At the conclusion of the hearing of this matter in the High Court, the court, inter alia, granted absolution from the instance in respect of the appellant's claim for general damages, future expenses, and replacement value for his motor vehicle.

It is only against that portion of the judgment that the appellant has appealed to this Court.

The facts of this case are as follows:

On 23 July 2006, the appellant was involved in a serious road accident with the respondent at the intersection of Breach Road and Kingsmead Road in Borrowdale, Harare. As a result of the accident, the appellant sustained serious injuries. He was conveyed to Parirenyatwa Hospital whilst in a coma. Thereafter, he was detained in the High Dependency Unit for seventeen (17) days. He spent seven-and-a-half months at St. Giles Rehabilitation Centre. He spent a total of about one-and-half years undergoing hospitalization.

It was accepted, during the trial, that, prior to the accident, the appellant had been active in sport and that he had been in charge of sport and discipline at St Johns College, Borrowdale. In particular, he was in charge of rugby, swimming, hockey, and athletics at the school.

The court a quo found, on the evidence, that the accident was the result of gross negligence on the part of the respondent.

In considering the appellant's claim for general damages, the court a quo found, as a fact, that the appellant will require surgical operations, regular physiotherapy, and medication for the rest of his life. The court also found that he experiences weaknesses of the forearm and arm on the left side and that he will suffer from pain for a very long time.

A report prepared by Professor Kalangu stated that the lower plexus should show good improvement but did not indicate to what extent he was likely to improve. The court was of the view, that, in the absence of evidence from the two doctors who attended to the appellant, the extent of his disability was debatable.

On that basis, the court a quo granted absolution from the instance.

On the question of future medical attention, the court accepted that the appellant will require transport to attend physiotherapy and rehabilitation and that he will require future medical attention. However, the court reached the conclusion that the plaintiff had failed to show how many sessions he would be required to undertake to enable the court to assess the future expenses that he was likely to incur.

On that basis, the court also granted absolution from the instance.

On the question of the replacement value of the motor vehicle, the court a quo came to the conclusion that since delictual damages are calculated as at the time of the delict, the appellant had failed to explain, satisfactorily, the delay between the time of issuance of the summons and the time when quotations were obtained.

In particular, the court was of the view that consideration of factors such as inflation in the calculation of delictual damages would amount to altering the quantum of the debt and would be in conflict with the principle of currency nominalism.

As a result, the court a quo also granted absolution from the instance.

In his grounds of appeal, the appellant has attacked the decision of the court a quo on three bases. These are:

1. That the court a quo erred in failing to consider the evidence placed before it and thereafter to exercise its discretion to make an award for general damages in favour of the appellant.

2. The court a quo erred in failing to consider the evidence placed before it and thereafter in exercising its discretion to make an award for future medical expenses in favour of the appellant.

3. The court a quo erred in applying the principle of currency nominalism and in failing to exercise its discretion to make an award in favour of the appellant for the replacement value of his motor vehicle.

The appellant seeks an order that paragraph 2 of the order of the court a quo be set aside and that the respondent be ordered to pay;

(a) The sum of US$50,000, being the equivalent of Z$1 billion as at the date of judgment, as general damages together with interest thereon at the rate prevailing in the United States of America from the date of judgment to date of payment in full;

(b) The sum of US$5,000, being future medical expenses together with interest thereon at the rate prevailing in the United States from the date of judgment to the date of payment; and

(c) The sum of US$8,000 being the replacement value of the appellant's motor vehicle.

It is appropriate, at this stage, to consider the approach that has been followed by the Courts in the assessment of damages in general, and special damages in particular.

In Hersman Shapiro & Co 1926 TPD 367, 379-80 STRATFORD J observed:

“…, monetary damage having been suffered, it is necessary for the Court to assess the amount and make the best use it can of the evidence before it.

There are cases where the assessment by the Court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the Court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in those circumstances, the Court is justified in giving, and does give, absolution from the instance.

But, where the best evidence available has been produced, though it is not entirely of a conclusive character and does not permit of a mathematical calculation of the damages suffered, still, if it is the best evidence available, the Court must use it and arrive at a conclusion based upon it…,.”

In Ebrahim v Pittman N.O. 1995 (1) ZLR 176H, 187C-D BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C), 655H-656F that:

“'Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss.…,.'

There must of course be sufficient evidence before the court for it to be in a position to make a proper assessment of damages; for '…, it is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment, and, it is not competent to award an arbitrary approximation of damages to a plaintiff who has failed to produce available evidence upon which a proper assessment of the loss could have been made': per ROSE INNES AJ in Monumental Art Co v Kenston Pharmacy (Pty) Ltd 1976 (2) SA 111 (C) at 118E. See also Mkwananzi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 630.

