The
applicant is a duly registered company in terms of the laws of this
country. It is in the business of importing and marketing fuel in
terms of licence number 000228 issued by the respondent Ministry on
the 2nd
of January 2009.
It
is common cause that on the 4th
of September 2009 a consignment of 476,427 litres ...
The
applicant is a duly registered company in terms of the laws of this
country. It is in the business of importing and marketing fuel in
terms of licence number 000228 issued by the respondent Ministry on
the 2nd
of January 2009.
It
is common cause that on the 4th
of September 2009 a consignment of 476,427 litres of diesel was
imported into the country from Sasol South Africa through the
Beitbridge boarder post. The
diesel was delivered to Zimbabwe in train wagons to be off-loaded at
NOCZIM, Beitbridge but destined for Chiredzi. The transporter was
unable to off load the product on the instructions of the second
respondent, a director in the first respondent's ministry.
The
second respondent's functions include:
1.
Managing, monitoring and reviewing all Government-initiated or
sponsored liquid fuel supplies contract and all fuel safety and
quality standards; and
2.
Providing leadership and facilitating the strategic management
process to guide the operation of the Petroleum Department and the
oil industry.
The
applicant's complaint is basically that the second respondent is
abusing his authority and has taken the law into his own hands by
placing an embargo on the product when there is no law which
authorizes him to do so.
The
responsible Minister in the respondent's ministry has since filed an
affidavit dated 8th
October 2009 ratifying the second respondent's conduct. In that
affidavit he acknowledges responsibility for his conduct in the
following terms:
"4.
On the 14th
September 2009 I ordered the return of substandard diesel imported by
a company called BSKY because it did not meet the quality
specifications that we have determined. The level of 4400ppm imported
by BSKY was too high and thus unacceptable.
5.
Moreso is the fact that the high sulphur content of 50ppm to 500ppm
is a Regional standard that has been agreed upon by South Africa,
Zimbabwe, Tanzania, Mozambique, and Malawi. This position has been
approved by Cabinet.
6.
This Cabinet position is known and was communicated to the oil
industry leading to the setting up of the National Procurement
Committee to enforce quality and prices monitoring, and, sometimes,
control.
7.
Soon after we liberated the importation of fuel the rule of practice
in the industry to set the quality has now been breached by BSKY.
8.
There is no understanding the damage that can be caused by high
sulphur diesel being imported in the knowledge of the serious
corrosive effect.
9.
The imported diesel is hazardous to property and I believe, as
Minister of the State of Zimbabwe, I have a duty flowing from the
Constitution to protect our citizens and property posed by such
dangers knowingly caused by a licensed company because it believes
there may be a gap in the law in terms of quality level stipulation
by statutory instrument.
10.
I am reliably informed that the diesel is a hazardous substance
therefore is limited in its use as it damages the environment.
11.
I am informed, in terms of the Environmental (Hazardous Substances
Pesticides and Other Toxic Substances) Regulations, 2007 such
substance(s) can only be imported under notification and license from
the Environmental Management Agency.
12.
I am also informed that counsel for the applicant has failed to
produce the same under law.
13.
The licence issued by my ministry is not for the importation of the
substandard fuel."
Upon
placing an embargo on the fuel in dispute the ministry constituted an
investigating team comprising Ministry and NOCZIM staff. The team's
terms of reference were to inspect the product by way of reading
documents or breaking seals and taking samples for testing.
Thereafter, the team would gather information and report on the
quality of fuel being imported by various companies through the
Beitbridge boarder post.
In
discharging its mandate, the team was supposed to work in conjunction
with ZIMRA staff. ZIMRA however objected to the intended
investigations particularly the breaking of seals and taking of
samples pointing out that it was unlawful. With much reluctance ZIMRA
management finally granted the team access to the relevant documents.
The team then proceeded to discharge its mandate by restricting
itself to perusing the documents without breaking the seals and
analyzing samples. In its written report the investigating team made
the following findings:
"Findings
(a)
We found that all fuel from SASOL was of the high sulphur type
(0.5/500ppm).
This is far above Zimbabwe spec.
(b)
All companies importing SASOL products were dumping its product on
poor countries (Zambia, Zimbabwe, DRC and other countries).
