Court name
Supreme Court of Zimbabwe
Case number
SC 15 of 2003
Civil Appeal 275 of 2002

Mudehwe NO and Another v Dembaremba and Others (75/02) (SC 15 of 2003, Civil Appeal 275 of 2002) [2003] ZWSC 15 (10 June 2003);

Law report citations
Media neutral citation
[2003] ZWSC 15













REPORTABLE
(9)


Judgment
No. SC 15/03


Civil
Appeal No. 275/02








(1)
LAWRENCE DAMBUDZO MUDEHWE NO


(2)
CITY OF MUTARE v





(1) CRISPEN
DEMBAREMBA (2) REVEREND DOCTOR FRED GOMENDO (3)
VIRGINIA CM PINTO (4) KENNETH
JK
SARUCHERA








SUPREME
COURT OF ZIMBABWE


CHIDYAUSIKU
CJ, CHEDA JA & ZIYAMBI JA


HARARE,
MAY 5 & JUNE 11, 2003








J
C Andersen
,
for the appellants





T
Biti
,
for the respondents






CHEDA JA:
The first appellant is the duly elected executive mayor for the City
of Mutare. The second appellant is the City
of Mutare, established
in terms of the Urban Councils Act [
Chapter 29:15]
(“the Act”). The respondents are all councillors of the second
appellant who were elected in 1999.





Following
their election as councillors, the respondents were appointed to
various committees as follows –






1. The first respondent was
appointed chairperson of the Public Works and Town Council Committee;







2. The second respondent was
appointed/was elected chairperson of the Environmental Management
Committee;







3. The third respondent was
elected chairperson of the Finance Committee; and







4. The fourth respondent was
elected chairperson of the Housing, Education and Community Services
Committee.






On 25 August
2001 the first respondent circulated a notice of a meeting to be held
on 30 August 2001. Part of the agenda
of that meeting was to
consider the election of the deputy mayor and review appointments of
standing committees.





The
respondents later learnt that the meeting would also elect new
councillors to sit on standing committees. On 29 August
2001
the respondents filed an urgent court application to stop the
election of councillors to the various committees.






It was later
agreed that the application be set down as an opposed application.
On 24 July 2002 a judgment was handed down
by the High Court in
which an order was made setting aside the appointments to the
standing committees which had been made by the
appellants whilst the
matter was pending.






This appeal is against that
judgment.





The
main issue raised in this appeal concerns the interpretation of ss 92
and 96 of the Act.





The
respondents, having been elected chairpersons of standing committees,
became members of the executive committee of the Council.
The main
question is whether they can be replaced as chairpersons of standing
committees during their tenure of office as councillors.





Section 96(8)
of the Act provides as follows:





“(8) At
every meeting referred to in subsection (1) of section one
hundred and three a council shall which has appointed standing
committees review the work of each standing committee during the
previous year and shall re-appoint such standing committees or
appoint
different standing committees in terms of subsection (1).”





The
respondents’ view, as gathered from the first respondent’s
founding affidavit, is that:





“…
once a person has been appointed
as a member of a standing committee, his membership only ceases after
a general election or when
that particular member ceases to be a
councillor”.





This
view is wrong. It seems this results from a misunderstanding of
s 92(3), which reads:





“(3) A
member of an executive committee shall hold office as such until the
end of his current term of office as mayor or councillor
or
when
he ceases to be chairman of a standing committee

(The emphasis is mine)





The
underlined part of the section shows that even while he is still a
councillor if he ceases to be a chairperson of a standing committee,
for whatever reason, he ceases to be a member of the executive
committee but remains an ordinary councillor.





Section 96(8)
of the Act provides for review of the work of a standing committee in
the previous year. When this is done,
the Council can either
re-appoint the same members to the standing committee or elect new
and different members. Again this means
that those who were on the
committee cease to be members of the standing committee concerned and
revert to positions of ordinary
councillors.





It
is not correct to say that members of standing committees must be
replaced at each such meeting. The same people can be re-appointed.





It
is also incorrect to suggest that membership of a standing committee
only ceases after the general election held for the Council.





There
are therefore three ways in which a councillor ceases to be a member
of a standing committee. These are –






(a) if he has served his full
term and elections of councillors are held (ss 92(3) and
96(7)(a)); or







(b) if for some other reason he
ceases to be a councillor (s 96(7)(b)); or







(c) if, after reviewing the work
of the standing committee, the Council decides to elect different
persons to that standing committee
(s 96(8)).





It
seems that the different views expressed by the appellants' legal
practitioners and the Secretary for Local Government and National
Housing contributed to the confusion as to the correct position.





The
Secretary for Local Government and National Housing was wrong in
advising that once appointed the chairpersons of standing committees
had tenure of office until the next general election, as there is
provision for a different committee to be appointed after a review
of
the work of the current committee in the previous year.





The
other issue raised was that the work of standing committees was not
reviewed, as provided by s 96(8) of the Act. The
court
a quo
decided that some exercise or motion aimed at justifying retention or
re-appointment of the standing committees ought to have been
gone
through before new members were elected to such committees. It
concluded that the appointments to the second appellant’s
standing
committees in August 2001 were premature and irregular and set aside
the appointments.





The
Council Minutes of 30 August 2001 reflect a lengthy discussion
on the question whether the Council could proceed to review
the work
of the standing committees and conduct elections of members to those
committees. The Minutes also show that views were
expressed showing
concern about how the appointment of the town clerk had been handled
by the executive committee, and the fact that
the councillors
expressed displeasure at the work and composition of the standing
committees. According to the Minutes, there was
consensus and the
Council conducted elections of members of various committees.





In
his opposing affidavit, Dr Morgan Chawara, the town clerk, says
that the Council duly proceeded to review the work of the
standing
committees and elections were held and new members elected. This
has not been shown to be untrue.





The
answering affidavit of Ms Pinto, in which she says:





“I,
however, confirm that the second respondent (now the second
appellant) did not review the work of committees but simply proceeded
in appointing newly constituted committees”,





cannot
be taken seriously because the Minutes show that she left the meeting
and elections were eventually conducted in her absence.





On
the other hand, discussions on how the appointment of the town clerk
had been handled and the displeasure expressed by councillors
occurred in her presence.





It
should be noted that the Minutes are a summary of the discussions
held and not a verbatim reflection of everything that was discussed.





Further
to that, this Court is not reviewing how the “review” was carried
out but simply whether there was a review or not.





The
fact that councillors expressed displeasure at the performance of the
committees and decided to appoint new committees points
to a review
of their work having been done.





In
conclusion, the Council made substantial compliance with the
requirements of the Act, in that no matter how the review was carried
out, at least it was carried out.





Following
that review and the displeasure expressed by councillors, new
committees were appointed in accordance with the Act.





Accordingly
the appeal should succeed. The order of this Court is that the
decision of the court
a quo
is set aside and the following order is substituted:





“1. The
application is dismissed with costs.”














CHIDYAUSIKU
CJ: I agree.














ZIYAMBI
JA: I agree.














Mandizha
& Co
, appellants'
legal practitioners


Honey
& Blanckenberg
,
respondents' legal practitioners