WAKATAMA & ORS v MADAMOMBE 2011 (1) ZLR 10 (S)

Flynote

Local government — mayor — election and removal of — procedure — not possible for council to remove mayor by a mere resolution — when a new mayor may be elected

Headnote

The respondent was one of several candidates who were elected in 2008 as councillors of the Bindura Municipality. At the council's first meeting after the election, the respondent and the second appellant were elected mayor and deputy mayor respectively. About two months later, a councillor drafted a motion for the rescission of the resolution in terms of which the respondent had been elected mayor. The councillor made it clear that the intention was to move a motion to pass a vote of no confidence on the respondent as mayor. He made a number of allegations of impropriety on the part of the respondent as justification for the motion. The motion, having been seconded by other councillors, was referred to the acting chamber secretary who in turn referred the same to the third appellant who was the town clerk. The town clerk convened a council meeting to deliberate on the motion. The respondent queried the correctness of the procedure that had been followed. When it became clear that some of the councillors supported the procedure adopted, the respondent declared the meeting closed and left the chamber in the company of three other councillors. The remaining councillors continued with the motion under the chairmanship of the second appellant, the deputy mayor. Following those deliberations, the resolution in question was rescinded and the

appointment of the respondent and the second appellant as mayor and deputy mayor was rescinded. Immediately thereafter the first and second appellants were elected mayor and deputy mayor respectively.

The respondent obtained an order from the High Court declaring the election of the first and second appellants to be null and void and further declaring the respondent as the lawfully elected mayor. The court was of the view that s 89 of the Urban Councils Act [Chapter 29:15], on which the appellants sought to rely, related to general resolutions of council in ordinary meetings and did not apply to the situation where council sought to remove a duly elected mayor from office. In particular, the court held that a councillor elected as mayor cannot be lawfully removed from the position by a resolution passed by councillors in a meeting in the absence of the seat of the mayor falling vacant as provided for under s 103 of the Act. On appeal, one of the ancillary issues raised was whether the application should have been dismissed because the Minister of Local Government was not cited.

Held, that the non-joinder of the Minister was not fatal. The provisions of r 87 of the High Court Rules 1971 were clear and allowed of no ambiguity.

Held, further, that while it is correct that s 28 of the Interpretation Act [Chapter 1:01] provides that the power to appoint a person to an office necessarily includes the power to remove or suspend him, this power must, in terms of s 2 of the Act, be read against the specific provisions of a particular enactment. In s 103 of the Urban Councils Act, the process of electing a mayor is set out. The meeting at which the mayor is elected must be chaired by the district administrator. The person elected holds office until the election or appointment of a successor. A successor can only be appointed if the seat of the councillor who is mayor or deputy mayor becomes vacant by virtue of s 103 as read with s 78(2) of the Act.

Held, further, that s 89, which sets out how resolutions of councils may be rescinded or altered, is a general provision which relates to resolutions passed at ordinary meetings of the council. The meeting at which a mayor is elected is not an ordinary meeting which ends in a resolution. There is no need for a resolution before the person elected as mayor assumes the position. If the appellants' submission that a mere council resolution would suffice to remove a mayor from office were to be taken to its logical conclusion, a situation could arise where there could be a motion by one councillor removing a mayor and another motion re-electing the same mayor by another councillor. This surely could not have been the intention of the legislature.