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Local Government Laws Amendment Bill H.B. 1, 2016

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H.B. 1, 2016.]
Local Government Laws Amendment
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LOCAL GOVERNMENT LAWS AMENDMENT BILL, 2016
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Memorandum
The purpose of this Bill is to amend the Rural District Councils Act [Chapter
29:13] and the Urban Councils Act [Chapter 29:15] so as to align certain provisions of
those Acts with section 278(2) and (3) of the Constitution, which provides as follows:
“(2) An Act of Parliament must provide for the establishment of an independent
tribunal to exercise the function of removing from office mayors, chairpersons and
councillors, but any such removal must only be on the grounds of—
(a) inability to perform the functions of their office due to mental or physical
incapacity;
(b) gross incompetence;
(c) gross misconduct;
(d) conviction of an offence involving dishonesty, corruption or abuse of
office; or
(e) wilful violation of the law, including a local authority by-law.
(3) A mayor, chairperson or councillor of a local authority does not vacate
his or her seat except in accordance with this section.”.
(i)
Local Government Laws Amendment
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Local Government Laws Amendment
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BILL
To amend the Rural District Councils Act [Chapter 29:13], and the Urban
Councils Act [Chapter 29:15]; and to provide for matters connected
with or incidental to the foregoing.
ENACTED by the Parliament and the President of Zimbabwe.
PART I
Preliminary
1 Short title
This Act may be cited as the Local Government Laws Amendment Act, 2016.
PART II
amendments to rural district councils act [chapter 29:13]
2 New sections substituted for section 157 of Cap. 29:13
Section 157 of the Rural District Councils Act [Chapter 29:13] (hereinafter in this
Part called the “principal Act”) is repealed and substituted by the following sections—
“157 Suspension and removal of councillors from office
(1) In accordance with section 278 of the Constitution, the
chairperson or councillor of a council shall only be removed from office
on the grounds of—
Printed by the Government Printer, Harare
H.B. 1, 2016.]
Presented by the Minister of Local Government, Public Works and National
Housing
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(a) inability to perform the functions of his or her office due to
mental or physical incapacity; or
(b) gross incompetence; or
(c) gross misconduct; or
(d) conviction of an offence involving dishonesty, corruption
or abuse of office; or
(e) wilful violation of the law, including a local authority bylaw.
(2) Subject to this section, if the Minister has reasonable grounds
for suspecting that a chairperson or councillor—
(a) is unable to perform the functions of his or her office due
to mental or physical incapacity; or
(b) is guilty of any misconduct referenced in subsection (1)(b),
(c), (d) or (e);
the Minister shall, by written notice to the chairperson or councillor and
the council concerned—
(c) suspend the chairperson or councillor from exercising all
or any of his or her functions in terms of this Act; and
(d) specify the reasons for the suspension and the nature of the
allegations against the chairperson or councillor; and
(e) afford an opportunity to the chairperson or councillor to
respond to the allegation within seven days of receiving
the notice.
(3) Any allowance that is payable to chairpersons or councillors
in terms of this Act shall continue to be paid to a chairperson or councillor
who has been suspended in terms of subsection (2) for so long as he or
she is suspended, unless the misconduct in question involves—
(a) dishonesty in connection with the funds or other property
of the council; or
(b) gross negligence resulting in the loss of any funds or property
of the council; or
(c) gross mismanagement of the funds, property or affairs of
the council;
whether or not the chairperson’s or councillor’s responsibility for such
dishonesty, negligence or misconduct is shared with other councillors or
with any employees of the council.
(4) Not earlier than fourteen days after the Minister has suspended
a chairperson or councillor in terms of subsection (1), and in any event
within forty-five days, the Minister shall, if no response is made to a notice
in terms of subsection (2)(e), or if that response is not satisfactory to the
Minister, cause a thorough investigation to be conducted, where necessary,
with all reasonable dispatch to determine whether sufficient evidence
exists for the issue of the removal of the chairperson or councillor on any
of the grounds specified in subsection (1) to be referred to an independent
tribunal.
(5) This section applies, with such changes as may be necessary,
to any allegation of inability on the part a chairperson or councillor
to perform the functions of his or her office due to mental or physical
incapacity.
