Urgent Chamber Application
MAFUSIRE J: The Toll Roads
Act, Cap 13:13, (“TORA”) empowers the Minister of Transport
(hereafter referred to as “the Minister” or “the Minister of
Transport”) to declare, by regulation, any road to be a toll-road.
In terms thereof a toll-road is a road declared to be a toll-road in
terms of the regulations made by the Minister. By statutory
instrument 39 of 2009, namely the Road Tolls (Regional Trunk Road
Network) (Amendment) Regulations, 2009 (“SI 39/2009”), the
Minister declared every route along the City to City Trunk Road
Network as specified therein to be a toll road.
The City to City Trunk Road
Network, in terms of those regulations, are roads of the Regional
Trunk Road Network that link cities within Zimbabwe. The Regional
Trunk Road Network are roads linking countries within the Southern
African Region.
Section 3 of TORA empowers the
Minister to specify any person and to authorise them to levy and
collect tolls on vehicles using any toll-road. The authorised person
is empowered to establish and erect on toll-roads toll-bars,
toll-gates and other structures to facilitate the levying and
collection of tolls. The Minister may fix the amount of any toll
after consulting the Minister responsible for finance (hereafter
referred to as “the Minister of Finance”).
In terms of SI 39/2009 the
amounts fixed by the Minister as tolls at any tolling point were US$1
for motor cycles; US$2 for light motor-vehicles, US$3 for minibuses,
US$5 for buses; US$7 for heavy vehicles and US$10 for haulage trucks.
These amounts seem to have been revised from time to time. As at 4
July 2014 there was no toll for motor cycles. As for the rest of the
other motor vehicles the amounts were US$1 for light motor-vehicles,
US$2 for minibuses, US$3 for buses; US$4 for heavy vehicles and US$5
for haulage trucks.
On 4 July 2014 the Minister
published statutory instrument 106 of 2014 namely Toll Roads
(Regional Trunk Road Network) (Amendment) Regulations, 2014 (No. 5)
(hereafter referred to as “SI 106/2014” or “the regulation”).
It increased the toll fees across the board. In United States dollar
terms the amounts went up to US$2 for light motor-vehicles, US$3 for
minibuses, US$4 for buses; US$5 for heavy vehicles and US$10 for
haulage trucks. In a notice published on 6 July 2014 in a weekly
newspaper, The Sunday Mail, (hereafter referred to as “the public
notice”) it was announced that the new toll fees would become
effective from 11 July 2014.
It is SI 106/2014 that has
sparked the litigation in this matter.
On 9 July 2014 the applicant
filed an urgent chamber application for an interdict. For interim
relief the applicant sought the order that pending the determination
of its application for the setting aside of SI 106/2014, the second
respondent (hereafter referred to as “ZINARA”), its officers,
agents, employees or all such other persons acting for or through it
be interdicted from implementing SI 106/2014. It was also sought as
an interim relief the order that the public notice be suspended. As
final relief the applicant sought the setting aside of SI 106/2014.
The applicant is a not for profit
human rights organisation duly established in terms of its
Constitution and capable of suing and being sued. Its core object is
the fostering of a culture of human rights in Zimbabwe through the
observance of the rule of law. Its members are legal practitioners
and law students. As for its locus standi to bring these proceedings
the applicant relied on its direct and substantial interest in the
matter. As owner of a number of motor vehicles in its own right, the
applicant said SI 106/2014 equally applied to it as it does to all
the other owners of motor vehicles in Zimbabwe. It said it is also an
aggrieved person within the meaning of section 4(1) of the
Administrative Justice Act, Cap 10:28 (“AJA”). This section gives
power to apply to this court for relief to any person who is
aggrieved by the failure of an administrative authority to comply
with AJA.
The applicant also relied on
section 85 of the Constitution of Zimbabwe (“the Constitution”).
That section permits any person to approach a court for relief in
respect of an infringement of any of the fundamental rights or
freedoms enshrined in the Constitution. Such a person can do so
acting in their own interest. They can also do so acting in a
representative capacity such as in the interests of a group; a class
of persons; in the public interest or in the interest of its members.
The applicant's case was this. The Minister is an administrative
authority within the meaning of AJA. ZINARA is that person specified
and authorised by the Minister in terms of TORA, inter alia, to levy
and collect tolls in respect of vehicles along toll-roads. The
applicant said the Minister fixed the new toll in terms SI 106/2014
without first having consulted the Minister of Finance and that this
was contrary to the provisions of section 3(1)(c) of TORA. The
applicant accused the Minister allegedly for abusing the discretion
and power bestowed on him by charging exorbitant tolls. This was said
to be contrary to public policy.
