Driving a motor vehicle is meant to be convenient above all other advantages one may conceive. The legal requirements for a motorist and his/her vehicle in the country however appear to be throwing spanners in the way of this perceived convenience. In this new series we intend to enlighten you, the client, of the legal expectations of a motorist on the road. To begin the series this article will seek to enlighten the motorist and the prospective motorist of some of the existing legal expectations which are not as widely documented but are menacing realities at the hands of curious law enforcement Agencies on literally any street on the national Road map. The particular focus will be on the Contentious issues on the roads of Zimbabwe and the legal expectations of the condition of your vehicle.
What Regulates the Legal Framework?
The Road Traffic Act Chapter 13:11 is the law that regulates the conduct to be expected of motorists on the road of Zimbabwe. The statute empowers other laws to be developed within the spirit and letter of the Parent Act which are called statutory instruments (S.I). It is within these statutory instrument laws that most of the "relevant" bits of information concerning the motorist are contained. The current and applicable statutory instrument to Motorists is S.I 129 of 2015 which became operative on 14 December 2015.
SI-129-2015 Road Traffic regulations (Construction, equipment and Use)
The tenth schedule of these regulations repeal the Roads and Road Traffic (Construction, Equipment and Use) Regulations of 2010 (SI 154 2010) and 2011 (SI 44 2011, SI140 2011) Suffice to say, these road traffic regulations require the motorist to be responsible enough to get a copy of them and diligently go through the contents for they are lengthy and binding. For the purpose of this article, a select number of provisions will be highlighted.
THE CONTENTIOUS ISSUES ON THE ROAD
- Fire Extinguishers, Spare wheels, tools on all vehicles
The new Statutory instrument expects every vehicle that it registered at the Central Vehicle Registry and is operative on any of the Roads of the Country to have these instruments mentioned above. The absence of these instruments is an offence and the offender is liable to sentence of a fine or imprisonment. The full print of the law is as follows:
Spare wheel, tools and fire extinguisher: all vehicles
53. (1) No person shall drive a motor vehicle, other than a motor cycle on any road unless the vehicle is equipped with-
(a) A serviceable spare wheel; and
(b) An efficient jack; and
(c) A wheel-brace or wheel-spanner capable of undoing the vehicle's wheel-nuts; and
(d) In the case of-
(i) A light motor vehicle, a serviceable fire extinguisher weighing a minimum of zero comma seven five kilograms (0,75Kg); or
(ii) A heavy vehicle, a serviceable fire extinguisher weighing a minimum of one comma five kilograms.
(2) Every fire extinguisher referred to in subsection (1) (d)
( a) of a type and make approved by the Standards Association of Zimbabwe or any other International Standards Authority, which approval shall be visibly marked on the fire extinguisher; and
(b) secured at an easily accessible and visible position within the cab of such vehicle: Provided that a public service vehicle shall be equipped with a fire extinguisher or fire extinguishers as provided for in the Public Service Vehicle Regulations, statutory instrument; and
(c) Where a vehicle is drawing a trailer on any road, the driver shall ensure that equipment specified in subsection (l) (a) is carried and is capable of being fitted to or used on the trailer.
(3) This section shall not apply to motor vehicles bearing foreign registration number plates that are in transit or on temporary entry permit.
The Police Service has recently become the custodians of this law, to the strictest extent possible. Not that they are not entitled and expected to enforce the law, but this particular Statutory Instrument has been enforced with determination and diligence like no other law. The Police can be found waiting, menacingly, at any conceivable inconspicuous position on the roads of the country, flagging to a halt any car they fancy for a routine search of compliance with this law. The consequence as most drivers bemoan, is
- The issuance of tickets at the free will of the enforcing police officers, demanding either payment and recently now,
- Impounding the car which then goes on to stay at a field in one of the police camps in the capital city accumulating a $5 storage fee per day for at least two weeks, before you can pay the fine for the wrong allegedly committed before the vehicle was impounded.
