urban council employees https://old.zimlii.org/taxonomy/term/10418/all en Chibanda And 2 Others v City of Harare (SC 83-21, Civil Appeal No. SC 431/19) [2021] ZWSC 83 (29 June 2021); https://old.zimlii.org/zw/judgment/supreme-court-zimbabwe/2021/83 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>Judgment No. SC 83/21</p> <p>Civil Appeal No. SC 431/19</p> <p> </p> <p><strong>REPORTABLE:</strong><strong>       (80)</strong></p> <ol> <li><strong>    DOMBO     CHIBANDA     (2)     PINGO     WILBROAD         KANDORORO     (3)     JOHN     KANDWE</strong></li> </ol> <p><strong>v</strong></p> <p><strong>CITY     OF     HARARE</strong></p> <p> </p> <p><strong>SUPREME COURT OF ZIMBABAWE</strong>                                                              </p> <p><strong>HLATSHWAYO JA </strong></p> <p><strong>HARARE: 29 NOVEMBER 2019 &amp; 29 JUNE 2021</strong></p> <p> </p> <p> </p> <p><em>J. Mambara</em>, for the applicants</p> <p><em>T.L. Mapuranga with T.G. Chigudugudze</em>, for the respondent</p> <p> </p> <p><strong>HLATSHWAYO JA:</strong> This is a chamber application for condonation for failing to note an appeal within the prescribed time limits and extension of time within which to note an appeal in terms of r 43 of the Supreme Court Rules, 2018 (the Rules).  The applicants seek an order in the following terms:</p> <ol> <li>The application for condonation for non-compliance with r 38 of the Supreme Court Rules, 2018 be and is hereby granted.</li> <li>The application for extension of time within which to file and serve a notice of appeal in terms of the rules be and is hereby granted.</li> <li>The notice of appeal shall be deemed to have been filed on the date of this order.</li> <li>The costs shall be in the cause.</li> </ol> <p> </p> <p><strong>BACKGROUND</strong></p> <p>The applicants in this matter were employed by the respondent.  In 2014, they received letters notifying them that they were being retired as they had reached the age of sixty years.  At the time the first applicant was sixty-two years, the second applicant sixty-four years and the third applicant sixty-two years.  The first applicant had been in the employ of the respondent for forty years, the second applicant for thirty-five years and the third applicant for twenty-one years.  The letters advised them that they would receive their terminal benefits including three months’ notice and a continued use of their designated company vehicles.  The applicants challenged this retirement by making an application for a <em>declaratur</em> in the High Court (the court <em>a quo</em>).</p> <p> </p> <p>They argued that s 11 (1) of the Local Authorities Employees Principal Pension Scheme, in terms of which they had been retired, did not apply to them as they had passed sixty years.  They argued that since they had been in employment past the age of sixty they could only be retired at the age of sixty-five and that they now had a valid legitimate expectation to be retired at sixty-five since they had gone past the age of sixty without being retired.  They further argued that the pension regulations provided for retirement at the ages of fifty-five, sixty and sixty-five and not in between those ages. </p> <p> </p> <p>Furthermore, according to the applicants, their retirement was discriminatory since other employees who were in similar positions had been retrenched and not retired. In the circumstances the applicants prayed for a declaration to the effect that the purported retirement was a legal nullity and that the respondent was to be ordered to reinstate or retrench them.</p> <p> </p> <p><strong>DETERMINATION OF THE COURT <em>A QUO</em></strong></p> <p>The court <em>a quo</em> noted that the major question for determination was whether or not the respondent’s pension scheme applied to the applicants.  The court found that the applicants’ argument that the pension scheme did not apply to them was without merit. This was because the respondent’s pension scheme was regular and the applicants, by joining the respondent, had accepted to be bound by its pension scheme and according to this scheme the normal retirement age was sixty years.</p> <p> </p> <p>The court further found that the applicants’ argument that the respondent was precluded from retiring them in between the segments of fifty-five years to sixty years and sixty to sixty-five years, lacked merit because nothing in s 11 of the respondent’s pension scheme suggested that. According to the court <em>a quo</em> the applicants’ legitimate expectation that they would not be retired before attaining the age of sixty-five years had no foundation because the pension scheme did not suggest that in any way.</p> <p> </p> <p>The court held that in terms of the respondent’s pension scheme, it was purely at the discretion of the employer for an employee to continue serving after his attainment of sixty years of age and as such there was nothing precluding the respondent from retiring the applicants.  The applicants having gone past the normal age of retirement, the court <em>a quo</em> found that they were serving at the pleasure of the respondent and as such the respondent was entitled to dispense with their services at any time.  The court <em>a quo</em> thus dismissed the application with an order of costs.</p> <p> </p> <p>Aggrieved by that decision, the applicants noted an appeal with this Court on 6 October 2015 under case number SC 549/15.  The applicants failed to pay costs for the preparation of the record and the appeal was deemed abandoned on 6 January 2016.  On 19 March 2019 the applicants filed a chamber application for condonation of late filing of an application for reinstatement of the appeal and extension of time within which to pay costs for the preparation of the record.  However, the application was later withdrawn on the basis that the nature of the relief sought was unascertainable and, subsequently, the application was removed from the roll on 28 May 2019.  Again, a similar application was filed and subsequently withdrawn on 5 July 2019 on the basis that the notice of appeal appended to the application did not comply with r 43(3) as read together with r 37(1) of the Rules.  The applicants then filed the present application for condonation for failing to note an appeal within the prescribed time limit and extension of time within which to note an appeal against the judgment of the court <em>a quo</em>.</p> <p> </p> <p><strong>APPLICANTS’ SUBMISSIONS</strong></p> <p>The applicants’ counsel, Mr <em>Mambara</em>, conceded that the delay was inordinate but, however, submitted that the explanation for that delay was reasonable.  The applicants submitted that the reason for delay was due to the fact that they could not pay the requested costs for preparation of the record the first time they filed the appeal and as a result the appeal was deemed lapsed.  The reason for the failure to pay the costs according to the applicants was because they could not afford to provide the same since the respondent had not paid their salaries which would have enabled them to pay the costs.  It was the applicants’ case that by the time they received money from the respondent, the appeal had already lapsed.</p> <p> </p> <p>The applicants also attributed their failure to note the appeal on time to wrong advice from their erstwhile legal practitioner who notified them that since their appeal had been deemed abandoned this marked the end of their appeal.  It was the applicants’ case that being laymen they thought this meant there was no other way their matter could be heard by this Court.  They also averred that the case of <em>Nyamande &amp; Anor v Zuva Petroleum (Pvt) Ltd &amp; Anor</em> 2015 (2) ZLR 186 (S) discouraged them from prosecuting their appeal.  The applicants thus submitted that, faced with the wrong legal advice and the <em>Zuva</em> judgment, they thought that they had no recourse whatsoever.</p> <p> </p> <p>According to the applicants it was the success of their colleague’s case, <em>Mubvumbi v City of Harare</em> SC 64/18 which prompted them to file an application for condonation for failing to note an appeal within the prescribed time limit and extension of time within which to note an appeal.</p> <p> </p> <p>On the prospects of success, the applicants’ counsel argued that their appeal had bright prospects of success because the <em>Mubvumbi</em> judgment, which was allegedly on all fours with the circumstances of their case, had been successful before this Court and as such they expected the same for their case.  