Roselyn Hanzi v Zimbabwe National Road Administration and Commissioner General of Police and Minister of Transport, Communication and Infrastructural Development and City of Harare

### Preamble
1
HH 260-12
HC 6164/12
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ROSELYN HANZI

versus

ZIMBABWE NATIONAL ROAD ADMINISTRATION

and

COMMISSIONER GENERAL OF POLICE

and

MINISTER OF TRANSPORT, COMMUNICATION

AND INFRASTRUCTURAL DEVELOPMENT

and

CITY OF HARARE

HIGH COURT OF ZIMBABWE

MUTEMA J

HARARE, 12 & 20 June 2012

Urgent Chamber Application

T. Bhatasara, with him D. Chimbga and B. Chinowawa

for the applicant

I. Ndudzo, with him F. Mutamangira and

J. Mutevedzi for the first respondent

C. Chidzenga, for the second and third respondents

A. Zvoutete, for the fourth respondent

MUTEMA J:  The applicant is a qualified legal practitioner. She is with the Zimbabwe Lawyers for Human Rights. On 7 June, 2012 she was driving her Mazda 626 Familia motor vehicle registration number ABF 8666 en route to a business meeting. She was stopped by the police at a roadblock along Robert Mugabe Road near Rhodesville Police Station. The motor vehicle had no current licence disc as required in terms of the Vehicle Registration and Licensing Act, [Cap 13:14], (the Act)  the previous licence having expired on 31 May, 2012.

She explained to the police her predicament that she had failed to renew the licence due to the long queues that were experienced at first respondent’s (Zinara) licensing outlets and that had arranged to renew the licence in Marondera. On a legal plane, she further told the police that they could not legally make her pay a fine because s 36 of the Act provided a grace period of a month within which to regularise her situation and as such she had until 30 June, 2012 without being fined. Her submissions did not find favour with the police details at the road block who insisted on her paying an admission of guilt fine. She contacted her legal practitioners of record who despatched lawyers to attend to her situation. However, the police details were undaunted by the arrival of her legal practitioners stating that either she paid the fine or risked arrest with her motor vehicle being impounded whilst the docket was being prepared. She then paid $10 admission of guilt fine for “no current vehicle license” under protest.

On the same day she filed the present application seeking a provisional order whose terms are couched in this vein:

“TERMS OF THE FINAL ORDER SOUGHT

A declaratur that the first respondent’s pronouncement on 4 June 2012, cancelling the extension be and is hereby declared ultra vires s 36 Vehicle Registration and Licensing Act.

A declaratur that the applicant’s detention and fining by the second respondent’s functionaries at Rhodesville Police station be and is hereby declared unlawful.

That the admission of guilt fine paid by the applicant be and is hereby set aside and accordingly; the second respondent be and is hereby ordered to restitute the applicant US$10 paid as an admission of guilt fine.

First respondent to pay the costs of this application.

TERMS OF THE INTERIM RELIEF GRANTED

Pending the return date in this matter, the following interim relief be and is hereby granted:-

That, prior 30 June 2012, the second respondent be and is hereby interdicted from arresting and or fining any person whose vehicle licence expired on 31 May 2012.

That, prior to 30 June the first and second respondents be and is (sic) hereby interdicted from acting on the threats to arrest, fine and/or impound the vehicles whose licences expired on 31 May 2012.

That, prior to 30 June 2012 the fourth respondent be and is hereby barred from clamping, fining and or towing any vehicles whose vehicle licences expired on 31 May 2012.

That the first respondent be and is hereby ordered to publicise this court order to members of the public”.

According to the applicant, the nub of her grievance, apart from the arrest

and fine, stems from the following scenario as postulated by herself: Zinara introduced a new computerised vehicle licensing system but its functionaries were overwhelmed by sheer numbers of vehicle owners, thus failed to clear everyone by the cut off date of 31 May, 2012. On 31 May, 2012 Augustine Moyo, Zinara’s head of Corporate Communications announced on state television and national radios and national newspapers that Zinara had decided to extend the deadline in terms of which she could license her vehicle to 30 June, 2012. She attached annexure “B” – the Herald newspaper article announcing the extension of the deadline. She said this extension was in accordance with the provisions of s 36 of the Act. This reaffirmed her legitimate expectation that Zinara would act in accordance with the law. It also gave her reason to wallow in the comfort zone that she could drive her vehicle on public roads without the fear and apprehension of being fined by the second and fourth respondents’ functionaries until after 30 June, 2012.

