Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Founding Affidavits re: Approach and the Rule that a Case Stands or Falls on Founding Affidavit

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Cause of Action and Draft Orders re: Approach, Timing, Framing, Forum and Legal Basis for Invoking Jurisdiction of Court

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Audi Alteram Partem Rule re: Approach, Orders Granted Without a Hearing and the Doctrine of Notice

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Pleadings re: Striking Out or Expunging of Claim, Defence, Counter Claim, Pleadings and Reinstatement of Plea

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Pleadings re: Belated Pleadings or Issues Not Specifically Pleaded iro Constitutional Proceedings

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.

Constitutional Application re: Fundamental Rights iro Approach, Direct Access, Referral, Locus Standi and Jurisdiction

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

These sentiments were endorsed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16: (1) ZLR 113 (CC)…,.

Although this Court has suggested that one must act in one capacity only under section 85(1) of the Constitution, where the circumstances so dictate, and one avers that he or she is acting in two or more capacities, that alone, it would appear to me, on the basis of a broad and generous approach to standing that section 85(1) of the Constitution portends, cannot be a basis for denying audience if at least one of the capacities does entitle the applicant to standing.

As observed in MAX du PLESSIS et al, Constitutional Litigation, Juta, 2013:

"A litigant may have standing both to act in the public interest…, and to act in the interests of persons who cannot act in their own name…,. For example, in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the (South African) Constitutional Court held, that, a group of non-governmental organisations had standing to interdict the President from granting presidential pardons without hearing victims on two grounds: in the public interest and in the interests of victims."...,.

Infringement of a Fundamental Right or Freedom

With regard to section 85(1)(a) of the Constitution, which premises locus standi on a personal interest in the matter, as with the other sub-paragraphs of section 85(1), it must be demonstrated that the infringement complained of by the affected party is that of a fundamental…,.

Section 47 of the Constitution reads:

"This chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution."…,.

The meaning that is readily apparent from the foregoing is that the fundamental rights provided for in Chapter 4 of the Constitution do not exclude other rights that are conferred by law. That, in itself, does not mean that the rights envisaged by section 47 of the Constitution are fundamental rights in terms of the Bill of Rights as contained in Chapter 4 of the Constitution.

Section 85(1) of the Constitution provides for the “…, fundamental right or freedom enshrined in this Chapter."

This reference relates to express rights as provided for in Chapter 4 of the Constitution.

It does not provide room for a "reading in" of new rights. At any rate, any “other rights and freedoms" must be such as are "recognized or conferred by law” and not inconsistent with the Constitution.

The Chapter 4 fundamental rights and freedoms are specific and specialised, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum - features that cannot easily be transferable to “inferred" new rights....,.

It is important to reiterate..., that, all locus standi situations envisaged in section 85(1) of the Constitution are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution...,.

Locus Standi re: Constitutional Proceedings

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

These sentiments were endorsed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16: (1) ZLR 113 (CC)…,.

Although this Court has suggested that one must act in one capacity only under section 85(1) of the Constitution, where the circumstances so dictate, and one avers that he or she is acting in two or more capacities, that alone, it would appear to me, on the basis of a broad and generous approach to standing that section 85(1) of the Constitution portends, cannot be a basis for denying audience if at least one of the capacities does entitle the applicant to standing.

As observed in MAX du PLESSIS et al, Constitutional Litigation, Juta, 2013:

"A litigant may have standing both to act in the public interest…, and to act in the interests of persons who cannot act in their own name…,. For example, in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the (South African) Constitutional Court held, that, a group of non-governmental organisations had standing to interdict the President from granting presidential pardons without hearing victims on two grounds: in the public interest and in the interests of victims."...,.

It is important to reiterate, at this juncture, that, all locus standi situations envisaged in section 85(1) of the Constitution are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution...,.

According to M & Anor v Minister of Justice, section 85(1)(d) of the Constitution is founded on broad considerations. Its primary purpose is to ensure effective protection of any public interest shown to have been or to be adversely affected by the infringement of a fundamental right or freedom.

