Mashudu Netsianda Senior Court Reporter
THREE Bulawayo women, who were recently arrested for allegedly loitering in the city for the purposes of prostitution, have dragged the Minister of Home Affairs Kembo Mohadi and the police to court for violating their constitutional rights and unlawful detention.
Lindiwe Moyo, Lingiwe Moyo and Renny Sithole who are the applicants in the matter cited Minister Mohadi, Police Commissioner-General Augustine Chihuri, the officer in charge of Bulawayo Central Police Station, Inspector Loyiso Mpofu and one Constable Chipfira as respondents.
The three women through their lawyers, Phulu and Ncube Legal Practitioners, last week filed a court application at the Bulawayo High Court seeking an order compelling the respondents to refund them the $5 admission fines for the purported crime within 14 days.
The trio also seeks a court order declaring the arrest on April 17, 2015, illegal.
They argue that it violated their fundamental rights to personal liberty protected by section 49 (1) (b) of the constitution.
In her founding affidavit, Lindiwe challenged the police actions, saying the charge under which she was arrested was unlawful and invalid.
“I’m making this application for an order to declare my arrest illegal on the basis that I was arrested for an offence that doesn’t exist in law and for an order that my right to personal liberty in terms of section 49 (1) (b) of the constitution was violated,” she said.
“I was arrested for a non-existent crime of loitering for the purpose of prostitution, which was provided for under section 4 of the Miscellaneous Causes Act. The Miscellaneous Causes Act was repealed on July 1, 2006 and replaced by the Criminal Law (Codification and Reform) Act.”
Under the Criminal Law (Reform and Codification) Act, there is no longer a crime called loitering for the purposes of prostitution.
Lingiwe and Sithole in their supporting affidavit concurred with Lindiwe. The three applicants were arrested shortly after 5AM while standing outside Golden Grill food outlet situated between Fort Street and 10TH Avenue.
They are denying any wrongdoing, saying they were forced to pay admission of guilt fines.
“I was standing outside Golden Grill in the company of Lingiwe while Renny was inside the shop when a uniformed police officer confronted us and said we were under arrest for loitering for the purposes of prostitution before demanding $3 from us,” said Lingiwe.
“When I demanded an explanation two other police officers emerged just when Renny was coming out of the shop and they handcuffed us.”
She said they were taken to Bulawayo Central Police Station where they were detained for several hours before being ordered to pay $5 admission fines.
“We were treated in the most degrading manner. We were labelled prostitutes by police officers who continually taunted us. Despite denying any wrongdoing we were forced to pay a fine of $5 for the crime of loitering for the purposes of prostitution,” said Lindiwe.
Mpofu has through the Attorney General’s Office (Civil Division) filed a notice of opposition challenging the application by the three women.
Mpofu argued that the trio failed to adhere to the Order 33 Rule 259 of the High Court Rules 1971 by delaying in filing the application.
“They (applicants) paid the fines on April 17, 2015 and only filed their application for review eight weeks later. The applicants were arrested and charged in terms of section 81 of the Criminal Law (Reform and Codification) Act,” said Mpofu.
He said the three women voluntarily paid the fines and signed the forms of admission of guilt.
“They were advised of the options to be taken to court that same morning for the same charges preferred against them if they were not willing to pay the fines. The applicants should explain how they paid if they were not aware of their charges,” argued Mpofu in his opposing affidavit.
Last month the Constitutional Court ruled against the routine arrest of women on allegations of soliciting for paid sex in the streets.
The court said as long as there were no men who would confirm being approached by the women for the service the arrests were unconstitutional.
This was after nine women had filed an application challenging the constitutionality of Section 81 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], after they were arrested and charged with soliciting for the purposes of prostitution.
In their application, the women argued that the crime of soliciting requires allegations of an act and a person so acted upon rather than the mere fact of being found at a street corner or being a woman in the central business district at night. The women, who argued that they were a vulnerable group, also said their right to personal liberty guaranteed in Section 49 of the Constitution and their right to equal protection and benefit of the law under Section 56 (1) of the Constitution had been violated.
