NDOU J: When
the matter was heard on 28 October 2009 the parties informed me that they had
discussed the matter and reached common ground on the approach in this
matter. The essence of their agreement
is that the relief sought as interim relief is essentially the same as the
relief sought on the return date. They
agreed that the best approach is for the matter to be fully argued on an urgent
basis on the validity of the statutory provisions raised in the papers. I went along with the suggested route as it
was adopted by the Supreme Court in 1, 2, and 3 Combined Harare
Residents Assn. and Another v Registrar General and Others 2002(1) ZLR
83(H) at 108 D and also by the High Court
in Econet v Minister of Information 1997(1) ZLR 342(H). The parties filed all their papers and argued
the matter fully on 20 November 2009. I
will therefore grant final relief in this matter if the applicant succeeds on
the merits. The applicant seeks a
declarator to effect that the declaration by 1st Respondent
[hereinafter referred to as “the Minister”] of the 13 kilometre peg along the
Bulawayo-Victoria Falls road as a road tolling point is ultra vires
Section 3(2) of the Tolls Roads Act [Chapter 13:13] (“the Act”), and is thus
unlawful. The applicant seeks
consequential relief arising from such declaration. The alternative relief sought is that within 48
hours of the granting of the order, the Minister be ordered to relocate tolling
point from the 13 kilometre peg along the Bulawayo-Victoria Falls Road to any
convenient section of that road which is outside the third Respondent's area of
jurisdiction.
The
background facts of this application are the following.
The
applicant is the owner of stand number 12 Norwood
Township of Subdivision R of the Helenvale Block, Bulawayo,
commonly known as Plot 12, Shenfield
Road, Norwood, Bulawayo. The property is within the jurisdiction of
the third Respondent and the Applicant is a ratepayer within third Respondent.
On
9 April 2009, the Minister, purporting to act in terms of Section 6 of the Act declared
through the Roads Toll (Regional Trunk Road Network [Amendment] Regulations,
2009, Statutory Instrument 39 of 2009) (“Regulations”), the Bulawayo-Victoria
Falls road as a toll road. Further, the
Minister declared an area along that road, referred to in the Regulations as
“before Nyamandlovu turn off between the 12,5 kilometre peg and the 13,5
kilometre peg, 13 kilometres from Bulawayo”
as a road tolling point, also commonly known as a toll gate. The effect of the Minster's above declaration
is that every motorist driving past the toll gate shall pay a prescribed toll fee
depending on the type of the motor vehicle.
Criminal sanctions are proscribed for a failure to pay such toll fees.
By
virtue of the location of the applicant's residential property and indeed that
of other several residents of the area, the applicant finds himself in a
position whereby he has to pay in order to access the City of Bulawayo.
The applicant has school going children in Masiyepambili Primary
School and every school day he pays toll
fees. His wife has a car which she uses
to drive into the city for household chores and she pays toll fees. The applicant has two further vehicles that
he uses in the course of his business.
His visitors from other parts of the city have to pay toll fees to
access his family residence. In his
rough estimate, his family will pay toll fees in the region of US$3 650 just to
access the city wherein he is a ratepayer.
In his observation, he is adversely affected by the discriminatory way
in which the toll gate is located. He
states, and this is substantially beyond dispute, that for example, the
Bulawayo-Plumtree road toll gate is in Figtree, some 37, 2 kilometres from Bulawayo. The Bulawayo-Beitbridge road toll gate is in
Esigodini, some 37 kilomtres from Bulawayo. The Harare-Gweru road toll gate is in Norton,
some 44, 5 kilometres from Harare. The Harare-Chirundu road toll gate is at
Inkomo, some 40 kilometres from Harare. The Gweru-Bulawayo road toll gate is 17
kilometres from Gweru. The
Masvingo-Bulawayo road toll gate is 53 kilometres from Masvingo. The Masvingo-Beitbridge road toll gate is 45
kilometres from Masvingo.
Further,
in his own affidavit, the Minister adds that Harare-Masvingo road toll gate is
18 kilometres from Harare. The Harare-Mutare road toll gate is 14
kilometres from Rusape (between 155 to 157 kilometres from Harare).
What seems clear is that the toll gate subject matter of this
application is closest to a city that is 12-13 kilometres.
In
the circumstances, it impacts more on the lives of the residents on the
periphery of Bulawayo. The Minister's explanation for this position
is:
“it
must be borne in mind that tolling points are strategically positioned at
traffic catchment points otherwise it would be a futile exercise and sheer
waste of resources to situate these tolling points at areas where traffic is
highly dispersed.”
I
propose to deal with the issues raised by applicant in turn.
Is Bulawayo-Victoria Falls Road a “City to
City” “Trunk road Network?
The Regulations define a city to
city trunk road network as
“…….roads of the Regional network
that links cities in Zimbabwe.” On the one hand, taken in isolation, this
definition would exclude the Bulawayo-Victoria Falls road simply on account of
the fact Victoria Falls is not a city as defined under section 14(3) of the
Urban Councils Act [Chapter 29:15].
On the other hand, Section 3(2) as
read with the Second Schedule of the Regulations, the Bulawayo-Victoria Falls
road is a city to city truck road network.
In casu, I hold that the latter construction applies. Section 3(2) of the Regulations specifically
provides:
“Every route
along the City to City Trunk Road Network specified in the first column of
the Second Schedule shall be a toll road for the purposes of the Act.” (emphasis added).
