Telecontract (Private) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe & 2 Ors

### Preamble
Judgment No. SC 150 /20 1
Civil Appeal No. SC 658/18
REPORTABLE
(142)
---------


REPORTABLE 	(142)

TELECONTRACT   (PRIVATE)    LIMITED

v

(1)     POSTAL     AND     TELECOMMUNICATIONS     REGULATORY AUTHORITY     OF     ZIMBABWE     (2)     MINISTER     OF INFORMATION,     COMMUNICATON     TECHNOLOGY,     POSTAL     AND     COURIER     SERVICES     (3)     MINISTER     OF TRANSPORT,     COMMUNICATIONS      AND     INFRASTRUCTURE DEVELOPMENT

SUPREME COURT OF ZIMBABWE						           GWAUNZA DCJ, MAKARAU JA, GUVAVA JA		                    HARARE, MAY 23, 2019 & NOVEMBER 5, 2020

U. Sakhe, for the appellant

F. Mahere, for the first respondent

V. Munyoro, for the second respondent

GWAUNZA DCJ

[1]	This is an appeal against part of the judgment of the High Court Harare, handed down on 8 August 2018.  The part appealed against dismissed the appellant’s application for:

a)	an order declaring the Postal and Telecommunications (Licence Registration and Certification) (Amendment) Regulations, 2013 (No. 6) (“S.I 122/ 2013”), to be: -

(i) 	ultra vires the Postal Telecommunications Act [Chapter 12:05] “the Act”, and therefore,

(iii) 	null and void; and,

b)	an order compelling the first respondent to comply with ‘its statutory obligations’ in relation to the enforcement of s 37(5) of the Act regarding publication of licenses by the licensees.

The appellant also takes issue with the order of costs granted against it by the court a quo.

BACKGROUND FACTS

[2]	The appellant is in the business of providing internet access services. In 2008 it was issued with a class B internet access services licence by the first respondent. Its licence was valid up to 18 July 2015 but was later extended to 30 June 2016. In July 2013, the second respondent in consultation with the first respondent made regulations pegging the fee for a class A licence at US$5 500 000.00 (five million and five hundred thousand dollars) and US$2 750 000.00 (two million and seven hundred and fifty thousand dollars) for a class B licence. The appellant approached the first respondent in 2014 for resolution of certain issues relating to the terms and duration of its class B licence. The appellant also sought, without success, clarification on issues to do with the upgrade and convergence of all internet access licences to class A category.

[3]	Having failed to reach consensus with the first respondent on these issues, the appellant noted an appeal to the second respondent, the Minister, against the first respondent’s conduct. Pursuant to a court directive, the second respondent called the parties for a hearing of the appeal. Subsequently, the second respondent issued a Ministerial Order mandating the first respondent to issue a draft class A internet access provider licence to the appellant upon the latter’s compliance with the necessary statutory requirements. In terms of the order, the first respondent was to comply with all the statutory provisions regarding the publication of licences by licensees and to publish all internet licences in accordance with S.I 262/2001 by 1 August 2015.

[4]	The first respondent in a bid to comply with the Ministerial Order, issued the appellant with a draft class A licence. However, it was the appellant’s contention that the first respondent did not publish the internet licences of all telecommunication licence holders. The appellant further revealed the challenges it was facing in paying the fees required for a class A licence upfront and proposed a payment plan. The first respondent advised that it was willing to consider payment of an upfront deposit of 30 per cent. This however was not to the appellant’s satisfaction. Thereafter, on 10 June 2016, the first respondent issued a circular to the effect that it would not accept any payment proposals for the payment of licence fees by way of instalments.

[5]	Aggrieved by the first respondent’s decision, the appellant approached the court a quo with the application alluded to above. The appellant in addition sought an order setting aside the decision of the first respondent which fixed class A licence fees at US$ 5 500 000.00 as well as an order compelling the first respondent to publish all internet access provider licences in accordance with s 5(a) of S.I 262/2001. Lastly it prayed for an order that the first respondent be ordered to comply with its statutory obligations, particularly enforcement of the provisions of s 37(5) of the Act regarding publication of licences by licensees.

[6]	In the application, it was the appellant’s contention that renewal fees for a class A internet access provider licence were arbitrary and grossly unreasonable. It further contended that such fees ought to be set in a reasonable manner on the basis of necessity and in line with international standards of practice. Because of the challenges it faced in affording these fees, the appellant asserted that it was being deprived of its constitutional right to carry on a trade of its choice. The appellant also averred that the licence fees were set without any consultations with the affected parties, contrary to the first respondent’s legal obligations under s 99 of the Act.

