The
Toll Roads Act [Chapter 13:13] (“TORA”) empowers the Minister of
Transport (hereafter referred to as “the Minister” or “the
Minister of Transport”) to declare, by regulation, any road to be a
toll-road. In terms thereof a toll-road is a road declared to be a
toll road in terms of the regulations made by the ...
The
Toll Roads Act [Chapter 13:13] (“TORA”) empowers the Minister of
Transport (hereafter referred to as “the Minister” or “the
Minister of Transport”) to declare, by regulation, any road to be a
toll-road. In terms thereof a toll-road is a road declared to be a
toll road in terms of the regulations made by the Minister. By
statutory instrument 39 of 2009, namely, the Road Tolls (Regional
Trunk Road Network) (Amendment) Regulations, 2009 (“S.I.39 of
2009”), the Minister declared every route along the City to City
Trunk Road Network as specified therein to be a toll-road.
The
City to City Trunk Road Network, in terms of those regulations, are
roads of the Regional Trunk Road Network that link cities within
Zimbabwe. The Regional Trunk Road Network are roads linking countries
within the Southern African Region.
Section
3 of the Toll
Roads Act [Chapter 13:13] (TORA)
empowers the Minister to specify any person and to authorise them to
levy and collect tolls on vehicles using any toll-road. The
authorized person is empowered to establish and erect, on toll-roads,
toll-bars, toll-gates and other structures to facilitate the levying
and collection of tolls. The Minister may fix the amount of any toll
after consulting the Minister responsible for finance (hereafter
referred to as “the Minister of Finance”).
In
terms of the
Road Tolls (Regional Trunk Road Network) (Amendment) Regulations,
2009, SI
39/2009, the amounts fixed by the Minister of
Transport
as tolls at any tolling point were US$1 for motor cycles; US$2 for
light motor-vehicles, US$3 for minibuses, US$5 for buses; US$7 for
heavy vehicles and US$10 for haulage trucks. These amounts seem to
have been revised from time to time. As at 4 July 2014 there was no
toll for motor cycles. As for the rest of the other motor vehicles
the amounts were US$1 for light motor vehicles, US$2 for minibuses,
US$3 for buses; US$4 for heavy vehicles and US$5 for haulage trucks.
On
4 July 2014, the Minister of Transport published statutory instrument
106 of 2014, namely, Toll Roads (Regional Trunk Road Network)
(Amendment) Regulations, 2014 (No.5) (hereafter referred to as
“S.I.106 of 2014” or “the regulation”). It increased the toll
fees across the board. In United States dollar terms the amounts went
up to US$2 for light motor-vehicles, US$3 for minibuses, US$4 for
buses; US$5 for heavy vehicles and US$10 for haulage trucks. In a
notice published on 6 July 2014, in a weekly newspaper, The Sunday
Mail (hereafter referred to as “the public notice”), it was
announced that the new toll fees would become effective from 11 July
2014.
It
is S.I.106 of 2014 that has sparked the litigation in this matter.
On
9 July 2014, the applicant filed an urgent chamber application for an
interdict. For interim relief the applicant sought the order that
pending the determination of its application for the setting aside of
S.I.106 of 2014, the second respondent (hereafter referred to as
“ZINARA”), its officers, agents, employees or all such other
persons acting for or through it be interdicted from implementing
S.I.106 of 2014. It was also sought, as an interim relief, the order
that the public notice be suspended. As final relief the applicant
sought the setting aside of SI106/2014.
The
applicant is a not for profit human rights organisation duly
established in terms of its constitution and capable of suing and
being sued. Its core object is the fostering of a culture of human
rights in Zimbabwe through the observance of the rule of law. Its
members are legal practitioners and law students. As for its locus
standi to bring these proceedings, the applicant relied on its direct
and substantial interest in the matter. As owner of a number of motor
vehicles in its own right, the applicant said S.I.106 of 2014 equally
applied to it as it does to all the other owners of motor vehicles in
Zimbabwe. It said it is also an aggrieved person within the meaning
of section 4(1) of the Administrative Justice Act [Chapter 10:28]
(“AJA”). This section gives power to apply to this court for
relief to any person who is aggrieved by the failure of an
administrative authority to comply with the Administrative Justice
Act [Chapter 10:28] [AJA].
The
applicant also relied on section 85 of the Constitution of Zimbabwe
(“the Constitution”). That section permits any person to approach
a court for relief in respect of an infringement of any of the
fundamental rights or freedoms enshrined in the Constitution. Such a
person can do so acting in their own interest. They can also do so
acting in a representative capacity such as in the interests of a
group; a class of persons; in the public interest or in the interest
of its members.
The
applicant's case was this.
