Willie Nyambi, Claudius Z Nyamhondoro and Owen Charuza v The Minister of Local Government, Rural and Urban Development (Dr I Chombo) and The Chairperson of the Board of Inquiry Committee (J Mutevedzi)

### Preamble
1
HH 324-2012
HC 6660/12
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WILLIE NYAMBI

and

CLAUDIUS Z NYAMHONDORO

and

OWEN CHARUZA

versus

THE MINISTER OF LOCAL GOVERNMENT,

RURAL AND URBAN DEVELOPMENT

(DR I CHOMBO)

and

THE CHAIRPERSON OF THE BOARD OF INQUIRY

COMMITTEE (J MUTEVEDZI)

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 25 June 2012

Urgent Chamber Application

A Muchadehama, with him T  Zhuwarara, for the applicants

I Ndudzo, with him S Zvinavakobvu, for the first respondent

Second respondent in person

ZHOU J:   The three applicants instituted the instant chamber application on an urgent basis seeking in the interim an interdict restraining the respondents from proceeding with an inquiry which commenced on 20 June, 2012, pending the determination of case number HC 3768/12. The matter was initially set down for hearing on 22 June 2012 at 1000 hours. On that day Mr Ndudzo who had just filed opposing papers that same morning advised that he represented only the first respondent although he had filed a notice of opposition stating that he was representing both respondents. For that reason, I directed that the second respondent be served with a notice of set down. The matter was accordingly postponed to today.  Having heard argument, I gave this ex tempore judgment.

The three applicants are councillors in the Municipality of Chinhoyi. The second applicant is the Mayor. The first applicant is the Deputy Mayor. In December 2011 the  applicants were suspended by the first respondent in terms of s 114(1) of the Urban Councils Act [Cap 29:15]. Thereafter the first respondent commissioned an investigation into the conduct of the applicants, which investigation produced a report dated 13 February 2012.  The applicants were not given the report. However, nothing turns on that aspect, as the report was intended for use by the first respondent.

On 3 April 2012 the applicants instituted a court application under case number HC 3768/12, in which they are challenging the lawfulness of their continued suspension. They also ask for reinstatement to their duties as councillors. The first respondent’s opposing papers in that matter were filed on 23 April, 2012. By letters dated 11 June 2012 the first respondent invited the three applicants to attend before a Board of Inquiry on 20 June, 2012.  The second respondent is the Chairman of the Board of Inquiry. The Board of Inquiry was constituted by the first respondent to inquire into the allegations upon which the suspensions referred to above were based. The letters were delivered to the applicants on 15 June 2012.  On 19 June, 2012 the applicants filed the present application. A copy of the application was given to the second respondent by the applicants’ legal practitioner, Mr Zhuwarara on 20 June 2012 at the time of the hearing. There is a dispute as to whether the application was served before or after the proceedings had commenced. It is not necessary for me to determine that dispute, for two reasons. Firstly, the issue is not necessary for the purposes of the relief being sought. Secondly, it would, in any event, not be possible to determine that dispute on the papers.

What is being sought in this application is an interim interdict. The requirements for such relief to be granted are settled. These are:

that the right which is sought to be protected is clear; or

(a) if it is not clear, it is prima facie established, though open to some doubt; and (b) there is a well-grounded apprehension of irreparable harm if interim relief is not granted and the applicant ultimately succeeds in establishing his right;

that the balance of convenience favours the granting of interim relief;  and

the absence of any other satisfactory remedy.  See Econet (Pvt) Ltd v Minister of Information, Posts & Telecommunications 1997(1) ZLR 342(H) at 344G-345B; Watson v Gilson Enterprises & Ors 1997 (2) ZLR 318(H) at 331D-E;  Nyika Investments (Pvt) Ltd v ZIMASCO Holdings (Pvt) Ltd & Ors 2001 (1) ZLR 212(H) at 213G-214B.

Where a clear right is proved, then the applicant for an interim interdict need not show that he or she will suffer irreparable harm if the interdict is not granted. The applicant merely has to show that an injury has been committed or that there is a reasonable apprehension that an injury will be committed. See Nyika Investments (Pvt) Ltd v ZIMASCO Holdings (Pvt) Ltd (supra) at 214B-D.

Section 114 of the Urban Councils Act provides as follows:

“114 	Suspension and dismissal of councillors

Subject to this section, if the Minister has reasonable grounds for suspecting that a councillor—

(a) 	has contravened any provision of the Prevention of Corruption Act [Cap 9:16]; or

(b) 	has contravened section one hundred and seven; section one hundred and eight or section one hundred and nine; or

(c) 	has committed any offence involving dishonesty in connection with the funds or other property of the council; or

(d) 	has been responsible—

(i) 	through serious negligence, for the loss of any funds or property of the council; or

(ii) 	for gross mismanagement of the funds, property or affairs of the council; whether or not the councillor’s responsibility is shared with other councillors or with any employees of the council; or

(e)	 has not relinquished office after his seat became vacant in terms of this Act; the Minister may, by written notice to the councillor and the council concerned, suspend the councillor from exercising all or any of his functions as a councillor in terms of this Act or any other enactment.

Any allowance that is payable to councillors in terms of this Act shall continue to be paid to a councillor who has been suspended in terms of subs (1) for so long as he remains a councillor, unless the Minister, by notice in writing to the council concerned, directs otherwise.

As soon as is practicable after he has suspended a councillor in terms of subs (1), and in any event within forty-five days, the Minister shall cause a thorough investigation to be conducted with all reasonable dispatch to determine whether or not the councillor has been guilty of any act, omission or conduct referred to in that subsection.