[7]	The first and second respondents opposed the application. The first respondent contended that the law dictated the payment of licence fees upfront. It also took issue with the fact that the appellant sought to challenge the regulations three years after their promulgation. It further submitted that contrary to the appellant’s assertions, the regulations were enacted after consultation with relevant stakeholders. That being the case, the first respondent further contends, changing the licence fees would prejudice licence holders who had renewed their licences in terms of the regulations. The second respondent averred that although relevant consultations were conducted in accordance with the law, it had no legal obligation to consult the appellant, and that the fees were reasonable and justified.

[8]	The court a quo, in disposing of the matter on the merits, held that the appellant had failed to discharge the onus it bore of proving that the process leading to the promulgation of S.I 122/2013 and the fixing of the class A licence fell foul of the requisite provisions of the Act. The court further held that the appellant had failed to prove that no stakeholders were consulted by the first respondent prior to the enactment of the regulations. Regarding the fees, the court held that no evidence had been placed before it to prove that the renewal licence fee on the basis of a one-off payment of US$5.5 million over a period of 14 years, had the effect of being partial or unequal in its operation, or that it constituted gratuitous interference with the appellant’s constitutional right to trade.

[9]	In relation to the first respondent being ordered by the second respondent to ensure the publication of licences by the concerned licensees in terms of s 37(5), the court a quo opined that there was no legal provision stipulating how the first respondent could carry out this task given that the obligation to do so lay on the licensees themselves. The court expressed the view that this gap in the law could only be filled through the promulgation of the requisite legislation. The court, however granted the order sought by the appellant, compelling the first respondent to publish all internet access provider licences in accordance with s 5(a) of S.I 262/2001.

[10]	Dissatisfied with the rest of the decision of the court a quo the appellant filed this appeal on grounds which in my view raise three issues for determination. These are: -

Whether the appellant bore and discharged the burden of proving that the process leading to the promulgation of S.I 122/2013 was not compliant with the provisions of the Act and thus rendered the regulations ultra vires the Postal Telecommunications Act.

Whether the appellant proved that S.I 122/13 was unreasonable and ultra vires the Act, on the basis that the class A licence fee of US$5 500,00 was arbitrary, outrageously high, and an interference with its right to trade.

Whether the first Respondent has a legal obligation to enforce the provisions of s 37(5) of the Postal Telecommunications Act.

WHETHER THE APPELLANT PROVED THAT S.I 122/2013 WAS ULTRA VIRES THE POSTAL TELECOMMUNICATIONS ACT

[11]	The appellant charges on two main bases that the regulations, S.I 122/2013, were ultra vires the Act and should be struck down. Firstly, the appellant contends: -

(i) 	that the processes followed in the promulgation of the regulations lacked transparency in that the first respondent had not consulted relevant stakeholders as mandated by s 99 of the Act, and;

(ii) 	that the first respondent failed to act lawfully, reasonably and fairly, given that it had an obligation to do so, being an administrative authority as defined in the Administrative Justice Act [Chapter 10.28].

Secondly, the appellant submits that the US$5.5 million Internet Access Provider licence renewal fee prescribed by the regulations was ‘exorbitant, partial and unequal in operation, established in bad faith, or so oppressive as to constitute gratuitous interference with its Constitutional right to trade.’

Related to the first main submission, the appellant avers that the court a quo erred in finding that it, and not the respondents, bore the burden to prove the absence of the stakeholder consultations that it alleged the respondents failed to undertake, and that it had failed to discharge such burden.

[12]	Before this Court, the nub of the appellant’s contention is that once it established a prima facie case against the respondents by alleging that the first respondent did not fulfil its legal obligations prior to enacting S.I 122/2013, and further, having specifically challenged the respondents to justify their conduct, the evidential burden shifted to them. This was because, so the argument goes, the respondents had made averments of compliance with all the relevant requirements. The appellant submits in this respect that evidence of such compliance was peculiarly within the respondents’ knowledge, possession and control.

[13] 	Per contra, the respondents submitted that the onus remained on the appellant to 	prove what it was alleging and that it had failed to do so. This was, the 	respondents further submitted, in view of the fact that the second respondent had, in 	its discretion, consulted the first respondent in terms of s 92(2) of the Act, 	while for 	its part the first respondent had consulted relevant stake holders in the industry.

