Allan Norman Markham v Minister of Energy and Power Development and Others

Allan Norman Markham, a member of Parliament for Harare North Constituency, filed an application seeking a declaratur that the Petroleum (Mandatory Blending of Anhydrous Ethanol with unleaded Petrol) Regulations, Statutory Instrument 17 of 2013, were ultra vires the Petroleum Act [Chapter 13:22] and the Constitution of Zimbabwe. He sought to have the regulations set aside. The applicant was represented by Mr T Biti, who had previously represented Thabani Mpofu in a substantially similar case (CCZ 13/20) before the Constitutional Court. The applicant filed his application on 19 May 2020, while judgment was reserved in the Mpofu case. The Constitutional Court delivered judgment in CCZ 13/20 on 23 September 2020, finding that the regulations were intra vires both the Petroleum Act and the Constitution. Despite this, the applicant persisted with his application, which was heard on 17 March 2021. The first, second, and third respondents opposed the application, while the fourth respondent did not file opposition.

• Whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with unleaded Petrol) Regulations S.I. 17 of 2013 are ultra vires the Petroleum Act
• Whether Section 4 of the Regulations is ultra vires the Constitution of Zimbabwe and infringes the right to equal protection under Section 56(1) of the Constitution
• Whether an applicant can claim consequential relief in a Section 14 High Court Act declaratur application
• The application of the principle of stare decisis where a superior court has already determined substantially similar issues
• Whether the applicant's conduct in persisting with the application after CCZ 13/20 was decided amounted to abuse of court process

The application was dismissed with costs on an attorney and client scale. The court censured the applicant for wasting the court's and respondents' time and resources.

The binding legal principles established are: (1) An inferior court is bound by the decisions of a superior court under the principle of stare decisis and cannot ignore or wish away such decisions unless the circumstances of the case are distinguishable; (2) An applicant cannot relitigate issues already determined by a superior court where the substance of the cases is the same, even if the parties differ; (3) Under Section 14 of the High Court Act, an applicant for a declaratur cannot claim consequential relief at the time the declaration is made unless the application is combined with one that moves for consequential relief; (4) The Petroleum (Mandatory Blending of Anhydrous Ethanol with unleaded Petrol) Regulations S.I. 17 of 2013 are intra vires the Petroleum Act and the Constitution of Zimbabwe, as determined by the Constitutional Court in CCZ 13/20.

The court made non-binding observations criticizing the applicant's conduct and use of intemperate language in his papers, particularly in his answering affidavit. The court noted that the applicant, as a member of Parliament, should distinguish between parliamentary debates where emotions run high and court proceedings which must be anchored in reason. The court observed that the applicant's language and unsubstantiated allegations suggested the application was motivated by emotion and a desire to allege corruption and state capture rather than genuine legal concerns. The court also commented on the conduct of Mr Biti, describing his persistence with the application despite knowing of the Constitutional Court judgment as either "a dereliction of duty" or "sheer mischief." The court noted this conduct would be understandable from a young practitioner but not from a senior and experienced member of the legal fraternity. The court commended the respondents for maintaining dignified discourse befitting court proceedings.

This judgment reinforces the fundamental principle of stare decisis in Zimbabwean law, emphasizing that inferior courts are bound by decisions of superior courts and that litigants cannot relitigate matters already determined by higher courts unless distinguishable circumstances exist. The case also clarifies the procedural limitations of declaratur applications under Section 14 of the High Court Act, confirming that applicants cannot claim consequential relief in such applications unless combined with a separate application for such relief. The judgment serves as a warning against abuse of court process and emphasizes the importance of maintaining proper decorum and reasoned argument in court proceedings, distinguishing judicial discourse from parliamentary debate. The award of costs on an attorney and client scale reflects the court's disapproval of the applicant's conduct in persisting with a meritless application.