The gravamen of applicant's
case is aptly captured in paragraph 23.3 of the founding affidavit
that was deposed to by one of its Board members and Chairman of its
Finance Committee, one Selby Vunganai Hwacha, a practising legal
practitioner. He wrote:
“The margin of the increase in
the toll fees is so unreasonable that no reasonable decision maker
properly applying his mind could have arrived at such margin. In this
regard, it is pertinent to highlight that the national economy has
not been performing well. There are fears that deflation may set in.
There has been a record number of company closures. Public entities
are struggling to pay salaries. The economy is illiquid. Where are
the members of the public expected to get the money to fund these
ambitious toll fees?”
The applicant argued that toll
gates and tolls were incepted in 2009. Five years on there has not
been any meaningful improvement to the road system in the country. On
24 June 2014, the applicant, reacting to press reports on his
intention to increase the tolls, had written to the Minister, citing
the Access to Information and Protection of Privacy Act, Cap 10:27,
basically demanding an account of the toll collections to date. Among
other things, the applicant sought information on the total
collections; a breakdown of the use to which those collections had
been put; the names of the contractors engaged for the installation
and rehabilitation of the road infrastructure and network, and such
other similar information.
Applicant said there was no
response to its letter.
Evidently, wishing to highlight
the unreasonableness, oppressive and burdensome nature of the toll
increase the applicant picked one toll-gate along the Harare–Mazoe
Road. Beyond it are many families driving past it every day on their
way to and from work in Harare. With the new increase a motorist
would need US$4 per day or US$120 per month or US$1,440 per year in
toll-gate fees for a light motor vehicle. A haulage truck driver, at
US$20 per day, would need US$600 per month or US$7,200 per year.
These motorists would still need to maintain, fuel and licence their
vehicles. Yet apart from tolls the Government does have numerous
other sources of income to fund road construction and maintenance
such as fuel levies, vehicle licencing fees, transit fees and several
fines.
The applicant said SI 106/2014
was null and void for want of compliance with section 68 of the
Constitution as read with section 3 of AJA. Section 68 of the
Constitution reads:
“68
Right to administrative justice
(1) Every person has a right to
administrative conduct that is lawful, prompt, efficient, reasonable,
proportionate, impartial and both substantially and procedurally
fair.
(2) Any person whose right,
freedom, interest or legitimate expectation has been adversely
affected by administrative conduct has the right to be given promptly
and in writing the reason for that conduct.
(3) An Act of Parliament must
give effect to these rights, and must -
(a) provide for the review of
administrative conduct by a court or, where appropriate, by an
independent and impartial tribunal;
(b) impose a duty on the State to
give effect to the rights in subsection (1) and (2); and
(c) Promote an efficient
administration.”
Section 3 of the AJA reads:
“3
Duty of administrative authority
(1) An administrative authority
which has the responsibility or power to take any administrative
action which may affect the rights, interests or legitimate
expectation of any person shall –
(a) act lawfully, reasonably and
in a fair manner; and
(b) act within the relevant
period specified by law, or if there is no such specified period,
within a reasonable period after being requested to take the action
by the person concerned; and
(c) where it has taken the
action, supply written reasons therefor within a reasonable period
after being requested to supply reasons by the person concerned.
(2) In order for an
administrative action to be taken in a fair manner as required by
paragraph (a) of subsection (1), an administrative authority shall
give a person referred to in subsection (1) –
(a) adequate notice of the nature
and purpose of the proposed action; and
(b) a reasonable opportunity to
make adequate representations; and
(c) adequate notice of any right
of review or appeal where applicable.”
Subsection (3) provides instances
when an administrative authority may depart from the requirements of
subsections (1) and (2). Section 4 provides for the relief against
administrative authorities for breach of the Act. An aggrieved person
may apply to this court for relief. The relief includes, inter alia,
the right to have the decision concerned set aside. The court can
refer the matter back to the administrative authority for
consideration or reconsideration. It can also give several other
directions.
I heard the urgent chamber
application on 11 July 2014. I was advised that SI 106/2014 had
already become operational from mid-night on that day.