In the case of Forum Party of Zimbabwe & Ors v Minister of Local Government, Rural and Urban Development & Ors 1996 (1) ZLR 461 (H)…, it was held thus:

"…, general public interest does not mean that legislation must apply to everyone in the country; it would be permissible to hold that something was in the general public interest even if applied only to a section of the population.”

The above position was affirmed in the following cases, albeit in different jurisdictions to ours: Ferreira v Levi N.O. 1996 (1) SA 984 (CC). See also, Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor 2004 (4) SA 125 (CC); SP Gupta v The Union of India & Ors (1982) 2 SCR 365.

See also ERASMUS, Superior Court Practice, 2nd (Ed)...,.

Constitutional Application re: Non-Fundamental Rights

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution...,.

Infringement of a Fundamental Right or Freedom

With regard to section 85(1)(a) of the Constitution, which premises locus standi on a personal interest in the matter, as with the other sub-paragraphs of section 85(1), it must be demonstrated that the infringement complained of by the affected party is that of a fundamental…,.

Section 47 of the Constitution reads:

"This chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution."…,.

The meaning that is readily apparent from the foregoing is that the fundamental rights provided for in Chapter 4 of the Constitution do not exclude other rights that are conferred by law. That, in itself, does not mean that the rights envisaged by section 47 of the Constitution are fundamental rights in terms of the Bill of Rights as contained in Chapter 4 of the Constitution.

Section 85(1) of the Constitution provides for the “…, fundamental right or freedom enshrined in this Chapter."

This reference relates to express rights as provided for in Chapter 4 of the Constitution.

It does not provide room for a "reading in" of new rights. At any rate, any “other rights and freedoms" must be such as are "recognized or conferred by law” and not inconsistent with the Constitution.

The Chapter 4 fundamental rights and freedoms are specific and specialised, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum - features that cannot easily be transferable to “inferred" new rights....,.

It is important to reiterate..., that, all locus standi situations envisaged in section 85(1) of the Constitution are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution...,.

Locus Standi re: Constitutional Proceedings iro Non-Fundamental Rights

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution...,.

Infringement of a Fundamental Right or Freedom

With regard to section 85(1)(a) of the Constitution, which premises locus standi on a personal interest in the matter, as with the other sub-paragraphs of section 85(1), it must be demonstrated that the infringement complained of by the affected party is that of a fundamental…,.

Section 47 of the Constitution reads:

"This chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution."…,.

The meaning that is readily apparent from the foregoing is that the fundamental rights provided for in Chapter 4 of the Constitution do not exclude other rights that are conferred by law. That, in itself, does not mean that the rights envisaged by section 47 of the Constitution are fundamental rights in terms of the Bill of Rights as contained in Chapter 4 of the Constitution.

Section 85(1) of the Constitution provides for the “…, fundamental right or freedom enshrined in this Chapter."

This reference relates to express rights as provided for in Chapter 4 of the Constitution.

It does not provide room for a "reading in" of new rights. At any rate, any “other rights and freedoms" must be such as are "recognized or conferred by law” and not inconsistent with the Constitution.

The Chapter 4 fundamental rights and freedoms are specific and specialised, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum - features that cannot easily be transferable to “inferred" new rights....,.

It is important to reiterate..., that, all locus standi situations envisaged in section 85(1) of the Constitution are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution...,.

Rules of Construction or Interpretation re: Constitutional Provisions

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution...,.

Infringement of a Fundamental Right or Freedom

With regard to section 85(1)(a) of the Constitution, which premises locus standi on a personal interest in the matter, as with the other sub-paragraphs of section 85(1), it must be demonstrated that the infringement complained of by the affected party is that of a fundamental…,.

Section 47 of the Constitution reads:

"This chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution."…,.

The meaning that is readily apparent from the foregoing is that the fundamental rights provided for in Chapter 4 of the Constitution do not exclude other rights that are conferred by law. That, in itself, does not mean that the rights envisaged by section 47 of the Constitution are fundamental rights in terms of the Bill of Rights as contained in Chapter 4 of the Constitution.

Section 85(1) of the Constitution provides for the “…, fundamental right or freedom enshrined in this Chapter."

This reference relates to express rights as provided for in Chapter 4 of the Constitution.

