After
what can only be described as being both an eventful but arduous
journey through the courts, the applicant is now petitioning this
Court for an order declaring that section 5(2) of the State
Liabilities Act [Chapter
8:14]
is unconstitutional.
Section
5(2) of the State Liabilities Act [Chapter
8:14]
provides that State property is immune from attachment and execution,
and that, ...
After
what can only be described as being both an eventful but arduous
journey through the courts, the applicant is now petitioning this
Court for an order declaring that section 5(2) of the State
Liabilities Act [Chapter
8:14]
is unconstitutional.
Section
5(2) of the State Liabilities Act [Chapter
8:14]
provides that State property is immune from attachment and execution,
and that, in circumstances where the State finds itself to be a
judgment debtor, any amount owed by it should be paid out from the
Consolidated Revenue Fund. The applicant contends that whilst section
5(2) of the State Liabilities Act [Chapter
8:14]
remains valid, it is unjustly impeding him from realising an award of
damages granted in his favour by this court in matter number
HC4766/13.
The
long history of this matter speaks to the effort which the applicant
has applied to arrive at this day. The facts are these:
The
applicant was wrongly arrested on allegations of theft on 16 February
2008 from a person known as Andre Nsaka Nsaka. He was formally
charged and tried for theft and subsequently acquitted of the charge
of theft on 18 February 2013. After his arrest, the police seized two
of his vehicles, and cash in the amount of USD78,000= and
ZWD46,135,000,000=. Unfortunately, after his acquittal, the police
unprocedurally released the seized property to Andre Nsaka Nsaka. The
police eventually released the motor vehicles to the applicant but
failed to reimburse the applicant his cash.
That
was when the applicant began seeking recourse through the civil
courts.
He
then sued the Co-Minister of Home Affairs; the Commissioner General
of the Police; the Officer in Charge of C.I.D Suspects
(Harare Central Police) and a Detective Inspector Mukambi for the
reimbursement of the cash which had yet to be returned to him and his
efforts were rewarded when he successfully obtained a default
judgment from this Court on 18 February 2015 in case number
HC4766/13. The court ordered the defendants to reimburse the
applicant his money.
After
the applicant succeeded in obtaining an order for the payment of
US$78,900= the defendants jointly applied for that order to be
rescinded in matter HC35001/15. However, after filing that
application, all of those defendants failed to prosecute it. The
applicant was thus forced to ensure that the application for
rescission was disposed of which he did by filing an application for
dismissal of the rescission application under case number HC4942/15.
On 30 June 2015, Justice Tsanga
dismissed the respondents' application for rescission for want of
prosecution and awarded costs in the applicant's favour on a legal
practitioner and client scale.
It
would appear that the respondents had also applied for a permanent
stay of execution pending finalisation of their application for
rescission. Once again, the applicant was forced to instruct his
lawyers to ensure that that application for a stay of execution was
disposed of; and this time the applicant wrote to the respondents'
lawyers and requested them to set that matter down for hearing. The
respondents responded by withdrawing their application for a
permanent stay of execution on 2 October 2015.
Oddly,
the respondents then made an application challenging the dismissal of
their application for rescission in case number HC7065/15. Once
again, the applicant took it upon himself to instruct his lawyers to
press for a set down date. Upon receiving the applicant's request,
once again, the respondents withdrew this application on 2 October
2015.
In
February 2013, the respondents had challenged the default judgment
granted in HC4766/13 on appeal to the Supreme Court. However, the
Supreme Court threw out the respondents' appeal.
On
9 October 2015, the applicant's attorneys then addressed a letter
of demand to the respondents. They enclosed their trust account
details. In response to the letter of demand, on 26 October 2015, the
Commissioner General of the Police addressed a letter to the
applicant advising him that the Permanent Secretary in their Ministry
had granted authority to pay the sum awarded 'subject
to treasury concurrence'.