The applicants further submitted that the matter was important in that it related to administrative justice.  They argued that, since they had served the respondent for a long time, their discharge with immediate effect amounted to arbitrary dismissal.</p> <p> </p> <p><strong>RESPONDENT’S SUBMISSIONS</strong></p> <p>The respondent’s counsel submitted that even though the applicants had admitted that the delay was inordinate, they had omitted to disclose that the degree of non-compliance was extremely long - three years and nine months.  The respondent further argued that the applicants’ reasons for delay had no merit and their numerous applications were an abuse of court process.  Mr<em> Mapuranga</em>, for the respondent, further noted that the applicants’ averments that they did not have money to pay costs were false because they managed at the same time to raise substantially higher fees to brief and pay counsel for legal opinions and, in any case, they had an option to proceed <em>in forma pauperis</em> but they did not, thus making their explanation unreasonable.</p> <p> </p> <p>The respondent further argued that the applicants’ case was distinguishable from the <em>Mubvumbi</em> case and the fact that the applicants took time to approach this Court, even after the <em>Mubvumbi</em> case, shows that they have no prospects of success.  He further submitted that the applicants should have attached an affidavit from their legal practitioner showing that he had given them wrong advice and failure to do so weakened their reason for the delay in noting the appeal.  Mr <em>Mapuranga</em> also argued that the applicants appeal was supposed to stand or fall on their grounds of appeal yet they had failed to motivate the grounds and demonstrate the prospects of success on appeal.  As such it was the respondent’s submission that the applicants had failed to show cause why they should be granted condonation and extension of time within which to note their appeal.</p> <p> </p> <p><strong>THE LAW</strong></p> <p>It is a trite principle of law that a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for his or her failure to comply with the rules.  Rule 38 (1) (a) states that:</p> <p>“(1) An appellant shall institute an appeal within the following times- </p> <ol> <li>By filing and serving a notice of appeal in compliance with subrule (2) of r 37 within 15 days of the date of the judgment appeal against.” </li> </ol> <p> </p> <p>Condonation is not simply granted by virtue of the mere fact that a party has sought it.  This was emphasized by ZIYAMBI JA in <em>Zimslate Quartize (Pvt) Ltd &amp; Ors v Central African Building Society</em> SC 34/17 as follows at p 7 of the cyclostyled judgment:</p> <p>“An applicant, who has infringed the rules of the court before which he appears, must apply for condonation and in that application explain the reasons for the infraction.  He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought.  An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a disservice as he takes the risk of having his application dismissed.”</p> <p> </p> <p>The factors to be considered by the court were outlined by BHUNU JA in <em>Mzite v Damafalls Investment (Pvt) Ltd &amp; Anor</em> SC 21/18, where he expressed the following at p 2 of the cyclostyled judgment:</p> <p>“The requirements for an application of this nature to succeed are well known as outlined in the case of <em>Kombayi v Berkout </em>1988 (1) ZLR 53 (S).  These are:</p> <ol> <li>The extent of the delay;</li> <li>The reasonableness of the explanation for the delay; and</li> <li>The prospects of success on appeal.”</li> </ol> <p> </p> <p>Condonation is thus an indulgence granted when the court is satisfied that there is “good and sufficient cause” for condoning the non-compliance with the rules.  Good and sufficient cause is assessed by considering, cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicants’ case on appeal, or the prospects of its success.  See <em>Bonnyview Estates (Pvt) Ltd v Zimbabwe Platinum Mines (Pvt) Ltd &amp; Anor</em> SC 58/18.</p> <p> </p> <p><strong>APPLICATION OF THE LAW TO THE FACTS</strong></p> <ol> <li><strong>The extent of the delay and reasonableness of the explanation.</strong></li> </ol> <p>The applicants ought to have noted their appeal fifteen days after 24 September 2015, being the date the judgment appealed against was handed down.  They were thus required to note their appeal by 16 October 2015.  The applicants initially noted their appeal timeously on 6 October 2015 but the appeal was deemed abandoned after they failed to pay costs for the preparation of the record.  From the time the appeal was deemed abandoned to the time this application for condonation of failing to note an appeal within the prescribed time limits and extension of time within which to note an appeal was filed, a period of three and a half years had lapsed.  Such a long delay is indeed inordinate, as correctly conceded.  Three and a half years is too substantial a period for a litigant to do nothing.</p> <p> </p> <p>As an explanation for the delay, the applicants contend that they failed to pay the requested costs for the preparation of the record of appeal because they were unable to secure the necessary funds.  The reason proffered by the applicants for failure to make an application for reinstatement of their appeal after it had been deemed abandoned is because of the wrong advice which they purportedly received from their legal practitioner.  The wrong advice of the applicants’ erstwhile legal practitioners, which is pleaded by the applicants, cannot be accepted as a reasonable explanation.  The applicants cannot blame their legal practitioners of choice for their misfortune.</p> <p> </p> <p>In <em>Kodzwa v Secretary for Health &amp; Anor</em> 1999 (1) ZLR 313 (S) at 317E, SANDURA JA cited with approval STEYN CJ in <em>Saloojee and Another v Minister of Community Development</em> 1965 (2) SA 135(A) at 141 C-E wherein the court stated:</p> <p>“I should point out however, that it has not at any time been held that condonation will not in any circumstances be withheld if the blame lies with the attorney.  There is a limit beyond which a litigant cannot escape the results of his attorney’s lack of diligence or the insufficiency of the explanation tendered.  To hold otherwise might have a disastrous effect upon the observance of the rules of this Court. Considerations <em>ad misericordiam</em> should not be allowed to become an invitation for laxity.  In fact, this Court has been lately burdened with an undue and increasing number of applications for condonation in which the failure to comply with the rules of this Court was due to negligence on the part of the attorney.  The attorney after all is the agent whom the litigant has chosen for himself, and there is little reason why, in regard to condonation for failure to comply with a rule of court, the litigant should be absolved from the normal consequences of such a relationship.”</p> <p> </p> <p>As such the applicants cannot seek to escape the consequences of their actions to timeously note their application for condonation by blaming their legal practitioner.  It would have been prudent if the responsible legal practitioner had filed an affidavit admitting fault and explaining in some detail what happened, then this Court would be in a position to decide whether the applicants should not be visited with the sins of their legal practitioners.  See <em>Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa </em>2010 (1) ZLR 267 (S).  The delay of three and a half years which the applicants took to make a proper application for condonation of late filing of an appeal is clearly inordinate and the reason offered by the applicants for such delay cannot be accepted as a reasonable explanation.</p> <p> </p> <p>The applicants submitted that they were prompted to make the present application because of the success of the <em>Mubvumbi</em> case which they felt was on all fours with the circumstances of their case.  Clearly this reasoning does not justify the granting of condonation because litigants cannot wait to be prompted by a favourable decision before they make their own applications.