The respondents took two points
in limine. I reserved judgment on them. I proceeded to hear argument
on the merits. I also reserved judgment. This now is my judgment on
both the points in limine and on the merits.
The respondents' first point in
limine was that the application was not urgent. Mr Mutamangira, for
ZINARA, said by 24 June 2014 the applicant had written to the
Minister objecting to his intention to increase the toll. Thus, the
applicant had become aware of the pending legislation by then. That
should have been the time for it to have acted. It had not. Mr
Mutamangira also argued that SI 106/2014 had been published in the
Government Gazette on 4 July 2014. Thus, it had automatically come
into force at mid-night on that day. The public notice in the Sunday
Mail on 6 July 2014 deferring the coming into operation of the
regulation to 11 July 2014 had merely been an administrative action
that did not detract from the fact that the regulation was already in
force. Furthermore, and at any rate, even in terms of the public
notice the implementation of the regulation had started on mid-night
on 11 July 2014, i.e. the day of the hearing. Therefore, the
applicant's intended injunction had come too late. The horse had
already bolted. To try and suspend it now would cause confusion and
uncertainty to the public at large.
In response to the respondents'
first point in limine aforesaid, Mr Uriri, for the applicant,
countered that the clock on urgency could not possibly have started
to tick on 24 June 2014 when the applicant had written to the
Minister. Nothing had been promulgated by then. Even after its
promulgation on 4 July 2014, the Minister had, on 6 July 2014,
consciously taken an administrative decision to defer the coming into
operation of the regulation to 11 July 2014. 4 July 2014 had been a
Friday. There had been a supervening weekend. 6 July 2014 had been a
Sunday. The application had been filed on 9 July 2014. There had been
no significant delay. Among other things, it had been necessary for
the applicant to collate the information and to prepare and present
it properly.
Mr Uriri argued that it could not
be said the horse had bolted. The harm complained of was of a
continuing nature. He said each minute that the regulation was in
force would give rise to a new cause of action.
I hereby dismiss the respondents'
first point in limine. It amounts to nit picking on a matter of such
public importance.
I agree with applicant's
contention. It cannot be said the clock for urgency had started to
tick around the time it had written to the Minister. The application
is not about the Minister's failure or refusal to respond to the
applicant's letter. It is about the subsidiary legislation that the
Minister had subsequently promulgated and brought into force. At the
time the applicant had written to him, the Minister had not yet
acted, or at least his action in the form of the regulation had not
yet come into the public domain. It would have been premature for the
applicant to have rushed to court at that stage to attack what was no
more than a mere intention. When the Minister did eventually act by
publishing the regulation it was on the eve of a weekend. But even
before that weekend was up, ZINARA, with the Minister's blessing,
had already published the public notice to defer by one week the
operation of the regulation. That was precious more time for the
applicant. It then launched its application on 9 July 2014. The delay
was only two working days. In such circumstances it would be
unreasonable and cruel to declare the applicant non-suited.
Nor is it a case of the horse
having bolted. Every day that the regulation is in force the horse is
bolting. Or it is a question of more of them bolting. The regulation
may have become a fait accompli on paper. But its effect on the
ground is not. If the regulation was the kind of harm against which
the law invented the remedy of an interdict, then it is a continuing
harm. For as long as it is a continuing harm the applicant can invoke
the assistance of the court.
The respondents' second point
in limine was that there was no cause of action for me to sit in
judgment. The argument was twofold. It ran like this. Firstly, the
applicant was, in effect, seeking a review of the regulation. Such a
review would have to be in the form of a court application on Form 29
as prescribed by the High Court Rules. The true nature of the present
urgent chamber application was that it was one for an interdict
pendete lite. An application pendete lite is an interlocutory
application. It is one pending something, or a lite.
But, for the applicant, there was
no other lite pending. It had filed no review application. The
applicant was in effect seeking the overturning of a law that was
valid on the face of it. SI 106/2014 was valid until set aside. It is
unprocedural for a court to overturn a valid law in summary fashion.
