NDOU
J: This is an opposed
application. The applicant seeks an order in the followingterms:
“It is ordered that:
1.
Leave be and is hereby granted to the plaintiff/applicant to amend his claim so
that his claim sounds in the currency currently in use in Zimbabwe and as
particularized in his founding affidavit and annexures.
2.
Defendant/respondent pays costs of this application.”
I do not deem it necessary at this
stage, to give the particulars of his founding affidavit, save to point out all
that he seeks is to alter his claim from Zimbabwe dollar, in use at the time of
the issuance of the summons in the main matter under case number HC 1777/04, to
United States dollars currently under use in the country. The background
facts of this matter are the following. Under case number HC 1777/04, supra,
the applicant sued the respondent for damages arising from alleged wrongful
dismissal from employment and harassment. At the time the applicant, who
is the plaintiff under HC 1777/04, filed his claim, the currency in use was the
Zimbabwe dollar. In February, 2009, it is common cause that the Zimbabwe
dollar ceased to be used in trade. The Government introduced a system of
multi-currency. The court can safely take judicial notice of this
fact. It is not necessary for me to deal with the theoretical argument
raised by the respondent that the Zimbabwe dollar was never demonetized nor did
it cease to be legal tender. The bottom line is that no one, including
the respondent, is currently using the Zimbabwe dollar as means of trade.
The respondent's contention that the Zimbabwe dollar is in use is not premised
on practical considerations. As far as the law is concerned, our courts
have accepted the competency to grant judgment in foreign currency, long before
the multi-currency regime was introduced in February 2009. In Makwindi
Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1998
(2) ZLR 482 (S) where it was held – “Justice requires that a plaintiff should
not suffer by reason of a devaluation of a currency between the due date on
which the defendant should meet his obligation and the date of actual payment
or the date of enforcement of the judgment.” See also “Despina R”
case [1979] ALL ER 421; Zimbabwe Express Services (Pvt) Ltd v Nuanetsi
Ranch (Pvt) Ltd SC-21-09; Kwindima v Mvundura HH-25-09 (at
page 5 of the cyclostyled judgment); Samanyau and 38 Ors v Fleximail
HH-108-11 and ZIMNAT Insurance Co Ltd v Chibanda 1990 (2) ZLR
143.
In casu, to award the
damages in Zimbabwe dollar, which has been rendered valueless by the
abovementioned decision of the Government in February 2009, might deny the
applicant, as plaintiff in the main matter the redress that he seeks. The
applicant is not the author of the demise of the Zimbabwe dollar and it would
not be in the interest of justice to punish him for that fact.
The fact that he prosecuted his
claim with delay cannot be used at this stage to deny him the amendment he
seeks. I do not see any prejudice to the respondent that cannot be cured
by affording it the opportunity to challenge the evidence adduced by the
applicant on the rating of the Zimbabwe dollar vis-à-vis the United States
dollar. The issue of delay can be dealt with via the determination of
costs. It is trite law that our courts allow amendments quite
liberally. This liberality is only affected where the amendments would
cause considerable inconvenience to the court or prejudice to a party or where
there is no prospect of the point raised in the amendment succeeding or where
the matters in the raised amendment are vague and embarrassing – UDC Ltd
v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H); ZFC v Taylor
1999 (1) ZLR 308 (H) and Lourence v Raja Dry Cleaners and Steam
Laundry (Pvt) Ltd 1984 (2) ZLR 157 (SC) – see also Rule 132, High Court
Rules.
In casu, the amendment is being sought
after the plaintiff has already testified (i.e. in the main matter). The
plaintiff's second witness has also testified and concluded her
testimony. These witnesses can be recalled to deal with the issues raised
in the amendment. The respondent can still cross-examine such witness on
these issues. Frankly, I do not see why the respondent did not consent to
the amendment. There seems to be unnecessary belligerency and acrimony
between the parties. This is apparent from the language used in their
papers. Parties should not rely too much on procedural issues to the detriment
of justice. In view of the foregoing I do not find any legal impediment
to the amendment sought which cannot be cured during the course of the main
trial.
Accordingly, the application is
granted with costs being costs in the cause.
Majoko &
Majoko, applicant's legal practitioners
Mbidzo, Muchadehama & Makoni, respondent's legal practitioners
