Mashudu Netsianda, Senior Court Reporter
THE High Court has nullified the suspension of Bulawayo Town Clerk, Mr Christopher Dube, by Deputy Mayor Councillor Tinashe Kambarami.
The ruling by Bulawayo High Court judge Justice Thompson Mabhikwa follows an application by Mr Dube challenging his recent suspension. He sought a court order declaring his suspension by Clr Kambarami null and void even though council had lifted the suspension.
Mr Dube was recently violently ejected from his office by Clr Kambarami working closely with Ward Four Clr Silas Chigora as they claimed that they were suspending him from work over a number of allegations including abuse of office.
In papers before the court, Clr Kambarami, in his personal capacity and Bulawayo City Council, were cited as respondents. “It is ordered that the letter of the 11th July 2019, authored by the first respondent (Clr Kambarami purporting to suspend the applicant (Mr Dube) be and is hereby declared ultra vires (done beyond one’s legal power or authority) and consequently null and void together with all actions following therefrom,” ruled Justice Mabhikwa.
He ordered each party to bear its own legal costs. Mr Dube, who was represented by lawyers from Mathonsi Ncube Law Chambers, also wanted the respondents to conform to provisions of the law should they decide to institute disciplinary proceedings against him.
In his founding affidavit, Mr Dube said Clr Kambarami acted unlawfully and unreasonably when he suspended him from office.
“Our country is a constitutional democracy and in terms of the new constitutional dispensation, the right to administrative justice is enshrined in the Justiciable Bill of Rights and every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantially and procedurally fair,” he said.
Mr Dube said the respondents are bound by the provisions of the Administrative Justice Act to act reasonably and in a fair manner in taking administrative action, which may affect the rights, interests or legitimate expectations of any person. “The first respondent (Clr Kambarami) in casu acted in violation of the law making his conduct unlawful and indeed unreasonable,” he said.
Mr Dube said Clr Kambarami purported to arrogate himself mayoral powers when he suspended him. “The fact that the office of the mayor and that of the deputy mayor are created by the same Section 103 of the Urban Councils Act, does not mean that the deputy mayor can usurp the powers of the mayor.
Of course, there are instances when a deputy mayor can lawfully act in the stead of the mayor, but their functions are governed by Section 104 of the Urban Councils Act,” he said.
Mr Dube said it was unreasonable for Clr Kambarami to storm into his office and serve him with an “illegal purported” letter of suspension.
“My constitutional rights were flagrantly violated by first respondent who was acting illegally by taking the law into his own hands and it is for this reason that I have sued him in his personal capacity. He was certainly acting in a frolic of his own and his conduct was not sanctioned by the second respondent (Bulawayo City Council),” said Mr Dube.
He argued that the purported letter of suspension dated 11 July 2019 could not stand.
Mr Dube later opened a criminal case against his assailants under CRB2516A&B/19 and the matter was ruled in favour Clr Kambarami.
Clr Kambarami suspended Mr Dube and, with the help of other councillors, ejected the Town Clerk from his office before locking it and placing a key blocker.
This was despite advice to Clr Kambarami by Chamber Secretary Mrs Sikhangele Zhou that they had not followed procedure in their actions. — @mashnets