Zimbabwe's government has urged the Constitutional Court to dismiss concerns about its mandatory addition of ethanol to petrol.
The Constitutional Court case in which a motorist is challenging the government's mandatory blending of fuel with ethanol has become a political mudslinging match with both Zanu-PF and the Movement for Democratic Change (MDC) using it to score points.
Tabani Mpofu is seeking an order to declare mandatory blending unlawful on the grounds that it violates his freedom of choice, is not economical and may damage vehicles.
In a notice of opposition filed at the court, the Zimbabwe Energy Regulatory Authority (Zera) and Green Fuel Private Limited, which together with the energy ministry, are cited as respondents, have defended the government's decision to embark on mandatory fuel blending.
But it's the politics that is muddying the waters. Green Fuel said mandatory blending was being resisted to advance the political agenda of those opposed to the government.
The firm also accuses the former energy and power development minister, Elton Mangoma, of using privileged information he received while in Cabinet to aid Mpofu's bid to stop mandatory blending.
Mangoma is the MDC deputy treasurer general and has provided a supporting affidavit in Mpofu's case. He has made himself available to testify in court.
Mangoma not aware of a joint venture
Zera says Mangoma supported mandatory blending while he was in the Cabinet. The law firm of Tendai Biti, the MDC secretary general and former finance minister, is representing Mpofu.
In the papers he filed, Mangoma says he is not aware of a joint venture between Green Fuel and the government.
Government regulations stipulate that those who want to produce ethanol for mandatory blending must be licenced in a joint venture with the state Green Fuel, through its director Paul Norman Smith, said Mangoma was not only violating the Official Secrets Act by "abusing" information he got in the course of his duties, but was also advancing a political agenda.
Smith said the MDC had intended to advance mandatory blending of fuel if it had won the elections in July last year.
"It is clear that the former minister [Mangoma] is acting in bad faith to make cheap political gains. He was the responsible minister at the time the regulations were promulgated.
"His mala fides is further manifested by the fact that the political party to which he belongs to – the MDC – itself embraced the ethanol project as a viable idea. The MDC 2013 policy handbook titled Agenda for Real Transformation shows that the MDC intended to make ethanol blending compulsory, if it had won the elections in July 2013."
Blending of ethanol to be made compulsory
Smith attached an annexure of the policy handbook, which lists ethanol as one of the country's primary energy sources and, on page 82, the party acknowledged that Zimbabwe had introduced mandatory blending.
The policy handbook stated that the MDC government would "stimulate and sustain the development and expansion of biofuels to meet the country's liquid needs.
"It will also make the blending of ethanol compulsory."
Zera chief executive officer Gloria Magombo said it was unacceptable that Mangoma was using information he received while he was a minister in the case.
She also said Mangoma was the minister when the regulations were put in place and questioned why he did not raise queries at the time but only did so after leaving office.
"Surely he cannot disown actions done by his office under his ministry," she said in her papers.
Mpofu's rights 'violated'
Mpofu said his freedom of choice and his right to fairness, which are enshrined in the Constitution, had been violated as he had no desire to use blended fuel.
He also argued that no independent studies were done to establish the safety of ethanol for vehicles. Mpofu also said some vehicles had been damaged because of blended fuel.
Mpofu said Green Fuel was using its "captive monopoly position" to overcharge by selling anhydrous ethanol for 95 cents a litre whereas the average international price was about 60c a litre.
He also questioned why fuel dealers could only buy ethanol from Green Fuel and not from other producers.
Zera and Green Fuels both insist that adequate research was done before mandatory blending was introduced and challenged Mpofu to provide evidence that some vehicles had been damaged by ethanol.
Zera said it did its own research and Green Fuel said that extensive research had been done by experts. Smith cited research done by the Industrial Development Corporation of Zimbabwe on behalf of the government in 1985 as an example.
Smith also said environmental scientists supported the ethanol project and provided a 2012 document prepared by Professor Christopher Chetsanga titled Making Sugar Cane Based Ethanol Our Green Fuel: Copying Brazil and Its Flex-Fuel Cars.
He also mentioned that other countries, including Malawi, had conducted research that established that E20 fuel can be used in petrol vehicles without the engines needing modifications.
Smith said the ethanol project had brought immense benefits to Zimbabwe that include a lower national fuel import bill, reduction in carbon emissions from vehicles, employment for thousands of people and rural development.
On the pricing of ethanol, Zera said reference or comparison with ethanol produced elsewhere was misleading.
The authority said a pricing methodology had been developed based on international best practice.
Zera said the decision to introduce mandatory blending was taken in the national interest and denied that Mpofu's rights were infringed.
The authority also said the Constitution does not list freedom of choice as a fundamental right or a guaranteed right, and that "there is no such thing as freedom of fairness".
Magombo also said section 86 of the Constitution allows for the limitation of fundamental rights and freedoms if "such limitation is fair, reasonable, necessary and justifiable in a democratic society".
"Therefore assuming that there was any such violation, which is not accepted, it is obvious that the second respondent [Minister of Energy, Dzikamai Mavhaire] deemed it necessary to limit such rights for the greater good," said Magombo. She urged the court to dismiss the application with costs.