OMERJEE AJA: This is an
appeal against the whole judgment of the High Court, held at Harare,
handed down by PATEL J on 25 October 2011, in which he set aside the
first appellant's decision to dismiss the respondents as
councillors of the City of Harare and issued a declaration that the
respondents were still councillors.
The relief that the appellants
seek is that the appeal be allowed and that the order of the High
Court in case number HC 1067/11 be set aside and substituted with the
following order:
1. That the dismissal of the
respondents by the first appellant be and is hereby confirmed.
2. That the respondents jointly
and severally pay the costs of suit in this appeal and in HC 1067/11.
The facts of this matter are
that, on 23 August 2010, the first appellant caused a disciplinary
inquiry to be conducted, in terms of section 114(3) of the Urban
Councils Act [Cap. 29:15] into the alleged un-procedural allocation
of Harare City Council stands and property to the four respondents.
Councillor Silas Machetu was
charged with mismanagement of council affairs, contrary to the
provisions of section 114(1)(c) and 114(1)(d) of the Urban Councils
Act, it being alleged that, on 19 February 2010, he, in the company
of fifteen others, intimidated, harassed and threatened the residents
of House Number 5051 Highfield Township intending to occupy the said
house outside council procedures and regulations thereby bringing the
name of council and the office of the Councillor into disrepute. It
was alleged further that he was assisted in these endeavours by his
colleague Councillor Maxwell Katsande, in serving eviction process at
the premises and in influencing the eviction proceedings.
Secondly, Councillor Silas
Machetu was charged with dishonesty in connection with the property
of council, contrary to the provisions of section 114(d)(i) of the
Urban Councils Act, it being alleged that he dishonestly and without
justification accepted a residential stand, number 333 Waterfalls
outside of his ward, ahead of other persons legitimately on the
waiting list, at a subsidised price when he was not on the council
waiting list, and in breach of the Council Resolutions of 23 October
2003 and 4 March 2009.
Councillor Maxwell Katsande was
charged with gross mismanagement of council affairs, contrary to the
provisions of section 114(1)(d)(ii) of the Urban Councils Act, it
being alleged that as a councillor he had a duty to advise and assist
the residents in his ward to resolve their accommodation problems,
but that instead, he corruptly gave incorrect advice, and dishonestly
misled the residents of House Number 5836 Highfield Township, to
their prejudice, by advising them to share their house with a council
employee in order to be spared eviction.
It was further alleged that he
dishonestly failed to disclose to the residents of Number 5836
Highfield Township that he had an interest in assisting Wilford
Ganyire a council employee to secure accommodation, and consequently
gave incorrect advice outside the ambit of his duties as a
councillor.
It was further alleged that,
Councillor Maxwell Katsande, used his influence and connived with
council employees and was un-procedurally allocated House Number 5577
Highfield Township, which he wrongfully accepted. The allocation and
the acceptance were alleged to be contrary to council policy and
resolutions, as the house was under a Deed of Sale, and the
subsequent eviction of the tenants was as a result of improper
influence or dishonesty. It was alleged further that the councillor
was allocated the property on 20 February 2009, before the tenants
were evicted, a fact which was relied upon to demonstrate that the
councillor used improper influence or was dishonest.
Councillor Katsande was also
alleged to have interfered in the administration of council, and
hindered its smooth operation, in that he was involved in serving
eviction notices from the council on sitting tenants at House Number
5836 Highfield Township, and that he intimidated and harassed council
residents, bringing council's name into disrepute.
