 2015, from a Mr T
Christmas, a senior projects lawyer attached to the Zimbabwe Human Rights NGO Forum.
This letter was addressed to the first respondent and copied to the other
respondents. The import of the letter in question was to highlight to the
respondents the impropriety of proceedings against the applicants in terms of
section 114 of the Urban Councils Act [Chapter 29:15] in the light of the clear
provisions of section 278(2) and (3) of the Constitution of the Republic (Constitution
of Zimbabwe Amendment (No. 20) Act 2013) which ought to have been invoked in
dealing with the applicants.
Despite all these efforts by the applicants to have the
proceedings before the tribunal stopped, the respondents were determined to go
ahead with the path they had chosen and continue with the hearing before the
tribunal. The urgent application filed, and the provisional order granted in
this case was a desperate effort by the applicants to force the respondents to
act within the parametres of the law in dealing with them and as perceived by
the applicants themselves.
As already indicated, the respondents have vehemently
opposed this application and their position is that in suspending, and
subsequently setting up a tribunal, the first respondent has fully complied
with the provisions of both the Urban Councils Act and the Constitution.
ISSUE BEFORE
THE COURT
The issue, as perceived, is simply whether the first
respondent and the rest of the respondents should have proceeded to deal with
the applicants in terms of section 114 of the Urban Councils Act [Chapter
29:15] or in terms of section 278 of the Constitution of the Republic.
For clarity's sake, section 114 of the Urban Councils Act [Chapter
29:15] provides for both the 'suspension and dismissal of Councillors' and is
framed as follows:
(1) Subject to this section, if the Minister has reasonable
grounds for suspecting that a councillor -
(a) Has
contravened any provision of the Prevention of Corruption Act [Chapter 9:16]; or
(b) Has
contravened section one hundred and
seven, section one
hundred and eight, or section one
hundred and nine; or
(c) Has
committed any offence involving dishonesty in connection with the funds or
other property of the council; or
(d) Has
been responsible –
(i) Through serious negligence, for the loss of any funds
or property of the council; or
(ii) For gross mismanagement of the funds, property or
affairs of the council;
whether or not the councillor's responsibility is shared
with other councilors or with any employees of the council; or
(e) Has not
relinquished office after his seat became vacant in terms of this Act;
the Minister may, by written notice to the councillor and
the Council concerned, suspend the councillor from exercising all or any of his
functions as a councillor in terms of this Act or any other enactment.
(2) Any allowance that is payable to councillors in terms
of this Act shall continue to be paid to a councillor who has been suspended in
terms of subsection (1) for so long as he remains a councillor, unless the
Minister, by notice in writing to the Council concerned, directs otherwise.
(3) As soon as is practicable after he has suspended a
councillor in terms of subsection (1), and, in any event, within forty-five
days, the Minister shall cause a thorough investigation to be conducted with
all reasonable dispatch to determine whether or not the councillor has been
guilty of any act, omission or conduct referred to in that subsection.
(4) If, following investigation, the Minister is satisfied
that the grounds of suspicion on the basis of which he suspended a councillor
in terms of subsection (1) have been established as fact, he may, by written
notice to the Council and the councilor concerned, dismiss the councillor, and
the councillor's seat shall thereupon become vacant.
(5) A person who has been dismissed in terms of subsection
(3) shall be disqualified from nomination or election as a councillor for a
period of five years.”
On the other hand, section 278 of the Constitution
specifically provides for the tenure of seats of members of local
authorities and is worded as follows:
“(1) The seat of a mayor, chairperson or councillor of a
local authority becomes vacant in the circumstances set out in section 129, as
if he or she were a member of Parliament, any reference to the Speaker or
President of the Senate in section 129(1)(k) being construed as a reference to
the Minister responsible for local Government.
(2) An Act of Parliament must provide for the establishment
of an independent tribunal to exercise the function of removing from office
mayors, chairpersons and councillors, but any such removal must only be on the
grounds of –
(a) Inability to perform the functions of their office due
to mental or physical incapacity;
(b) Gross incompetence;
(c) Gross misconduct;
(d) Conviction of an offence involving dishonesty,
corruption or abuse of office; or
(e) Wilful violation of the law, including a local
authority by-law.
(3) A mayor, chairperson or councilor of a local authority
does not vacate his or her seat, except in accordance with this section.”
