In pursuit of its Constitutional mandate as provided for in Section 152 of the Constitution of Zimbabwe, the Parliamentary Legal Committee on the 14th of August 2015 at 1100hrs to consider amongst others, statutory instruments gazetted during the month of July 2015. After deliberations, the Committee unanimously resolved that an adverse report be issued in respect of Statutory Instrument 77 of 2015. In compliance with Standing Order 32 (3), members of the Committee legally qualified as envisaged by section 152(2) of the Constitution unanimously agreed that the statutory instrument is ultra vires the State Liabilities Act [CAP 8:14] due to the following considerations:
Statutory Instrument 77 of 2015 – Presidential Powers (Application of Cap 8:14 to Premier service Medical Aid Society) Regulations, 2015
Statutory Instrument 77 of 2015 is issued by proclamation in terms of section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20], which is the enabling legislation as read with the State Liabilities Act [Chapter 8:14]. The Statutory Instrument is ultra vires the State Liabilities Act in that it seeks to apply provisions of the Act to the Premier Service Medical Aid Society, which is not a State controlled entity. The preamble to the State Liabilities Act states that it is an
Act to impose liabilities upon the State in respect of acts of its employees.
Premier Service Medical Aid Society is a private company controlled by a Board of Directors. Medical Aid Societies are regulated by Statutory Instrument 330 of 2000 which regulations are administered by the Minister of Health and Child Care is also responsible for issuance and renewal of operating licences to all medical aid societies. Government only contributes about eighty percent to PSMAS through subscriptions of its employees but that does not make it a parastatal and as such the provisions of the State Liabilities Act cannot be applicable to PSMAS. Furthermore liability upon the State must be as a result of the acts of its employees of which the employees of PSMAS are not part of the Civil Service.
In terms of section 4 of the State Liabilities Act, the Minister responsible for a Ministry or department is cited as the nominal defendant or respondent in any action or proceedings instituted in terms of the Act. In the result of a judgement in favour of a person suing the State, section 5 of the Act provides that no execution or attachment of property of the State shall be issued against the State but that the nominal defendant or respondent may cause it to be paid out of the Consolidated Revenue Fund. This provision is not applicable to debts of PSMAS in the event of a judgment being granted against the institution as the Consolidated Revenue Fund cannot be used for purposes outside the scope of the provisions of Part 2 of Chapter 17 of the Constitution.
By a unanimous resolution the Committee hereby issues an adverse report in respect of Statutory Instrument 77 of 2015.
Hon. J. Samukange
PARLIAMENTARY LEGAL COMMITTEE