News / Regional
Gweru council takes Kombayi to court
24 Oct 2015 at 12:05hrs | Views
GWERU City Council has filed a court application seeking an order compelling suspended mayor Hamutendi Kombayi to surrender his official car and the mayoral regalia.
The application by the council follows the indefinite suspension of Kombayi, his deputy Artwell Manyorauta and 14 councillors by the Minister of Local Government, Public Works and National Housing, Saviour Kasukuwere, on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Gweru City Council, which is being represented by Jumo Mashoko and Partners, is the applicant while Kombayi was cited as the sole respondent.
In his founding affidavit, Daniel Matawu, the council's town clerk said Kombayi should return the official car, a Mazda BT50, the mayoral gown and chains within seven days in the event that the order is granted in council's favour.
"The council set aside a metallic grey Mazda BT50 (registration number ADB 4130) as the vehicle only to be used by the respondent when carrying out council's official business not for personal or social purposes. When the respondent is not executing official duties, the vehicle and the mayoral regalia should at all time, be in the council's custody for the purposes of safekeeping and maintenance which is done at council's expense," said Matawu.
The town clerk said Kombayi had ignored several letters ordering him to surrender the car and the mayoral regalia.
"The respondent was expressly advised by the Minister of Local Government, Public Works and National Housing (Saviour Kasukuwere) that the custody of the car and the regalia was to remain with the council and would only be availed to him when executing official duties. The Minister suspended the respondent and instructed him not to conduct any business of the council within or outside its premises," said the town clerk.
"By virtue of the suspension, the respondent is currently not executing any official council duties and is not, for that reason, entitled to possess or use the vehicle and the mayoral regalia."
According to the court papers, despite his suspension, Kombayi took the council vehicle away and the mayoral regalia are still in his possession.
Matawu said the municipality's lawyers and Kasukuwere had on several occasions wrote to Kombayi demanding that he surrenders the car and the regalia.
"The respondent who is a ceremonial mayor seems to be under the misconception that he is entitled to hold onto the vehicle as part of his conditions of service. In terms of the Urban Councils Act, I'm responsible and accountable for the council's property in my capacity as the town clerk and should anything happen to the car and regalia that the respondent is refusing to surrender, I will be accountable," he said.
Matawu said the council was worried about the liabilities which may arise from the continuous unofficial use of the car by Kombayi
"The council's insurance only covers the car where and when it is being used on council official business only. The council is not covered for any risk which it may befall while being used outside official council business," he said.
The town clerk said although Kombayi was challenging the constitutionality of the tribunal which is supposed to investigate the allegations levelled against him, the fact remains that he was still on suspension and not carrying out any official duties as mayor.
Bulawayo High Court judge Justice Nokuthula Moyo early this month ordered Minister Kasukuwere to immediately reinstate Kombayi and the other councillors.
Justice Moyo's ruling, which was delivered on October 2, followed an urgent chamber application filed by the councillors who sought an order declaring their suspension null and void.
Minister Kasukuwere in August indefinitely suspended Kombayi, his deputy Manyorauta and 14 councillors on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Justice Moyo said section 114 of the Urban Councils Act which the Minister used to suspend the councillors and appointing a tribunal was inconsistent with section 278 of the Constitution.
She said the Constitution is the supreme law of the land and any law or Act which is inconsistent with it has no force or effect.
The judge said section 278 of the Constitution provides for the establishment of an independent tribunal to exercise the function of removing from office mayors, council chairpersons and councillors.
It does not vest any authority to remove councillors in the Minister anymore, neither does it grant the Minister powers to establish or constitute an independent tribunal.
Minister Kasukuwere has indicated that his ministry would challenge Justice Moyo's judgment.
The application by the council follows the indefinite suspension of Kombayi, his deputy Artwell Manyorauta and 14 councillors by the Minister of Local Government, Public Works and National Housing, Saviour Kasukuwere, on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Gweru City Council, which is being represented by Jumo Mashoko and Partners, is the applicant while Kombayi was cited as the sole respondent.
In his founding affidavit, Daniel Matawu, the council's town clerk said Kombayi should return the official car, a Mazda BT50, the mayoral gown and chains within seven days in the event that the order is granted in council's favour.
"The council set aside a metallic grey Mazda BT50 (registration number ADB 4130) as the vehicle only to be used by the respondent when carrying out council's official business not for personal or social purposes. When the respondent is not executing official duties, the vehicle and the mayoral regalia should at all time, be in the council's custody for the purposes of safekeeping and maintenance which is done at council's expense," said Matawu.
The town clerk said Kombayi had ignored several letters ordering him to surrender the car and the mayoral regalia.
"The respondent was expressly advised by the Minister of Local Government, Public Works and National Housing (Saviour Kasukuwere) that the custody of the car and the regalia was to remain with the council and would only be availed to him when executing official duties. The Minister suspended the respondent and instructed him not to conduct any business of the council within or outside its premises," said the town clerk.
"By virtue of the suspension, the respondent is currently not executing any official council duties and is not, for that reason, entitled to possess or use the vehicle and the mayoral regalia."
According to the court papers, despite his suspension, Kombayi took the council vehicle away and the mayoral regalia are still in his possession.
Matawu said the municipality's lawyers and Kasukuwere had on several occasions wrote to Kombayi demanding that he surrenders the car and the regalia.
"The respondent who is a ceremonial mayor seems to be under the misconception that he is entitled to hold onto the vehicle as part of his conditions of service. In terms of the Urban Councils Act, I'm responsible and accountable for the council's property in my capacity as the town clerk and should anything happen to the car and regalia that the respondent is refusing to surrender, I will be accountable," he said.
"The council's insurance only covers the car where and when it is being used on council official business only. The council is not covered for any risk which it may befall while being used outside official council business," he said.
The town clerk said although Kombayi was challenging the constitutionality of the tribunal which is supposed to investigate the allegations levelled against him, the fact remains that he was still on suspension and not carrying out any official duties as mayor.
Bulawayo High Court judge Justice Nokuthula Moyo early this month ordered Minister Kasukuwere to immediately reinstate Kombayi and the other councillors.
Justice Moyo's ruling, which was delivered on October 2, followed an urgent chamber application filed by the councillors who sought an order declaring their suspension null and void.
Minister Kasukuwere in August indefinitely suspended Kombayi, his deputy Manyorauta and 14 councillors on allegations of gross misconduct, incompetence and mismanagement of council funds and affairs.
Justice Moyo said section 114 of the Urban Councils Act which the Minister used to suspend the councillors and appointing a tribunal was inconsistent with section 278 of the Constitution.
She said the Constitution is the supreme law of the land and any law or Act which is inconsistent with it has no force or effect.
The judge said section 278 of the Constitution provides for the establishment of an independent tribunal to exercise the function of removing from office mayors, council chairpersons and councillors.
It does not vest any authority to remove councillors in the Minister anymore, neither does it grant the Minister powers to establish or constitute an independent tribunal.
Minister Kasukuwere has indicated that his ministry would challenge Justice Moyo's judgment.
Source - chronicle
