Suspension of Binga RDC chair nullified

Source: Suspension of Binga RDC chair nullified | Herald (Africa)

Fidelis Munyoro

Chief Court Reporter

The suspension of Binga Rural District Council chairperson Wilson Siampolomba over allegations of gross misconduct and the referral of the matter to a tribunal has been nullified by the High Court on the grounds that the tribunal should have been called within 45 days of the suspension.

 Mr Siampolomba was accused of double-dipping, unprocedural use of the council logo or letterhead, use of a council guest house without paying while conducting non-council business, and unilateral stopping of a scheduled BRDC human resources committee meeting.

He was initially suspended in December 2019 by Local Government and Public Works Minister July Moyo, but that suspension was lifted on January 31 this year. 

The minister suspended Mr Siampolomba again last month on the same charges in terms of the provisions of the Rural District Council Act.  This resulted in Mr Siampolomba approaching the High Court, suing the minister and Attorney-General Advocate Prince Machaya and seeking an order declaring the suspensions on two occasions a nullity. 

In opposing Mr Siampolomba’s application the minister, represented by Mr J Bhuda of civil-division in the AG’s office ,argued that his first suspension lapsed due to circumstances beyond his control because of the failure to get nominations of tribunal members from the relevant statutory bodies.

It was also argued that the second suspension was stopped due to national lockdown measures imposed in the country that prohibited travel. 

 However, the suspension having been lifted, Mr Bhuda told the court that Mr Siampolomba should allow the law to take its course. He also accused Mr Siampolomba of contributing to the delay. 

But in his submission Mr Siampolomba argued that the hearing before the tribunal was supposed to have been conducted within 45 days. The failure to conduct the hearing meant that the suspension lapsed by operation of law while the Minister could not purport to suspend him for the second time on same allegations, which he argued was a legal nullity. 

 Even if the second suspension was recognised at law, Mr Siampolomba argued the 45 period had lapsed, hence his rights to a fair hearing had been infringed.

 After hearing arguments from both parties’ counsel, Justice Sylvia Chirawu-Mugomba found merit in Mr Siampolomba’s argument and granted him the relief he sought.

 She ruled that Mr Siampolomba was correct in his assertion that the Minister failed to act within the expected time frame. “The 45-day period is a statutory provision that one cannot even apply for condonation to depart from,” said Justice Chirawu-Mugomba.

 In her view, as the Minister failed to complete the process as envisaged, he could not have a second bite at the cherry in relation to the same allegations, finding that the second suspension was a nullity. Allowing a second suspension would “result in a return of that excessive power that the legislature sought to remove”, said Justice Chirawu-Mugomba.

To this end, the court barred the Minister from suspending Mr Siampolomba again based on the same allegations.

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