Thabani Mpofu v The Zimbabwe Energy Regulatory Authority & 2 Ors

### Preamble
Judgment No. CCZ 13/20
1
Constitutional Application No. CCZ 124/13
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REPORTABLE:     (14)

THABANI     MPOFU

v

THE     ZIMBABWE     ENERGY     REGULATORY   AUTHORITY     (2)     THE     MINISTER     OF     ENERGY     AND     POWER     DEVELOPMENT     (3)     GREEN     FUELS     (PRIVATE)     LIMITED

CONSTITUTIONAL COURT OF ZIMBABWE

CHIDYAUSIKU CJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC & MAVANGIRA JCC

HARARE: NOVEMEBER 5, 2014 & SEPTEMBER 23, 2020

Mr T. Biti, for the applicant

Mr Tsivanga, for the first respondent

Mr Dodo, for the second respondent

Mr Adv Girach & Adv A. P. de Bourbon, for the third respondent

HLATSHWAYO JCC:	This is a court application made in terms of s 85 (1) of the Constitution of Zimbabwe (No. 20) Act, 2013 (‘the Constitution’), which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to s 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I 17, 2013 (hereinafter referred to as ‘the Petroleum Regulations’) and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I 147A, 2013, hereinafter referred to as ‘the Amendment Regulations’) to be ultra vires the Constitution and that they be set aside.

In May 2013, the second respondent promulgated the Petroleum Regulations in terms of s 57 of the Petroleum Act (Chapter 13:22) (hereinafter referred to as ‘the Act’). The Petroleum Regulations provide for the mandatory blending of unleaded petrol with anhydrous ethanol (hereinafter referred to as “blended petrol”). The Petroleum Regulations further prohibit the sale of unblended or unleaded petrol, in addition to placing restrictions on the sale and purchase of blended petrol, without the requisite license. More significantly, all licensed manufacturers and producers of blended petrol are compulsorily required to operate in joint partnership with the Government of Zimbabwe.

The applicant contends that by prohibiting the sale of unleaded fuel, unless it has been blended with specified locally produced anhydrous ethanol which is produced by a licenced ethanol blender, the said regulations violate his “freedom of choice, fairness and equal protection and benefit of the law”. He also avers that the regulations are in breach of s 134(b) and (c) of the Constitution.  The respondents oppose the application.

Pleadings

The first respondent objects, with much justification in my view, to the manner in which the applicant has pleaded his case, viz., that through his answering affidavit, the applicant has sought to raise or introduce new issues, some of which he ought to have included in his founding affidavit and others that, at best, would be the basis of a separate or new complaint, thus:

“1. The applicant’s founding affidavit is fifteen (15) pages long accompanied by six annexures taking up a further twelve (12) pages.  To this the first respondent filed a 12 pages opposing affidavit.  However, in response to that and the third respondent’s opposition of some 12 pages, the applicant filed a forty-seven (47) page long answering affidavit accompanied by ten (10) annexures of no less than seventy (70) pages in length. Annexures AA1, AA2, and AA3 are supposed to be newspaper articles and/or press releases by the second respondent issued on 14, 17 and 24 January 2014, all of which occurred after the filing of the court application and the first and third respondents’ opposing papers…The inclusion of this new information is, naturally, to deprive the respondents the opportunity to reply or comment thereon.

The applicant also attached to his answering affidavit supporting ones from two individuals who claim to have experienced problems with their vehicles as a result of using the second respondent’s product…There is no reason why these documents were not made part of the founding affidavit.  No reason is tendered for their inclusion in the answering papers, the effect of which, again, is to deprive the respondents the opportunity to reply or comment thereon.

The applicant also attaches (as annexure BB1) a position paper purportedly prepared by the Automobile Association of Zimbabwe in March 2014.  Again, there is no way of verifying the document, let alone commenting on the averments made therein.

Annexure DD3 purports to be a letter (or unsworn statement) from Toyota Zimbabwe written on 30 September 2013.  No explanation has been proffered for not attaching it to the court application.”

