Con-Court to rule on State Liabilities Act

HARARE – Mutare businessman Tendai Blessing Mangwiro, who is seeking to attach government property to recover over $1, 5 million confiscated by the police, has approached the Constitutional Court seeking confirmation of a High Court order handed down in March invalidating the State Liabilities Act.

Government officials have been using the State Liabilities Act to avoid paying debts, which Mangwiro successfully challenged in the High Court.

High Court judge Judith Mushore ruled that the State Liabilities Act must be repealed as it is ultra vires the new Constitution.

The order was still to be confirmed by the Con-Court for it to be effective.

In his Con-Court application, Mangwiro cited Justice minister Emmerson Mnangagwa, Home Affairs minister Ignatius Chombo and Attorney General Prince Machaya as respondents.

This comes after Mangwiro won several court orders for him to be re-imbursed his $78 900 and $1, 5 million confiscated from him by the police following his 2008 arrest. He was subsequently acquitted on the theft charges, but police have refused to reimburse the confiscated cash.

Chombo has since been found in contempt of the High Court order for failing to facilitate the release of the money.

“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.

“The provision the applicant (Mangwiro) successfully impugned a quo has the effect of removing the in-built mechanisms necessary to ensure compliance with court orders by forbidding execution against the respondent’s property,” Mangwiro argued.

In March this year, Mushore ruled that the State Liabilities Act is unconstitutional, adding that it would be wrong for her to endorse wrongful actions.

“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 ruled.

In his Con-Court application, Mangwiro, also argued that the State Liabilities Act was being used to protect the State from complying with court orders and must be done away with.

“When the applicant 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 argued.

“In the present matter Section 5 (2) of the State Liabilities Act simply cannot be reconciled with the constitutional protection afforded the applicant through Section 56 (1) of the Constitution. The only resolution available in this court is a declaration of invalidity with an attendant order that the offensive statutory should be invalidated,” Mangwiro said.

The State is yet to file a response to the application.

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