</p> <p> </p> <p>When a party brings an unsavoury situation upon himself by taking a lackadaisical approach to litigation in which he is involved and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything in order to give him audience.  Those are the consequences of being a sluggard and in the present case the court is unmoved as it does not ordinarily come to the rescue of the indolent.  See <em>Ndebele v Ncube</em> 1992 (1) ZLR 288 (S).  The reasons offered by the applicants for such delay are not sufficient to enable this Court to grant the applicants condonation and extension of time within which to note an appeal.  The delay is clearly unjustified and cannot be the kind of delay occasioned by a party who has a serious intention to prosecute his appeal.</p> <ol> <li><strong>The prospects of success on appeal.</strong></li> </ol> <p>It is settled that where no acceptable explanation for non-compliance with the rules has been given, an applicant for condonation must at least show very good prospects of success.  See <em>Mahachi v Barclays Bank of Zimbabwe</em> SC 6/06.  The applicants are required to show that they have an arguable case on appeal as was noted by the court in <em>Essop v S</em> (2014) ZASCA 114, where the court stated the following at para 6:</p> <p>“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.  In order to succeed, therefore, the appellant must convince this Court on proper grounds that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.  More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal or that the case cannot be categorised as hopeless.  There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”</p> <p> </p> <p> </p> <p> It is settled law that the applicant’s case stands or falls on the founding affidavit.  See <em>Austerlands (Pvt) Ltd v Trade and Investments Bank Ltd &amp; Ors</em> 2006 (1) ZLR 372 (H).  In their founding affidavits the applicants only alluded to but did not demonstrate any prospects of success on appeal.  They just stated that their appeal has bright prospects of success because it is similar to the <em>Mubvumbi</em> case which was successful.  That cannot possibly be a clear and sufficient articulation of prospects of success and clearly does not satisfy the requirements of the law.  The applicants could not sit on their rights for years until a favourable appellate decision was handed down and then claim to be diligent in pursuing their rights so that they can take advantage of that favourable decision. </p> <p> </p> <p>In any event, the grounds of appeal themselves are afflicted by such defects that they do not even meet the strict threshold fixed by the Rules for valid grounds of appeal.  The grounds of appeal are not clear and concise as is required by r 4(1) of the Rules.  It is trite at law that grounds of appeal must be clearly set out to enable the court and the respondent to be fully and properly informed of the case which the appellant seeks to make out and which the respondent is to meet.  Anything that falls short of that is improperly before the court.  See <em>Econet Wireless (Pvt) Ltd v TrustCo Mobile (Proprietary) Ltd &amp; Anor</em> SC 43/13.</p> <p> </p> <p>It appears from the grounds of appeal that the applicants are aggrieved by the factual findings of the court <em>a quo</em>.  It was stated in <em>Nzira v The State</em> SC 23/06 that an appeal court is very unlikely to go against factual findings of the trial court which had the opportunity to listen to and actually see the witnesses and observe their demeanour when giving evidence.  The appeal court will only interfere where it is shown that there was a clear misdirection on the part of the trial court which has not been demonstrated in this case. </p> <p> </p> <p>Considered cumulatively, the extent of the delay, the explanation for that delay and the strength of the applicant’s case on appeal, it is clear that the Court cannot extend the indulgence of condonation in these circumstances and, therefore, this application cannot succeed. Costs in this case should follow the outcome, nothing having been sufficiently advanced to the contrary.</p> <p> </p> <p><strong>DISPOSITION</strong></p> <p>Accordingly, it is ordered that the application be and is hereby dismissed with costs.</p> <p> </p> <p><em>J Mambara and Partners</em>,applicant’s legal practitioners</p> <p><em>Chihambakwe, Mutizwa &amp; Partners</em>, respondent’s legal practitioners</p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/83/2021-zwsc-83.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=35947">2021-zwsc-83.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/supreme-court-zimbabwe/2021/83/2021-zwsc-83.pdf" type="application/pdf; length=449893">2021-zwsc-83.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/a">A</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/appeal-0">APPEAL</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/appeal-supreme-court">Appeal to Supreme Court</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/condonation">Condonation</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/e">E</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/employee-0">Employee</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urban-council-employees">urban council employees</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/termination-employment">Termination of employment</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2015/43">Nyamande &amp; Another v ZUVA Petroleum (Pvt) Ltd (SC 281/14) [2015] ZWSC 43 (16 July 2015);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2018/64">Mubvumbi v City of Harare (SC 64/18, Civil Appeal No. SC 1079/17) [2018] ZWSC 64 (22 October 2018);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2017/34">Zimslate Quartzite (Pvt) Ltd. &amp; Others v CABS (SC 34/2017 Chamber Application No. SC 82/17) [2017] ZWSC 34 (10 May 2017);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2016/21-0">Mzite v Damafalls Investments (Private) Limited &amp; Another (SC 21/18, Civil Appeal No. SC 89/16) [2018] ZWSC 21 (23 June 2016);</a></div><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2018/58">Bonnyview Estates (Private) Limited v Zimbabwe Platinum Mines (Private) Limited &amp; Another (SC 58/18, Civil Appeal No. 411/17) [2018] ZWSC 58 (26 September 2018);</a></div><div class="field-item odd"><a href="/zw/judgment/supreme-court-zimbabwe/2013/43">ECONET Wireless v TRUSTCO Mobile Ltd &amp; Another (Civil Appeal No SC 171/11) [2013] ZWSC 43 (25 September 2013);</a></div></div></div> Wed, 14 Jul 2021 09:34:55 +0000 Sandra 10077 at https://old.zimlii.org Chitungwiza Municipaliy v Karenyi (HH 93-18, HC 1313/18) [2018] ZWHHC 93 (28 February 2018); https://old.zimlii.org/zw/judgment/harare-high-court/2018/93 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>CHITUNGWIZA MUNICIPALITY</p> <p>versus</p> <p>MAXWELL KARENYI</p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>TAGU J</p> <p>HARARE, 15 &amp; 28 February 2018</p> <p> </p> <p> </p> <p><strong>Urgent Chamber Application for <em>rei vindicatio</em></strong></p> <p> </p> <p><em>N Mugandiwa</em>, for applicant</p> <p><em>G Majirija</em>, for respondent</p> <p> </p> <p>          TAGU J: The applicant seeks an order of <em>rei vindicatio</em>. It seeks recovery of its property namely- motor vehicle, a Toyota Hilux Double Cab Registration Number AAE 7098, HP 450 laptop, Samsung Galaxy S5 and a Samsung tablet 4 presently in the possession of the respondent without the applicant’s consent.</p> <p>            The circumstances are that the respondent was employed by the applicant as a Director of Works in terms of a written contract. The respondent gave notice of his intention to resign from the applicant’s employment. He indeed resigned on the 18th December 2017. During the term of his employment the respondent was issued with a motor vehicle and other gadgets for use in the performance of his duties. Upon resignation the respondent remained in possession of the vehicle and the gadgets. Despite the termination of his employment the vehicle and the gadgets remained registered in the names of the applicant. The applicant requested the respondent to surrender the motor vehicle and other gadgets that were issued to the respondent during the course of his employment. The respondent despite lawful demand declined to return the property in question prompting the applicant to file a police report at ZRP St Marys CR 68/01/18, CID Chitungwiza DR17/1/18. The docket was referred to the Prosecutor General who declined to prosecute holding that the dispute was civil. This prompted the applicant to file this urgent chamber application for <em>rei vindicatio</em>.