Councils Can Be Sued For Illegal Practises Done By Debt Collectors: Zim Lawyers for Human Rights

LOCAL AUTHORITIES’ ENGAGEMENT OF DEBT COLLECTORS, JEOPARDISES COUNCIL’S CONSTITUTIONAL MANDATE

ZIMBABWE Lawyers for Human Rights (ZLHR) notes with deep concern the pervasive practice by local authorities in engaging the services of debt collectors who have been issuing out threats of litigation, ultimatums and attachment of property against ratepayers in order to induce payments of utility charges.

Debt collectors have been wreaking havoc in most parts of the country after being contracted by some local authorities to collect arrear utility payments from some defaulting ratepayers.
The role of some government officials who have been ‘encouraging’ local authorities to use whatever means is at their disposal, including debt collectors to recover money owed by ratepayers is disturbing. This misinformed position is not only overzealous but illegal.

In terms of the Legal Practitioners Act, only a registered legal practitioner in possession of a valid practising certificate can threaten legal action or offer legal advice to their principal for a fee or reward, and doing so without meeting these requirements is a criminal offence.

Local authorities and central government need to appreciate that only legal practitioners have exclusive power to give legal advice, threaten legal action and represent someone legally for reward. In deploying debt collectors to collect arrears and threaten residents with legal action, the local authority is in effect participating in an illegality. Further, debt collectors are not statutorily regulated or controlled and they do not possess any special qualification or learning for their trade, it follows that their practices cannot guarantee lawfulness in the way of procedural regularity and fairness.

This pervasive practice of contracting debt collectors is becoming the desired approach with some government-run hospitals preferring this methodology to induce some patients to settle outstanding medical bills. This is a violation of section 68 of the Constitution which guarantees the right to administrative justice.

Section 68 (1) of the Constitution provides for a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair.
Therefore, it is not reasonable and neither is it fair for local authorities to employ the services of debt collectors to collect outstanding debts.

It follows therefore that by entrusting their administrative functions to the whim of debt collectors, local authorities have jeopardised their constitutional mandate.

Local authorities should appreciate that they have a higher mandate to safeguard and protect the rights of ratepayers, from their position of being a custodian of the welfare of residents.
Leaving the rights of citizens to the whims of private debt collectors cannot guarantee the rights of citizens over which the local authorities are placed to guard and therefore it is not reasonable.

In the face of a rigid approach by local authorities and central government, ZLHR warns local authorities that various legal remedies remain at the disposal of ratepayers, which can be filed against the local authorities for the illegal practices of debt collectors which they have contracted.

ZLHR reminds local authorities that they have a constitutional mandate as public administrative bodies to safeguard public interests and rights.