via Spot fines saga in Concourt | The Herald February 19, 2015
A Harare motorist yesterday approached the Constitutional Court challenging the traffic police’s practice of demanding spot fines. Mr Andrew Makunura argues that the practice is unconstitutional and that the law enforcement agents must be ordered to stop this. The debate was sparked by High Court Judge Justice Francis Bere, who recently made a judicial observation that police were forcing people to pay spot fines when there was a provision allowing motorists to pay at a later date or to deny the charges.
The case intensified with police spokesperson Chief Superintendent Paul Nyathi publicly slamming the judge, accusing him of interfering with police operations.
Chief Supt Nyathi urged motorists to continue paying spot fines and to ignore the judge’s remarks, which he dismissed as his personal opinion.
In Mr Makunura’s application, the Minister of Home Affairs, the Commissioner-General of Police, Constable Agrippa Chinyama and the Attorney-General were cited as respondents in their official capacities.
Zimbabwe Lawyers for Human Rights filed the application yesterday afternoon and the respondents are expected to file their opposing papers soon.
The application emanated from an incident of February 12 this year when Mr Makunura was arrested by Constable Chinyama along High Glen Road in Glen Norah at a roadblock.
When he was waved to stop, Cst Chinyama asked for a driver’s licence, which he was given.
The policeman checked around the vehicle before demanding a radio licence. Mr Makunura failed to produce the licence and the police demanded that he pay a spot fine.
He indicated that he had no $10 on his person but undertook to pay later at the police station but the policeman would have none of it.
They held on to his licence and began to deal with other motorists.
“After 45 minutes, or so, the third respondent (Cst Chinyama) returned and insisted that I should pay a fine of $10 for the radio licence,” he said.
After 1 hour 10 minutes of resistance, the policeman then asked him to visit Southerton Police Station to pay the fine in Room 11 within five hours the same day.
He did not release the driver’s licence though.
Mr Makunura argues that the actions of the police on that day were not justified at law.
“I am advised that there is no law, regulation or rule that permits officers under the command and direction of second respondent (Commissioner General of Police) to demand that I pay a fine on the spot.
“I aver that if third respondent had reasonable cause to believe that I was a (radio) listener and that I had failed to produce a licence, he was obliged to serve me with a notice in the prescribed form requiring me to produce the licence within seven days as prescribed in Section 38 D of the Broadcasting Services Act.
“I am further advised that Section 356 of the Criminal Procedure and Evidence Act does not authorise the police to demand payment of a fine on the spot,” he said.
Mr Makunura said by demanding payment of a fine, the police violated Section 69 (1) and (3) of the Constitution as they arrogated themselves to be the complainant, prosecutor, judge and executioner at once.
It was also submitted that the police violated Section 86 (3) (e) of the Constitution by demanding the fine without asking the motorist whether he was admitting or denying the charge.
By confiscating the driver’s licence until payment of the fine, Cst Chinyama allegedly violated Mr Chinyama’s right to freedom of movement as enshrined in Section 66 of the Constitution.
Mr Chinyama wants the highest court of the land to make a declaration that the police’s conduct was unconstitutional and to bar them from the practice.
COMMENTS
Somehow Zimbabwean motorists need to show support for Mr Andrew Makunura. He is quite correct in his submission, and not all of us are rolling banks able to pay fines at the multiple police road block you come across. ( 8 police stops on Hre Drive from Marlborough to Masasa 2 days ago) most motorists have no problem if found at genuine fault to pay a penalty, however a substantial amount of fines are levied on simple issues that in a normal country would warrant a warning. Policing in this country is not aimed at preventive it is reactionary. police actively hunt down minor transgressions and blow them out of proportion. ie concealing themselves to just to catch speedsters. As opposed to being highly visual so that the speedster does not even get the opportunity to speed.
Good luck to Mr Makunura , I seriously wish you the best and sincerely hope the general motoring public get behind you on this one. I’m glad someone has the balls to take them on. Lying thieving criminal organisation the ZRP Zimbabwe’s Rubbish Police is!!!
The prevalence of corruption and fraudulent activities in our society is unacceptable and can only derail the efforts that are in place to achieve the goals set out in the Constitution. The cancer of corruption that is eating into Zimbabwe’s public service delivery system, if not dealt with, will destroy the country’s economy.
