REPORTABLE ZLR (9)

Judgment No. SC 4/09

Civil Appeal No. 309/05

CITY OF HARARE v CHRISTOPHER MAGWENZI ZVOBGO

SUPREME COURT OF ZIMBABWE

ZIYAMBI JA, GWAUNZA JA & GARWE JA

HARARE, SEPTEMBER 4, 2007 & APRIL 2, 2009

H Zhou, for the appellant

S F Jarvis, for the respondent

GARWE JA: This is an appeal against the decision of the High Court Harare declaring null and void the disciplinary proceedings of a special committee set up by a commission that had been established to manage the affairs of the City of Harare.

The facts of this case are to a large extent not in dispute. The respondent together with seventeen (17) other employees of the City of Harare (“the appellant”) were suspended from duty on 24 June 1999 following the findings of a committee of inquiry set up by the Minister of Local Government and National Housing, in terms of the Urban Councils Act [Cap 29:15](“the Act”). At the time, the affairs of the appellant were under the management of a Commission headed by one Elijah Chanakira, which Commission had been appointed by the Minister on 8 March 1999 in terms of s 80 of the Act, following the suspension of elected councillors on 25 February 1999. In terms of the Act, a Commission so appointed was empowered to act as the Council and would hold office for a maximum period of six months. On an unknown date but after the first six months of its appointment, the Commission appointed a committee to inquire into alleged misconduct on the part of the respondent. That committee was dissolved before it conducted any inquiry. A second committee was then constituted. At the commencement of the disciplinary proceedings before that Committee in October 2000 the respondent raised the issue of lack of jurisdiction on the part of the committee on the basis that the committee had been appointed by a Commission whose own tenure of office was illegal. That objection was overruled as a result of which the respondent filed an application with the High Court seeking an order declaring the disciplinary proceedings null and void.

At the hearing of the application the High Court accepted that the illegality of the Commission was common cause. The court further concluded that the Kelsian theory of efficiency, as enunciated in Madzimbamuto v Lardner-Burke N.O. & Anor N.O. 1968(2) SA p 284, was only applicable in revolutionary situations where a sitting regime was toppled by another, thereby creating a shift in the grundnorm but was not applicable in the context of domestic law where there has been no change in the grundnorm. The court also allowed an amendment to the draft order sought by the respondent declaring the subsequent dismissal of the respondent null and void.

In its notice of appeal, the appellant has attacked the decision of the High Court on the following grounds -

1. The court erred in not holding that the committee was appointed in pursuance of a resolution passed during the first six months of the life of the first Commission and was therefore not tainted with any illegality that may be associated with any future or subsequent commission.

2. The court erred in impliedly allowing the respondent’s amendment of its draft order to include a declaration that the subsequent dismissal of the same was null and void.

3. The court erred in ignoring the fact that the dismissal of the respondent was a separate act by a separate body, namely the Local Government Board and therefore a fortiori the Local Government Board should have been cited as a party to the proceedings.

4. The court grossly erred in ignoring the fact that any illegality associated with the extension and re-appointment of subsequent commissions would not affect the legality of administrative actions and decisions done by any such subsequent commissions.

Shortly before the hearing of the appeal the appellant filed a notice of amendment to introduce two additional grounds. These are –

1. That the court a quo erred at law by determining that the Commission running the affairs of the appellant was not a legal authority capable of running the affairs of the City of Harare and bringing about legal consequences; and

2. That the court a quo erred in coming to the conclusion that the re-appointment of the commissioners after the first six months rendered the Commission illegal.

In its heads of argument the appellant raised two further issues. These were firstly whether the Minister of Local Government & National Housing should have been cited and secondly whether it was permissible for the respondent to institute review proceedings before conclusion of the proceedings.

It is clear from the grounds of appeal and from the appellant’s heads of argument that there are a number of issues that call for determination. I will deal with each of these in turn, starting with those matters in respect of which preliminary points have been raised.

WHETHER THE LOCAL GOVERNMENT BOARD SHOULD HAVE BEEN CITED

This issue has been raised for the first time on appeal. It is the appellant’s contention that the employment of the respondent was terminated by the Local Government Board and that therefore the Board should have been cited.

Section 140(1) of the Act provides that subject to subs 2 a council may at any time discharge a senior official summarily on the ground of misconduct, negligence or any other ground that would in law justify discharge without notice.