(c)
ZIMRA
had no legal mandate to check fuel quality as there was no instrument
to that effect.
(d)
We
have always been using high sulphur diesel in our engines, so there
is no new harm that can be done now.
(e)
Ministry, in collaboration with EMA and ZIMRA, to draft an instrument
on fuel specifications that is legally binding.
(f)
ZIMRA
to act on the basis of the instrument on fuel specifications so that
they deny product on entry.
(g)
SASOL
to be advised of Zimbabwe's required fuel specifications.
(h)
BSKY
fuel is released as demurrage charges may be charged to the Ministry
upon losing its case.
(i)
Fuel
samples should be collected at destinations as companies may possibly
change their paper work without changing their product quality.
OPTIONS
Option
One
Stopping
high product entry.
Implication
of Option One
It
has some legal implications as there is no instrument to that effect.
This may also result in critical fuel shortage…,.
Option
Two
To
continue business while putting the required legislation in place.
Implications
of Option Two
This
will ensure a smooth change over to agreed specs without interrupting
product inflow into the country."
The
above report is expertly written and presented such that one cannot
imagine a better report or recommendations.
What
emerges quite clearly from the report is that Zimbabwe has no legal
instrument which entitles the respondents, or anyone, to regulate the
quality of fuel being imported into the country. This stark reality
has left both the Minister and the second respondent groping in the
dark for legal authority to justify what is clearly unlawful conduct.
Both
the first and second respondents have conveniently made no reference
to the above report in their detailed opposing affidavits. As things
stand, one cannot but surmise that they have deliberately sought to
steer away from the report because it is not to their liking and yet
they are unable to challenge its findings. That kind of conduct
smacks of a deliberate attempt to mislead the Court by silence
particularly on the part of the second respondent whose function
includes advising the Minister on policy issues such as these.
On
the facts before me it is doubtful that the report was drawn to the
Minister's attention before he endorsed the order to place an embargo
on the fuel in dispute or at the time he executed his opposing
affidavit.
The
attempt to conceal the investigating team's report tends to confirm
the applicant's allegation that the second respondent was motivated
by some improper motive, malice or ill-will in placing an embargo on
its fuel when its competitors were importing the same fuel without
let or hindrance from the same respondents. The applicant's Managing
Director makes the telling point, in paragraph 10 of the applicant's
founding affidavit, when he says:
"It
will also be seen from the letter from Sasol, dated 1st
October 2009, that apart from the applicant, fifteen other companies
are importing the same diesel as the one imported by the applicant in
this case. These other companies have been allowed to have their
diesel imported into the country without any obstruction. I must
point out that Redan, the largest private importer and retailer of
fuel in Zimbabwe are importing the same Sasol diesel. This can be
seen from the letter from Sasol mentioned above and which I attach as
Annexure
"E".
The
letter from Sasol reads in part:
"As
from the 29th
of September 2009 Sasol Oil sold approximately 1,500m3
of Diesel 5000ppm into Zimbabwe. This is to let you know that Diesel
5000ppm is also sold in Zambia and the DRC in considerable
quantities. The following companies all moved diesel 500ppm into
Zimbabwe for the month of September 2009: UTEC, Nettrade Marketing,
Redan, FX International, Petrotrade, Tradimex, Imvuselelo, Cargo
Carriers, Lydon, Lemino, Zelda, Stoner Trading, Khumbulani and
Bojas."
That
much is common cause as the respondents have not been able to
challenge those factual dispositions.
In
his opposing affidavit, the first respondent nevertheless deposed
that in imposing the embargo he was exercising his Constitutional
mandate to give general direction and control over his ministry and
departments in terms of section 31D of the Constitution which
provides that:
"(3)
Subject to the provisions of this Constitution and any Act of
Parliament, where any Minister has been charged with responsibility
for any Ministry or department he shall exercise general direction
and control over that Ministry or department, and, subject to such
direction and control, any such Ministry shall be under the
supervision of a Secretary."
It
must be noted that the Constitutional mandate restricts the
minister's authority to his ministry in so far as the section states
that "…,
he shall exercise general control and direction over that
Ministry"
and not any other Ministry.