It is trite that a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.  In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S) at 492 SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD 81 at 82:

“A very bad practice and one by no means uncommon is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion.  The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying.  Now, these affidavits…should in my opinion properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and I am not prepared to allow them to be put at this stage.”

In view of the fact that virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant’s founding affidavit as they relate to the facts that the respondents would have wanted but cannot respond thereto, they are not properly before the court, have unduly wasted the court’s precious time, and should be disregarded. Happily, though, for all concerned, the matter does not turn so much on the contents of the impugned documents, than on the narrow issue of locus standi.

As the applicant seeks to have the Petrol Regulations impugned on the basis that they are unconstitutional and infringe fundamental rights as contemplated in the Constitution, it is therefore necessary to consider whether or not the applicant is vested with the requisite locus standi to approach this Court.

Locus standi under s 85(1)

The applicant, firstly, claims locus standi on the basis of s 85 (1) (a), (b), and (d) of the Constitution, which section provides as follows:

“85	Enforcement of fundamental human rights and freedoms

Any of the following persons, namely:-

any person acting in their own interests;

any person acting on behalf of  another person who cannot act for themselves;

any person acting as a member, or in the interests, of a group or class of persons;

any person acting in the public interest;

any association acting in the interests of its members; is entitled to approach a court alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights  and an award of compensation.”(Emphasis added)

To enjoy locus standi in terms of s 85(1) (a), (b) or (d) the applicant must be a person acting in their own interest, in the interest of another person who cannot act for themselves or in the public interest.  However, in all these circumstances the application must be made in connection with or for the enforcement of fundamental human rights and freedoms. The applicant is also expected to decide on just one capacity in which to approach the court rather than to adopt a buckshot strategy of claiming locus standi on two or more grounds. See M & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O & 2 Ors 2016 (2) ZLR 45 at p.53 C-D where it was stated:

“In claiming locus standi under s 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding.”

These sentiments were endorsed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors 2016 (1)ZLR 113(CC)at p. 118. Although this Court has suggested that one must act in one capacity only under s 85(1) of the Constitution, where the circumstances so dictate and one avers that he or she is acting in two or more capacities, that alone, it would appear to me, on the basis of a broad and generous approach to standing that s 85(1) portends, cannot be a basis for denying audience if at least one of the capacities does entitle the applicant to standing. As observed in Max du Plessis, et al, Constitutional Litigation, Juta, 2013:

“A litigant may have standing both to act in the public interest…and to act in the interests of persons who cannot act in their own name…For example, in Albutt v Centre for the Study of Violence and Reconciliation 2010(3)SA 293 (CC) the (South African) Constitutional Court held that a group of non-governmental organisations had standing to interdict the President from granting presidential pardons without hearing victims on two grounds: in the public interest, and in the interests of victims.”

Accordingly, I will examine each of the three claims to standing made in this application in turn below.

Infringement of a fundamental right or freedom

With regard to s 85(1) (a) of the Constitution, which premises locus standi on a personal interest in the matter, as with the other subparagraphs of s 85(1), it must be demonstrated that the infringement complained of by the affected party is that of a fundamental right or freedom provided for under Chapter 4 of the Constitution or at the very least recognized or conferred by some law and is consistent with the enshrined rights and freedoms.

It is the applicant’s contention that the Regulations violate his constitutional right to “freedom of choice”, “freedom of fairness” and “equal protection of the law” in terms of s 56 (1) of the Constitution. Thus, the applicant takes exception to the Petroleum Regulations on the basis that they purportedly violate a “right to choice”. He then presents the said “right to choose” as an unfettered right that this Court ought to protect by reason of its alleged existence.

