BCC barred from swearing in Chombo's preferred councillor
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The ruling by Justice Kamocha sitting in his chambers now interdicts the Bulawayo City Council from swearing Mr Fengu into office.
Mr Jack Matshazi, a ratepayer with the city council last week on Friday filed an urgent chamber application through his lawyer, Mr Job Sibanda, of Job Sibanda and Associates seeking an order to bar the council from swearing in Mr Fengu, as a special interest councillor.
The application by Mr Matshazi followed an order last week by Minister of Local Government, Urban and Rural Development Dr Ignatius Chombo that the local authority immediately swear in Mr Fengu or Mr Nyoni risks losing his job by last Saturday.
Controversy was sparked when, in a letter dated 22 November last year, Dr Chombo appointed Mr Fengu, a special interest councillor representing people with disabilities in terms of Section 4A of the Urban Councils Act (Chapter 29:15).
BCC Chamber Secretary Mrs Sikhangele Zhou reportedly turned Mr Fengu away when he reported for duty.
In the urgent chamber application in which the respondents were Dr Chombo, 1st, Mr Nyoni, 2nd, BCC, 3rd and Mr Fengu, 4th, Mr Matshazi said he was told that Mr Fengu was supposed to have been sworn in yesterday.
He claimed that he did not know about the swearing in until he read in the Press last week on Thursday.
He argued that Dr Chombo's actions in his intended appointment of Mr Fengu is actuated by a desire other than a genuine concern to ensure that the special interest groups, as envisaged in the Act are catered for.
He further argued that the Minister acted "in a completely irrational manner that no reasonable person, who has applied his mind to the matter, may act in a similar manner".
"It is because of this irrational action of the 1st respondent that I intend to cause the 1st respondent's actions to be reviewed by the Administrative Court following the granting of the order that I seek in this application," submitted his lawyer.
Mr Matshazi says he is disabled and has been disabled since birth and that he is familiar with the names of most people who act for the benefit of people with disabilities in Bulawayo.
"I have never come across the 4th respondent's name anywhere. His is a name that I have only just learnt about from the Press. I am not alone, who finds himself in this position, since I have spoken to a number of people with disabilities like myself and none of them have indicated that they are aware of the 4th respondent's deeds, as would cause him to be appointed to serve our interests in Council.
"First respondent needs to explain therefore for the benefit of people with disabilities in what way an unknown person can be of benefit to us the people with disabilities in Bulawayo. In the absence of an explanation and also in the absence of the 4th respondent's curriculum vitae, the inescapable conclusion is that 4th respondent is being rewarded for something other than his service to people with disabilities in Bulawayo," reads Mr Matshazi's founding affidavit.
He noted that the present councillors were elected into office in March 2008 to serve a five-year term.
"We are already in January 2013 and simple arithmetic shows that the term of office of this present council comes to an end in the next eight weeks at least.
"I wonder what benefit and in what way a councillor, who is appointed eight weeks prior to dissolution of council, will bring to people with disabilities in Bulawayo apart from claiming a sitting allowance to the detriment of ratepayers like myself."
Mr Matshazi said it was his intention to apply through the Administrative Court for an order nullifying the proposed appointment of Mr Fengu, as being contrary to the spirit of the Urban Councils Act and so unreasonable in its defiance of logic, as to amount to a nullity.
He intends to apply to the Administrative Court within seven days of the order granted yesterday.
Mr Nyoni and Mrs Zhou attended the hearing yesterday and were not opposed to the application while Dr Chombo and Mr Fengu were not in attendance.
Controversy has always dogged the special interest councillors' appointments, with a Bulawayo resident, Mr Billy Ncube taking Dr Chombo to court after he appointed eight special interest councillors.
Mr Ncube challenged the criteria the Minister used in selecting the councillors and argued that Dr Chombo did not have the jurisdiction to make the appointments.
Mr Ncube's case was, however, weakened, when Section 4A of the Urban Councils Act (Chapter 29:15) was gazetted.
The matter is still pending in the courts.
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