Justice Chidyausiku
Daniel Nemukuyu Senior Court Reporter
The by-election for Chitungwiza’s Ward 25 will now go ahead following the dismissal of a constitutional application filed by fired councillor Dr Fredrick Mabamba challenging his ouster. While delivering the ruling yesterday, Chief Justice Godfrey Chidyausiku blasted Dr Mabamba’s lawyer, Mr Charles Chikore, for gross negligence which contributed to the failure of the application.
Dr Mabamba’s case had stalled the holding of the by-election for Ward 25 to replace him.
The Nomination Court sat in July and four aspiring candidates filed their papers to fill the vacancy left by Dr Mabamba who was ousted on charges of gross mismanagement of council affairs.
The process was conducted following a court order that allowed the nomination to go ahead, but deferred the by-election date from August 23 pending determination of Dr Mabamba’s constitutional challenge.
Justice Chidyausiku took a swipe at the conduct of Mr Chikore of C. Mutsahuni, Chikore and Partners, who wrongly cited Local Government, Public Works and National Housing Minister Dr Ignatius Chombo in his personal capacity in the constitutional application.
He ordered Mr Chikore to pay costs of the suit on a higher scale because Dr Mabamba had not contributed to the error that the court viewed to be “too elementary”.
Mr Chikore, according to Chief Justice Chidyausiku, was informed of the mis-citation, but he never sought condonation to amend the papers until yesterday when the court frowned at his conduct.
“The Constitutional Court is the highest court of the land and we cannot continue getting such shoddy jobs from legal practitioners,” said Chief Justice Chidyausiku.
“Hopefully the message will reach out to other lawyers that they should take the courts seriously. The application is hereby dismissed with costs for the following reasons:
1. that the respondent was not properly cited.
2. No application for condonation to amend was filed despite the case being brought to the attention of the legal practitioner.
3. The conduct of Mr Charles Chikore of C. Mutsahuni Chikore was grossly negligent in handling the client’s case.”
Chief Justice Chidyausiku said even a first-year law student could have noticed that the State Liabilities Act required a litigant to sue a minister in his official capacity on issues related to Government business.
“Citing a minister in his personal capacity for something he did in the course of his official duty is so elementary and even a first-year law student knows it is legally wrong,” he said.
“Is it not taking the court for granted? When you cite a minister for his official deed, you have to cite him in his official capacity.”
Chief Justice Chidyausiku noted that Dr Mabamba was only a victim of his lawyer’s gross negligence.
Dr Chombo on May 23 this year dismissed Dr Mabamba from council after he was convicted of gross mismanagement of council affairs by a disciplinary tribunal.
His dismissal had been recommended by a board of enquiry in terms of Section 114(i) of the Urban Councils Act (Chapter 29:15).
Dr Mabamba argued that the suspension and subsequent dismissal were all premised on Section 114 (3) and (4) of the Urban Councils Act, which is at variance with the new Constitution.
He was now seeking an order declaring Section 114(3) and (4) as unconstitutional and wanted the court to reinstate him.