The second charge against
Councillor Katsande was that of dishonesty in connection with council
property, contrary to the provisions of section 114(1)(c) of the
Urban Councils Act, it being alleged that he dishonestly and without
justification accepted a residential stand, being Number 338
Waterfalls, which stand was outside his ward, ahead of other persons
legitimately on the housing waiting list, at a subsidised price,
despite being fully aware that such price and acceleration on the
waiting list were contrary to council policy and the resolutions of
23 October 2003 and 4 March 2009.
Councillor Paul Gorekore was
charged with contravening section 114(1)(a) and 114(1)(d)(ii) of the
Urban Councils Act, that is to say gross mismanagement of council
affairs, it being alleged that he improperly or dishonestly
influenced council officials to unprocedurally allocate House Number
5051 Highfield Township to him, and that he improperly or dishonestly
accepted the allocation. It was alleged that the councillor
dishonestly influenced the eviction of Lina Chitambo and Kanyi
Machapata contrary to the council resolutions of 23 October 2003 and
4 March 2009 and contrary to council laid down procedures.
Secondly, Councillor Gorekore was
charged with dishonesty in connection with council property, contrary
to the provisions of section 114(1)(c) of the Urban Councils Act, it
being alleged that he was un-procedurally allocated House Number 5051
Highfield Township, which he dishonestly accepted, despite being
aware that this was contrary to council procedures and resolutions or
policies of 23 October 2003 and 4 March 2009. It was alleged further
that, the councillor improperly accepted a residential stand Number
19356 Torbrake outside of his ward and ahead of other people
legitimately on the waiting list.
Councillor Johnson Zaranyika was
charged with dishonesty and mismanagement of council property,
contrary to the provisions of sections 114(1)(c) and 114(1)(d) of the
Urban Councils Act, it being alleged that he dishonestly and
corruptly failed, refused or neglected to refer a resident of his
ward, Fairness Malilo, to the relevant council officials who could
assist her to resolve her accommodation problem, because he had an
interest in her property, House Number 288B Dzivaresekwa.
It was alleged further that the
councillor took occupation of this property within five days of the
date of Malilo's eviction, giving rise to the charge that he had
deliberately failed to assist Malilo so that he could benefit from
her misfortune. Councillor Zaranyika is alleged to have brought the
name of council into disrepute, by conniving with employees of
council to cause the eviction of long standing tenants of House
Number 288B Dzivaresekwa, and to influence allocation of this
property to himself, within days of the eviction.
The second count against
Councillor Zaranyika was that he was alleged to have dishonestly and
without justification, accepted a stand number 19195 Belvedere
outside of his ward ahead of other persons legitimately on the
waiting list, at a subsidised price, despite being aware that such
price and acceleration were not in terms of council policies or
resolutions. It is further alleged that Councillor Zaranyika had
accepted and occupied house number 288B Dzivaresekwa despite the fact
that he had already accepted stand number 19195 Belvedere. It is
alleged that the councillor was aware that he was required to pay the
full market price for the Dzivaresekwa property.
Councillor Machetu filed a
statement of defence before the Disciplinary Committee, dated 30
October 2010. He denied all the allegations and stated that he was in
the Mhondoro communal lands during the period in question and never
met the residents of Stand Number 5051 Highfield Township. He denied
harassing the occupants of this property in the company of Councillor
Katsande, as alleged, and denied conniving with council employees to
cause their eviction. Councillor Machetu stated further, that he was
on the housing waiting list, and that he was allocated Stand Number
333 Waterfalls by council officials in line with existing council
policies. Lastly, the Councillor averred that he had no legal duty to
refuse property allocated to him by
council officials over whom he had no control or influence.
Councillor Katsande, in his
defence, dated 27 October 2010, denied all the charges that were
levelled against him. He stated that he had already participated in a
Board of Inquiry on the same matters, on 12 June 2010. The inquiry
was chaired by Mr. A. M. Makoni. He said the conclusions of that
inquiry were yet to be communicated to him. Councillor Katsande
averred that the charges against him were unclear. He said he was
being persecuted for being elected into the Harare City council on a
Movement for Democratic Change Party political
party ticket.
He denied knowing Wilfod Ganyire,
let alone assisting him against the residents of 5336 Highfield as
alleged. He denied participating in, or influencing the eviction of
the residents of Number 5577 Highfield Township, and denied
intimidating or harassing the residents of 5051 Highfield Township.
