It is illegal for Harare City Council to clamp and tow away vehicles parked in the city centre without displaying parking discs, the Supreme Court has ruled.
However, council can fine offenders under its 1983
regulations and if they do not pay within four days, it should have them
prosecuted in court.
The Supreme Court made the ruling after a Harare motorist,
Ms Melody Muza, challenged the municipality for clamping and towing her car for
failing to display a parking disc while she was parked in a council bay along
Park Street in May last year.
Justices Elizabeth Gwaunza, Tendai Uchena and Lavender
Makoni, sitting at the Supreme Court, made the ruling on October 14, stating
that council could only legally act under the Harare Traffic By-Laws of 1983.
On May 3 last year, Ms Muza parked her car along Park
Street in the capital at around 12.30pm.
Municipal police clamped her car saying she had failed to
display a parking disc during the time she was parked. Ms Muza was then fined
$57 which was supposed to be paid at City of Harare offices at Cleveland House.
Before proceeding to pay the penalty, Ms Muza tried in vain
to negotiate with municipal police who insisted on her paying the money
reflected on her ticket.
Ms Muza sought legal advice and was told that it was
illegal for municipal police to clamp and tow away the vehicle for any crime
other than those provided in the First Schedule of the Harare Traffic By-Laws
of 1983.
Ms Muza then decided to institute legal action against City
of Harare arguing that the circumstances under which her car was clamped and
towed were not covered.
She also argued that she was supposed to be given four days
to pay the penalty before her car was towed and the City of Harare was supposed
to take her for prosecution in the event that she failed to settle the penalty
fee.
Through her lawyer, Mr Stansilous Tapiwa Mutema of
Stansilous and Associates, Ms Muza filed an urgent chamber application for
spoliation at the High Court, that is a temporary order that restores
possession of property to a holder while the main legal action continues.
In the application, Ms Muza wanted an order that Statutory
Instrument 104 of 2005 outlawed clamping and towing of vehicles within Harare’s
municipality jurisdiction whenever the crime committed was outside the First
Schedule of SI357 OF 1983.
She also wanted the High Court to order council to
reimburse the money she paid in penalties.
In its response, Harare City Council, which was being
represented by Mr Jeremiah Bamu, said Ms Muza was not candid with the court as
the towing only occurred four hours after her car was clamped.
Council said her car was towed after she had refused to pay
the penalty fees as was required by the city’s by-laws. High Court Justice Owen
Tagu dismissed the application saying it was not urgent.
Ms Muza, through Mr Mutema, appealed against the High Court
decision at the Supreme Court where the spoliation order was granted.
Justice Gwaunza, sitting with Justice Uchena and Justice
Makoni, ruled that it was illegal for municipal police to clamp and tow away
cars in the CBD. Herald
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