Minister Chinamasa
Fidelis Munyoro Chief Court Reporter
Government is likely to lose property to the Sheriff of the court after the High Court invalidated the law that prevented companies and individuals from attaching State property.
In a landmark ruling on Wednesday, Justice Edith Mushore struck down Section 5(2) of the State Liabilities Act (Chapter 8:14), saying it was unconstitutional.
This followed an application by Mutare businessman Mr Tendai Blessing Mangwiro seeking an order declaring the section unconstitutional.
He cited Finance Minister Patrick Chinamasa and Home Affairs Minister Ignatius Chombo as respondents.
Mr Mangwiro won several court applications for the police to release $78 900 and a further $1,5 million impounded from him when he was arrested, but has not received a single cent yet.
The impugned section made it impossible for him to attach Government property for purposes of execution.
Justice Mushore ruled that the section was unjustly hindering Mr Mangwiro from realising an award of damages granted in his favour by the High Court in case number HC4766 /13.
“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,” said Justice Mushore.
The judgment will now be referred to the Constitutional Court for determination in terms of the law.
If it is confirmed, it will mean that all Government property will be amenable to attachment by the Sheriff to honour judgments given against the State.
Justice Mushore accepted submission made by Advocate Tawanda Zhuwarara that the impugned section violated Mangwiro’s rights and was inconsistent with Section 56(1) of the Constitution.
She also accepted the lawyer’s argument that the State was hiding behind the Section 5(2) of the State Liabilities Act (Chapter 8:14) to frustrate Mr Mangwiro.
“If Section 5(2) is being used to frustrate justice as is clearly the case in the present case, then it is not justifiable in a democratic society based on openness, justice, fairness, human dignity equality and freedom,” she said.
“I have made the observation that the respondents (Ministers Chinamasa and Chombo) deliberately obstructed the court processes and positively ignored court orders under cover of the immunity.”
Having identified that Section (5)2 of the Act was destructive of important rights, which the Declaration of Bill of Rights speaks to and represents, Justice Mushore said, “If those rights are impeded, the Declaration of Rights implementation is severely impeded.”
She said Mr Mangwiro was already in possession of a court order granted in 2015 and had not been of any use to him, which she said was an unacceptable reality.
Mr Happy Magadure from the Attorney-General’s Office argued that it was the duty of the State to ensure public order and safety overrode Mr Mangwiro’s desire to attach State property.
He argued that chaos and confusion would ensue if Mangwiro was to be allowed to proceed with execution of State assets.
Mr Mangwiro was wrongly arrested on charges of theft in 2008 and subsequently acquitted in February 2013.
After his arrest, police seized two vehicles and cash amounting to $78 000 and ZWD 46 135 000 000.
Police eventually released the vehicles to Mr Mangwiro, but failed to reimburse him his cash.
In November last year, High Court judge Justice Amy Tsanga ordered the jailing of Minister Chombo for 90 days, following his conviction for defying a court order demanding that he facilitates release of Mr Mangwiro’s money.
Minister Chombo filed a Supreme Court appeal challenging the decision.
He also argued that he had since purged the contempt through a letter written to Treasury in March last year requesting that the money be released in terms of the State Liabilities Act.
This prompted Mr Mangwiro to file the fresh application seeking to order Chinamasa, as the Treasury chief, to release the money in terms of the request made by Minister Chombo.