FACULTY OF LAW

NAME : KREJIANZI T HODZONGI

REG. NUMBER: R2210222V
MODULE : LB 316 ADMINSTRATIVE AND LOCAL GOVERNANCE
LEVEL : 2.2
LECTURER : MR MAMIMINE
YEAR : 2022
QUESTIONS :
(a) Assume that you were at the time of the directive a legal advisor to the
Zimbabwe Local Government Association (ZILGA), a grouping of all rural and
local authorities in Zimbabwe.
Write a legal opinion on the position of the law. (Marks)
(b) With relevant case law and legislation, critically discuss the development of
the appointment and removal procedure of local officials in Zimbabwe. (15 marks)
QUESTION A

Issues

The first issue to be raised and explicitly dealt with is whether or not the then Minister of
Local Government, Urban and Rural Development Dr I.M.C Chombo had authority to
issue the directive to all town clerks and chief executives officers in terms of sections
133 and 313 of the rural District councils Act [Chapter 29:13] and the Urban Councils
Act [Chapter 29:15} respectively, directing them to write off all taxes, rentals, unit tax,
development levies, licenses and refuse charges owed by individual rate payers as at
30 June 2013.

The second issue to be considered is whether the writing off of taxes, rentals and other
charges would not violate the obligation that tax payers have.

Another issue to be taken into consideration is whether or not the issuing of the directive
was of national interest or not and also the timing or period the directive was issued.

Legislation to be applied

Constitution of Zimbabwe 2013

Rural District Councils Act Chapter 29:13

Urban Councils Act Chapter 29:15

Mushonga and others v Minister of Local Government Public Works and National
Housing and Others

Maguma v City of Kwekwe and others

Chitungwiza Respondents Trust v Minister of Local Government and Another

Community Alliance Trust and Another v City of Harare and Another

Touching into the depth of the requirements of the question beginning with the first
issue which is to deliberate on whether the then Minister of Local Government, Urban
and Rural Development Dr I.M.C Chombo issuing a directive to town clerks and chief
executive officers had a clear justification of the law. Section 313 (2) of the Urban
councils Act legitimately provides the minister the power to give directions on matters of
policy but at the same time leaving space for discretionary as it says the “minister may”,
showing that he is not obligated or explicitly mandated by law to give directions on
matters of policy but only opt to do so when he deems it necessary to. 1 The fact that
minister Chombo in this case issued a directive indicate a lawful exercise of his powers
hence his legitimacy in issuing directives is unquestionable but lacks procedural
accuracy.

The correct legal standing of Minister Chombo`s directive has a pre-requisite

articulated in sub section (2) of section 313 which stipulates that where the Minister
considers that it might be desirable to give such directions in terms of subsection (1) he
shall inform the council concerned, in writing of his proposal and shall, within 30 days of
such period or further period submit to the Minister in writing the views on the proposal
and the possible implications on the finances and other resources of the council. 2 This
provision uses peremptory term “shall” which means it requires direct compliance which
clearly is not met in this case as Minister Chombo`s directive is specific in nature. What
it therefore means is that even after the issuing of the directive both urban and rural
authorities have a discretion as on how they comprehend the minister`s proposal
moving forward hence they have time for considerations. According to Botha in his book
interpretation of statutes noncompliance with clear provisions of the statute renders the
proceedings null and void.3 Consequently Minister Chombo`s directive becomes void or
unlawful as it lacks the essentials of the law.

This position is cemented by the case of Community Alliance Trust and Another v City
of Harare where the court was faced with the interpretation of the section at hand in this
matter. The court in agreement held that the Minister`s directive in line with section 313

1
Urban Councils Act Chapter 29:15
2
ibid
3
Botha, Interpretation of Statutes
of the Councils Act is not binding as the section gives 30 or more days to the council for
them to submit and make any counter proposals.4 It further held that the circular 1 of
2015 had no force of law hence the applicant could not anchor a cause of action on
such claim thereby dismissing the application. This vividly shows that the proposals and
views of the council are necessary if the Minister`s directive is to be lawful.