While
it is correct for the first respondent to say, as Minister, he has a
Constitutional duty to exercise general direction and control over
his
ministry
or departments,
that Constitutional mandate must be exercised within the strictest
confines of the law. It cannot, and must not, be used as a vehicle to
act outside the strict confines of the law. The words of PROFESSOR
FELTOE, in his booklet, A
Guide To Administrative Law…,
are instructive when he says:
"All
administrative powers (other than those exercised by domestic
tribunals) derive from statute and the nature and extent of those
powers are to be found in the statutory provisions whereunder these
powers have been granted. Such powers are not unlimited.
The legislature will not give unlimited power, but, instead, it will
give power for specific purpose only or subject to special procedures
or with some other kinds of limits. In other words, the limits upon
the power are to be discovered by examining the statutory provisions
in order to determine what powers the legislature has expressly or
impliedly granted. The
exercise of a power by an administrative official or body will be
invalid unless the official or body is authorized to exercise that
power. If an administrator purports to exercise a power he does not
have or acts in excess of a power he possesses, his action will be
invalid on the basis that it is ultra
vires."….,.
Thus,
the first respondent cannot use the general powers granted to him by
the Constitution to arrogate to himself specific administrative
powers which have not been granted to him by the legislature.
His
resort to cabinet authority and directives as justification of his
unlawful conduct is equally misplaced and without merit because
cabinet has no legislative authority. It is trite that laws are made
in Parliament and not in Cabinet.
The
first respondent also sought to argue that as a Government Minister
he placed the embargo on the diesel in the public interest because it
constituted a harmful substance in terms of the Environment
Management Act [Chapter 20:27] as read with the Environment
Management (Hazardous Substances, Pesticides and other Toxic
Substances) Regulations, Statutory Instrument 12 of 2007.
In
other words, the first respondent is claiming that he has authority
to administer the Environmental
Management Act
simply because he is a Government Minister.
Section
2 of the Environment Management Act [Chapter 20:27], however, defines
Minister in the following terms:
"'Minister'
means the minister of Environment and Tourism or any other minister
to whom the President, may, from time to time, assign the
administration of this Act."
What
that means is that for the purposes of administering that Act, the
law does not recognize any other Minister other than the Minister of
Environment and Tourism or any other Minister specifically assigned
the task of administering that Act by the President.
In
this case, it is common cause that the first respondent, as Minister
of Energy and Power Development, he is neither the Minister of
Environment and Tourism nor has he been assigned by the President the
right to administer the Environment Management Act. For that reason,
he cannot assign to himself the power to administer the Environment
Management Act without usurping both the President and the Minister
of Environment and Tourism's functions.
That
being the case, the first respondent's conduct, in assuming
responsibility over the Environment Management Act, without
Presidential authority, was unconstitutional, and, to that extent,
unlawful. In legal parlance his conduct was ultra
vires
the Constitution as read with the Environment Management Act [Chapter
20:27] and the Environment Management (Hazardous Substances,
Pesticides and other Toxic Substances) Regulations, S.I.12 of 2007.
Looked
at from a different angle, a perusal of the Constitution, the
Environment Management Act [Chapter 20:27] and the Environment
Management (Hazardous Substances, Pesticides and other Toxic
Substances) Regulations, S.I.12 of 2007 shows that nowhere do they
authorize any Minister to place an embargo on any fuel on the basis
that its specifications constitute a hazardous substance or is
harmful to motor vehicles. This explains why the responsible
Minister, that is to say, the Minister of Environment and Tourism has
wisely chosen not to interfere with the importation of the diesel in
question.
Resorting
to the Constitution,
the Environment Management Act [Chapter 20:27] and the Environment
Management (Hazardous Substances, Pesticides and other Toxic
Substances) Regulations, S.I.12 of 2007 could
not assist the respondents achieve their purpose considering that in
the case of Minister
of Justice and Law and Order and Another v Musarurwa and Others
1964
RLR 298 the Appellate Division held, per BEADLE CJ, that:
"(3)
When several Acts are used together for the single purpose of
producing a desired result, all the Acts must be looked at together
as comprising one scheme, If, in its pith and substance, such scheme
is unlawful, what was done under each Act must be regarded as having
been unlawfully done."