In further motivating his argument, the applicant makes reference to the preamble and the founding provisions of the Constitution. However, s 3 of the Constitution refers to values and principles and not rights. Additionally, Chapter 4 of the Constitution does not contain any rights relating to “freedom of choice or freedom of fairness”.  As a result, the applicant has not pointed to any known fundamental rights or freedoms to anchor his claim for legal standing in terms of s 85 (1) of the Constitution. As was aptly pointed out in Nkomo v Minister of Local Government (supra), p 117:

“The right allegedly infringed is not a fundamental right enshrined in Chapter 4 of the Constitution. Accordingly, an approach in terms of s 85 to vindicate the alleged infringement of ss 267, 270 and 273 is not available to the applicant.”

Alternatively, the applicant contends that s47 of the Constitution states that Chapter 4 of the same does not preclude “other rights and freedoms” and therefore, by inference, the right to “freedom of choice and fairness” may be presumed and integrated therein. Unfortunately, this ingenious proposition cannot stand for a number of reasons.

Firstly, a reading of the provisions does not support such an argument. Section 47 of the Constitution reads:

“This chapter does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution.” (emphasis added)

The meaning that is readily apparent from the foregoing is that the fundamental rights provided for in Chapter 4 of the Constitution do not exclude other rights that are conferred by law. That in itself does not mean that the rights envisaged by s 47 are fundamental rights in terms of the Bill of Rights as contained in Chapter 4 of the Constitution. Section 85 (1) of the Constitution provides for the “… fundamental right or freedom enshrined in this Chapter”. This reference relates to express rights as provided for in Chapter 4 of the Constitution. It does not provide room for a “reading in” of new rights.  At any rate, any “other rights and freedoms” must be such as are “recognized or conferred by law” and not inconsistent with the Constitution. The Chapter 4 fundamental rights and freedoms are specific and specialised, clearly divided into derogable and non-derogable rights and are strictly protected from easy amendment by the requirement of a super majority plus a referendum – features that cannot easily be transferable to “inferred” new rights. Therefore, the applicant’s case does not meet the first leg of the test in terms of s 85 (1).

Secondly, the applicant has urged this Court to embrace a ‘generous and purposive’ interpretation that gives expression to the underlying values of the Constitution.   In rejecting the applicant’s attempt to read into the Constitution a general “freedom of choice” and an even more novel concept of “freedom of fairness”, the Court takes the view that the practical application of that interpretive approach is not unrestrained as the applicant seems to suggest.  As was pointed out in the case of Kalla v The Master 1995 (1) SA 261 (T):

“The Constitution does not only deal with lofty ideals and principles.  It has many provisions on mundane matters.”

In S v Zuma 1995(2) SA 642 (CC) KENTRIDGE AJ emphasized the importance of the constitutional text in the interpretation of the Constitution, thus:

“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument.  I am well aware of the fallacy of supposing that general language must have a single ‘objective meaning’.  Nor is it easy to avoid the influence of one’s personal intellectual and moral preconceptions.  But it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean.  We must heed Lord Wilberforce’s reminder that even a Constitution is a legal instrument, the language of which must be respected.  If the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination…I would say that a Constitution embodying fundamental principles should as far as its language permits be given broad construction.” (emphasis added).

The liberal approach to locus standi, so eloquently articulated in Jealous Mbizvo Mawarire v Robert Mugabe NO and Others CCZ 1/13 does not entail discarding the parameters of the language used in the Constitution.  On the contrary, it presumes it, thus:

“Certainly, this Court does not expect to appear before it only those who are dripping with the blood of the actual infringement of their rights or those who are shivering incoherently with the fear of the impending threat which has actually engulfed them.  This Court will entertain even those who calmly perceive a looming infringement and issue a declaration or appropriate order to stave off the threat…”

Finally, despite his sweeping statement that “the cornerstone of freedom is choice” or that “choice is such an obvious and critical fundamental right”, the applicant does not point to any case authority or examples in this or other jurisdictions where such a conclusion was made.

