Kambarami appeal: Court reserves judgment
THE Supreme Court yesterday reserved judgment in the matter in which deposed Bulawayo deputy mayor, Tinashe Kambarami, is challenging the nullification of his election by the High Court.
Bulawayo High Court judge, Justice Thompson Mabhikwa, in September last year nullified Kambarami’s election as councillor for Ward 3 and the city’s deputy mayor following an application by 1893 Mthwakazi Restoration Movement Trust.
Justice Mabhikwa ruled that the election of Kambarami was in violation of Section 119 (2) (e) of the Electoral Act following his theft conviction.
Kambarami was in July 2018 convicted of theft by a Bulawayo magistrate under case number CRB 1981/18.
He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to work at his offices. However, Kambarami last month successfully challenged his conviction and sentence at the High Court.
Bulawayo High Court judge Justice Martin Makonese set aside Kambarami’s conviction and sentence after the State did not oppose his appeal.
Supreme Court judge, Justice Antonia Guvava, sitting with Justices Nicholas Mathonsi and acting judge of appeal Justice Samuel Kudya on circuit in Bulawayo, yesterday heard the arguments from both lawyers of appellant and respondents.
Kambarami, through his lawyers Samp Mlaudzi and Partners, filed an appeal at the Supreme Court challenging Justice Mabhikwa’s judgment.
In papers before the court, Kambarami cited 1893 Mthwakazi Restoration Movement Trust, its representative, Ms Nomalanga Ngwenya, the Bulawayo City Council, the Zimbabwe Electoral Commission (Zec) and MDC Alliance, as respondents.
His lawyer, Advocate Hashiti said the lower court erred by failing to note that it had no jurisdiction to hear and determine the matter on the basis that it was not an election petition filed under Section 168 of the Electoral Act.
Adv Hashiti argued that the High Court erred by failing to hold that the second respondent (Ms Nomalanga Ngwenya) did not have a locus standi to approach the court including her organisation.
“The court a quo erred in its interpretation of Section 119 (2) of the Electoral Act. Most importantly, the court a quo failed in not holding that once a person had been lawfully nominated such as the appellant in this case, he could only be removed from office in terms of Section 278 of the Constitution of Zimbabwe,” he argued.
“The appellant prays that this appeal succeeds with costs and that the court a quo’s judgment under case number EC8/18 be and hereby set aside and dismissed with costs.”
Adv Hashiti said the matter was not decided on the basis of the Electoral Act hence the High Court had no jurisdiction to grant a declaratory order.
In nullifying Kambarami’s election, Justice Mabhikwa said his failure to notify his party and Zec was in itself an act of dishonesty and an illegality which rendered his subsequent election a nullity and made him unsuitable to hold public office.
According to section 119 (2) (e) of the Electoral Act, a person shall be disqualified from being nominated as a candidate for or from election as a councillor if he or she has been convicted of an offence involving dishonesty.
Advocate Greystone Nyoni, who was instructed by the respondents’ lawyers Moyo and Nyoni Legal Practitioners, said there was no misdirection by Justice Mabhikwa as Kambarami was convicted two weeks before the elections.
“The appellant (Kambarami) was obliged to disclose his conviction and his failure to do so constituted a criminal offence. In terms of section 119 of the Electoral Act, he simply disqualified himself and was therefore supposed to withdraw his candidature,” he said.
Kambarami was convicted on his own plea of guilty to theft.
He was given a chance to voluntarily relinquish his posts as councillor and Deputy Mayor and he declined, prompting 1893
Mthwakazi Restoration Movement Trust to approach the High Court. Section 41 (7) of the Urban Councils Act states that a councillor who is convicted of an offence and sentenced to imprisonment for a period of six months or more shall forthwith cease to exercise his or her functions or to be entitled to any remuneration as a councillor, and subject to subsection (8), he or she shall cease to be a councillor at the expiry of 30 days from the date of such sentence.
On August 1, 2017, Kambarami engaged the complainant, Mr Washington Chirikuudzi (68), to do some work at his offices.
Kambarami asked the complainant to leave his tools at his offices inside a safe before knocking off. When the complainant returned on the following morning, he discovered that his extension cord was missing. Kambarami admitted that he took it and promised to return it.
However, Kambarami did not return the cable despite pleas from the complainant.
Mr Chirikuudzi reported the matter to the police leading to Kambarami’s arrest. Kambarami was elected Deputy Mayor in September 2018 after beating his closest rival, Cllr Mlandu Ncube of Ward One. — @ mashnets.