Councillor Katsande also denied any wrongdoing in the allocation of
his Stand, on the basis that he had no influence over council
employees and council allocation procedures.
Councillor Paul Gorekore denied
both charges against him. He stated that he too had appeared before
the Andrew Makoni board of inquiry which had not yet communicated the
outcome to him. He denied having any influence over council employees
in making decision on the allocation of stands or on allocation
procedures. He stated that he was not involved in the allocation of
Stand 5051 Highfield Township to himself. He denied being aware that
he ought to have refused the allocation, or that the allocation was
contrary to council resolutions and procedures.
Councillor Gorekore denied
influencing the eviction of Kanye Machipata and Lina Chitambo. He
averred that he never took occupation of that property, as he was
instead allocated House Number 4 Special Houses in Mbare. He denied
that he dishonestly accepted the allocation of Stand 19356 Torbrak
and insisted that the stand was adjacent to his ward. The Councillor
averred that he was on the housing waiting list.
Councillor Johnson Zaranyika in
his statement of defence dated 31 October 2010, denied all the
allegations against him. He denied that he had a legal duty to give
advice to the residents of his ward. He denied any involvement in the
eviction of Fairness Malilo, whom he classified as an illegal
occupant; of House Number 288/B Dzivaresekwa Township.
The Councillor averred that he
was on the council housing waiting list and as such was entitled to
council accommodation. He insisted that he was allocated Stand 19195
Belvedere Harare in accordance with existing council policies. He
said he paid the full market commercial purchase price for the Stand.
The second appellant presided
over the inquiry and submitted his report to the first appellant in
December 2010. He found the four appellants guilty of misconduct and
recommended their dismissal as City of Harare councillors.
The Disciplinary Committee found
that it was only the Chamber Secretary and Mr Chiyangwa (Deputy
Director of Housing) who seemed to appreciate the meaning of the
council resolution. To be allocated to a councillor at the
subsidised price a Stand had to be within his or her ward or in an
adjacent ward. If it was not then it could not be allocated to a
councillor at a subsidised price. There had to be an amendment of
the special resolutions for authority to allocate stands outside the
adjacent wards to councillors at subsidised prices.
The Disciplinary Committee found
that, the Director of Housing did not approach council for amendment
of the special resolution for authority to allocate the stands to the
four councillors. It was found that the councillors were not at
liberty to claim that just because the Director of Housing failed to
carry out his duties properly, they had no choice but to accept the
stands. As councillors, they were the authors and custodians of the
council resolutions. They knew the spirit and letter of the
resolutions, and that it was wrong to go beyond the boundaries
prescribed by the resolutions. They knew, or ought to have known that
they could not be allocated stands outside the adjacent ward in
Harare at the subsidised price.
Where the Stands allocated to
them were not in their wards or adjacent wards, they had to forfeit
the privileges of being given priority over others on the waiting
list, and of being given a discount on the purchase price.
The Disciplinary Committee did
not accept as correct the submission by counsel for the councillors
that the word adjacent means near and that, Harare being a small
town, all wards in it are adjacent. The committee applied the rule of
statutory interpretation to the effect that, “the express mention
of one thing means the express exclusion of another”. It held that
where a resolution mentions a councillor's ward or an adjacent
ward, all the other unmentioned wards are excluded.
The meaning of “adjacent”
which the court accepts is that it means that the wards have to share
boundaries with the ward for which the councillor was elected. None
of the four councillors were allocated stands in areas which shared
boundaries with their respective wards.
The Disciplinary Committee found
that three councillors bought their stands at 40% of the market
value, in violation of council resolutions, and that they knew, or
ought to have known, that the resolutions prescribed that they pay
the full market purchase price. They forfeited their right to
purchase the stands, at a discounted price.
