Martin Stobart and Others v Lupane Local Board and Another

The applicants were market traders operating stalls selling non-consumable goods at Lupane Flea Market. They challenged Section 5(2) of the Lupane Local Board (People's Market) By-Laws 2013, Statutory Instrument 134/2013, which required market traders in non-consumable goods to furnish medical certificates when applying for trading permits. The applicants argued that this requirement was unreasonable, unnecessary, and unjustifiable in a democratic society, and that it violated various provisions of the Constitution of Zimbabwe including Section 24 (right to work), Section 64, Section 84, and Section 56. They also argued that the requirement was discriminatory as shop owners trading in similar goods were not required to provide medical certificates.

• Whether Section 5(2) of Statutory Instrument 134/2013 requiring medical certificates from market traders dealing in non-consumable goods was unreasonable and unjustifiable
• Whether the requirement violated Section 24 of the Constitution of Zimbabwe (right to work and economic activity)
• Whether the requirement was discriminatory and violated constitutional provisions on equality
• Whether the delegated legislation was ultra vires on grounds of gross unreasonableness
• What onus rests on an applicant challenging the constitutionality of legislation

The application was dismissed with costs.

In a challenge to the constitutionality or validity of delegated legislation, the onus rests squarely on the applicant to demonstrate how the impugned provision is unconstitutional, unreasonable, or ultra vires. Bold assertions and declarations of unconstitutionality without detailed factual and legal substantiation are insufficient to discharge this onus. An applicant must show in concrete terms: (1) how the provision is unreasonable or unnecessary; (2) specifically how constitutional provisions are infringed; (3) the practical impediments created by the provision; and (4) why the requirement lacks necessity. The application stands or falls on the adequacy of the founding affidavit, and inadequate averments therein will result in failure to establish a proper foundation for the case. Courts will not interfere with administrative regulations and delegated legislation absent a comprehensive and properly substantiated challenge demonstrating gross unreasonableness, discrimination, disproportionality, or other grounds of invalidity.

The court observed that the applicants' case could have been better founded had they first requested reasons for the administrative action (the requirement for medical certificates) before mounting the court challenge. Once reasons were given, it would have been easier for applicants to formulate the basis of their application by attacking those reasons for lack of necessity and unreasonableness. This observation suggests a procedural best practice in administrative law challenges. The court also noted that delegated legislation can be declared ultra vires if it is grossly unreasonable, citing Kruse v Johnson for the proposition that regulations may be invalid if they are partial and unequal in operation, manifestly unjust, disclose bad faith, or involve oppressive and gratuitous interference with rights that could find no justification in the minds of reasonable persons. The court referenced that gross unreasonableness may be present when provisions are discriminatory, disproportionate, vague, or uncertain, citing Baxter's Administrative Law and local jurisprudence.

This case is significant in Zimbabwean administrative and constitutional law for establishing the stringent requirements for challenging delegated legislation on constitutional grounds. It emphasizes that bare assertions of unconstitutionality or unreasonableness are insufficient; applicants must provide detailed evidence and reasoning showing HOW and WHY legislation infringes constitutional rights. The judgment reinforces the principle that courts will not lightly interfere with administrative regulations unless good cause is shown. It also highlights the procedural importance of the founding affidavit in constitutional challenges and suggests that applicants should first seek reasons for administrative actions under the principle of administrative justice before launching court challenges. The case demonstrates judicial deference to delegated legislation absent a properly substantiated challenge.