Subsection 2 provides that a council shall not discharge a senior official unless the discharge has been approved by the Local Government Board. What this means is that before terminating the services of a senior official the approval of the Board must first be obtained.

It is clear from the provisions of s 140 of the Act that the Board does not itself terminate the employment of a senior official. It is the Council that does so but in doing so the Council must first seek the approval of the Board. The involvement of the Board was meant to ensure that no senior authority was removed unless the Board – an independent body – also confirmed or approved such dismissal.

In these circumstances it cannot be suggested that the Board should have been cited. The Board merely approves. The act of actually discharging the official is left to the Council.

This submission must fail.

WHETHER THE MINISTER SHOULD HAVE BEEN CITED

It is the appellant’s contention that since the Commission derives its legitimacy from the Minister of Local Government then any challenge on its legality must necessarily entail that the Minister be cited as party to the proceedings. This was not done in this case.

It is important that sight is not lost of the fact that there have been other proceedings involving the Minister and that this Court has in the past declared the re-appointment of the Commission to be illegal – see Stevenson v The Minister of Local Government & Ors 2002(1) ZLR 498(S). Indeed when this matter was heard in the High Court the illegality of the Commission was not in issue. The appellant did not seek in those proceedings to rely on any action taken by the Commission after its re-appointment as it accepted that the re-appointment of the commission was illegal.

This submission has no merit and must also fail.

WHETHER THE MATTER COULD BE REVIEWED BEFORE THE CONCLUSION OF THE INQUIRY PROCEEDINGS

It is the appellant’s contention that when the respondent raised the question of jurisdiction of the inquiry committee and when the committee dismissed the technical objection raised, the matter should have continued until conclusion of the proceedings. Only then could the respondent raise the issue of lack of jurisdiction as one of his grounds of appeal.

A review differs from an appeal which can only be instituted after conclusion of the proceedings.

As stated by Feltoe in A Guide to Zimbabwean Administrative Law 3^rd Ed., 1998 at p 14:

“The main difference between the two remedies is that in an appeal what is in question is the substantive correctness of the original decision whereas on review the High Court is not delving into substantive correctness of the decisions, but is only determining whether there were any reviewable procedural irregularities or any action which was reviewable because it was ultra vires the powers allocated to the tribunal …”.

The learned author continues on the same page:

“A review can be brought even before the proceedings have been completed whereas an appeal can only be brought after the original case has been finalized …”.

The submission raised in this regard must therefore fail.

WHETHER THE AMENDMENT SHOULD HAVE BEEN GRANTED

At the hearing of the matter before the court a quo the respondent sought an amendment to his draft order in order to include a declaration that his subsequent dismissal was null and void. The respondent opposed the amendment on the basis that this would introduce a new cause of action. The court a quo allowed the amendment on the basis that:

“The subsequent dismissal of the applicant was directly predicated on the proceedings that have been challenged and in the event that such are found void ab initio, then the dismissal will fall away by way of domino effect as anything resting on the void proceedings will have to fall with the proceedings. In this regard the amendment is not necessary … and does not seek to introduce a new cause of action.”

Clearly the amendment did not seek to introduce a new cause of action. Indeed if it was found that the proceedings were not in accordance with the law, then the subsequent dismissal would be null and void.

This submission must also fail.

WHETHER SECTION 86 VALIDATES THE ACTIONS OF THE COMMISSION

It is the appellant’s submission that s 86(2) of the Act protects the validity of any action taken by Council or any person acting as Mayor, Chairman, Town Clerk or Treasurer. That section provides as follows:

“No proceedings of a Council or any Committee and no action taken by any person acting as Mayor, Chairman, Councillor, Town Clerk, Treasurer or Auditor, as the case may be, shall be invalid or illegal solely on account of any defect in the election, appointment or qualification of any such person.”

On the face of it the wording of s 86(2) appears to validate the actions of the Commission. On closer scrutiny and on a proper interpretation of the section it is clear that the provision does not go so far as to cover the present case. Admittedly, a Commission that has been lawfully appointed exercises the powers of a council. The section does not, however, make reference to an interim body such as the Commission in this case. Further the Commission does not fall within the definition of a council or a committee nor can its members be said to be acting as Mayor, Chairman, Councillor, Town Clerk, Treasurer or Auditor.

