The High Court in Blantyre has stopped Malawi Energy Regulatory Authority (Mera) from further implementing its new regulations and guidelines in the retail market for liquid fuels and gas.
This follows a court order obtained by Lilongwe-based business operators Omega Holdings Limited requesting the court to declare null and void the Liquid Fuel and gas (Production and Supply) (Amendment), 2017 Regulations and the Standards and Requirements for Construction and Decommissioning of Retail Outlets.
The authority is in the process of enforcing regulations which were approved by Parliament in 2004 and became effective in September 2017.
But according to an order seen by The Nation, the court has granted Omega Holdings Limited, through lawyer Wapona Kita, permission to apply for judicial review meaning the authority is stopped from further implementing the regulations until a final determination is made on the matter.
Reads part of the order: “As a consequence of this grant of permission, we order that the implementation of the (a) Liquid Fuels and Gas (Production and Supply) (Amendment), 2017 Regulations and (b) the Standards and Requirements for Construction and Decommissioning of Retail Outlets dated the 5th of October 2017 be and are hereby suspended/stayed until the final determination of this matter.”
The applicants sought relief from the court to, among others, order the quashing of the Liquid Fuel and Gas (Production and Supply) (Amendment), 2017 Regulations and the Standards and Requirements for Construction and Decommissioning of Retail Outlets.
Among others, the applicants argued that the decision was vitiated in law and warrants the intervention of the court in the exercise of its jurisdiction as the said set standards have the effect of creating unfair competition among retail service operators.
Under the new guidelines, no filling station will be allowed to be constructed if the proposed site is located within a one-kilometre radius from an existing operational service station unless exemptions are provided.
Further, the 2004 law states that no person or business entity shall carry out modification or any activity of a filling station without notifying the authority and obtaining a licence for such activity.
Currently, Mera is carrying out inspections across the country to assess the operational safety of service stations. There are about 225 registered filling stations in Malawi with several others operating illegally, especially in rural areas.
But in an interview yesterday Mera chief executive officer Collins Magalasi said they had not been served with the order as such they were proceeding with the implementation.
“We have not been served, therefore, for us nothing has changed. We are continuing with the implementation,” he said.
On January 30 2018, civil society organisations (CSOs) under the Human Rights Consultative Committee (HRCC) and the Forum for National Development (FND) wrote Magalasi complaining over what it described as “discriminative provisions” in the new regulations.
The CSOs then proposed to Mera to review the guidelines together with players in the sector and also completely remove limitations on distance since some of the measurements are self-regulatory.
In a separate interview, HRCC board chairperson Robert Mkwezalamba said they were happy with the court’s position as the guidelines were not in line with the Competition and Fair Trading Act that disapproves of discrimination in doing businesses.