The clamping and towing away of vehicles by the Harare City Council is illegal, according to a ruling by the Supreme Court.
Council can however fine offenders under its 1983 regulations and if they do not pay within four days as stipulated in the by-laws, it should have them prosecuted in court.
The Supreme Court ruling comes after Ms Melody Muza, a Harare motorist, challenged the municipality for clamping and towing away her vehicle for failure to display a parking disc, while she was parked in a council bay along Park Street in May of 2019.
Justices Elizabeth Gwaunza, Tendai Uchena and Lavender Makoni, sitting at the Supreme Court, made the ruling on October 14 2020, stating that council could only legally act under the Harare Traffic By-Laws of 1983.
On May 3 last year 2019, Ms Muza parked her car along Park Street in the capital Harare at around 12.30pm.
Municipal police officers clamped her vehicle stating that she had failed to display a parking disc during the time that she was parked there. 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.
She then 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 the City of Harare, arguing that the circumstances under which her car was clamped and towed away 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. This refers to 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 that she paid in penalties.
The Harare City Council, in it’s response which was being represented by Mr Jeremiah Bamu, said that 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.
More: The HeraldHerald