Common Law with Mike Murenzvi
“Fools say that they learn by experience. I prefer to profit by others’ experience.”― Otto von Bismarck
On 4 June 2020, the Minister of Finance, Mthuli Ncube, gazetted Statutory Instrument 123A of 2020 – Finance (Amendment of Sections 22E(1) and 22H of Finance Act) Regulations, 2020.
As the name suggests, the regulations make amendments to specific sections of the Finance Act. These sections relate to levies on the price of fuel; the Carbon tax, and the NOCZIM debt redemption and strategic reserve levy.
The effects of SI 123A/2020 are as follows:
Why is this a big deal?
It has been mentioned in previous articles that the Finance Minister has a penchant for making tax-related changes with almost total disregard for the law.
In a September 2019 High Court judgment, Justice Happias Zhou ruled that the use of a statutory instrument to change substantive law was an infraction on the separation of powers principle in our legislation. This was a case against SI 205/2018 that introduced the 2% Intermediated Money Transfer Tax.
To quote Justice Zhou in judgment HH 605-19:
“A Minister, who is a member of the Executive, or any other arm or agency of Government does not have the power to amend, repeal or enact and Act of Parliament. Only the Legislature has that power. The Legislature is precluded by the constitution from delegating that power to any other authority. The respondent cannot therefore claim to have been authorized to exercise that power by section 3 of the Finance Act.”
Both SI 123A/2020 and SI 205/2018 were made, “in terms of section 3 of the Finance Act”.
What should be done?
Ideally, the Minister of Finance should immediately repeal SI 123A/2020 which will result in a reduction in the price of fuel and the amount of taxes collected by government. At the same time, he should gazette a Bill to amend the relevant sections of the Finance Act in the manner he has proposed in the offending SI.
But through experience, he will wait for the Parliamentary Legal Committee to first review all SIs gazetted for the month of June, a process that will most likely be reported on in August, and will probably not pick up the violation of the law.
This means that we will remain illegally taxed until there is another challenge, which will be finalised long after substantive changes have been made to the Finance Act via the Budget Bills.
Another alternative that may bring urgent attention to the matter is for legislators to raise the matter directly and call upon the PLC to undertake an urgent review of the SI and force its swift repeal.
The first instance of this “mistake” in 2018 may have been genuine in that the law was untested and unchallenged under the 2013 Constitution. Now that a ruling was made on the limits of delegated legislative power, this recent action can only be viewed as deliberate.
The views expressed in this article are the author’s personal opinions and should in no way be interpreted to represent the views of any organisations that he is associated or connected with. Feedback is greatly encouraged in the comments section below.