In addition to the requirements of section 313(2) of the Urban Councils Act which in this
case renders the directive of the minister unlawful, the fact that the Minister did not
comply with the statute violates section 276(1) of the constitution making the directive
unlawful. Section 276(1) guarantees every urban local government the right to govern
on initiative the affairs of its community hence autonomy. 5 Steylter and de Viesser
argued that the use of the word “right” emphasizes that a local authority is entitled to
govern it’s the affairs of its own communities and that this entitlement can be claimed
and defended in terms of the constitution.6 They further argue that the phrase “on its
own initiative” marks the end of an era when municipalities were the implementers of
national, provincial and ministerial directives and had no authority of making their own.
Thus the fact that Minister Chombo issues a general directive without noting the
council`s proposal is an encroachment of the integrity of the local government. This
point is underscored in the case of Maguma v City of Kwekwe whose facts slightly
differs with the facts in this case. 7 In the Maguma case the application was dismissed
as the court held that the City of Kwekwe could not be forced to comply with Minister`s
directive which was not in line with the demand of the relevant act despite of it being
general on how the stands were to be allocated thus procedural part of the act matters
much which in this case is the issue of proposals the town clerks and chief executive
officers were supposed to be given time to respond on.

Considering the second issue in this case, the writing off of taxes and charges that the
tax payers are obligated to pay shows elements of unlawfulness in the Ministerial
directive issued by Minister Chombo. The Rural District Councils Act section 133(1)

4
Community Alliance Trust and Another v City of Harare HH648-19
5
Constitution of Zimbabwe 2013
6
Steylter etal, Ministerial Directives to Local Government in Zimbabwe
7
Maguma v City of Kwekwe and Others HB11/22
articulates that a council may write off amounts owing to the council by any person if the
council considers that (a) the amounts are irrecoverable

(b) The costs, difficulties or disadvantages of collecting such amounts outweighs

the value thereof.

Subsection 2 stipulates that a council shall not write off a charge as defined in section
95 unless it has been in arrear for five or more years.8

These provisions grasps the position that the directive was illegitimate as both the rural
and urban councils did not likely face any challenges in recovering such amounts and
also did not face difficulties of collecting such amounts regardless of economic
instability from 2009 to 2013 as the act requires. This only points out to the
unlawfulness of Minister Chombo`s directive to the town clerks and rural chief executive
officers as there was noncompliance to the legislation applicable. Noncompliance to the
statute therefore renders the order unlawful as illuminated in the case of Mushonga v
Minister of Local Government, Public works and National Housing and Others where it
was held that the fact that the Minister had not issued the directive in line with the
requirements of the act made the proceedings a nullity.9

Addressing the third issue now which is whether or not the directive by Minister Chombo
was for the public interest and also considering the time that it was issued does it
become lawful on such basis. The Urban Council`s Act section 313 sub section 2
stipulates that the Minister may give a council such directions of a general character as
to the policy it is to observe in the exercise of its functions, as appear to the Minister to
be requisite in the national interest.10 The minister`s directive in this case was designed
to cushion individual ratepayers from the severe effects of economic charges being
experienced in the country. According to the Oxford Dictionary, the term ‘individual’ as
used in Minister Chombo`s directive refers to a person considered alone, rather as
belonging to a group of people.11 This therefore rule out national interest issue as the
directive was designed to cushion individual rate payers hence Minister Chombo`s
8
Rural District Councils Act Chapter 29:13
9
Mushonga v Minister of Local Government, Public Works and National Housing HH129/2004
10
Urban Councils Act Chapter 29
11
Oxford Dictionary 2019
directive was not in line with the Urban Councils Act Chapter 29:15 which requires the
directive to be of national interest. More so the time period of five years which is
stipulated in the Urban councils act does not tally with the period running from February
2009 to June 2013 which therefore means based on economic instability of the state the
directive is not even justifiable on basis of lawfulness as the period adds to 4 years, 4
months and 28 days hence unlawful instead of the required 5 year period.