There can be no doubt that section 114 of the Urban
Councils Act [Chapter 29:15] is in direct conflict with section 278 of the
Constitution. It is abundantly clear that whereas section 114 of the Urban
Councils Act gives all the power to suspend and dismiss councillors to the
first respondent, section 278 of the Constitution provides a new paradigm shift
from this scenario. Section 278 sets out a completely different regime in the
removal of councillors from office. The section arrogantly, and authoritatively,
concludes as follows:
“278 (3) A mayor, chairperson or councillor of a local
authority does not vacate his or her seat except in accordance with this
section.”
This peremptory dictation of the Constitution is there for
all to see. The section requires no further interpretation except what it says.
Counsel for the applicants passionately put a refined
argument that section 114 of the Urban Councils Act [Chapter 29:15] must
graciously pave way for section 278 of the Constitution when it comes to the
eviction of councillors from office.
I agree.
The supremacy of the Constitution of the Republic finds
expression in the preamble to the Constitution which reads as follows:
“Supremacy of Constitution
This Constitution is the Supreme Law of Zimbabwe and any
law, practice, custom or conduct inconsistent with it is invalid to the extent
of the inconsistency.”
Section 2 of the Constitution of Zimbabwe, Constitution of
Zimbabwe Amendment (No. 20) Act 2013.
Further, as correctly noted by the applicants' counsel
while leaning on one of the leading legal writers, FRANK MICHELMAN:
“…, whenever, and in so far as legal norm or rule of
decision laid down by the Constitution comes into practical collision with the
legal norm or rule of decision laid down by any sort of non-Constitutional law -
be it Parliamentary legislation, subordinate legislation, common law, or
customary law – the Constitution's norm is to be given precedence by anyone
whose project is to carry out the law.”
'Rule of Law, Legality and Supremacy of the Constitution'
in Constitutional Law of South Africa, 2nd Edition, Volume 1 by WOOLMAN,
ROUX, KLAAREN, CHAKALSON et al Juta…,.
The supremacy of the Constitution was fairly recently
highlighted in the South African case of Pharmaceutical Society of South Africa
and Others v Minister of Health and Another where the court succinctly put it
in the following:
“There is only one system of law. It is shaped by the
Constitution which is the Supreme law, and all law, including the common law,
derives its force from the Constitution and it is subject to Constitutional
control.” Case No. 4128/04…,.
All what this boils down to is that Constitutions all over
the planet place constraints on the exercise of public power for obvious
reasons. If left unchecked, Executive power can be cause for nightmare to the
citizenry. BAXTER and HOEXTER could not have put it in a clearer way when they
noted:
“The grandnorm of the Administration Law is to be found in
the principles of the Constitution.”
BAXTER, Administrative Law 1984 and C HOEXTER,
Administrative Law of South Africa, 2nd Edition, 2012.
Faced with an almost insurmountable task of trying to
defend the conduct of the respondents in this matter, counsel for the
respondents put up a brave face and sought to find refuge in section 10, under
Part 4 of the sixth schedule to the Constitution of Zimbabwe which is framed as
follows:
“Continuation of
existing Laws
10 Subject to this schedule, all existing laws continue in
force but must be construed in conformity with the Constitution.”…,.
This section simply means what it says, and, in
interpreting it I could not agree more with my sister Judge MOYO J when she
remarked as follows:
“My understanding of this clause is that the current Constitution
did not repeal all existing laws, they are still in force but rather they
should be construed in conformity with the Constitution; meaning that they
should be applicable where they conform with the Constitution and where they
are inconsistent with the Constitution, obviously, they should be amended and
re-aligned to it.”
Hamutendi Kombayi and 10 Others v Minister of Local
Government, Public Works and National Housing and Others HB188-15…,.
There can be no doubt that the provisions of section 114 of
the Urban Councils Act [Chapter 29:15] are inconsistent with the sweeping
provisions of section 278 of the Constitution. Naturally, section 114 of the
Urban Councils Act [Chapter 29:15] must graciously give way to section 278.
Fully appreciating that he was on slippery ground in as far
as his arguments to torpedo the clear provisions of section 278 of the
Constitution were concerned, counsel for the respondents urged me to consider
invoking the provisions of section 175(6)(b) of the Constitution.
The argument was premised on the conviction by counsel that
if this court were to grant the remedy as desired by the applicants, then chaos
would reign supreme at Gweru City Council as the first respondent would not be
in a position to effectively deal with errant councillors. Counsel therefore
urged the court to grant the first respondent more time to remedy the apparent
invalidity of the impunged section 114 of the Urban Councils Act.
