This is an appeal against the whole judgment of the High Court Harare, dated 25 July 2019. The court a quo dismissed with costs the application for a declaratory order that had been filed by the appellant.THE FACTSThe appellant is the owner of an immovable property situated in Mabelreign, Harare. ...
This is an appeal against the whole judgment of the High Court Harare, dated 25 July 2019. The court a quo dismissed with costs the application for a declaratory order that had been filed by the appellant.
THE FACTS
The appellant is the owner of an immovable property situated in Mabelreign, Harare. He leased the property to one Crossland Mupfurutsa between June 2013 and August 2017.
The tenant concluded an agreement for the supply of electricity with the Zimbabwe Electricity Transmission and Distribution Company (ZETDC or the second respondent). The second respondent duly opened an account for the supply of electricity in the name of the tenant. All the supply and payment transactions were recorded in this account.
The tenant abandoned the immovable property in August 2017. He left an unpaid electricity bill of $4,689=89.
In September 2018, the second respondent installed a prepaid meter in the name of the appellant on the property.
Acting in terms of section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013, which was promulgated in terms of section 65 of the Electricity Act [Chapter 13:19] (the enabling Act), the second respondent unilaterally transferred the debt incurred by the tenant to the appellant.
The debt was to be liquidated by the unilateral debit of at least 50% of the prepaid electricity purchases made by the appellant.
On 1 June 2019, S.I.44A of 2013 was repealed by section 12 of SI85 of 2018.
Subsequent to the repeal, the appellant approached the High Court, on 3 September 2019, seeking two declaratory orders:
(i) The first was that section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 be declared ultra vires the Electricity Act [Chapter 13:19] (the enabling Act) and therefore a nullity.
(ii) The second declaratory order was predicated on the first. The appellant sought that the transfer of the debt to him be declared unlawful and that the second respondent be ordered to stop the ongoing deductions from his periodic prepaid electricity purchases.
The application was opposed by the second respondent and not by the first respondent (the Minister of Energy and Power Development).
When he filed his application, the appellant was not aware that the enactment he sought to impugn had been repealed.
This is apparent from the manner in which he asserted his cause of action in his founding affidavit. The tenor of his averments tended to suggest that the impugned enactment was still extant.
The second respondent was equally oblivious to this fact, otherwise it would have raised it in its opposing affidavit.
That the enactment had been repealed was only disclosed by the appellant in his answering affidavit. He, however, with this belated knowledge, elected to proceed with the application in its original form.
The first respondent did not file opposing papers or seek an upliftment of the automatic bar. His legal practitioner appeared in the court a quo, where he was, however, granted a watching brief....,.
Counsel for the first respondent appeared before us. Apparently, the first respondent was served with the notice of set down by the Registrar and subsequently timeously filed his heads of argument.
We indulged him.
He contended, that, the relief sought by the appellant, after the repeal of the enactment, was an academic exercise. That, the retrospective declaration of invalidity of the repealed enactment was moot as the issue was no longer alive.
It was his further contention, that, the appeal constituted a classic search for a legal opinion on an abstract or academic issue that did not have any practical relevance to the parties.