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157A Independent tribunals: appointment and procedure
(1) An independent tribunal referred to in section 278(2) of the
Constitution shall be constituted whenever the issue of the removal of
a chairperson or councillor on any of the grounds specified in section
157(1) needs to be referred to it.
(2) An independent tribunal shall consist of—
(a) a chairperson appointed by the Minister from a list of at least
three and not more than nine registered legal practitioners
with at least five years’ experience in private or public
practice, who shall be nominated by the Judicial Service
Commission (if the original list consists of fewer than nine
nominees, the Minister may request an additional nominee
or list of nominees so that the total number of nominees
including those in the original list does not exceed nine);
and
(b) subject to subsection (3), two other members appointed
by the Judicial Service Commission from a list of at
least three and not more than nine persons nominated by
the Minister, who shall be persons experienced in local
government administration, whether as former councillors
or as administrators (if the original list consists of fewer
than nine nominees, the Judicial Service Commission may
request an additional nominee or list of nominees so that
the total number of nominees including those in the original
list does not exceed nine).
(3) If the case to be determined by the tribunal involves financial
impropriety, one of the members of the tribunal must be a person registered
under the Public Accountants and Auditors Act [Chapter 27:12], in which
event the Minister shall submit to the Judicial Service Commission one
list of at least three and not more than six persons qualified as provided
in subsection (2)(b), and another list of at least three and not more than
six persons nominated by the Minister, who shall be persons registered
under the Public Accountants and Auditors Act [Chapter 27:12]:
Provided that if either of the original lists consists of fewer than
six nominees, the Judicial Service Commission may request an additional
nominee or list of nominees so that the total number of nominees including
those in the original list does not exceed six.
(4) In accepting nominations for appointment to the tribunal
in terms of subsections (2) and (3), the Minister or the Judicial Service
Commission, as the case may be, shall notify each other of the names of
at least two alternates for the office of chairperson of the tribunal (drawn
from the list of nominees for that post) and at least two alternates for
either of the two other offices (drawn from the list of nominees supplied
for those posts) who shall assume the chairpersonship or membership of
the tribunal in case any such office becomes vacant in the course of the
tribunal’s proceedings.
(5) In nominating or appointing members or alternates to a tribunal
the Minister or the Judicial Service Commission, as the case may be, must
be mindful of the requirement that the tribunal should consist of members
of both sexes.
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(6) A person shall not be eligible for appointment to an independent
tribunal if—
(a) he or she is not a citizen of Zimbabwe ordinarily resident
in Zimbabwe; or
(b) he or she has, in terms of a law in force in any country—
(i) been adjudged or otherwise declared insolvent or
bankrupt and has not been rehabilitated or discharged;
or
(ii) he or she has, within the period of five years immediately
preceding the date of his or her proposed appointment,
been sentenced in any country to a term of imprisonment
of six months or more, imposed without the option of
fine, and has not received a free pardon.
(7) Members of the tribunal shall be paid such sitting and other
allowances from the funds of the local authority affected by the suspension
of the chairperson or councillor whose removal from office they are
considering, at such rate as shall be fixed by the Minister in a statutory
instrument:
Provided that the local authority concerned is entitled (in terms of
paragraph 6 of the Fourth Schedule of the Urban Councils Act [Chapter
29:15]) to seek from the tribunal an order of reimbursement of all or
part of the costs it incurred under this subsection if the chairperson or
councillor is removed from office.
(8) The head of the Ministry shall provide such secretarial and
support services as may be required by a tribunal.
(9) A member of a tribunal may resign his or her office at any time
by giving the chairperson, or the Minister in the case of a chairperson, at
least fourteen days’ notice of his or her intention to resign, whereupon
the next available person on the appropriate list of alternates shall assume
office in his or her stead.
(10) The Minister may, after consulting the Judicial Service
Commission, remove a member from a tribunal on the grounds of—
(a) inability to discharge the functions of his or her office,
whether arising from infirmity of mind or body or any other
cause; or
(b) negligent or improper conduct in connection with the
discharge of his or her duties as a member of the tribunal.
(11) On the death of, or the vacation of office by, a member of
the tribunal, the next available person on the appropriate list of alternates
shall assume office in his or her stead.
