Morrison Mafa v Hwange Local Board & 2 Ors

### Preamble
1
HB 182/25
HCBC 318/25
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MORRISON MAFA

Versus

HWANGE LOCAL BOARD

And

PETERSON NCUBE

And

NDUMISO MDLALOSE

IN THE HIGH COURT OF ZIMBABWE

NDUNA J

BULAWAYO 23 SEPTEMBER 2025 & 30 0CTOBER 2025

Court Application

P. D Sibanda, for the applicant

Advocate M Ndlovu, for the respondents

NDUNA J: At the commencement of the hearing, Mr Ndlovu, appearing for the respondents, raised a point in limine which he contended was dispositive of the matter. The preliminary objection related to the procedural propriety of the applicant’s application and the validity of the documents relied upon.

Mr Ndlovu argued that the applicant’s founding papers were fatally defective as they relied on unsigned and unauthenticated council minutes, contrary to the mandatory requirements of section 88(3) and (4) of the Urban Councils Act [Chapter 29:15]. He submitted that, by law, minutes of a council meeting must be signed and certified by the town clerk or chairman to constitute prima facie proof of what transpired. Since the annexures attached to the applicant’s founding affidavit were not signed, he contended that the application was incompetent and improperly before the court, warranting its dismissal.

In response, Mr Sibanda for the applicant argued that the objection was a mere sideshow intended to delay the matter. He contended that the unsigned minutes did not affect the substance of the dispute, as the facts contained therein namely, the applicant’s election as chairperson and subsequent reassignment were common cause and expressly admitted by the respondents in both their opposing affidavit and heads of argument. Therefore, even if the minutes were expunged, the factual basis of the dispute remained intact, and the application would still stand.

In response, Mr Ndlovu maintained that statutory compliance could not be waived or cured by admission, emphasizing that heads of argument are not pleadings and cannot substitute for properly authenticated documents. He relied on Cargill Zimbabwe v Culvenham (Pvt) Ltd 2006 (1) ZLR 381, Moyo & Ors v Zvoma NO & Anor SC 28/10, and Jackson v Rothmans of Pall Mall Zimbabwe (Pvt) Ltd 1993 (2) ZLR 156 (SC), submitting that the founding affidavit — together with its annexures — forms both the evidence and pleadings, and any defect therein renders the application fatally flawed.

ISSUE FOR DETERMINATION

Whether the applicant’s application is competently before the court in light of the fact that the council minutes relied upon in the founding affidavit are unsigned and unauthenticated, contrary to the mandatory requirements of section 88(3) and (4) of the Urban Councils Act [Chapter 29:15]

Application of the Law

The dispute before this Court turns on whether the minutes relied upon by the applicant which are not signed  may lawfully form part of the record and be used as proof of what transpired at the meeting of the first respondent. The respondents contend that in terms of section 88(3) and (4) of the Urban Councils Act [Chapter 29:15], such minutes are invalid and incapable of conferring evidentiary weight before a court of law. The applicant, on the other hand, argues that even if the minutes are unsigned, they may be expunged without consequence since the facts they record are common cause and have been admitted by the respondents.

Section 88 of the Act provides that:

“ (3) The minutes of a meeting of a council or committee shall, if in order, be confirmed as soon as possible and, when so approved, shall be signed by the chairman of the meeting at which they are confirmed.

(4) A document purporting to be—

(a) the minutes of a meeting of a council or committee and signed as provided in subsection (3); or

(b) a copy of or extract from any minutes referred to in paragraph (a) and certified by the town clerk as correct;

shall, on its production in any court, be prima facie proof of the facts set out therein, and all matters relating to the meeting of which the minutes purport to be the record shall be presumed to have been done and executed with the due formalities until the contrary is proved.”

The Legislature, in enacting these provisions, laid down a clear and mandatory process for the authentication of council minutes. The statute requires that they be both approved and signed, and that only when so signed or certified do they acquire prima facie evidentiary status. The purpose is to safeguard the integrity of municipal records and to prevent reliance on unauthenticated documents in judicial or administrative proceedings. The interpretation of these provisions must be guided by the traditional canons of construction. In Commissioner, South African Revenue Service v Executor, Frith’s Estate 2001 (2) SA 261 (SCA) at 273, the Supreme Court of Appeal held that:

“The primary rule in construction of a statutory provision is (as is well established) to ascertain the intention of the legislator and (as is equally well established) one seeks to achieve this, in the first instance, by giving the words under consideration their ordinary grammatical meaning, unless to do so would lead to an absurdity so glaring that the Legislature could not have contemplated it”.

