Hamutendi Kombayi and 10 Others v Minister of Local Government, Public Works and National Housing and 4 Others

Eleven applicants, all duly elected councillors of Gweru City Council (including the Mayor as first applicant), were suspended by the Minister of Local Government (first respondent) on 12 August 2015. The suspension was based on an investigation revealing alleged gross mismanagement, gross misconduct, incompetence and dishonesty in connection with council funds and affairs. The Minister suspended them in terms of section 114(1)(c)(d)(i)(ii) of the Urban Councils Act [Chapter 29:15]. Following the suspension, the Minister established an independent tribunal (third, fourth and fifth respondents) in terms of section 278 of the Constitution to commence disciplinary proceedings against the councillors. The applicants challenged the Minister's authority to suspend them and constitute the tribunal, arguing that section 278(2) of the Constitution requires an Act of Parliament to establish an independent tribunal for removing mayors and councillors, and that the Urban Councils Act had not been aligned with the new Constitution.

• Whether the Minister's suspension of the councillors under section 114 of the Urban Councils Act was constitutional in light of section 278 of the Constitution
• Whether the Minister had authority to constitute an independent tribunal without legislative intervention as required by section 278(2) of the Constitution
• Whether section 114 of the Urban Councils Act is inconsistent with section 278 of the Constitution
• The proper interpretation of clause 10 of Part 4 of the 6th Schedule to the Constitution regarding existing laws that have not been aligned with the Constitution

The court granted the provisional order as sought. The disciplinary proceedings against the applicants pending before the tribunal appointed by the first respondent were stayed pending finalization of the matter. The first and second respondents were ordered to bear the costs of the application jointly and severally.

Where the Constitution vests a power in an institution to be established by an Act of Parliament, that power cannot be exercised by the executive or any other body until Parliament has enacted the required legislation. Existing laws that are inconsistent with the Constitution remain invalid to the extent of the inconsistency and cannot be enforced simply by construing them to be in conformity with the Constitution. Clause 10 of Part 4 of the 6th Schedule requiring existing laws to be construed in conformity with the Constitution does not permit application of laws that are fundamentally inconsistent with constitutional provisions - it requires those laws to be amended and re-aligned. The principle of constitutional supremacy under section 2 of the Constitution means that administrative acts taken under unconstitutional laws are invalid.

The court observed that the interpretation suggested by the respondents (that existing laws can be construed as conforming to the Constitution despite inconsistency) would lead to absurdity and illegality as it would make the Constitution subservient to non-conforming Acts. The court noted that what should happen is that legislative intervention is urgently required, in the form of either a new law or an amendment to the Urban Councils Act, to provide for the establishment of an independent tribunal to deal with errant councillors and mayors. The court commented that without such re-alignment of the Urban Councils Act to be consistent with section 278 of the Constitution, the Minister's hands are tied.

This case is significant in Zimbabwean constitutional law as it affirms the supremacy of the Constitution and the principle that constitutional provisions cannot be implemented without proper legislative intervention where the Constitution requires it. The judgment clarifies that existing laws that are inconsistent with the new Constitution cannot simply be construed as conforming - they must be properly amended and re-aligned. It establishes important limits on executive power and demonstrates judicial willingness to enforce constitutional requirements even where this creates administrative gaps. The case highlights the urgent need for legislative re-alignment following constitutional change and reinforces the principle of legality in administrative action. It also provides guidance on the interpretation of transitional constitutional provisions regarding existing laws.