HARARE High Court judge Justice Joseph Mafusire yesterday reserved judgment on an urgent chamber application filed by Zimbabwe Lawyers for Human Rights (ZLHR) challenging the validity of the government’s decision to arbitrarily hike road toll fees by 100%.
Justice Mafusire, however, did not interfere with the current status quo which is that the current increase was effective and the motoring public would continue paying.
ZLHR had argued in its application that the toll fees increment was “unreasonable, disproportionate and not fair” and that above all Transport and Infrastructural Development minister Obert Mpofu had acted in terms of the wrong law.
“In any event they have cited the wrong legislation. The minister has purported to work in terms of the Road Motor Transport Act which does not empower him to increase toll fees, toll fees are in terms of the Toll Road Act,” ZLHR lawyer Joshua Shekede said.
“We urged the court to dismiss the respondent’s arguments that the wrong citation of the Act was a minor administrative error and that the new toll fees were being charged to maintain roads which were dilapidated.”
In its response to the application, the government through its lawyer Advocate Farai Mutamangira said the application by the human rights lawyers was not urgent since it 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 put in place on July 4 this year.
This application has been overtaken by events and should be dismissed,” Mutamangira said.
He further said ZLHR had not filed a substantive review application where they would have sought “to attack the reasonableness of the minister’s decision” and in the absence of such an application they could not come to court and seek to stop the application of the law “midway and in mid-air” when the law was already in force.
“Taking litigation to its logical conclusion the applicants (ZLHR) ought to have known and understood that whichever way this application goes there is always the possibility of an appeal on either side which is that the final determination of this matter may proceed to appellate courts,” Mutamangira said.
“If that eventuality were to occur, the time it would take to reach final determination, the new tariff on toll fees would long have become operational. This further goes to show that the challenge mounted by the applicant is not urgent.”
Mutamangira further said once the minister had legislated through a statutory instrument exercising his power in terms of the Toll Road Act, a disgruntled party would have a toll order to challenge such an exercise of statutory authority.