In the case of Frontline Marketing Services (Pvt) Ltd v Grain Marketing Board (GMB) and Others 2003 (1) ZLR 96 the applicant, an importer of maize, had challenged sections of the Grain Marketing (Controlled Products Declaration) Maize and Wheat Notice, 2001 which vested on the Minister of Lands, Agriculture and Rural Resettlement the exclusive privilege of declaring any product to be a controlled one and vesting in the GMB the exclusive privilege of granting any person permission to remove from or bring into, a prescribed area any controlled agricultural produce, or any product derived therefrom, as being inconsistent with the Constitution as it purportedly infringed the applicant’s Constitutional rights or freedom of protection from deprivation of property and freedom of trade or economic activity (the latter being taken as a freedom of assembly and association).  The Supreme Court found that since the right to engage in economic activity of one’s choice is not specified in the Declaration of Rights it is not one of those guaranteed rights.  Sandura JA (with the concurrence of Chidyausiku CJ, Cheda JA, Malaba JA and Gwaunza JA) said on p 102:

“In my view the fact that the right freely to engage in economic activity of one’s choice is not one of the fundamental rights and freedoms of the individual specified in the Declaration of Rights is significant.  It must mean that the right is not one of those afforded protection by the Constitution.

In addition, I do not believe that the submission made on behalf of the applicant, that ‘the applicant’s right to trade in maize commodity is properly within the meaning of and is guaranteed by s 16 (1) of the Constitution’, has any validity.  Such a right is not an absolute right.”

The respondents urge this Court to follow the reasoning in the above matter, which is virtually on all fours with the present case and accords with common sense and justice.  I agree.

See JR 1013 Investments CC and Others v Minister of Safety & Security and Others 1997 (7) BCCR 925 (E) which was quoted with approval in Frontline Marketing Services (supra). Also compare with the South African case of Park-Ross v Director, Office for Serious Economic Offences 1995(2) SA 148 dealing with the right to silence.

Own-interest standing

In addition to the above, to succeed on a claim of locus standi on the basis of s 85(1)(a), it must be demonstrated that the infringement directly relates to the affected party. The case of M & Anor v Minister of Justice, Legal & Parliamentary Affairs NO & Ors (supra) at p 53D-E is instructive wherein the following appears:

“The rule requires that the person claiming the right to approach the court must show on the facts that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person. In other words the person must have a direct relationship with the cause of action.”

In this regard, the applicant states as follows in his founding affidavit:

“2.1.15	I am a driver who owns several petrol vehicles. I feel greatly aggrieved by the actions of the respondents.  I feel that the actions greatly affect my freedom of choice, bring danger to my economic welfare and are not in the best interests of the country.”

While the above allegations may suffice to link the applicant to a fundamental right, the alleged right that he points to, unfortunately, is not one of the enshrined ones nor any recognized at law. The applicant has therefore failed to substantiate his standing before this Court in terms of s 85 (1) (a) of the Constitution.

Other person’s interest standing

The applicant has also claimed locus standi in terms of s 85(1)(b) of the Constitution. That provision states that any person has the authority to act for another person who cannot do so for themselves. The applicant merely alleges legal standing under this provision but does not indicate on whose behalf he seeks to act either through his founding affidavit or otherwise. Consequently, the claim has no merit as it is unsubstantiated and is not connected to any known fundamental right.

Public interest standing

Finally, under s 85 the applicant claims locus standi before this Court in terms of s 85 (1) (d) of the Constitution.  This provision confers locus standi to any person acting in the public interest. It is important to reiterate at this juncture that all locus standi situations envisaged in s 85 (1) are in relation to the infringement of fundamental rights and freedoms in Chapter 4 of the Constitution, and the applicant has not pointed to any infringed fundamental right in this Chapter or any recognized at law.  According to the M & Anor v Minister of Justice, supra, s 85(1) (d) of the Constitution is founded on broad considerations. Its primary purpose is to ensure effective protection of any public interest shown to have been or to be adversely affected by the infringement of a fundamental right or freedom.