On 16 November 2015, the Director of Legal Affairs in the Police
wrote to the Permanent Secretary of Home Affairs confirming the
authorisation of payment of the applicant's legal costs in the sum
of US$10,500= which were reasonable according to them. After
telephonic follow-ups were done by the applicant's legal
practitioners, the Director of Legal Services (Police) wrote to the
applicant's attorneys citing section 5(2) of the State Liabilities
Act [Chapter
8:14]
and informing the applicant that:
“All
that the Defendants had to do was to cause to be paid out of the
Consolidated Revenue Fund…,..
And
that is exactly what we have done and have always kept you informed
so that you may properly advise your client.
We
are therefore surprised by the tone of your correspondence and to
avoid any misunderstandings between the office of the Commissioner
General of Police and his officers and yourselves, we have decided
that any future communication be done through our legal practitioners
of record, being the Civil Division of the Attorney General's
Office.”…,.
They
also attached a copy of their letter to The Director of Finance
(Police) dated the 30th
October 2015 as proof that they (Director Legal Services, Police) had
done their part to facilitate the payment to the applicant.
Still,
no payment was forthcoming to the applicant.
It
was then that the applicant tried a different tack and wrote directly
to the Minister of Finance, in a letter dated 2nd
December 2015, stating…,:
“The
long and short of the above documents is that the Defendants have
been ordered, have discharged their part, that is, by
causing to be paid out of the Consolidated Revenue Fund
which fund is administered by yourselves hence our appeal to you. Our
understanding from the attached correspondences is that, the duty to
pay is on your shoulders. Put differently, if
our client is not paid his money it is because your office would have
withheld its authority. In which case your conduct would be
contemptuous of the order granted by this Honourable Court.
…,.
Please note that we are under strict instructions to apply for
contempt of court against your Ministry as well as to approach the
Constitutional Court to have section 5(2) of the State Liabilities
Act to be declared unconstitutional…,. In the event that we proceed
against you, kindly take this letter as our notice to you in terms of
section 6 of the State Liabilities Act [Chapter 8:16].”…,.
Having
received no response to this letter, the applicant's attorneys also
wrote to the Permanent Secretary of Finance in which letter they
effectively repeated the contents of their previous letter and
informed the Permanent Secretary that in addition to the cash sums
due to the
applicant, the interest due to the applicant was in the amount of
US$11,835= calculated from 25th
January 2013 up to 25th
January 2016. The following excerpt from the letter explains the
bureaucratic stumbling blocks which the applicant had encountered…,:
“The
last communication from the Police reasonably made us believe that
they (the Police) had caused the Minister of Finance to release our
client's money; see their letter to us dated 26 November 2015. On
the strength of that, we then approached the Minister of Finance
since we thought that they were sitting on the request from the
police and from your office. See our letter to the Minister of
Finance dated 2nd
December 2015. Unfortunately, the Minister of Finance could not
favour us with a response. This prompted us to approach the
Accountant General (ex-Chequer), one Mr Zvandasara, and the Head of
Budget, a Mr Churu. These two officials categorically denied ever
receiving communication concerning the above matter let alone the
request to pay our client. Further to that, they indicated that they
do not have an obligation, in the absence of your instructions, to
pay us since we did not sue them. This came as a surprise to
ourselves and our client considering that
they had sought permission from the Minister of Finance to have that
amount released and paid to yourselves for onward transmission to
us.”…,.
In
the letter, the applicant's attorneys also informed the Minister of
their intention to make the current application in the event that
they did not receive a response within seven days of their letter. It
appears that this letter had the desired effect of prompting a
response from the Secretary of Home Affairs who acknowledged receipt
in a letter dated 4th
February 2016 and intimated that:
“All
payments made by any Government institution require several
processes such as Treasury concurrence as they are pre-requisite to
payments processes. At present, the Ministry has initiated the
required processes and will advise you on the progress made within a
reasonable time.”…,.
After
another demand by the applicant on 19 February 2016, the Secretary
for Home Affairs wrote to the applicant's attorneys stating that
'all necessary arrangements have been made to request and pay the
amount due to your client as granted by the court.'
After
a further two warnings from the applicant's attorneys, the
applicant finally approached the High Court for a mandamus
in which he cited the Minister of Home Affairs only and which he/they
obtained from this Court on 16 May 2016 in matter number HC4261/16.