It does not provide room for a "reading in" of new rights. At any rate, any “other rights and freedoms" must be such as are "recognized or conferred by law” and not inconsistent with the Constitution.

The Chapter 4 fundamental rights and freedoms are specific and specialised, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum - features that cannot easily be transferable to “inferred" new rights....,.

The applicant has urged this Court to embrace a 'generous and purposive' interpretation that gives expression to the underlying values of the Constitution.

In rejecting the applicant's attempt to read into the Constitution a general “freedom of choice” and an even more novel concept of “freedom of fairness” the Court takes the view that the practical application of that interpretive approach is not unrestrained as the applicant seems to suggest.

As was pointed out in the case of Kalla v The Master 1995 (1) SA 261 (T), the Supreme Court found, that, since the right to engage in economic activity of one's choice is not specified in the Declaration of Rights, it is not one of those guaranteed rights.

SANDURA JA (with the concurrence of CHIDYAUSIKU CJ, CHEDA JA, MALABA JA and GWAUBZA JA) said on p102:

"In my view, the fact that the right freely to engage in economic activity of one's choice is not one of the fundamental rights and freedoms of the individual specified in the Declaration of Rights is significant. It must mean, that, the right is not one of those afforded protection by the Constitution. In addition, I do not believe that the submission made on behalf of the applicant, that 'the applicant's right to trade in maize commodity is properly within the meaning of and is guaranteed by section 16(1) of the Constitution' has any validity. Such a right is not an absolute right."

The respondents urge this Court to follow the reasoning in the above matter, which is virtually on all fours with the present case and accords with common sense and justice.

I agree.

See JR 1013 Investments CC and Others v Minister of Safety & Security and Others 1997 (7) BCCR 925 (E)…,. Also compare with the South African case of Park-Ross v Director, Office for Serious CdS Economic Offences 1995 (2) SA 148 dealing with the right to silence.

Constitutional Rights re: Approach, Scope, Limitation, Attenuation & Justiciability or Enforcement of Fundamental Rights

Section 85(1) of the Constitution provides for the “…, fundamental right or freedom enshrined in this Chapter."

This reference relates to express rights as provided for in Chapter 4 of the Constitution.

It does not provide room for a "reading in" of new rights....,.

The Chapter 4 fundamental rights and freedoms are specific and specialized, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum - features that cannot easily be transferable to “inferred" new rights.

Locus Standi re: Public Interest Litigation

In claiming locus standi under section 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.

These sentiments were endorsed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16: (1) ZLR 113 (CC)…,.

Although this Court has suggested that one must act in one capacity only under section 85(1) of the Constitution, where the circumstances so dictate, and one avers that he or she is acting in two or more capacities, that alone, it would appear to me, on the basis of a broad and generous approach to standing that section 85(1) of the Constitution portends, cannot be a basis for denying audience if at least one of the capacities does entitle the applicant to standing.

As observed in MAX du PLESSIS et al, Constitutional Litigation, Juta, 2013:

"A litigant may have standing both to act in the public interest…, and to act in the interests of persons who cannot act in their own name…,. For example, in Albutt v Centre for the Study of Violence and Reconciliation 2010 (3) SA 293 (CC) the (South African) Constitutional Court held, that, a group of non-governmental organisations had standing to interdict the President from granting presidential pardons without hearing victims on two grounds: in the public interest and in the interests of victims."...,.

It is important to reiterate, at this juncture, that, all locus standi situations envisaged in section 85(1) of the Constitution are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution...,.

According to M & Anor v Minister of Justice, section 85(1)(d) of the Constitution is founded on broad considerations. Its primary purpose is to ensure effective protection of any public interest shown to have been or to be adversely affected by the infringement of a fundamental right or freedom.

In the case of Forum Party of Zimbabwe & Ors v Minister of Local Government, Rural and Urban Development & Ors 1996 (1) ZLR 461 (H)…, it was held thus:

"…, general public interest does not mean that legislation must apply to everyone in the country; it would be permissible to hold that something was in the general public interest even if applied only to a section of the population.”

