Concourt challenge for city's vehicle clamping, tow away

The constitutionality of by-laws allowing municipalities to clamp and tow away vehicles and the manner in which the process is carried out has been challenged and the Constitutional Court is set to determine the case soon.

Previously, some motorists have challenged the clamping of vehicles at the High Court, but for the first time, the dispute has found its way to the highest and final court in the land.

The contestation comes at a time several motorists in the city were crying foul over the mechanisms put in place by Easipark, which have seen motorists receiving exaggerated and unjustifiably high parking bills.

The system, which is arbitrary in nature, is open for abuse and officials may settle their own scores with motorists by effecting fake billings.

In the latest case filed at the Constitutional Court, a commuter operator Mr Patrick Chiremba, is challenging council's "Driver Drive Off" ticket system, which allows council traffic officers to issue out tickets to an offending motorist who speeds off despite being waved down to stop.

According to Mr Chiremba, the system is open to abuse.

Mr Chiremba is also challenging the practice by council of impounding vehicles over a parking offence but keeping the said vehicle for 14 days to allow other law enforcement agencies to come and make verifications of the same vehicle without consulting or hearing the side of owner.

To that end, Mr Chiremba wants the Constitutional Court to declare the two practices unconstitutional.

In the constitutional application filed on Friday, Harare City Council, Minister of Local Government, Public Works and National Housing and the Attorney General were listed as respondents.

Mr Chiremba, being a registered and licensed commuter operator, has commuter omnibuses that ply the Harare/Marondera route.

According to his founding affidavit, one of his vehicles was impounded in terms of Harare By-laws(Clamping and Tow Away) 2005.

In terms of that piece of legislation, no vehicle should be clamped without issuance of a ticket.

But Mr Chiremba said when his vehicle was clamped and towed away, no offence had been committed and that no ticket had been issued.

A Harare magistrate's court later found that the arresting officer had abused his authority and that he had "fixed" the driver for not paying a bribe.

The court then ordered the release of the vehicle from the council yard but council insisted and continued to hold onto the vehicle.

After impounding the vehicle without any charge, the council officers are said to have imposed a 14-day period in which the vehicle owner could not be charged or heard.

The period allowed the Vehicle Inspection Department, the Zimbabwe Republic Police and the Zimbabwe National Road Administration to do their checks and verifications.

Mr Chiremba said the practice was in violation of Section 265 (1) of the Constitution.

"This means the first respondent (council) would be checking compliance on duties under those public institutions, which it cannot do as it contravenes Section 265 (1) (c) of the Constitution.

"A local authority must exercise its functions in a manner that does not encroach on a functional or institutional integrity of another tier of Government," said Mr Chiremba.

He said the imposition of fines through the (Driver Drives Off) ticket system was also a violation of the motorists' right to be heard and was open to abuse.

"The so called DDOs (Driver Drives Off) tickets are an abuse of authority and the court needs to intervene and declare this practice to be unconstitutional . . ."

The case is yet to be set down for hearing.