The
Minister of Transport is an administrative authority within the
meaning of the Administrative Justice Act (AJA). ZINARA is that
person specified and authorised by the Minister of Transport in terms
of the Toll
Roads Act (TORA),
inter alia, to levy and collect tolls in respect of vehicles along
toll roads. The applicant said the Minister of Transport fixed the
new toll, in terms S.I.106 of 2014, without first having consulted
the Minister of Finance and that this was contrary to the provisions
of section 3(1)(c) of Toll
Roads Act (TORA).
The applicant accused the Minister of Transport, allegedly, for
abusing the discretion and power bestowed on him by charging
exorbitant tolls. This was said to be contrary to public policy.
The
gravamen of the applicant's case is aptly captured in paragraph
23.3 of the founding affidavit that was deposed to by one of its
Board members and Chairman of its Finance Committee, one Selby
Vunganai Hwacha, a practising legal practitioner. He wrote:
“The
margin of the increase in the toll fees is so unreasonable that no
reasonable decision maker properly applying his mind could have
arrived at such margin. In this regard, it is pertinent to highlight
that the national economy has not been performing well. There are
fears that deflation may set in. There has been a record number of
company closures. Public entities are struggling to pay salaries. The
economy is illiquid. Where are the members of the public expected to
get the money to fund these ambitious toll fees?”
The
applicant argued that toll gates and tolls were incepted in 2009.
Five years on there has not been any meaningful improvement to the
road system in the country. On 24 June 2014, the applicant, reacting
to press reports on his intention to increase the tolls, had written
to the Minister of Transport, citing the Access to Information and
Protection of Privacy Act [Chapter 10:27], basically demanding an
account of the toll collections to date. Among other things, the
applicant sought information on the total collections; a breakdown of
the use to which those collections had been put; the names of the
contractors engaged for the installation and rehabilitation of the
road infrastructure and network, and such other similar information.
The
applicant said there was no response to its letter.
Evidently,
wishing to highlight the unreasonableness, oppressive and burdensome
nature of the toll increase the applicant picked one toll-gate along
the Harare–Mazoe Road. Beyond it are many families driving past it
every day on their way to and from work in Harare. With the new
increase, a motorist would need US$4 per day or US$120 per month or
US$1,440 per year in toll-gate fees for a light motor vehicle. A
haulage truck driver, at US$20 per day, would need US$600 per month
or US$7,200 per year. These motorists would still need to maintain,
fuel and licence their vehicles. Yet, apart from tolls, the
Government does have numerous other sources of income to fund road
construction and maintenance such as fuel levies, vehicle licencing
fees, transit fees and several fines.
The
applicant said S.I.106 of 2014 was null and void for want of
compliance with section 68 of the Constitution as read with section 3
of the Administrative Justice Act (AJA). Section 68 of the
Constitution reads:
“68
Right to administrative justice
(1)
Every person has a right to administrative conduct that is lawful,
prompt, efficient, reasonable, proportionate, impartial and both
substantially and procedurally fair.
(2)
Any person whose right, freedom, interest or legitimate expectation
has been adversely affected by administrative conduct has the right
to be given, promptly and in writing, the reason for that conduct.
(3)
An Act of Parliament must give effect to these rights, and must -
(a)
Provide for the review of administrative conduct by a court, or,
where appropriate, by an independent and impartial tribunal;
(b)
Impose a duty on the State to give effect to the rights in subsection
(1) and (2); and
(c)
Promote an efficient administration.”
Section
3 of the Administrative Justice Act [Chapter 10:28] (AJA) reads:
“3
Duty of administrative authority
(1)
An administrative authority which has the responsibility or power to
take any administrative action which may affect the rights, interests
or legitimate expectation of any person shall –
(a)
Act lawfully, reasonably and in a fair manner; and
(b)
Act within the relevant period specified by law, or, if there is no
such specified period, within a reasonable period after being
requested to take the action by the person concerned; and
(c)
Where it has taken the action, supply written reasons therefor within
a reasonable period after being requested to supply reasons by the
person concerned.
(2)
In order for an administrative action to be taken in a fair manner,
as required by paragraph (a) of subsection (1), an administrative
authority shall give a person referred to in subsection (1) –
(a)
Adequate notice of the nature and purpose of the proposed action; and
(b)
A reasonable opportunity to make adequate representations; and
(c)
Adequate notice of any right of review or appeal where applicable.”
Subsection
(3) provides instances when an administrative authority may depart
from the requirements of subsections (1) and (2). Section 4 provides
for the relief against administrative authorities for breach of the
Administrative Justice Act. An aggrieved person may apply to this
court for relief. The relief includes, inter alia, the right to have
the decision concerned set aside. The court can refer the matter back
to the administrative authority for consideration or
re-consideration. It can also give several other directions.
I
heard the urgent chamber application on 11 July 2014. I was advised
that S.I.106 of 2014 had already become operational from mid-night on
that day.
The
respondents took two points in limine. I reserved judgment on them. I
proceeded to hear argument on the merits. I also reserved judgment.
This now is my judgment on both the points in limine and on the
merits….,.
