Alex T Magaisa Correspondent
THE current confusion over the issue of police powers regarding the imposition and collection of spot fines arises from a failure to appreciate that there is a material difference between the power to issue a spot fine on the one hand, and on the other hand, the power to compel a person to pay the fine on the spot. In other words, the power to impose a fine and the power to collect the payment.
These are two different things, but failure to distinguish them is at the heart of the current confusion.
In order to clarify matters regarding spot fines, it is necessary to break it down into two questions:
The first question is whether the police authorities have power to issue spot fines.
The second question is whether the police have the power to compel a motorist to pay the fine on the spot.
These are two different questions, with two different answers.
The answer to the first question is that yes, the police do have the power to issue spot fines. They can, if they find fault with your vehicle or your manner of driving, issue a fine on the spot.
In other words, they do not have to go through the normal process of charging the motorist, opening a docket and sending the matter to the Prosecutor-General for prosecution through the courts.
This is an administrative system designed to reduce the burden on the prosecution authorities and the courts.
There would be a deluge of minor cases before the courts and an already over-burdened judicial system would not survive the additional baggage.
The legislative reasoning was that these are minor offences, which can be dealt with administratively, by the police authorities using their discretion in a reasonable manner.
If, however, the motorist wishes to contest the imposition of a penalty, he or she is entitled to do so, consistent with rights enshrined in the Constitution.
The police are not the only authorities that have the power to issue fines on the spot.
Parking tickets are another form of spot punishment. In the case of some car parks in Harare, the local authority has outsourced this responsibility to private companies, who also have the power to issue tickets on the spot for parking offences. These powers are not unique to authorities in Zimbabwe. Public authorities in other countries do have these powers to issue fines on the spot.
Therefore, whether or not the police have the power to issue fines on the spot is not contested.
However, as this administrative action, it must be consistent with the rights to fair administrative conduct as enshrined in the new Constitution under Section 68.
In other words, the police should not, in administering spot fines, act in a manner that infringes upon the motoristâs rights to fair administrative conduct. This leads us to the next question.
Do the police have the power to compel a motorist to pay the fine on the spot? Can they insist that the motorist must pay the fine on the spot?
The answer to this is, no, there is no legal basis for such conduct. It is this that Justice Francis Bere was referring to when he made his remarks at the opening of the Masvingo High Court Circuit this week. Justice Bere was not passing judgment on the matter. He didnât have to because there is already a judgment in which the High Court has given judicial guidance on this matter.
This is the case of Zaine Babbage v The State, a matter brought on appeal before the High Court in Bulawayo in 2012.
It is not necessary to repeat the facts of the case except to say that the High Court, sitting as a court of appeal, made an important pronouncement on the issue of spot fines and how they are administered.
It is this guidance that has been flagrantly ignored by the police authorities.
The court confirmed what has already been stated above, namely that while the police do have the powers to issues spot fines, they do not, however, have the general power to insist on the payment of that fine on the spot.
In other words, the police have the power to write a ticket and to impose a penalty, up to a certain maximum limit, but the motorist is allowed a reasonable time within which to pay. This means the police have no power to compel the motorist to pay on the spot.
The court did acknowledge that there are limited circumstances in which the police is entitled to use its discretion to collect the fine by other measures such as where the alleged offender is a foreigner or where there is insufficient documentation to trace the alleged offender to ensure that they pay the fine. But these are very limited circumstances which cannot be applied generally.
The judge made it clear that the police officer cannot and must not insist on a spot fine simply because he does not have the necessary ticket book to carry out his function.
The fact of the matter is that this judicial guidance exists but the police authorities have chosen not to follow it. Justice Bere was merely reiterating what his fellow learned brothers had pronounced in a judgment three years before. It is, therefore, incorrect to say that he was making premature judgment on the issue because a judgment providing judicial guidance on the administration of the spot fines regime already exists.
Those who had a knee-jerk reaction to the judgeâs remarks and lambasted him on the basis that it was premature may have been unaware of the existence of the Babbage judgment but now they do.
Indeed, none of those who have criticised him or the police authorities themselves have made reference to any legal instrument that empowers the police to compel motorists to pay fines on the spot.
If anything, Government should be encouraging police authorities to abide by the judicial guidance that already exists.
The minority that is criticising Justice Bere is probably doing so under the wrong impression that he was saying the police have no powers to issue spot fines. That is not what he was saying. He was saying that they have no powers to compel motorists to pay on the spot. He was pointing out that there is no law which empowers the police to do so. His criticism was on the manner in which the spot fine regime was being administered.
But he also went further and raised concerns over the issue of accountability and the corruption which is prevalent in the administration of the spot fine regime. These are important issues which resonate with the majority of members of the public, regardless of their political affiliations because like bad roads, dirty water and electricity black-outs, they affect everyone.
The Government cannot ignore this issue, brought to the fore by a judge, and it is useful to note that Vice President Emmerson Mnangagwa has publicly echoed the judgeâs remarks and in particular, the concern over alleged corrupt practices attendant upon the administration of the spot fine regime by the police. That is positive and demands commendation. Now though, it needs to be backed by implementation.
- Alex Magaisa is a Zimbabwean lawyer. Follow his blog on constitutional matters at www.newzimbabweconstitution.wordpress.com or on Twitter @wamagaisa or Facebook at Alex Magaisa email@example.com