Councillor Zaranyika was cleared
of the allegation of wrongdoing in regard to his Belvedere stand
because the Disciplinary Committee accepted his evidence that he:
(a) Was on the council housing
waiting list; and
(b) Paid the full market purchase
price for the Stand.
Councillors Machetu, Katsande,
and Gorekore were found guilty of wrongfully accepting residential
stands outside their prescribed areas at discounted prices, in
contravention of standing council policy and special resolutions.
On the issue of the evictions,
Councillor Machetu was cleared of wrongdoing. The Disciplinary
Committee found that he was not responsible for the allocation of the
house to himself and that he never attempted to take occupation of
the house in question.
Councillor Katsande was also
found not guilty. The Disciplinary Committee found that the evidence
led showed that he had on many occasions attempted to assist the
occupants of the house, who were elderly, and that there was no
evidence that he did anything to have them evicted from the house.
Councillor Gorekore was found not
guilty of the charge that related to evictions, on the ground that
the prosecutor dropped the charges against him.
Councillor Zaranyika was found
guilty of the charge that related to eviction and illegally occupying
House Number 288/B Murehwa Street, Dzivaresekwa after being actively
involved in the eviction of tenants from that house. The Disciplinary
Committee found that he had an obligation to his electorate. He
should have been honest with the Malilos and disclosed to them that
he could not assist them because he was in need of accommodation and
was likely to be allocated their house. The Disciplinary Committee
found the councillor's attitude of survival of the fittest
unacceptable, especially in light of the fact that Everson Malilo was
old and mentally challenged.
Councillor Zaranyika's case in
regard to the eviction charges was found to be different from the
other councillors. The committee found that he was deeply involved in
the eviction of the tenants from the property, and that this was
supported by the fact that he is still in occupation of that
property.
The first appellant accepted the
recommendations of the second appellant and dismissed the four
respondents by way of letters dated 3 December 2010. The four
respondents applied to the High Court for review of the first
appellant's decision to dismiss them. They claimed that the first
appellant acted irrationally in relying on the report of the second
appellant to dismiss them. The court a quo agreed with the
respondents, and set aside the first appellant's decision to
dismiss them.
The court a quo found that:
“The first respondent acted on
the findings and recommendations contained in the second respondent's
report. It seems reasonably clear that he did not consider the
detailed record of proceedings of the inquiry and the evidence
contained therein. If he had done so, he would not have simply
adopted the second respondent's recommendations of dismissal.”
And that:
“In short, the second
respondent's findings of guilt in relation to all four applicants
were so grossly irrational in their defiance of logic that no
reasonable person applying his mind to the matter could possibly have
arrived at those decisions….”
The court a quo set aside the
decision of the first appellant to dismiss the four respondents
because it found that the second appellant's report was not
supported by the evidence before it. Reliance on the second
appellant's report was therefore found to be irrational.
It is against the decision of the
court a quo to set aside the first appellant's dismissal of the
four respondents, and to declare them to be councillors of the City
of Harare, that the appeal was noted.
The Grounds of Appeal are that:
1. The court a quo erred in
placing weight on a concession made for the applicants by their
counsel.
2. The court a quo erred in
granting the order when none of the reviewable grounds in the High
Court Act [Cap. 7:06] were established nor accepted.
3. The court a quo erred in
issuing a declaratory order in an application brought on review when
the court's power is limited by section 28 of the High Court Act.
4. The court a quo erred in
interpreting the facts of the matter; alternatively, the facts in
fact show acts of misconduct on the part of the respondents.
5. The court's finding of
irrationality vis-a vis the facts and the law is incorrect.
6. The court a quo erred in not
accepting that the allocation of stands to the respondents was
legally irregular.
7. The court a quo erred in
mero-motu invoking common law grounds of review as well as the
provisions of the Administration of Justice Act [Cap. 10:28].
The issue that falls for
determination by this Court is as follows:
Did the court a quo err or
misdirect itself in its assessment of the evidence adduced before the
Disciplinary Committee, leading to its finding that the decision to
dismiss the respondents was irrational?