For the second leg of their
second point in limine, the respondents said, as I understood them,
and in my own words, there was no cause of action for me to sit in
judgment because whilst the court has the power to review the
legislative function of the executive arm of government, really what
the applicant was urging the court to do was to impugn something that
was squarely within the exclusive domain of the executive. The court
lacks the necessary knowledge, the necessary training, the necessary
expertise or the necessary information to challenge or judge such a
function. The Minister's action in fixing or raising toll tariffs
was an executive and polycentric function. Mr Mutamangira said that
this was more than a mere “administrative action” of the type
contemplated by AJA. It was a legislative function. He said available
jurisprudence in this jurisdiction and beyond suggests that the
matter is still an open question. It is debatable whether the court's
traditional function of judicial review extends to the legislative
function of the legislature. Mr Mutamangira contended that the
traditional test for an interlocutory interdict as set out in the
locus classicus Setlogelo v Setlogelo1
over 100 years ago and which has been followed in numerous subsequent
cases is in respect of interdicts between private individuals. It is
not wholly applicable where the other party is the State and where
the challenge is in respect of its legislative power. Different
considerations apply. He referred to the South African e-tolling
cases2
and the yet to be reported Blair Athol case3.
The latter case was decided in the South African North Gauteng High
Court in April this year. It was in respect of the power of a
municipality to levy charges on homeowners in a township under the
jurisdiction of the municipality.
Ms Warinda was more bullish. She
would take no prisoners on this. There was no cause of action for the
court to decide, she argued. It was impossible for this court to sit
to review a legislative function of the executive arm of government.
What the Minister had done in promulgating SI 106/2014 was an
exercise of a legislative function. This is a function different from
the Minister's other administrative functions. She gave an example.
A dispute over mining concessions
or mining claims first goes to the Mining Commissioner for
determination. From there an appeal lies to the Minister of Mines. In
determining the appeal the Minister of Mines is exercising a purely
administrative function. That is reviewable by the courts exercising
their ordinary review powers. Not when the Minister is making
regulations. He is now exercising delegated authority to make law.
The courts have no jurisdiction to review such a function.
To quash the respondents'
second leg of their second point in limine, Mr Uriri, for the
applicant, sprung an argument that neither formed part of its grounds
of impeachment in the founding affidavit nor about which any notice
had been given. He argued that it was a point of law which he could
raise for the first time at any time. It was also an argument meant
to bury the respondents' objection on urgency which I have already
dealt with. It was a point that appeared ex facie the documents. It
was this: SI 106/2014 was titled “Toll Roads (Regional Trunk Roads
Network) (Amendment) Regulations, 2014 (No. 5)”. Subsidiary
legislation such as statutory instruments cites the author and the
enabling Act under which they are promulgated. SI 106/2014 said:
“IT is hereby notified that the
Minister of Transport, Communication and Infrastructural Development
has, in terms of section 6 of the Road Motor Transportation Act
[Chapter 13:13] made the following regulations –
1. ………………………………………………………………...”
2. …………………………………………………………………”
The reference to the Road Motor
Transportation Act (“ROMTRA”) was a patent error. The Minister's
power to fix toll fees by regulations is prescribed by TORA, not
ROMTRA. ROMTRA is not Chapter 13:13. It is Chapter 13:15. It is TORA
that is Chapter 13:13.
Mr Uriri said that this was
unforgivable.
The regulations were void ipso
jure. The Minister had purported to act under a non-existent law.
Under such circumstances there could be no presumption of validity.
Both the purported legislative action of the Minister in coming up
with SI 106/2014 and his administrative function to postpone the
start date of the regulation drew their life blood from a
non-existent law. The court has an inherent power to remedy such an
obvious illegality, Mr Uriri charged.
Regarding the argument that there
was no review application, Mr Uriri contended that what was before me
was a hybrid. It was, on the one hand, an application for review
which would be ventilated more fully on the return date. On the
other, it was an application for an interim order on an urgent basis
pending the return date. The interim relief sought the suspension of
the regulation because of the patent irregularity in its making and
the unreasonableness of its effect. The final order sought the
setting aside, permanently, of that regulation. There was no need to
bring a separate review application.
In terms of Order 32 of the High
Court Rules one had a choice of procedure. One could bring an
ordinary court application in Form 29 in non-urgent matters. In
urgent matters such as this, one could bring an urgent chamber
application for interim relief.
The respondents' two-legged
second point in limine also touched on the merits of the application.
Disposal of that point would virtually dispose of the whole case. The
parties seemed to concur. Much time and effort had been spent arguing
the points in limine, particularly the second one. For the merits the
parties were content to abide by their papers and their submissions
on the points in limine.
The nub of the matter is, in my
view, the extent to which the legislative function of the executive
arm of government is reviewable by the judicial arm of government
under the doctrine of the separation of powers.