However, her hopes were dashed when on 4 June, 2012 Zinara unilaterally and without warning, announced that the licensing extension granted motorists had been revoked. The said Augustine Moyo advised that since the queues at the licensing points had disappeared, the extension was no longer necessary. In an article which was flighted in the Herald newspaper on 6 June, 2012, an apparently emotional Mr Moyo is reported to have encouraged the second respondent to descend on motorists who did not have the requisite licence disc issued by Zinara. That same article also quotes the second respondent’s spokesperson, Superintendent Andrew Phiri as saying that the police would arrest motorists for failure to display valid licence discs from 6 June 2012. She attached the said article as annexure “D”.

The applicant’s contention was that in her opinion, the provisions of s 36of the Act are peremptory and cannot therefore be deviated from as was done by Zinara and the second respondent’s functionaries. She contended that their actions are illegal because the correct interpretation of s 36 of the Act is that one can only be penalised for non-compliance after the last day of the month following that in which the previous licence expired. Logically therefore she can only be penalised for non-compliance after 30 June, 2012. She further averred that Zinara’s actions breached s 18(1a) of the Constitution which provides that every public officer has a duty towards every person in Zimbabwe to exercise his/her functions in accordance with the law and to observe and uphold the rule of law;  Zinara and the second respondent’s actions were not in tandem with s 3 of the Administrative Justice Act which provides that any administrative action which may affect the rights, interests or legitimate expectations of any person must be done lawfully, reasonably and in a fair manner. Further, by threatening to arrest her, the second respondent’s functionaries acted in violation of s 13 of the Constitution as that is not authorised by law for s 22 of the Act simply provides that any person who fails to license a vehicle shall be guilty of an offence and liable to a fine not exceeding level three. Also the threat to arrest her is still alive so consequently, her freedom of movement has therefore been impeded as she can longer drive her vehicle for fear of being arrested which is a violation of rights granted to her in terms of s 22 of the Constitution.

In his viva voce submissions, Mr Bhatasara stated that the gravamen of the application relates to the interpretation that must be given to ss 22 and 36 of the Act. He said it appears that there is a conflict between the two, in which event the conflict must be interpreted generously. He relied for this proposition on Minister of Home Affairs v Bickle & Ors 1983 (2) ZLR 400. He further submitted that the provision of the two sections are interdependent and not severable and to hold otherwise would lead to an absurdity. The only reasonable interpretation should be that no offence in terms of s 22 is created during the time when the grace period is in operation.

He also averred that the applicant has established all the requirements for an interdict.

The application was vehemently opposed and attacked by Zinara from several fronts. The other respondents intimated that they associated themselves with Zinara’s submissions.

The first exercise to be performed is the distillation of the quintessence of the application. For the sake of brevity and clarity, this can be achieved by treating the material issues raised under individual separate headings as detailed hereunder.

INTERPRETATION OF SECTIONS 36 AND 22 OF THE ACT

Section 36 of the Act provides:-

“36 Fixed penalty for late payment of fees

Any person who, in respect of any vehicle owned by him, fails to pay the appropriate fee in respect of a licence or exemption certificate relating to that vehicle on or before the last day of the month following that in which the previous licence or exemption certificate expired or pays an amount less than the correct amount payable shall pay to the registering officer for the benefit of the Road Fund, in addition to the appropriate fee, a prescribed penalty for every month or part of a month during which the fee is so unpaid or underpaid” (emphasis supplied).

On the other hand, s 22 of the Act provides as follows:

“(1)	The owner of every registered vehicle shall keep such vehicle licensed in terms of this Act.

(2)	……

Any person who contravenes subs (1) shall be guilty of an offence

and liable to a fine not exceeding level three”.

The wording of the two respective sections quoted above is so clear

and unambiguous that it admits of no other canon of statutory interpretation. In his book Technique In Litigation 4th ed at pp 12-13 Eric Morris offers this salutary advice to practitioners:-

“In every case, in every problem, in every point there will be found an essence, indeed a quintessence, hidden perhaps, dissipated perhaps, but nevertheless there for the seeking. The successful lawyer is he who can recognize this essence, can pursue it and can ultimately distil and capture it. In the process there will be encountered false scents, so alluring that they may for a while be mistaken for the reality”.

In the instant case one can be justified to say that an appreciation of the significance to distil the quintessence of the matter was blurred in the welter of controversial issues fuelled by misleading newspaper articles coupled with sombre labyrinth of averment and denial in which the elusive truth was lurking.

