Kombayi ordered to return council property

THE Bulawayo High Court has ordered suspended Gweru mayor Hamutendi Kombayi to surrender his official car and the mayoral regalia. The provisional order delivered by Justice Martin Makonese on Tuesday follows an urgent chamber application filed by the Gweru City Council aimed at compelling Kombayi to surrender the property.

In court papers, Gweru City Council which is being represented by Jumo Mashoko and Partners is the applicant while Kombayi was cited as the respondent. Hamutendi has 10 days to file a notice of opposition with the registrar of the High Court if he intends to challenge the order. "Pending the confirmation of the provisional order, the respondent be and is ordered to return the applicant's Mazda BT50 vehicle within 12 hours of service of this order," ruled Justice Makonese.

The judge also ordered Kombayi to return the mayoral regalia within the same period. In the event that Kombayi fails to surrender the council property, Justice Makonese authorised the Sheriff of the High Court to seize the vehicle and regalia for purposes of surrendering them to the municipality.

Kombayi, his deputy Artwell Manyorauta and 14 councillors were in August indefinitely suspended 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.

In his founding affidavit, Daniel Matawu, the council's town clerk sought to be granted an order compelling Kombayi to return the keys of his 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.

He said the application was in response to Kombayi's defiance after council wrote several letters to him for him to surrender the car and the mayoral regalia. "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," he said.

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 council's lawyers and Minister Kasukuwere on several occasions wrote to Kombayi demanding that he surrenders the car and the regalia. Matawu said council was worried about the liabilities which were likely to arise from the continuous unofficial use of the car by Kombayi.

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. Justice Nokuthula Moyo last month ordered Minister Kasukuwere to immediately reinstate Kombayi and the councillors.

Her ruling, which was delivered on October 2, was in response to an urgent chamber application filed by 11 councillors who sought an order declaring their suspension null and void. Justice Moyo said section 114 of the Urban Councils 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 the 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.

The councillors, through their lawyers, Chitere Chidawanyika and Partners, accused Minister Kasukuwere of acting outside the law by appointing an independent tribunal to adjudicate their case, arguing that he had no right to exercise powers of Parliament. The councillors' suspension letters come against the backdrop of a two-week audit exercise of the city's books by a government probe team.

According to the letter signed by Minister Kasukuwere, Kombayi and the councillors are not eligible to receive any form of remuneration from council or conduct any council business within or outside council premises during the period of suspension.