Thus, where evidence is available to a plaintiff to place before the court to assist it in quantifying damages, and this is not produced, so that it is impossible for the court to do so, or there is no, or quite insufficient evidence which can be produced by an unfortunate plaintiff, he must fail and the defendant must be absolved from the instance…,.”

In, The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT, the learned authors state as follows…,:

“In the case of damages which are capable of exact mathematical computation, such as, for example, medical and hospital expenses, proper evidence establishing the loss and substantiating the precise amount of the claim must be tendered.

Where, on the other hand, mathematical proof of the damages suffered is in the nature of things impossible, then, provided that there is evidence that pecuniary damage in this regard has been suffered, the court must estimate the amount of the damages as best as it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.

However, the application of this principle is dependent upon the plaintiff having adduced the best evidence available to him. Where he has not done so, and the difficulties in assessing the quantum of damages are due to the manner in which he has conducted his case, then the court is justified in ordering, and does order, absolution from the instance.”

The remarks made in the authorities cited above no doubt correctly reflect the law on the approach to damages in bodily and fatal injury cases both in this country and South Africa.

The first ground of appeal that falls for determination by this Court is whether the court a quo erred in failing to consider the available evidence, and, thereafter, making an award for general damages in favour of the appellant.

The amount claimed as general damages before the court a quo was the sum of Z$1 billion as at the date of judgment. The Z$1 billion claimed represented damages for pain and suffering, disability, bodily disfigurement, shock, discomfort, loss of amenities of life, and shortened life expectancy.

The court a quo delivered its judgment on 16 April 2009, and, in respect of this particular claim, granted absolution from the instance. The basis for that decision was that the remark by Dr Kalangu, in his report, that, “lower plexus should show good improvement”, was imprecise. The court a quo was of the view that it was not clear to what extent the improvement would affect the degree of disability. Further, although the report alluded to the need for a repeat study after six months, no such examination appears to have been undertaken. In view of the medical opinion that the appellant's condition could improve with rehabilitation and treatment, the court concluded that the extent of the disability was debatable, and that, therefore, the appellant had not placed sufficient evidence before the court to enable it to make a proper assessment.

It is correct, as the court found, that no further tests were done to ascertain the degree to which the appellant was likely to recover. The fact that the appellant had sustained very serious injuries from which he could never fully recover was common cause. The court accepted, that, following the accident, he had had to be hospitalized for about one-and-a-half years. The court accepted the report by Dr Kalangu, that, the appellant had sustained “complete paralysis of the left and complete paralysis of both lower limbs” (sic). The radiological investigations had revealed a fracture of the left clavicle, fracture of the spine in C5 and C6 and dislocation of the vertebra in C5-6 associated with spinal cord compression. Dr Kalangu estimated the percentage of disability at 60%. He further found that the appellant will have pain for a long time and he will require physiotherapy.

The court also accepted the report by Professor Meikle, of the Clinical Neurophysiology Laboratory, Harare Hospital, that the appellant had weakness of all the muscle groups in the left arm with no movement in the shoulder and elbow muscles. The Professor found the upper plexus to have been seriously injured with no sign of recovery “at present” but the lower plexus was expected to show good improvement.

Although the Professor recommended repeat studies in six months, as already noted, nothing further appears to have happened after the preparation of that report.

The court a quo found that the accident had had a serious effect on the appellant, who, before the accident, had been in charge of sport at St Johns College, Borrowdale, and had generally been active in short. His condition, after the accident, had also affected his relationship with his daughter, who, it appeared, simply could not understand why her father could no longer engage in the activities he used to.

The court a quo further accepted, as fact, that the appellant will, for the rest of his life, require medical attention, including operations, regular physiotherapy, and medication.

It certainly would have helped had the appellant undergone further examination thereafter so that the exact degree of his injuries could have been ascertained. This notwithstanding, the evidence placed before the court, in my view, was sufficient to enable the court to make an award.

As WATERMEYER JA aptly put it in Sandler v Wholesale & Coal Supplies Ltd 1941 AD 194, 199:

“…, it must be recognized that though the law attempts to repair the wrong done to a sufferer who has received personal injuries in an accident by compensating him in money, yet, there are no scales by which pain and suffering can be measured, and there is no relationship between pain and money which makes it possible to express the one in terms of the other with any approach to certainty. The amount to be awarded as compensation can only be determined by the broadest general considerations and the figure arrived at must necessarily be uncertain, depending upon the judge's view of what is fair in all the circumstances of the case.”

