COLUMN | Highway robbery: For Whom the Tolls Pay

Common Law with Mike Murenzvi

“In law, nothing is certain but the expense” ~ Samuel Butler

In his 2024 National Budget speech, Finance Minister Mthuli Ncube proposed to increase road toll fees across the nation’s highways. He designated some of the highways as “premium roads.”

On 5 January 2024, the Zimbabwe National Roads Administration (ZINARA) increased these toll fees to US$3 and US$4 for light motor vehicles on other roads and premium roads respectively. This was done without an enabling statutory instrument (SI).

Two full weeks later, on 19 January 2024, SI 5/2024, Toll Roads (National Road Network) (Amendment) Regulations, 2024 (No. 16) was gazetted which legally brought the new toll fees into effect.

Not as simple as it sounds

A general rule of law is that it should apply prospectively, meaning it comes into force either on the day it is gazetted or a future date and applies to things from that date going forward.

The reason for this general rule is that you can’t change the past or make people liable for something that wasn’t there at the time of action. That would be unfair.

In this case, the legal instrument for the increase in toll fees was gazetted two weeks after the tolls were brought into effect by ZINARA, meaning that there was likely unjust enrichment by the roads authority.

To make matters worse, the SI’s effective date is backdated to 1 January 2024, which is improper for the reasons stated above.

What else do the regulations say?

The regulations also state what roads are classified as premium roads, which are the Plumtree-Bulawayo-Harare-Mutare and Beitbridge-Masvingo-Harare highways. The designated tolling points along those roads are also listed.

Where the Harare-Mutare route had three toll gates, Goromonzi, Rusape, and Odzi, an additional one has been gazetted at the 24 km peg, just before the Goromonzi turn-off. This is a mere 10.5 km before the existing Goromonzi toll gate which is at the 34.5 km peg.

An additional toll gate has also been added to the Harare-Masvingo route, 14 km before Chivhu at Honeyspruit. Another one has been added to the Masvingo-Beitbridge route, 25.5 km from Rutenga at Mwenezi.

This brings the total number of toll gates from Harare to Beitbridge to six, up from four.

Why are some roads designated as premium?

In his National Budget speech, Ncube didn’t expand on the rationale of designating the Plumtree-Mutare and Harare-Beitbridge roads as premium roads. However, an educated guess suggests that these roads are the ones with the highest levels of traffic and the most recently constructed and repaired. Government is still paying off a loan to DBSA for the widening and part the dualisation of the Plumtree-Mutare road by the contractor Group 5. A significant portion of toll fees collected on that road is paid to the lender.

As for the Harare-Beitbridge road, this was self-funded by Government when ideally they should have raised money from the markets in the form of bonds and treasury bills.

Had it not been for the general outcry and intervention of Parliament, the original proposal would have increased toll fees to US$5 for premium roads and US$4 for all other roads for light motor vehicles.

Concerns

The retroactive application of the regulations is concerning, along with the early implementation by ZINARA. Clearly, Government has a problem with announcing things, implementing them, and then legalising it all. This has also applied to other taxes.

Another concern is the short distance between the existing Goromonzi toll gate and the proposed one. There is nothing of immediate significance between the two locations that would warrant the placement of tollgates within 10 km of each other on the same highway. This needs to be reviewed and addressed, preferably before construction and/or implementation of the toll gate.

Parliamentary review

As always, Parliamentary review of SIs is key to the maintenance of good governance and the curbing of latitude taken with the law. When Parliament reconvenes at the end of January, their work will already be cut out for them.

UPDATE: ZINARA has since issued a statement to say that no new toll gates have been gazetted on the Harare-Mutare and Harare-Beitbridge roads, but rather these are points that haven’t been built as yet.  The recent SI had included all identified “tolling points”, some of which are yet to be established as toll gates.

ALSO READ | End of the road: After defaulting, Zimbabwe to restructure remaining US$165m DBSA debt for Plumtree-Mutare highway

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Mike Murenzvi writes in his personal capacity and his views are not associated with any organisation he is or may be affiliated with.