The applicant's complaint is that it has been
constructively evicted from premises that it has been leasing for a very long
time. It contends that it was in peaceful and undisturbed possession of the
premises until it was despoiled by the respondent through its officials who
sealed off its pumps on 19 September 2013. Resultantly, it can longer operate
the service station that it was operating as the pumps are sealed off. It also
contends that the respondent, by its action, has resorted to self-help which
the law frowns upon. It is contended that the respondent ought to have followed
the correct procedure as laid down in section 39 of the Petroleum Act [Chapter
13:22]….,.
On 19 September, 2013 the respondent, the Zimbabwe Energy
Regulatory Authority (ZERA) issued an order, purportedly in terms of section 39
of the Petroleum Act [Chapter 13:22], stopping the use of the facilities at 35
Coventry Road, Harare. Against the section calling for “Licence condition
contravened” the order issued by the respondent reads:-
“operating without a licence.”
The respondent's counsel, in his submissions to the
court, stated that the reference to section 39 of the Petroleum Act [Chapter
13:22] was in error as the provision in terms of which the respondent acted is
in fact section 55 of the Petroleum Act [Chapter 13:22]. The respondent denied
having acted outside the law and maintained that as the regulatory authority it
acted within the confines of the law and, in particular, in terms of the powers
granted to it in terms of the Petroleum Act [Chapter 13:22]….,.
The respondent also states, in its opposing affidavit
sworn to by Gloria Magombo its Chief Executive Officer, that the applicant
cannot claim to have been in peaceful and undisturbed possession of the
property when the site on which it wishes to be licenced in terms of the
Petroleum Act [Chapter 13:22] is subject of a dispute.
Annexure “H” to the application is a letter dated 9
September 2013 to the Managing Director of the applicant from the respondent.
It states, inter alia,:
“…, on the 21st of June 2013, ZERA responded
to your application advising of its intention not to issue you with a license
on the basis that the issuance could potentially infringe on the rights of
another licensee. ZERA emphasised that it reserves the right not to issue a
license for the said property pending the finalisation of the dispute….,.”
It further also states:-
“…, ZERA is confirming its position, as stipulated in the
letter dated 21 June 2013, that it is not in a position to issue Trek Petroleum
with a license until the matter before the court has been finalised. ZERA is
currently in receipt of a High Court matter, case no.3047/13 (hereto attached),
wherein Engen Oil Zimbabwe (Pvt) Ltd (plaintiff) and A. Springer Holdings (Pvt)
Ltd (1st defendant) and Trek Petroleum (2nd defendant)
are cited as parties to the litigation. The matter is to bring finality with
regards to the lease dispute referred above.
ZERA hereby orders you to close your site with immediate
effect pending the finalisation of the matter before the courts. Any continued
operation would be in breach of the provisions of the Petroleum Act. Failure to
comply with the order will result in legal action being pursued against Trek
Petroleum.”
A perusal of the Petroleum Act [Chapter 13:22] brings to
the fore section 35 of the Petroleum Act [Chapter 13:22] which provides in
pertinent excerpts:
“(1) An application for a licence shall be made to the
Authority…,.
(2) …,.
(3) Subject to subsection (6), if, on consideration of an
application in terms of subsection (1), the Authority is satisfied that -
(a) …,.
(b) The grant of the license does not infringe the rights
of any other licencees; and
…, the Authority shall issue the appropriate license to
the applicant.”
In casu, the respondent
refused to issue the applicant with a licence on the basis that such issuance
could potentially infringe on the rights of another licencee and that it was
not in a position to issue such license until the matter pending before the
court is finalised. It advised the applicant accordingly on 21 June 2013.
It is of particular significance that before the letter
of 9 September 2013, the Zimbabwe Energy Regulatory Authority (ZERA) had, on 1
August 2013, written to the applicant to the following effect:
“Reference is also made to our telephonic conversation on
the 30th of July 2013 wherein you intimated that the matter between
Springer Holdings and Engen before the courts might have been finalised.
Pursuant to the verbal representations made by you on the 19th of
July 2013 it is ZERA's request that you obtain the court order in the said
matter. This will help expedite the processing of your licence in the event
that it is proven that you are the holders of the lease for the land in dispute.
In the interim, let it be known that you are operating in
contravention of the Petroleum Act [Cap 13:22] and the
Energy Regulatory Authority Act [Cap 13:23]. In view
of the foregoing, ZERA may opt to impose the penalty for operating without a
licence in the event that the requested documents are not availed within 7 days
from the receipt of this letter.”
The response from the applicant, given in a letter dated
14 August 2013, was to the effect that the applicant did not at any time
intimate that the court case between Engen and Sprinter Holdings had been
finalised and also that it did not have any knowledge of the then current
position of the court case.
What emerges from the above, and from a perusal of the
papers and submissions made in this case, is that sometime in April 2013 the
applicant applied to the respondent for a retail petroleum license. On 21 June
it was advised of the respondent's refusal to grant the same and the reasons
therefore. The reasons pertain to a dispute over the premises which dispute is
pending before the courts. In so doing, the respondent was acting within the
powers given to it in terms of the Petroleum Act [Chapter 13:22]. More
significantly though, it appears to me that the existence of the dispute,
which is not denied by the applicant, puts paid to the applicant's claim that
it has been in peaceful and undisturbed possession of the property.
Furthermore, and if I should be wrong in making this
conclusion, the respondent was, in any event, acting within the confines of the
law in taking the action that it did. Section 55(9) of the Petroleum Act
[Chapter 13:22] in terms of which the respondent acted, empowers it to so act.
It provides:
“(9) An inspector or police officer may, in the exercise
of the powers conferred upon him or her by this section, seize any
-
(a) Petroleum products or storage apparatus which he or
she has reasonable cause to suspect is being used by or is the possession or
under the control of a person in contravention of this Act.”
It appears to me that the respondent did not take the law
into its own hands. Rather, the law was put into the respondent's hands by
virtue of the Petroleum Act [Chapter 13:22] in terms of which it took the
action now complained of. In terms of section 29 of the Petroleum Act [Chapter
13:22] no person other than a licensed petroleum company shall procure, sell or
produce any petroleum product.
In casu, the applicant was
operating without a licence in contravention of the Petroleum Act [Chapter
13:22]. The respondent then, after communication was entered into between the
two as detailed above, invoked the powers that section 55(9) of the Petroleum
Act [Chapter 13:22] gives to it as the regulatory authority. It seems to me
that the nature of the industry or product that the respondent regulates is
well served by the provisions of the Petroleum Act [Chapter 13:22] with
particular reference herein to section 55(9) of the Petroleum Act [Chapter
13:22]. Furthermore, and in any event,
the applicant could have pursued the recourse provided for in section 56 of the
Petroleum Act [Chapter 13:22], appealing to the Administrative Court. Against
such a background, there can, in my view, be no basis for treating this matter
as urgent...,.
The various authorities cited by the parties
appear to me to be distinguishable from the facts in casu and are thus of no
effective rescue to the applicant's case.