</p> <p>            The respondent opposed the application. He raised three points <em>in limine</em> in his Notice of Opposition which he thought could dispose of this matter which can be summarized as follows-</p> <ul> <li>The application is frivolous and vexatious;</li> <li>The application is not urgent;</li> <li><em>Lis alibi pendens</em> and</li> <li>That the High Court has no jurisdiction to hear this matter.</li> </ul> <p>            I have to examine the points <em>in limine</em> first to decide whether they dispose of the matter without dealing with the merits of the application.</p> <p><strong>THE APPLICATION IS FRIVOLOUS AND VEXATIOUS     </strong></p> <p>            The respondent’s contention was that he is entitled to the vehicle and the other gadgets in terms of clause 17 of his employment contract which provides that on resignation he was entitled to an option to purchase his allocated vehicle at 10% of book value. He averred that since he resigned his contract provides that as his benefits he is entitled to a 90% discount on his conditions of service hence in the event of not getting the vehicle he would be prejudiced of his 90% discount on the vehicle.</p> <p>            The applicant opposed this point <em>in limine</em> and relied on the cases of <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited</em> SC 81/2014 and <em>Tendai Savanhu</em> v <em>Hwange Colliery Company</em> SC -8-2015.</p> <p>            Clause 17 of the respondent’s contract of employment provides that-</p> <p>          “<strong>Purchase Option at 10 % of Book Value</strong></p> <p>            The HOD shall be given the first right of refusal to purchase his/her allocated vehicle as   follows:</p> <ul> <li>On expiration of contract.</li> <li>Upon resignation or resignation on medical grounds.</li> <li>Upon dismissal no purchase option will be exercised.”</li> </ul> <p>            The applicant’s argument was that the property in question remained the property of the applicant and was never given to the respondent hence the applicant has a right to bring this application for <em>rei vindicatio</em>. It said though the contract of employment talks of respondent’s right of first refusal to purchase the vehicle in question, the applicant was not obligated to sell the property in question to the respondent. See <em>Eastview Gardens Residents Associations</em> v <em>Zimbabwe Reinsurance Corporation Ltd and Others</em> SC-90-02.</p> <p>            In this case it is not in dispute that the respondent resigned from his employment. It is common cause that by the time of his resignation the applicant had neither made a decision to dispose of the vehicle and the gadgets nor offered the said property to the respondent for sale. In my view the ownership of the vehicle and the other gadgets remained vested in the applicant. I therefore agree with the applicant’s argument that by ceasing to be an employee of the applicant the respondent’s possession and use of the gadgets also ceased unless they had been offered to the respondent to purchase. I entirely agree with the decisions of the Supreme Court in the cases of <em>Tendai Savanhu</em> v <em>Hwange Colliery Company</em> and <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited supra</em>. On this basis the first preliminary point lacks merit and is hereby dismissed since the application is not frivolous and vexatious.</p> <p><strong>THE APPLICATION IS NOT URGENT</strong></p> <p>            The respondent’s argument was that this matter is not urgent because he advised the applicant on or about the 15th of December 2017 that he was not willing to release the said assets but the applicant took about 15 days without bringing this application. He attacked the certificate of urgency in that it did not disclose what the applicant was doing all along, that is it failed to disclose the reasons for the delay. For this contention the respondent referred the court to the case of <em>Kuvarega</em> v <em>Registrar General and Another</em> 1998 (1) ZLR 188 (H) at 193 where chatikobo J Said-</p> <p>         “What constitutes urgency is not only the imminent arrival of the day of reckoning; a           matter is urgent, if at the time the need to act arises, the matter cannot wait. Urgency            which stems from a deliberate or careless abstention from action until the dead-line draws         near is not the type of urgency contemplated by the rules. It necessarily follows that the      certificate of urgency or the supporting affidavit must always contain an explanation of           the non-timeous action if there has been any delay.”</p> <p>            See also <em>Document Support Centre</em> v <em>Mapuvire</em> HH-117-06.</p> <p>            <em>In casu</em> the applicant disputed the assertions made by the respondent. It argued that it first of all advised the respondent to return the assets. When the respondent refused to release the assets it lodged a report with the police. It was only three days after the Prosecutor General declined to prosecute the matter that it lodged this application. Indeed I had sight of both the certificate of urgency and the founding affidavit. It is not true that the urgency in this matter was self –created because the papers clearly showed that the applicant firstly requested the respondent to return the assets. When he refused a police report was made. The matter was referred to court, and the Prosecutor –General then declined to prosecute. Only then did the applicant lodged this application. In my view, this matter is urgent and the second point <em>in limine </em>is dismissed.</p> <p><strong>LIS ALIBI PENDENS</strong></p> <p>            The respondent submitted that he instituted a claim with the Ministry of Labour and Social Welfare in terms of s 93 of the Labour Act. The subject matter before the Labour Officer is a determination of his benefits including the car. This is the same claim which the applicant has brought to this Honourable Court. Hence he wants this claim to be dismissed.</p> <p>            In my view the matter before the Labour Officer is about the respondent’s benefits and arrear salaries. The matter before this court is one of <em>rei vindicatio</em>. These are two different matters. The claim cannot be dismissed on the basis of <em>lis alibi pendens</em> because the claims are different. This point is again dismissed.</p> <p><strong>JURISDICTION OF THE HIGH COURT</strong></p> <p>            The long and short of the respondent’s submission was that the present matter relates to benefits which he is entitled to on the termination of his contract of employment hence the Labour Court has exclusive jurisdiction over this matter. In light of the above this court does not have jurisdiction to deal with the present matter hence the matter ought to be dismissed with costs. The respondent said the High Court declined jurisdiction in the case of <em>Telone (Private) Limited</em> v <em>Edwin Matinyarare</em> HH-140-13.</p> <p>            In opposition to the submissions the applicant referred the court to the case of <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited supra</em> at pages 5-7 where the Supreme Court had occasion to deal with a similar issue. On p 7 of the cyclostyled judgment the Supreme Court in the above matter said-</p> <p>       “As submitted on behalf of the respondent, the right of an individual to approach the High     Court seeking relief other than that specifically set out in s 89 (1) (a) of the Act, has not been abrogated. Nothing in s 89(6) takes away the right of an employer or employee to seek civil relief based on the application of pure principles of civil law, except in respect        of those applications and appeals that are specifically provided for in the Labour Act. Nor            is there contained in s 89 any provision expressly authorizing the Labour Court to deal with an application, such as in the instant case, for the common law remedy of <em>rei             vindicatio</em>. Such applications fall squarely within the jurisdiction of the High Court.”