I agree with the respondent that s 86(2) was intended to protect a council or committee from a defect only in the appointment of some of its members. The section was not intended to cater for a situation where the appointment of the entire council or committee was found to be wanting. I would also agree with the respondent that the provisions of s 80 of the Act are quite brief and consistent with the intention to create a caretaker body. For this reason no provision has been made for the Commission to fill the role of an elected Mayor or an executive committee.

I find therefore that the provisions of s 86 were not intended to cover the activities of an interim body such as a commission.

The submission in this regard must therefore fail.

WHETHER THE INQUIRY COMMITTEE WAS CONSTITUTED BY THE RESOLUTION OF 20 JUNE 1999

At the hearing of this matter before the High Court, it was not in dispute that the special committee in question was appointed after the term of six (6) months for which the Commission could hold office in terms of the Act.

Another special committee had previously been appointed but was, however, dissolved before it had commenced the inquiry proceedings. It was also not in dispute that the initial decision to set up various inquiry committees was made on 30 June 1999, i.e. during the period of six months for which the Commission had been appointed to hold office.

It is the appellant’s submission that the inquiry committee was created by resolution of 30 June 1999 and the fact that administratively the inquiry committee may have been constituted in September 1999 does not render that appointment null and void.

By the time of the hearing of the matter before the High Court, two decisions – one of the High Court and the other of the Supreme Court - had held that the extension of the lifetime of the Commission beyond six months was illegal.

In dealing with the question whether the inquiry committee was constituted by the resolution of 30 June 2009 the court a quo remarked as follows at p 4 of the cyclostyled judgment:

“The fact that the resolution to appoint a committee of inquiry into the alleged misconduct of the applicant was passed during the lawful tenure of the commission was not relied upon in oral argument as making the proceedings of the committee legitimate. Although no reason was given for abandoning the argument, it is my view that such abandonment was proper. It is common cause that the committee presided over by the second respondent was appointed after the commission had exhausted its lawful tenure. It is my view that the fact that the committee was appointed by an illegal commission in pursuance of a resolution passed during the lawful years of the commission does not clothe the committee with legitimacy as the passing of the resolution and the appointment of the committee are two separate juristic acts. Both must emanate from a commission or council lawfully in office. In law, one cannot envisage a situation where the resolution of a legal entity, lawfully constituted, can lawfully be carried into effect by an unlawful body, and in the absence of some validating procedure, create, and confer legal rights and obligations on the parties concerned.”

I agree entirely with the above remarks. In any event it appears that the submission, though raised in the papers, was not pursued during oral argument before the court a quo. Indeed, the court a quo reached the conclusion that the submission had been abandoned but had nevertheless proceeded to deal with it. Despite this, the matter has again been raised as one of the grounds of appeal before this Court. I am in no doubt at all that the court a quo was correct in coming to the conclusion that the appointment of the inquiry committee is a separate juristic act that must be performed by a commission lawfully in office.

The appellant’s submission in this regard must therefore fail.

WHETHER THE RE-APPOINTMENT OF THE COMMISSION WAS LEGAL

In the proceedings before the court a quo, it was accepted by all parties that the re-appointment of the Commission was illegal. This followed the decision of this Court in Stevenson v Minister of Local Government & Ors (supra). The court a quo in its judgment remarked that the illegality of the Commission after the first six months of its lifetime was not in issue.

The appellant has now changed its position in this regard and now argues that as a question of law, the conclusion that the re-appointment of the Commissioners was per se illegal was clearly wrong.

Section 80(5) of the Act provides:

“If the Minister is satisfied that after the termination of the office of a commissioner appointed in terms of subs (1), there will be no councilors for the Council area who will be able to exercise all their functions, the Minister may re-appoint the Commissioners in terms of subs (1).”

The appellant argues that the above provision expressly empowers the Minister to re-appoint Commissioners and that that is what the Minister did in this case. Therefore, so the argument goes, the re-appointment cannot be said to be illegal and the concession made before the court a quo to this effect was not properly made.