The unequivocal meaning of s 36 of the Act is this:

A person who owns a motor vehicle is required to pay the appropriate renewal fee upon the expiry of the previous licence;

Where the owner fails to renew the licence he/she shall be required to pay, over and above the appropriate fee, at the time of such renewal, a prescribed penalty for the late payment;

The prescribed penalty for the late renewal of the licence shall not be charged if the renewal is done on or before the last day of the month following that in which the previous licence expired;

The penalty for late payment shall only be charged after the last day of the month following that (month) in which the previous licence expired.

It is clear as day follows night that s 36 is not subject to any interpretation

beyond the issue of the grace period of one month within which no penalty for the late payment of licence fees is charged and the period when such penalty will start accruing. The penalty is payable to the Road Fund and is enforced and collected by Zinara.

On the other hand, also clear is that s 22(1) and (3) creates a mandatory requirement for every owner of a registered vehicle to have at all times a valid licence for his/her vehicle. The section creates a criminal offence for failure to have a valid vehicle licence and provides for the appropriate fine. This statutory offence is clearly subject to enforcement by the law enforcement agents (police and the courts) in terms of the law. There is absolutely no window for any grace period of whatever nature for non-compliance with this offence.

There being absolutely no nexus between these two statutory provisions, it is difficult to comprehend the basis of the applicant’s argument that there exists a conflict between them or that they are not severable or are interdependent thus brewing a ground for generous or intergrated interpretation.  There is absolutely no absurdity if both are separately interpreted. The statute has been on the books since 1970 with the two provisions being applied separately and simultaneously.

The applicant and her legal practitioners simply failed to adopt a dispassionate approach to the whole saga, rushing to file the application a few hours following her arrest and fining. They failed to distil the quintessence of the mater thereby getting lost in the labyrinth in which the truth was lurking.

ESTOPPEL AND ULTRA VIRES

The applicant contended that the notices publicised by Zinara constitute representations regarding enforcement of the fine and that those representations also bind the second respondent in this regard. In other words, the second respondent’s functionaries are estopped from arresting and fining those motorists whose vehicles do not have valid licences until after 30 June, 2012. In legal parlance such motorists can plead mistake of law as their defence.

In S v Davy 1988(1) ZLR 386(S) at 400 D-G, GUBBAY C.J. said:-

“….the rule that ignorance or mistake of law is no excuse, which judicial officers have applied for so long in this country in conformity with both English law and the decisions of the South African Courts prior to the advent of de Bloom’s case 1977(3) SA 513(A) remains valid. Its strength has hardly been shaken. It is however, subject to the exception that where the accused acted upon incorrect advice as to the law, given by a Government official who is primarily responsible for the administration of the particular statute to which the matter relates, his ensuing mistake of law is a good defence. See S v Zemura 1973(2) RLR 357(A) at 377 E-G.  As stressed by LEWIS AJP in S v Bledig & Anor 1974(1) RLR 100 (A) at 109A:

‘There is something in the nature of an estoppel present when the state prosecutes a person for a certain conduct when he has been induced by advice received from a responsible representative of the State to embark on such conduct’

Clearly the exception is grounded in reasons of public policy. Where the State has misled a man into a contravention of the law, as a matter of public policy he should be entitled to an acquittal”.

Now, it behoves me to deal with the issue of whether Zinara, via its

notices misled the applicant and or the general public regarding prosecution for not having valid vehicle licences as contended for by her.

Zinara’s first notice (annexure “A”) dated 30 May, 2012 reads:

“ZINARA

PUBLIC NOTICE

The Zimbabwe National Road Administration (ZINARA) would like to notify all our valued Motorists, Transporters, Companies and the Public that those requiring licences for their vehicles will not be charged any penalty for late payment until 30 June 2012.

All Motorists are therefore urged to take advantage of this extended licensing period.

To renew your licence visit ZINARA Head Offices and any designated ZIMPOST outlet countrywide.

Our call centre numbers:

Zinara Head Office: (04) 442 711-3

0778 650 987

0779 925 631

0778 650 985

Email address: zinarasupport@hotmail.com

Website: www.zinara.co.zw”

It is pertinent to note here that the notice alludes to non-charging of any penalty for late payment to those requiring licences for their vehicles until 30 June, 2012, a restatement of the provision of s 36 referred to supra.

The applicant relied on her annexure “B”, a cutting from the Herald newspaper dated 31 May, 2012, headlined

“VEHICLE licensing deadline extended”.

It talks about Zinara extending the vehicle licensing deadline to June 30 and the amount of penalty to be levied against those who fail to meet the deadline.