In
the same case, QU'ENET JP weighed in with the observation that:
"In
exercising his powers of restriction, the Minister was not influenced
by a desire to give effect to the purpose of section 50(1)(b) of the
Law and Order (Maintenance) Act [Chapter 39], but by a desire to
achieve a result not contemplated by the section, viz, to regulate
the visits of other persons to the area of restriction. The existence
of such ulterior motive invalidated the orders."
In
this case, the Minister's resort to section 72 of the Environment
Management Act
was not motivated by a desire to advance the purpose of that section
but to bar the applicant from importing the diesel in circumstances
where others were importing such diesel without let or hindrance. I
come to that conclusion because the section does not authorize anyone
to bar the importation of such diesel. It reads:
"72
Hazardous
waste
(1)
The Standards and Enforcement Committee shall, in consultation with
the Agency, recommend to the Board standard criteria for the
classification of hazardous wastes with regard to determining —
(a)
Hazardous waste;
(b)
Corrosive waste;
(c)
Flammable waste;
(d)
Toxic waste;
(f)
Radioactive waste;
(g)
Any other category of waste the Board may consider necessary.
(2)
The Board shall, on the recommendation of the Standards and
Enforcement Committee, issue guidelines and recommend to the Minister
the making of regulations for the management of each category of
hazardous waste determined under subsection (1).
(3)
Regulations referred to in subsection (2) may prescribe the procedure
and criteria for:
(a)
The control of imports and exports of toxic and hazardous chemicals
and materials permitted to be so imported or exported;
(b)
The distribution, storage, transportation and handling of chemicals
and materials."
As
can be seen, the section simply authorizes the responsible Minister
to make regulations controlling the importation of hazardous waste.
Diesel with a high sulphur content is however not waste. The section
does not prohibit the importation of substandard fuel.
The
general rule of law is that what is not prohibited is allowed. As the
importation of sub-standard fuel is not prohibited by law it means
its importation is legally permissible.
It
follows, therefore, that the Investigating Committee and ZIMRA were
absolutely correct in advising the second respondent that his conduct
was unlawful.
He
disregarded that sound advice at his own peril.
His
conduct becomes especially malicious and objectionable if one takes
into account that he singled out the applicant for victimization in
circumstances where fifteen (15) others were not penalized at all and
continue not to be penalized for the same alleged misdemeanor. This
discriminatory conduct offends both against the Constitution
and
all notions of justice and fairness.
Being
an adviser to the first respondent, the second respondent appears to
have misled his principal by concealing and deliberately not
disclosing to him the Investigating Committee's report.
That
kind of conduct cannot be tolerated by these courts.
By
consciously ignoring sound advice, thereby deliberately straying into
the wilderness of costly illegality, the second respondent cannot cry
foul when he is personally visited with adverse costs.
Granted,
the second respondent was acting in the course of duty as a civil
servant but while going about his duties he was not entitled to act
unlawfully thereby trampling on other people's rights.
A
civil servant, or any other employee for that matter, who acts
unlawfully in the course of duty attracts personal liability for the
simple reason that he is not employed to discharge his duties
contrary to law. People must not cause harm to others under the guise
of executing official duties. There is therefore no merit in the
second respondent's objection to being sued in his personal capacity.
While
the importation of substandard fuel is undesirable and harmful to
public interest, there is absolutely nothing the respondents can do
about it in the absence of the necessary legal instruments as
recommended by the Investigating Committee. This is what the
cherished rule of law is all about.
It
is accordingly ordered that a provisional order be and is hereby
granted in the following terms:
TERMS
OF THE FINAL ORDER SOUGHT
Pending
the final determination of this matter, Applicant is granted the
following relief:
That
you show cause to this Honourable Court why a final order should not
be made in the following terms:
(a)
That the respondents pay demurrage costs to the amount of South
African R308,660=.
(b)
That the respondents pay costs of suit on an attorney client scale.
INTERIM
RELIEF GRANTED
Pending
determination of this matter, the Applicant is granted the following
relief:
(c)
That the Respondents release to the Applicant diesel or its agent
fuel held at Beitbridge being a total of 476,427 litres without any
conditions.
(d)
That the Respondents are interdicted from unlawfully frustrating or
preventing Applicant from carrying out its business of trading in
fuel including importing and distributing fuel in the country.