In this context, city cannot be
interpreted as reference to city as defined in Section of 14(3) of the Urban Council
Act, supra. The extent to which
schedules can and will be regarded as intra-textual, structural parts of any
enactment will have to be determined with reference to their nature and
intended function, relative to the context of the legislation or enactment as a
whole, Schedules are treated, at least, as
intra-textual sources of clarification and elucidation which are not
necessarily only consulted in instances of uncertainity and ambiguity, but also
as complements to or further explanations of the apparently clear and
unambiguous sections contained in the body of the enactment. The Second Schedule further explains the
trunk roads to which Section 3 of the Regulations is applicable. –Strydom
v Strydom 2003(1) ZLR 379(H) at 383-4; Liquidator
Wapejo Shipping Co v Lurie Brothers 1924 AD 69 at 72-73; S v Bechoo 1979(3) SA 946(A) and Utopia Vakansie-oorde Bpk v DuPlessis
1974 (3) SA 148 (A) at 177. In the
circumstances, the Bulawayo-Victoria
Falls road is a regional
road network that links cities for the purposes of the Regulations.
EFFECT OF MINISTER'S FAILURE
TO CONSULT BULAWAYO
CITY COUNCIL BEFORE DECLARING THE BULAWAYO-VICTORIA
FALLS ROAD BEFORE NYAMANDLOVU TURN-OFF A TOLL
POINT
Section 3 (2) of
the Act provides:
“Before
declaring a road to be a toll-road in terms of subsection (1), the Minister
shall consult the local authority concerned, where the road is within the area
of jurisdiction of a local authority.”
It is common cause that the Minister
did not consult the Bulawayo City Council before making the declaration. The Minister's position is that there was no
need to consult Bulawayo Cit Council because the Ministry of Local Government,
Public Works and Urban Development granted his Ministry authority over this Bulawayo-Victoria Falls road. That the toll point is in area within
Bulawayo City Council is beyond dispute.
What the Minister is alleging is that although this road runs through
the city of Bulawayo,
that section of the road itself outside the jurisdiction of the city. In the circumstances, the Minister argues
that the requirement for consulting the City Council falls away as the section
of the road is already under its authority.
I agree with the first Respondent that once the road was placed under
first Respondent's authority, the need to consult the local authority falls
away. The Bulawayo-Victoria Falls
road is no longer under the jurisdiction of the Bulawayo City Council so
Section 3(2) of the Act is not applicable.
If the road in question was under the jurisdiction of the Bulawayo City
Council, Section 3(2) would be applicable and failure to consult Bulawayo City
Council would have rendered the declaration of the disputed toll point a
nullity- South African Roads Board v
Johannesburg City Council 1991(4) SA 1 and Public Carriers Association and Others v Toll com Road Concessionaries
(Pty) Ltd and Others 1989(4) SA 574.
But in casu, the road is no longer under the jurisdiction
of the local authority but the first Respondent. The toll point is on the trunk road and not
of the area controlled by the Bulawayo City Council.
DID THE
MINISTER FAIL TO COMPLY WITH THE PROVISIONS OF SECTION 3(1), (2) AND (3) OF THE
ADMINISTRATIVE JUSTICE ACT [CHAPTER 10:28]?
The Minister is an administrative
authority in terms of Section 2(1)(c) of Administrative Justice Act and as such
he is enjoined to act lawfully, reasonably and fairly as required by Section
3(1), supra. From what the applicant outlined in detail in
his founding affidavit, the Regulations are partial and unequal in their operation
as between people who are ratepayers and residents of the City of Bulawayo. The objective of the location of this toll
point, that is, to enhance traffic catchment, is disproportionate with
financial oppression it is causing to residents Norwood in the applicant's position. The declaration of the disputed toll point is
manifestly unjust and discriminatory to residents of Norwood who are ratepayers of Bulawayo City
Council. The declaration is partial and
unequal in its operation as between different classes of the City of Bulawayo ratepayers. It is trite that delegated legislation, like
these Regulations, can be declared ultra vires the primary
legislation if it is grossly unreasonable.
Gross unreasonableness is present when the provisions of the enactment
entail discrimination, are disproportionate, vague or uncertain.
-Administrative Law by L.
Baxter (1984) at pages 522-3; R v
Jeremiah 1956 (1) SA 8 (SR); ZAPU v
Minister of Justice, Legal and Parliamentary Affairs 1985(1) ZLR 305(S); S v Nyamapfikudza1983 (2) ZLR 234 (S)
and S v Delta Consolidated (Pvt) Ltd and
Others 1991 (2) ZLR 234 (S). The
court has got inherent jurisdiction to declare as null and void subsidiary
legislation on the ground that it is ultra vires if it cannot be
construed so as to accord with primary legislation. It is presumed that parliament, which is the
maker of primary legislation, intended that regulations should be enacted only
where reasonably necessary to further the objects of primary legislation. In the circumstances I make the following
order.
It is declared that
“1. The
declaration by the 1st Respondent of the toll point the Bulawayo-Victoria
Falls road before the Nyamandlvou turn-off, between the 12,5 kilometre peg and
13,5 kilometre peg, is unjust, grossly unfair and discriminatory and therefore
a nullity for non-compliance with Section 3 of the Administrative Justice Act
[Chapter 10:18]
2. In
terms of Section 4 (2)(e) of the Administrative Justice Act, supra, the
1st Respondent, within 30 days of the granting of this order,
relocate the toll point described in paragraph (1), above, to a convenient
point outside area of jurisdiction of the 3rd respondent.”
Marondedze, Mukuku, Ndove and Partners applicant's legal
practitioners
Civil Division,
Attorney General's Office, 1st
Respondent's legal practitioners
