A Bulawayo lawyer has approached the High Court seeking an order declaring Bulawayo City Council (BCC) as an non-existent entity, in a new twist to the parking system saga.
Further, he seeks ancillary relief that any action taken by the City of Bulawayo under the name BCC be declared null and void.
This, according to the order sought, includes any by-laws bearing the name “Bulawayo City Council”.
Consequently, the applicant, Bruce Masamvu of Masamvu and Da Silva-Gustavo Law Chambers, seeks to interdict employees and anyone acting with the authority of the City of Bulawayo to exercise any function, whose authority is derived from any enactment or by-laws bearing the name of the Bulawayo City Council.
This follows legal proceedings made by Masamvu against BCC and Tendy Three Investments (TTI) over the city’s parking management system.
Masamvu had dragged BCC and TTI to court over the parkng fees.
Masamvu withdrew the application and filed an urgent chamber application -1460/22 seeking to interdict BCC from, among other things, clamping and towing away his vehicle in terms of the Bulawayo City Council (Clamping and Tow- Away) By-Law of 2015 for outstanding parking fees (US$12).
The urgent chamber application was dismissed with costs by Judge Justice Maxwell Takuva.
In his present application for a declarator and ancillary relief, Masamvu states to his surprise, in opposing his urgent chamber application, the City of Bulawayo claims there is no entity called Bulawayo City Council.
Masamvu now cites City of Bulawayo as first respondent, BCC as second respondent, Minister of Local Government and Public Works (July Moyo) as third respondent and TTI as fourth respondent.
In the urgent chamber application, Masamvu had cited BCC as first respondent as it was the authority conferred with such powers by Statutory Instrument (SI) 63 of 2015.
“I together with my legal practitioners considered the provisions of SI 63 of 2015. Upon such consideration I learnt this SI is titled ‘Bulawayo City Council (Clamping and Tow -away) By Laws 2015.’ Further it provided that the by-laws apply to the area under the jurisdiction of BCC and defines BCC,” he said,
BCC opposed the urgent application on several grounds, of which Masamvu said only one of the preliminary points made by BCC is relevant to his present application.
“In opposing the application under cover of HC1460/22, through its Chamber Secretary, BCC argued under oath that there exists no such entity known as ‘Bulawayo City Council’ premised on the “provisions of City of Bulawayo (Private) Act (Chapter 29:02).
“Particularly Section 3, which provides that the title of its local authority shall be City Council of Bulawayo. Based on my understanding of the law as a legal practitioner as well as the advice of my legal counsel, I entirely agree with the position taken by City of Bulawayo in the proceedings under cover HC 1460/22.”
It was then Masamvu realised that TTI, notwithstanding its contract with City of Bulawayo and BCC to manage parking, “is exercising powers that are made by and vested in an entity non-existent at law being BCC.”
“In the premises insofar as it purports to exercise such authority, therefore such exercise of authority is a nullity at law.”
Masamvu said as a Bulawayo resident and legal practitioner, he continued to consider the import of City of Bulawayo’s position in HC 1460/22.
“I realised I had come across numerous decisions of the court where BCC, the entity stated to be non-existent, had litigated and obtained relief,” read his present application.
“Further I observed that some by-laws purport to have been made, vest administrative authority in and define the local authority of City of Bulawayo as BCC. An example of such a by-law is SI 63 of 2015.
“Lastly, I considered the observed enactments made by the Minister of Local Government that vest administrative authority in and define the local authority of City of Bulawayo as BCC. An example is SI 181 of 2020 Bulawayo City Council (Hawkers and vendors) By-laws 2020.”
Reading from the City of Bulawayo (Private) Act Chapter 29:02 and as also acknowledged by City of Bulawayo at law, (the argument made by Chamber Secretary) there exists no entity known as BCC, said Masamvu who was advised by his legal practitioners, an advice he agrees with.
“Further I am advised and agree with the advice that insofar as any enactment purports to define the local authority for City of Bulawayo as and confers administrative authority to BCC, any exercise of such administrative authority is nullity at law. It is a nullity because it is being exercised by an entity unknown at law and or is being exercised by an entity without such authority at law,” he argued.
“Consequent to the preceding any private person purporting to exercise administrative authority arising from enactments that are a nullity at law is exercising authority unrecognised by the law. In that regard insofar as TTI, although contracted to City of Bulawayo and BCC, purports to exercise administrative authority flowing from SI 63 of 2015 such exercise of authority is a nullity at law.”
“Accordingly, I respectfully submit that I have made a good case for this court to execute its discretion and grant the declaratory relief I seek as well as the ancillary relief.”