Vehicle clamping, towing illegal, says Supreme Court

It is illegal for Harare City Council to clamp and tow away vehicles parked in the city centre without displaying parking discs, the Supreme Court has ruled. However, council can fine offenders under its 1983 regulations and if they do not pay within four days, it should have them prosecuted in court.

The Supreme Court made the ruling after a Harare motorist, Ms Melody Muza, challenged the municipality for clamping and towing her car for failing to display a parking disc while she was parked in a council bay along Park Street in May last year.

Justices Elizabeth Gwaunza, Tendai Uchena and Lavender Makoni, sitting at the Supreme Court, made the ruling on October 14, stating that council could only legally act under the Harare Traffic By-Laws of 1983.

On May 3 last year, Ms Muza parked her car along Park Street in the capital at around 12.30pm.

Municipal police clamped her car saying she had failed to display a parking disc during the time she was parked. Ms Muza was then fined $57 which was supposed to be paid at City of Harare offices at Cleveland House.

Before proceeding to pay the penalty, Ms Muza tried in vain to negotiate with municipal police who insisted on her paying the money reflected on her ticket.

Ms Muza sought legal advice and was told that it was illegal for municipal police to clamp and tow away the vehicle for any crime other than those provided in the First Schedule of the Harare Traffic By-Laws of 1983.

Ms Muza then decided to institute legal action against City of Harare arguing that the circumstances under which her car was clamped and towed were not covered. She also argued that she was supposed to be given four days to pay the penalty before her car was towed and the City of Harare was supposed to take her for prosecution in the event that she failed to settle the penalty fee.

Through her lawyer, Mr Stansilous Tapiwa Mutema of Stansilous and Associates, Ms Muza filed an urgent chamber application for spoliation at the High Court, that is a temporary order that restores possession of property to a holder while the main legal action continues.

In the application, Ms Muza wanted an order that Statutory Instrument 104 of 2005 outlawed clamping and towing of vehicles within Harare's municipality jurisdiction whenever the crime committed was outside the First Schedule of SI357 OF 1983. She also wanted the High Court to order council to reimburse the money she paid in penalties.

In its response, Harare City Council, which was being represented by Mr Jeremiah Bamu, said Ms Muza was not candid with the court as the towing only occurred four hours after her car was clamped. Council said her car was towed after she had refused to pay the penalty fees as was required by the city's by-laws.

High Court Justice Owen Tagu dismissed the application saying it was not urgent. Ms Muza, through Mr Mutema, appealed against the High Court decision at the Supreme Court where the spoliation order was granted.

Justice Gwaunza, sitting with Justice Uchena and Justice Makoni, ruled that it was illegal for municipal police to clamp and tow away cars in the CBD.