ZIMBABWE LAWYERS FOR HUMAN RIGHTS v MINISTER OF TRANSPORT & ORS 2014 (2) ZLR 44 (H)

Flynote

Regulations — validity — citation of wrong Act — regulations otherwise in order — regulations valid — unreasonableness — averment that fees charged under regulations unreasonably high — what person averring unreasonableness must show

Road traffic — toll roads — increase in toll fees — validity of such increase — requirement for Minister to consult Minister of Finance — no requirement to consult stakeholders

Headnote

The Toll Roads Act [Chapter 13:13] empowers the Minister of Transport to declare, by regulation, any road to be a toll-road. By SI 39 of 2009 the Minister declared every route along the city to city trunk road network to be a toll road. Section 3 of the Act empowers the Minister to specify any person and to authorise such person to levy and collect tolls on vehicles using any toll-road. The authorised person is empowered to establish and erect on such 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 of Finance.

On 4 July 2014 the Minister published the Toll Roads (Regional Trunk Road Network) (Amendment) Regulations, 2014 (No. 5) (SI 106 of 2014), which increased the toll fees across the board, in some cases by up to 100 percent. The applicant, a human rights organisation, applied for an interdict for the setting aside of the statutory instrument. Its grounds for doing so were primarily that the margin of the increase in the toll fees was so unreasonable that no reasonable decision maker, properly applying his mind, could have arrived at such margin. The applicant also argued that the statutory instrument was invalid, because it purported to have been made in terms of s 6 of the Road Motor Transportation Act (which was cited as Chapter 13:13, although the correct chapter number for that Act is 13:15). Finally, the applicant argued, the Minister had failed to consult the Minister of Finance in fixing the new toll tariff and also failed to consult all the stakeholders.

The respondents argued that, whilst the court had the power to review thelegislative function of the executive arm of government, the court was being asked to impugn something that was squarely within the exclusive domain of the executive. The court lacked the knowledge, training, expertise or the information necessary to challenge or judge such a function. The Minister's action in fixing or raising toll tariffswas an executive and polycentric function. It was more than a mere administrative action of the type contemplated by the Administrative Justice Act [Chapter 10:28]. It was a legislative function, and it was debatable whether the court's traditional function of judicial review extended to the legislative function of the legislature.

Held that, the exercise of an executive prerogative is not necessarily an act the validity of which is beyond the jurisdiction of the court. It is only those acts of state in respect of which the jurisdiction of the court is ousted that the court may not review. Such executive prerogatives are now very few and far between. Whenever the exercise of executive prerogative affects the private rights, interests and legitimate expectation of the citizens, the jurisdiction of the courts is not ousted. Certain acts of state that may be exercised by the President in terms of the Constitution are beyond the jurisdiction of the court, but even then, should the exercise of these prerogatives be done under unlawful conditions or be performed outside the law, the courts have a duty to review them. Section 68 of the Constitution and the Administrative Justice Act were in most ways a mere codification of the traditional powers of the courts to review the exercise of the functions of the executive. The Act was merely an elaborate restatement of the rules of natural justice.

Held, further, that the citation of the wrong Act was an error that was so infinitesimal as to be inconsequential. It was practically a typing error, a slip of the pen by the typist, or of the tongue by whoever may have dictated the contents. A law cannot be knocked down for such a minor mistake. There was no question that the Minister does have the power under s 6 of the Tolls Roads Act to fix toll tariffs. All the other provisions of the SI seemed in order except for the erroneous reference to the Road Motor Transportation Act.

Held, further, that on the alleged failure to consult the Minister of Finance, the applicant produced no proof of such failure. He who alleges must prove. Further, the presumption of validity operated. An act regular on the face of it is valid until the contrary is proved. As to the failure to consult "stakeholders", the law did not make it obligatory for the Minister to consult anyone other than the Minister of Finance.

Held, further, that on the argument that the increase was unreasonable, the obvious question was: unreasonable compared to what? Without some kind of empirical evidence, how could a court quantify unreasonableness?

Held, further, that the duty of determining how public resources are to be drawn upon and reordered lies in the heartland of executive-government function and domain. What is more, absent any proof of unlawfulness or fraud or corruption, the power and the prerogative to formulate and implement policy on how to finance public projects reside in the exclusive domain of the national executive subject to budgetary appropriations by parliament.