But before I deal with this point
as it relates to this particular matter I have to blow away the smoke
that purports to screen off the real issue. Part of this smoke or
cloud was the respondents' argument or insinuation that there
always ought to be some lite pending before one can bring an urgent
chamber application for interim relief.
It seems true that in the
majority of urgent chamber applications the interim relief is sought
pending the determination of some main dispute. An obvious example is
where a provisional order is sought to stay the execution of a
judgment pending the determination of an application for the setting
aside of that judgment. However, in my view, the granting of relief
on an interim basis cannot always be pending something. It cannot
always be predicated on some other application having been filed of
record first. There is no such requirement in the Rules.
Rule 226 of Order 32 only
provides as follows:
“226.
Nature of applications
(1) Subject to this rule, all
applications made for whatever purpose in terms of these rules or any
other law, other than applications made orally during the course of a
hearing, shall be made –
(a) as a court application, that
is to say, in writing to the court on notice to all interested
parties; or
(b) as a chamber application,
that is to say, in writing to a judge.
(2) An application shall not be
made as a chamber application unless –
(a) the matter is urgent and
cannot wait to be resolved through a court application; or
(b) these rules or any other
enactment so provides; or
(c) the relief sought is
procedural or for a provisional order where no interim relief is
sought only; or
(d) the relief sought is for a
default judgment or a final order where -
(i) ………………………………………………..
(ii) ……………………………………………….
(iii) ………………………………………………..
(e) there are special
circumstances which are set out in the application justifying the
application.” (emphasis added)
In the present matter I have
accepted the applicant's argument that what it placed before me was
both the review application and the urgent application for interim
relief. In terms of Order 32 an urgent chamber application must be
accompanied by, inter alia, a certificate of urgency. Except for a
mandament van spolie which is itself a final order4,
where relief is granted in an urgent chamber application it is
invariably of a temporary or interim nature because there would not
have been enough time to canvass and ventilate the issues. At this
stage the court is being asked to consider the matter in summary
fashion. If it is satisfied that the applicant has made out a prima
facie case, the court can grant the interim relief. But it is not
uncommon for that interim relief to be discharged on the return date
when the matter has been considered more extensively and the issues
canvassed and ventilated more properly.
Therefore, I dismiss the first
leg of the respondents' second point in limine for lack of merit.
Ms Warinda's argument that it
is impossible for a court to review the legislative function of
government is a ghost. It was buried in 1985 in the PF-ZAPU case5.
A three judge Bench of the Supreme Court headed by DUMBUTSHENA CJ
held that the exercise of an executive prerogative is not necessarily
an act the validity of which is beyond the jurisdiction of the court.
It is only those acts of State in respect of which the jurisdiction
of the court is ousted that the court may not review. Such executive
prerogatives are now very few and far between. Whenever the exercise
of executive prerogative affects the private rights, interests and
legitimate expectation of the citizens, the jurisdiction of the
courts is not ousted. Acts of State that may be exercised by the
President, in terms of the Constitution in respect of which the jurisdiction of the court is
ousted include the appointment, accreditation, reception and
recognition of diplomatic agents; the conclusion and ratification of
international conventions, treaties or agreements; the proclamation
or declaration of martial law or war, etc. Others include the
granting of a pardon to convicted persons or the remission or
suspension of their sentences, etc. Even then, the superior court
said, should the exercise of these prerogatives be done under
unlawful conditions or be performed outside the law the courts have a
duty to review them.
That now brings me to the nub of
the matter.
The applicant says its
application is both a Constitutional application and one for review
of the Minister's action under AJA. As a Constitutional application
the applicant says in terms of section 68 of the Constitution it has
a right to administrative conduct that is lawful, reasonable and
proportionate and that is both substantively and procedurally fair.
Mr Uriri submitted that by
referring to a non-existent law when promulgating SI 106/2014, the
Minister had subjected it to conduct that was unlawful. Given the
state of the economy, SI 106/2014 was unreasonable. The margin of the
toll increase was disproportionate. Under AJA the applicant's case
was basically that the Minister had failed to consult the Minister of
Finance in fixing the new toll tariff. He also is said to have failed
to consult all the stakeholders.
In my view, a great deal of the
applicant's submissions on the main point was wool over the eyes.