There is in my view merit in the respondents’ submissions.

[14]	The appellant alleges that the respondents had not complied with s 99(2) of the Act in so far as consultations with stakeholders were concerned. The provision reads: -

The Minister may, after consultation with the Authority, make regulations prescribing all matters which by this Act are required or permitted to be prescribed or which, in the opinion of the Minister, are necessary or convenient to be prescribed for carrying out or giving effect to this Act. (emphasis added)

It is clear from a reading of this provision that no obligation is placed on the first or the second respondent to consult relevant stakeholders before enacting regulations. Instead the second respondent, in its discretion, may only consult the first respondent before prescribing, among others, the terms and conditions pertaining to the issuance of the licences in question. In this respect, the court a quo correctly observed that, while it was not mandatory for the second respondent to consult the first respondent, S.I 122/2013 itself specifically stated that such consultation had taken place.

[15]	Related to the import of s 99(2) of the Act is the well-established principle that Parliament, which is the maker of primary legislation, intended that regulations should be passed only where it is reasonably necessary to further the objects of the relevant enabling legislation. It follows from this that the Act itself not having mandated the first respondent, upon being consulted by the second respondent, to hold consultations with stakeholders, no obligation on its part to do so was proved. It is common cause that agencies created by statute may exercise only such powers as the statute has conferred on them. (See Baroness Wenlock v River Dee Co (1885) 10 App Case 354 at 362).

The appellant, it appears, misapprehended the import of s 99(2). Accordingly, its submission that the respondents violated the provision by not carrying out consultations with stakeholders in the industry, is without foundation.

[16] 	The appellants also charged that the first respondent, by not consulting stakeholders in the industry before S.I 122/2013 was promulgated, abrogated the obligation to act lawfully, reasonably and fairly, given that it was an administrative authority as defined in the Administrative Justice Act. The first respondent averred, in denying the appellant’s assertions to the contrary, that to the extent that it may have borne the obligation to do so as an administrative authority, it had duly consulted with relevant stakeholders before S.I 122/2013 was promulgated.

[17]	In the case of Nyahondo v Hokonya and Ors 1997 (2) ZLR 457 (S) at 459 the court stated as follows: -

“The general principle is that he who makes an affirmative assertion whether the Plaintiff or the respondent, bears the onus of proving the facts so asserted. However, where a negative assertion can be said to be an essential element of a party’s claim or defence, that party bears the burden of proving it.” (emphasis added)

The remarks pertaining to a negative assertion are apposite in casu. The appellant alleged that the respondents neither consulted various stakeholders nor conducted relevant research before enacting the regulations in question. The appellant submitted further that this lack of transparency was neither contemplated by the relevant law nor reasonable under the circumstances. The negative assertion that the appellant made in this respect clearly was an essential element of its claim against the respondents. The court a quo in considering this submission noted that the appellant did not attach any supporting affidavits from other players in the industry, to support its averment that no consultations with them had been carried out before the regulations were promulgated. The court remarked that the appellant based its assertion that no other players had been consulted on the fact that it, as a stakeholder, had not been consulted.

[18] 	The court in light of these observations took the view, which I consider to be correct, that this circumstance of itself did not prove that other stakeholders had not been consulted. That being the case, I do not find any fault with the court’s finding that the appellant failed to establish a factual basis for the allegations that it made. The appellant in effect looked to the respondents to provide the required evidence, arguing that such evidence was within the latter’s exclusive purview. On the basis of the authority cited above, the appellant’s quest to have the respondents provide the evidence it needed to prove the assertions of facts that it made was misplaced.

[19]	The law is in any case settled that in respect of every enactment or delegated legislation passed, there is a presumption that it was properly enacted or correctly made in terms of the v law, until the contrary is established. The following dictum set out in City of Harare v Mushoriwa SC 54/18 is instructive in this regard: -

“The need for judicial restraint in the administrative realm is also captured in the maxim omnia praesumuntur rite et solemniter esse acta. It is trite that every enactment by implication imports the principle underlying this maxim. See Bennion: Statutory Interpretation, at pp. 782-783. The maxim establishes the presumption that an enactment or delegated legislation is properly passed or correctly made, until the contrary is proved. As applied to the exercise of official or administrative functions, it must be presumed that the powers conferred will be fairly and reasonably administered and will not be abused.” (emphasis added)

[20]	On the basis of these clear principles of the law, I find that the court a quo was correct in finding that the appellant, and not the respondents, bore the onus of proving that the respondents did not carry out the consultations with stakeholders, that it asserted the first respondent was mandated to do as an administrative authority. Having failed to prove that no consultations were held with stakeholders in the industry, the appellant by that token failed to prove that the processes leading to the promulgation of S.I 122/2013 were so unreasonable as to render the regulations ultra vires the Act and therefore, null and void.

