Zimpapers Logo

Minister Mpofu

Daniel Nemukuyu  Senior Court Reporter
The High Court yesterday threw out a toll fees challenge by a group of lawyers, paving way for the Zimbabwe National Road Administration to continue implementing the Statutory Instrument that effected toll fee increases by up to 100 percent in some cases.
Zimbabwe Lawyers for Human Rights filed an urgent chamber application seeking the nullification of Statutory Instrument 106-2014, arguing that the Transport and Infrastructural Development Minister Dr Obert Mpofu, in effecting the increase of toll fees, did not consult motorists, thereby rendering the decision arbitrary.

The lawyers also argued that the new fees were unreasonable, punitive and exorbitant considering that the economy was underperforming.
Harare lawyer Mr Farai Mutamangira of Mutamangira and Associates assisted by Mr Itai Ndudzo represented Zinara, while Miss Kudzai Warinda from the Attorney-General’s Office appeared for Dr Mpofu and the AG.

Mr Joshua Shekede and Mr Givemore Madzoka represented ZLHR.
Justice Joseph Mafusire ruled that the ZLHR failed to prove the unreasonableness of the new fees.

He also ruled that the lawyers failed to establish the irreparable harm stemming from Dr Mpofu’s decision.
“In my view, the applicant has failed to establish a proper cause of action for the court to determine,” said Justice Mafusire. “Suffice to say that when I say the applicant has not established a cause of action, I mean that it has neither shown a prima facie right peculiar to it or its members, nor any well-grounded apprehension of an irreparable harm stemming from the actions of the minister.

“In the result, the application is dismissed. If the applicant argues that something is unreasonable, the obvious question is unreasonable compared to what?
“If something is said to be disproportionate or punitive, (the court has to know) in relation to what? Without some kind of empirical evidence, how does the court quantify unreasonableness?”

Justice Mafusire said that proper procedure was followed in the promulgation of Statutory Instrument 106-2014.
During the hearing, Mr Mutamangira argued that the toll increase was effected in the exercise of executive powers and the High Court should not interfere with such a decision.

Zinara chief executive Mr Frank Chitukutuku deposed an affidavit forming part of the notice of opposition, arguing that the High Court had no jurisdiction to interfere with the decision of the executive exercised in the form of delegated legislative authority.

Meanwhile, Professor Lovemore Madhuku’s National Constitutional Assembly yesterday filed a separate application seeking to set aside the same Statutory Instrument which would be heard by Justice Mafusire in his chambers tomorrow.

Prof Madhuku argued that the Statutory Instrument was invalid.
“The Statutory Instrument is purportedly made in terms of Section 6 of the Road Motor Transportation Act (Chapter 13:13),” he said. “First, the Road Motor Transportation Act is Chapter 13:15. Second, Chapter 13:13 is the Toll Roads Act.

“Third, Section 6 of the Road Motor Transportation Act does not provide for toll fees. Fourth, it is Section 6 of the Toll Roads Act (Chapter 13:13) which provides for a basis for the minister to prescribe for the toll fees.

“As there is no such legislation in the Road Motor Transportation Act (Chapter 13:13), SI 106 of 2014 is incurably defective and void,” argued Prof Madhuku.