Former Byo Deputy Mayor wins supreme court appeal

...but ruling is of no effect as he was recalled from council by MDC-T

The Supreme Court has reinstated former Ward 3 councillor Tinashe Kambarami as Bulawayo’s Deputy Mayor but the ruling is of no effect as he was recalled by the MDC-T.

Prior to his election as councillor in 2018, the former Deputy Mayor was found guilty of theft.

He was fined USD80 or in default payment 18 days imprisonment.

Noting that the by-laws and the Electoral Act disqualified a convict from holding the position of councillor plaintiffs 1893 Mthwakazi Restoration Movement (MRM) and Nomalanga Dabengwa successfully sued in the High Court sitting as an Electoral Court.

Justice Thompson Mabhikwa delivered the judgement on August 29, 2020 at the Bulawayo High Court:

However, Kambarami appealed his conviction and won the case:

The former deputy mayor moved to appeal the High Court Ruling that removed him from office.

In the latest case, Advocate Silvester Hashiti, assisted by Raymond Moyo of Samp Mlaudzi and
Partners, represented Kambarami in his appeal against Justice Mabhikwa’s judgement while the plaintiff’s were represented by Godfrey Nyoni of Nyoni and Moyo Partners.

The case was argued before Supreme Court, Judge of Appeal, Justice Nicholas Mathonsi on May 27, 2021.

In dispensing with the case, Justice Mathonsi did not apply the fact that the High Court subsequently acquitted the former deputy Mayor but applied the reasons set out by Ziyambi JA in UZ-UCSE Collaborative Research Programme in Women’s Health v David Shamuyarira SC 10/10 where it was held that the Labour Court, being a specialised court, does not have the power “to grant an order of the nature (declaratory order) sought by the respondents in the court a quo…”.

“So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent. It is therefore my view that the Labour Court ought to have dismissed the application for want of jurisdiction authorizing the Labour Court to grant such an order,” reasoned Mathonsi.

In deciding the case, Justice Mathonsi applied the golden rule of interpreting statute which holds that the meaning of words should be given according to the word’s ordinary meaning and usage. Justice Mathonsi therefore noted that the High Court has inherent jurisdiction to hear all cases while the Electoral Court is a specialised court which, though at par with the High Court, sits to hear electoral matters.

Hence, “the net effect is that the nature of the jurisdiction which is granted in the Electoral Act is that the court cannot stray from the provisions of the Act”.

Justice Mathosi noted that “the Electoral Act does not provide nor purport to give the court the jurisdiction to grant declaratory orders”.

He further noted that “it could not have been the intention of the legislature to give the Electoral Court the power to grant declaratory orders through the amendment of s161 of the Act. In my view, s161 of the Act was amended so as to provide the Electoral Court with wider powers so that it is not restricted to dealing only with election petitions as was the position prior to 2012”.

In dismissing 1893 MRM’s case, Justice Mathonsi stated that “the Electoral Court like the Labour Court does not have jurisdiction to grant declaratory orders. The Electoral Court, being a creature of statute can only deal with issues which are set out in its enabling Act. The court a quo thus erred in finding that it had jurisdiction to deal with the application for a declaratory order”.

It is therefore evident that the court a quo acted outside its jurisdiction. Consequently, the declaratory order, like the interdict it granted, was null and void.”

The case of plaintiffs 1893 MRM and Nomalanga Dabengwa was dismissed  with costs. However, Kambarami’s win at the Supreme Court is ‘moot’  or academic as he was recalled by MDC-T in September 2020 alongside other seven Bulawayo councillors for allegedly leaving the party:

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