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Thulani Ndlovu
THE objective of local government is to ensure the provision of services in a sustainable and Constitutional way. However, the Constitutional validity of Statutory Instrument 63 of 2015 passed by the Bulawayo City Council (BCC) and approved by Minister of Local Government, Public Works and National Housing, Cde Ignatius Chombo last month which allows council to clamp and tow away “errant vehicles” is in all probability unconstitutional, unprocedural, unfair, and arbitrary. As a result the new traffic statutory provision life span will suffer still birth before a court of law.
The purposive intention of the Statutory Instrument is noble but the provision in particular which allows city fathers, without a court order, to auction residents’ vehicles is draconian, disproportionate to the harm that it seeks to prevent (disorderly driving) and unwarranted regardless of the willful negligence or disregard of the city’s by-laws by local drivers.
The new traffic law, according to BCC senior public relations officer Nesisa Mpofu, “will permit an authorised person to clamp or tow away any vehicle, if he or she believes that a violation of traffic by-laws referred to in the schedule has been committed”. Pursuant to the same statutory instrument, the council has power to auction cars towed and unclaimed after 30 days. The new statutory instrument permits BCC to exercise legislative, executive and judicial powers at the same time contrary to the Constitutional provisions of the Republic and natural justice.
The new statutory instrument further gives rise to arbitrary deprivation of property contrary to Section 71 (3) of the Constitution. Deprivation means in general that someone is being stripped off his or her title to a property. Local municipalities above all should be careful when exercising their powers. There are peculiar and different from the national government in that the executive and legislative authority of a municipality vests in its Municipal Council. However, this executive and legislative authority derives from the people of Bulawayo and must be exercised in accordance with the Constitution.
In the same vein procedural fairness should be imperative in all municipality dealings with the public. The municipality should allow, as far as is possible for local residents to challenge decisions in a court of law if they feel aggrieved. Our courts have said on a number of occasions that residents should be given their day in court if they are not willing to admit to an alleged offence or guilt. Access to court is also enshrined in the Constitution as Right to a fair hearing.
In part, section 69 of the Constitution delineates that every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court. The new municipality traffic regulation should not be celebrated as it has been in certain circles of society but the measure should shock the collective conscience of city residents.
Yesterday it was the roll out of water-meter systems contrary to the Constitution. Today it’s the traffic regulations which give city council dictatorial powers. Tomorrow they will be more despotic laws and it will be too late for residents to call city authorities to reason. We should hold the municipality to account and not the other way around. The municipality’s law should be sound and constitutional compliant.
The new traffic statutory instrument by the city council is “extortion” camouflaged as law. It also referred to as day-light robbery. The credit crunch experienced by the city council is not only peculiar to the local municipality but is experienced through-out the country. The new traffic statutory provision is not in the interests of Bulawayo residents but is the bourgeoisie-ment of the local authority at the expense of local residents.
Peculiarly one never meets a local official selling parking discs to motorists but at the turn of every corner you will see a council official issuing a fine to motorists without parking discs or those who fail to display their parking discs in their front window screens. If we, the residents are in the best interests of our city fathers the local council should dispense officials to sell parking discs with the same vigour that they send officials to clamp vehicles.
The new statutory instrument is an imposition on the residents. It is convenient for the municipality senior public relations officer to announce that the traffic statutory instrument is taking effect but when the law was in its draft form was input sought from residents through the same platforms used to announce that the law is taking effect?
Yes, a municipality has the right to govern, on its own initiative, the local government affairs of its community, subject to national legislation, as provided for in the Constitution. The national government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions except as provided for in the relevant legislation. In turn the municipality should not forget that their legitimacy comes from the local residents.
The suggestion that a resident’s vehicle could be towed away and worse off auctioned on the belief by a council’s agent paid from the same revenue that he generates by fining vehicular owners is distressing. The council’s agent neutrality is questionable as the council’s agent stands to profit. The principal that is the local municipality also stands to benefit by increasing its revenues.
Statutory 63 of 2015 has a direct legal effect against those people whose vehicles will be clamped, towed and worse off auctioned. The effect is direct and immediate on the individuals. However, to avoid administrative paralysis the Constitution and court on a number of times have reiterated that people who wilfully admit to small fines are to pay upfront but those who want to challenge such fines should be allowed to in a court of law.
Admittedly administrative efficiency is an important goal in a democracy, and courts must remain vigilant not to impose unduly onerous administrative burdens on the state bureaucracy. In my view, however, the issue of administrative efficiency primarily informs the content of the duties imposed under administrative law rather than the scope of the application of administrative law. The latter is fundamentally determined by the relationship that exists between the administrative state and its citizens and should not be strictly delimited.
In such a situation the relevant authority should proceed by issuing summons to the allegedly defendant or accused. Any form of deprivation of property is material and adverse hence the emphasis that it should be done after a careful judicious consideration by a court of law.
Procedural fairness is concerned with giving people an opportunity to participate in the decisions that will affect them, and — crucially — a chance of influencing the outcome of those decisions. Such participation is a safeguard that not only signals respect for the dignity and worth of the participants, but is also likely to improve the quality and rationality of administrative decision-making and to enhance its legitimacy.
The right to administrative justice which encompasses procedural fairness clearly spelt in the Constitution is fundamental to realisation of the constitutional values, and is at the heart of any constitutional democracy.
The values and principles in our Constitution which were passed through an overwhelming vote in a referendum about two years ago require the municipality to prioritise democratic governance, be respectful and fair when fulfilling its statutory obligations. This is of particular importance in the delivery of public services to residents.
Online Reporter