Lawyer fights vehicle clamping in court

BULAWAYO lawyer Job Sibanda has dragged the city council to court seeking an order declaring the local authority's by-laws on the clamping and towing away of vehicles a nullity as they are unconstitutional.

Sibanda, through his law firm, Job Sibanda and Associates, yesterday filed an application at the Bulawayo High Court citing the council and the Minister of Local Government, Public Works and National Housing, Ignatius Chombo as respondents.

Sibanda is seeking an order nullifying Statutory Instrument 63/15. Minister Chombo approved the by-law in terms of section 229 of the Urban Councils Act, Chapter 29:15. The regulation allows council to clamp and tow away "errant" vehicles.

"This is a court application for an order to declare Statutory Instrument 63/15 which was approved by the Minister of Local Government, Public Works and National Housing and issued by the Bulawayo City Council unconstitutional," said Sibanda in his founding affidavit.

Sibanda whose car, a Mercedes Benz, was clamped and subsequently towed away last week, argued that Statutory Instrument 63/15 infringed his constitutional rights to administrative justice as enshrined in Section 69 of the Constitution.

The Constitutional clause provides for administrative justice that is lawful, prompt, efficient reasonable, proportionate, impartial and substantively and procedurally fair.

He said the unconstitutionality of the by-law lies in the fact that it is based on a "mere belief" by an authorised person that a violation of traffic by-laws has occurred. "A law that penalises an individual based on a belief held by an authorised official cannot, in my submission, be deemed legally justifiable. A belief does not amount to truth, and a belief in my further submission only applies in the realms of religion and not law yet Statutory 63/15 seeks to legalise penalties, and quite drastic ones, on mere belief by someone that an offence has been committed," argued the lawyer.

Sibanda said the by-law does not afford the affected person an opportunity to prove the official wrong.

"Clearly the Statutory Instrument 63/15 falls far short of my expectations to administrative conduct by an administrative body that is lawful, prompt, efficient, reasonable, proportionate and impartial. There is clearly nothing proportionate about a penalty imposed on the basis of suspicion, which penalty can potentially result in loss of one's motor vehicle and certainly incurring without the owner being given an opportunity to challenge the basis of the belief before the penalty based on that belief can be imposed," he added.

Sibanda further argued that section 71 (3) of the Constitution provides that no person may be compulsory deprived of their property except on certain stringent conditions, none of which apply in his case.

"Consequently, I submit that Statutory Instrument 63/15 be declared null and void for unconstitutionality and the respondents pay the cost of suit. It grants the city council powers that even the courts of law would be chary to exercise," said the lawyer.

Sibanda's car was clamped last Wednesday while parked outside Choppies Supermarket along Fife Street and he was expected to pay a penalty of $20 for the offence. The vehicle has since been released without a fine.

Bulawayo City Council, a fortnight ago, issued a notice warning traffic offenders of the new by-laws giving the local authority the power to clamp and tow away vehicles that violate the city's traffic regulations.