Mfaro Moyo v The Minister of Energy and Power Development and Attorney General of Zimbabwe

The applicant owned a Mitsubishi Pajero GDI (Gasoline Direct Injection) vehicle, registration number ACT 5253, manufactured in 2000 and acquired in 2012. The vehicle's manual and manufacturer warnings indicated it could not use fuel mixed with ethanol. In 2013, the Minister of Energy and Power Development issued Statutory Instrument 147A of 2013 which mandated that by 31 March 2014, all unleaded petrol sold in Zimbabwe must be blended with 20% locally produced anhydrous ethanol, effectively banning the sale of pure unleaded petrol. The applicant claimed that in May 2013, after mistakenly filling his tank with E10 fuel (10% ethanol blend), his vehicle experienced problems and the fuel system had to be replaced at a cost of USD$2,232.92. He argued that the statutory instrument violated his constitutional right to property under section 71(2) of the Constitution by denying him access to suitable fuel for his vehicle, rendering it unusable without fair compensation.

• Whether Statutory Instrument 147A of 2013 violates the applicant's right to property as enshrined in section 71(2) read with section 71(3) of the Constitution of Zimbabwe
• Whether the mandatory blending regulations constitute compulsory deprivation of property without fair compensation
• Whether the statutory instrument was ultra vires the Petroleum Act in terms of section 134(c) of the Constitution
• Whether the applicant proved that his vehicle was damaged by ethanol-blended fuel and that such fuel is incompatible with his vehicle
• Whether any limitation of property rights was reasonable and justifiable in terms of section 86 of the Constitution

The application was dismissed with costs.

Where an applicant seeks to challenge delegated legislation as unconstitutional on the basis that it violates property rights, the applicant bears the onus of proving with credible evidence that: (1) the right to property has actually been infringed or is likely to be infringed; (2) there is a direct causal link between the impugned legislation and the alleged deprivation or damage; and (3) documents relied upon, particularly those downloaded from the internet, must be properly authenticated with sufficient verification information (URL addresses, dates of access) provided to allow the opposing party to verify their authenticity. The court will not strike down a statutory instrument solely on the basis of unverified internet downloads and unproven allegations of damage, particularly in technical matters requiring expert evidence. Only once infringement of a constitutional right is established does the question of justifiable limitation under section 86 of the Constitution arise.

The court observed that articles downloaded from the internet are admissible as evidence of information available to the public, but the weight given to such evidence must be carefully evaluated. For such evidence to have high probative value, the person relying on it must provide complete information as to the date the evidence was published or accessed and its source (URL address) in the founding affidavit to give the respondent an opportunity to view and verify the information. This is important because some internet sources are unknown, unreliable, or can be edited by members of the public. The court also noted that there are matters that cannot be decided without the guidance of experts, and this was one such case requiring expert technical evidence regarding fuel compatibility with specific vehicle engine types.

This case is significant in Zimbabwean constitutional law for several reasons: (1) It demonstrates the evidentiary burden required when challenging delegated legislation on constitutional grounds, particularly regarding property rights under section 71 of the Constitution; (2) It establishes that applicants must prove both the existence of a constitutional right and its actual or threatened infringement with credible evidence before courts will strike down statutory instruments; (3) It provides guidance on the admissibility and weight of evidence downloaded from the internet - such evidence requires proper authentication including URL addresses, dates of access, and verification opportunities for opposing parties; (4) It shows judicial deference to government policy decisions in matters of public interest (energy security, economic development, environmental protection) where constitutional challenges are not properly substantiated; (5) It illustrates that expert evidence is essential in technical matters involving compatibility of fuels with vehicle engines; (6) The case demonstrates the court's reluctance to strike down delegated legislation on the basis of unverified documents and unproven causal connections.