Tizel Rutendo Noliwe Bamu and Others v The Vice Chancellor, Harare Institute of Technology N.O and Another

The four applicants were students at the Harare Institute of Technology (the second respondent). On or about 29 April 2022, the applicants were informed by the second respondent's Accounts office that they were required to pay 35% of their fees exclusively in United States dollars, with the balance payable in local currency. This arrangement was introduced following a recommendation by the Fees Revision Committee at its meeting of 10 January 2022. The applicants challenged this decision as unlawful and sought urgent suspension of the requirement pending the final determination of the matter.

• Whether the matter was urgent and could be heard on an urgent basis
• Whether the applicants had locus standi to bring the application
• Whether there was non-joinder or misjoinder of parties
• Whether domestic remedies should have been exhausted before approaching the court
• Whether there was material non-disclosure warranting dismissal
• Whether the demand for payment of 35% of fees in United States dollars contravened the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations, 2019 (SI 212/2019) as amended by SI 185/2020
• Whether the decision contravened section 1(a) of the Administrative Justice Act [Chapter 10:28]

The provisional order was granted in terms of the draft, suspending the second respondent's decision requiring applicants to pay 35% of their fees exclusively in United States dollars, pending the return date for final determination of the legality of the decision.

The binding legal principles established are: (1) Section 3(1) and (2) of the Exchange Control (Exclusive Use of Zimbabwe Dollar for Domestic Transactions) Regulations, 2019 (SI 212/2019) as amended by SI 185/2020 prohibits the charging or payment of fees (including a portion thereof) in foreign currency for domestic transactions; (2) The amendments permitting payment in foreign currency only apply where free funds are used at the ruling rate on the date of payment; (3) A decision by an educational institution to charge fees in contravention of exchange control regulations is prima facie unlawful and subject to suspension and potential nullification; (4) Urgency is determined by when applicants became aware of the impugned decision, not when the decision-making body initially made its recommendation; (5) A party has sufficient locus standi where they are directly affected by the impugned decision without need for a representative body to be joined.

The court made non-binding observations regarding the role of student representative bodies and fees revision committees, noting that while they may participate in fee-setting processes, they do not have independent legal interests in fee disputes between students and the institution. The court also observed that the Fees Revision Committee would be functus officio after making its recommendation, making it inconceivable that approaching it would cause it to revisit its decision. The court noted that the respondents' failure to make submissions on the Administrative Justice Act contravention suggested implied acceptance of the applicants' argument on that point.

This case is significant in Zimbabwean jurisprudence as it confirms the strict application of exchange control regulations prohibiting the charging of fees in foreign currency for domestic transactions. The case demonstrates judicial willingness to enforce exchange control legislation even against educational institutions, and clarifies the requirements for urgent applications, locus standi, and the exhaustion of domestic remedies in administrative law matters involving educational institutions. It reinforces the principle that institutions of higher learning are subject to exchange control laws and cannot unilaterally impose foreign currency payment requirements that contravene statutory provisions.