Businessman challenges the State Liabilities Act

The High Court has reserved its ruling over a constitutional application challenging the validity of a section of the State Liabilities Act which insulates state property from being executed in the process of complying with a court order.

The application was lodged by Mutare businessman Tendai Mangwiro who last week won a case in which the Home Affairs Minister Dr Ignatious Chombo was found in contempt of court over his failure to pay more than US$1.5 million which was seized by the police in 2008.

Mangwiro is living no stone unturned in asserting his rights as he has dragged the Minister of Justice, Legal and Parliamentary Affairs, the Minister of Home Affairs and the Attorney General to court challenging the constitutionality of Section 5 Sub-section 2 of the State Liabilities Act.

Through Advocate Tawanda Zhuwarara, Mangwiro argued before Justice Edith Mushore that his legal rights enjoyed by litigants to cause the attachment and execution of property of a creditor who refuses to voluntarily comply with a court order is not enforceable to a state entity because of Section 5 Sub-section 2 of the State Liabilities Act which insulate state entity's against attachment or execution.

Zhuwarara added that the provision of the State Liabilities Act goes against the notion of constitutional supremacy as it violates Section 56 Sub-section One of the constitution which guarantees that all persons are equal before the law and have right to equal protection and benefit of the law.

He said the same provision in the State Liability Act creates an unjustifiable differentiation against a litigant who obtains a judgement against the state and one who obtains a judgement against a private individual where in the second scenario a litigant is allowed to execute property to recover his dues a relief which is denied against recovering debts from state entities.

He said all spheres of government are creatures of the constitution and have to respect the constitutional status which is bound by court orders for the balance of power to be realised.

Failure to enforce compliance to judicial orders affects the soul of the power given to the judiciary by the constitution.

He said Section 5 Sub-section 2 of the State Liabilities Act places the respondents above the law.

Mr Magadure from the Attorney General's Office said government is facing financial challenges and cannot afford to pay and the only way payment can be effected is through the drawing of funds from the Consolidated Revenue Fund which can only be done through an act of parliament.

Justice Mushore reserved her ruling over the application which she said she will prepare during the pending vacation.