A tribunal set up to probe three suspended Harare councillors on allegations of cheating in a $31 million tender has dismissed the trio's objection to the hearing and exception to the charges.
Councillors Urayayi Mangwiro, Paula Macharangwanda and Wilton Janjazi are facing misconduct charges of cheating in a tender. They were suspended in June last year to pave way for investigations.
At the commencement of the hearing, the councillors raised preliminary points seeking to block the inquiry and quash the charges. They argued that the Act under which they were charged was non-existent in the years 2010 and 2011 when the misconduct was allegedly committed.
The three also sought to have the charges quashed because they are premised on a provision, which did not exist at the time, hence are bad at law. It was also the trio's contention that charges could not be brought in terms of the new Act because doing so was tantamount to applying the law in retrospect.
The case presenter conceded that the charges were improperly formulated, while at the same time arguing the improper formulation was not fatal. He took the position that the councillors should have been charged in terms of the old provisions. In the alternative, he sought for an amendment of the charges.
After hearing arguments on the preliminary points raised, the tribune chaired by Advocate Thabani Mpofu was unable to uphold the contention by the councillors and ordered the hearing to continue. The tribune also disagreed with the case presenter's argument.
"The effect of these findings is that the hearing must continue. We so direct. The Secretariat is accordingly directed to liaise with everyone concerned in order to make that a reality," said Adv Mpofu.
Adv Mpofu said the argument presented by the councillors, though attractive on the surface, was demonstrably without merit. Its effect, he said, was that the councillors should never be charged even though they might have committed misconduct simply because the law had been amended.
"That contention produces in our view an absurd result and the public power that we exercise obliges us to reject it as being totally without merit as it would be contrary to public policy," he said.
Adv Mpofu found that there was no difference in substance between the offence created under the old Act and that created in the amended Act.
"The only difference is in nomenclature. We believe we are to be guided by substance and not by the dress worn by the charge. The essential issue in so far as we are concerned is that the facts alleged if proved would, whether under the old or the new order, constitute an offence. The fact that there has been an amendment is consequently immaterial in our view," he said.
Adv Mpofu noted that the attractive argument against retrospectivity would have made sense had the alleged conduct not constituted an offence on the day it was allegedly committed. The councillors, he said, conceded that if established, their conduct would have constituted an offence in the years 2010 and 2011.
"The amendment does not, therefore, visit with consequences conduct, which was previously not frowned upon by law. There is in our view no retrospectivity to speak of," said Adv Mpofu.
He further noted that in the event that the councillors were found guilty, they would be found guilty in terms of the present nomenclature. The other two members of the tribunal T Nyamunda and Mrs P Nyengwa concurred. Charges against the councillors arose in 2010, when the three, who sat in the procurement board awarded a shadowy company, Energy Resources Africa Consortium (ARAC), a contract to rehabilitate Firle and Crowborough sewer treatment plants without going to tender.
They are also facing charges of coming up with an unpriced bill of quantities for the rehabilitation works and neglecting to request the bidder to submit the required documents in breach of the provisions of the Urban Councils Act (Chapter29:15). The trio is also appearing at Harare magistrates' courts facing criminal abuse of office charges.