HIGH Court judge Justice Sunsley Zisengwe has thrown five
City Parking supervisors under the bus after dismissing their application
seeking an order declaring illegal, null and void Statutory Instrument (SI)
104/2005 which empowers the City of Harare to clamp and tow away vehicles.
The five supervisors had argued that the said by-law is
contrary to section 4 and 8 of the Municipal Traffic Laws Enforcement Act, but
their application did not find favour with Justice Zisengwe who said the
parking bosses used a wrong procedure to approach the court and had not cited
Local Government minister, July Moyo as a party to the court case.
City Parking, a subsidiary of the City of Harare, is
mandated to collect parking fees from motorists in and around the capital’s
central business district.
In his judgment Justice Zisengwe said City of Harare and
City Parking (Pvt) Ltd raised preliminary points stating that the City Parking
bosses lacked locus standi to bring the application to court.
“Some of the questions that spring to mind include,
precisely who in the employ of the first respondent (City of Harare) is in the
habit of issuing such instructions? When were (or are) those instructions
given? In what context are these instructions given? Where are these
instructions given? On what authority does the person giving those instructions
purports to give them? To compound matters, the second respondent (City Parking
(Pvt) Ltd) who is alleged by the applicants (supervisors) to be also a
recipient of the same alleged instructions denies ever having received such
instructions,” Justice Zisengwe said.
“There are, therefore, patent disputes of facts. Sight must
not be lost of the fact that a declaration by the court of the invalidity or
unlawfulness of the alleged instruction (as sought by the applicants) is
dependent upon a finding that such instructions were (or are being) given by
the first respondent in the first place. The question, therefore, is what to do
in the face of these glaring disputes of fact.”
In the combined founding affidavit, filed by Blessing Duma,
Bota Mike, Marwa Shupai, Pardon Chifanzwa and Ruth Njerere, the supervisors
said the implementation of the said by-law has since landed some of their
workmates behind bars after being convicted of criminal abuse of office.
“The present application is for a declaratory and ancillary
relief to the following effect that Section 4 (2), 3 and 4 of the Statutory
Instrument 104 of 2005 Harare (Clamping and Towing Away) By-Laws (hereinafter
referred to as SI 104 of 2005) be and is hereby declared to be ultra vires
section 4 and 8 of the Municipal Traffic Laws Enforcement Act,” they said.
“Following the passing of this resolution first respondent
(City of Harare) started to unlawfully instruct its employees within the
traffic section to clamp offending vehicles first and issue a ticket or notice
thereafter …this has led to the arrest, prosecution and conviction of some
employees within the traffic section for the criminal offence of abuse of
office.”
The supervisors also urged the court to issue another order
to compel the City of Harare to withdraw disciplinary proceedings against them
and some of their colleagues arguing the charges were emanating from an
illegality and an unlawful order.
Justice Zisengwe, however, said the five supervisors had
used the wrong procedure for the relief sought and that the non-joinder of the
minister responsible for the promulgation of SI 104/2005 renders the
application fatally defective. Newsday
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