High Court stops Council from revoking ‘toilet contracts’

The High Court in Mzuzu has stopped the Mzuzu City Council from revoking tenancy agreements of private operators running the Council’s public toilets after the operators challenged the decision arguing that in the absence of elected Councilors the Council’s decision was invalid.

In the High Court of Malawi Mzuzu District Registry, Miscellaneous Civil Cause number  29 of 2012,between the state and Mzuzu City Council as respondents and Chauka Chipatu Mwasinga and 5 others as applicants, Justice Dingiswayo Madise restrained the Council, its agents, servants or whosoever from terminating tenancy agreements with the Applicants over public toilets and advertising the toilets for tender.

Mwasinga and five  others became operators by virtue of a decision made by the Mzuzu City Council properly constituted in 2002, each occupying his own toilet and paying rent to the Council as required from then up now.

“We found the toilets in unusable state and spent resources renovating and refurbishing the toilets and it was only after the renovation and refurbishment that the said public toilets started to attract users, and we have not yet realised in profits what we invested in the renovation and refurbishment,” he said.

Recently, the Mzuzu City Council, which is usually on the wrong side of the law despite expert legal advise from its lawyers Racane and Associates, flighted tender adverts for new operators of the Council’s public toilets but deliberately omitted two.

“Upon hearing counsel George Jivason Kadzipatike on behalf of the Applicant and upon reading the affidavit in support of the application, it is ordered that leave to move for judicial review of the Respondent’s decisions to terminate tenancy agreements with the Applicants over public toilets and advertising the toilets for tender be and is hereby granted,” Madise said.

The Judge also ordered the Applicants to file an interpartes summons for the continuation of the injunction within 7 days adding that hearing of the said summons for injunction be held within 14 days from the date.

Madise also ordered the Applicants to deposit MK120, 000.00 into court.

Throughlawyer George Kadzipatike of Jivason and Company, the Toilet operators argued in their 11 paged affidavit that the decisions of the Council are unlawful and unconstitutional as they were made by a Council that was illegally constituted, contrary to section 147 of the Constitution and section 5 of Local Government Act.

“It should stick to the mind of this court that it is only Council that has the mandate to make decisions and policies for the economic and infrastructural development of a local government area…The court should be alive to the fact that it is dealing with a decision made by Council, and not Chief Executive Officer or any other officer of Council, who, by Local Government Act are only required to implement decisions of Council,” Mwasinga said.

Mwasinga noted that Council’s decisions were procedurally improper saying they were made without affording them the right to be heard.

“We seek a declaration that the Respondent’s said decisions are discriminatory as two operators of Council’s public toilets have not been affected and that the    Respondent’s decisions are unreasonable, otherwise illegal, unconstitutional and procedurally improper,” reads part of the affidavit a copy NyasaTimes got.

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