Kombayi seeks to block ZEC

Fired Gweru mayor Hamutendi Kombayi and former councillor Kenneth Sithole have approached the High Court seeking an order to block the Zimbabwe Electoral Commission (ZEC) from holding by-elections to fill their positions.

Kombayi and Sithole were among the 15 councillors who appeared before an independent tribunal headed by Isaac Muzenda recently facing allegations of gross misconduct, incompetence and mismanagement of council funds and affairs following their suspension in August 2015.

They were subsequently fired by Local Government, Public Works and National Housing Minister, Saviour Kasukuwere, at the recommendation of the tribunal.

Last week, the two filed an urgent chamber application through their lawyers, Gundu and Dube Legal Practitioners, citing Kasukuwere, Gweru City Council, ZEC and the Midlands provincial elections officer as respondents.

They are seeking an interim order barring ZEC and its Midlands provincial elections officer from holding by-elections for wards one and four until the finalisation of an application for review they filed under Case Number HC637/17 in which they are challenging their dismissal.

Hearing of the case has been set for March 27 before Justice Nicholas Mathonsi.

In their applications, Kombayi and Sithole are also seeking an order setting aside their convictions.

They also want an order compelling Kasukuwere to reinstate them without any loss of allowances and benefits.

In his founding affidavit in the urgent chamber application, Kombayi said he stood to suffer irreparable harm if by-elections were to proceed.

"I believe that if the by-elections are allowed to proceed, I will suffer irreparable harm in the event that our pending application for review is rendered a mere academic exercise. If the by-elections are allowed to proceed, third parties who have nothing to do with the present matter or the main matter may be appointed for the positions and they will be no other remedy for us," he said.

He also argued that since the elections were imminent, it was not wise for them to follow the normal application procedures.

"If this application is allowed to follow the normal application procedure, the determination will come after the by-elections have already been conducted and third parties would have been appointed for the positions of councillors for ward one and ward four. In the end, the remedy that we are seeking in this matter will be merely for academic purposes and will not be enforceable," he said.

In their application for review, the two applicants argued that the tribunal erred in convicting them when there was no law that supported the convictions.

"I am of the strong opinion that the conviction is bad at law because the tribunal dismissed me without taking into account and without due consideration of the value and gravity of the matter," he said.

He said the tribunal failed to distinguish between a tour by a council guest and a Movement for Democratic Change (MDC-T) function.

"The tribunal erred on both facts and law in concluding that Morgan Tsvangirai's visit to Gweru City Council and touring was an MDC-T party activity," he said.

The councillors said the decision by Kasukuwere to fire them was misdirected and induced a sense of shock.

The independent tribunal completed its investigations and recommended that Kombayi, Sithole, Charles Chikozho, Tawanda Magidi, Earnest Guduza, Boniface Magara, Gibson Fundira, Catherine Mhondiwa, Nokuthula Mbano, Norman Mhondiwa, Farai Muza and Willard Ndaguta be discharged.

The fired councillors were initially suspended in 2015, before they appealed and won a High Court reprieve, which Kasukuwere defied.

Instead, the Minister appointed a three-member caretaker commission to run council affairs, pending the findings of the tribunal investigating the councillors.