via ZLHR: Chombo Saved by Mayor’s Gaffe February 8, 2014
HIGH Court Judge Justice Loice Matanda-Moyo was on Friday 7 February 2014 left with no option but to dismiss human rights lawyer Tawanda Zhuwarara’s urgent chamber application seeking an order to quash a directive issued by Local Government, Public Works and National Housing Minister Hon. Ignatius Chombo to reinstate Dr Tendai Mahachi as Harare City Council (HCC) Town Clerk because the city’s Mayor Bernard Manyenyeni had already complied with Hon. Chombo’s illegal directive ordering the reinstatement of Dr Mahachi.
Justice Matanda-Moyo said it was therefore not possible for the court to order the suspension of Hon. Chombo’s directive when Mayor Manyenyeni had already given effect to the order issued by Hon. Chombo directing the reinstatement of the Town Clerk after he wrote a letter to Dr Mahachi on 3 February 2014 reversing his decision to suspend him and asking him to report for duty with “immediate effect”.
Zhuwarara’s lawyers were not aware that Mayor Manyenyeni had clandestinely agreed to the return of Dr Mahachi to work.
The court could therefore not deal with the matter on the merits on the main point being that Hon. Chombo had acted illegally by ordering the Mayor to reinstate Dr Mahachi.
Zhuwarara bemoaned the misuse of Section 314 of the Urban Councils Act to usurp the independence of councils which is guaranteed by Section 265 (2) (a) of the new Constitution. The human rights lawyer now hopes to get an opportunity to test Section 314 of the Urban Councils Act against the new Constitution.
Zhuwarara had petitioned the High Court seeking an order to quash a directive issued by Hon. Chombo to reinstate Dr Mahachi who was under investigation for refusing to reveal the salaries of the HCC top management.
Dr Mahachi was suspended by Mayor Manyenyeni on Wednesday 29 January 2014 in conformity with the Mayor’s exercise of his prerogative in terms of Section 139 (3) (a) of the Urban Councils Act for allegedly failing to properly discharge his duties after he refused to give effect to a Council resolution to provide the salary and benefits schedule of all Harare City Council senior employees including his own schedule. The suspension, Mayor Manyenyeni said would pave the way to probe Dr Mahachi’s conduct and also launch investigations into the affairs and finances of the HCC.
But Hon. Chombo on 1 February 2014 overturned Dr Mahachi’s suspension on the basis that he was empowered under Section 134 of the Urban Councils Act (Chapter 29:15) to reverse Mayor Manyenyeni’s decision.
Hon. Chombo’s actions infuriated Zhuwarara who protested that such a move was objectionable and that his purported powers in terms of Section 314 of the Urban Councils Act can only be exercised in regards to Council and not Mayoral decisions.
In his urgent chamber application filed on Wednesday 5 February 2014 (Case Number 959/14), the human rights lawyer argued that Hon. Chombo’s directive was premature and a nullity at law since the HCC is yet to make its determination in terms of Section 139 (4) of the Urban Councils Act and only after the process in terms of Section 139 (4) of the Urban Councils Act has been completed does the suspension of Dr Mahachi become a resolution of the Council.
As a rate paying resident of Harare, Zhuwarara asked the High Court to issue an order declaring that Hon. Chombo’s directive ordering the reinstatement of Dr Mahachi as Town Clerk be quashed.
He argued that the return of Dr Mahachi to occupy his position at HCC would hinder investigations into the salary scales of senior employees at Town House at a time when the values of openness and transparency have been given life to by the Constitution.
Zhuwarara accused Hon. Chombo of shielding Dr Mahachi from scrutiny at a time when the HCC is clearly failing in its mandate to the hard pressed residents of Harare. The human rights lawyer said as elected representatives, councilors have oversight over council employees in order to increase fiscal accountability, efficiency and transparency.
The human rights lawyer resorted to litigation after Hon. Chombo disregarded a one-day ultimatum to him by Zhuwarara’s lawyer, Bellinda Chinowawa of Zimbabwe Lawyers for Human Rights (ZLHR) on Tuesday 4 February 2014 asking the Minister to immediately rescind his decision on Dr Mahachi by 14:00 hours on Wednesday 5 February 2014 because it was premature and a nullity at law.
But in his response, Hon. Chombo pleaded for the dismissal of Zhuwarara’s application and maintained that Mahachi’s suspension by Mayor Manyenyeni was neither “rational no lawful and was totally needless.”
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