HARARE – The case in which a Mutare-based entrepreneur wants the State Liabilities Act to be struck off the statutes has taken an interesting turn with the State, arguing that the businessman could cause the arrest of Home Affairs inister Ignatius Chombo if he is found to be in contempt of court.
This comes after the businessman, Tendai Blessing Mangwiro, approached the Constitutional Court, seeking confirmation of the removal of the Act from the statutes, and allowing him, instead, to attach government property.
Mangwiro is seeking to recover over $1,5 million and $78 900 confiscated from him by the police following his 2008 arrest and subsequent acquittal on theft charges.
As Home Affairs minister, Chombo has the ultimate say in matters involving the police.
While Mangwiro had succeeded in obtaining a High Court order compelling Chombo to facilitate the release of the funds confiscated from him by the police, his efforts have come to naught.
This became his basis for seeking an order for the constitutional invalidity of the State Liabilities Act.
In his Constitutional Court application, Mangwiro, who is represented by Zimbabwe Lawyers for Human Rights, cited Justice minister Emmerson Mnangagwa, Chombo and Attorney-General Prince Machaya as respondents.
Appearing on behalf of the respondents, lawyer Thabani Mpofu said State property is granted immunity, adding that payment can only be made from the Consolidated Revenue Fund, through facilitation by Chombo.
He said the State is obligated to pay any amount as granted by the court through a garnishee order or the arrest of the nominal defendant (Chombo).
“Now if an order sounding in money has been granted, it imposes an obligation upon the nominal defendant to cause payment. If the nominal defendant does not cause payment, a mandamus and thereafter contempt of court proceedings must be instituted against that defendant and he will be jailed until he causes payment.
“It is as simple as that. The net result is that it is not possible for an order to be made against the State and not be satisfied,” Mpofu said, adding that there is “no greater execution of an order of court than this”.
He further said that the State accounts can also be garnished to satisfy the court order.
“Thus it is incorrect to say that the State enjoys any immunity, it just does not, it is obliged to pay just like any other litigant. What is simply protected are the State’s properties. Of course, one cannot wake up and find that Munhumutapa Building has been attached and the President is now working from his home,” Mpofu said.
He added, “For a judgment creditor to be paid, the nominal defendant must execute that obligation. If it is not executed, an order ad fuctum praestandum can be obtained. The essence of such an order is that it is enforceable by committal proceedings.
“ . . . that order (16th May 2016) directs second respondent (Chombo) to comply with the duty cast upon him by Section 5 (2) of the Act being to cause to be paid to applicant the judgment debt out of the consolidated revenue fund . . . if second respondent fails to comply with that obligation, he is declared to be in contempt of court. If he is in contempt, he can be sent to the gaol unless and until he complies…”
However, Mangwiro said he has since exhausted all the remedies alluded to by Mpofu in his response, which he argued is his basis for seeking an order for constitutional invalidity of the State Liabilities Act.
Chombo has since been slapped with a 90-day jail term after he was found in contempt of the High Court order for him to facilitate the release of the money, a ruling which he challenged at the Supreme Court.
He however, later withdrew his Supreme Court appeal.
Mangwiro’s efforts to garnish government accounts or get the money through any other means, has hit a brick wall, which has resulted in him seeking to attach State property.
“As held a quo, Section 5 (2) of the State Liabilities Act places the respondents (Mnangagwa, Chombo and Machaya) above the law. This is constitutionally anomalous considering that Section 56 (1) of the Constitution provides that all persons are equal before the law and have the right to equal protection and benefit of the law,” Mangwiro argued.
He further argued that the State Liabilities Act is being used to protect the State from complying with court orders and must be done away with.
“When the applicant (Mangwiro) brought this cause before the courts, the constitutional assumption was he and those he sued were on equal footing. It is therefore irregular that a successful party in action proceedings is unable to attach the property of a judgment debtor who fails to comply with a lawful court order timeously,” he said.
Mangwiro’s application seeking the confirmation of the invalidation of the State Liabilities Act comes after High Court judge Edith Mushore ruled in March this year that the Act is unconstitutional.
“At present, the respondents (Mnangagwa, Chombo and Machaya) have been and are continuing to be in contempt. It is to that end that is it my considered view that the respondents consider themselves to be immune to legal consequence by virtue of the validity of Section 5 (2).
“If Section 5 (2) is being used to frustrate justice as is clearly the case in the present matter, then Section 5 (2) is not justifiable in a democratic society based upon openness, justice, fairness, human dignity, equality and freedom. Section 5 (2) of the State Liabilities Act (Chapter 8:14) be and is hereby declared to be inconsistent with the Constitution of the Republic of Zimbabwe and is therefore invalid,” Mushore said.