Woman challenges civil imprisonment
A BULAWAYO woman has lodged a court application challenging the constitutionality of civil imprisonment, which she argues does not serve any practical purpose, but violates fundamental rights of citizens.
Ms Ithumeleng Nsingo, through her lawyer, Mr Thulani Ndlovu of Sansole and Senda Legal Practitioners filed her application to the Bulawayo High Court last week.
Until her release recently, pending determination of her application, Ms Nsingo had been serving a 90-day civil imprisonment at Mlondolozi Female Prison over a $26 000 owed to Ace De Souza properties. Civil imprisonment is when a creditor commits a debtor to prison at their own expense after the latter would have failed to settle judgment that the former obtained in court.
In her founding affidavit, Ms Nsingo is seeking an order declaring Oder 28 rule 1 to 5 of the Magistrate Court of Zimbabwe (Civil Rules), 1980 relating to imprisonment of debtors to be unconstitutional.
She argues that civil imprisonment is at variance with the country’s constitution and further violates fundamental rights of citizens such as the right to personal liberty.
“I am advised that civil imprisonment violates my following rights as enshrined in Chapter Four of the Constitution. Section 49 of the Constitution — Right to personal liberty which reads; every person has the right to personal liberty, which includes the right (a) not to be detained without trial and (b) not to be deprived of their liberty arbitrarily without justice,” reads her submissions in part.
She further cites section 52, 56 and 69 of the Constitution as some of the provisions violated by Civil Imprisonment.
Section 52 talks about the right to human dignity and reads; “every person has inherent dignity in their private and public life and the right to have that dignity respected and protected”.
Other sections cited by the applicant as being violated by civil imprisonment are 56 and 69 which talk about equality and non-discrimination, and the right to fair hearing respectively. Ms Nsingo further argues that a creditor does not benefit anything from civil imprisonment of a debtor as the form of punishment does not discharge the debt owed.
“I am further advised that this method of punishment serves no practical purpose. This is so because imprisonment does not discharge the debt owed and is therefore of little or no use to the creditors when seeking payment from those who are unable to pay,” she said.
Ms Nsingo further contends that civil imprisonment is unjustifiable and indefensible under the country’s constitutional dispensation as it allows persons to be imprisoned without having notice of either the original judgment or of the hearing.
She argues that even if a person has notice of the hearing, they can still be imprisoned without knowing of the possible defences available to them and accordingly without attempt to advance any of them.
Nsingo further describes as not only unreasonably wide but also unreasonably punitive Order 28 rule lB (2) of the Magistrate Court Rule which spells out what the court must consider when ruling on civil imprisonment.
“The procedure makes no provision for recourse by the debtor to a higher authority once an order for committal has been made,” she contends.
Circumstances leading to Ms Nsingo’s imprisonment are that Ace De Souza properties instituted summons for civil imprisonment against her for failing to pay $26 756 which was owed by the Institute of Training Management, a corporate entity in which she was director.
The court found that Ms Nsingo was joint and severally liable for the debt and an order for civil imprisonment against was granted. Ms Nsingo was arrested by the Messenger of Court on 24 October and handed over to Khami Prisons.
Ace De Souza properties also held all property belonging to the Institute of Training Management and Ms Nsingo argues that, coupled with imprisonment has since hindered her from finding means to repay the debt.