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Mr Makunde

Daniel Nemukuyu Senior Court Reporter
A BID by Chitungwiza Municipality to stop the auctioning of its fire tenders, garbage trucks, ambulances and other properties over a $4,5 million debt yesterday hit a brick wall after the High Court dismissed the local authority’s urgent chamber application.

The Sheriff of the High Court, on the instructions of Nissam Investments, can now proceed with the auction of the attached property without any glitches.

Throwing out an urgent chamber application by the municipality yesterday, High Court judge Justice Clemence Phiri found that the local authority failed to act appropriately when the need to protect the assets arose, hence the matter lacked urgency. It was the court’s finding that Chitungwiza Municipality had wilfully defied a court order compelling it to pay the debt.

“Clearly, the applicants were warned about the consequences of failure to meet the terms of the acknowledgment of debt. “It is quite clear that the applicant must take responsibility for their failure to satisfy the debt. “There is a court order compelling applicant to pay the debt.

“Applicant should be held responsible for its failure to act when the need arose,” ruled Justice Phiri. The court heard that the woes dogging the local authority were a result of misappropriation of millions of dollars and corruption on the part of the officials.

“There is an admission in the papers that the council acted corruptly. “Corruption is there and it is on record. On page 54 of the notice of opposition, paragraph two, we are told that council misappropriated $2,2 million meant for the Nyatsime housing project,” said Nissam lawyer Advocate Fadzai Mahere.

Advocate Garikai Sithole unsuccessfully tried to object to the corruption allegations with the judge confirming that indeed a serious admission of corruption had been made in a council report.

The paragraph of the report by Chitungwiza on relied upon by Adv Mahere reads: “From the information available, council misappropriated funds meant for the project by applying it on costs unrelated to the project. Council should refund the project its money amounting to $2 236 189 unconditionally and without burdening the beneficiaries.” Adv Sithole, on behalf of the municipality, pleaded for mercy arguing his client was involved in the provision of essential services like water.

He argued that the rights to clean and portable water will be violated if the property was auctioned. Adv Sithole added that the auctioning of ambulances would result in the violation of the people’s right to health. However, Adv Mahere argued that the courts of law should not be mistaken for courts of mercy.

“This is a court of law and not a court of mercy. “Applicant, having defaulted on a court order and its obligations in terms of an acknowledgment of debt, cannot now seek to hide behind the claims of providing an essential service.

“Knowing that its essential services would be crippled, the applicant could have sorted out its mess,” said Adv Mahere.

NIssam developed 15 000 stands for Chitungwiza’s Nyatsime area for a fee. Council sold the stands, pocketed millions of dollars but decided not to pay the developer.

Council acknowledged the work done through a letter by Town Clerk Mr George Makunde dated September 9, 2012. In the letter council acknowledged that Nissam provided the following services:

a) Topographical survey

b) Soils investigation

c) Town planning

d) Engineering designs

Nissam argued that it was patient enough and did not attach the property despite having obtained a court order and a writ years back. Chitungwiza even entered a payment plan with NIssam, but again, defaulted. Nissam had finally resorted to attachment and removal of property after trying all avenues in a bid to recover its money.

Meanwhile the troubled local authority is battling to stop the sale of its furniture and a fleet of top-of-the-range vehicles attached by Metbank over $600 000 debt emanating from the Nyatsime stands saga.