Suspended Gweru City councillors to resume duty
SUSPENDED Gweru mayor Hamutendi Kombayi and 10 councillors are set to resume their duties after Local Government, Public Works and National Housing Minister Saviour Kasukuwere yesterday withdrew his appeal at the Supreme Court.
Minister Kasukuwere through the Civil Division in the Attorney-General’s Office had noted an appeal at the Supreme Court challenging a ruling by Bulawayo High Court judge Justice Francis Bere ordering him to reinstate the 11 councillors who were suspended for alleged abuse of office.
The minister through the AG’s Office withdrew the case after conceding that they had no case to argue before the Supreme Court.
Justice Bere, in February, confirmed an interim order by his counterpart Justice Nokuthula Moyo to immediately reinstate Mayor Kombayi and the 10 concillors who were suspended by the minister on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Justice Elizabeth Gwaunza, who was sitting with Justices Bharat Patel and Chinembiri Bhunu, during a Supreme Court circuit in Bulawayo yesterday, accepted the withdrawal of the minister’s appeal after the legal representatives of both the minister and the councillors had presented their arguments.
In papers before the court, Minister Kasukuwere is the appellant while the 11 councillors were cited as respondents.
“We accept the withdrawal of the appeal by the appellant. There is no legal impediment to such an action and therefore the case is hereby removed from the roll. The appellant will bear the costs of the case,” said Justice Gwaunza.
The minister through his lawyers, wanted the Supreme Court to concede that although he had acted in contravention of the law, he had done so in order to serve public interest as the relevant law which compels him to appoint a tribunal to suspend councillors in the case of misconduct, had not yet been enacted.
But the judges would not buy the argument, saying they could not condone a ‘flagrant disregard of the law’. The judges queried why the minister had not sought to correct his mistake by complying with the law after the relevant Act had been amended in accordance with the Constitution.
The councillors, through their lawyers Chitere Chidawanyika and Partners had opposed the appeal, saying the notice and grounds of appeal filed by the respondents were defective.
The councillors wanted the judgment handed down by Justice Bere to remain enforceable, arguing that there was no valid appeal pending.
“I submit that there is no appeal to talk about. All the respondents have exhibited is a clear propensity to frustrate us as applicants to enjoy the judgment of this honourable court delivered on February 22, 2016,” said Clr Kombayi.
The Civil Division of the AttorneyGeneral’s Office argued that the court a quo misdirected itself by failing to take into account the public interests in its judgment.
They said the court a quo failed to exercise its powers under section 175 (6) of the constitution, arguing that the circumstances of the case demanded such powers to be invoked.
Minister Kasukuwere in August last year indefinitely suspended Clr Kombayi, his deputy Artwell Manyorauta and the councillors on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
However, Justice Bere agreed with the councillors’ lawyers who had argued that the minister’s decision to suspend the councillors and appoint a tribunal to look into allegations of abuse of office and corruption against them were in contravention of the provisions of the Constitution.
The judge said section 114 of the Urban Councils Act, which the minister used to suspend the councillors and appoint a tribunal, was inconsistent with section 278 of the Constitution.
Justice Bere said section 278 of the Constitution provides for the establishment of an independent tribunal to exercise the function of removing from office mayors, council chairpersons and councillors.
It does not vest any authority to remove councillors in the minister anymore, neither does it grant the minister powers to establish or constitute an independent tribunal. — @ mashnets