High Court challenge for Zupco ‘monopoly’

Mashudu Netsianda, Senior Court Reporter
COMMUTER omnibus owners in Bulawayo, operating under the banner ‘Tshova Mubaiwa Transport Co-operative Company’ have approached the High Court challenging Government’s decision to have their kombis operate under the Zimbabwe United Passenger Company (Zupco) franchise.

Due to the lockdown restrictions, only Zupco buses and kombis are allowed to operate while privately-run commuter omnibuses remain banned.

Local Government and Public Works Minister July Moyo recently said there were no prospects of commuter omnibuses returning on the roads as Government is working on strengthening urban bus transport system through Zupco in order to bring sanity in cities and towns.

Tshova Mubaiwa Transport Co-operative Company Private Limited, through their lawyers Mashayamombe and Company Attorneys, have filed an application at the Bulawayo High Court citing President Mnangagwa, Minister of Health and Child Care Dr Obadiah Moyo, Minister July Moyo and Police Commissioner General Godwin Matanga as respondents.

Tshova Mubaiwa Transport Co-operative Company wants an order reviewing and nullifying Government’s decision.

In his founding affidavit, the chairman of the board of directors of Tshova Mubaiwa Transport Co-operative Company, Mr Atlas Moyo said the decision by Government to ban kombis in terms of section 4 (2) (a) of the Public Health (Covid-19) Prevention, Containment and Treatment (National Lockdown) Order of 2020, is irrational and an act of illegality.

He also argued that it is a violation of their constitutional rights.

“This is an application to review and set aside section 4 (2) (a) of the Public Health (Covid-19) Prevention, Containment and Treatment (National Lockdown) Order of 2020. The section of the regulation reads: ‘transport services, whether intracity or inter-city, for the carriage of passengers shall be restricted to those provided by the parastatal company known as Zupco,” said Mr Moyo.

He said their organisation is a registered company operating in terms of the laws of the country hence its members have freedom of profession, trade or occupation which have been infringed by the regulation which restricts operations of its kombis to only those who register and operate under Zupco.

“Prior to the declaration of Covid-19 as a state of national disaster, the applicant carried on business as a public transport service provider without restrictions. It was a direct competitor in the market with Zupco. In order for it to ply urban routes each vehicle had to be issued with the permits, licences and authorisations and our members religiously complied with those requirements,” said Mr Moyo.

“Applicants contends that section 4 (2) (a) of the Public Health (Covid-19) Prevention, Containment and Treatment (National Lockdown) Order of 2020 is unlawful to the extent that it violates its rights to fair administrative action.”

Mr Moyo said in direct comparison, commuter omnibuses and buses operating under Zupco franchise have no designated pick up and drop off points resulting in them causing a constant barrier for free flow of vehicular and human traffic.

“The rationale behind the National Lockdown regulations is to prevent and contain the spread of Covid-19. Applicants and its members are able to strictly comply with social distancing regulations. Equally, applicant and its members are able to sanitise their vehicle twice daily as required and to ensure that all passengers wear face masks and have their temperatures checked before boarding,” he said.

Mr Moyo said Zupco was failing to meet the demand resulting in commuters spending long hours in queues waiting to board buses.

“In the circumstances, applicant would submit that the administrative actions taken by Health Minister Dr Moyo in setting a precondition for resumption of operations as joining Zupco is devoid of lawfulness, rationality and fairness. It is not a decision taken in good faith with the legitimate intentions of preventing, containing and treating Covid-19,” he said.

Mr Moyo said the decision by Government was designed to establish Zupco, which all along has been a competitor, as a monopoly in the market. “Applicant submits that it has shown good and sufficient cause for the relief it seeks. In the premises, the application seeks an order declaring section 4 (2) (a) of the Public Health (Covid-19) Prevention, Containment and Treatment (National Lockdown) Order of 2020 as being unlawful, irregular and invalid. Consequently, it should be reviewed and set aside,” he said.

Tshova Mubaiwa has been providing intracity transport services for the past 34 years. The organisation has 1 635 kombis registered under its franchise. — @mashnets

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