Put differently, the question
that this Court must decide is whether the evidence before the
Disciplinary Committee was sufficient to support the findings of
misconduct on the part of the respondents.
The Councillors were charged with
contravening various sub-sections of section 114 of the Urban
Councils Act [Cap. 29:15], which provides as follows:
“114
Suspension and dismissal of councilors
(1) Subject to this section, if
the Minister has reasonable grounds for suspecting that a councilor —
(a) …
(b) …
(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.
(e)…
the Minister may, by written
notice to the councilor and the council concerned, suspend the
councilor from exercising all or any of his functions as a councilor
in terms of this Act or any other enactment.
(2)…
(3) As soon as is practicable
after he has suspended a councilor 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 councilor 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 councilor in terms of subsection (1) have
been established as fact, he may, by written notice to the council
and the councilor concerned, dismiss the councilor, and the
councilor's seat shall thereupon become vacant.”
It was common cause before the
Disciplinary Committee that the respondents had been allocated and
accepted stands outside the areas adjacent to their wards. It was
also common cause that in terms of the Council Housing Policies of 23
October 2003 and 4 March 2009, (special resolutions) in order to be
allocated a stand or property by council,
(a) one had to be on the housing
waiting list.
(b) the sequence on the housing
waiting list had to be adhered to.
(c) If the property was in the
councillor's ward or an adjacent ward one was obliged to pay 40% of
the value of the market price as at the date of allocation.
(d) If the allocated property was
not in the councilor's ward or an adjacent ward, the councilor was
obliged to pay the full market purchase price of the property on
allocation.
In their statements of defense,
the respondents denied any wrongdoing, and averred that the
allocation of the properties to them was done by council officials
over whom they had no control or influence, and that they had no
legal duty to scrutinize council allocations, or to refuse what was
allocated to them. All the four did not deny accepting the stands
allocated to them.
All four councillors in their
evidence-in-chief before the Disciplinary Committee, denied the
charges brought against them. During cross examination Councillor
Silas Machetu, who resides in Highfield Township and who was
allocated a Stand in Waterfalls, claimed that Waterfalls was adjacent
to his ward, being ward 25, Highfield Harare. He said that if the
Stand was outside the adjacent ward that was not his concern because
council officials had told him that it was adjacent. Councilor
Machetu admitted that he paid 40% of the market value of Stand 333
Waterfalls, which is clearly not adjacent to his ward in Highfield Township.
Councilor Maxwell Katsande is a
councillor for ward 26, which is also in Highfield township, and he
told the Disciplinary Committee that he was residing at Willowvale
Flats. It is common cause that he was allocated a Stand in Waterfalls
and that he paid 40% of the value of the Stand, as at the date of
allocation.
Under cross examination by Mr
Mutsonziwa, he told the Disciplinary Committee that the special
resolution pertaining to allocation of stands was explained to them
as a full council. He said that there was no need for him to go and
research further on its meaning or interpretation. His view was that
the evidence of the Chamber Secretary was that councillors who were
from old suburbs like Highfield were not to be punished because there
were no stands in their wards, and it was permissible for them to pay
the discounted price for stands allocated to them outside the
adjacent wards.
Councillor Katsande appeared
ignorant of the evidence tendered by the Chamber Secretary. It is to
the effect that once allocated a Stand in a ward that is not adjacent
to his or her ward, the councilor had to pay the full market purchase
price for the Stand. She said the Director of Housing had to
approach council for an amendment of the special resolution to grant
authority to extend the privilege of paying 40% of the market value
of the Stand to councillors.
In the light of his admission
that the resolutions were explained to them, Councillor Katsande's
lack of appreciation of the meaning of the resolution is baffling. It
brings to mind the question of the duty of care that reposes in
public officials, to acquaint themselves with and uphold the policies
of the institutions they serve on behalf of members of the public.