The Mandamus
Order compelled the Minister of Home Affairs to comply with the court
order given by Honourable Justice Musakwa
on 18 February 2015. Costs were ordered against the respondents, once
again, on a punitive scale.
The
applicant's attorneys furnished the respondents with the court
order attached to their letter dated 7th
June 2016 and in which letter they politely urged the respondents to
comply with the mandamus
order
to avoid being in contempt of court.
Having
received no response, the applicant's attorneys applied for and
were issued with a writ of execution. They furnished the Sheriff to
serve their writ. The Sheriff of the High Court wrote a letter to the
applicant, on 15 October 2016, expressing reluctance on the part of
the Sheriff's office to serve the writ on the respondents because
of the immunity from execution which the respondents enjoyed by
virtue of section 5(2) of the State Liabilities Act [Chapter
8:16]
{hereinafter referred to as section 5(2) for ease of reference}.
This
was when the applicant made the current application for section 5(2)
of
the State Liabilities Act [Chapter
8:14]
to be invalidated on the grounds that it is unconstitutional; with
the Minister of Justice and the Attorney-General being added as
respondents.
Section
5(2) of the State Liabilities Act reads as follows:
“Section
5(2)
5.
No execution or attachment to be issued, but nominal defendant or
respondent authorised to pay the sum awarded.
(1)
In subsection (3) -
“judgment
debtor” means a person who under any order of any court, is liable
to pay money to any other person, and “judgment creditor” shall
be construed accordingly.
(2)
Subject to this section, no execution or attachment or process in the
nature thereof shall be issued the defendant or respondent in any
action or proceedings referred to in section two
or against any property of the State, but the nominal defendant or
respondents' may cause to be paid out of the Consolidated Revenue
Fund such sum of money as may, by judgment or order of the court, be
awarded to the plaintiff, the applicant or the petitioner, as the
case may be.”
In
the present matter, the applicant believes that the respondents are
indifferent to the rights which he ought to enjoy and which are
guaranteed to him by the Constitution of Zimbabwe. He believes that
whilst section 5(2) remains valid his constitutionally-guaranteed
rights are being infringed.
The
following is a point form summary of the applicant's submissions in
support of his contention that the respondents are unconstitutionally
encroaching on his fundamentally protected rights and freedoms:
1.
The Constitution provides for the enforcement of fundamental human
rights and freedoms per
section 85 of the Constitution:
“85.
Enforcement of fundamental human rights and freedoms
(1)
Any of the following persons, namely -
(a)
Any person acting in their own interests;
(b)…,.
(c)…,..
(d)…,.
(e)…,.
is
entitled to approach a court, alleging
that a fundamental right or freedom enshrined in this Chapter has
been, is being or is likely to be infringed, and the court may grant
appropriate relief, including a declaration of rights and an award of
compensation.”…,.
2.
The applicant submits that section 5(2) of
the State Liabilities Act
is unconstitutional in that despite the Constitution providing for
equality before the law, the section under scrutiny places the
respondents in inequitable superiority to other persons and all other
bodies and institutions.
He
submits that the Constitution does not recognise that there should be
such a distinction or that the rights of a certain class of persons
be preferred over another class of persons and that that is certainly
not the intention behind the guaranteed right in section 56 of the
Constitution:
“56
Equality and non-discrimination
(1)
All persons are equal before the law and have the right to equal
protection and benefit of the law.”
3.
In addition, he cites other provisions of the Constitution which he
believes deem section 5(2) to be unconstitutional. Those are as
follows:
Section
44 imposes a duty to respect the Declaration of Rights pari
pasu
on both the State and person without limitation.
“44
Duty to respect fundamental human rights and freedoms
The
State and every person, including juristic persons, and every
institution and agency of the Government, at every level, must
respect, protect, promote and fulfil the rights and freedoms set out
in this Chapter.”
Section
45 provides a 'for the avoidance of doubt' emphasis of this duty.
“45
Application of Chapter 4
(1)
This Chapter binds the State and all executive, legislative and
judicial institutions of Government at every level.”
4.
Section 164(3) provides for compliance with court orders without
limitation.