</p> <p>            I cannot do any better other than to hold that this court has jurisdiction to hear this matter. While the High Court declined jurisdiction in the case of <em>Telone (Private) Limited</em> v <em>Edwin Matinyarare supra</em>, in my view this judgment is persuasive but not as binding on me as the Supreme Court one. See also <em>Surface Investments Private Limited</em> v <em>Maurice Chinyani</em> HH-295-14;  <em>Zimbabwe Broadcasting Holdings</em> v <em>Gono</em> ZLR 2010 (1) ZLR 8, <em>Zimbabwe Educational Scientific Social And Cultural Workers Union</em> v <em>Claud Kaharo</em> HH-222-2011 and <em>Gloria Rumbidzai Mkombachoto</em> v <em>Commercial Bank of Zimbabwe Limited and The Registrar of Deeds</em> HH-10-2002.</p> <p><strong>AD MERITS</strong></p> <p>            The application before me is a <em>rei vindicatio</em> action brought by the applicant against the respondent. I will therefore deal with the matter without regard to what is happening at the Labour Court. In dealing with the matter I am mindful of the fact that an applicant seeking to rely on the <em>rei vindicatio</em> must prove the following-</p> <ol> <li>That he is the owner of the property- <em>Jolly Shannon and Anor</em> 1998 (1) ZLR 78;</li> <li>That at the commencement of the action, the thing to be vindicated was still in existence and the respondent was in possession of the property- <em>Masuli</em> v <em>Jera</em> HH-67-07, and</li> <li>That the respondent’s possession is without his consent-<em>Stanbic Finance Zimbabwe</em> v <em>Chivhunga </em>1999 (1) ZLR 262.</li> </ol> <p>            It is trite law that the owner may claim his property wherever, from whoever is holding it. It is inherent in the nature of ownership that possession of the rei should normally be with the owner and it follows that no other person may withhold it from the owner unless he is vested with some right enforceable against the owner. Such as right of retention or contractual right. The owner need only to prove that he is the owner and that the respondent is in possession without his or her consent. See <em>Silvertondale (Pvt) Ltd</em> 1999 (2) SA 986.</p> <p><em>In casu</em> the respondent contented that he was supposed to purchase the vehicle and the other gadgets. Yet it is common cause that the property belongs to the applicant. In my view the respondent failed to prove any right or entitlement to the property in question. He therefore must return it since he has no basis to continue holding onto the vehicle and the other gadgets. In the result the applicant has managed to prove its case. This is the point that was well articulated by the Supreme Court in the cases of <em>Joram Nyahora</em> v <em>CFI Holdings Private Limited and Tenda</em>i <em>Savanhu </em>v <em>Hwange Colliery Company supra</em>. I will therefore grant the following order-</p> <p><strong>TERMS OF ORDER MADE</strong></p> <p><strong>FINAL ORDER SOUGHT</strong></p> <p>That you show cause to this Honourable Court why a final order should not be made in the following terms:</p> <ol> <li>The Respondent be and is hereby ordered to surrender possession of and to return to the Applicant:</li> </ol> <ul> <li>A motor vehicle namely a Toyota Hilux Double Cab, Registration Number AAE 7098,</li> <li>HP 450 laptop,</li> <li>Samsung Galaxy S5,</li> <li>Samsung Tablet 4</li> </ul> <p>            upon service of this order, failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorized to take all necessary steps to recover the said motor vehicle from          the Respondent or any person whomsoever is in possession thereof and wherever the         motor vehicle may be situate and return the same to the Applicant.</p> <ol> <li>The Respondent should pay the costs of suit on an attorney client scale.</li> </ol> <p><strong>INTERIM RELIEF </strong></p> <p>Pending confirmation or discharge of this provisional order, Applicant is granted the following relief:</p> <ol> <li>The Respondent be and is hereby ordered to surrender and return</li> </ol> <ul> <li>A motor vehicle namely a Toyota Hilux Double Cab, Registration Number AAE 7098</li> <li>HP 450 laptop</li> <li>Samsung Galaxy S5</li> <li>Samsung Tablet 4</li> </ul> <p>            to the Applicant’s premises being Chitungwiza Municipality Head Office where it shall    be kept/stored by the Applicant pending the return day.</p> <ol> <li>In the event of the Respondent failing to comply with the terms of paragraph 1 of this order, the Sheriff or his lawful deputy be and is hereby directed and authorized to take any and all necessary steps to recover the said motor vehicle, HP 450 laptop, Samsung Galaxy S5 and Samsung Tablet from the Respondent or any person whoever is in possession thereof and return them to the Applicant for the purposes of compliance with paragraph 1 of this order.</li> </ol> <p><strong>SERVICE OF THE ORDER</strong></p> <p>A copy of this order be served upon the respondent by the applicant’s legal practitioners.</p> <p> </p> <p> </p> <p><em>Kantor &amp; Immerman</em>, applicant’s legal practitioners</p> <p><em>B Matanga IP Attorneys</em>, respondent’s legal practitioners</p> <p> </p> <p>           </p> <p> </p> <p> </p> <p>    </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/93/2018-zwhhc-93.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=26841">2018-zwhhc-93.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/harare-high-court/2018/93/2018-zwhhc-93.pdf" type="application/pdf; length=138008">2018-zwhhc-93.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/contract-employment-0">Contract (EMPLOYMENT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urban-council-employees">urban council employees</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/high-court">HIGH COURT</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/jurisdiction-high-court">Jurisdiction (HIGH COURT)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/powers-high-court">Powers (HIGH COURT)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/practice-and-procedure">PRACTICE AND PROCEDURE</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/application-practice-and-procedure">Application (PRACTICE AND PROCEDURE)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/response-application">response to (Application)</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/urgent-see-practice-and-procedure-urgent-application">urgent See PRACTICE AND PROCEDURE (Urgent application)</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/property-and-real-rights">PROPERTY AND REAL RIGHTS</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/ownership">Ownership</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/actio-rei-vindication">actio rei vindication</a></li></ul></span><div class="field field-name-field-cases-considered field-type-node-reference field-label-above"><div class="field-label">Cases considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/judgment/supreme-court-zimbabwe/2014/81">Nyahora v CFI Holdings (Pvt) Ltd (SC 276/13) [2014] ZWSC 81 (22 October 2014);</a></div><div class="field-item odd"><a href="/zw/judgment/harare-high-court/2014/295">Surface Investments (Pvt) Ltd v Chinyani (HC 13745/12) [2014] ZWHHC 295 (02 June 2014);</a></div><div class="field-item even"><a href="/zw/judgment/harare-high-court/2006/117">Document Support Centre (Private) Limited v Mapuvire (HC 6314/06) [2006] ZWHHC 117 (30 October 2006);</a></div></div></div> Mon, 21 May 2018 13:25:13 +0000 admin 8841 at https://old.zimlii.org Matawu v Minister of Local Government, public works and national housing (HB 68-18, HC 1380/16) [2018] ZWBHC 68 (15 March 2018); https://old.zimlii.org/zw/judgment/bulawayo-high-court/2018/68 <div class="field field-name-body field-type-text-with-summary field-label-hidden"><div class="field-items"><div class="field-item even"><p>DANIEL MATAWU</p> <p><strong>versus</strong></p> <p>MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS</p> <p>AND NATIONAL HOUSING</p> <p>and</p> <p>CITY OF GWERU</p> <p>and</p> <p>T. MHANGAMI</p> <p>and</p> <p>C PARENYI</p> <p>and</p> <p>M CHOGA</p> <p> </p> <p> </p> <p>HIGH COURT OF ZIMBABWE</p> <p>MATHONSI J</p> <p>BULAWAYO 7 MARCH 2018 AND 15 MARCH 2018</p> <p> </p> <p> </p> <p><strong>Opposed Application</strong></p> <p> </p> <p><em>R Chidawanyika</em> with <em>R Ndlovu</em> for the applicant</p> <p><em>M Jaravani</em> for the respondents</p> <p> </p> <p> </p> <p>            <strong>MATHONSI J:</strong>          The applicant is the town clerk for the City of Gweru who was suspended from office by the third respondent in his capacity as the chairperson of a three member commission appointed by the first respondent to run the affairs of the City of Gweru on 15 January 2016 and had an array of misconduct charges preferred against him.  