Toll fees challenge dismissed

via Toll fees challenge dismissed | The Herald July 17, 2014 by Daniel Nemukuyu

The High Court yesterday dismissed, with costs, an application by the Professor Lovemore Madhuku-led National Constitutional Assembly to nullify Statutory Instrument 106/2014 effecting recent increases in toll fees by up to 100 percent in some instances.
Justice Joseph Mafusire threw out the urgent chamber application by the political party, arguing that the issue had already been determined in a related case brought by the Zimbabwe Lawyers for Human Rights.

He did not deliver a full judgment in the NCA case, but simply abided by his earlier judgment in the ZLHR case.

Prof Madhuku, in his founding affidavit, 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.”

But the court, having been convinced by arguments by the Zimbabwe National Road Authority’s lawyer Mr Itai Ndudzo of Mutamangira and Associates in the ZLHR case, ruled that in the NCA case a minor error in the citation of the Act was not a strong ground to nullify the law.

“It practically was an error, a slip of the pen by the typist, or the tongue by whoever may have dictated the contents,” said Justice Mafusire. “A law cannot be knocked down for such a minor mistake.

“There is no question that the minister does have power under the Toll Roads Regulations Act to fix toll fees. “There is no question that it is Section 6 of TORA that empowers the minister to make subsidiary legislation. “TORA is Chapter 13:13 in the statute books. It is not every mistake that affects the validity of a law.”

Government on July 4 gazetted SI 106/14 and increased toll fees with the small private car drivers being compelled to pay US$2 up from US$1.

Commuter minibus operators are paying US$3 up from US$2, while haulage truck drivers are compelled to leave US$10 at the toll gates up from US$5.

Heavy vehicles’ fees were increased from US$4 to US$5 while buses’ fees are now US$4 up from US$3.