Gift Banda v The Independent Tribunal and Others

The applicant, Gift Banda, was the Deputy Mayor and Councillor for Ward 5 of Bulawayo. On 20 September 2016, the Minister of Local Government Public Works and National Housing suspended him from office pursuant to section 114(1)(c) of the Urban Councils Act as amended. Two allegations were made: (1) that he unprocedurally acquired stand 18826B T. Town house Ascot (35 hectares) in May 2015, which should have been put to tender, and constructed a perimeter wall without council approval; and (2) that he unprocedurally acquired a lease for stand 187964 Bulawayo Township Lands on behalf of Entertainment Headquarters, which should have been put to tender. An Independent Tribunal was established under section 114(c) of the Urban Councils Act to hear the charges. The applicant denied the allegations, stating the stands were undesignated and not required to go to tender under council policy. He declared his interest in Entertainment Headquarters and recused himself from all committee meetings regarding the lease. The Tribunal heard evidence from the Town Clerk, Mayor, and Chamber Secretary, all of whom testified that undesignated stands did not require tender processes and that the applicant had not improperly influenced council decisions. The Tribunal acquitted the applicant on the first charge but found him guilty of gross misconduct on the second charge based on co-signing the lease application, deeming this conduct improper for a Deputy Mayor. The applicant was deemed removed from office and sought review of the Tribunal's decision.

• Whether the Independent Tribunal's decision finding the applicant guilty of gross misconduct was grossly irregular and unreasonable
• Whether the Tribunal's finding was supported by evidence on the record
• Whether the Tribunal exceeded its mandate in finding misconduct where no procedural irregularity was established
• Whether the High Court should exercise its review powers to set aside the Tribunal's decision

1. The decision of the first respondent (Independent Tribunal) finding applicant guilty of gross misconduct was set aside and substituted with an order finding applicant not guilty of any act of misconduct. 2. The applicant was reinstated as Councillor for Ward 5, Bulawayo and Deputy Mayor of the 6th respondent (Bulawayo City Council) with no loss of allowances and benefits. 3. The 5th respondent (Minister of Local Government Public Works and National Housing) was ordered to bear the costs of suit on the ordinary scale.

A decision of an administrative tribunal is grossly irregular and unreasonable, and subject to review by the High Court, where: (1) the finding is not supported by evidence on the record; (2) the tribunal bases its decision on allegations not contained in the original charges; (3) the tribunal contradicts its own factual findings in reaching its conclusion; and (4) the tribunal fails to consider exculpatory evidence properly before it. Where a tribunal finds that no procedural irregularity occurred (the lease was not required to go to tender), it cannot then find gross misconduct based on participation in that same lawful process, particularly where the accused disclosed interest and recused himself from decision-making processes. A finding of gross misconduct must be grounded on factual findings proving guilt and cannot be based on abstract principles about avoiding the appearance of impropriety where proper procedures were followed.

The court made several non-binding observations: (1) that the original allegations against the applicant appeared to be based on personal conflicts and mala fides, with false misrepresentations made to the Minister that the entire Ascot Racecourse had been allocated to the applicant; (2) that the Tribunal appeared to recognize that removal from office was a harsh penalty, expressing a view that reprimand might be more appropriate, but felt constrained by the mandatory penalty provisions in section 4(2) of the Rules of Independent Tribunals; (3) that the Minister had been wrongly advised by an Investigating Committee that the stands in question were subject to tender requirements; (4) reference to the old adage that "Caesar's wife must be above reproach/suspicion" which the Tribunal applied, though the court implicitly criticized this approach as insufficient basis for a finding of gross misconduct in the absence of actual evidence of impropriety.

This case is significant in Zimbabwean administrative law for establishing important principles regarding judicial review of tribunal decisions. It demonstrates the High Court's willingness to intervene where administrative tribunals make findings unsupported by evidence or base decisions on matters not contained in the original charges. The case reinforces the principle that decision-makers must properly direct themselves in law, consider only relevant matters, and ensure their findings are supported by evidence on the record. It also clarifies the scope of review powers under sections 26, 27 and 28 of the High Court Act and emphasizes that tribunals exercising disciplinary powers must adhere to fundamental principles of natural justice and administrative fairness. The judgment protects elected officials from arbitrary removal based on unfounded allegations and requires that findings of gross misconduct be supported by concrete evidence of impropriety, not mere suspicion or potential conflict of interest where proper disclosure and recusal procedures were followed.