In so urging me to use my discretion, the respondents'
counsel referred me to a host of persuasive authorities one of which is the
South African case of Fose v Minister of Safety and Security 1997 (3) SA 786
(CC); 1997 (7) BLCR 851 (CC)…, where the learned judge KRIEGLER J had this to
say:
“When courts give relief, they attempt to synchronise the
real world with the ideal construct of Constitutional world. This means that a
court should not only consider what is appropriate relief under the
circumstances is, but also what the effect of its order on the general public
will be. It must take into account the interests of all persons affected
thereby. It must also determine whether the declaration of invalidity will give
rise to a situation less consistent with the Constitution than the existing
situation.”
The difficulty with this argument is that it does not find
expression in the notice of opposition filed but is merely created in the heads
of argument. The issues now being canvassed in the heads are not canvassed in
the notice of opposition filed by the respondents. Heads of argument, when filed, take their
roots from the pleadings filed of record and can never be pinned in air.
More importantly, the suggestion by the respondents'
counsel fails to realize that what we are dealing with is not merely a
superficial violation of the Constitution. The court has had to deal with not
only the illegal actions by the first respondent but also the second respondent
who has given himself powers which are not recognized even in terms of section
114 of the Urban Councils Act [Chapter 29:15]. There is no provision in section
114 of the Urban Councils Act for the second respondent to lay any charges
against the applicants' - that remains the prerogative of the first respondent.
Thirdly, and, equally important, the suggestion made by the
respondents' counsel fails to realize that in this case we are dealing with a
serious violation against the Constitution made by the respondents with their
eyes wide open. The respondents have, without decorum, decided to act against
the clear dictates of the Constitution despite repeated pleas by the applicants
through their counsel. There is no indication on the papers filed before me
that the respondents have made any effort to seek their counsel's legal opinion
on the pertinent legal points raised by the applicants through their counsel. There
is also no indication that ever since the provisional order was granted by my
sister Judge MOYO J, the respondents have made any effort to align section 114 of
the Urban Councils Act [Chapter 29:15] with section 278 of the Constitution.
When section 278 of the Constitution speaks to the need to appoint
an independent tribunal to look into the allegations raised against the
applicants; it means much more than handpicking those who constitute such a
tribunal. The qualifications of those independent members of such a tribunal
must not be a subject of speculation but it remains the prerogative of the
Legislature to define such qualifications.
In the absence of a specific Act of Parliament put in place
to define the nature of the independent tribunal envisaged, it was not
competent for the first respondent to hand pick individuals to sit in the
tribunal and purport to have complied with the Constitution.
The position urged upon me by the respondents' counsel does
not sound good in law because acceeding to it would create an untenable
situation where this court is seen to be aiding and abeting those in positions
of authority to disregard specific peremptory provisions of the Constitution.
Our role as courts is to ensure compliance with the law, and the Constitution
in particular, because it is the supreme law of the land. It is the most
important document in the management of the affairs of any country. The
position, as urged upon me by the respondents would render the Constitution of
the Republic nugatory and create an unattractive precedent.
I have agonized over the question of costs in this case
given the issues involved.
Under normal circumstances, I would have been persuaded to
spare the first and second respondents from the burden of costs. I gave the
respondent's counsel an opportunity to address me on the question of costs. For
some strange reason, he maintained that the respondents acted in terms of the
law.
How strange?
The first respondent, being charged with the administration
of the Urban Councils Act has a Constitutional mandate to ensure that its
provisions are aligned with the Constitution to avoid undesired
consequences. Nothing has been put
before me to demonstrate the first respondent's enthusiasm to align the
offending provisions of the Urban Councils Act with the new Constitution. The
second respondent blindly waded into the conflict between the applicants and
the first respondent and gave himself powers which he does not have.
When the Court is faced with such errant litigants, they
must not be spared the burden of costs.
Consequently, the provisional order granted by my sister
MOYO J is confirmed and the final order is granted in the following terms:
It is ordered:
(1) The conduct of the first respondent, in appointing a
tribunal to hear charges against the applicants, be and is hereby declared to
be ultra vires section 278(3) of the Constitution of Zimbabwe
(2) That the notice of 25 August 2015 and the charges as
contained in the letter of 25 August 2015, and purported to have been crafted
in terms of section 114 of the Urban Councils Act, be and are hereby declared
to be null and void and of no force or effect.
(3) That the proceedings presided over by the 'tribunal' be
and are hereby quashed and set aside.
(4) That the first and second respondents bear
the costs of suit.
