Police have no right to fine motorists the proposed $100 spot fines for a handful of offences because the increase in the fines has yet to be gazetted, legal experts have said.
They said motorists who have been fined the amount can successfully mount a court challenge against the police.
The $100 fine was supposed to be effective on January 1 after it was proposed by Finance Minister Patrick Chinamasa in the 2016 national budget.
But legal experts noted that the Finance Act passed by Parliament on December 31 which made the national budget effective did not contain the road traffic fines.
Presenting the national budget statement in November last year, Minister Chinamasa proposed that motorists who proceed against a red traffic light, overtake over a solid white line, drive without a licence or operate faulty vehicles without a foot brake would be fined $100 for each offence up from $20.
University of Zimbabwe law lecturer Professor Lovemore Madhuku said it was wrong for police to effect the fines.
“For anything in a budget speech to be law, it must be contained in subsequent legislation,” he said. “A resolution of Parliament approving the speech isn’t a law making process.
“The Finance Act giving effect to the budget measures was promulgated on 31 December 2015. It has nothing on fines. Please note that it’s a fact that no legislative steps have been taken to make the fines legally enforceable.”
Prof Madhuku said a ministerial statement in Parliament could not be considered to be a source of law.
“A Statutory Instrument is legislation and in saying that the fines haven’t been introduced by legislation, we mean that there’s neither an Act nor a Statutory Instrument,” he said. “Up to this point, no Statutory Instrument has been gazetted.
“The ‘rule of law” in section 3 of our Constitution prohibits the exercise of power without legal base. So, any affected person is entitled to refuse to pay the $100 fine.”
Veritas Zimbabwe, an organisation which monitors law making, said in a statement that it was clear that the proposed increase, from $20 to $100, in spot fines for minor traffic offences had not been implemented.
It said the law remained as it was before Minister Chinamasa’s budget statement, with the maximum spot fine police can demand still at Level 3 according to the Criminal Procedure and Evidence Act, Section 356(1).
A Level 3 fine is at $20 as provided for by the Criminal Law Code, Section 280 as read with the First Schedule.
“There’s nothing to change that position in the Finance (No. 2) Act or the numerous statutory instruments gazetted up to and including the 1st January (2016) to give effect to the budget,” said Veritas.
“What really happened in Parliament during the budget debate in mid-December was as follows: the relevant Portfolio Committees, as well as most MPs who spoke in the Budget debate, condemned the proposed increase and the Minister of Finance and Economic Development responded by conceding that $100 was excessive and needed reconsideration as to both the amount and the legal mechanism for making changes.”
Veritas noted that an amendment to section 356 of the Criminal Procedure and Evidence Act would require an Act of Parliament.
A change to the monetary value of Level 3 of $20 in the Standard Scale of Fines (First Schedule, Criminal Law Code) could be made by a Statutory Instrument, but only after a draft Statutory Instrument had been approved by Parliament, the organisation said.
Prominent lawyer Terrence Hussein added: “The fines can’t be enforceable until they’ve been gazetted. The law must go through proper proceedings and the fines must be gazetted into law. People who’ve been paying these fines have a right to contest and claim their money back as the policy changes haven’t been gazetted.”
Another lawyer Tendai Toto said it was clear from the legal processes so far that the $100 spot fine was illegal.
“If the Minister of Finance made a proposal in his budget to increase fines and Parliament approved the budget, that doesn’t necessarily mean the increased traffic fines are effective as at the date of approval of the budget by Parliament,” he said.