Councillor Paul Gorekore resides
in and represents Ward 3 in Mbare township. It is common cause that
he was allocated a stand in Braeside Ward 2, Stand 19356 Torbrake,
which is not adjacent to Mbare, and that he paid the discounted price
of 40% of the value of the stand as at the date of allocation.
His evidence was that Ward 3 and
Ward 2 Braeside were adjacent. He said that he did not do anything
wrong in accepting the stand and in paying the discounted price. He
also told the Disciplinary Committee that the stand was allocated to
him by council officials, and that there was no way he was going to
refuse it because he didn't have a stand.
It is common cause that Ward 2 is
not adjacent to Ward 3. The councilor accepted the stand regardless
of the propriety of the allocation. He paid the discounted price
without taking care to ensure that it was proper to do so in terms of
the relevant council resolution. In his opinion the legality of the
allocation was irrelevant because he did not have a stand.
Councillor Gorekore stated that
he relied on the assurances given to him by the Director of Housing
that he was imbued with discretion and that any action he took could
be ratified by council in retrospect. This demonstrates awareness on
the part of the councillor that the allocation of the stand was
irregular.
Councillor Johnson Zaranyika
represents Ward 39. He resides in Dzivaresekwa. He was allocated
House Number 288/B Dzivaresekwa after the sitting tenant ,Fairness
Malilo, was evicted in dubious circumstances. She was a sitting
tenant who had been in occupation of the property for a long time,
but was suddenly asked to give up occupation by council because her
tenancy was “irregular”. Eviction proceedings were commenced and
a court order for eviction obtained. She sought assistance from her
councillor, who not only failed to assist, but did not disclose that
he had an interest in the property.
Councillor Zaranyika denied
having had anything to do with the tenant's eviction. He denied
that he breached his duty to the tenant when he was approached for
assistance. He insisted that he was allocated the property in line
with council policy.
Councillor Zaranyika was
allocated Stand 19195 in Belvedere Harare, and he testified that he
paid the full commercial purchase price for the property, despite
claiming not to know whether this stand was adjacent to his ward or
not.
Councillor Zaranyika expressly
testified that he is just a policymaker who is not involved in the
implementation of policy. He testified to being “desperate” for
accommodation.
Justin Chivavaya, the Director of
Housing and Community Services of the City of Harare, testified
before the Disciplinary Committee and outlined the procedure that
councillors should follow in order to be allocated a house or a
stand. Although he denied being directly involved in the allocation
of properties to the four respondents, he accepted that he is the
head of the department of housing whose officials did the actual
allocation to the four respondents.
Mr Chivavaya testified further
that all councillors were obliged to pay 40% of the current market
value of a property on allocation. The correct position is that only
those councillors, who accepted properties in their wards or in
adjacent wards, are entitled to pay the subsidized price, of 40% of
the market value. Those who accepted allocation of properties outside
their wards, or in areas that are not adjacent to their wards, were
obliged to pay 100% of the market value of the property, as at the
date of allocation.
According to the Chamber
Secretary, the object of the policy was to encourage councillors to
accept property in or near their wards, for them to remain accessible
to members of their constituencies, be in touch with the issues
affecting the residents of their wards, and render assistance
expeditiously.
Mr Chivavaya also talked about
what he termed “right of first refusal” and “the spirit of the
resolution”. According to him that entitled councillors not to be
on the housing waiting list, or follow the sequence of the waiting
list. That evidence was clearly at variance with the evidence of the
Chamber Secretary, and other council officials.
The Director of Housing told the
Disciplinary Committee that some of the councillors were on the
waiting list, whilst others were not. One gets the impression that he
was not sure, that he had not checked, and that in his view this was
of no consequence. In his view, “it was not necessary” that
councillors be on the waiting list.
The Disciplinary Committee placed
much weight on the evidence of Josephine Ncube, who has been the
Chamber Secretary of the City of Harare for over ten years. Her
testimony was found to be clear, concise, and of great probative
value. She told the Disciplinary Committee that a councillor seeking
allocation of Council property had to apply for allocation through
the Town Clerk who forwarded the application to the Director of
Housing.