(12) Subject to paragraph 4(5) of the Fourth Schedule to the Urban
Councils Act [Chapter 29:15], the office of a member of a tribunal shall
terminate on the day that a determination is made whether to remove a
chairperson or councillor from office.
(13) In the course of its hearings—
(a) the tribunal shall be bound by the rules of natural justice,
and otherwise by the rules set forth in the Fourth Schedule
to the Urban Councils Act [Chapter 29:15]; and
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(b) any contempt of the tribunal by any person before the tribunal
shall constitute the crime of contempt of court in terms of
section 181 of the Criminal Law Code.
(14) The determination of the tribunal shall be final, subject to
the right of an aggrieved person to bring any proceedings or decisions of
the tribunal on review before the High Court in accordance with section
27 of the High Court Act [Chapter 7:06].”.
PART III
amendments to urban councils act [chapter 29:15]
3 New sections substituted for section 114 of Cap. 29:15
Section 114 of the Urban Councils Act [Chapter 29:15] (hereinafter in this Part
called the “principal Act”) is repealed and substituted by the following sections—
“114 Suspension and removal of councillors from office
(1) In accordance with section 278 of the Constitution, the mayor,
chairperson or councillor of a council shall only be removed from office
on the grounds of—
(a) inability to perform the functions of his or her office due to
mental or physical incapacity; or
(b) gross incompetence; or
(c) gross misconduct; or
(d) conviction of an offence involving dishonesty, corruption
or abuse of office; or
(e) wilful violation of the law, including a local authority bylaw.
(2) Subject to this section, if the Minister has reasonable grounds
for suspecting that a mayor, chairperson or councillor—
(a) is unable to perform the functions of his or her office due
to mental or physical incapacity; or
(b) is guilty of any misconduct referenced in subsection (1)(b),
(c), (d) or (e);
the Minister shall, by written notice to the mayor, chairperson or councillor
and the council concerned—
(c) suspend the mayor, chairperson or councillor from exercising
all or any of his or her functions in terms of this Act; and
(d) specify the reasons for the suspension and the nature of the
allegations against the mayor, chairperson or councillor;
and
(e) afford an opportunity to the mayor, chairperson or councillor
to respond to the allegation within seven days of receiving
the notice.
(3) Any allowance that is payable to mayors, chairpersons or
councillors in terms of this Act shall continue to be paid to a mayor, chairperson
or councillor who has been suspended in terms of subsection (1)
for so long as he or she is suspended, unless the misconduct in question
involves—
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(a) dishonesty in connection with the funds or other property
of the council; or
(b) gross negligence resulting in the loss of any funds or property
of the council; or
(c) gross mismanagement of the funds, property or affairs of
the council;
whether or not the mayor’s, chairperson’s or councillor’s responsibility for
such dishonesty, negligence or misconduct is shared with other councillors
or with any employees of the council.
(4) Not earlier than fourteen days after the Minister has suspended
a mayor, chairperson or councillor in terms of subsection (1), and in any
event within forty-five days, the Minister shall, if no response is made to
a notice in terms of subsection (2)(e), or if that response is not satisfactory
to the Minister, cause a thorough investigation where necessary to be
conducted with all reasonable dispatch to determine whether sufficient
evidence exists for the issue of the removal of the mayor, chairperson or
councillor on any of the grounds specified in subsection (1) to be referred
to an independent tribunal.
(5) This section applies, with such changes as may be necessary,
to any allegation of inability on the part a mayor, chairperson or councillor
unable to perform the functions of his or her office due to mental or
physical incapacity.
114A Independent tribunals: appointment and procedure
(1) An independent tribunal referred to in section 278(2) of the
Constitution shall be constituted whenever the issue of the removal of
a mayor, chairperson or councillor on any of the grounds specified in
section 114(1) needs to be referred to it.
(2) An independent tribunal shall consist of—
(a) a chairperson appointed by the Minister from a list of at least
three and not more than nine registered legal practitioners
with at least five years’ experience in private or public
practice, who shall be nominated by the Judicial Service
Commission (if the original list consists of fewer than nine
nominees, the Minister may request an additional nominee
or list of nominees so that the total number of nominees
including those in the original list does not exceed nine);
and
(b) subject to subsection (3), two other members appointed
by the Judicial Service Commission from a list of at
least three and not more than nine persons nominated by
the Minister, who shall be persons experienced in local
government administration, whether as former councillors
or as administrators (if the original list consists of fewer
than nine nominees, the Judicial Service Commission may
request an additional nominee or list of nominees so that
the total number of nominees including those in the original
list does not exceed nine).
