Court name
Supreme Court of Zimbabwe
Case number
SC 4 of 2009
Civil Appeal 309 of 2005

City of Harare v Zvobgo (309/05) (SC 4 of 2009, Civil Appeal 309 of 2005) [2009] ZWSC 4 (01 April 2009);

Law report citations
Media neutral citation
[2009] ZWSC 4

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.









  1. 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.









  1. 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.









  1. 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









  1. 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