In terms of the Council
Resolution of 2003 a councillor can be allocated a property in his
ward or in an adjacent ward, and where this happens, he or she is
obliged to pay for the property at a subsidized price of 40% of the
market value of the property at the time of allocation.
Where the councillor does not
accept a property in his ward, or in an adjacent ward, but chooses to
go to another ward, he forfeits the privilege of paying a discounted
price, which means that he was obliged to pay the full market
purchase price as at the date of allocation.
Although the Chamber Secretary
told the committee under cross examination that the resolution was
silent as to what would happen in the event that a house could not be
available in the councillor's ward or an adjacent ward, this did
not give carte blanche to council officials to allow councilors the
privilege of paying a discounted price in situation where it was not
permitted to do so.
The effect of the testimony of
the Chamber Secretary was that the Director of Housing ought to have
sought and obtained an amendment of the special resolution which
governed allocation of property to councillors before proceeding with
a sale. The evidence shows that he failed, to do so. It is clear,
that the Director of Housing acted outside the scope of the Special
Resolution.
The court finds that councillors
Silas Machetu, Maxwell Katsande, and Paul Goregore were correctly
found to have contravened section 114 of the Urban Councils Act [Cap.
29:15], in that they accepted allocation of residential stands not in
their wards or adjacent wards. They also paid a discounted prices for
the stands, knowing that was in violation of council resolutions.
They knew they were required to pay full market prices for the
stands.
The court also finds that,
councillor Johnson Zaranyika contravened the provisions of section
114 of the Urban Councils Act. He was dishonest, dishonourable and
unconscionable in his dealings with the tenant who was evicted from
House No. 288/B Murehwa Street, Dzivaresekwa. She was evicted from
her property to make way for the councillor to be allocated the same
property. He accepted such allocation, in the face of allegations of
impropriety.
The findings of the court a quo
are at variance with the evidence before the Disciplinary Committee.
The court a quo found that:
“…the second respondent
totally ignored the evidence of the Director of Housing (Chivavaya)
and the Chief Housing Officer (Mandizha), which evidence exculpated
the applicants of any wrongdoing…”
It also said that:
“…The evidence of the Chamber
Secretary (Ncube) related to the application of Council Resolution
No. 23/2003 …she explained that the resolution was silent as to
what would happen in the event of no stands being available for
allocation in stipulated wards. However, her evidence did not in any
way incriminate the applicants.”
The court misdirected itself in
finding that the evidence of the Director of Housing was ignored. His
evidence was discredited by the Disciplinary Committee which found
him to be evasive and untruthful. His evidence did not exculpate the
respondents. The evidence of the Chamber Secretary actually
incriminated the respondents.
The court finds that the evidence
relied upon by the second appellant adequately sustained the findings
of misconduct. The second respondent's findings of guilt in
relation to all respondents were not in any way “…so grossly
irrational in their defiance of logic that no reasonable person
applying his mind to the matter could possibly have arrived at those
decisions…”.
The first appellant correctly
acted on the findings and recommendations contained in the second
appellant's report. It is clear that he considered the record of
proceedings of the inquiry and the evidence contained therein and
correctly adopted the second respondent's recommendations of
dismissal.
In considering the propriety of
the concession made by counsel for the appellants before the court a
quo, it is clear that it was improperly made. The record of
proceedings before the court a quo does not contain the oral
submissions made by counsel. It is difficult to ascertain the basis
on which it was made.
There is no evidence of
unreasonableness or irrationality in the decision of the first
appellant to dismiss the four respondents. The court a quo
misdirected itself in relying on a concession that first appellant
acted irrationally in relying on second appellant's report and
recommendations.
