THE High Court has dismissed an application filed by the Zimbabwe Lawyers for Human Rights (ZLHR) seeking the reversal of Transport Minister Obert Mpofu's unpopular hike on toll fees paid by motorists on the country's highways.
Presiding Judge Justice Joseph Mafusire concurred with the respondents' argument that the minister duly exercised his executive functions when he gazetted the Toll Roads (Regional Trunk Road Network) (Amendment) Regulations, 2014 under SI 106/2014 which operationalised the new charges.
When the hike was announced, ZLHR last week took the Minister, the Zimbabwe National Road Administration (ZINARA), which administers the tolls, and the Attorney General to court.
The lawyers group was seeking the reversal of what it found to be punitive and disproportionate levying on already burdened motorists.
The group also argued that instead of going the easier route of passing the burden to motorists, the minister could still have sought other forms of raising funds, granted it was essential to rehabilitate the country's aging roads.
They also felt the authorities had not done enough in terms of demonstrating by way of tangible results, the toll fees that were being collected by government since their introduction five years ago.
The group felt the country's roads were still dilapidated, raising suspicion the money was not being used properly.
But Advocate Farai Mutamangira, legal counsel for ZINARA, insisted the minister's executive functions were, by law, independent of interference by another arm of the state, in this case the judiciary.
He further contended that despite the new fee hike, Zimbabwe's toll charges still remained lower than those in the region, in particular South Africa.
Zinara further challenged the ZLHR to prove they were indeed mandated by the said motorists to challenge the increase.
In dismissing the application, Justice Mafusire cited a similar challenge that was placed by South Africans against the introduction of their country's e-tolling system that bore resemblance to the ZLHR case.
The challenge still flopped even when the South Africans had demonstrated better organisation by seeking the voices of every affected group, followed by massive lobbying against the decree.
In the South African case, said Justice Mafusire, the presiding courts still maintained the judiciary had no jurisdiction over the executive's powers to make law, except, in a few cases, providing the necessary checks and balances.
"I adopt the same approach in this case. I do find nothing unprocedural in the way the Minister promulgated SI 106/2014. It was within his power to craft it," said Justice Mafusire in a ruling that was read to both counsels in chambers on Monday.
"It was an action within the exclusive domain of the executive to decide how road construction, rehabilitation should be funded. Such a decision is manifestly policy-laden and polycentric."
He continued: "In my view, the applicant has failed to establish a proper cause of action for the court to determine.
"… Suffice it to say that when l say the applicant has not established a cause of action, l mean that it has not shown a prima facie right peculiar to it or its members, nor any well-grounded apprehension of an irreparable harm stemming from the actions of the Minister. In the result, the application is dismissed."
Joshua Shekede, who represented ZLHR was disappointed by the ruling.
"Of course, as a motorist myself and on behalf of my client, l am disappointed with the ruling but we accept the ruling and we wait for further instructions from our client on how to proceed," said Shekede.
Under the new toll fees, which came into effect July 11, motorists on private vehicles now pay US$2, up from US$1. Minibuses' toll fees were hiked from US$2 to US$3 and buses from US$3 to US$4.
Heavy vehicles are now being charged US$5, up from US$4, while haulage truck drivers are now leaving US$10 at the toll gates up from US$5.