Andrew Ranganai Chigovera v Minister of Energy and Power Development and Zimbabwe Electricity Transmission and Distribution Company (ZETDC)

The appellant owned immovable property in Mabelreign, Harare, which he leased to Crossland Mupfurutsa between June 2013 and August 2017. The tenant concluded an electricity supply agreement with ZETDC (the second respondent) who opened an account in the tenant's name. When the tenant abandoned the property in August 2017, he left an unpaid electricity bill of $4,689.89. In September 2018, the second respondent installed a prepaid meter in the appellant's name and, acting in terms of section 3(1) of The Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI 44A of 2013, unilaterally transferred the tenant's debt to the appellant. The debt was to be liquidated by deducting at least 50% of the appellant's prepaid electricity purchases. On 1 June 2018, SI 44A of 2013 was repealed by section 12 of SI 85/2018. On 3 September 2019, the appellant approached the High Court seeking declaratory orders that section 3 of the repealed enactment be declared ultra vires the Electricity Act and therefore a nullity, and that the debt transfer be declared unlawful. The appellant was unaware at the time of filing that SI 44A had been repealed, only discovering this when filing his answering affidavit, but elected to proceed with the application. The second respondent continued making deductions from the appellant's prepaid electricity purchases even after the repeal.

• Whether a declaratory order can be granted against a repealed enactment
• Whether section 3(1) of SI 44A of 2013 was ultra vires the enabling Electricity Act
• Whether the continued deductions after repeal were lawful under section 17(1)(c) of the Interpretation Act
• Whether the transfer of debt from tenant to property owner violated the doctrine of privity of contract
• Whether the appellant had standing to challenge the repealed enactment
• Whether the appellant had acquired or accrued rights under the repealed enactment before its repeal
• Whether new grounds of appeal can be raised for the first time on appeal

The appeal was dismissed with costs on the legal practitioner and client scale payable to the second respondent. No costs were awarded to the first respondent.

A declaratory order cannot be granted against a repealed enactment because it is legally dead and cannot be resurrected. However, declaratory relief may be sought against the continuing effects of rights or obligations acquired or accrued under a repealed enactment as preserved by section 17(1)(c) of the Interpretation Act. For rights to be preserved under section 17(1)(c), the beneficiary must have taken active steps to assert those rights before the repeal of the enactment - mere passive entitlement is insufficient. An application stands or falls on its founding affidavit, and the cause of action pleaded therein binds the parameters within which the court adjudicates the dispute. New issues not pleaded in the founding affidavit or argued in the court a quo cannot be raised for the first time on appeal unless they meet strict criteria including being covered by the pleadings, causing no unfairness to the other party, being based on common cause facts, and where no further evidence could have affected the point.

The court noted that the first respondent (the Minister) did not file opposing papers or seek upliftment of the automatic bar, appearing only with a watching brief, yet sought costs on appeal despite having no proper right of audience. The court commented that the appeal appeared to be merely intended to harass the respondents and constituted an abuse of the appeal process, justifying costs on the higher scale. The court distinguished its earlier decision in Chivore v Vainona Primary School Parents Association, noting that the obiter dictum in that case regarding preserved rights was undermined by two factors: the facts did not disclose when levies were raised relative to the amendment, and the meaning of "acquired" was not interrogated in light of the Ranger precedent. The court observed that while Mr Madhuku introduced the "live effects of the repealed enactment" discourse in oral argument, this was done only to augment his main submission rather than to support the grant of the second declaratory order or seek substitution of that order.

This is a significant Zimbabwean Supreme Court judgment on statutory interpretation and administrative law principles that would be highly persuasive in South African law given the common legal heritage. The case establishes important principles regarding: (1) the inability to seek declaratory orders against repealed legislation; (2) the distinction between challenging a repealed enactment and challenging continuing effects of rights or obligations acquired under it; (3) the interpretation of section 17(1)(c) of the Interpretation Act (equivalent provisions exist in South African law) requiring active assertion of rights before repeal for preservation; (4) the fundamental principle that applications stand or fall on founding affidavits; (5) limitations on raising new issues on appeal; and (6) requirements for establishing standing and a proper cause of action in declaratory relief applications. The judgment provides authoritative guidance on when rights "accrue" under savings provisions in interpretation legislation, following the Lord Herschell formulation adopted in South African jurisprudence.