12 July 2014

Zimbabwe: Toll Hike an Executive Decision, Court Told

Photo: Leadership
Court gavel.

The Zimbabwe National Roads Administration has said the recent toll increase by up to 100 percent under Statutory Instrument 106/ 14, was done in the exercise of Executive powers and the High Court should not interfere with such a decision.

Zinara was responding to an urgent chamber application by the Zimbabwe Lawyers for Human Rights to set aside the statutory instrument, which legalises hike.

ZLHR argued that the Minister of Transport and Infrastructural Development, Dr Obert Mpofu, in effecting the increase of toll fees, did not consult the motoring public thereby rendering the decision arbitrary.

The group of lawyers also argued that the new fees were unreasonable, punitive and exorbitant considering that the economy was under-performing.

Justice Joseph Mafusire, yesterday heard arguments from all the parties and reserved judgment.

Advocate Lewis Uriri, Mr Joshua Shekede and Mr Givemore Madzoka represented ZLHR, while Mr Farai Mutamangira and Mr Innocent Ndudzo defended Zinara.

Miss Kudzai Warinda represented the Ministry of Transport and Infrastructural Development and the Attorney General.

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 form of delegated legislative authority.

"Judicial deference, simply put, is that the judiciary should refrain from deciding on matters, which are squarely within the domain of the executive.

"The propriety of increasing toll gate fees and in the public good to be served by such an Act, is a matter within the domain of the Executive and the court is not equipped with the necessary tools to interfere with such decisions. More so, where the authority was exercised by the Executive in the form of delegated legislative authority," reads Mr Chitukutuku's affidavit.

Zinara argued that the minister had no duty at law to consult the public when increasing toll fees.

"The Toll Roads Act empowers the minister to fix toll fees after consulting the minister responsible for Finance, which was done as I am advised the decision to increase toll fees was taken by the full Cabinet of the Government of Zimbabwe on June 3, 2014.

"The Minister in terms of the Toll Roads Act has no duty to consult the members of the public on the fixing of toll fees.

"Since there is no provision for public consultations, there is consequently no formula or format for such consultations so the point cannot be made that there was no public consultations when there is no statutory duty to consult," said Mr Chitukutuku.

Zinara argued that the statutory instrument was already law and that the application had been overtaken by events.

"As we sit here to argue this matter, the horses have already bolted.

"Motorists right now are already paying tolls in accordance with the new tariff.

"This application has been overtaken by events and should be dismissed," read Mr Chitukutuku's affidavit.

It was argued that ZLHR failed to prove that the new fees were unreasonable.

"In advancing this contention, applicants do not point the court to the basis upon which the increment can be deemed to be too high.

"The applicant has generally related personal views on the performance of the economy and the lack of liquidity without pointing out to the court specific benchmarks upon which the contention can be sustained," he said.

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