The second Zinara notice of 5 June, 2012 was informing the public that the extended grace period of 30 June, 2012 only applied to its internal administration where it will not be charging penalties for late renewal of vehicle licences but did not exonerate the motoring public from prosecution by the police. It urged motorists to license their vehicles to avoid inconveniences of the road and also to ensure protection of the public in cases of accidents.

The applicant relied on her annexure “D”, a Herald newspaper cutting dated 6 June, 2012 headlined:

“Zinara deadline scrapped”.

In it it is reported that Zinara had “scrapped the June 30 vehicle licensing deadline extension hardly a week after granting the respite” and that the police will “issue tickets to all motorists without new vehicle licence discs starting on that date”

What can be gleaned from Zinara’s two notices is that in the first notice, it simply restated the provisions of s 36 of the Act relating to the grace period of a month regarding penalty for late payment of licence fees. The second notice constitutes a clarification of what the grace period stated in the first notice entailed.

Clearly, no one can be heard to argue that the first notice related to the offence created by s 22(1) and (3) of the Act. If anything it is the Herald newspaper article (applicant’s annexure “B”) which misinformed and misled the public by reporting that Zinara had extended the vehicle licensing deadline to June 30 due to long queues. It can therefore not be said that the applicant’s conduct of driving an unlicensed vehicle on 7 June, 2012 was induced by advice from Zinara so as to ground estoppel against the police or to entitle her to avail herself with the defence of ignorance or mistake of law as enunciated in Davy’s case supra and the cases cited therein.

The Herald newspaper or its reporter not being a responsible representative of the State or a government official who is primarily responsible for the administration of the Act, the exception to ignorance of the law not being a defence is of no application in casu. I am obliged to find that the applicant’s contention in this regard is non-suited. In any event, Zinara is not primarily responsible for the administration of the Act in question. Had it given such a moratorium regarding s 22 of the Act that would have been ultra vires its powers.

The argument by applicant relating to legitimate expectation is also shot down by the same token supra concerning estoppel.

THE RELIEF SOUGHT

The requirements for an interdict are well known and do not warrant repetition here. Suffice it to say that in view of the aforegoing findings, the applicant has not managed to establish any of those requirements.

She has not proven any prima facie right or its infringement. If anything it is her who infringed the law. There is no well grounded apprehension of harm on her part unless of course she wishes to perpetuate her unlawful conduct. The court cannot sanction illegality. She has alternative satisfactory remedies such as complying with s 22 of the Act or simply parking her vehicle until such time that she has complied with the law. The balance of convenience is also not in her favour, it is in favour of the law.

Where one is in breach of the law, one cannot allege infringement of constitutional rights let alone those of the Administrative Justice Act. Section 5(b) of the Act behoves the court, in deciding whether an administrative action is lawful, to have regard to whether or not the enactment under which the action has been taken authorises the action. Both Zinara and the second respondent are empowered by law to enforce the provisions of ss 36 and 22 respectively of the Act.

Also, the applicant seeks relief for herself and other unnamed people who have not given her any mandate to act on their behalf. That makes her a torchbearer or public busybody in contravention of the Class Actions Act, [Cap 8:17] whose provisions have not been followed. Paragraph (d) of the interim order sought also does not stipulate the forum in which the order must be publicised, when and for how long.

In the event, the relief being sought is clearly incompetent.

I am left with one issue to advert to, viz that of costs. Zinara prayed for costs on the scale of legal practitioner and client on the basis that the applicant dragged it to court unnecessarily on account of her misapprehension of the law without first seeking clarification of the correct position from it. Rubin L. in Law of Costs in South Africa, Juta & Co (1949) 190 lists the principles which guide the courts in deciding whether or not to award costs on an attorney and client scale as follows:-

Dishonest conduct either in the transaction giving rise to the proceedings or in the proceedings.

Malicious conduct

Vexatious proceedings

Reckless proceedings

Frivolous proceedings

From the above list the one nearest to apply to the applicant perhaps is the

second last, namely reckless proceedings in that she simply rushed to court without clarifying the correct position with Zinara and or failure to research on the law. However, this is not a case warranting punitive costs. Costs on the ordinary scale would be in order.

In the result the application be and is hereby dismissed with costs.

Zimbabwe Lawyers for Human Rights, applicant’s legal practitioners

Mutamangira and Associates, 1st respondent’s legal practitioners

Civil Division of the Attorney General’s Office, 2nd & 3rd respondents’ legal practitioners