(3) If the case to be determined by the tribunal involves financial
impropriety, one of the members of the tribunal must be a person registered
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under the Public Accountants and Auditors Act [Chapter 27:12], in which
event the Minister shall submit to the Judicial Service Commission one
list of at least three and not more than six persons qualified as provided
in subsection (2)(b), and another list of at least three and not more than
six persons nominated by the Minister, who shall be persons registered
under the Public Accountants and Auditors Act [Chapter 27:12]:
Provided that if either of the original lists consists of fewer than
six nominees, the Judicial Service Commission may request an additional
nominee or list of nominees so that the total number of nominees including
those in the original list does not exceed six.
(4) In accepting nominations for appointment to the tribunal
in terms of subsections (2) and (3), the Minister or the Judicial Service
Commission, as the case may be, shall notify each other of the names of
at least two alternates for the office of chairperson of the tribunal (drawn
from the list of nominees for that post) and at least two alternates for
either of the two other offices (drawn from the list of nominees supplied
for those posts) who shall assume the chairpersonship or membership of
the tribunal in case any such office becomes vacant in the course of the
tribunal’s proceedings.
(5) In nominating or appointing members or alternates to a tribunal
the Minister or the Judicial Service Commission, as the case may be, must
be mindful of the requirement that the tribunal should consist of members
of both sexes.
(6) A person shall not be eligible for appointment to an independent
tribunal if—
(a) he or she is not a citizen of Zimbabwe ordinarily resident
in Zimbabwe; or
(b) he or she has, in terms of a law in force in any country—
(i) been adjudged or otherwise declared insolvent or
bankrupt and has not been rehabilitated or discharged;
or
(ii) he or she has, within the period of five years immediately
preceding the date of his or her proposed appointment,
been sentenced in any country to a term of imprisonment
of six months or more, imposed without the option of
fine, and has not received a free pardon.
(7) Members of the tribunal shall be paid such sitting and other
allowances from the funds of the local authority affected by the suspension
of the mayor, chairperson or councillor, at such rate as shall be prescribed
by the Minister generally, and in so doing so the Minister may prescribe
different rates for different classes of local authorities in a statutory
instrument:
Provided that the relevant local authority concerned is entitled
(in terms of paragraph 6 of the Fourth Schedule) to seek from the tribunal
an order of reimbursement of all or part of the costs it incurred under this
subsection if the mayor, chairperson or councillor is removed from office.
(8) The head of the Ministry shall provide such secretarial and
support services as may be required by a tribunal.
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(9) A member of a tribunal may resign his or her office at any time
by giving the chairperson, or the Minister in the case of a chairperson,
at least fourteen days’ notice of his or her intention to resign, whereupon
the next available person on the appropriate list of alternates shall assume
office in his or her stead.
(10) The Minister may, after consulting the Judicial Service
Commission, remove a member from a tribunal on the grounds of—
(a) inability to discharge the functions of his or her office,
whether arising from infirmity of mind or body or any other
cause; or
(b) negligent or improper conduct in connection with the
discharge of his or her duties as a member of the tribunal.
(11) On the death of, or the vacation of office by, a member of
the tribunal, the next available person on the appropriate list of alternates
shall assume office in his or her stead.
(12) Subject to paragraph 4(5) of the Fourth Schedule, the office
of a member of a tribunal shall terminate on the day that a determination
is made whether to remove a mayor, chairperson or councillor from office.
(13) In the course of its hearings—
(a) the tribunal shall be bound by the rules of natural justice,
and otherwise by the rules set forth in the Fourth Schedule;
and
(b) any contempt of the tribunal by any person before the tribunal
shall constitute the crime of contempt of court in terms of
section 181 of the Criminal Law Code.
(14) The determination of the tribunal shall be final, subject to
the right of an aggrieved person to bring any proceedings or decisions of
the tribunal on review before the High Court in accordance with section
27 of the High Court Act [Chapter 7:06].
