Jonathan Moyo enters into the spot fines debate- Coltart tells him you are wrong

Information Minister Jonathan Moyo has entered into the spot fines debate arguing that police have the right to collect spot fines but former Education Minister David Coltart who is a lawyer says Moyo is wrong. He must admit it.

Moyo wrote a 14-point argument in favour of spot fines on his facebook page in which he said that Justice Francis Bere had misdirected himself when he declared that spot fines were illegal and should be stopped immediately.

Bere made the remarks in a speech to mark the opening of the legal year and police said these were personal remarks and as such they would not stop collecting spot fines.

In a short tweet in response to Moyo’s argument, Coltart wrote: "Prof Moyo on spot fines debate" What a lot of huffing & puffing. You are wrong on the issue Jonathan -just admit it!”

Moyo’s argument:

1. While the media spotlight on ZRP spot fines has hogged the limelight, it has sadly not shed any light on an issue with immense public interest.

2. In fact the mainstream media has since last Tuesday created utter confusion through misleading reports about the alleged illegality of ZRP spot fines.

3. First the mainstream media reported on Tuesday that Justice Bere had ruled that ZRP spot fines are illegal and that this alleged ruling was made by the judge while he was giving a speech opening the 2015 High Court circuit in Masvingo province.

4. There were two serious problems with these reports which have caused untold confusion and misunderstanding about an important matter that affects the monitoring public.

5. The first problem is that it turns out that Justice Bere did not actually rule that ZRP spot fines are illegal. Rather, all that Justice Bere said on this connection was that "There's no law which compels a motorist to depisit a fine with the police if he (the motorist) desires to challenge the alleged offence. Furthermore Justice Bere bemoaned the manner in which the police sometimes go about enforcing the law in a manner that smacks of corruption.

6. The fact of the matter is that the law does in fact empower the ZRP to impose spot fines where a motorist does not contest the alleged infringement of a traffic law and willingly signs an admission of guilt form. Justice Bere did not contest this but he decried alleged bully tactics by police who sometimes engage in that unlawful practice to intimidate motorists into admitting guilt against the presumption of innocence.

7. The second problem with how the mainstream media carried misleading reports about Justice Bere's Masvingo speech is that it was treated as a court judgment when it was only a statement of opinion which was not made in a properly constituted court. A binding judicial opinion can only be made in a court of law and nowhere else. In any event, and with all respect, it was wrong for Justice Bere to use and to indeed seemingly abuse his speech to incite public emotions over a matter that was not before him and one which can only be determined by a properly constituted court of law.

8. As if the mainstream media's misleading account of Justice Bere's Masvingo speech was not bad enough, on Tuesday the mainstream media and some internet lawyers such as Alex Magaisa falsely claimed that, contrary to ZRP assertions that Justice Bere's comments in Masvingo were his personal opinion, there's a 2012 High Court judgment by Justices Cheda and Kamocha, that allegedly outlaws ZRP spot fines.

9. But in fact there's no such judgment on record.

10. The only ruling by Justices Cheda and Kamocha on record is Judgment HB No. HB157 in Case No. HCA 64/11. The case was not about the legality of ZRP spot fines but an appeal against sentence only. In its judgment the court confirmed the conviction of the appellant but set aside the sentence of 14 days that had been imposed by the lower case and substituted it with USD20.00/5 days imprisonment.

11. On page 3 paragraph 5 of the Judgment, Justice Cheda with the concurrence of Justice Kamocha, wrote that, "In my considered opinion the Police are empowered and authorised to impose a (spot) fine exceeding $200.00 depending on their Regulations". This is in black and white.

12. Furthermore, Justice Cheda wrote on page 4 paragraph of the Judgment that, "There fire, it stands to reason that the Zimbabwe Republic Police has authority to assess (spot) fines if the said fines are in accordance with their regulations". Nothing could he clearer! And this is a High Court Judgment in its own words. So what us the fuss about? Why are we continuing to get confused and confusing reports from the mainstream media and from clueless internet lawyers who have learnt nothing of value from their alleged 15 years of internet experience.

13. There's now no doubt that Justice Bere seriously misdirected himself in light of the fact that there's a very clear 2012 High Court judgment that specifically upheld and confirmed the legality of ZRP spot fines. Surely, it would be foolhardy for anyone to believe that a judgment of a court of law can be overturned through and by a speech. In the interest of transparent debate, I include (in the following note) the Judgment by Justices Cheda and Kamocha.

Coltart on police reaction:

I heard this morning on the radio that a Chief Superintendent from the ZRP has said that they will not be bound by the remarks made by Mr Justice Francis Bere at the opening of the Masvingo High Court that spot fines are illegal. I am not surprised by this remark because we all know that the number of road blocks and the rampant fining which takes place at them is a key source of revenue for the ZRP.

The Chief Superintendent is correct in saying that remarks at the opening of the High Court are not binding as a judgment would be. However the ZRP should not be so dismissive of the learned Judge's remarks and a more temperate reply would have been more appropriate. For example in a democracy one would expect the ZRP to say they take the Judge's remarks seriously and pending advice from the Attorney General the practice would be suspended, or some such thing. But no – the ZRP arrogantly states that the Judge was speaking in his "personal capacity" and they will carry on regardless.

There is a very important principle at stake here which goes to the root of our justice system and indeed Constitution. The principle is that one is deemed to be "innocent until proven guilty". The ZRP are not there to convict people – they are there to identify crime/infractions of the law and then to bring those to the Courts to decide whether there is guilt or not. That right is entrenched in Section 69(1) of the Constitution which states "Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court". That right is not limited in any way – if you believe that you are not, for example, required to display GVM and NVM stickers on a non commercial vehicle (a fine routinely and illegally imposed by the ZRP) you have the right to have that matter determined in a court.

The Constitution trumps everything – the ZRP, the Commissioner of Police, the Chief Superintendent who spoke this morning on radio, Judge Bere and whatever law the ZRP are relying on to continue imposing spot fines on the motoring public of Zimbabwe.

This practice is illegal and unconstitutional and must stop. If the present Government is even vaguely interested in respecting the rule of law it should issue a statement immediately ending the practice and advising that the Constitution will be respected.

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