Applying that rule here, the words “shall be signed” and “shall be prima facie proof” must be afforded their ordinary, imperative sense. The Legislature could not have intended that unsigned minutes which have not been approved or authenticated be treated as equivalent to duly confirmed records of council proceedings.

To interpret section 88(3) and (4) as merely directory would render the signing requirement meaningless and undermine the integrity of official municipal processes. The Court is therefore enjoined to treat these provisions as peremptory, not optional.

This interpretation finds strong support in the judgment of Sibanda v City of Victoria Falls HB 24/24 at page 4 paragraph 14, where it was stated that:-

“An unsigned document cannot be elevated to the status of a council resolution. It stands for nothing.”

That decision is directly on point. It affirms that where a party relies on a resolution or minute not signed or certified in accordance with section 88, such a document is legally ineffectual. The defect is not a matter of form but of substance, going to the root of the document’s authenticity. The statutory presumption of correctness under subsection (4) arises only once the document bears the requisite signature and certification.

The applicant’s argument that the minutes can be expunged from the record or disregarded because the facts they record are admitted cannot withstand scrutiny. Firstly, expunging the unsigned minutes does not cure the procedural defect in the founding affidavit. An application must stand or fall on its founding papers, and the annexures form an integral part of that evidence. Where those annexures are invalid in law, the affidavit itself lacks a proper evidential foundation.

Secondly, the assertion that the respondents’ admissions cure the defect ignores the nature of the requirement imposed by statute. Section 88 does not exist merely to resolve factual disputes; it sets a legal condition precedent to the validity and evidentiary use of council minutes. A party cannot, through consent or concession, waive a statutory requirement that serves a public and institutional purpose. The authentication of minutes is not for the convenience of the parties but for the protection of public administration and record integrity.

Annexures B and D constitute the minutes relied upon by the applicant Annexure B relating to the meeting at which the applicant was elected chairperson, and Annexure D relating to the meeting at which the applicant was removed from that position. It is apparent from the record that Annexure D attached to the founding affidavit and the consolidated document does not contain the full proceedings of the meeting in question. However, the answering affidavit includes a version of Annexure D that purports to contain the complete record of those proceedings.

Notably, in all the affidavits filed of record, none of the annexed minutes are signed or authenticated in accordance with section 88(3) and (4) of the Urban Councils Act [Chapter 29:15]. The applicant thus invites the Court to rely upon documents that are not clothed with the statutory attributes of validity. To do so would require this Court to recognise and act upon documents that fail to meet a mandatory statutory condition, thereby extending legal effect to that which the law expressly prohibits. Accepting such documents would amount to conferring judicial sanction on non-compliance and would be tantamount to disregarding the Legislature’s clear intent that only duly approved and signed minutes may serve as prima facie proof of council proceedings

While the respondents prayed for costs on the higher scale, the Court is not persuaded that this is a proper case for the imposition of punitive costs. The general principle governing such awards is that they are reserved for conduct that is reprehensible or deserving of censure. As articulated by AC Cilliers in The Law of Costs 2nd ed p 66, classified the grounds upon which the court could be justified in awarding the cost as between attorney and client:

(a) Vexatious and frivolous proceedings

(b) Dishonesty of fraud of litigantc) Reckless or malicious proceedings

(d) Litigant’s deplorable attitude towards the court

(e) Other circumstances

In the present matter, none of these aggravating features are present. The applicant’s reliance on unsigned and unauthenticated minutes, while legally misguided, does not demonstrate mala fides, dishonesty, or an abuse of the court process. The issue arose from a procedural misunderstanding regarding the evidentiary effect of unsigned council minutes under section 88 of the Urban Councils Act [Chapter 29:15], rather than from any intention to mislead or obstruct justice.

Accordingly, while the respondents have succeeded on the preliminary point, there exists no justification for punitive costs. The appropriate order is therefore that the applicant shall bear the respondents’ costs on the ordinary scale

DISPOSITION

When section 88(3) and (4) are read purposively and in their ordinary sense, the position of the law is unmistakable only minutes that have been approved, signed, and certified as required acquire evidentiary validity. Therefore this failure renders the application procedurally defective and is accordingly struck off the roll. In the result, it is ordered as follows:

The preliminary point in limine raised on behalf of the respondents is upheld.

Consequently, the applicant’s application is not properly before the Court and is hereby struck off the roll.

The applicant shall pay the respondents’ costs on an ordinary scale

Ncube and Partners, applicant’s legal practitioners

Cheda and Cheda Associates, respondents’ legal practitioners