Accordingly, the first issue is resolved against the appellant.

WHETHER THE APPELLANT PROVED THAT S.I 122/13 WAS UNREASONABLE AND THEREFORE ULTRA VIRES THE ACT, ON THE BASIS THAT THE CLASS A LICENCE FEE OF US$5 500,000 WAS ARBITRARY, OUTRAGEOUSLY HIGH, UNREASONABLE AND AN INTERFERENCE WITH ITS RIGHT TO TRADE.

[21]	The appellant argues that given the totality of circumstances surrounding the dispute, the class A licence renewal fee was outrageously high and unreasonable and bore no relation to accepted principles and guidelines for prescribing telecommunications licence fees in terms of the International Telecommunications Union Guidelines. The appellant also averred that no research prior to the enactment of the regulations was conducted, nor was consideration given to the effects of requiring such a licence renewal fee from internet providers like the appellant. Further, that the respondents failed to carry out simple regional or country to country comparisons of telecommunications licence fees. The appellant in this respect sought to attach to its answering affidavit, details of telecommunication licence fees from the Southern African region in an effort to invite the court to draw comparisons with the fees obtaining in Zimbabwe.

[22]	The court, quite rightly in my view, found that the appellant’s attempt to introduce that new evidence through its answering affidavit was procedurally improper, given that an application, as a general rule, falls or stands on its founding affidavit. Clearly, the introduction of the new evidence after the respondents had already filed their opposing papers would have been prejudicial to them since the door would have already been closed to any opportunity for them to answer or relate to the evidence.

[23]	Before a court is moved to declare an enactment null and void it must be satisfied that the applicant has proved, on a balance of probabilities, that the enactment is unreasonable and therefore ultra vires the enabling Act. The extent of unreasonableness which leads to the setting aside or invalidation of a statutory instrument was aptly set out by PATEL JA in City of Harare v Mushoriwa case (supra) as follows: -

“The concept of unreasonableness in relation to by-laws is similar to the equivalent Wednesbury principle, as applied in judicial review of administrative action. It was further elucidated by Diplock LJ in Mixnam’s Properties Ltd v Chertsey UDC [1964] 1 QB 214, at 237, as follows:

‘…. the kind of unreasonableness which invalidates a by-law is not the antonym of ‘reasonableness’ in the sense in which the expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires’ ….’” (emphasis added)

[24]	In Kruse v Johnson [1898] 2 QB 91, the court elaborated further on the concept as follows: -

“If, for instance, they (by-laws) were found to be partial and unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the court might well say, ‘Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires.”

The remarks made by the court in S v Delta Consolidated (Pvt) Ltd & Ors 1991 (2) ZLR 234 (S) are also instructive: -

“While courts are reluctant to exercise this jurisdiction (bordering as it does on a transgression of the divide between the judicial and legislative functions of Government), it does have an inherent jurisdiction to declare null and void subsidiary legislation on the ground that it is ultra vires if it cannot be construed so as to accord with the intention of a reasonable Legislature. The onus of proving that regulations are ultra vires on the ground of unreasonableness is on the person who seeks to prove their unreasonableness.” (emphasis added)

[25]	Drawing from these authorities, I am satisfied that the burden was on the appellant to show that S.I 122/2013 was ultra vires the Act on the basis of unreasonableness. To do so the appellant was obliged to prove the existence of accepted hallmarks of unreasonableness such as: -

that the statutory instrument was partial and unequal in its operation as between different classes of licences, or

that it was manifestly unjust, disclosed bad faith or constituted an interference with its right to trade.

The court a quo found that the appellant failed to prove that the class A access provider licence renewal fee at a one - off payment of US$5 500 000.00 over a lengthy period of 14 years, had the effect of being partial or unequal in its operation. Nor, the court found, was there evidence that other class A internet access providers were either affected differently by the quantum of the fees or afforded payment plans to settle the same, to the exclusion of the appellant.

