Indigenous Petroleum Association of Zimbabwe v Zimbabwe Energy Regulatory Authority and Minister of Energy and Power Development

The applicant represents indigenous players in the petroleum industry. On 9 March 2020, the first respondent (Zimbabwe Energy Regulatory Authority, established under the Energy Regulatory Authority Act, Chapter 13:23) issued a Notice titled "Licensing of Petroleum Sector Operators in 2020" which significantly increased procurement licence fees from ZWL$23,000.00 to ZWL$2,000,000.00 and introduced new conditions including: (i) requirement of a supply contract from a trader; (ii) ownership of at least 25 sites with evidence of ownership; and (iii) provision of a performance bond valued at ZWL$30 million. The applicant, aggrieved by these conditions, approached the court on an urgent basis seeking to interdict the first respondent from giving effect to the Notice. The parties consented to a provisional order on 18 March 2020 suspending the operation of the impugned conditions. On 13 March 2020, before the provisional order was granted, the respondent had already withdrawn section (b) of the Notice dealing with the 25 sites requirement and performance bond. The applicant also sent a letter dated 19 April 2020 indicating its members' agreement with the licence fees of ZWL$2,000,000.00. The applicant also challenged the constitution of the first respondent's Board, arguing it lacked the required four women (having only three) and a properly qualified legal practitioner as required by s6 of the Act.

• Whether the court should confirm the provisional order when the impugned conditions had been withdrawn by the respondent before the provisional order was granted
• Whether the court should grant declaratory relief when the dispute has been overtaken by events and rendered academic
• Whether the first respondent's Board was improperly constituted for want of the required number of women members and a properly qualified legal practitioner
• Whether the respondent failed to make a reasonable, lawful and fair decision in issuing the Notice without hearing the applicant
• Whether the court should make a pronouncement on matters that have resolved themselves through withdrawal and agreement between the parties

The application for confirmation of the provisional order was dismissed with costs.

Where an administrative decision or regulatory notice that is the subject of urgent court proceedings is formally withdrawn by the respondent before or shortly after a provisional order is granted, and the parties subsequently reach agreement on the disputed matters, the court will decline to confirm the provisional order on the basis that the matter has become moot and academic. A court may decline to exercise its jurisdiction over a matter when events outside the record terminate the controversy, as the court's jurisdiction ceases when a dispute becomes moot by reason of changed circumstances. Declaratory relief under s14 of the High Court Act should not be granted where the relief sought is abstract or academic and there is no live dispute between the parties. Where a respondent gives an unequivocal undertaking that wrongful conduct complained of will not be continued or repeated and withdraws the impugned act, there is no basis for seeking confirmation of a provisional order, as such confirmation proceedings become academic. No useful purpose is served by asking a court to resolve a dispute which has resolved itself, and it is undesirable for courts to make academic pronouncements on matters where there is no real controversy.

The court made several obiter observations: (1) The Petroleum Act [Chapter 13:22] creates a different entity (the Petroleum Regulatory Authority) from the Zimbabwe Energy Regulatory Authority established under the Energy Regulatory Authority Act [Chapter 13:23], and therefore s56 of the Petroleum Act providing for appeals to the Administrative Court does not oust the High Court's jurisdiction in this matter. (2) Whether a board decision is valid is not determined solely by the quorum required for meetings, the vote making the decision, or the number or composition of the entire board - what matters is whether there was a quorum for specific meetings. (3) The court noted that s11 of the Schedule to the Energy Regulatory Authority Act may save or render of no consequence defects in board composition as long as the board has a quorum. (4) The court observed that it would only be in cases where a party has been shown to be mala fide in its undertaking that a wrongful act will not be proceeded with that an appropriate remedy would be granted on the return date. (5) The court commented that the respondent, by acceding to the provisional order even after withdrawing some conditions, accepted that it had failed to make a reasonable, lawful and fair decision when it came up with the notice.

This case is significant in Zimbabwean administrative law for establishing principles regarding when courts will decline to exercise jurisdiction over matters that have become moot or academic due to changed circumstances. It demonstrates the court's approach to declaratory relief applications under s14 of the High Court Act, emphasizing that courts will not entertain purely academic disputes where the controversy has resolved itself through the parties' own actions. The case reinforces the principle that where a regulatory authority withdraws impugned administrative decisions and undertakes to engage in consultation before issuing new regulations, courts will not make academic pronouncements on the validity of withdrawn decisions. It also illustrates the court's discretion to refuse confirmation of provisional orders where the factual and legal basis for the relief sought has been overtaken by events, even where those events occurred outside the court record. The judgment provides guidance on the limits of judicial intervention in regulatory matters where parties have resolved their disputes through negotiation and undertakings.