Disciplinary proceedings were commenced before a disciplinary committee put in place by the commission.  He has brought this application before this court seeking a declaratur <em>inter alia</em> that the appointment of a commission and the extension of its terms of office beyond the period of its three months life span was a nullity and that administrative actions taken by the commission including the applicant’s suspension and the disciplinary proceedings set in motion were also a nullity.</p> <p>            Under normal circumstances the City of Gweru is run by a full complement of eighteen elected councilors representing wards from where they are elected.  For some reason, the first respondent took the unusual decision to suspend all the councilors on 12 August 2015 triggering protracted litigation which played out in this court and when this court finally reversed the suspensions of the councilors by judgment delivered on 22 February 2016 in HC 2371/15 the first respondent escalated the dispute taking the matter on appeal to the Supreme Court in SC 148/16.  Meanwhile the City of Gweru was left with no council to run its affairs although two councilors were later brought back to the fold.  That development was unhelpful as the two obviously did not form a quorum.</p> <p>            By letter dated 14 August 2015, the first respondent appointed the third, fourth and fifth respondents as a caretaker commission to run the affairs of the City.  The letter reads:</p> <p>            “RE: APPOINTMENT OF CARETAKERS FOR CITY OF GWERU</p> <p>Reference is made to the afore-cited subjected (<em>sic).</em>  Following suspension of all the councilors for the City (of) Gweru on 12 August 2015 I found it expedient in terms of section 80 (1) of the Urban Councils Act [Chapter 29:15] to put in place necessary administrative arrangements for the purpose of ensuring that the operations of council continue.  I therefore appoint you as caretakers for the Gweru City Council and Mr T Mhangami shall be the Chairperson.  As caretaker, you shall exercise all the functions of the council provided that you shall not without approval of the Minister exercise any power conferred on the council to levy rates or taxes or by the council to fix any new charge.  You shall hold the office until there are councilors in place.   All the expenses pertaining to your travel, subsistence, allowances and work shall be met by Gweru City Council.  You are advised to make use of the resident provincial skills and expertise especially in areas of Health, Water and Sanitation, Environmental Management and any other matter you deem necessary as council.</p> <p> </p> <p>            Hon S. Kasukuwere [M.P]</p> <p>            Minister of Local Government,</p> <p>            Public Works and National Housing.”</p> <p>            (The underlining is mine)</p> <p> </p> <p>            The assumption of office by the caretaker commission must have commenced from a wrong footing because surely such a commission could not have a blank cheque, as it were, to “hold office until there are councilors in place” as that was an indeterminable period.  It actually explains the glaring mistakes which both the Minister and the committee later made having proceeded from a wrong premise altogether right from the beginning.  I say so because section 80 in terms of which the Minister appointed the commission makes it clear that there are limitations to the term of office of caretakers so appointed.</p> <p>            In terms of section 80:</p> <p>            “80      Minister may appoint caretakers to act as council</p> <ol> <li>If at anytime—</li> </ol> <ul> <li>there are no elected councilors for a council area; or</li> <li>all the elected councilors for a council area have been suspended or imprisoned or are otherwise unable to exercise all or some of their functions as councilors;</li> </ul> <p>the Minister may appoint not more than three persons as caretakers, whether or not such persons are qualified through residence or ownership of property to become councilors, to act as the council in accordance with this section.</p> <ol> <li> </li> <li>A caretaker appointed in terms of subsection (1) shall hold office during the pleasure of the Minister, but his or her office shall terminate—</li> </ol> <ul> <li>as soon as there are any councilors for the council area who are able to exercise all their functions as councilors; or</li> <li>ninety days after the date of his or her appointment; whichever occurs sooner.</li> </ul> <p>Provided that if the period of ninety days expires within three months before the date of the next succeeding general election, the caretaker shall continue to hold office until such general election.”</p> <p> </p> <p>            To the extent that the caretakers were appointed on 14 August 2015 and no general election was due until later in 2018 the term of office of the caretakers expired, by peremptory statutory necessity, at the end of ninety days from that date which is 13 November 2015.  It is common cause that when the ninety days expired the Minister remained silent and so were the caretakers.  They continued in office as if nothing had happened.</p> <p>            It was during the time that they held office illegally that the applicant says he was suspended from office of town clerk by letter written by the third respondent on 15 January 2016.  The third respondent wrote the suspension letter in his capacity as “Commission/Caretaker Council Chairman,” acting in terms of section 139 (3) of the Urban Councils Act.  He complained about management failures in supervising projects among other issues.  On 26 January 2016 the third respondent struck again, this time formulating a host of misconduct charges running into ten pages against the applicant in a letter addressed to him on that date.   At the same time he wrote another letter to the applicant inviting him to attend a disciplinary hearing on 3 February 2016 before a four member disciplinary committee chaired by Moffat Ndlovu. </p> <p>            The applicant says that after a false start, the disciplinary hearing finally got underway on 25 April 2016 at which he raised the preliminary point that the caretaker commission had no lawful mandate to hold office at the time they purported to suspend him and to put in place a disciplinary committee to try him of misconduct charges.  Not only was his suspension a nullity, so were the charges preferred by an illegal commission.  The applicant says that after taking the preliminary submissions the disciplinary committee adjourned until 27 April 2016 to consider the submissions only to return on that date with a letter written to the caretaker commission by the first respondent on 16 March 2016 to wit:</p> <p>            “RE: AFFIRMATION OF CARETAKERS FOR GWERU CITY COUNCIL</p> <p> </p> <p>Reference is made to your appointment letters dated 14 August 2015.  Please note that there is currently no functional council in place for Gweru City Council.  In light of this your services as caretakers are still required until there is a fully functional council in place.  This letter further serves as a confirmation of your continuing status as caretakers for Gweru City Council.</p> <p> </p> <p>            Thank you</p> <p>            Hon S Kasukuwere [M.P]</p> <p>            Minister of Local Government, Public</p> <p>            Works and national Housing.”</p> <p> </p> <p>            If ever there was an exercise in futility, this takes the honours.  The Minister appeared to realize for the first time more than four months after the caretaker commission’s tenure had expired that there was need to legitimize their continued stay in office.  Even as it dawned to him that the caretakers could not hold office indefinitely the prescribed solution raised more questions than answers.  If the letter of 16 March 2016 was written upon a realization that the commission’s tenure had expired after ninety days of its assumption of duty, what was to happen to the period of more than four months during which it held office before the term was extended or made to continue?  