On November 21,2020, The Herald newspaper published an article titled Vehicle clamping, towing Illegal-Supreme Court.
By Jeremiah Bamu
That article portrays and has been understood by a wide section of the Zimbabwean populace to imply that it is unlawful for the city of Harare to clamp and tow away motor vehicles for motorists who would have violated the municipal traffic bylaws. It further gives the impression that this is the position that was pronounced by the Supreme Court. The impression given by The Herald in the article is erroneous and misleading.
There is no written judgment from the Supreme Court which says what The Herald alleges. The Herald article is not based on any actual judgment of the Supreme Court. Instead, it is based on a subjective interpretation of the arguments made before the Supreme Court on the appeal that had been brought against the City of Harare by Melody Muza.
The correct position is that city of Harare can lawfully clamp and tow away vehicles for violation of the Harare Municipal Traffic By-laws. The City of Harare derives the power and legal right to clamp and tow away motor vehicles from the Harare (Clamping and Tow Away) By-laws ,2005 (Statutory Instrument 104/2005). At the time she took her matter to the high Court, in May 2019, Section 4(1) of Statutory Instrument 104 /2005 reads as follows:
Wheel-clamping and towing away
An authorised person may, if he or she has reason to believe a violation of the Harare Traffic By-Laws ,1983, specified in the first schedule has been committed, immobilise or cause such motor vehicle to be immobilized by way of a wheel clamp.
Provides that no motor vehicle shall be clamped without a traffic ticket having been issued first.
What this meant was that the City of Harare could only clamp and tow away motor vehicles for offences that were specified in the 1983 by-laws only. That position was changed from December 20, 2019, when the Harare Clamping and Tow Away (Amendment) By-laws,2019 (No 1), Statutory Instrument now permits the City of Harare to clamp and tow away motor vehicles whose drivers /owners would have violated any of Harare municipal traffic by-laws specified in the first schedule to statutory instrument 104/2005.
Melody Muza ‘s vehicle had been clamped for violation of the 2000 by laws. Statutory Instrument 104/2005 at the time had been drafted in a clumsy way in which it could be understood as permitting the clamping and towing of vehicles for violation of the 1983 by-laws only to the exclusion of the 2000 by-laws.
This is the position that was changed by 2019 amendment to the by-laws which now included the 2000 by –laws and other by-laws already captured in the first schedule to Statutory Instrument 104/2005.
The law does not apply in retrospect. She was, therefore, successful in the supreme court on a technicality that had been rectified by the 2019 amendment to the by-laws.
The correct position at law, therefore, is that the city of Harare can lawfully clamp and tow away vehicles for the violation of Harare Municipal Traffic By-laws. It is, therefore, prudent for all motorists to take heed and conduct themselves in a manner that will not result in any inconvenience on their part
Jeremiah Bamu is a human rights lawyer. He writes in his personal capacity.
