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, 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 the Tour Operators Business Association of Zimbabwe, its members were previously entitled to arrange temporary insurance cover, and did, in fact, do so until February 2010, when the Motor Insurance Pool and the Zimbabwe Revenue Authority concluded an agency agreement, with the tacit concurrence of the Insurance and Pensions Commission, the purpose of which was to confine the issuance of such cover to the Motor Insurance Pool and the Zimbabwe Revenue Authority.
The latter then published a notice to that effect and proceeded to issue insurance cover on behalf of the former.
The Tour Operators Business Association of Zimbabwe avers that the Motor Insurance Pool, as an association of insurers, cannot itself issue insurance cover or authorise the Zimbabwe Revenue Authority 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 the Tour Operators Business Association of Zimbabwe is a declaratur that it and its members have been denied the above-mentioned constitutional rights and that the agency agreement between the Motor Insurance Pool and the Zimbabwe Revenue Authority is consequently null and void.
The Tour Operators Business Association of Zimbabwe also seeks a mandamus compelling the Zimbabwe Revenue Authority to accept insurance cover obtained from any registered, licensed, and approved insurer.
The Motor Insurance Pool 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 Motor Insurance Pool and the then Minister of Roads and Road Traffic.
In terms of this later agreement, nominated members of the Motor Insurance Pool were authorized to issue temporary insurance permits to motorists entering the country. The effect of the agreement was to approve the members of the Motor Insurance Pool as issuers of policies of insurance in respect of foreign motor vehicles, in terms of the precursor to section 23(1)(a)(i) of the Road Traffic Act, for the purposes of Part IV of the Road Traffic Act.
The Motor Insurance Pool avers, that, its registered and approved members are legally authorised to issue temporary insurance permits and collect premiums, either directly by themselves or through the Zimbabwe Revenue Authority as the duly appointed agent of the Motor Insurance Pool.
Insurance cover for foreign motor vehicles represents a very small section of the motor insurance market. Thus, its 2010 agency agreement with the Zimbabwe Revenue Authority does not constitute a monopoly, nor does it contravene the Insurance Act, the Road Traffic Act, or the Competition Act.
Moreover, the members of the Tour Operators Business Association of Zimbabwe 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 Insurance and Pensions Commission, in its opposing papers, abides by the grounds of opposition advanced by the Motor Insurance Pool.
The Zimbabwe Revenue Authority 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 Motor Insurance Pool, acting through its members, acquired the requisite statutory approval to issue temporary insurance cover for foreign motor vehicles. Thereafter, it duly mandated the Zimbabwe Revenue Authority as its agent to issue insurance cover and collect premiums on its behalf.
In contrast, the Tour Operators Business Association of Zimbabwe and its members are not authorized 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, the Tour Operators Business Association of Zimbabwe 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:
(i) Whether the Minister of Transport (the Minister) should have been joined in these proceedings.
(ii) Whether the Tour Operators Business Association of Zimbabwe and/or its members have the requisite locus standi to bring the present application.
(iii) Whether the Tour Operators Business Association of Zimbabwe and its members are entitled to the relief that they seek.
(iv) Whether the agency agreement between the Motor Insurance Pool and the Zimbabwe Revenue Authority operates to violate the constitutional rights of the Tour Operators Business Association of Zimbabwe, its members, and local or foreign motorists. (This question only arises for determination if the first three issues are decided in favour of the Tour Operators Business Association of Zimbabwe)....,.
The Applicant's Locus Standi
Section 85(1) of the Constitution delineates the categories of legal standing available for the enforcement of fundamental human rights and freedoms as follows:
“(1) Any of the following persons, namely –
(a) Any person acting in their own interests;
(b) Any person acting on behalf of another person who cannot act for themselves;
(c) Any person acting as a member, or in the interests, of a group or class of persons;
(d) Any person acting in the public interest;
(e) Any association acting in the interests of its members;
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”
Counsel for the applicant submits that this application is instituted on two different bases recognised in subsection (1) of section 85 of the Constitution:
(i) The first arises from paragraph (e) of that subsection, where the Tour Operators Business Association of Zimbabwe is acting in the interests of its members to protect their right to equal protection and benefit of the law, under section 56 of the Constitution, and their freedom of profession, trade or occupation, under section 64 of the Constitution.
(ii) The second basis accrues from paragraphs (c) and (d), where the Tour Operators Business Association of Zimbabwe is acting in the interests of a group or class of persons, and in the public interest, to protect the rights of foreign motorists, and the general public, to the freedom of contract, implicit in the freedom of association under section 58 of the Constitution, so as to contract with insurers of their choice and thereby obtain cheaper insurance cover.
The fundamental rights and freedoms invoked by the Tour Operators Business Association of Zimbabwe are enunciated in the Constitution as follows:
“56(1) All persons are equal before the law and have the right to equal protection and benefit of the law.”
“58(1) Every person has the right to freedom of assembly and association, and the right not to assemble or associate with others.
(2) No person may be compelled to belong to an association or to attend a meeting or gathering.”
“64. Every person has the right to choose and carry on any profession, trade or occupation, but, the practice of a profession, trade, or occupation may be regulated by law.”
According to counsel for the applicant, the violation of the rights enshrined in these provisions stems from the monopolistic and restrictive arrangement between the Motor Insurance Pool and the Zimbabwe Revenue Authority, which hinders the members of the Tour Operators Business Association of Zimbabwe from obtaining insurance cover specifically for their foreign clients. It also operates to restrict access to insurance cover generally by members of the motoring public.
As regards the first basis proffered by the Tour Operators Business Association of Zimbabwe for its legal standing in this matter, it is necessary to consider the provisions of its own Constitution which was adopted on 17 August 2012.
In terms of clause 3(a), the principal objective of the association is to promote tourism activities in the country and the business interests of its members in the tourism industry. Its other objectives elaborate this principal objective and are essentially incidental to that objective. Under clause 4(a), the membership of the Tour Operators Business Association of Zimbabwe consists of companies, bodies or organisations, and individuals that are in the tourism industry.
As is indisputably evident from the provisions of its Constitution, the objectives of the Tour Operators Business Association of Zimbabwe, and the business of its members, are confined to the tourism industry. They are not registered insurers or brokers or licensed insurance agents. They have no legal interest in the issuance of insurance or insurance brokering or in any other form of insurance activity.
Their constituent instrument is entirely silent in that regard.
To put it colloquially, insurance is none of their business.
On this premise, it is not possible to ascribe to the Tour Operators Business Association of Zimbabwe any legal standing to enforce its members right to equal protection and benefit of the law or their freedom to trade in the specific sphere of insurance.
