Lawyers speak on Bulawayo Deputy Mayor conviction
NEWLY-elected Bulawayo Deputy Mayor Councillor, Tinashe Kambarami, who was two months ago convicted of theft, can only be fired through a court order, legal experts have said.
Mr Kambarami was elected Councillor for Ward Three in the July 30 harmonised elections after trouncing former Bulawayo mayor, Mr Martin Moyo in the party’s primaries.
Last week, he was elected deputy mayor after beating his closest rival Clr Mlandu Ncube of Ward One.
According to court records, Kambarami (32) was in July under CRB 1981/18, convicted on his own plea of guilty to theft by Bulawayo magistrate, Ms Sharon Rosemani.
He was fined $80 or 18 days in prison for stealing an extension cord from an electrician he had hired to do manual work at his offices.
He had been given up to the end of July to pay the fine, but defaulted resulting in a warrant of arrest being issued against him. Kambarami then paid the fine on August 15.
Lawyers said although Kambarami was convicted, he remains a councillor as long as no one has approached the courts to challenge his election.
Constitutional lawyer, Professor Lovemore Madhuku, said legally Kambarami can only removed from office through a court order.
“Legally once one is declared duly elected it is not automatic that they leave office unless there is a court order to nullify that. We are therefore saying someone will have to go to court, be it a voter or some interested party. In essence, it means that Kambarami remains a councillor and deputy mayor until a competent court has declared him unfit to remain in office,” he said.
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.
The 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.
Section 41 (8) reads: “If, during the 30 day period referred to in subsection (7), the councillor concerned applies for a free pardon or notes an appeal against conviction and additionally, or alternatively, the sentence, the question whether he or she is to continue in office as a councillor shall not be determined until the abandonment or final disposal of the application or appeal, whereupon he or she shall forthwith cease to be a councillor unless (a) he or she is granted a free pardon (b) his or her conviction set aside or (c) his or her sentence is reduced to a term of imprisonment of less than six months or (d) a punishment other than imprisonment is substituted.”
Bulawayo lawyer and Law Society of Zimbabwe councillor Mr Godfrey Nyoni said: “If Kambarami was indeed convicted, of which I doubt he disclosed his conviction to the Nomination Court, his election should be a nullity and anyone can approach the High Court to seek a declaratur to say his election was not in terms of the law. You cannot sanitise an illegality and if something is a nullity it’s a nullity and it ends there.”
Efforts to contact MDC spokesperson Mr Jacob Mafume were fruitless as his mobile phone was not reachable. On August 1 last year, Kambarami offered Mr Washington Chirikuudzi (68) some manual work at his business offices.
Kambarami then asked the complainant to leave his tools at his offices inside a safe before knocking off.
When the complainant returned on the following morning, he discovered that his extension cord was missing. When he inquired about the whereabouts of his electrical cable, Kambarami admitted that he took it and promised to return it.
However, Kambarami did not return the cable despite pleas from the complainant.
Mr Chirikuudzi got fed up with Kambarami’s excuses and reported the matter to the police leading to the deputy Mayor’s arrest.
The extension cord measuring 30 metres was not recovered. — @mashnets THE Zimbabwe Revenue Authority (Zimra) has been caught on the wrong side of the law in collecting revenue and the High Court has ordered it to pay back $9,5 million it unlawfully garnished from a local mining giant.
The taxman, in violation of the law, imposed fines to the tune of $9 554 215 on Zimbabwe Platinum Mines (Pvt) Ltd for alleged Customs and Excise Act infractions.
This was despite the fact that the company was contesting the charges.
Zimplats, through Advocate Thabani Mpofu, successfully challenged decision by Zimra at the High Court.
Justice Esther Muremba recently nullified the fines and ruled that Zimra had no power to impose fines in cases where the alleged violation of the Customs and Excise Act have not been admitted. “In the result, it is hereby declared that: 1 (a) The second respondent (Zimra) has no power to impose a fine, where a contravention of the Customs and Excise Act has not been admitted.
(b) The fines imposed by the second respondent are null and void.
2 The respondents are hereby ordered to refund to the applicant all fines that were imposed and collected from it. 3 Each party is to bear its own costs” The judge said Zimra imposed fines on Zimplats when it was crystal clear that the firm was not admitting to the infractions.
Facts are that Zimplats, which was involved in mine development operations between 2009 and 2013, periodically applied to be granted customs duty rebates on goods that were used in the operations.
In terms of Section 144 of the Customs and Excise Act (General) Regulations, Zimplats applied for and was granted customs duty rebates for the period stretching from 2009 to 2010. In December 2010, Section 144 was repealed. Unaware of the development, Zimplats continued applying for rebate using the repealed piece of legislation.