THREE Bulawayo women, who were recently arrested for allegedly loitering in the city for the purposes of prostitution, have dragged the Minister of Home Affairs Kembo Mohadi and the police to court for violating their constitutional rights and unlawful detention.
Lindiwe Moyo, Lingiwe Moyo and Renny Sithole who are the applicants in the matter cited Minister Mohadi, Police Commissioner-General Augustine Chihuri, the officer in charge of Bulawayo Central Police Station, Inspector Loyiso Mpofu and one Constable Chipfira as respondents.
The three women through their lawyers, Phulu and Ncube Legal Practitioners, last week filed a court application at the Bulawayo High Court seeking an order compelling the respondents to refund them the $5 admission fines for the purported crime within 14 days.
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| Minister Kembo Mohadi sued by a prostitute. |
They argue that it violated their fundamental rights to personal liberty protected by section 49 (1) (b) of the constitution.
In her founding affidavit, Lindiwe challenged the police actions, saying the charge under which she was arrested was unlawful and invalid.
“I’m making this application for an order to declare my arrest illegal on the basis that I was arrested for an offence that doesn’t exist in law and for an order that my right to personal liberty in terms of section 49 (1) (b) of the constitution was violated,” she said.
“I was arrested for a non-existent crime of loitering for the purpose of prostitution, which was provided for under section 4 of the Miscellaneous Causes Act. The Miscellaneous Causes Act was repealed on July 1, 2006 and replaced by the Criminal Law (Codification and Reform) Act.”
Under the Criminal Law (Reform and Codification) Act, there is no longer a crime called loitering for the purposes of prostitution.
Lingiwe and Sithole in their supporting affidavit concurred with Lindiwe. The three applicants were arrested shortly after 5AM while standing outside Golden Grill food outlet situated between Fort Street and 10TH Avenue.
They are denying any wrongdoing, saying they were forced to pay admission of guilt fines.
“I was standing outside Golden Grill in the company of Lingiwe while Renny was inside the shop when a uniformed police officer confronted us and said we were under arrest for loitering for the purposes of prostitution before demanding $3 from us,” said Lingiwe.
“When I demanded an explanation two other police officers emerged just when Renny was coming out of the shop and they handcuffed us.”
She said they were taken to Bulawayo Central Police Station where they were detained for several hours before being ordered to pay $5 admission fines.
“We were treated in the most degrading manner. We were labelled prostitutes by police officers who continually taunted us. Despite denying any wrongdoing we were forced to pay a fine of $5 for the crime of loitering for the purposes of prostitution,” said Lindiwe.
Mpofu has through the Attorney General’s Office (Civil Division) filed a notice of opposition challenging the application by the three women.
Mpofu argued that the trio failed to adhere to the Order 33 Rule 259 of the High Court Rules 1971 by delaying in filing the application.
“They (applicants) paid the fines on April 17, 2015 and only filed their application for review eight weeks later. The applicants were arrested and charged in terms of section 81 of the Criminal Law (Reform and Codification) Act,” said Mpofu.
He said the three women voluntarily paid the fines and signed the forms of admission of guilt.
“They were advised of the options to be taken to court that same morning for the same charges preferred against them if they were not willing to pay the fines. The applicants should explain how they paid if they were not aware of their charges,” argued Mpofu in his opposing affidavit.
Last month the Constitutional Court ruled against the routine arrest of women on allegations of soliciting for paid sex in the streets.
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| Minister Kembo Mohadi |
This was after nine women had filed an application challenging the constitutionality of Section 81 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], after they were arrested and charged with soliciting for the purposes of prostitution.
In their application, the women argued that the crime of soliciting requires allegations of an act and a person so acted upon rather than the mere fact of being found at a street corner or being a woman in the central business district at night. The women, who argued that they were a vulnerable group, also said their right to personal liberty guaranteed in Section 49 of the Constitution and their right to equal protection and benefit of the law under Section 56 (1) of the Constitution had been violated.
