Council officials convicted over failure to allocate stand

The High Court has found Rusape Town Council Town Secretary Solomon Gabaza and Housing Director Munetsi Chitongo in contempt of court for failing to allocate a residential stand to a former council employee despite a court order issued nearly seven years ago.

In a ruling handed down by Justice Neville Wamambo, the two officials were sentenced to six months' imprisonment, wholly suspended on condition that they immediately allocate a residential stand to Stephen Razo equivalent in size to the one he previously occupied in Vengere Township, Rusape.

"The first (Gabaza) and second (Chitongo) respondents are responsible for the allocation of residential stands. They stand in a position, practically and at law, to accede to or refuse to adhere to the court order. In this case, they refused to do so and are in contempt of a court order," Justice Wamambo ruled.

The matter arose from an arbitral award issued on September 22, 2017, following the termination of Razo's employment by Rusape Town Council. The arbitrator ordered the local authority to pay Razo US$35,564.65 and provide him with a residential stand of the same size as Stand Number NE 3061 in Vengere Township.

The award was subsequently registered as an order of the High Court under case number HCH 6011/19.

Although the council later settled the monetary component of the award, it failed to allocate the residential stand, prompting Razo to seek a contempt of court order against the council officials.

Gabaza, Chitongo and Rusape Town Council opposed the application, arguing that the stand allocation was not part of the registered court order, that Razo had abandoned his claim to the property and that the order had become unenforceable due to the passage of time.

Justice Wamambo rejected all the objections.

Addressing claims that Razo had abandoned his entitlement to the stand, the judge examined correspondence from January 2025 in which Razo's lawyers acknowledged receipt of the monetary payment and suspended execution proceedings.

"I find nothing, by conduct or otherwise, reflecting that the applicant had abandoned the claim for the stand," the judge said.

The court also dismissed arguments that the order had become outdated, finding that ongoing litigation relating to enforcement had kept the matter alive.

On whether the registered order covered the stand allocation, Justice Wamambo held that the registration of the arbitral award incorporated the entire award and not only the monetary component.

"The order, however, clearly and explicitly confirms the arbitration award," he said. "The arbitral award in this case is extant and was never set aside."

The judge further stated that the High Court had no authority to enforce only selected portions of an arbitral award.

"I say so because the court has no power to cherry-pick clauses of the arbitral award," he said.

The court found that the respondents were fully aware of both the arbitral award and its registration as a court order but deliberately refused to comply with the requirement to allocate the stand.

"I am satisfied, in the circumstances of this case, that the respondents knew of the arbitrator's award and the registration of the arbitral award as an order of court. The respondents actively resisted adhering to the portion of the award relating to the granting of a residential stand," Justice Wamambo said.

The suspended six-month prison sentence will only be avoided if Gabaza and Chitongo immediately comply with the court order by allocating Razo a stand equivalent to the one he previously held.

The court also ordered the respondents to pay legal costs on the higher legal practitioner and client scale.