TOUR OPERATORS BUSINESS ASSOCIATION OF ZIMBABWE
(1) MOTOR INSURANCE POOL (2) ZIMBABWE REVENUE AUTHORITY (3) INSURANCE AND PENSIONS COMMISSION (4) ATTORNEY-GENERAL OF ZIMBABWE
CONSTITUTIONAL COURT OF ZIMBABWE
CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC,
GWAUNZA JCC, GARWE JCC, GOWORA JCC,
HLATSHWAYO JCC, PATEL JCC & GUVAVA JCC
HARARE, 14 JANUARY & 25 JUNE, 2015
L. Uriri, W. Chinamhora and N. Chasi, for the applicant
T. Magwaliba, for the respondents
PATEL JA: The applicant, Tour Operators Business Association of Zimbabwe (TOBAZ), is an association of registered tour operators. Among other things, it buys and arranges insurance services for foreign tourists, including motor vehicle insurance for foreign vehicles entering Zimbabwe.
The first respondent is named the Motor Insurance Pool (the MIP) and is an association of insurers. The second respondent is the Zimbabwe Revenue Authority (ZIMRA). The third respondent is the Insurance and Pensions Commission (the I&PC), a statutory body responsible for the regulation of insurance and pension business in Zimbabwe. The Attorney-General is cited as an interested party who might wish to intervene in these proceedings.
It is common cause that foreign vehicles are required by law to have a temporary import permit coupled with valid insurance cover for the duration of the permit. According to TOBAZ, its members were previously entitled to arrange temporary insurance cover and did in fact do so until February 2010, when the MIP and ZIMRA concluded an agency agreement, with the tacit concurrence of the I&PC, the purpose of which was to confine the issuance of such cover to the MIP and ZIMRA. The latter then published a notice to that effect and proceeded to issue insurance cover on behalf of the former.
TOBAZ avers that the MIP, as an association of insurers, cannot itself issue insurance cover or authorise ZIMRA to do so as its agent. This is because they do not qualify as licensed insurers under the Insurance Act [Chapter 24:07] or approved insurers under the Road Traffic Act [Chapter 13:11]. Their agency agreement is not only ultra vires those statutes but also creates a monopoly in breach of the Competition Act [Chapter 14:28]. In the constitutional context, the agreement operates to infringe its members’ freedom of profession, trade or occupation as well as their right to equal protection of the law. It also violates the freedom of contract implicit in the freedom of association by imposing a contracting party on foreign motorists.
The relief sought by TOBAZ is a declaratur that it and its members have been denied the above-mentioned constitutional rights and that the agency agreement between the MIP and ZIMRA is consequently null and void. TOBAZ also seeks a mandamus compelling ZIMRA to accept insurance cover obtained from any registered, licensed and approved insurer.
The MIP is an association formed under an agreement concluded between several registered insurers and executed on 16 December 1964. Pursuant to its formation, a further agreement was concluded on 4 January 1965 between the MIP and the then Minister of Roads and Road Traffic. In terms of this later agreement, nominated members of the MIP were authorised to issue temporary insurance permits to motorists entering the country. The effect of the agreement was to approve the members of the MIP as issuers of policies of insurance in respect of foreign motor vehicles, in terms of the precursor to s 23(1)(a)(i) of the Road Traffic Act, for the purposes of Part IV of the Act.
The MIP avers that its registered and approved members are legally authorised to issue temporary insurance permits and collect premiums, either directly by themselves or through ZIMRA as the duly appointed agent of the MIP. Insurance cover for foreign motor vehicles represents a very small section of the motor insurance market. Thus, its 2010 agency agreement with ZIMRA does not constitute a monopoly, nor does it contravene the Insurance Act, the Road Traffic Act or the Competition Act. Moreover, the members of TOBAZ are not brokers or providers of insurance in terms of its own Constitution. Therefore, the agency agreement does not in any way restrict their right to carry on any trade or profession as brokers or insurers. (The I&PC, in its opposing papers, abides by the grounds of opposition advanced by the MIP).
ZIMRA takes the point in limine that the administration of motor insurance cover for foreign motor vehicles is the prerogative of the Minister of Transport who appoints approved parties to implement the relevant provisions of the Road Traffic Act. Consequently, he should have been cited as a party to these proceedings, and the failure to do so constitutes a material non-joinder. It is further averred that the MIP, acting through its members, acquired the requisite statutory approval to issue temporary insurance cover for foreign motor vehicles. Thereafter, it duly mandated ZIMRA as its agent to issue insurance cover and collect premiums on its behalf. In contrast, TOBAZ and its members are not authorised to issue short term insurance cover to foreign motorists. It should therefore apply to the Minister of Transport for approval under the Road Traffic Act if its members wish to venture into motor insurance.
In its answering affidavit, TOBAZ adopts a more limited approach to its insurance activities. It accepts that it and its members are not registered insurers engaged in the business of issuing insurance policies. Its members do not wish to issue such policies but merely to arrange insurance cover for local and foreign tourists. It contends that they have a right to do so and cannot be restricted in that regard.
The issues for determination in this matter, as I perceive them, are as follows:
- Whether the Minister of Transport (the Minister) should have been joined in these proceedings.
- Whether TOBAZ and/or its members have the requisite locus standi to bring the present application.
- Whether TOBAZ and its members are entitled to the relief that they seek.
- Whether the agency agreement between the MIP and ZIMRA operates to violate the constitutional rights of TOBAZ, its members and local or foreign motorists. (This question only arises for determination if the first three issues are decided in favour of TOBAZ).