A Brief Look at Nursyafawati Binti Kasim v Majlis Perbandaran Kota Bharu Bandar Raya Islam

(Court of Appeal Civil Appeal No.: D-01(A)-584-10/2021)

Introduction

Think about how you might feel if you approached your car and notice the front wheel was clamped. It is certain that it is NOT, entertaining and amusing.

You might wonder why the car was clamped and whether the relevant council is allowed to take such an action. Recently, the Malaysian Court of Appeal decided that the municipal council (in this case, the Kota Bahru Bandar Raya Islam City Council) may only issue summonses and CANNOT clamp the wheels of the vehicles parked inside a parking box.

Background Story

On 25 July 2019, the appellant, Nursyafawati, parked her car in front of her workplace. The car had been parked in the provided parking lot and the appellant initially paid the parking fee for the first few hours. The car caused no inconvenience or obstruction to traffic or road users.

However, the appellant's car was clamped by the respondent, the Kota Bharu Bandar Raya Islam City Council ("MPKB").

Quick Legal Bite: The MPKB, like other city, municipal, and/or town councils, are generally established under the Local Government Act 1976.

Back to the story – Nursyafawati's car was clamped due to her failure to pay the parking fees for the subsequent hours (remember, she only made payment for the first few hours), as set out under Order 8 Road Transport Order (LKB)(MPKB) 2000.

Despite her disagreement with this reasoning, the appellant was forced to make a payment of RM110.00, which included the cost of RM100.00 to unlock the clamp and a further RM10.00 for the compound.

At this juncture, the lawfulness of MPKB's act of clamping the vehicles of owners who fail to pay the imposed parking fees, comes into question.

Another Quick Legal Bite: "Ultra Vires" is a Latin term in law that refers to an act which is done beyond one's legal power or authority. The general principle regarding the doctrine of "ultra vires" is that subsidiary legislation is void if it contravenes the parent Act or is invalid if it exceeds the scope of the delegated power to legislate. In this context, the MPKB Road Transport Order 2000 ("MPKB 2020") is governed by the Road Transport Act 1987, which is the main law.

High Court's Decision

Following the "clamping incident", Nursyafawati filed a civil lawsuit against MPKB at the Kota Bharu High Court. In the High Court suit, Nursyafawati claimed that MPKB and its officers had abused their power(s) by clamping her car. The learned High Court Judge, His Lordship Roslan Abu Bakar, held that Orders 8 and 17 of the MPKB 2000 did not violate Section 66(1)(rr) Road Transport Act 1987. This is because the Court found that the phrases: (a) "Warta Kerajaan" (b) "diterbitkan dengan kuasa"; and (c) "Akta Pengangkutan Jalan 1987", when used in reference to MPKB 2000, amounts to permission from the Minister of Transportation to the President of the Kota Bharu City Council to enact and enforce Orders 8 and 17 of the MPKB 2000.

In addition, the Kota Bahru High Court also ruled that MPKB's orders and decisions were reasonable, rational, appropriate, and not oppressive – compound payment(s) for the non-payment of parking fees and the fees to unclamp the vehicle were regarded as two separate payments. As such, the Kota Bahru High Court took the view that this was not a threat or extortion; or was it a situation where Nursyafawati was fined twice.

The Court must now then decide on whether the act of clamping Nursyafawati's car violated Section 66(1)(rr) of the Road Transport Act 1987 because Section 48 of the Road Transport Act 1987 did not specify that parking a vehicle for a period which longer than the chargeable time, was a condition which allows the wheel(s) of a vehicle to be clamped.

The Court found that the demand for the few available parking spaces in urban areas was extremely high due to the increase in the number of vehicles. Considering this, the Court determined that Nursyafawati's car was still in the parking lot when the parking fee was due, which fell under the interpretation of Section 48 of the Road Transport Act 1987 because it would cause unreasonable hardship to other users.

Hence, the Kota Bahru High Court held in favor of MPKB and ruled that MPKB was permitted to clamp vehicles parked within the parking box, in situations where there are unpaid parking fees.

Court of Appeal's Decision

Dissatisfied with the decision of the Kota Bahru High Court, Nursyafawati appealed the same.

At the Court of Appeal, Nursyafawati was successful in her bid and the Court of Appeal overturned the decision of the Kota Bahru High Court:-

  1. The Court of Appeal found that Order 17 of the MPKB 2000 goes against Section 72(7) of the Road Transport Act 1987 as there is no provision in Section 72 of the Road Transport Act 1987 that permits the wheels to be clamped – Order 17 of the MPKB 2000 provides for something which is not authorised or expressed by the provision of the main law made under it, which is Section 72(7) of the Road Transport Act 1987.
  2. Apart from that, Order 17 of the MPKB 2000 was not created with the authority of the Minister pursuant to Section 66(1)(rr) of the Road Transport Act 1987. The Road Transport Act stipulates that to create a subsidiary law, the Minister must grant written permission and the law must be published in a gazette or government gazette. However, in this case, neither of those conditions were met. In fact, the correspondence provided by MPKB did not carry any weight as these letters merely state that the Minister approved of MPKB's decision to replace the Road Transport Order which was enacted by MPKB in 1985 with the Road Transport Order (LKB)(MPKB) 2000. Thus, it cannot be said that the Minister authorised MPKB to make by-laws relating to roads, under Section 66(1)(rr) of the Road Transport Act 1987.
  3. MPKB's wheel-clamping-law was ultimately found to be invalid because it violates the Road Transport Act 1987.
  4. The Court of Appeal also ordered MPKB to pay Nursyafawati RM5,000.00 in costs.

Conclusion

As it stands today (date of this article), it appears that the local council may only issue compound notices, and the act of wheel-clamping could be invalid – the same is only allowed under Sections 48 and 66 of the Road Transport Act 1987.

In brief, if your vehicle is parked within a legally provided and/or designated parking space and you did not pay the necessary parking fees, the local council cannot clamp your vehicle. However, vehicles which are parked outside a legally provided and/or designated parking lot, or parked illegally and could potentially endanger others, the local council could still proceed to clamp such vehicles or perform such other actions, as the local council is allowed to do.

Originally published January 13, 2023

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