The appellant was employed by the first respondent (Municipality of Chitungwiza) as a substantive Human Resources Manager since 2012. She was appointed as acting chamber secretary by management with effect from 9 May 2018, "until further notice." This appointment was not made in accordance with sections 133-135 of the Urban Councils Act [Chapter 29:15]. On 1 October 2019, following a resolution of the 459th Ordinary Council Meeting of 27 September 2019, she was removed from the acting position and replaced by the third respondent. The basis for her removal was that she did not possess a law degree, which was stated to be an absolute requirement according to a circular issued by the Secretary for Local Government, Public Works and National Housing on 22 September 2017. The third respondent held the required degree. The appellant's removal was also not done in accordance with sections 133-135 and 140(3) of the Urban Councils Act. She filed an urgent chamber application on 8 October 2019 seeking an interim interdict to stay the effect of the resolution and sought a declaration of invalidity of her removal and the third respondent's appointment.
The appeal was dismissed with costs on the ordinary scale.
Where an acting appointment to a statutory office is not made in accordance with the mandatory statutory requirements, the appointment is governed by common law contract principles and not by the statutory protections applicable to substantive office holders. An appointee cannot successfully invoke statutory protections against removal (such as section 140(3) of the Urban Councils Act) when their own appointment was not made in accordance with the same statute. A party cannot approbate and reprobate by accepting the validity of an irregular appointment while challenging its termination on grounds of statutory non-compliance. Section 26 of the Interpretation Act confers powers, jurisdiction, rights and duties on lawfully appointed acting holders, but does not regulate appointment or removal procedures. An interim interdict cannot be granted against conduct that has already been completed (past invasions) or against lawful conduct. The absence of a prima facie right is fatal to an application for an interim interdict and negates consideration of the other constituent factors.
The Court observed that the Urban Councils Act does not confer authority on the Secretary of the parent ministry to issue binding circulars or directives to local authorities. The power to issue such directives is vested in the Minister by section 313 of the Act. The Court noted, with reference to Kombayi & Ors v Minister of Local Government HB 57/16, that in the absence of an enabling provision in the Urban Councils Act, subordinate officials cannot exercise powers reserved for the Minister. The Court also made the colorful observation that the appellant's attempt to obtain an interim interdict after her removal had already been effected was "futile" and amounted to "closing the stable door after the horse had bolted."
This case is significant in Zimbabwean law (note: this is a Zimbabwean, not South African case) for clarifying several important principles: (1) It reinforces the principle that acting appointments made outside the statutory framework are governed by common law contract principles rather than statutory protections for removal; (2) It establishes that an appointee cannot selectively invoke statutory provisions to challenge removal while their own appointment violated the same statute; (3) It confirms that circulars or directives issued by government officials (such as Secretaries) without express statutory authority are not legally binding and cannot override statutory provisions; (4) It reaffirms that interim interdicts cannot be granted against completed acts or lawful conduct; (5) It demonstrates the application of the principle that one cannot approbate and reprobate - accepting benefits of an irregular appointment while challenging consequences on grounds of statutory non-compliance; (6) It clarifies the interpretation of section 26 of the Interpretation Act, confirming it confers powers on lawfully appointed acting holders but does not regulate appointment or removal procedures.