The City of Mutare v The Mutare Residents and Ratepayers Association

The City of Mutare Council advertised proposed increases in owners rates, charges and levies for the year 2001 in November 2000. The Mutare Residents and Ratepayers Association submitted a petition signed by over 2,500 residents objecting to the increases, and over 35 companies also objected. A special Council meeting was held on 14 December 2000 to consider the objections. The notice sent to councillors was accompanied by a summary of the objections and a statement that the petition had been signed by over 2,500 residents, but the booklet containing the actual signatures did not accompany the notice (though it was circulated at the meeting itself). Eleven of seventeen councillors attended the meeting. Six councillors spoke in favour of the increases and none spoke against. The Council resolved unanimously to confirm the increases. The Association then applied to the High Court which declared the rates, charges and levies of no force and effect. The Council appealed.

• Whether the Council complied with section 219(3) of the Urban Councils Act which requires that a resolution be passed by a majority of the total membership of the council, and whether a formal vote was required
• Whether the Council complied with section 219(4) of the Urban Councils Act which requires that notice to councillors of the meeting contain a copy of all objections lodged
• Whether owners rates are governed by section 219 or section 274 of the Urban Councils Act
• Whether the increased levies and charges should be set aside for non-compliance with procedural requirements

The appeal was allowed with no order as to costs. The High Court order was set aside and replaced with a declaration that the Council did not comply with section 219(4) of the Urban Councils Act, and an order that the Council pay the costs of the application in the court a quo, including costs of the application for rescission of the default judgment.

1. Section 219(3) of the Urban Councils Act requires that a resolution be passed by a majority of the total membership of the council, but this does not necessarily require a formal vote where the decision is unanimous and there is no dissent among councillors present. 2. Section 219(4) of the Urban Councils Act requires that a copy of all objections lodged be sent to councillors, which means a complete copy including all signature pages, not merely a summary or the gist of the objection. 3. Where a council acts in good faith reliance on erroneous judicial guidance regarding statutory interpretation, this may constitute a special circumstance justifying a declaratory order without setting aside operational administrative decisions. 4. Owners rates are governed by section 274 of the Urban Councils Act, which does not provide for objections, rather than section 219.

The Court observed that there was no reason why the respondent Association should not be awarded its costs in the court a quo, even though the appeal was successful, given that the Council had failed to comply with section 219(4) of the Act. The Court also made pragmatic observations about the need to balance strict statutory compliance with the practical reality that the increased rates had been operational since 2001, and that the Council's non-compliance was based on following prior judicial direction, albeit erroneous.

This case is significant in Zimbabwean municipal law as it clarifies the procedural requirements under section 219 of the Urban Councils Act regarding objections to proposed tariffs and charges. It establishes that where councillors are unanimous in their decision, no formal vote is required to satisfy the requirement that a resolution be passed by a majority of the total membership. It also confirms that full copies of all objections, including signature pages, must be circulated to councillors, but demonstrates judicial pragmatism by declining to set aside operational rates where a council acted in good faith reliance on prior judicial guidance, even if that guidance was erroneous. The case also clarifies that owners rates are governed by section 274 rather than section 219 of the Act.