Tour Operators Business Association of Zimbabwe v Motor Insurance Pool and Others

The applicant, Tour Operators Business Association of Zimbabwe (TOBAZ), is an association of registered tour operators that arranges insurance services for foreign tourists, including motor vehicle insurance for foreign vehicles entering Zimbabwe. Prior to February 2010, TOBAZ members were entitled to arrange temporary insurance cover. In 2010, the Motor Insurance Pool (MIP) and the Zimbabwe Revenue Authority (ZIMRA) concluded an agency agreement, with the tacit concurrence of the Insurance and Pensions Commission (I&PC), which confined the issuance of temporary insurance cover for foreign vehicles to the MIP and ZIMRA. ZIMRA published a notice to that effect and proceeded to issue insurance cover on behalf of the MIP. TOBAZ challenged this arrangement, averring that the MIP, as an association of insurers, cannot itself issue insurance cover or authorize ZIMRA to do so as its agent, as they do not qualify as licensed insurers under the Insurance Act or approved insurers under the Road Traffic Act. The MIP had originally been authorized in 1965 through an agreement with the then Minister of Roads and Road Traffic to issue temporary insurance permits through its nominated members.

• Whether the Minister of Transport should have been joined as a party to the proceedings
• Whether TOBAZ and/or its members had the requisite locus standi to bring the constitutional application under section 85(1) of the Constitution
• Whether TOBAZ and its members were entitled to the relief sought
• Whether the 2010 agency agreement between the MIP and ZIMRA violated constitutional rights including freedom of profession, trade or occupation (section 64), equal protection of the law (section 56), and freedom of association/contract (section 58)
• Whether the agency agreement contravened the Insurance Act, Road Traffic Act, and Competition Act
• Whether TOBAZ members were operating illegally as unregistered insurance brokers
• Whether ZIMRA was operating illegally as an unlicensed insurance agent

The application was dismissed with costs on the ordinary scale.

1. An association lacks locus standi under section 85(1)(e) of the Constitution to enforce members' constitutional rights in respect of activities that fall outside the scope of the association's objectives and members' business interests as defined in its constituent instrument. 2. An applicant purporting to act in the interests of a class of persons or in the public interest under section 85(1)(c) and (d) must provide meaningful evidence, including affidavits from affected parties or their representatives, to substantiate allegations of prejudice. 3. Courts will not grant constitutional relief that would condone, sanction or perpetuate criminal conduct or statutory violations by the applicant or those it represents. 4. The constitutional right to choose and carry on any profession, trade or occupation under section 64 is expressly subject to regulation by law, and applicants engaged in unregulated/illegal practice of a regulated profession cannot invoke constitutional protection to continue that illegal conduct. 5. Non-joinder of a party is not material or fatal where the relief sought does not directly impinge upon that party's rights, powers or interests.

The Court expressed doubt about whether freedom to contract is necessarily implied in the freedom of association guaranteed by section 58 of the Constitution, suggesting that section 58 is concerned with the formation and membership of voluntary associations and corporations rather than commercial contracts. The Court noted that the application was "manifestly ill-conceived, almost on the verge of amounting to an abuse of court process," though it declined to award costs on a punitive scale. The Court also observed that both ZIMRA and the MIP were "patently ill-advised" in entering their agency arrangement without regard to the licensing requirements under the Insurance Regulations, with ZIMRA acting without an insurance agent license and the MIP permitting this in contravention of the Regulations. The Court noted that while section 85(2) of the Constitution permits persons who have contravened a law to approach a court for relief regarding alleged violations of fundamental rights, and section 175(6)(b) empowers the Court to make just and equitable orders, "allowing TOBAZ to approach this Court is one thing, but allowing it to succeed in this matter is an altogether different proposition."

This case is significant in Zimbabwean constitutional law for its interpretation of standing requirements under section 85(1) of the Constitution. It establishes that an association seeking to enforce constitutional rights on behalf of its members must demonstrate that the claimed rights fall within the scope of its constitutional objectives and the business interests of its members as defined in its constituent instrument. The judgment also reinforces that courts will not grant constitutional relief to condone or perpetuate illegal conduct, and that fundamental rights such as the freedom to carry on a profession, trade or occupation under section 64 are subject to legitimate regulatory requirements imposed by law. The case demonstrates the Court's unwillingness to allow constitutional rights claims to be used as a shield for ongoing statutory violations, particularly criminal conduct. It also clarifies the evidentiary burden on applicants claiming to represent class or public interests, requiring meaningful evidence of prejudice to the affected parties.