The extent of the injuries sustained was substantiated.

The doctors suggested that there was some possibility of improvement but this could only be determined if a repeat study was carried out at a later stage. During the trial, the appellant said nothing about such a repeat study. The court itself did not ask in order to clarify the situation.

The failure to lead evidence on this should not have resulted in the appellant being non-suited.

As stated in The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…, in a case such as the present, a Court does not grant absolution but may tend towards conservatism in assessing the damages. The learned authors state:

“The general attitude of the court has been that if there if evidence upon which an estimate, not unfair to the defendant, can be made, it should not refuse to make an award merely on account of the deficiencies in the case presented upon the plaintiff's behalf. Nevertheless, the failure to adduce such evidence would normally operate to the disadvantage of the plaintiff, in that, in its absence, the court would normally tend towards conservatism in computing the damages.”

In my view, this is the approach that the court a quo should have adopted.

I would agree with the appellant that the finding of absolution in these circumstances resulted in an injustice.

It is not uncommon, in claims for general damages, for a plaintiff to claim, and a Court to award, individual damages for pain and suffering, disfigurement, loss of amenities of life, and shortened life expectancy: see The Quantum of Damages in Bodily and Fatal Injury Cases, 3ed by CORBETT, BUCHANAN & GAUNTLETT…,.

The finding of absolution must therefore be set aside.

The amount claimed, as at the date of commencement of the trial in October 2008, was the sum of Z$1 billion.

Judgment was given six months later, in April 2009.

At the time, the country was gripped by a hyperinflation environment which quickly eroded the value of money. In February 2009, however, the multiple currency system was introduced. Whilst the Zimbabwean dollar remained legal tender, it is a fact that transactions in the local currency ceased effectively rendering the Zimbabwean dollar valueless.

At the time that the court was asked to make its determination, the appellant was seeking the sum of Z$1 billion. It is that claim that should have been considered by the court a quo.

In terms of section 6 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009 financial institutions were instructed to accept, between 2 February 2009 and 30 June 2009, Old Zimbabwean currency at the rate of one trillion dollars for one dollar of the new currency system.

In terms of section 8 of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations S.I.6 of 2009, debts incurred before 2 February 2009 were deemed to have been incurred, entered, created, or transferred in terms of the old currency system and were to be settled, discharged, or liquidated in terms of the old currency system provided, however, that, on or after 1 July 2009 every debt was to be settled, discharged, or liquidated in terms of the new currency system only.

In the definition section, “debt” includes anything which may be sued for or claimed by reason of any obligation arising from statute, contract, delict, or otherwise.

By operation of the law, therefore, the claim by the appellant, for general damages, in the sum of Z$1 billion stood to be dealt with in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations.

The one billion dollars claimed under the old currency equated to a fraction of a cent under the new currency system.

Considering the extent of the injuries sustained by the appellant, the claim for damages in the sum of Z$1 billion may not have been an unreasonable sum at the time of commencement of the trial proceedings. However, the law, through the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations (Statutory Instrument 6/09), has converted what would otherwise have been a substantial claim to a most trivial one.

The result is obviously a most unfair one and the appellant, and the general public, would be excused for thinking that there is something seriously wrong with the law or at least the way it works.

The legislature should have been alive to the obvious injustices that were to follow especially because, on 1 February 2009, the Government introduced the multiple currency system under which it became possible to enter into transactions denominated in other currencies: see section 17 of the Finance (No.2) Act 2/09.

The Finance (No.2) Act 2 of 2009 regularized the introduction of other foreign currencies as legal tender with effect from 1 February 2009.

In his Notice of Appeal, the appellant has requested that his previous claim of Z$1 billion be substituted with the figure of US$50,000.

The appellant, in his heads of argument, has argued that the amendment is justified, regard being had to the current economic conditions of the country where an award in Zimbabwean dollars would render such compensation meaningless.

Alternatively, the appellant has argued that the Court, in the exercise of its discretion, can make an award based on the record using the current multiple currency system.

No authority for that proposition has been cited.

Whether or not such a proposition would violate the principle of currency nominalism has not been explored or commented upon. Whether or not the approach in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1989 (3) SA 191 (SC) can be extended to cover a situation such as the present has also not been explored.

An action for damages for bodily injury is derived not from Roman Law but from Teutonic Law, but, like the Aquilian Action, it seeks to place the plaintiff as far as possible in the position he would have been had the wrongful act causing him injury not been committed.