There is no law which compels a motorist to deposit a fine with the police if he desires to challenge the alleged offence. But it looks like the motorists are being forced to pay these fines on our public roads irrespective of their attitude to the charges. Any collection made by the police must be made in terms of Section 356 of the Criminal Procedure and Evidence Act (Chapter 9:07). That piece of legislation does not support the manner in which the spot fines are being collected and handled by the police.The section does not give police officers the power to force a motorist to pay a fine on the spot if he does not wish to do so or if he does not have the money on his person.
The police do have the power to issue spot fines. They can, if they find fault with your vehicle or your manner of driving, issue a fine on the spot.
In other words, they do not have to go through the normal process of charging the motorist, opening a docket and sending the matter to the Prosecutor-General for prosecution through the courts.n other words, the police have the power to write a ticket and to impose a penalty, up to a certain maximum limit, but the motorist is allowed a reasonable time within which to pay. This means the police have no power to compel the motorist to pay on the spot.
This is an administrative system designed to reduce the burden on the prosecution authorities and the courts. There would be a deluge of minor cases before the courts and an already over-burdened judicial system would not survive the additional baggage.
The legislative reasoning was that these are minor offences, which can be dealt with administratively, by the police authorities using their discretion in a reasonable manner.
If however, the motorist wishes to contest the imposition of a penalty, he or she is entitled to do so, consistent with rights enshrined in the Constitution.
The police are not the only authorities that have the power to issue fines on the spot. Parking tickets are another form of spot punishment. In the case of some car parks in Harare, the local authority has outsourced this responsibility to private companies, who also have the power to issue tickets on the spot for parking offences.
These powers are not unique to authorities in Zimbabwe. Public authorities in other countries do have these powers to issue fines on the spot.
Therefore, whether or not the police have the power to issue fines on the spot is not contested.
However, as this administrative action, it must be consistent with the rights to fair administrative conduct as enshrined in the new Constitution under s. 68. In other words, the police should not, in administering spot fines, act in a manner that infringes upon the motorist’s rights to fair administrative conduct. This leads us to the next question.
The police have the power to write a ticket and to impose a penalty, up to a certain maximum limit, but the motorist is allowed a reasonable time within which to pay. This means the police have no power to compel the motorist to pay on the spot.The police do have the power to issue spot fines. They can, if they find fault with your vehicle or your manner of driving, issue a fine on the spot.
In other words, they do not have to go through the normal process of charging the motorist, opening a docket and sending the matter to the Prosecutor-General for prosecution through the courts.
This is an administrative system designed to reduce the burden on the prosecution authorities and the courts. There would be a deluge of minor cases before the courts and an already over-burdened judicial system would not survive the additional baggage.
The legislative reasoning was that these are minor offences, which can be dealt with administratively, by the police authorities using their discretion in a reasonable manner.
If however, the motorist wishes to contest the imposition of a penalty, he or she is entitled to do so, consistent with rights enshrined in the Constitution.
The police are not the only authorities that have the power to issue fines on the spot. Parking tickets are another form of spot punishment. In the case of some car parks in Harare, the local authority has outsourced this responsibility to private companies, who also have the power to issue tickets on the spot for parking offences.
These powers are not unique to authorities in Zimbabwe. Public authorities in other countries do have these powers to issue fines on the spot.
Therefore, whether or not the police have the power to issue fines on the spot is not contested.
However, as this administrative action, it must be consistent with the rights to fair administrative conduct as enshrined in the new Constitution under s. 68. In other words, the police should not, in administering spot fines, act in a manner that infringes upon the motorist’s rights to fair administrative conduct. This leads us to the next question.
“Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute”.
It should be added that the right to a fair trial is one of the rights that are specially protected under s. 86(3) which states that this special class of rights shall not be limited under any law. To the extent that the imposition of spot fines and the manner in which the penalty is administered abrogates the right to a fair trial, such conduct or any law upon which is based is arguably unconstitutional.
Spot fines as currently administered are, arguably, in violation of these fundamental rights. A person must have the right to access the courts to challenge the spot fine and this should not be rendered useless by police practice that involves the impounding of vehicles.
Having said this, and seeing that the police are unwilling to budge and that Government does not seem to be in a mood to encourage them to comply with the law, the best course of action would be for a member or members of the public to bring a specific legal challenge before a court of law.
Granted, Justice Bere may have to recuse himself if the matter were to fall on his judicial desk, but the fact that he made remarks on this matter does not mean all other judges are compromised. A clear determination probably by the highest court of the land, the Constitutional Court, is probably the best solution in the circumstances.