[26]	The court a quo further found that while S.I 122/2013 provides for some licences pegged at even higher rates, and others at lower rates than the US$5.500,000 in issue, it was not clear whether these were for one-off renewal periods covering a 14-year period. This therefore, the court opined, made it difficult for it to assess whether the class A licence holders were placed at a greater disadvantage than the other licence holders. While I agree with the court’s reasoning, I note nevertheless that it remained doubtful whether any such assessment would have benefitted the appellant given that no other class A licence holders aligned themselves with it in challenging the licence renewal fees in question.

[27]	The licence fee applied without distinction to every internet access provider similarly circumstanced. The appellant initially appeared to acquiesce to the fee by proposing to the first respondent a plan for staggered payments. This was on 26 February 2016. For it to then turn around and challenge the same fee is in my view to exhibit contrary behaviour. Further, and in light of the fact that the regulations were promulgated in 2013 and the appellant only challenged the fees in 2016, a reasonable inference could be drawn that the appellant’s inaction over the matter for over two years constituted a waiver. The application appears to have been an afterthought after the appellant realised that its business could not sustain the statutorily required minimum fee for licence renewal. To this end, I find that the court a quo was correct in associating itself with the sentiments expressed in Belew v Brakpan Town Council 1937 TPD 439 at p 443 as follows: -

“Where such a power (i.e. to fix licence fees) is given, the court cannot interfere on the mere ground that it considers the fee unreasonably high. The size of the fee, however might in certain instances be a factor in considering whether the Council genuinely exercised its powers of licensing and regulating, or mala fide used such powers for achieving an ulterior object such as prohibition. For instance, the Council might prescribe a licence fee so outrageously high that the only reasonable inference was that the object was to prohibit the business in question entirely.”

[28]	The appellant tendered no evidence suggesting that the respondents were influenced by an ulterior motive, like the intention to prohibit the business of internet providers entirely, when they set the fees in question. Quite clearly, the arbitrariness, mala fides or otherwise of the respondents in setting a licence fee cannot be determined on the basis of inability to pay on the part of only one player in the industry out of many others.  There was no evidence placed before the court to show that other players in the same industry with the appellant considered the fee unreasonably high or that it had the effect of prohibiting them from operating. To the contrary, the second respondent made the submission, which on its evidence the appellant could not controvert, that other players in the same field had already met their statutory obligations in compliance with the impugned regulations.

Accordingly, no case has been proved for holding that S.I 122/2013 was grossly unreasonable.

[29]	Against this background, one would be at pains to conclude that the fee structure disputed by the appellant was specifically designed to interfere with its ability to engage in its chosen trade. The second respondent in any case, makes the valid point that the appellant, in addition to not suggesting an alternative fee structure, seemed to have taken the view that the right to trade was absolute, when the contrary was true given the provisions of s 86(3) of the Constitution. Thus the appellant’s recourse to the Constitution of Zimbabwe in its quest for an order that in its view would uphold its right to fair, lawful and reasonable administrative conduct on the part of the respondents was misplaced.

[30]	More importantly, it should always be borne in mind that courts generally guard against breaching the divide between the judicial and legislative functions of Government. They, therefore, exercise judicial restraint in cases where the validity of a statutory instrument is questioned and are as a result generally slow to strike down legislation. In the case of City of Harare v Mushoriwa SC 54/18 p 12, the court commenting on Kruse v Johnson [1898] 2 QB 91, inter alia stated as follows: -

“And, fourthly, where the criterion of reasonableness is to be applied to any by-law, it should only be condemned if it is objectively found to be grossly unreasonable.” (my emphasis)

[31]	In applying the above principles to the facts and circumstances of this case, I do not find that the court a quo improperly applied the test for determining whether or not S.I 122/2013 was so grossly unreasonable as to make the court take the view that Parliament never intended to give authority to the second respondent to make such regulations. It follows from this that the court correctly found that the appellant failed to establish that the licence fee for a class A licence was, to use its words, ‘arbitrary, outrageously high, unreasonable and an interference with its right to trade.’

In the final result, I find that the court a quo correctly determined that no case was proved for the striking down of S.I 122/13.

The second issue is accordingly resolved against the appellant.