In the case of Forum Party of Zimbabwe & Ors v Minister of Local Government, Rural and Urban Development & Ors 1996(1) ZLR 461 (H) at p 464C-D it was held thus:

“...general public interest does not mean that legislation must apply to everyone in the country; it would be permissible to hold that something was in the general public interest even if applied only to a section of the population”

The above position was affirmed in the following cases, albeit in different jurisdictions to ours: Ferreira v Levi N O 1996(1) SA 984(CC). See also: Lawyers for Human Rights & Anor v Minister of Home Affairs & Anor 2004(4) SA 125(CC; SP Gupta v The Union of India & Ors (1982) 2SCR 365.

With regard to the second requirement, Erasmus Superior Court Practice 2nd (Ed) states as follows:

“In terms of this subsection, Chapter 2 litigation may be undertaken by a person acting in the public interest.  All an applicant under this paragraph need essentially establish is that (I) objectively speaking, the challenged rule or conduct is in breach of a right enshrined in Chapter 2, (II) the public has a sufficient interest in an order of constitutional invalidity, and (III) that the applicant is in fact acting in the public interest.” (Emphasis added)

Whilst the above remarks were made in the context of the South African constitution, the considerations therein are apposite to s 85 (1) of our Constitution. Therefore, the primary purpose of proceedings commenced in terms of s 85(1)(d) of the Constitution is to protect the public from infringement of their fundamental rights.

In casu, the applicant has not referred to any right or managed to establish that he brings his case for the protection of fundamental rights as provided for in Chapter 4 of the Constitution. Having failed to establish locus standi in terms of s 85 (1) (a) (b) (d) of the Constitution it goes without saying that the applicant is improperly before this Court.

Standing in relation to s 56(1)

With reference to the averment by the applicant that he has locus standi on the basis of his rights as enshrined in s 56 (1) of the Constitution, the question that arises is whether the applicant’s rights have in fact been violated or threatened such as to warrant protection by this Court. Section 56(1) of the Constitution reads as follows:

“56 (1) Equality and non-discrimination

All persons are equal before the law and have the right to equal protection and benefit of the law.”

The applicant has prima facie legal standing in this Court given the provisions of s 56 (1) as read with s 85 (1) (a) of the Constitution.  However, the applicant has not demonstrated that his right to equal protection and benefit of the law has been violated or endangered. The applicant therefore does not meet the requirements of s 56 (1) of the Constitution.

In order for one to found a claim in terms of s 56 (1), it must be demonstrated that the party concerned has received unfair treatment. The requisite considerations to be made were well canvassed in the case of Nkomo v Minister of Local Government, Rural & Urban Development & Ors (supra) at page 119A-B, wherein it was stated:

“In order to found his reliance on this provision the applicant must show that by virtue of the application of a law he has been the recipient of unequal treatment or protection that is to say that certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same (or similar) position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”(Emphasis added)

The Court’s interpretation of s 56 (1) of the Constitution above is in line with the interpretation of the right to equal protection of the law as articulated in the South African jurisdiction. In the case of Sarrahwitz v Martiz N.O. & Anor 2015 (4) SA 491 at page 510E the South African Constitutional Court interpreted the right in the following manner:

“This subsection guarantees everyone the right to equal protection and benefit of the law. The concept of ‘equal protection and benefit of the law’ suggests that purchasers who are equally vulnerable must enjoy the same legal endowments irrespective of their method of payment.”

The applicant has failed to prove the aforementioned requirements.  Instead, he alleges that he has been treated unfairly as compared to the third respondent. The allegation is premised on the fact that the third respondent has established itself and enjoys unchallenged control in the supply of blended fuel in the country. However, the position adopted by the applicant is not conferred by law as envisioned in s 56 (1) of the Constitution. The Act and Petroleum Regulations set out the requirements for the blending and sale of blended fuel after one has obtained the requisite licence. The Act and Petroleum Regulations apply to the general citizenry of Zimbabwe and not to a specific individual or company. The third respondent cannot therefore be penalised for taking advantage of the provisions therein. The same opportunity is open to the applicant or any other interested party.

