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 ...
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 HC1067/11, 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 HC1067/11.
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 [Chapter 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 Fairness Malilo's
eviction, giving rise to the charge that he had deliberately failed
to assist Fairness 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 un-mentioned
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 [Chapter
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
[Chapter 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 [Chapter 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 councillor
in terms of this Act or any other enactment.
(2)…,.
(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 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 councillors 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 [Chapter
29:15],
in that they accepted allocation of residential stands not in their
wards or adjacent wards. They also paid 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 the first
appellant acted irrationally in relying on the 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…,;
“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….,.
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.