(4) 	If, following investigation, the Minister is satisfied that the grounds of suspicion on the basis of which he suspended a councillor in terms of subs (1) have been established as fact, he may, by written notice to the council and the councillor concerned, dismiss the councillor, and the councillor’s seat shall thereupon become vacant.

(5) 	A person who has been dismissed in terms of subs (3) shall be disqualified from nomination or election as a councillor for a period of five years.”

(Section substituted by s 38 of Act 21 of 1997).

It is clear from the wording of subs (4) that the investigation referred to in subs (3) is the process or mechanism by which the grounds of suspicion must be established as a fact if they are to ground a dismissal. The investigation must be conducted within forty-five days.  That requirement was not complied with by the first respondent. In fact, the inquiry being chaired by the second respondent was constituted in an attempt to establish whether the grounds of suspicion upon which the applicants were suspended were proved “as a fact”.  I am not persuaded by the contention by Mr Ndudzo that the investigation pursuant to which the report of 13 April 2012 was produced is the one envisaged by s 114(3) and (4).  The Minister would not have constituted the Board of Inquiry presided over by the second respondent if the guilt of the applicants had already been established. He would have simply acted upon the report in accordance with the provisions of subs (4).

In any event, the period of forty-five days had lapsed when the report was produced on 13 February 2012. I do not accept the submission by the respondents that weekends and public holidays are to be excluded when determining the period of forty-five days.

The authorities show that the words ‘clear’ and ‘prima facie’ in the context of interdicts relate to the degree of proof required to establish the right and should strictly not be used or interpreted to qualify ‘right’ at all. The existence of a right is a matter of substantive law; whether that right is clearly or only prima facie established is a matter of evidence.  See B Prest, Interlocutory Interdicts, p 47; Erasmus, Superior Court Practice, pp E8-6A. The applicants have shown that the provisions of s 114((3) give them the right to be investigated “as soon as is practicable” and, in any event, within forty-five days after being suspended from performing their duties as councillors. That is the right which they seek to enforce through case number HC 3768/12. That right is clearly established. But even if the right was only prima facie established but open to some doubt, there is, in my view, a well-grounded  apprehension of irreparable harm to the applicants if the interim relief is not granted and they ultimately succeed in establishing the right. The respondents proceeded to invite the applicants to attend the inquiry although they were served with the application in case number HC 3768/12. If the relief being sought in this application is not granted and they ultimately succeed in that case then the order in that case will be a brutum fulmen. That is the undesirable consequence which an interim interdict is meant to avoid.

The respondents have already shown that unless they are interdicted by an order of this court they will proceed with the inquiry. According to the second respondent the hearing of evidence in respect of the second applicant was completed albeit no determination has been made yet. If the inquiry is not stopped the cause in case number HC 3768/12 will be defeated in the sense that it would have been overtaken by events.

Regarding the balance of convenience, the court is enjoined to weigh the prejudice to the applicant if the interim interdict is refused against the prejudice to the respondent if it is granted.  Knox D’Arcy Ltd v Jamieson 1996 (4) SA 348(A) at 361D-F; Cambridge Plan AG v Moor 1987 (4) SA 821(D) at 847H-848G; Bamford v Minister of Community Development 1981 (3) SA 1054(C) at 1060E-F. The respondents will not be prejudiced by the granting of the interim interdict. It took the respondents more than six months to institute the impugned inquiry. A temporary stay of the proceedings of the inquiry will not cause any worse delay than has already been experienced. In the circumstances, the balance of convenience favours the granting of the interim relief.

I do not believe that the applicants have an alternative satisfactory remedy to the relief being sought. The submission by Mr Ndudzo that the applicants could challenge the proceedings of the inquiry by review application after they have been completed is not a satisfactory remedy. The issue which is pending in case number HC 3768/12 is whether the respondents are entitled to keep the applicants on suspension and to proceed with the investigation of the allegations against them after the period of forty-five days has lapsed. If the inquiry continues then the determination of that issue becomes an academic exercise.

This court has a general and overriding discretion whether to grant or refuse an application for an interim interdict. That discretion exists even if the applicant has established all the requisites for the interim relief. Francis v Roberts 1972 (2) RLR 238(A) at 248F;  Watson v Gilson Enterprises & Ors (supra) at 331E;  Hix Networking Technologies v System Publishers (Pty) Ltd 1997 (1) SA 391(C) at 399A. The discretion must, of course, be exercised judicially, taking into account the circumstances of the case. Olympic Passenger Service (Pty) Ltd v Ramlagan 1957 (2) SA 382(D) at 383E; Grundling v Beyers 1967 (2) SA 131(W) at 155C.

Taking into account the respective prejudice which the parties would suffer as a consequence of the granting of or refusal to grant the interdict, the balance of convenience, the absence of an alternative adequate remedy, and the applicants’ prospects of success in case number HC 3768/12, I would exercise my discretion in favour of the granting of the interim relief. Accordingly, the provisional order is granted in terms of the amended draft order, in the following terms:

TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

The respondents are interdicted from conducting an inquiry into allegations of misconduct on which the applicants were suspended pending determination of case number HC 3768/12.

The costs of this application shall be paid by the respondents jointly and severally the one paying the other to be absolved.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicants are granted the following relief –

The respondents shall forthwith suspend the inquiry which was commenced against the applicants on 20 June 2012.

SERVICE OF PROVISIONAL ORDER

The applicants’ legal practitioners are hereby granted leave to serve this provisional order on the respondents.

Zimbabwe Lawyers for Human Rights, applicants’ legal practitioners

Mutamangira & Associates, first respondent’s legal practitioners