Could the letter clothe the commission with legality in retrospect?  What then would become of the administrative actions taken by the commission subsequent to the expiry of its term and prior to the magical letter of 16 March 2016.  That letter left the commission not only <em>in limbo</em> but very high and dry.  It was no solution at all.</p> <p>            The applicant would have none of it.  He stated that there is nothing in the law which allows a caretaker commission to operate outside the maximum period of ninety days prescribed by section 80 (3) of the Act.  By equal measure there is nothing in the law empowering the Minister to extend the life-span of a caretaker commission which has run its course.  Worse still to renew its life four months after it expired could not be done.  Apart from that the caretakers could not charge him on the basis of an audit report compiled for the Minister because by doing so they purported to exercise power which they did not have.  As such his constitutional rights enshrined in sections 56 (b), 65, 68 and 69 are being violated.</p> <p>            The application is opposed by all the respondents. In his opposing affidavit sworn to on behalf of the first respondent George Sifihlapi Mlilo, the Permanent Secretary in the Ministry stated that the “re-appointment” of the caretakers was appropriate in the circumstances in order to fill a gap left by the suspended councilors.  This is because the only two councilors available did not constitute a quorum.  The suspension of the applicant was “a valid act.”  I must say that no attempt is made by the first respondent to point to any law by which such a “reappointment” is permitted.</p> <p>            The rest of the respondents also opposed the application on the basis of necessity.  The caretakers continued to run the affairs of council because there were no adequate councilors to do so.  The third respondent also took the view that the application raises issues of a labour nature.  For that reason this court’s jurisdiction is specifically ousted by section 89 (6) of the Labour Act [Chapter 28:01] which allows only the Labour Court to deal with such matters. I should eliminate that argument at once because it is glaringly lacking in merit.</p> <p>            There can be no doubt that what the applicant seeks is a declaratur.  Only this court has jurisdiction in terms of section 14 of the High Court Act [Chapter 7:06] to issue a declaratur in its discretion.  The section provides that this court may, at the instance of an interested party inquire into and determine any existing, future or contingency right or obligation. The Labour Court does not have such jurisdiction.  In any event, section 4 (1) of the Administrative Justice Act [Chapter 10:28] allows a party who is aggrieved by the failure of an administrative body to act lawfully, reasonably and in a fair manner to seek recourse in the High Court.  Therefore this court’s jurisdiction cannot be said to be ousted in the circumstances.</p> <p>            The issues to be decided in this matter are fairly straight forward.  They are whether the Minister is still entitled to appoint a caretaker commission to run the affairs of a municipality.  If he or she is, whether once the term of office of such commission has expired, the Minister may extend its term for an indefinite period.  If the answers to those two questions are in the negative, whether the applicant’s suspension from the post of town clerk by the chairperson of the caretaker commission was valid and, by extension, whether the institution of disciplinary proceedings against the applicant by the caretaker commission was valid in the circumstances.</p> <p>            Mr <em>Chidawanyika</em> for the applicant submitted that for the first respondent to appoint a caretaker council to manage the affairs of the second respondent he can only do so if there is a law empowering him to. I agree.  This derives from the principle that in any constitutional democracy, those who exercise public power are constrained to exercise only those powers and to perform only those functions conferred upon them by the law.  That is what the rule of law is all about.  A public official cannot be allowed to act on a whim or to wield power which he or she does not have and then make appointments derived from nowhere.  It would be illegal and completely unacceptable.  See <em>Masetlha</em> v <em>President of the Republic of South Africa and Another</em> 2008 (1) SA 566.</p> <p>            <em>Mr Chidawanyika</em> submitted further that in terms of the 2013 constitution there is no longer any room for the appointment of caretaker councils by the Minister responsible for local authorities.  For that reason the first respondent had no power to appoint the caretaker commission in the first place especially as section 274 of the constitution envinces only elected people running the affairs of local authorities.  I have no doubt that the spirit and letter of the constitution is that elected councilors, and other officials must run councils as opposed to the imposition of individuals to superintend over councils which tends to take away the prerogative of citizens to elect those of their choosing to run their affairs.</p> <p>            However there is nothing in the constitution, in particular chapter 14 thereof dealing with Provincial and Local Government, which renders section 80 of the Urban Councils Act unconstitutional. I am mindful as well of the fact that section 278 (2) of the Constitution permits the appointment of an independent tribunal to exercise the function of removing from office mayors, chairpersons and councilors on the grounds of inability to perform the functions of their office, gross incompetence, gross misconduct, conviction of an offence involving dishonesty or willful violation of the law.  If councilors can be removed from office at any time on those grounds, surely it was anticipated that there may come a time when councilors are unable to run the affairs of the local authority when removal has dissipated the quorum.</p> <p>            It is in that regard that section 80 of the Act sets in to allow for the appointment by the Minister of caretakers with a very limited life-span.  The law giver must have envisaged that scenario as occurred in this particular case but because the constitution is the cornerstone, the Minister’s appointing authority is restricted to putting in place caretakers to endure for only ninety days.  I therefore reject Mr <em>Chidawanyika</em>’s argument that such appointment is unconstitutional.</p> <p>            What then is the implication of the ninety days tenure on the activities of the caretaker commission?  Mr <em>Musika</em> for the first respondent did not attempt to dispute that the Minister could only put in place caretakers for ninety days.  Instead he sought to justify the continued existence of the caretaker commission beyond the statutory ninety days by submitting that it was borne out of necessity.  <em>Mr Jaravani</em> took the point further by arguing on the basis of public policy that if this court were to declare the activities of the caretaker council beyond ninety days illegal, that would open flood gates in which more people affected by the decisions taken by the caretakers after ninety days may come forward to litigate against the City of Gweru.  He added that the decision was taken by a hybrid council consisting of two elected councilors and three caretakers.</p> <p>            Not that the involvement of the two elected councilors would make any difference to the legality of those decisions.  I have said that the full council comprises of eighteen elected councilors.  In terms of section 84 (2) (b) of the Act all questions coming or arising before a meeting are decided by a resolution passed by a majority of votes cast.  Section 85 provides that one-third of the total membership of a council, together with one other councilor, shall form a quorum at a meeting of the council.  No matter how one wants to play with mathematics two councilors cannot constitute a quorum.  I am not sure whether it is competent to mix elected councilors with caretakers.  Even if it was the five of them would still not form a quorum and therefore the decision taken by such an assemblage cannot be valid.</p> <p>            But then all that is purely academic because the validity of decisions and actions taken by the caretaker commission is predicated upon its being lawfully in office.  