The above position was affirmed in the following cases, albeit in different jurisdictions to ours: Ferreira v Levi N.O. 1996 (1) SA 984 (CC). See also, Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor 2004 (4) SA 125 (CC); SP Gupta v The Union of India & Ors (1982) 2 SCR 365.

See also ERASMUS, Superior Court Practice, 2nd (Ed)...,.

Legal Tender, Effect of Demonetization of Currency and the Statutory Revalorization of Loans, Obligations or Deposits

In order for one to found a claim in terms of section 56(1) of the Constitution, it must be demonstrated, that, the party concerned has received unfair treatment.

The requisite considerations to be made were well canvassed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16, at page 119A-B, wherein it was stated in para 21:

"In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons."…,.

The Court's interpretation of section 56(1) of the Constitution above is in line with the interpretation of the right to equal protection of the law as articulated in the South African jurisdiction.

In the case of Sarrahwitz v Martiz N.O. & Anor 2015 (4) SA 491…, the South African Constitutional Court interpreted the right in the following manner:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of 'equal protection and benefit of the law' suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment."

Purchase Price re: Approach, Terms of Payment, Ad Stipulator and the Actio Venditi

In order for one to found a claim in terms of section 56(1) of the Constitution, it must be demonstrated, that, the party concerned has received unfair treatment.

The requisite considerations to be made were well canvassed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16, at page 119A-B, wherein it was stated in para 21:

"In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons."…,.

The Court's interpretation of section 56(1) of the Constitution above is in line with the interpretation of the right to equal protection of the law as articulated in the South African jurisdiction.

In the case of Sarrahwitz v Martiz N.O. & Anor 2015 (4) SA 491…, the South African Constitutional Court interpreted the right in the following manner:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of 'equal protection and benefit of the law' suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment."

Enactment of Legislation re: Legislative Powers, Limitations to Legislative Powers, Judicial Activism and Rule of Law

Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but -

(a) Parliament's primary law-making power must not be delegated;

(b) Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.

(d)…,."

Enactment of Legislation re: Subordinate Legislation and Government or Executive Notices

Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but -

(a) Parliament's primary law-making power must not be delegated;

(b) Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.

(d)…,."...,.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

Administrative Law re: Approach iro Delegated Authority and Qui Facit Per Alium Facit Per Se

Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but -

(a) Parliament's primary law-making power must not be delegated;

(b) Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.

(d)…,."

Constitutional Rights re: Equal Protection of the Law, Non-Discrimination, Positive Discrimination and Classification

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

In order for one to found a claim in terms of section 56(1) of the Constitution, it must be demonstrated, that, the party concerned has received unfair treatment.

The requisite considerations to be made were well canvassed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16, at page 119A-B, wherein it was stated in para 21:

"In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons."…,.

The Court's interpretation of section 56(1) of the Constitution above is in line with the interpretation of the right to equal protection of the law as articulated in the South African jurisdiction.

In the case of Sarrahwitz v Martiz N.O. & Anor 2015 (4) SA 491…, the South African Constitutional Court interpreted the right in the following manner:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of 'equal protection and benefit of the law' suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment."

The applicant has failed to prove the aforementioned requirements.

Instead, he alleges that he has been treated unfairly as compared to the third respondent. The allegation is premised on the fact, that, the third respondent has established itself and enjoys unchallenged control in the supply of blended fuel in the country.

However, the position adopted by the applicant is not conferred by law as envisioned in section 56(1) of the Constitution.

The Act and Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 set out the requirements for the blending and sale of blended fuel after one has obtained the requisite licence.

The Act and Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI17 of 2013 apply to the general citizenry of Zimbabwe and not to a specific individual or company. The third respondent cannot therefore be penalised for taking advantage of the provisions therein.

The same opportunity is open to the applicant or any other interested party.

It is the applicant's contention, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I. 17 of 2013 are in contravention of section 134(b) and (c) of the Constitution.

Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but -

(a) Parliament's primary law-making power must not be delegated;

(b) Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.

(d)…,."

Since it has already been noted that the applicant has failed to make out a case for the infringement of fundamental rights, it is therefore not necessary to deal with section 134(b) of the Constitution.

