BY NQOBANI NDLOVU
LAWYERS representing former Bulawayo deputy mayor Tinashe Kambarami have challenged council’s decision to bar him from serving as a councillor after the High Court ruled his election as illegal.
The Bulawayo City Council (BCC) last week barred Kambarami from attending council business on advice from its lawyers, Coghlan and Welsh.
This followed a ruling by High Court judge Justice Thompson Mabhikwa that Kambarami’s election was in violation of section 119(2)(e) of the Electoral Act following his conviction on a theft charge by a Bulawayo magistrate.
Mabhikwa argued Kambarami’s failure to notify the MDC and the Zimbabwe Electoral Commission (Zec) of his previous conviction for stealing a power extension cable was an act of dishonesty and an illegality, rendering his election a nullity.
However, Kambarami’s lawyers Samp Mlaudzi and Partners are arguing that the former deputy mayor cannot be stopped from attending to
council business after he appealed Mabhikwa’s High Court ruling at the Supreme Court.
“It is common cause that the decision being appealed against is that of the Electoral Court, and not any other court. As such, an appeal
to the Supreme Court is in terms of the Electoral Act not common law,” Kambarami’s lawyers argued in a letter to the BCC lawyers and
copied to Zec, dated September 6.
Kambarami’s lawyers cited section 171(8) of the Electoral Act, which reads: “Notwithstanding any other provision of this section, the
noting, within the time prescribed in rules of court, of an appeal against determination or decision of the Electoral Act shall suspend
such determination or decision until the abandonment or the final determination or dismissal of the appeal.”
The lawyers said: “Our view is that the provision is clear and pointed as to the effect of an appeal against the decision of the Electoral
Court. The provision requires no further qualification, interpretation and needs not to be supported by case law.
“We hope it is clear to you as it is to us that enactments by their nature take precedence over case law particularly in this case whereon
the latest amendment of the Act was in 2018 vis-à-vis a decision made over two decades ago … We trust therefore that you will direct
them (BCC) to rescind their letter without much further ado.”
Pressure group 1893 Mthwakazi Restoration Movement Trust approached the courts seeking the nullification of Kambarami’s election as
councillor for Ward 3 and as the city’s deputy mayor citing the conviction.