Wednesday, 16 December 2020

COUNCIL BIGWIGS SUSPENSION LAWFUL : SUPREME COURT

THE suspension of two Harare City Council directors — Cainos Chingombe and Tendai Kwenda — three years ago was lawful, the Supreme Court has ruled in the case of the two, who are now facing charges of criminal abuse of office.

They were reinstated in November after three years on suspension, but it was short-lived as they were arrested a few weeks back for criminal abuse of office and defrauding the local authority of millions of dollars.

Chingombe is human capital development director, while Kwenda is the finance director. The decision to reinstate the pair was made during a full council meeting held in the council chambers in November.

The reinstatement was done despite a warning that had been issued by the Government to the local authority against reinstating officials with pending court cases.

Last week, the Supreme Court upheld the 2018 High Court decision rejecting the duo’s application in which they were challenging the validity of their suspension, but ruled that the High Court was offside for deciding the matter when it has no jurisdiction to do so.

Chingombe and Kwenda had approached the High Court seeking a determination of which employment law was applicable to the disciplinary action taken against them — the Urban Councils Act or the Labour Act with its attendant Labour (National Employment Code of Conduct) Regulations, SI 15 of 2006.

But the court threw out their application on the basis that the new Labour Act now applied to all employers and employees in this jurisdiction except those that it specifically excludes.

The Supreme Court agreed with the lower court, saying the city, which does not have a code of conduct for discipline purposes within the workplace, was correct to use Labour Act to deal with the two senior employees.

Justice Anne-Mary Gowora, who penned the judgment for the Appeals Court said the city was subject to Labour Act and had to comply with its provisions in all respect.

The local authority, she said, did not belong to the category of employers exempted from the application of the Labour Act.

“Thus, the city must have resort to the national code of conduct in the resolution of employment disputes, as the Urban Councils Act was not a code of conduct,” said Justice Gowora.

“As a consequence, the view I take is that what was before the court a quo was an issue dealing with an employment relationship and that is a dispute that falls for determination under the Labour Act by the Labour Court and other structures below it.”

Justice Gowora found that the High Court misdirected itself in assuming jurisdiction in the matter although the court came to the correct conclusion that it was the national code of conduct that applied in the  matter.

“It should have declined jurisdiction on the same basis resulting in the matter being struck off the roll for want of jurisdiction,” she said.

The duo had been suspended in 2017 together with then acting town clerk Mrs Josephine Ncube, and Dr Prosper Chonzi (Health Services) on allegations of financial abuse following a report by a tribunal set up to investigate council’s employment costs compliance.

Chonzi has since been reinstated. Herald

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