If the commission was illegally operating it could not possibly make valid decisions.  In my view it is not for nothing that the Minister is empowered to constitute a caretaker commission to hold office for a limited period of ninety days.  In fact that provision in section 80 of the Act is of peremptory application.</p> <p>            By clear and quite unambiguous language the law giver allowed for a caretaker commission of ninety days duration.  The first respondent ignored that provision completely even in his letter of appointment when he appointed the caretakers to hold office until there are councilors in place.  In doing so he was acting outside the appointing powers conferred upon him by the enabling section 80.  Whatever terms of appointment he cobbled together for the commission they could only be valid to the extent that they fell within the confines of the Act.  Therefore the moment the ninety day period expired the commission ceased to hold office lawfully.  When it purported to suspend the applicant and to discipline him from 16 January 2016 the commission was engaging in a very futile exercise because it possessed no such authority.</p> <p>            In <em>Muchakata</em> v <em>Netherburn Mine</em> 1996 (1) ZLR 153 (S) at 157 B-C KORSAH JA referred to the seminal remarks of LORD DENNING MR when he said:</p> <p>“If the order was <em>void ab initio</em> it was void at all times and for all purposes.  It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.  As LORD DENNING MR so exquisitely put it in <em>Mac Foy</em> v <em>United Africa Co Ltd</em> [1961] 3 All ER 1169 at 1172I:</p> <p>‘If an act is void, then it is in law a nullity.  It is not only bad, but incurably bad --.  And every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.’”</p> <p> </p> <p>            Once the mandatory period expired the commission was, as I have said, an unlawful one.  The suspension made by an unlawful organization was sitting on nothing.  It was also a nullity and so was the appointment of a disciplinary committee to try the applicant.</p> <p>            Could the belated attempt at resuscitation by the first respondent by letter of 16 March 2016 change anything?  I do not think so.  In the first place there is nowhere in the Act where the first respondent is imbued with power to extend the life-span of a caretaker commission whose term has expired.  Secondly he could not purport to extend the term several months after it ended.  At best he could have tried to reappoint them but then there is no provision for reappointment either, in as much as there is no lawful means by which a term can be extended.</p> <p>            That was the reasoning of the Supreme Court in <em>City of Harare</em> v <em>Zvobgo</em> 2009 (1) ZLR 218 (S), a case decided when the Minister still had power to reappoint a commission whose term had expired, by virtue of the then section 80 (5) of the Act which has since been repealed and is no longer part of our law, the court ruled at 228 B –C that the Minister could not lawfully reappoint a commission whose legal tenure has expired as a way of avoiding the holding of elections.  The court also ruled that a commission that has exhausted its legal tenure cannot appoint or constitute a valid committee.  It is that principle which invalidates even the disciplinary proceedings before the committee appointed by the commission in the present matter.  See also <em>Stevenson</em> v <em>Minister of Local Government and Others</em> 2002 (1) ZLR 498 (S); <em>Zvobgo</em> v <em>City of Harare and another</em> 2005 (2) ZLR 164 (H).</p> <p>            I therefore come to the inescapable conclusion that the suspension was invalid.  I am not persuaded by Mr <em>Jaravani</em>’s argument that public policy demands that the decisions taken by the caretaker commission after it had exhausted its legal tenure should be upheld to save the Municipality from a floodgate of litigation.  Surely as a court of law, this court cannot be expected to turn a blind eye at a glaring illegality in order to cover up for those that either did not bother to check the law before acting or deliberately ignored the law and operated outside it.  This court cannot legitimize illegal activity for any reason including protecting a municipality that has been forced into an invidious position by the unlawful acts of the first respondent.  Indeed there can be no public policy considerations favouring illegality.</p> <p>            In the result, it is ordered that:</p> <p>1.         It is hereby declared that the term of office of the caretaker commission appointed by the first respondent to run the affairs of the second respondent expired ninety days from 14 August 2015, the date of its appointment, and that legal tenure could not be lawfully extended by the first respondent.</p> <p>2.         The suspension of the applicant from the office of town clerk by the third respondent by letter dated 15 January 2016 and the subsequent disciplinary action taken, including charging the applicant with acts of misconduct and the appointment of a tribunal to try the applicant, were all a nullity and of no legal effect.</p> <p>3.         The disciplinary proceedings presided over by a disciplinary tribunal set up by the 3rd, 4th and 5th respondents to hear the matter against the applicant are hereby set aside.</p> <p>4.         The 1st and 2nd respondents shall bear the costs of this application jointly and severally the one paying the other to be absolved.</p> <p> </p> <p><em>Chitere Chidawanyika and Partners</em>, applicant’s legal practitioners</p> <p><em>Civil Division, Attorney General’s Office</em>, 1st respondent’s legal practitioners</p> <p><em>Messrs Tawona &amp; Jaravani Attorneys</em>, 2nd -5th respondents’ legal practitioners</p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> <p> </p> </div></div></div><div class="field field-name-field-download field-type-file field-label-above"><div class="field-label">Download:&nbsp;</div><div class="field-items"><div class="field-item even"><span class="file"><img class="file-icon" alt="File" title="application/vnd.openxmlformats-officedocument.wordprocessingml.document" src="/modules/file/icons/x-office-document.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/68/2018-zwbhc-68.docx" type="application/vnd.openxmlformats-officedocument.wordprocessingml.document; length=32530">2018-zwbhc-68.docx</a></span></div><div class="field-item odd"><span class="file"><img class="file-icon" alt="PDF icon" title="application/pdf" src="/modules/file/icons/application-pdf.png" /> <a href="https://old.zimlii.org/zw/judgment/files/bulawayo-high-court/2018/68/2018-zwbhc-68.pdf" type="application/pdf; length=198135">2018-zwbhc-68.pdf</a></span></div></div></div><span class="vocabulary field field-name-field-flynote-sync-local field-type-taxonomy-term-reference field-label-above"><h2 class="field-label">ZimLII Flynote:&nbsp;</h2><ul class="vocabulary-list"><li class="vocabulary-links field-item even"><a href="/tags-local/employment">EMPLOYMENT</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/disciplinary-proceedings">Disciplinary proceedings</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/dismissal">dismissal</a></li><li class="vocabulary-links field-item odd"><a href="/tags-local/employee">Employee</a></li><li class="vocabulary-links field-item even"><a href="/tags-local/urban-council-employees">urban council employees</a></li></ul></span><div class="field field-name-field-legislation-considered field-type-node-reference field-label-above"><div class="field-label">Legislation considered:&nbsp;</div><div class="field-items"><div class="field-item even"><a href="/zw/legislation/act/2001/222001">Urban Councils Act, 2015 [Chapter 29:15]</a></div><div class="field-item odd"><a href="/zw/legislation/act/1985/16">The Labour Act [Chapter 28:01]</a></div><div class="field-item even"><a href="/zw/legislation/act/1981/29">High Court Act [Chapter 7:06]</a></div><div class="field-item odd"><a href="/zw/legislation/act/2004/12">Administrative Justice Act [Chapter 10:28]</a></div><div class="field-item even"><a href="/zw/legislation/act/2013/amendment-no-20-constitution-zimbabwe">The Constitution of Zimbabwe Amendment (No. 20) Act, 2013</a></div></div></div> Wed, 09 May 2018 09:17:47 +0000 admin 8777 at https://old.zimlii.org