(15) The Minister may in consultation with the Minister responsible
for justice, amend the Fourth Schedule by statutory instrument:
Provided that no such statutory instrument shall be published
and come into force until a draft thereof is laid before Parliament, and
no resolution nullifying the same is made by either House within the first
seven sitting days after the draft is laid before the House concerned.”.
4 New Schedule inserted in Cap 29:15.
The principal Act is amended by the insertion after the Third Schedule of the
following Schedule—
“Fourth Schedule (Section 114a(13)(a))
rules of independent tribunals
Procedure before and immediately following allegation of misconduct
1. (1) If, on completion of the investigation (if any) referred to in section
114(4) (or section 157(4) in the case of the Rural District Councils Act), it is found
that an allegation of misconduct should be preferred against the mayor, chairperson
or councillor (hereinafter called “the respondent”), the independent tribunal shall,
within thirty days after the completion of the investigation (or if no investigation is
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found to be necessary, within thirty days after the Minister refers the matter to the
tribunal)—
(a) inform the respondent, in writing, of the nature of the allegation against
him or her, and call upon him or her to submit a written reply to the
allegation within fourteen days; and
(b) where possible, furnish to the respondent copies of any material
documentary evidence relating to the allegation of misconduct, or
afford the respondent an opportunity of having sight of any such
evidence.
(2) The independent tribunal shall, within seven days of receiving the
respondent’s reply or, if no such reply has been received in subparagraph (1)(a),
determine whether the respondent has a case to answer, and if so, it shall, within
seven days notify the respondent in writing accordingly.
Sittings and powers of independent tribunal
2. (1) For the purpose of this Schedule the chairperson of the independent
tribunal shall convene a sitting of the tribunal whenever he or she considers it to be
necessary at such time and place as he or she determines.
(2) The quorum at any sitting of the tribunal shall be all three members:
Provided that the tribunal may, in addition to sitting with all members
physically present, hold or continue a sitting by the use of any means of
communication by which all the members at the meeting can hear and be heard at
the same time (hereinafter referred to as an “electronic sitting”).
(3) A member who participates in an electronic sitting is taken for all purposes
to have been present at the sitting.
(4) The chairperson of the tribunal may establish procedures for electronic
sittings (including recording the minutes of such sittings).
(5) The chairperson may conduct open or closed sittings of the tribunal, and
shall be entitled, at any open sitting, to exclude any particular person or persons for
the preservation of order, for the due conduct of the inquiry or for any other good
reason.
(6) The tribunal shall, through the chairperson, have the powers contained
in the Commissions of Inquiry Act [Chapter 10:07], to subpoena witnesses and
administer oaths, and to compel witnesses thus summoned to take an oath or
affirmation and to remain in attendance at the hearing until excused by the tribunal.
Hearings before independent tribunal
3. (1) Where the independent tribunal determines that a respondent has a case
to answer and so notifies the respondent in accordance with paragraph 1(2), it shall
in the same notification give not less than seven days’ notice to the respondent of
the time, date and place of the hearing of the allegation of misconduct against him
or her.
(2) The hearing shall be conducted without the need to observe the rules
of procedure and evidence ordinarily applicable in criminal or civil proceedings,
provided, however, that the respondent concerned is afforded the opportunity to
respond to every allegation of misconduct and that substantial justice is done.
(3) Findings of fact by the tribunal shall be made by a majority of the members
of the tribunal on the basis of a balance of probabilities.
(4) Findings of law or of mixed law and facts shall be reserved for the
chairperson alone.
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(5) At the hearing the respondent and the independent tribunal may, if either
so wishes, be advised and, in the case of the respondent, represented by a legal
practitioner.
(6) The independent tribunal may proceed to consider the allegation of
misconduct in the absence of the respondent concerned if the respondent fails to
attend the hearing without reasonable cause after having been duly notified.
(7) The chairperson of the independent tribunal shall keep or cause to be
kept an accurate record of the substance of the evidence led at the hearing.
Determination of allegation of misconduct
4. (1) A the conclusion of a hearing the independent tribunal shall proceed to
determine whether or not the respondent is guilty of misconduct as alleged.
