Innocent Ruwende Senior Reporter
Acting Harare town clerk Mrs Josephine Ncube has challenged her suspension, arguing that mayor Councillor Bernard Manyenyeni does not have authority to suspend a chamber secretary.
Through her lawyer Mr Sternford Moyo of Scanlen and Holderness, Mrs Ncube argues that a number of allegations raised against her can be traced back to former town clerk Dr Tendai Mahachi’s tenure.
“There is no basis for these charges to be raised against our client,” reads a letter written to Clr Manyenyeni by Mr Moyo. They should be expunged from the suspension letter.” The letter was copied to Local Government, Public Works and National Housing Minister July Moyo and permanent secretary Mr George Magosvongwe.
City of Harare suspended Mrs Ncube and three other directors — Dr Prosper Chonzi (health services director), Mr Tendai Kwenda (finance director) and Cainos Chingombe — last month on allegations of financial abuse following a report by a tribunal set up in February to investigate council salaries. Mrs Ncube challenged the appointment and composition of the disciplinary committee.
“We draw the following to your attention: In terms of Section 6(4) of Statutory Instrument 15 of 2006, it is provided that: (4) at a hearing in terms of subsection (2), an employee shall have the right to — (a) at least three working days’ notice of the proceedings against him or her and the charge he or she is facing,” wrote Mr Moyo.
“Your letter, which was delivered to our client at 1742 hours last Friday, the 5th of January 2018, does not comply with the above peremptory requirement of the relevant Statutory Instrument. Accordingly, our client shall not attend the hearing scheduled for 10 January 2018 as she has not been given any valid notice.”
Mr Ncube’s lawyers further argued that Clr Manyenyeni’s letter did not indicate the position from which their client was suspended, as she was employed as the chamber secretary and only acted as town clerk from August 2015.
“You have no authority to suspend a chamber secretary,” said Mr Moyo.
“Section 140(3) of the Urban Councils Act (Chapter 29:15) clearly provides that: (3) If it appears to a town clerk that any other senior official of the council has been guilty of such conduct that it is desirable that the official should not be permitted to carry on his work, he — (a) may suspend the official from office and require him forthwith to leave his place of work and (b) shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.” It was clear, Mr Moyo argued, that Clr Manyenyeni was not the statutory authority referred to in relation to Mrs Ncube’s contract of employment.
“You are not the town clerk for the City of Harare. As a statutory authority, you are, as far as your functions and powers are concerned, a creature of statute. Consequently, to be valid at law, all your actions have to be within the four corners of the statute namely, the Urban Councils Act,” he said.
Mr Moyo argued that the tribunal and ministerial audit was constituted by Clr Manyenyeni, who also appointed hearing officers. He said Clr Manyenyeni should have recused himself from the matter as his determination to fire Mrs Ncube was well known.
Mr Moyo further alleged that Mr Manyenyeni hand picked the tribunal, single-handedly prepared the terms of reference, ignored the fact that the tribunal was not properly constituted during most of its proceedings and arbitrarily appointed members of the disciplinary committee.
“Clearly, in all the circumstances, there can be no hearing in conformity with the law and principles of natural justice. Consequently, the suspension and the set down are unlawful, null, void and of no force and effect,” he said.