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City Council Fined U.S.$20,000 a Day
[March 03, 2010]

City Council Fined U.S.$20,000 a Day

Harare, Mar 03, 2010 (The Herald/All Africa Global Media via COMTEX) -- HARARE City Council has been fined US$20 000 a day backdated to February 9 for contempt of court after failing to regularise an Econet Wireless base station erected at the residence of Mr Bruce Neil of Ballantyne Park three years ago.

By yesterday, the fine had accumulated to US$420 000 since February 9 this year when the order was issued and will continue accruing until council is no longer in contempt of the court order.

Council was battling to have the order reversed.

The penalty was imposed after Mr Neil obtained a default judgment on February 9 for contempt of court against the council.

The contempt of court charges against the council arose in May last year, after High Court judge Justice Yunus Omerjee ordered Econet Wireless to obtain a development permit for the base station erected on Mr Neil's premises in Ballantyne Park.

Mr Neil, owner of stand number 648, had sued Econet Wireless, one of the country's leading mobile phone service providers, and the council for the erection of the base station on his premises.

Mr Neil's argument is that the base station, which is close to the shopping centre and children's playground, exposed people to harmful radiation.

He also claimed that the cellular mast, which encroached onto his land, constituted a nuisance and wanted it removed and to have his stand restored to the condition it was before the impugning development took place.

Alternatively, he wanted the court to compel the respondents to obtain a development permit as stipulated in the Town Planning Act before carrying out such developments.

According to Justice Omerjee's order, Econet Wireless was to apply to the council for a development permit for the cellular mast and to allow residents in Ballantyne Park to object to the erection of the mast before the council made a decision on the matter.

The judge, however, declined to grant the main order sought by Mr Neil to have the mast removed, but instead ordered the council and Econet to comply with the requirements of the Regional, Town and Country Planning Act.

Econet Wireless was given three months to apply for the permit. It did so, but the council declined to hear the application saying it was defective.

As the two parties continued pointing fingers at each other, the council failed to comply with the order of the court to regularise the erection of the mast within the stipulated period.

This compelled Mr Neil, through his lawyer, Mr Chris Venturas of Venturas and Samkange, to go to the High Court on November 16 last year citing Econet Wireless and council for contempt of court The mobile phone network provider, however, opposed the application but the council did not.

Justice Lavender Makoni heard the matter on February 3 this year and delivered her ruling six days later on February 9 in favour of Mr Neil and slapped the council with a US$20 000 fine per day.

"It is ordered that the second respondent (City of Harare) be fined US$20 000 (twenty thousand United States dollars) per day until such time as their contempt is purged. The noting of an appeal will not suspend the effect of this order," Justice Makoni said.

The council is now seeking to rescind the judgment and a stay of execution of the court order in the High Court.

Through its lawyer, Mr Davison Kanokanga of Kanokanga and Associates, the council wants the enforcement of the order suspended pending the determination of the application to revoke the judgment.

The council argued that the court application by Mr Neil citing it for contempt of court was served on the wrong office. It was served at the City Treasury at Rowan Martin Building, which deals with payments when it should have been served at Town House, which deals with town planning matters.

Justice Felistus Chatukuta, who presided over the case, last Friday, reserved judgment to a later date to consider submissions by lawyers for both parties. The base station was erected in June 2007.

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