Such a result cannot be achieved by making an award of a fraction of the Zimbabwean cent in favour of the appellant.

In all the circumstances, I am satisfied that there is need for a full investigation into the question of the damages that ought to be awarded in this case.

This Court has not had the benefit of argument on this very important issue.

It seems to me that the most appropriate approach would be to remit the matter to the court a quo for consideration of the whole question of damages.

In Halwick Investments t/a Whelson Transport v Garai Stephen Nyamwanza SC48-09, this court clarified the circumstances under which a matter can be remitted to a trial court....,.

1....,.

2. The claim for general damages is remitted to the court a quo for determination.

This matter came before me by way of an urgent chamber application.

At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.

In view of the legal issues that were apparent from the affidavits, and that had not been canvassed, I required the legal practitioners to file supplementary heads of argument, which counsel did, and, I am indebted to counsel for the same.

I had also requested a copy of a translation of a South African judgment referred to by the applicant's counsel, but, unhappily, that was not given to me expeditiously, with the result that this judgment was then delayed.

The facts relevant to this dispute are as follows:

The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.

The first and second respondents are referred to on the papers as former owners of the farm, although the exact nature of that ownership has not been stated nor is it relevant for present purposes.

What is relevant is that they were in occupation at the time the farm was acquired.

The third respondent is a beneficiary of the land reform program but he occupies a neighbouring farm. He is, however, a majority shareholder in a company in which the first and second respondents also own shares and which is undertaking certain farming operations on Dana A Farm.

According to the papers, the first and second respondents occupy subdivisions 2 and 3 of the farm.

The applicant was issued with an offer letter for subdivision 1 which he occupies.

The applicant seeks an interdict, both in interim and final terms, against the respondents from use and occupation of subdivision 1 of Dana Farm. In addition, he seeks their eviction from the same.

After he and counsel for the respondents had made submissions on the application, counsel for the applicant moved for an amendment to the draft order.

Counsel for the respondents did not object to its amendment.

The new draft order merely sought an interim interdict against the three respondents with the eviction being reserved for the final relief.

I find it difficult to comprehend the logic of seeking an amendment of that nature, at that stage, as counsel for both sides had argued the matter fully on the merits as related to the interdict and the eviction.

In my view, no prejudice will occur to any of the litigants if I dispose of the matter on the merits as if it were an opposed application rather than for relief in interim terms.

Although the applicant sought to file an amendment to the draft order, the application to amend the same was only introduced after both parties had addressed the court in argument on the basis of the original draft order. It seems to me, therefore, that the dispute between the parties has been ventilated in full and it does not assist either of the parties for this court to ignore that fact.

I also agree with the submission in the respondents heads of argument that the nature of relief sought is in final terms.

Even if I considered the matter on the basis of the amended draft order, it would not change much as the relief being sought is not materially different in the two draft orders.

I proceed now to consider the other point in limine raised by the respondents.

The respondents had contended, that, the failure to join the Provincial Lands Inspectorate was fatal to the applicant's case.

I disagree.

The farm was acquired, and now vests in the State, which is the owner of the land. I have to consider whether there is any effect to the application consequent to the non-citation of the responsible Minister.

It becomes necessary, therefore, that I consider the nature of the relief being sought by the applicant.

The sum total of the relief sought by the applicant is an interdict against the respondents from utilizing the permanent structures and improvements on the subdivision that he has been offered by Government.

It is common cause, that, although the entire farm was gazetted, and has since been acquired, the former owners, in the guise of the second and third respondents, are still in occupation. It also seems that the third respondent is the majority shareholder in a company that is running farming operations on the farm.

Although the third respondent made this averment, there was challenge from him that the wrong person had been brought to court; he has deposed to an affidavit opposing the application on the merits and did not persist with the challenge when the matter was called.

All the respondents have been in occupation since the farm was acquired, and, my view, from an assessment of the facts, is that the respondents have been in possession of the homestead, the barns, and the borehole same for the entire period that the applicant has been in occupation of the subdivision.

The simple fact is that when he moved in they were in occupation and have not been evicted from the same.

In terms of section 3(1) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28] no person may hold, use, or occupy gazetted land without lawful authority.

In the Gazetted Lands (Consequential Provisions) Act, lawful authority is defined as an offer letter, a permit, or a land settlement lease.

The applicant is in possession of an offer letter, and, therefore, he has lawful authority to occupy the part of the farm allocated to him.