Constitutional Application re: Subsidiarity, Avoidance, Ripeness and Non-Constitutional Remedies

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

Jurisdiction re: Approach, Concurrent Jurisdiction, Statutory, Procedural and Contractual Jurisdictional Curtailment

Section 167(1)(b) of the Constitution..., provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

Jurisdiction re: Domestic, Internal or Local Remedies and the Principle of Subsidiarity

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

Jurisdiction re: Constitutional Proceedings

Section 167(1)(b) of the Constitution..., provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

Jurisdiction re: Monetary, Cause of Action or Subject Matter

Section 167(1)(b) of the Constitution..., provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

Cause of Action and Draft Orders re: Approach, Timing, Framing, Forum and Legal Basis for Invoking Jurisdiction of Court

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

Cause of Action and Draft Orders re: Approach iro Constitutional Proceedings

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

Rules of Construction or Interpretation re: Subsidiary or Delegated Legislation & Inconsistencies with Principal Act

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case..., and, secondly, exhaustion of other remedies.

Constitutionality of Statutory Provisions re: Delegated or Subsidiary Legislation and Statutory Instruments

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

In order for one to found a claim in terms of section 56(1) of the Constitution, it must be demonstrated, that, the party concerned has received unfair treatment.

The requisite considerations to be made were well canvassed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors CC06-16, at page 119A-B, wherein it was stated in para 21:

"In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law he has been the recipient of unequal treatment or protection, that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons."…,.

The Court's interpretation of section 56(1) of the Constitution above is in line with the interpretation of the right to equal protection of the law as articulated in the South African jurisdiction.

In the case of Sarrahwitz v Martiz N.O. & Anor 2015 (4) SA 491…, the South African Constitutional Court interpreted the right in the following manner:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of 'equal protection and benefit of the law' suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment."

The applicant has failed to prove the aforementioned requirements.

Instead, he alleges that he has been treated unfairly as compared to the third respondent. The allegation is premised on the fact, that, the third respondent has established itself and enjoys unchallenged control in the supply of blended fuel in the country.

However, the position adopted by the applicant is not conferred by law as envisioned in section 56(1) of the Constitution.

The Act and Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 set out the requirements for the blending and sale of blended fuel after one has obtained the requisite licence.

The Act and Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI17 of 2013 apply to the general citizenry of Zimbabwe and not to a specific individual or company. The third respondent cannot therefore be penalised for taking advantage of the provisions therein.

The same opportunity is open to the applicant or any other interested party.

It is the applicant's contention, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I. 17 of 2013 are in contravention of section 134(b) and (c) of the Constitution.

Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but -

(a) Parliament's primary law-making power must not be delegated;

(b) Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

(c) Statutory Instruments must be consistent with the Act of Parliament under which they are made.

(d)…,."

Since it has already been noted that the applicant has failed to make out a case for the infringement of fundamental rights, it is therefore not necessary to deal with section 134(b) of the Constitution.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution.

For a start, however, a prima facie case is not made that the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are ultra vires the Act, to justify a direct approach to the court.

The Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 were promulgated in terms of section 57(1) of the Act which mandates the second respondent, being the responsible Minister, after consultation with the first respondent, to prescribe regulations, which, in the opinion of the first respondent are convenient or necessary to give effect to the Act.

The relevant section reads as follows:

"The Minister may, after consultation with the authority, make Regulations prescribing all matters which by the Act are required to be prescribed, or which, in the opinion of the authority, are necessary or convenient to be prescribed for carrying out or giving effect to this Act."

The first mistake the applicant makes is a factual one.

Through his founding affidavit, the applicant implies, that, the first respondent over extended his regulatory powers. The applicant is of the view, that, the first respondent was responsible for the enactment of the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013.

Evidently, that is not the case....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

The applicant having failed to establish locus standi for the matter to be heard by this Court, or direct access to be availed, the matter must be struck off the roll.

However, it is rare for this Court to order costs against a losing party in constitutional matters, unless the party concerned would have conducted itself in a particularly odious manner, which is not the case here, where, the applicant appears to have been motivated by commendable, albeit misplaced, public spiritedness....,.

Accordingly, this application is struck off the roll with each party bearing its own costs.

Liquid Fuels