(2) Where the independent tribunal determines that the respondent is
not guilty of misconduct, the independent tribunal shall without delay notify the
respondent, the Minister and the council concerned in writing accordingly.
(3) Where the independent tribunal determines that a respondent is guilty
of misconduct—
(a) the respondent is deemed to be removed from office on the date of that
determination and his or her seat becomes vacant on that date; and
(b) the independent tribunal shall without delay notify the respondent, the
Minister and the council concerned in writing accordingly.
(4) It shall be competent for the independent tribunal to find a respondent
guilty of an act of misconduct other than the act which the respondent was originally
alleged to have committed if the facts disclose such other act.
(5) Where the independent tribunal has not made a finding that the respondent
is guilty of such other act as is referred to in subparagraph (4) but believes that there
is a reasonable suspicion that the respondent may be guilty of such act—
(a) the independent tribunal shall refer the matter back for further
investigation by the Minister in terms of section 114(4) (or section
157(4) in the case of the Rural District Councils Act); and
(b) the independent tribunal shall adjourn until the completion of the
investigation in terms of section 114(4) (or section 157(4) in the case
of the Rural District Councils Act).
(6) If the investigation is completed and a new charge is preferred against
the respondent in accordance with paragraph 1(1)—
(a) within thirty days from the date that the independent tribunal referred
the matter back to for further investigation by the Minister in terms
of section 114(4) (or section 157(4) in the case of the Rural District
Councils Act), the allegation of misconduct shall be dealt with by the
independent tribunal that heard the original allegation;
(b) after thirty days from the date that the independent tribunal referred
the matter back to for further investigation by the Minister in terms
of section 114(4) (or section 157(4) in the case of the Rural District
Councils Act), the allegation of misconduct shall be dealt with by a
reconstituted independent tribunal.
Respondent convicted of a criminal offence
5. Where a respondent is convicted of a criminal offence which may constitute
an act of misconduct, the Ministry shall endeavour to obtain a copy of the court
record relating to the conviction of the respondent from the registrar or clerk of the
court concerned, and avail it to the tribunal.
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Costs
6. At the conclusion of a hearing the independent tribunal may make such
order as to the costs of the proceedings as it thinks fit.
Imposition of civil penalties by independent tribunal
7. (1) Where an independent tribunal determines that a respondent is guilty of
misconduct the tribunal may, together with its determination that the respondent is
guilty of the misconduct, impose upon the respondent either of the following civil
penalties in either of the following circumstances—
(a) if the respondent was responsible for any deficiency in or improper
payment from or loss or destruction of the moneys of any local
authority, order the respondent to make such payment in respect of
such deficiency, improper payment, loss or destruction, as the case
may be, as may be fixed by the independent tribunal; or
(b) if the respondent was responsible for any deficiency in or destruction of
or damage to the property of any local authority, order the respondent
to pay an amount equal to the cost of replacement of or repairs to the
property concerned, as the case may be, or such portion of that cost as
the independent tribunal considers to be equitable in the circumstances.
(2) A civil penalty order that becomes payable by the respondent shall
constitute a debt due by the respondent to the local authority concerned, which may,
at any time after it becomes due, sue for and recover the debt in a court of competent
jurisdiction.
(3) The amount of a civil penalty shall be paid into and form part of the
funds of the local authority concerned.
Determination of incapacity for office
8. This Schedule (other than paragraphs 4(4), (5) and (6), 5, 6 and 7) applies to
the determination of an allegation of inability on the part a respondent to perform the
functions of his or her office due to mental or physical incapacity, as if references in this
Schedule to an allegation of misconduct are references to an allegation of incapacity.
Alternate member
9. (1) If an alternate is substituted for any member of the tribunal, the secretary of
the tribunal shall furnish him or her with a written brief approved by the other members
of all the evidence led or produced at the tribunal up to the date that the alternate assumes
office:
Provided that the alternate has the right to require the rehearing or reconsideration
of any evidence led or produced at the tribunal before the date that he or she assumed
office.
(2) The proceedings of the tribunal shall not be challenged on the sole ground
that its composition changed by virtue of section 157A(9) or (11) of the Rural District
Councils Act [Chapter 29:13] or section 114A(9) or (11) of this Act.
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