Thabani Tshuma and Higher Octane Suppliers (Pvt) Ltd v Zimbabwe Energy Regulatory Authority

The 1st applicant was a director of the 2nd applicant, Higher Octane Suppliers (Pvt) Ltd, which operated a service station at 137a Fife Street, Bulawayo under the name Busuman Motors (Pvt) Ltd. In 2018, the applicants decided to expand operations and took over an adjacent fuel station previously leased to Total Zimbabwe. The 2nd applicant invested US$14,000 in new fuel pumps and obtained necessary certificates from the Environmental Management Agency (EMA) and a shop licence from the City of Bulawayo. Payment for the ZERA licence was made on 1 February 2019. The 2nd applicant employed ten employees and ordered fuel in preparation for operations, after the respondent assured them a licence would be issued shortly. However, on 31 January 2019, the respondent's inspectors seized the pumps and closed the service station, alleging contravention of section 29 of the Petroleum Act. The station remained closed for 14 days during a period of acute fuel shortage in the country, causing the applicants to lose US$45,000 in revenue.

• Whether the respondent acted lawfully and reasonably in sealing and closing the applicants' service station without a court order
• Whether the respondent complied with the requirements of procedural fairness under the Administrative Justice Act
• Whether the applicants were entitled to urgent interim relief to break the seals and resume trading
• Whether the respondent's actions violated the applicants' rights to adequate notice and reasonable opportunity to make representations

The court granted the following interim relief pending final determination: (1) The respondent or its representatives were directed to break the seals and allow the applicants to resume trading immediately upon service of the order; (2) Failing paragraph (1), the applicants were authorized to break the seals and resume trading themselves.

A regulatory authority exercising administrative powers must act lawfully, reasonably and in a fair manner in accordance with the Administrative Justice Act. Where a statute provides for specific penalties (such as prosecution and fines), a regulatory authority cannot unilaterally impose additional sanctions (such as closure of business premises) without a court order. Before taking administrative action that affects a person's rights, interests or legitimate expectations, an administrative authority must provide adequate notice of the nature and purpose of the proposed action and afford a reasonable opportunity to make representations. The failure to comply with these procedural fairness requirements renders the administrative action unlawful and justifies urgent interim relief to restore the affected party's position.

The court observed that the closure of the service station came at a time when the country was experiencing an acute shortage of fuel, suggesting that the timing made the respondent's actions particularly unreasonable and harmful to the public interest. The court also noted that the respondent had various alternative remedies available under the Energy Regulatory Authority Act and the Petroleum Act to enforce compliance with the law, implying that the drastic measure of total closure was disproportionate to the alleged contravention.

This case is significant in Zimbabwean (and potentially relevant to South African) administrative law jurisprudence as it affirms the importance of procedural fairness in administrative action by regulatory authorities. It establishes that regulatory bodies cannot take drastic enforcement measures such as closure of business premises without following proper procedures, even where statutory contraventions are alleged. The case reinforces the principle that administrative authorities must act lawfully, reasonably and fairly, and must provide adequate notice and opportunity to be heard before taking action that affects rights and interests. It demonstrates judicial oversight of regulatory bodies to ensure they do not exceed their statutory powers and comply with administrative justice requirements. The case also illustrates the court's willingness to grant urgent interim relief where administrative action is taken in a procedurally unfair manner.