There is no doubt that the first
appellant followed the procedural steps that he is enjoined to follow
in terms of section 114 of the Urban Councils Act. He suspended the
councillors and ordered investigations by the Kwenda and Makoni
Commissions; as well as by the second appellant's committee.
It is trite that an Appellate
Court will not interfere with the exercise of discretion by a lower
court, unless there is a clear misdirection. In Barros & Anor v
Chimphonda 1999 (1) ZLR 58 (S) in dealing with the exercise of such
discretion the court stated as follows at pp 62G-63A;
“These grounds are firmly
entrenched. It is not enough that the Appellate Court considers that
if it had been in the position of the primary court, it would have
taken a different course. It must appear that some error has been
made in exercising the discretion. If the primary court acts upon a
wrong principle, if it allows extraneous or irrelevant matters to
guide or affect it, if it mistakes the facts, if it does not take
into account some relevant consideration, then its determination
should be reviewed and the Appellate Court may exercise its own
discretion in substitution, provided always that it has the materials
for so doing.”
In this case there was a clear
misdirection. The court a quo erred in interpreting the evidence
before the second appellant, and in finding the decision of the first
appellant to dismiss the councillors to be irrational. It also erred
in relying on a concession which was improperly made by counsel for
the appellants. It follows that the court a quo was not justified in
making the order that it did.
Section 27(1) of the High Court
Act provides as follows:
“27
Grounds for review
(1) Subject to this Act and any
other law, the grounds on which any proceedings or decision may be
brought on review before the High Court shall be —
(a) absence of jurisdiction on
the part of the court, tribunal or authority concerned;
(b) interest in the cause, bias,
malice or corruption on the part of the person presiding over the
court or tribunal concerned or on the part of the authority
concerned, as the case may be;
(c) gross irregularity in the
proceedings or the decision.
(2) Nothing in subsection (1)
shall affect any other law relating to the review of proceedings or
decisions of inferior courts, tribunals or authorities.”
The effect of section 27(2) is
that the application of section 27 (1) shall not affect the
application of any other law that governs the review of proceedings
of inferior courts, tribunals or authorities.
The court a quo found that the
decision of the second appellant, which the first appellant relied on
in dismissing the respondents, constituted a reviewable irregularity
not only under the common law, but also under section 27(1) of the
High Court Act and section 3(1) of the Administrative Justice Act.
The appellants aver that such
reference to the common law principles of review, and to the
Administrative Justice Act, having been raised mero-motu by the court
a quo, amount to a misdirection. That cannot be correct.
A reading of the findings of the
court a quo shows that the first appellant's decision to dismiss
the respondents, was based on the decision of the second respondent
on the ground that it was an irregularity in terms of section 27(1)
of the High Court Act. It could also be attacked on grounds of
irregularity in terms of the common law, and the Administrative
Justice Act.
The third ground of appeal,
questions the power of the court a quo to issue a declaratory order,
in an application for review. Section 28 of the High Court Act
provides that:
“28
Powers on review of civil proceedings and decisions
On a review of any proceedings or
decision, other than criminal proceedings, the High Court may,
subject to any other law, set aside or correct the proceedings or
decision.”
The wording of this section is to
the effect that the power of the court on review is limited to
setting aside, and/or correcting the proceedings or decision. In
fulfilling its review mandate, the court a quo ought to simply have
set aside the decision to dismiss the respondents. Declaring the
respondents to be Councillors of the City of Harare was ultra vires
section 28 of the High Court Act.
In the result the appeal succeeds
with costs. The judgment of the court a quo in case number HC1067/11
is set aside and substituted with the following order:
1. The application for review of
the decision by the first respondent to dismiss the four applicants
as councillors for the City of Harare is dismissed.
2. The applicants, jointly and
severally, the one paying the others to be absolved, are to pay the
costs of the application.
MALABA DCJ: I agree
GOWORA JA: I agree
Hussein & Ranchod, appellants' legal practitioners
Mbidzo, Muchadehama & Makoni, respondents' legal practitioners
