CLAMPING OF CARS BY THE HARARE CITY COUNCIL

Of late, many motorists have had their cars clamped in the CBD by the Municipal Traffic Police in Harare for one or other traffic offence. Popular musician Ricky Fire was one such motorist a month or so ago. His car was not displaying a valid vehicle licence, and they clamped it. The ticket they issued required him to pay a total of US$132-00, made up of US$50-00 fine, US$65-00 clamping fee and US$17-00 VAT. We assume herein that the motorist admits guilt.

Is it legal for the Municipal Police to clamp cars for failure to display vehicle licences? Is the US$50-00 fine lawful? Is it lawful for them to levy VAT on the fines? Is it proper for them to clamp the vehicle without giving the motorist the right to pay the fines later? Let’s get a little legal.

The Municipal Police derive their arresting power in respect of this offence from section 4(c) of the Harare (Parking) By-laws 1983 as provided in Harare (Clamping and Tow Away) By-laws, 2005, Statutory Instrument 104 of 2005, as read with the Municipal Traffic Laws Enforcement Act [Chapter 29:10]. Indeed, the ticket they issue is headed “Municipal Traffic Laws Enforcement Chapter 29:10”.

However, section 3 of the Municipal Traffic Laws Enforcement Act lists the offences to which it applies, and those offences do not include failure to display vehicle licences. They relate to prevention of obstruction of roads by motor vehicles, regulation or controlling of parking, prohibition of parking in roads or sanitary lanes, among others. In short, they relate to physical parking of motor vehicles. There is a disconnect between the by-laws and the primary legislation from which they purport to derive their powers. The by-laws could be ultra vires the enabling Act, for they include an offence that the primary legislation does not cover.

Assuming that the Municipal Traffic Laws Enforcement Act allowed the Municipal Police to arrest people for failing to display vehicle licences, the next question would be the level of fines the Municipal Police would lawfully impose for such offences. The offence of failing to display a vehicle licence is under the Vehicle Registration and Licensing Act [Chapter 13:14]. Section 22 thereof requires vehicles to be licensed at all times, and section 29 makes it an offence to fail to display the vehicle licence. A contravention of this provision attracts a fine not exceeding Level 3. On the current standard scale of fines, Statutory Instrument 25 of 2021, this fine would be ZW$2,000.00. In US dollars, that would be US$23.35 at the ruling rate on 30 July 2021 when the S.I was gazetted. Where does the Municipal Police get the US$50-00 fine? The municipal police get their powers from subsidiary legislation. Subsidiary legislation is subordinate to primary legislation. The Municipal Police cannot impose a fine that is more than the one imposed by the primary legislation. In this case, the primary legislation is the Vehicle Registration and Licensing Act, and it imposes a fine not exceeding US$23.35 for failing to keep a motor vehicle licensed at all times. The Municipal Traffic Laws Enforcement Act under which the Municipal Police issues tickets provides in section 9 that any fixed penalties (fines) they impose shall not be greater than one-third of the maximum fine prescribed by law in respect of such offence.  As has been shown above, the maximum penalty for failing to display a vehicle licence is US$23.35. One third thereof would be US$7.83. This would be the maximum penalty that the Municipal Police would impose. If there is a by-law that gives the Municipal Police power to impose US$50-00 fines for failing to display vehicle licences, it is ultra vires the primary legislation.

Another problem with the fines levied by the Municipal Police through the tickets is that they levy VAT thereon. A calculation shows that the US$17-00 cited above is 14.5% of US$115-00 ($50+$65). Is it lawful for anyone to charge VAT on fines? Has anyone ever seen VAT being charged on fines imposed by the courts? What “services” would the Municipal Police have supplied, as contemplated in the Value Added Tax Act, which require the charging of VAT? It appears to be an arbitrary levying of VAT.

Then comes the clamping fee of US$65-00. This is a fee imposed, not for towing the vehicle away, but for placing a wheel clamp to immobilize the car! How can such fee be more the fine for the offence for which the car is being clamped? There is a gross lack of proportionality here. Not only that, the motorist will be paying for being “clamped”! It is akin to the police charging arrested persons a “handcuffing fee”! This is ridiculous. A person should not be caused to pay for being clamped! These occurrences are not by choice. No one chooses to be clamped. Law enforcement is a primary duty of the State. It is not a service rendered to individual citizens for which they can individually pay.

One last problem with the Municipal Police clamping cars is that the clamping deprives the motorist of the right to pay the fines within 4 days (without attracting a default penalty) or 25 days (with a default penalty) as provided in section 4(3) and (4) of the Municipal Traffic Laws Enforcement Act. When the Municipal Police issue a ticket and then clamp the motor vehicle there and then, the motorist is effectively deprived of the opportunity to pay the fines within 4 days or 25 days as described above. It defeats the essence of the ticket, which is a notice to pay a fine! What is more, if the motorist does not secure the unclamping of the motor vehicle by paying the fine and clamping fee and VAT, the Municipal Police can tow it away and put it in storage where further costs are incurred by the motorist. The amounts to be paid can easily become astronomical for an offence that required at most a level 3 fine of US$23.35. This could not have been the design of the law on display of vehicle licences.

Having said all the above, what then shall we say? The culprit are the Municipal by-laws. They are ultra vires the primary legislation. They give the Municipal Traffic Police powers that the primary legislation does not give them. You will be surprised to know that the Municipal Traffic Police in this instance actually have greater powers than the Zimbabwe Republic Police Traffic Officers. The ZRP will impose a US$10-00 fine for failure to display a vehicle licence and will not impound the car. For the problem to be corrected, someone has to approach the superior courts with a constitutional challenge of the validity of the Municipal by-laws. Only after the by-laws are declared invalid would the clamping and the attendant fines and fees be illegal. For now, they are legal. I urge you, my fellow motorists, to do everything possible to avoid the clamp!

Get in touch on rmukavhi@gmail.com

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