Mashudu Netsianda, Senior Court Reporter
THE civil trial involving Bulawayo deputy mayor Councillor Tinashe Kambarami and a political pressure group, 1893 Mthwakazi Restoration Movement Trust, opened at the Bulawayo High Court yesterday.
1893 Mthwakazi Restoration Movement Trust is seeking an order nullifying Clr Kambarami’s election as ward councillor, citing his criminal record.
Clr Kambarami was in July last year convicted of theft by Bulawayo provincial magistrate, Ms Sharon Rosemani, under case number CRB 1981/18.
He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to work at his offices.
1893 Mthwakazi Restoration Movement Trust, through its lawyer Mr Godfrey Nyoni of Moyo and Nyoni Legal Practitioners, filed a court application at the
Bulawayo High Court citing Clr Kambarami, the Bulawayo City Council, Zimbabwe Electoral Commission (Zec) and MDC as respondents.
The organisation wants an order declaring Clr Kambarami’s nomination and subsequent election as councillor for Ward 3 in Bulawayo null and void on the basis that he was convicted for stealing an extension cord from an electrician he had hired to do manual work at his offices.
In her founding affidavit, Ms Dorothy Ndlovu, who is the applicant’s secretary, said the application is premised on the provisions of the Electoral Act which disqualify a convicted person from being nominated as a candidate for council elections.
“It has come to our attention as an organisation that the first respondent (Clr Kambarami) has a criminal record and should not have submitted his nomination papers to Zec.
“He was charged and convicted of theft on July 27, 2018 under case number CRB1981/18,” she said.
Ms Ndlovu said as an organisation they could not sit back and watch an illegality being perpetuated.
“We believe and rightly so, that it was and is our duty to seek that this clear illegality be corrected. The first respondent’s election ought to be set aside,” she said.
Mr Nyoni said in terms of section 119 (2) (e) of the Electoral Act, Clr Kambarami, by virtue of his conviction, was supposed to have been disqualified from contesting the elections.
According to section 119 (2) (e) of the Electoral Act, a person shall be disqualified from being nominated as a candidate for or from election as a councillor if he or she has been convicted of an offence involving dishonesty.
“It is important to note that Kambarami was convicted on his own plea of guilty to theft. It is common cause that theft is a crime that involves dishonesty.
“The first respondent was therefore supposed to be disqualified for nomination as a candidate for the elections and his subsequent election to the post of deputy mayor for the City of Bulawayo was a nullity right from the onset,” Mr Nyoni said.
He said the law disqualified Clr Kambarami and whatever then happened thereafter was not in terms of the law.
“When the nomination court sat there is a form known as VN1 that the first respondent (Kambarami) signed and it states that any person signing it should not have been involved in any crime involving dishonesty.
“It is clear that the first respondent was disqualified by the law because his conviction happened during the period between the nomination court and elections.
“Whatever is done outside the law is a nullity,” said Mr Nyoni.
He said Clr Kambarami failed to disclose his criminal record to Zec prior to his nomination in the run up to the July 30 harmonised elections.
“The first respondent is disqualified by operation of the law and the principle of legality is that his occupation of the office of deputy mayor and councillor should be declared null and void.
“The applicant (1893 Mthwakazi Restoration Movement Trust) represents citizens of this country who have a direct interest in this matter since it is in the interest of the public and their constitutional right,” said Mr Nyoni.
He said Clr Kambarami was given a chance to voluntarily relinquish his posts as councillor and deputy mayor and he declined.
Clr Kambarami’s lawyers, Messrs Dickson Moyo and Maqhawe Ndlovu of Samp Mlaudzi and Partners, said the High Court had no locus standi to handle the matter, arguing that the application was an election petition.
“Our submission is that this is an election petition, which is supposed to be heard by the Electoral Court as defined in terms of the Electoral Act and it is nowhere near a court application for declaratur.
“The Electoral Court, which existed through the General Notices, expired on December 31, 2018 and extending its tenure through this court would be improperly constituted,” said Clr Kambarami’s lawyers.
They further argued that there has to be a tribunal that has to be set in terms of section 174 of the constitution to handle the disqualification of Clr Kambarami.
However, Mr Nyoni contended that a tribunal could only be set up for a person convicted after legally occupying the office.
Section 41 (7) of the Urban Councils Act states that a councillor who is convicted of an offence and sentenced to imprisonment for a period of six months or more shall forthwith cease to exercise his or her functions or to be entitled to any remuneration as a councillor, and subject to subsection (8), he or she shall cease to be councillor at the expiry of 30 days from the date of such sentence.
On August 1, 2017, Clr Kambarami engaged the complainant, Mr Washington Chirikuudzi (68), to do some manual work at his business offices.
Clr Kambarami then asked the complainant to leave his tools at his offices inside a safe before knocking off.
When the complainant returned the following morning, he discovered that his extension cord was missing.
When Mr Chirikuudzi inquired about the whereabouts of his cable, Clr Kambarami admitted that he took it and promised to return it.
However, Clr Kambarami did not return the cable despite pleas from the complainant.
Mr Chirikuudzi got fed up with Clr Kambarami’s excuses and reported the matter to the police leading to the deputy mayor’s arrest.
Clr Kambarami was elected deputy mayor in September last year after beating his closest rival, Clr Mlandu Ncube of Ward One. — @mashnets