In conclusion, my legal opinion as the legal advisor of Zimbabwe Local Government

Association on the position of the law basing on the matters of fact raised and
application of the law is that the directive was made outside the scope of the law and
were such of a specific nature such that the town clerks and chief executive officers
could not be mandated to comply. Section 313(3) stipulates that they shall comply if the
directive was of a general nature as stated by section 313(1). It is further worth noting
the phrasing of the statute in sub section (3), “the council shall, with all due expedition,
comply with any direction given to in terms of subsection (1). This provision is
peremptory in nature meaning to say the council must comply with such directions given
only if they were of general nature as sub section (1) stipulates hence Minister
Chombo`s directive though he had authority to issue, the procedural aspect of it was
unlawful for the town clerks and chief executive officers to follow. Other procedural
aspects required by the Rural Councils Act as to when the writing of debts should be
made were also not taken into consideration by the minister bringing gross procedural
irregularities.

BIBLIOGRAPHY
BOOKS
Botha, Interpretation of statutes 1991
Steylter, de Viesser Ministerial Directives to Local Government in Zimbabwe
Oxford Dictionary 2019

CASES
Community Alliance v City of Harare HH 648-19
Maguma v City of Kwekwe and Others HB11/22
Mushonga v Minister of Local Government, Public Works and National Housing HH
129/2004

LEGISLATION
Constitution of Zimbabwe 2013
Rural Councils Act Chapter 29:13
Urban Councils Act Chapter 29:15
QUESTION B

With relevant case law and legislation, critically discuss the development of the
appointment and removal procedure of local authorities.

Introduction

The ensuing piece of work or submissions will discuss the development of the
appointment and removal procedure of local authorities in a two tire format as the term
“development” requires a track of changes on how the local authorities were appointed
before and currently hence for instance prior the current constitution and after it had
come into force. Before the 2013 constitution was proclaimed and also prior 2002 local
authorities were appointed and removed by the Minister of Local Government, Public
works and National housing governed also by the Urban Councils Act (Chapter29:15)
and the Rural district Councils Act(Chapter 29:13). These acts provided for the removal
process as will be explained in detail in this piece of work. Developments on the
appointment stipulates appointment by election whilst removal is based on a tribunal
hearing. This piece of work proceeds to the discussion on the development of the
removal and appointment of local authorities at large with the first side of the
submissions being on appointment and the second side on removal.

Delving into the discussion with a critical eye most centered on the procedural
development on the appoint of local authorities which include bringing out much on who
have the power to appoint and remove local authorities, it is of first preference to
consider what the supreme law of the land says. As laid down in Part 3 of the
Constitution section 277, the appointment of local authorities is now provided for in the
constitution with subsection 1 (a) stipulating that councilors are elected by voters with
elections being held on the same day as that of the Members of Parliament and the
President.12 Subsection 2 stipulates that elections of mayors and chair persons of local
authorities, other than mayors or chair persons on whom executive powers have been
conferred… must be held at the first sitting of the councils concerned following a

12
Constitution of Zimbabwe 2013
general election.13 The first sitting would be for the purpose serving the election of a
mayor and deputy mayor from the pool of elected councilors. This therefore shows huge
a development in terms of the procedure as before 2013 the local authorities were
appointed by the Minister of Local Government, Public Works and National Housing. 14
According to de Viesser et al the main changes from the old system of appointing
councilors are that the Council election was aligned with universal adult suffrage and
age of majority not rather than property ownership, a colonial segregator system. 15

This system has also being upheld in rural areas or Rural Council following huge
developments which includes that before colonization, local government authorities
existed in the form of traditional leadership hence appointed traditionally.

The above point in discussion is advanced by the Urban Councils Act (Chapter 29:15)
section 103 subsection 1 which deals with the appointment of councilors through
generation election who are thereby invested with the power to choose a mayor and a
deputy mayor from the elected councils.16 This section is directly lined with section 277
of the Constitution. Section 66 of the Rural Councils Act (29:13) vividly illuminates these
developments as subsection 1 stipulates that a council shall appoint a person approved
17
by the Minister to be the chief executive officer of the council. This clearly gives the
councilors a role to elect with a great development on the appointment as the Minister
will now only be called to approve as formality not to directly appoint.

