The applicant owned Stand number 1898 Mabelreign Township, Harare, which he leased to Crossland Mupfurutsa from June 2013 to August 2017. During the tenancy, the tenant entered into a contract with the second respondent (Zimbabwe Electricity Transmission and Distribution Company) for electricity supply. The tenant accrued electricity arrears that remained unpaid when he vacated the property. In September 2017, a prepaid meter was installed at the property. The applicant discovered that the tenant's unpaid bill had been transferred to his name. The second respondent informed him this was done pursuant to section 3 of Statutory Instrument 44A of 2013, which provided that outstanding electricity charges became "debts of the property" and were reflected in the prepaid meter. Each time the applicant paid for electricity, the second respondent deducted a percentage towards the tenant's arrears. On 3 September 2018, the applicant filed an application seeking a declaratory order that section 3 of SI 44A of 2013 was ultra vires the Electricity Act and null and void. During the proceedings, it emerged that SI 44A of 2013 had been repealed on 1 June 2018 by section 12 of Statutory Instrument 85 of 2018, before the application was filed.
The application was dismissed with costs on the ordinary scale to be paid by the applicant.
Once legislation is repealed, it ceases to have legal validity and becomes a nullity. A court cannot exercise its discretion to grant a declaratory order declaring repealed legislation ultra vires an enabling statute, as there is nothing of legal force to declare invalid - the legislature has already removed such legislation from the country's laws by repealing it. While section 17(1)(c) of the Interpretation Act preserves rights, privileges, obligations and liabilities that accrued or were incurred under repealed legislation, it does not authorize the continued validity of the repealed enactment itself. New proceedings cannot be founded on repealed legislation unless based on rights or obligations that accrued during the legislation's lifetime. An application for a declaratory order under section 14 of the High Court Act is not proper where it seeks to challenge the validity of legislation that has already been repealed before the application was filed.
The court observed that had the applicant filed his application before the repeal of SI 44A of 2013, his arguments challenging the provision as ultra vires the Electricity Act and as violating privity of contract would not necessarily have been frivolous or unmeritorious. The court applied the adage that "the law helps the vigilant and not the sluggard," noting that the applicant had ample opportunity to challenge SI 44A between September 2017 (when deductions began) and June 2018 (when it was repealed) but failed to do so. The court also noted that even on the hearing date, when the futility of seeking a declaratory order against a repealed provision was apparent, the applicant ought to have withdrawn the application but chose to persist with it. The court observed that both parties appeared to have been initially unaware that the SI had been repealed, with the second respondent only learning of this fact when the applicant mentioned it in his answering affidavit.
This case establishes important principles regarding the temporal effect of repealed legislation in Zimbabwean law and the limits of declaratory relief. It confirms that courts cannot be asked to declare repealed legislation ultra vires, as such legislation is already a nullity. The judgment clarifies the application of section 17 of the Interpretation Act, distinguishing between the continued effect of rights and obligations that accrued under repealed legislation (which are preserved) and the continued validity of the repealed enactment itself (which is not preserved). The case also illustrates the importance of vigilance in challenging allegedly unconstitutional or ultra vires legislation before it is repealed, and the need for litigants to reassess their causes of action when the legal landscape changes during the course of litigation. It demonstrates the proper exercise of judicial discretion under section 14 of the High Court Act in refusing declaratory orders where the case is not proper for such relief.