This situation has become untenable for road traffic users in the country, mostly the busy CBD of the Capital. It is not quite clear were the police officers impounding the vehicles are getting their authority to impound for at least 2 weeks from, as clearly, the statutory instrument does not provide for such law enforcement procedure. The apparent legal relief is to seek an interdict or mandamus from the Courts to stop the lawlessness that may be perpetuated by the law officers. As stated in Dube v Moyo and Others HB 43-10 a mandamus and an interdict are different sides of the same coin. Depending on the actual facts and the relief required, either of the two remedies is available for option, particularly in cases involving Public officials. An interdict is a remedy to stop any individual from whatever conduct they are participating in, which is causing or may reasonably cause harm to another, without any other satisfactory remedy available to them. A mandamus is the relief of getting a Public official to be compelled to take a positive action to 'right a wrong'. These remedies may be obtained on an urgent basis, all dependant on the facts and the strength of urgency. In fact, in the recent matter of Raymond Madamombe v Commissioner–General of the ZRP and 2 others (Case Number HC2226/16), Justice Tsanga ordered that the vehicle of the applicant be released within two hours of the order. It is therefore open to aggrieved road users who have their rights to road use and to due process of the law abused, to seek appropriate legal redress from the relevant judicial forum.
The Traffic light sequence and the question of Evidence
The Highway Code, has been the repository of traffic regulations that ought to be known by the driver and prospective driver. In this code, the traffic sequence that explains how the traffic lights change and what each colour reflection means, one will notice that the amber/orange light is described to mean, a warning that a motorist must be prepared to stop but can enter the intersection if it is reasonably safe to do so. Be that as it may, the police officers have been pouncing on several motorists with the allegation of crossing a robot whilst it is flashing red. This presents a difficult case at law. The main question is, How do you contest a police officer who is insisting that you entered an intersection controlled by traffic lights when the traffic lights where reflecting red? Whose evidence takes precedence? Is there a presumption that the police officer's judgment and estimation is correct?
There is a principle of natural justice called audi alteram partem which literally translated means, to hear the other party. As Administrative authorities, police officers are enjoined to exercise the principles of natural justice and not treat traffic offences as strict liability crimes. this will take away the constitutional right in section 69 (1) of the Supreme law of the land to a fair hearing that is afforded to every citizen of the country who is accused of an offence.
The Condition of Your Vehicle
- Section 67 of the regulations stipulate that no person shall drive on any road a motor vehicle or trailer which is in such condition as to endanger any person on the vehicle or on the road.
- Section 64 holds out that no person
shall drive on any road any motor vehicle or Motor cycle,
(a) Which is designed for or capable of exceeding a speed of 40 km/h on a reasonably level road, unless such vehicle or motor cycle is equipped with a speedometer which is in a good working condition; and
(b) The speedometer is equipped with alight which is capable of sufficiently illuminating the speedometer clock.
- The provision of section 66 say that no person shall drive a motor vehicle or trailer on any road if anything is fitted or fixed to the vehicle or trailer in such a way as to endanger any person on or outside the vehicle in any way.
- No person shall drive on a road a
motor vehicle, motor cycle or trailer if found to be-
(a) Leaking oil or grease onto the road surface or in such a manner as to affect the efficiency of the braking system of such vehicle;
(b) cracked, bent or misaligned or otherwise defective so as to endanger any person on the vehicle or on the road in any way.
- Section 57 says no person shall drive on a road a motor vehicle other than a motor cycle or other cycle unless the engine thereof is so covered as not to be a source of danger.
- Section 62 says (1) No person shall
drive on a road any motor vehicle fitted with doors if-
(a) Any door will not remain securely closed, or is jammed, or so secured that it cannot be opened; or
(b) the hinges, catches or pillars of any doors arc loose, broken, cracked, corroded or otherwise to the extent that the door is not secure when closed; or
(c) A safety catch or door lock is not functioning correctly or a door cannot be opened from both inside and outside; or
(d) Any winder or window/winding mechanism or both arc not in good working order:
Provided that the requirement of this section shall not apply to vehicles-
(i) Originally designed and manufactured without doors, safari vehicles; or
(ii) Vehicles modified and adapted for a special purpose and approved by the Minister of transport and infrastructural development.
- Section 61. (1) No person shall drive
any motor vehicle on a road if (a) the driving seat is in such a
condition that it could cause the driver to lose control of the
vehicle or is not adjustable;
(b) Any seat or bunk is not secured.
Section 87 of the regulations provides that, the penalties that apply for any person who contravenes any of the above regulations and is found liable, on conviction, is a fine not exceeding level five, or to a period of imprisonment not exceeding six months or both to such fine and imprisonment.
It is undeniable that there has been a host of significant changes to the laws for Road Traffic users. The new S.I has presented legal and practical challenges its enforcement as well has left the idea of the rule of law hanging. However it will be important for all stake holders to reflect on, and comply with the regulations as they will spare you a lot of complications and tussles with the law man. Where legal recourse may be taken, one must not hesitate to approach legal experts, as it is indeed your lawful right to challenge unlawful and unsanctioned conduct by law enforcement agents. See you in the next publication!
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.