GOWORA J: On 29
March 2008 the applicant was one of the councilors successfully elected to the
Bindura Municipal Council. He does not appear to remember his ward but that is
of no import for the resolution of the dispute before me. The second and third
respondents were also elected as councilors for the same municipal council. The
fourth respondent is the town clerk for the council. This council held its
first meeting on 1 August
2008 and at that meeting the applicant was elected mayor for the
Bindura Municipal Council. The third respondent was in turn elected as deputy
mayor. On 13 October 2008,
one of the councilors moved a motion to rescind resolution 1406/08 which
confirmed the election of the applicant to the position of mayor. On 24 October 2008 the fourth
called a meeting at which a motion was introduced for the rescission of the
resolution in terms of which the applicant had been elected as mayor of the
first respondent. The applicant queried the correctness of the procedure and
when he received no support he declared the meeting closed and left the
chamber. Three other councilors left with him Undeterred the other council
members carried on with the motion with the result that the said resolution was
rescinded and the appointments of the applicant and second respondent as mayor
and deputy mayor respectively and were rescinded. The third respondent was then
appointed mayor and the second respondent deputy mayor. It is as a result of
that resolution that the applicant has launched these proceedings wherein he
seeks a declaratur to the effect that the meeting of 28 October 2008 be declared null and
void and further that he is the duly elected mayor for the municipal council of
Bindura. The application is opposed by all the four respondents and the
opposing affidavit has been deposed to by the second respondent on behalf of
all four. In short the respondents contend that the applicant was correctly and
legally removed as mayor and that the incumbent is legally entitled to occupy the
position.
In view of the contention by counsel
for the respondents that legally a resolution could be issued for an elected
mayor to be removed I requested that counsel on both sides of the divide file
additional heads on the point. This has been done and I am grateful to counsel
for their diligence. I turn then to determine the merits of the application. It
is necessary in my view to examine the provisions of the Urban Councils Act [Cap 29:15] as it relates to the
appointment and removal of mayors. That I believe is the only issue for
determination for the resolution of this dispute.
The elections of office bearers for
urban councils are provided for in Part VII of the Act, in particular s 103 of
the same which provides as follows:
Election of Mayor, Deputy Mayor, Chairperson and Deputy Chairperson
1) At
the first meeting of a council after it has been established and thereafter at the first meeting held -
a. after the general
election of councilors; or
b. after an initial election of councilors referred to in
section 17 (1) c); or
the councilors
present at that meeting shall, under the chairmanship of the district
administrator, or, in the case of the Harare and Bulawayo municipal councils,
the provincial administrator within whose province the municipal council lies,
elect -
a) in the case of a
municipal council, one councilor or other person to be mayor and thereafter
another councilor to be a deputy mayor;
b) in the case of a town
council, one councilor to be chairperson and thereafter another councilor to be
deputy chairperson.
c) A person elected in
terms of subs (1) shall forthwith enter upon his or her office and shall hold
office until the election of his or her successor in office.
d) A person elected in
terms of subs (1) shall cease to hold office as such when his or her successor
is elected in terms of that subsection:
Provided that-
(i)
if a deputy mayor is elected in terms of subs
(4) to be mayor, he or she shall cease to hold office as deputy mayor with
effect from that election:
(ii)
If a deputy chairperson is elected in terms of
subs (4) to be chairperson, he or she shall cease to hold office as deputy
chairperson with effect from that election:
(iii)
If a mayor, chairperson, deputy mayor or deputy
chairperson resigns, by notice in writing addressed to the town clerk, he or
she shall cease to hold office with effect from the date the notice is received
by the town clerk:
(iv)
If the seat of the councilor who is mayor,
chairperson, deputy mayor or deputy chairperson becomes vacant by virtue of s
78 (2) (b), (c), (d),(f), or (g), he or she shall cease to hold office with
effect from the date that seat becomes vacant.
Subsection (4) is to the
following effect:
Where the office of mayor,
chairperson, deputy mayor or deputy chairperson becomes vacant before a meeting
referred to in subs (1), the councilors present at a meeting of the council
held not later than thirty days after such vacancy shall elect a successor who
shall serve for the unexpired term of office of his or her predecessor.
In
interpreting a statutory provision the court must endeavour to arrive at the
intention of the legislature from an examination of the provision being
construed. Therefore it is a principle of statutory interpretation that the
ordinary and literal meaning of a statutory provision be given effect unless to
do so would lead to an absurdity. See S
v Nottingham Estates (Pvt) Ltd.
GUUBAY CJ made the following remarks at p 256 D-F:
“The primary
rule of interpretation is, of course, to endeavour to ascertain the intention
of the lawmaker from an examination of the provisions under consideration,
placed in proper context. A court will commence its enquiry by giving the word
its grammatical significance, unless it is clear that the literal sense when so
applied, defeats the legislative intendment. In such event, a deviation from
the ordinary meaning is justified, provided always that the word is
sufficiently flexible to admit of another meaning by which such intention can
be better effected. See Ebrahim v Min of the Interior 1977 (1) SA 665 (A)
at 678A-C; Birch v Klein Karro Agricultural Co-operative Ltd
1993 (3) SA 403 (A) at 411E-G”
The
same principle for statutory interpretation was stated by MCNALLY JA in S v Kachipare
thus:
“I take the view
that one is entitled to look closely at the wording of the section in order to
find an interpretation which achieves sense rather than nonsense, justice
rather than injustice, in the application of the section in a situation almost
certainly not contemplated by the legislature. This must be especially so in a
statute which deals with procedure rather than substantive law.”
