BY CHARLES LAITON
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.