The respondents have contended that the offer letter is irregular.

The lawfulness of the offer letter is not before me and I cannot comment on its validity. That is for the authorities to resolve.

What is at issue, however, is whether or not the applicant has the locus standi or right to claim the relief that he is claiming against the respondents.

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.

The claim against the appellant arose from a Service Provider Agreement concluded between the parties on 10 March 2006 (the Agreement). The Agreement required the appellant to pay the sums due thereunder within thirty days of receiving the respondent's invoices.

It is common cause that the appellant owed the respondent the outstanding amount claimed as at 30 September 2010.

The respondent issued summons on 16 November 2010, and, following the appellant's appearance to defend, applied for summary judgement on 14 February 2011.

The court a quo held that the respondent's claim was unimpeachable and that the appellant had no plausible defences to the claim. In particular, the court found that there was no supervening impossibility due to the currency regime changeover between January and March 2009, entailing any objective impossibility of recovering debts from the appellant's customers. Additionally, there was no condition precedent in the Agreement that those customers should first pay the appellant before it became obliged to pay the respondent. Lastly, there was no principal and agent relationship between the parties to preclude the recovery of payments from the appellant upon presentation of the respondent's invoices.

The grounds of appeal herein arise from the defences raised in the High Court, viz: supervening impossibility of performance, recovery from customers as a condition precedent for payment, and the existence of a principal and agent relationship between the parties.

In essence, the question to be determined is whether the learned judge was correct in holding that the respondent's claim was unassailable and that the appellant had no bona fide defences to that claim.

In addition, the appellant's heads of argument raise a further ground of appeal not pleaded in its Notice of Appeal. It is argued that the order granted by the court a quo is vague as it does not specify the applicable rate of interest and the dates when the amounts due accrued interest....,.

VAGUENESS OF COURT ORDER

The court a quo granted summary judgment as prayed for in terms of the draft order. The latter is regrettably terse and simply orders that summary judgement be entered in terms of the summons.

In the summons, the respondent's claim is for payment of the sum of US$8,330,470=52 with:

”Interest thereon at a rate of 2.5% per annum above the prime overdraft rate of the Standard Chartered Bank of Zimbabwe, from the date each payment was due to the date of payment.”

Counsel for the appellant contends that this part of the court order is vague and unclear as regards the rates of interest applicable and their respective dates of application.

As I have already indicated, this is not a ground of appeal that was raised in the notice of appeal. Nevertheless, it is a point of law that can be raised at any stage of the proceedings, provided that the other party is not thereby prejudiced.

Counsel for the respondent accepts that it would not be improper or prejudicial to the respondent for the point to be addressed and determined at this stage.

In my view, there is nothing vague or unclear in the court order as read with the summons.

The applicable rates of interest are undoubtedly available from the Bank cited and the dates from which those rates apply will be apparent from the relevant tax invoices presented by the respondent to the appellant.

In any event, this is an issue that should most appropriately be agreed between the parties themselves, or, failing such agreement, be referred to the court a quo for determination and quantification.

Counsel for the appellant urged this court to nevertheless determine the matter on the merits based on the evidence on record.

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision.

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”...,.

The further contention made on behalf of the appellant is that there was no jurisdictional basis for the court to exercise its original jurisdiction to convert the award to foreign currency on the basis that there was nothing to convert.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16 which was an appeal against a decision of the High Court in which that court had declined jurisdiction to grant an application for the conversion of the original award into foreign currency, this Court said:

“I am aware that the correction of judgments in terms of the court's jurisdiction to protect and regulate its processes in the interest of justice must be done within a reasonable time after the delivery of the judgment to be corrected. In this case, the judgment to be 'corrected' was taken on appeal. It thus had to await the decision of the Supreme Court after which the appellant sought payment. When the respondent refused to pay the appellant made the application which is the subject of this appeal. I am therefore satisfied that the appellant applied for conversion within a reasonable time. He, in other words, was not a sluggard.

Accordingly, this case should not be seen as opening the gates to all cases where judgments were denominated in Zimbabwean dollars and the affected parties failed or neglected to timeously do what the appellant in this case did, namely, seek the court's assistance to convert the awards to usable currency. A court order which is clear and enforceable at the time of delivery cannot be rendered nugatory and unenforceable by unforeseeable subsequent events which affect its clarity and render it unenforceable in its present form. The court a quo is entitled to protect and regulate its orders so that they remain enforceable.

I therefore hold that in terms of section 176 of the constitution, the court a quo has jurisdiction to hear and determine the appellant's application.”...,.