In addition to the above it is noted in the case of Wakatama and Others v Madamombe
the court made reference to section 103 of the then Urban Councils act which provided
for the appointment of local authorities.18 Section 103 of the act as laid in the case
states that councilors were mandated to meet after the general election so as to elect
local authorities which included mayors and deputy mayors. The court also allowed and
accepted the respondent`s reference to the Interpretation Act section 28 which

13
ibid
14
T, Chigwata et al, Supervision of local Government in Zimbabwe: The travails of mayors
15
De Viesser, Steylter, Machingauta, 2010 A local Government Reform in Zimbabwe
16
Urban Councils Act (Chapter 29:15)
17
Rural Councils Act Chapter(29:13)
18
Wakatama v Madamombe SC 10/12
stipulates that one who appoints one into authority is the lawful person to unappoint the
candidate.19

Debating the other side of the question which is the developments on the procedure of
the removal of local authorities with the aid of case laws. The constitution in force from
2002 and 2013 Constitution of Zimbabwe came with huge procedural developments as
before the Minister of Local Government had the authority to remove local authorities as
exposed in the constitution amendment 17 and prior 2000. The removal process usually
involved an inquiry or hearing to assess the allegations against the councilor or member
and then determine.20 The Constitution of Zimbabwe section 278(2) now stipulates that
An Act of Parliament of Parliament must provide for the establishment of an
independent tribunal to exercise the function of removing from office mayors, chair
persons and councilors.21 This procedure is witnessed in the case of Manyenyeni v
Minister of Local Government and Others where the applicant was seeking relief
directing suspension and removal of the applicant from his duties as mayor to be
nullified.22 The argument was that the removal of mayors is done by an independent
tribunal in terms of the Act of parliament or in terms of section 278 of the Constitution of
Zimbabwe. The applicant further argued that such powers of the Minister were taken
away by that provision of the constitution. The court allowed the application hence
showing developments in the appointment and removal of local authorities.

Another case worth noting in line with this procedural development is the case of
Kombayi v Minister of Local Government, Public Works and National Housing where the
court was confronted with interpreting section 114 of the Urban Councils Act with the
applicants facing allegations of discharging their functions as servants of City of Gweru
and also being further suspended by the Minister. 23 Subsequent to this a tribunal was
set up to inquire the charges. The court held that section 278 makes it obligatory for an
Act of Parliament to be put in place to provide for the establishment of an independent
tribunal to exercise the function of removing from office mayors and other councilors on

19
Interpretation Act Chapter 1:01
20
Zimlii.org/content/local government law
21
Constitution of Zimbabwe
22
Manyenyeni v Minister of Local Government and Others HH274-16
23
Kombayi and Others v Minister of Local Government, public Works and National Housing and Others HB 57-16
stated grounds. This highlights therefore huge developments of the procedure of
appointing and removing o local government.

However it is of paramount importance to note that some of the developments which

came by the 2013 Constitution are a mere adoption of what the law was before and the
provisions of the Urban Councils Act and the rural councils act. 24 Grounds for removal
back then included misconduct, incompetence incapacity or violation of the provisions.
These are the same grounds laid in 278(2) of the Constitution as well section 114(1) of
the Urban councils Act which is aligned with the constitution.

In conclusion the above discussion clearly shows many developments on how the local
authorities are appointed and removed, with the new developments hugely vesting such
powers not on the Minister of Local Government, Public Works and National Housing
but on the tribunals and elective powers vested in the citizens of the state who endorses
councilors with the councilors empowered to nominate local authorities such as mayors
and deputy mayors. The discussion concludes with a point on the however side
showing that some of the developments came as an adoption of the law as it was
beforehand.

BIBLIOGRAPHY
24
Constitution Watch 37/2013
BOOKS

T, Chigwata, S, Marumamhuko, Supervision of local Government in Zimbabwe: The

travails of mayors 2019

De Viesser, Steylter, Machingauta, 2010, A local Government reform in Zimbabwe

CASES

Kombayi and others v Minister of Local Government, Public Works and National
Housing and Others HB-57-16

Manyenyeni v Minister of Local Government and Others HH274-16

Wakatama v Madamombe SC 10/12

LEGISLATION

Constitution of Zimbabwe 2013

Urban Councils Act (Chapter 29:15)

Rural Councils Act (Chapter 29:13)

Interpretation Act (Chapter 1:01)

ARTICLES

Constitutional Watch 37/2013

WEBSITE

Zimlii.org./content/local government law