In Stevenson v Minister of Local Government & Ors (supra) this Court had occasion to consider whether the re-appointment of the Commissioners was legal. At pp 505B-H and 506A. SANDURA JA remarked:

“As already stated s 103L of the Electoral Act provides that a general election of councilors shall be held in every fourth year on any day in the month of August fixed by the second respondent. When the Minister appointed the commissioners in March 1999 he must have been aware that the next general election of councillors was due in August 1999. Since the appointment of the commissioners did not mean that the election was postponed, it should have been held in August 1999, on a date fixed by the second respondent in terms of s 103L of the Electoral Act.

In any event, in terms of s 80(4) of the Urban Councils Act, before the termination of office of a commissioner, the commissioner is obliged to cause an election to be held on such date as he may fix to fill the vacancies on the council as if they were special vacancies. As the commissioners were appointed in March 1999, their term of office was due to expire in September 1999. Before the expiration of their term of office, they should have caused an election to be held to fill the vacancies on the council as if they were special vacancies. However, they did not do so.

In my view, the first respondent, being the Minister to whom the President assigned the administration of the Urban Councils Act, should have ensured that the commissioners whom he had appointed carried out their obligation to cause an election to be held before their term of office expired in September 1999.

Having said that, it is clear beyond doubt that s 80(5) of the Urban Councils Act, in terms of which the commissioners were re-appointed, on two or three occasions, was not meant to be a vehicle for the postponement of a general election of councillors. In fact, the re-appointment of the commissioners did not in any way whatsoever affect the legal obligation to hold a general election of councillors every fourth year.

I say so because there is no provision in the Electoral Act or the Urban Councils Act which states that once commissioners are appointed or re-appointed any general election of councillors which is due is postponed indefinitely.

Consequently, the Minister could not avoid having a general election of councillors by continually re-appointing the commissioners. In my view, s 80(5) of the Urban Councils Act was not enacted for that purpose. The power given to the Minister by that section was intended for use, as a temporary holder measure, during the period preceding the holding of elections as required by the Electoral Act. The re-appointments of the commissioners were, therefore, unlawful.”

That this issue has been settled by this Court is clear. This Court specifically held that the re-appointment of the Commissioners in these circumstances was illegal in view of the fact that the Minister must have been aware that the next general election of councilors was due in August 1999. The Minister should have ensured that the Commissioners whom he had appointed carried out their obligation to cause an election to be held before their term of office expired in September 1999.

I see no basis upon which this finding can be revisited. The Commission referred to by SANDURA JA is the same Commission which appointed the inquiry Committee whose decision was the subject of the application proceedings before the High Court. The finding that the re-appointment of the Commissioners was illegal has been settled.

The suggestion that the above remarks by SANDURA JA were in any event dicta cannot be accepted. In order to determine who should pay costs, one of the issues before the Court was whether the Minister could avoid a general election of councilors by continually re-appointing the Commissioners. It had become necessary for the court to determine the issues raised in the application in order to determine which party should pay the costs of the application in the court a quo. At the time of the hearing of the appeal, mayoral and council elections had been held in March 2002 and the basis for the application had therefore fallen away. The remarks made by SANDURA JA were therefore not simply dicta. They constituted one of the bases upon which the Court made a decision on the issue of costs, the reason for the application having fallen away with the holding of mayoral and council elections.

I see no basis, as suggested by the appellant, for revisiting the decision of this Court in Stevenson v Minister of Local Government & Ors (supra).

The suggestion that the re-appointment of the Commission was legal must also fail.

WHETHER THE ACTIVITIES OF THE COMMISSION ARE VALID ON THE BASIS OF THE DOCTRINE OF EFFECTIVENESS

It is the appellant’s submission that on the basis of the Kelsian doctrine of efficacy the activities of the Commission can be validated purely on the basis of the doctrine of effectiveness. The Kelsian theory was considered at great length in this jurisdiction in Madzimbamuto v Lardner – Burke N.O. & Anor NO (supra). In that case the fact that the rebel Rhodesian government was in effective control after ousting the 1961 Constitution was accepted as a basis for recognizing the government.

It is clear from a reading of the authorities that the doctrine of effectiveness applies in situations where one regime has been toppled by another and a new set of laws is introduced to replace the old laws. Nowhere has it been suggested that the doctrine could be extended so that it applies in domestic law.