As the respondents contended, there was nothing constitutional about
the application. That any person who thinks that their freedoms as
enshrined in the Constitution have been infringed upon is entitled to
approach the court for relief as provided for by section 85 of the
Constitution was not the issue. That any person is entitled to
administrative justice as spelt out in section 68 of the Constitution
and section 3 of AJA was also not the point.
The respondents did not contest
the applicant's right to approach the court as provided for in the
Constitution and AJA. What they contested, on the merits, was a
finding that the Minister's action in enacting SI 106/2014 was
unlawful, unreasonable and substantively and procedurally unfair.
They also contested a finding that the Minister had not consulted the
Minister of Finance or that he was obliged to consult anyone else
other than that minister.
In casu, Mr Uriri's argument
that SI 106/2014 is unlawful because it refers to a wrong Act of
Parliament is illusory. Whilst the error is patently obvious, it is
so infinitesimal as to be inconsequential. It practically was a
typing error, a slip of the pen by the typist, or of the tongue by
whoever may have dictated the contents. A law cannot be knocked down
for such a minor mistake.
There is no question that the
Minister does have the power under TORA to fix toll tariffs. There is
no question that it is section 6 of TORA that empowers the Minister
to make subsidiary legislation. TORA is Chapter 13:13 in the statute
books. All the other provisions of SI 106/2014 seem perfect except
the erroneous reference to ROMOTRA. It is not every mistake that
affects the validity of a law. Even some far more serious mistakes or
omissions than in the present matter have failed to upset an existing
law.
In the Blair Atholl case, supra,
MURPHY J said, in para 36, of the judgment:
“Even though the notice might
have been invalid for want of compliance with the time period, such
procedural invalidity, in the face of substantial compliance and no
notable prejudice, does not justify a declaration of invalidity with
retrospective effect. Illegal acts can have factual consequences
which in all other respects are lawful and have no on-going or
prospective illegal effect. Sometimes invalid administrative action,
in this case the non-compliance with statutory procedure, must be
allowed to stand in the interests of finality, pragmatism and
practicality, especially when noncompliance is not material or
prejudicial – Chairperson, Standing Tender Committee v JFE Sapela
Electronics 2008 (2) SA (SCA) para 28. In such circumstances, a court
in its discretion may decline to set aside the invalid action, ……”
On this particular point the
Minister is not being impugned for any procedural impropriety. He is
being impeached for a typing error. This ground must fail.
The next ground of attack must
also fail.
Section 3(1)(c) provides that the
Minister may fix the amount of any toll after consulting the minister
responsible for finance. The applicant says the Minister did not
consult the Minister of Finance. The respondents say he did. Not only
that, but also that he brought the whole matter to Cabinet for
approval.
The court is none the wiser. The
law says he who alleges must prove.
Furthermore, the presumption of
validity operates. An act regular on the face of it is valid until
the contrary is proved.
The applicant just makes a bald
allegation in paragraph 23.1 of the founding affidavit that there is
no evidence that the Minister followed the procedures set out in
section 3(1)(c) of TORA and that his failure to consult the Minister
of Finance is fatal to the validity of SI 106/2014.
But where is the evidence of
non-compliance in the first place?
The court cannot upset a law on
mere conjecture.
One of the applicant's
complaints on lack of consultation was that the Minister, without
consulting the general motoring public, promulgated SI 106/2014 which
imposed punitive toll increases. But the law does not make it
obligatory for the Minister to consult anyone else other than the
Minister of Finance. Therefore, there is no valid complaint on this
point.
The gravamen of the applicant's
complaint is that against the dismal performance of the national
economy the toll increase is unreasonable, disproportionate and
punitive. The complaint is also that instead of looking to tolls for
road construction, rehabilitation and maintenance the Minister should
have considered other sources of funding like fuel levies.
This argument brings squarely to
the fore the doctrine of the separation of powers and the extent to
which it may operate.
In my view, the doctrine of the
separation of powers in a Constitutional democracy is such that the
three arms of government, namely, the legislature, the judiciary and
the executive, have each exclusive domains of operation. They apply
their training, if any, their experience, the information available
to them and all the other resources at their disposal to put out the
best for the nation. One arm may not interfere with the other arms.
But our Constitutional democracy has a system of checks and balances.
One arm may pry into and poke its nose in the other's domain. For
example, the prerogative to sentence a convicted person to an
appropriate term of imprisonment is that for the judiciary. What
would amount to an appropriate sentence is for the court to decide in
its own discretion. But it is not always like that. The legislature
can “interfere” with the exercise of that discretion by imposing,
through legislation, minimum or maximum penalties for specified
offences. The executive can also “interfere”. The President can
pardon, commute or remit certain punishments imposed by the courts.