The applicant, in the same argument, queries the safety of blending petrol with ethanol. He further takes issue with the pricing regime of the third respondent, alleging that the pricing of fuel by the third respondent is unreasonable. He argues that the third respondent has a monopoly over the production and supply of fuel as a result of the provisions of the Petroleum Regulations. He maintains that such a monopoly is undesirable as it is unconstitutional. Throughout the various allegations the applicant makes, he has failed to demonstrate that the third respondent has been accorded preferential rights which are not available to him (applicant). In the absence of evidence in this regard, the applicant cannot claim that his rights in terms of s 56 (1) of the Constitution have been violated.

Access in the context of s 167(5)

Section 167(5) of the Constitution enjoins the Court to allow a person to have direct access in a constitutional matter “when it is in the interests of justice” to do so. This is an extraordinary procedure and should be granted only in exceptional circumstances.  S v Zuma (supra).  The Court takes two principal factors into account when considering an approach made to it in terms of this section.  The first is, obviously, the prospects of success on the substantive aspect of the matter.  The Court will not be inclined to grant direct access to an applicant who is unlikely to be successful on the substantive issues raised.  The applicant must make out at least a prima facie case on the merits.

The second factor is whether an applicant can show that he or she has exhausted all other remedies or procedures that may have been available.  This is for obvious reasons.  If another remedy or procedure is available, it cannot be said that urgency or the interests of justice necessitate circumventing the ordinary procedure and requiring the Court to adjudicate the matter at first instance.

It is the applicant’s contention that the Petroleum Regulations are in contravention of s 134 (b) and (c) of the Constitution. Section 134 of the Constitution reads as follows:

“Parliament may, in an Act of Parliament, delegate power to make Statutory Instruments within the scope of and for the purposes laid out in that Act, but –

Parliament’s primary law-making power must not be delegated;

Statutory Instruments must not infringe or limit any rights and freedoms set out in the Declaration of Rights;

Statutory Instruments must be consistent with the Act of Parliament under which they are made.”

Since it has already been noted that the applicant has failed to make out a case for the infringement of fundamental rights, it is therefore not necessary to deal with s 134 (b). The issue that remains before this Court is whether the allegation that the Regulations are ultra vires the parent Act entitles the applicant to approach this Court directly in terms of s.134(c).

For a start, however, a prima facie case is not made that the Regulations are ultra vires the Act, to justify a direct approach to the court. The Petroleum Regulations were promulgated  in terms of s 57 (1) of the Act which mandates the second respondent, being the responsible Minister, after consultation with the first respondent, to prescribe regulations, which in the opinion of the first respondent are convenient or necessary to give effect to the Act. The relevant section reads as follows:

“The Minister may, after consultation with the authority make Regulations prescribing all matters which by the act are required to be prescribed or which in the opinion of the authority are necessary or convenient to be prescribed for carrying out or giving effect to this act.”

The first mistake the applicant makes is a factual one. Through his founding affidavit, the applicant implies that the first respondent over extended his regulatory powers. The applicant is of the view that the first respondent was responsible for the enactment of the Petroleum Regulations. Evidently, that is not the case. It is necessary to point out that the second respondent acts in his executive capacity. Therefore, the applicant is in error when he sets out the functions and powers of the first respondent in terms of s 4 of the Act and proceeds to critique a function that was not performed by the first respondent, but was lawfully performed by the second respondent.

The second error that the applicant has fallen into is the erroneous classification of regulations governing anhydrous ethanol. Section 4 of the Petroleum Regulations cannot by any stretch of the imagination be considered as governing anhydrous ethanol. Section 4 reads as follows:

“(1) 	No procurement licensee or wholesale licensee shall sell unleaded petrol, unless the unleaded petrol has been blended with a minimum of five per centum (5%) locally produced anhydrous ethanol, being ethanol blend grade E 5, which is produced by a licensed ethanol blender.

(2) 	No person other than a licensed ethanol blender shall blend anhydrous ethanol with unleaded petrol.

(3) 	No licensed ethanol blender shall purchase anhydrous ethanol for blending purposes except from a licensed ethanol producer.