In dealing with this issue the trial court remarked at p 8 of the cyclostyled judgment:

“29. From the above, it appears to me that the theory of efficacy has found expression mainly in international law situations to avoid vacuums created by the toppling of one grundnorm by another. It is therefore in my view only applicable in situations where the grundnorm has been suspended or has become defunct and a vacuum has thereby been created and will remain if the court does not validate the new grundnorm.

30. It further appears to me to have been applied in cases of revolutionary changes to entire governmental regimes where such change is deemed successful, the measure of success being the response of the governed people to the coup and the fact that there is no other government in opposition to the new order.

31. It further appears to me to be nothing other than a useful weapon in the arsenal of that court which intends to capitulate or seek to recognize the illegal regime as the other option would be for the court to fearlessly declare the law as he or she sees it to be, whatever the future consequences will be, a course that BEADLE CJ and other judges in Madzimbamuto shied away from. (See p 329ff of the judgment).”

On whether the theory can be extended to domestic law, the court remarked at p 8 of the judgment:

“32. The first hurdle that the theory faces in domestic law is the absence of a change in the grundnorm. Domestic law itself finds expression and validity under a fundamental law. It is itself not the fundamental law and needs no independent validation other than that which the grundnorm confers on it. In the absence of a change in the grundnorm, the theory cannot be invoked to validate illegal acts done under domestic law.

33. The theory is not meant to fill all vacuums of power no matter how created and particularly, cannot fill vacuums created by the domestic law as such vacuums should be filled by making reference to the grundnorm and applying domestic remedies. The theory has been invoked to fill vacuums created at national level where one regime has been ousted from power in a manner not anticipated or provided for in the grundnorm.

34. It cannot be invoked to destroy the grundnorm by legitimising acts that are illegal under the grundnorm. Thus, an unconstitutional act cannot in my view be declared valid and legitimate by invoking the theory as this will lead to unprecedented anarchy and self help in domestic law. Illegal bodies may set themselves up without reference to central governments on the flimsy reason that they are effective, the people accept their mandate, and there is no other equivalent body opposing them in the sphere of society they chose to operate in. One need not think beyond the operations of the black market in foreign currency in this country presently to realize the potentially dangerous precedent that may unwittingly be set by upholding the contentions that permanence, efficacy and general acceptance by the public are the only determining features of validating an illegal authority under domestic law.

35. It is my further view that the court is not placed in a dilemma by the existence of a perceived vacuum in domestic law. Its omnipotence granted and guaranteed by the grundnorm is not rendered impotent by a vacuum in domestic law, as is the situation when there is a vacuum at international law. Thus, the need for the court to recognize and validate the illegal in exchange for its continued existence and recognition does not arise.

36. In arriving at this finding, I find some support in the dicta of LORD REID in Madzimbamuto v Lardner-Burke [1969] AC 645 where the Privy Council rejected the application of the doctrine to give legitimacy to the usurping authority in the then Rhodesia. In disposing of the matter, the House of Lords held that there was no vacuum in Rhodesia triggering the application of the doctrine, as the whole of its existing laws remained intact and of full force. It is therefore my view that the doctrine as applied to give legitimacy to revolutionary governments in the past, has no application in the domestic law domestic sphere (sic) but remains a political tool used at international law to lag power vacuums created by revolutions and rebellions. Whether the principle can be further developed and adapted for application in some aspects of domestic law is an issue that I need not consider in this matter.”

I agree entirely with the above remarks and am satisfied that the decision of the trial court cannot be impugned in any way. Any vacuum that may have arisen clearly arose not because of the absence of laws in the domestic arena but rather because the provisions of some of the domestic laws were ignored. As stated by the respondent the present case is not concerned with any attempted shift in the grundnorm but rather with people ignoring its administrative statutes.

I am satisfied that this theory, which is controversial, should apply only in extreme situations where there is a change in the grundnorm and not in a situation such as the present. I also agree that if such a line were not drawn, then a situation would arise where people would do that which is illegal and because they were in effective control, seek legitimacy on the basis of this doctrine. Clearly this court cannot endorse such a situation.

The submission in this regard cannot succeed.

CONCLUSION

There is no merit in this appeal.

It is accordingly dismissed with costs.

ZIYAMBI JA: I agree

GWAUNZA JA: I agree

Manase & Manase, appellant’s legal practitioners

Atherstone & Cook, respondent’s legal practitioners