Likewise, the judiciary plays an oversight role in making sure that
as the legislature and the executive go about executing their
functions they do so lawfully or procedurally. A law promulgated
unprocedurally or any other administrative function carried out
without regard to the law will be knocked down by the judiciary or
set aside. That is how the machinery of State functions.
If the applicant argues that
something is unreasonable, the obvious question is unreasonable
compared to what? If something is disproportionate or punitive, in
relation to what?
Aren't these mere abstract
concepts that defy precision?
Without some kind of empirical
evidence, how does a court quantify unreasonableness?
One appreciates the applicant's
example of a toll gate along the Harare–Mazoe Road with figures of
$4 per day, $120 per month and $1,200 per year for a light motor
vehicle, and $20, $600 and $7,200 respectively for a haulage truck.
But the respondents came up with their own set of figures to
illustrate that tolls on Zimbabwe roads are the lowest in the Region.
As an example they said that a motorist for a light motor vehicle
will pay a total toll of only US$8 for a distance of 580 km from
Harare to Beitbridge. Yet in South Africa he will pay almost double,
R196-50, for a similar distance from Beitbridge to Johannesburg. So
again the court is none the wiser.
The South African so-called
e-tolling cases dealt with objections to a toll project very similar
to the applicant's objection herein. The cases were triggered by
the implementation of e-tolling. There was a vigorous, organised and
protracted resistance. In a nutshell e-tolling is the collection of
tolls through electronic means. In one particular province it did
away with the manual system of having toll-gates mounted along
toll-roads as is the current situation in Zimbabwe. The
implementation of e-tolling was preceded by massive consultations,
advertisements, meetings, presentations and several submissions.
Stakeholders such as car hire companies, consumer unions, fleet
owners and individual motorists organised themselves into a single
body to thwart the move. SANRAL (South African National Roads Agency
Limited), the equivalent of ZINARA here, had made budgetary
presentations for the minister of transport who had then taken the
matter up to Cabinet. SANRAL had obtained a loan for the massive
project and the government had stood guarantor for that loan.
Opposition to e-tolling was predicated on a number of grounds. They
included the alleged unreasonableness of the massive cost and the
impracticality of enforcement of payment. It was also suggested that
the government could source funding for the project from elsewhere.
The court cases were based on the provisions of the South African
Constitution similar to those cited by the applicant herein. They
were also based on the South African equivalent of AJA, called the
Promotion of Administrative Justice Act (“PAJA”).
The opposition failed.
The judgment of the
Constitutional Court of South Africa, in National Treasury and Others
v Opposition to Urban Tolling and Others, supra, at para (63) cited
with approval the following passage in the case of Doctors for Life
International v Speaker of the National Assembly and Others 2006 (6)
SA416 (CC), 2006 (12) BCLR1399;
“(w)here the Constitution or
valid legislation has entrusted specific powers and functions to a
particular branch of government, courts may not usurp that power or
function by making a decision of the their preference that would
frustrate the balance of power implied in the principle of separation
of powers. The primary responsibility of a court is not to make
decisions reserved for or within the domain of other branches of
government, but rather to ensure that the concerned branches of
government exercise their authority within the bounds of the
Constitution. This would especially be so where the decision in issue
is policy-laden as well as polycentric.”
In paragraphs 66 to 68, on page
241, the court held as follows:
“[66] A court must carefully
consider whether the grant of the temporary restraining order pending
a review will cut across or prevent the proper exercise of a power or
duty that the law has vested in the authority to be interdicted. Thus
courts are obliged to recognise and assess the impact of temporary
restraining orders when dealing with those matters pertaining to the
best application, operation and dissemination of public resources.
What this means is that a court is obliged to ask itself not whether
an interim interdict against an authorised State functionary is
competent but rather whether it is constitutionally appropriate to
grant the interdict.
[67] The harm and inconvenience
to motorists, which the high court relies on result from a national
executive decision about the ordering of public resources, over which
the executive government disposes and for which it, and it alone, has
the public responsibility. Thus, the duty of determining how public
resources are to be drawn upon and reordered lies in the heartland of
executive-government function and domain. What is more, absent any
proof of unlawfulness or fraud or corruption, the power and the
prerogative to formulate and implement policy on how to finance
public projects reside in the exclusive domain of the national
executive subject to budgetary appropriations by parliament.