(4) 	No licensed ethanol blender shall blend anhydrous ethanol with unleaded petrol except at a facility specified in the blender’s licence”

It is evident that the Petroleum Regulations relate to ethanol to the extent that it is required to create blended fuel. The above provisions cannot therefore be construed as regulating the production and use of anhydrous ethanol per se.

Having made the aforementioned analysis, it becomes apparent there is no constitutional issue placed before this Court. The regulations are not prima facie ultra vires the Petroleum Act and therefore the applicant’s claim for direct access cannot succeed.

In his heads of argument, the applicant maintains that his application entails two objective legal processes:

“The first is an exercise by this Court of it supreme powers defined in s 167(1)(b) and s 167(3), of determining whether an Act of Parliament which also includes a Statutory Instrument, is constitutional within the context, not of the Bill of Rights, but of section 134 of the Constitution…

On the second inquiry, this Court…is simply being asked to determine whether the Regulations are in breach of any human right as defined in Chapter 4 of the Constitution…

With the latter inquiry, the applicant has the right to approach the Court in terms of s 85 of the Constitution of Zimbabwe…

With the former, it can be argued that the Applicant’s right to approach this Court is based on the common law.  If that is the case, then the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.”

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of s 85(1).  With regard to the former, the so-called “common law-based” approach, it has been argued in this section that the applicant’s position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by firstly demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, s 167(1)(b) which the applicant urges this Court to rely on, provides that the Constitutional Court “decides only constitutional matters and issues connected with decisions on constitutional matters, in particular references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule.” (emphasis added).  The applicant does not purport to bring the application in terms of s 131(8)(b) or related provision and indeed would not be able to do so as this is a legislative function or prerogative. Paragraph 9(2) of the Fifth Schedule bears quoting in full:

If, after considering a report of the Parliamentary Legal Committee that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days of being so notified, either-

Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

repeal the statutory instrument.

Now, in my view, the above provisions were put in place in the interest of legality, to be invoked in the legislative process to ensure that the enacted laws are in accordance with the Constitution. They were not enacted to facilitate constitutional relief for individuals injured or threatened by legislation perceived to be unconstitutional as the applicant erroneously believes.

What this additionally shows is that there is readily available to the applicant another constitutionally stipulated way of redressing the alleged unconstitutionality of the Regulations, through activation of the Parliamentary process, other than the one he has chosen. Outside the Parliamentary processes set out in s 134 there is also a standard way of challenging ultra vires legislation without invoking a constitutional issue, which the applicant has not utilized. In that regard, since what is impugned are the regulations and not the parent Act, the doctrine of subsidiarity and avoidance would preclude this Court from even considering any constitutional issues that may arise. See, for example, Berry & Anor v Chief Immigration Officer & Anor 2016 (1) ZLR 38 at p. 46D.  Under such circumstances, the Court would be slow to grant access.

Disposition

The applicant having failed to establish locus standi for the matter to be heard by this Court, or direct access to be availed, the matter must be struck off the Roll.  However, it is rare for this Court to order costs against a losing party in constitutional matters, unless the party concerned would have conducted itself in a particularly odious manner, which is not the case here where the applicant appears to have been motivated by commendable, albeit misplaced, public spiritedness.  In the light of this outcome, it is unnecessary to make a determination on the applicant’s belated access to information claim which, at any rate, was abandoned during the hearing.

Accordingly, this application is struck off the Roll with each party bearing its own costs.

ZIYAMBI JCC:			I agree

GWAUNZA JCC:      		I agree

GARWE JCC:  			I agree

GOWORA JCC: 			I agree

PATEL JCC: 			I agree

GUVAVA JCC: 			I agree

MAVANGIRA JCC: 		I agree

Tendai Biti Law Chambers, applicant’s legal practitioners

Sawyer & Mkushi, first respondent’s legal practitioners

Civil Division of the Attorney-General’s Office, second respondent’s legal practitioners

Ahmed & Ziyambi, third respondent’s legal practitioners.