HARARE – Litigants are now able to attach government property over debts after the High Court invalidated the State Liabilities Act, which it said was being used by the authorities to evade paying its dues.
The March 15, landmark ruling was handed down after Mutare businessman Tendai Blessing Mangwiro — through his lawyer Tawanda Zhuwarara — approached the court seeking an order to invalidate the statute after failing to find recourse despite numerous court orders for him to be reimbursed his $1,5 million confiscated by the police.
The money was impounded by the law enforcement agency following his 2008 arrest, before his subsequent acquittal on theft charges.
On Wednesday, High Court judge Judith Mushore ruled that the State Liabilities Act must be invalidated as it is inconsistent with the new Constitution.
In the application, Mangwiro cited Justice minister Emmerson Mnangagwa, Home Affairs minister Ignatius Chombo and Attorney-General Prince Machaya, as respondents.
“At present, the respondents 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),” Mushore said.
“It would be dangerous for this court to endorse wrongful actions and justifications by accepting that their justifications have merit, which they do not,” she said.
The judge said the respondents are positively refusing to obey court orders and in the process wilfully and deliberately obstructing the court processes.
This comes after Chombo was previously slapped with a 90-day prison term for contempt of court based on his failure to comply with the court order, demanding him to release the money.
“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,” she said, adding that the respondents’ actions were unconstitutional.
She further said that the duty of the court can never be felt if court orders are ignored as though they are “meaningless pieces of paper”.
“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 ruled, before referring the matter to the Constitutional Court for confirmation of the order.
She also slapped Mnangagwa and Chombo with costs.
Mangwiro approached the High Court after confirmation by the Home affairs ministry that it was proceeding to repay the money from the Consolidated Revenue Fund failed to yield any results.
The businessman argued that the more expeditious way of obtaining satisfaction of court orders is execution of State property, since the laid down procedure available is ineffective.
He said Chombo was taking advantage of the State Liabilities Act to his favour and abusing it to evade compliance.
However, Happy Magadure, who appeared on behalf of the State, had unsuccessfully argued that the State Liabilities Act is acceptable in a democratic society.
Magadure said that government property belongs to the citizens and cannot be attached for the benefit of individuals. He also said that the government does not have money to comply with the order, as it is even failing to pay its own workers.
Magadure said if the court was to rule in Mangwiro’s favour, it will spell disaster for the government, considering that there could be more people who have similar judgments that have not been executed.