WHETHER THE 1ST RESPONDENT HAS A LEGAL OBLIGATION TO ENFORCE THE PROVISIONS OF S 37(5) OF THE POSTAL TELECOMMUNICATIONS ACT.

[32]	It is the appellant’s contention that s 37(5) of the Act imposes an obligation on all licensees to publish their licences in a local newspaper within 30 days of issue. Further, that the first respondent, as regulator of all telecommunications licences, has an inherent obligation to ensure compliance with the said section. This, it submits, is in line with the provisions of s 68 of the Constitution of Zimbabwe which enshrines the right to fair, lawful and reasonable administrative conduct. The appellant avers that, in terms of s 96 of the Act, a licensee aggrieved by an act or omission of the first respondent can appeal to the second respondent for redress. Further, that the first respondent’s failure to publish licences for over a period of one year from the time the Ministerial directive to that effect was granted could not be regarded as reasonable.

[33]	The appellant therefore sought an order compelling the first respondent to: -

“Comply with its statutory obligations provided under the Postal and Telecommunications Act [Chapter 12:05] and in particular the enforcement of the provisions of s 37(5) of the Act ‘regarding the publication of licenses by licensees.”

The order sought a quo was framed in exactly the same terms as those of the Ministerial Order granted by the second respondent on 30 June 2015.

[34]	The respondents, to the contrary, submit that the court a quo was correct in concluding that s 37 (5) of the Act did not impose any obligation on the respondents to comply with this provision and that rather, the obligation was imposed on a licensee, at its own expense, to cause its licence to be published. Section 37(5) states as follows: -

“Within thirty days after the issue of a licence referred to in subsection (4) the licensee shall, at his own expense, cause the licence to be published in a newspaper circulating in the area in which he intends to operate as a licence.” (my emphasis)

A literal interpretation of the provision clearly does not place any obligation on the first respondent to ensure that such licences are published by the licensees. I am not persuaded, as contended for the appellant, that this obligation is inherent in the words that expressly placed the responsibility to publish the licenses on the licensees concerned. To read this meaning into the provision in question would in my view be to ascribe to the words a meaning that the Legislature did not intend. It would also be a misinterpretation of words that are otherwise clear in their meaning and devoid of any absurdity.

[35]	It is trite that in interpreting legislation, words must be given their ordinary meaning unless to do so would result in some absurdity. As rightly submitted by the respondents, it is the role of a licensee, out of its own resources and within 30 days of acquiring the licence, to cause it to be published in the relevant publication. The court a quo reasoned as follows in relation to the appellant’s quest for an order compelling the first respondent to enforce s 37(5) of the Act: -

“There is no legal provision stipulating how (the) appellant should enforce the obligation imposed on a licensee to publish his or her licence in a newspaper circulating in the area where the trade will be carried out. The gap in the law is for the second respondent to cover by enacting appropriate legislation ….(The) second respondent cannot pass the buck to (the) first respondent through a Ministerial order not backed by the necessary legislation.”

[36]	I do not find any fault with the interpretation of the provisions in question by the court a quo. Section 37(5) of the Act clearly and in peremptory terms mandates a licensee, at its own cost, to publish its licence in the manner and within the period set out. What is clearly missing the gap as the court a quo correctly termed it is a provision imposing a penalty for not complying with the law. With such penalty spelt out, the duty of the respondents would be to enforce it in appropriate cases, as a means of forcing compliance by the licensees with s 37(5). The Ministerial Order mandating the first respondent to ‘enforce’ the provisions of s 37(5) suggests that the second respondent read into that section an obligation that clearly was not there. The nature of the obligation is such that it must expressly be set out in relevant legislation. To that extent, the Ministerial order lacked a legal basis and was therefore incompetent.

[37]	It follows from the foregoing that the Ministerial Order was not one that the court a quo could endorse or re-state, and its decision to dismiss that aspect of the appellant’s claim was properly arrived at.

This issue too is determined against the appellant.

DISPOSITION

[38]	It is evident from the foregoing that the appeal lacks merit in all respects and ought to be dismissed.

In the result, it is ordered as follows: -

“The appeal be and is hereby dismissed with costs.”

MAKARAU JA	:		I agree

GUVAVA JA		:		I agree

Kantor and Immerman, appellant’s legal practitioners.

Muzangaza, Mandaza & Tomana, 1st respondent’s legal practitioners.

Civil Division of the Attorney General’s office, 2nd respondent’s legal practitioners.