Application
for Default Judgment
MUSAKWA
J:
In
this application for default judgment the plaintiff seeks an order to
the effect that -
“1.
The respondents jointly and severally pay the applicant the sum of
US$78,900.00.
2.
The respondents jointly and severally pay the applicant the sum of
US$1,537,833.33 being the United States Dollar equivalent of
ZW$46,135,000,000.00.
3.
Interest at the prescribed rate (from the 25th
January, 2013) being the date applicant demanded return of exhibits.
4.
Costs of suit on the legal practitioner and client scale.”
The
claim by the plaintiff arises from his prosecution before the
regional court on a charge of theft. He was acquitted on 18 January
2013. He gave notice in terms of the State Liabilities Act [Chapter
8:14]
on 18 March 2013.
Following
the acquittal, it is contended that Police unlawfully and
unprocedurally released US$78,900.00 and ZW$46,135,000,000.00 which
had been seized from the applicant to one Andre Nsaka Nsaka.
It
is evident that the cash in question together with some motor
vehicles were not exhibits before the regional court.
It
is common cause that the plaintiff was arrested on 16th
February 2008 on allegations of theft of US$3,000,000.00 from Andre
Nsaka Nsaka. The following items were seized from the plaintiff -
1.
US$78,900.00.
2.
ZW$46,135,000,000.00.
3.
Isuzu double cab LX 300 vehicle, registration number ABD 4926.
4.
Toyota Vista vehicle, registration number ABC 0347.
The
two motor vehicles were subsequently released. Trial commenced in
November 2008 and was finalised on 25 April 2012.
It
is also common cause that although the defendants filed a special
plea to the claim they were subsequently barred for not pleading over
to the merits.
It
is surprising that those who legally represent the State and those
personnel presiding over state institutions are lax when it comes to
litigation. A simple act of filing a defence to a claim that has
serious financial implications to the fiscus went begging by failure
to adhere to court rules.
The
money being claimed was booked under entry 09/08 (Exhibit Book 34)
with CID Suspects. As stated previously, it was never booked with the
trial court.
When
demand was made for its release, the defendants claimed prescription.
The
plaintiff sought confirmation from the Reserve Bank of Zimbabwe to
the effect that as at 11 February 2008 the rate of exchange between
the US$ and the ZW$ was US$1 to ZW$30,000.00. The
ZW$46,135,000,000.00 amounts to US$1,537,833.33.
Although
the plaintiff's counsel, in his heads of argument submits this is
vindicatory action, this is essentially a claim for damages.
This
is because in his supporting affidavit the plaintiff claims that the
money seized from him was wrongfully released to Andre Nsaka Nsaka,
the complainant in the criminal matter. Essentially the plaintiff is
seeking to be placed in the same position he would have been had the
money not been released. He cannot and is not seeking to recover the
exact money seized from him because that money is no longer
available. Hence the computation of the US$ equivalent of the
ZW$46,135,000,000.00.
The
claim for US$78,900.00 poses no problem. That is the loss the
plaintiff suffered when the money was seized from him.
It
is the claim for the US$1,537,833.33 that I find a problem with.
In
the first place, it does not follow that when an article is seized by
Police, it is inevitably going to be used as an exhibit at the
intended trial. Even the legality of the seizure, just like an
arrest, may be challenged. Therefore, the plaintiff's claim of the
seized money was not dependent on the outcome of a criminal
prosecution.
Having
made those observations, this does not excuse the Police from
conducting themselves in an acceptable manner. Section 59(1) of the
Criminal Procedure and Evidence Act [Chapter
9:07]
provides that -
“Subject
to subsection (2), if in connection with any article referred to in
paragraph (c)
of section fifty-eight
—
(a)
no criminal proceedings are instituted; or
(b)
it appears that such article is not required at the trial for
purposes of evidence or for
purposes
of an order of court; or
(c)
criminal proceedings are instituted and the accused admits his guilt
in accordance with section three
hundred and fifty-six;
the
article shall —
(i)
if the person from whom it was seized may lawfully possess the
article, be returned to that person; or
(ii)
if the person from whom it was seized may not lawfully possess the
article, be delivered to the person who may lawfully possess it; or
(iii)
if no person may lawfully possess the article or if the police
officer concerned does not know of any person who may lawfully
possess the article, be forfeited to the State.”
There
is nothing to show how it was determined who may lawfully possess the
seized cash.
It
looks like an arbitrary decision to release the money to Andre Nsaka
Nsaka was made. It is not clear if this was motivated by the fact
that the plaintiff acknowledged owing Andre Nsaka Nsaka
US$145,000.00.
During
the criminal proceedings there was an indication that the Police
Officer who released the money had criminal charges preferred against
him. It was not indicated what the outcome of that process was.
It
is also not clear why the plaintiff did not join Andre Nsaka Nsaka in
the present suit.
It
is well established that delictual damages are calculated as the date
of the delict. In this respect see Parish
v King
1992 (1) ZLR 216 (S).
The
plaintiff justifies his second claim on the conversion of the economy
to multi-currency due to the diminution in value of the local
currency.
I
have already pointed out that there was no legal impediment to the
plaintiff challenging the seizure of his money at the earliest
opportunity. It seems the plaintiff chose to await the outcome of the
criminal proceedings in order to demand the release of the money.
What
if he had been convicted?
Commenting
on currency nominalism, GROSSKOPF JA in S.A.
Eagle Insurance Co. Ltd. v Hartley
1990
(4) SA 833 had this to say at 839 -
“This
result seems to me to be in conflict with the principle of nominalism
of currency which underlies all aspects of South African law,
including the law of obligations. Its essence, in the field of
obligations, is that a debt sounding in money has to be paid in terms
of its nominal value irrespective of any fluctuations in the
purchasing power of currency. This places the risk of a depreciation
of the currency on the creditor and saddles the debtor with the risk
of appreciation. See Farlon and Harthaway Contract: Cases Material
and Commentary 3rd
ed at 719 note 2; HJ Delport, Inflation and South African Law (1982)
4 Modern Business Law 115 and A Spandau Inflation and the Law 1975
SALJ 31”.
Nominalism
is the norm in the common law of Western States with similar systems
to our own. Thus in Humphrey (1962) 272 US 517 at 519 the United
States Supreme Court said:
“An
obligation in terms of the currency of a country takes the risk of
currency fluctuations and whether creditor or debtor profits by the
change the law takes no account of it. Obviously in fact a dollar or
a mark may have different values at different times, but to the law
that established it is always the same. If the debt had been due here
and the value of dollars had dropped before suit was brought the
plaintiff could recover no more dollars on that account.”
A
person claiming damages in whatever form must prove that they
suffered loss in the amount claimed. See Kwindima
v Mvundura
2009 (1) ZLR 168 (H).
In
so awarding such damages the court exercises its discretion. In
deserving cases the courts have made awards in foreign currency
notwithstanding the cause of action having arisen during the era of
the local currency.
I
am therefore satisfied that the plaintiff's claim cannot be granted
in its entirety. In the result, it is ordered as follows -
(a)
That the defendants jointly and severally, the one paying the other
to be absolved pay the plaintiff the sum of US$78,900.00.
(b)
That the defendants jointly and severally, the one paying the other
to be absolved pay interest at the prescribed rate from the 25th
January, 2013.
(c)
That the defendants jointly and severally, the one paying the other
to be absolved pay the costs of suit.
Mahuni
& Matutu,
plaintiff's legal practitioners