The
remarks by MCNALLY JA are particularly significant in casu when regard is had to the provisions under scrutiny. What is
at issue herein is the procedures that attach to the election of a mayor by
councilors of an urban municipal council. The provisions are not concerned with
substantive law but procedure. It is pretty obvious that the language in the
provisions relating to the election of a mayor, his deputy, a chairperson and
his deputy are clear and unambiguous. According to s 103 where an election has
taken place after a meeting of the council, a mayor, his deputy, a chairperson
or his deputy shall hold office until the appointment of a successor. A successor
is only appointed if an election is held following a vacancy in the office of
the mayor, his deputy, a chairperson or his deputy such vacancy having arisen
either through resignation or by virtue of the operation of s 78 of the Act. In
terms of s 78 the office becomes vacant if a councilor resigns, ceases to be
qualified for election as councilor, is absent without leave of council from
ordinary meetings of council during a consecutive period of two months, or from
meetings of committees to which the councilor has been appointed for a
consecutive period of two months, or is absent from ordinary council meetings
for a period of six calendar months whether or not leave has been obtained,
ceases to be a councilor in terms of s 22 of the Provincial Administration Act
[Cap 29:11], or has been suspended in
terms of s 114 for a period in excess of thirty days in which case his seat in
council becomes vacant by operation of law. The Act does not provide for the
vacation of the seat of a mayor, his deputy, a chairperson or his deputy except
for the instances referred to above. An election to fill the seat is only held
if a vacancy arises from the situations outlined above. Thus the position of
mayor, being a creation of statute, and provided for in terms of the Act the
election can only be changed in terms of the statute and the removal from
office of a person from the position can only be effected under the provisions
of the Act that created the position. Once a mayor ceases to hold office the
respective council can then exercise its powers under the Act and elect a
successor as provided for in s 103 (1) and (2).
In
casu, the council did not follow the
provisions of the Act in removing the mayor because there is no provision in
the Act for such removal. Therefore no successor was elected. Thus the
procedure followed in removing the mayor was un-procedural and illegal. The Act
has not provided for the passing of a resolution to remove the mayor from
office and any resolution purporting to have that effect, in the absence of a
statutory provision providing for the same, is clearly illegal and
un-procedural. There is thus no provision for council to pass a resolution to
remove the mayor who has been duly elected from office except under the
provisions of s 103.
The
respondents contend that the procedure followed was provided for in terms of s
89 of the Act. The section on which the respondents seek reliance does provide
for the rescission or alteration of a resolution passed by council at a
subsequent meeting to that wherein the resolution being sought to be rescinded
was passed. The further contention by the respondents is that a resolution was
passed in terms of which the applicant was appointed mayor and that therefore
council had the power to rescind the earlier resolution appointing the
applicant as mayor and rendering as a result the position vacant thus paving
way for the election of a successor. As authority for this proposition the
respondents have referred me to the case of City
of Gweru v Kombayi. I am at a loss as to why this particular authority was quoted as
it does not make a pronouncement on the issue sought to be relied on by the
respondents in advancement of their argument as it relates to resolutions by
the council in ordinary meetings. It is not intended to apply to the election
and vacation of office by an elected mayor which position is specifically
provided for under s 103. Indeed the judgment speaks about the need to observe
the provisions of the Urban Councils Act. It does not speak of one resolution rescinding
another. The next authority I have been referred to is Cape Town Mnicipality v Abdula.
In this authority the judge hearing the matter did confirm that a responsible
committee could legally pass a resolution which directly impacted on an interest
of the respondents. As the Urban Councils Act empowers the council and any
committees set up under its authority to make resolutions I do not find that
this takes the respondents case any further than they had in their initial
heads of argument.
The
question that they had to address was whether or not a councillor elected as
mayor could be lawfully removed from that position by way of a resolution
passed by the councilors in meeting in the absence of the seat of mayor having
fallen vacant as is required under s 103, which section does does not provide
for the passing of such a resolution. The provisions of s 103 (2) are
peremptory and in the absence of a cogent argument as to why the council should
not comply with the said provision I am unable to find that s 89 applies in the
removal of a mayor from office. The resolution passed for the removal of the
applicant is thus declared to be null and void and of no force and effect. It
follows therefore that the election of the second respondent to the post of mayor
is itself illegal. The applicant is in the result entitled to an order in terms
of the draft.
In the result I
make an order in the following terms:
1.
It is hereby declared that the resolution
1422/FC/08 rescinding the election of the applicant as mayor and I Matanhire as
his deputy be and is hereby declared to be null and void and of no force and
effect.
2.
It is declared that the election of the second
respondent as mayor of the first respondent on 24 October 2008 be and is hereby declared to be
null and void and of no force and effect.
3.
It is hereby declared that the applicant is the
duly elected mayor for the first respondent.
4.
The respondents be and are hereby ordered to pay
the applicant's costs jointly and severally, the one paying, the others to be resolved.
Mbidzo, Muchadehama & Makoni, legal practitioners for the
applicant
Mushonga, Mutsvairo
& Associates, legal practitioners for the respondents.
