Daniel Nemukuyu Senior Court Reporter
Suspended Chitungwiza mayor Phillip Mutoti and 12 councillors — part of officials under investigation for corruptly allocating themselves tracts of land — have filed a High Court application seeking a review of a decision by Local Government, Public Works and National Housing Minister Saviour Kasukuwere to refer their disciplinary case to an independent tribunal.
The 13, who were suspended on April 27 this year, have instructed their lawyers Kadzere, Hungwe and Mandevere Legal Practitioners to sue Minister Kasukuwere in his official capacity.
Minister Kasukuwere suspended Cllr Mutoti and all the 24 Chitungwiza councillors before appointing a three-person caretaker commission to clean up alleged rot in the municipality. Chitungwiza Municipality has 14 MDC-T councillors, including Cllr Mutoti and 11 Zanu-PF councillors.
While on suspension, the 13 were asked to respond to the allegations, which they did. Cllr Mutoti filed the application together with the following 12 councillors: Darlington Musonza, Tichaona Muchakwa, Goodwill Mushangwe, Musekiwa Ruzvidzo, Fungai Chirwa, Maria Majoni, Chido Mangoma, Musa Makweza, Mavis Mazenge, Richard Chamutsa, Tendai Saimoni and Francis Marambakutongwa.
Without any explanation, the councillors received communication from Minister Kasukuwere that their case had been referred to an independent tribunal.
In the review application filed at the High Court recently, 13 of the councillors argued that their right to administrative justice was violated.
“In terms of Section 68 (1) of the Constitution, every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair,” reads an affidavit by Cllr Mutoti.
“Further, in terms of Section 2 of the Constitution, the Constitution is the supreme law of the land and is binding on every person, natural or juristic and all agencies of government at every level.”
The same provision, read together with Section 114 (4) of the Urban Councils Act [Chapter 29:15] presupposes that respondent’s decision should be rational, fair and proportionate, the councillors argued.
It is the councillors’ argument that Minister Kasukuwere acted arbitrarily in referring the matter to a tribunal without considering their responses or giving any reasons.
“I submit that the explanation that I gave to the respondent was more than satisfactory. The respondent arbitrarily exercised his discretion by just ignoring my explanation and referring the matter to an independent tribunal,” said Cllr Mutoti. “I also submit that the respondent’s decision flies across my constitutional right to administrative justice which is fair, rational and proportionate.”
Cllr Mutoti said Minister Kasukuwere refused to give him any reasons why his defence was disregarded. “On the 12th of June 2017, I addressed a letter to the respondent requesting written reasons as to why my explanation as contained on Annexure ‘B’ was disregarded and the matter referred to an independent tribunal,” he said.
“Further to my shock and surprise, on the 14th of June 2017, I received a letter from the respondent, a copy of which is attached hereto as Annexure ‘E’, wherein the respondent indicated his unwillingness to supply me with the reasons.”
An internal audit relied upon by Minister Kasukuwere showed that councillors and officials irregularly allocated themselves commercial and institutional stands.
Human resources manager Mary Mukonyora got 8,41 hectares, Cllr Simbiso Mhike (8,413 hectares), Cllr Nicholas Mashayamombe (3,839ha) and Cllr Charamba Mlambo (46 stands).
Other councillors also benefited from the alleged looting spree. The audit revealed councillors and staff allocated themselves stands/land and undercharged by as much as $200 and proceeded to sell the same stands for $5 000.
The application is yet to be set down for hearing.