[68] Another consideration is
that the collection and ordering of public resources inevitably call
for policy-laden and polycentric decision-making. Courts are not
always well suited to make decisions of that order. It bears
repetition that a court considering the grant of an interim interdict
against the exercise of power within the camp of government must have
the separation of powers consideration at the very fore front.”
I adopt the same approach in this
case.
I do find nothing unprocedural in
the way the Minister promulgated SI 106/2014. It was within his power
to craft it. It was an action within the exclusive domain of the
executive to decide how road construction, rehabilitation and
maintenance should be funded. Such a decision is manifestly
policy-laden and polycentric.
In my view section 68 of the
Constitution and AJA are in most ways a mere codification of the
traditional powers of the courts to review the exercise of the
functions of the executive. In my view AJA is merely an elaborate
restatement of the rules of natural justice. In the case of Zindoga &
Ors v Minister of Public Service, Labour and Social Welfare &
Anor 2006 (2) ZLR 10 (H), PATEL J, as he then was, said at p 13D –
E: “It is axiomatic that any party who has a right or interest that
is likely to be affected by an administrative decision or which is
susceptible to being prejudiced thereby must be heard before that
decision is taken. This is dictated by the time honoured precept of
the common law embodied in the audi alteram partem rule and now
codified in the Administrative Justice Act [Chapter 10: 28].”
(emphasis added).
The courts exercise the powers of
review within those bounds as have been developed through case law
such as PF-ZAPU and the e-tolling cases referred to above.
In my view, the applicant has
failed to establish a proper cause of action for the court to
determine. With the view that I have taken I have found it
unnecessary to consider in any further detail the requirements for an
interdict as set out in Setlogelo v Setlogelo, supra, and whether
they apply in a matter such as this where the central question was
the power of the court to review acts that are the exclusive
prerogative of the executive arm of government. Suffice it to say
that when I say the applicant has not established a cause of action I
mean that it has neither shown a prima facie right peculiar to it or
its members, nor any well-grounded apprehension of an irreparable
harm stemming from the actions of the Minister.
In the result the application is
dismissed.
Normally the costs of suit follow
the event. But not always, especially in a matter of such public
importance as this. In one of the etolling cases aforesaid6
the South African Supreme Court referred to the Biowatch
principle7and
refrained from ordering the costs of suit against the appellants
despite the failure of their appeal. The court said the Biowatch
principle is that in constitutional litigation an unsuccessful party
in proceedings against the State ought not to be ordered to pay costs
lest litigants may be discouraged to vindicate their constitutional
rights. In this jurisdiction I would refer to what I would term the
Nyambirai principle after the decision in the case of Nyambirai v
National Social Security Authority & Anor 1995 (2) ZLR 1. The
Supreme Court, in a constitutional application brought against the
introduction of a compulsory scheme of national social security,
refrained from ordering the applicant to bear the costs of suit
notwithstanding that he had lost. The court said the issue that the
applicant had raised was important and controversial and that the
proceedings that he had instituted had led to its resolution. In the
final result the application is dismissed with each party paying
their own costs.
Wintertons, applicant's legal practitioners
Civil Division of the Attorney-General's Office, legal
practitioners for the respondents
Mutamangira & Associates, legal practitioners for the second
respondent
14 July 2014
1. 1914 AD 221
2. National Treasury and Ors v Opposition to Urban Tolling Alliance &
Ors 2012 (6) SA 229; Opposition to Urban Tolling Alliance & Ors v
South African National Roads Agency Limited 2013 (4) All SALR 639
(Judgment No 90/2013 of the Supreme Court of Appeal of South Africa)
3. Blair Atholl Homeowners Association & Ors v The City of
Tshwane Metropolitan Municipality Case No. 63280/11
4. See Mankowitz v Loewenthal 1982 (3) SA 758, at p 767F – H; and,
my recent judgment in Trustees of the S.O.S. Children's Village v
Bindura University & Ors HH349-14, at p 6
5. PF-ZAPU v Minister of Justice 1985 (2) ZLR 305 (SC)
6. Opposition to Urban Tolling Alliance v The South African National
Roads Agency Limited 2013 (4) All SALR 639
7. Biowatch Trust v Registrar, Genetic Resources and Others 2009 (6)
SA 232 (CC)
