Minibus Operators Association of Malawi (MOAM) does not have authority to collect levies, fees and other dealings from minibuses at the Mibawa Bus Depot and other places in Blantyre but the Blantyre City Council.
A High Court ruling made on Wednesday, March 28, 2018 by Judge R. Mbvundula says the legislature expressly vested that power in the local authority and in no other person or body of persons.
Blantyre City Council joined Clifford Mbuluma in suing MOAM. Mbuluma entered into a contract with the City Council in which he was empowered to manage traffic services, remedy defects in such services and collect parking fees on all vehicles using the area in the city referred to as Lot 5 comprising the area comprising Lot 5 (Mibawa Minibus Terminal, Blantyre Bus Stands and Minibus Terminal opposite Blantyre Market).
Under the contract, Mbuluma is also bound to remit to the City Council the monthly sum of K2,293,200 for the Blantyre Zone Street Parking area where he was to operate.
The court heard that the dispute between the parties relates to the collection of fees and levies from minibuses operating in the city of Blantyre.
“The first plaintiff was granted an order of interlocutory injunction, ex-parte, ‘restraining the Minibus Owners Association of Malawi Limited and all its agents or servants from collecting or levying toll fees on minibuses, or doing anything related to the plaintiff’s mandate and functions, on Lot 5 of Blantyre City, which is made of Mibawa Minibus Terminal, Blantyre Bus Stands and Minibus Terminal opposite Blantyre Market, until the final determination of the Originating Summons or until further order;’
“Section 6 (l) (a) of the Local Government Act (Cap. 22:01) empowers local government councils ‘to make policy and decisions on local governance and development for the local government area’. In relation to Blantyre City Council this power is in respect of the Blantyre City area. Under section 5 (l) (d) of the Second Schedule to the Act councils are empowered to, among other things, provide and maintain bus shelters and vehicle parking places and to levy charges on any parking place.
“Under section 13 (3) of the Second Schedule the council may enter into an agreement for the collection of any charge or fee by any body or person upon such terms as may be agreed between the parties.”
The court heard that the defendants have been and are collecting toll fees from minibuses in car parks or minibus terminals in the area covered by the contract and in other parts of the city and Mbuluma sought legal determination because the action of MOAM affected his capacity to collect maximally and placed him at the risk of defaulting in his obligations to pay the monthly remission to the Council.
“His efforts to engage the defendants in the matter have not been successful.”
City Council decided to support Mbuluma since they have not, by agreement as provided for under the Second Schedule to the Act, or otherwise, delegated to MOAM the power to levy tolls and fees, the defendants have been and are acting illegally.
MOAM argued that it is entitled to collect the toll, parking and exit fees, saying there is a Memorandum of agreement with the Council to that effect which was exhibited in court.
But the document tendered was unsigned and the Judge said as such; “No agreement between either of the defendants and its members was presented in this court. This court therefore takes the view that no such agreement has ever existed.
The Blantyre City Council supports Mr Mbuluma’s position. The Council confirms the agreement with Mr Mbuluma. It is also a fact that the defendant has never been authorised to collect any fees or levies by the Council. The council is opposed to such collection.
“Both the assertion that there was an agreement between the defendants and the Council, and that the defendants were entitled to levy charges by virtue of an agreement with their members were challenged by the plaintiffs.
“In particular it was argued that even if the alleged agreement between the Council and the defendants had at some point subsisted, the same would, by the time the injunction was obtained, have expired by effluxion of time, a fact that would seem correct from the aforesaid documents put in evidence by the defendants.
‘The alleged agreement with the Council is ineffectual for two reasons. The first is that it was not executed by the parties. The second is that even if it had been executed, the same would have ceased to have effect by effluxion of time as, on a reading thereof, it had been intended to have been effectual for the five year period commencing on 1st January 2008.
The five year period from 1st January 2008 would have ended on 31st December 2013. This action was commenced in 2016, three years thereafter. The defendants cannot rely on those arrangements.
“The only question which, therefore, remains to be resolved, in view of the foregoing, is whether the defendants can rely on the alleged agreement with their members for the defendants to be levying fees, by whatever name the same may be referred to.
“The view of this court is that they cannot. The reason is that the legislature has expressly vested that power in the local authority and in no other person or body of persons. Anyone purporting to do so usurps the local authority’s express statutory power,” Judge ruled.Follow and Subscribe Nyasa TV :