“164
Independence of the Judiciary
(1)…,.
(2)…,.
(3)
An
order or decision of a court binds the State and all persons and
Governmental institutions and agencies to which it applies, and must
be obeyed by them.”
5.
The applicant has also stressed that the respondents, like any other
litigants, are constitutionally bound to obey court orders, per
section 164(3) of the Constitution, and that the court is mandated to
ensure compliance thereto without favour or prejudice:
“164
Independence of the Judiciary
(1)
The courts are independent and are subject only to this Constitution
and the law, which
they must apply impartially, expeditiously and without fear, favour
or prejudice.”…,.
6.
The Constitution specifically requires the respondents, who are State
representatives, to protect the democratic functions and processes of
the courts and ensure compliance with the provisions in the
Constitution.
“164
cont'd
(1)
The independence, impartiality
and effectiveness of the courts are central to the rule of law and
democratic governance, and therefore
-
(a)
Neither the State nor any institution or agency of the Government, at
any level, and no other person, may interfere with the functioning of
the courts;
(b)
The
State, through legislative and other measures, must assist and
protect the courts to ensure their independence, impartiality,
dignity, accessibility and effectiveness and to ensure that they
comply with the principles set out in section 165.”
7.
Furthermore, he complains that the respondents have denied him access
to information and that none of the respondents have been forthcoming
with proof that they were indeed processing his claim despite their
constant assurances. To that end, he submits that the respondents
have breached his constitutionally guarded right to information
provided for in section 62 of the Constitution which reads:
“62.
Access to information
(1)
Every Zimbabwean citizen or permanent resident, including juristic
persons and the Zimbabwean media, has the right of access to any
information held by the State or by any institution or agency of
Government, at any level, in so far as the information is required in
the interests of public accountability.
(2)
Every person, including the Zimbabwean media….,.
(3)
Every person has the right to the correction of information, or the
deletion of untrue, erroneous or misleading information, which is
held by the State or any institution or agency of the Government, at
any level, and which relates to that person.”
The
respondents are opposing the application arguing that section 5(2) of
the State Liabilities Act [Chapter
8:14]
is
not unconstitutional, and is, in fact, necessary and justifiable and
is in the public interest.
The
respondents believe that section 86(3) of the Constitution supports
section 5(2) of
the State Liabilities Act as
being a law of general application which permits a limiting of the
applicant's fundamental rights and freedoms, and that, to that
extent, they have not fallen foul of the law.
“86
Limitation of rights and freedoms
(2)
The fundamental rights and freedoms set out in this Chapter may be
limited only in terms of a law of general application and to the
extent that the limitation is fair reasonable and necessary in a
democratic society based on openness, justice, human dignity,
equality and freedom and taking into account all relevant factors,
including -
(a)
The nature of the right or freedom concerned;
(b)
The purpose of the limitation, in particular, whether it is
necessary, in the interests of defence, public safety, public order,
public morality, public health, regional or town planning or the
general public interest;
(c)
The nature and the extent of the limitation;
(d)
The need to ensure that the enjoyment of rights and freedoms by any
person does not prejudice the rights and freedoms of others;
(e)
The relationship between the limitation and its purpose, in
particular, whether it imposes greater restrictions on the rights and
freedoms concerned than are necessary to achieve its purpose;
(f)
Whether there are less restrictive means of achieving the purpose or
the limitation.”
The
respondents contend that:
1.
Section 5(2) of the State Liabilities Act is, in fact, necessary in
the interests of the public because if State assets could be executed
then chaos would ensue and disruption to essential services, such as
ambulances, will occur; {section 86(2)(b) of the Constitution}.
2.
That the applicant ought to resort to other legal remedies to enforce
payment such as obtaining a contempt of court order or obtaining a
garnishee order against income accruing to the State; {section
86(2)(f) of the Constitution}.
3.
They are not reluctant to pay, but that there are procedures which
need to be followed first in terms of the Public Finance Management
Act [Chapter 22:19] and Treasury instructions because they are the
relevant procedures for payment of court ordered debts.
4.
If Government assets become executable the country may experience
difficulties due to the current dire economic environment.
