GWAUNZA
DCJ:
This
is a composite judgment in respect of three appeals which were heard
at the same time. The appeals are against the whole judgment
of the High Court handed down on 14 May 2020. They all rely on
essentially the same grounds of appeal. The three appellants were the
respondents in the court a
quo
but filed separate appeals under SC183/20,
SC187/20
and SC203/20.
In
this judgment the appellants will be referred to as Central African
Building Society (CABS),
the Reserve Bank of Zimbabwe (RBZ)
and the Minister of Finance and Economic Development (Minister
of Finance).
Penelope
Douglas Stone and Richard Harold Stuart Beattie, who were the
applicants in the court a
quo,
will be referred to as the Respondents.
BACKGROUND
FACTS
CABS
is a bank registered in terms of the laws of Zimbabwe. The
respondents are partners in a firm of architects trading under the
name of The Stone/Beattie
Studio. They have had a savings account with CABS for a number of
years, being account number 1005428905. As at the end of October
2016, the respondents' account had a credit balance of US$142,000.
On
4 May 2016 the Governor of the Reserve Bank issued a statement
entitled "Measures
to deal with cash shortages whilst simultaneously stabilising and
stimulating the economy."
Through
the statement the Governor proclaimed the introduction of bond notes
and coins which would operate alongside the family of currencies in
the multi-currency basket and would be at par with the United States
Dollar. He also announced that the process to configure the RTGS
system into the multi-currency basket was underway.
On
31 October 2016 S.I
133/2016
was enacted in terms of s2 of the Presidential Powers (Temporary
Measures) Act (Chapter
10:20).
Pursuant
to such enactment, on 28 November 2016, the respondents by way of
correspondence instructed CABS to freeze their account. This was in a
bid to preserve their bank balance in the United States Dollar
currency.
Two
years later on 4 October 2018, the Reserve Bank issued the Exchange
Control Directive No. RT120/2018 (“the
2018 Directive”)
whose effect was to separate RTGS Foreign Currency Accounts from
Nostro Foreign Currency Accounts based on the source of the relevant
funds.
As
a result of this directive, the respondents account with CABS was
categorised as an RTGS Foreign Currency Account payable in bond notes
and not USD currency.
On
17 October 2018, the respondents wrote a letter to CABS advising that
they wished to withdraw the entire amount held in their account in US
dollars or, alternatively, that the same amount be transferred into a
Nostro
FCA
account 'as
provided for by the Central Bank in its Monetary Policy Statement of
the 1 October 2018.'
In
response, CABS advised the respondents that it could only pay the
balance due to them in bond notes in terms of the Reserve Bank's
2018
Directive.
Disgruntled
at this response, the respondents filed an application before the
High Court entitled AD
PECUNIAM SOLVENDAM,
seeking
an order in the following terms:
"IT
IS ORDERED THAT:
1.
The first respondent (CABS herein) must, within seven (7) days from
the date of this order pay to the first and second respondents (sic)
the sum of US$142,000-00 (One Hundred and Forty-Two Thousand United
States Dollars) cash as United States dollars, together with United
States dollar interest on the aforesaid amount at the rate of 5
percent per annum with effect from the 28 November 2016 to the date
of payment.
2.
The first respondent must pay costs of suit.
ALTERNATIVELY
3.
The second and third respondents (RBZ and Minister of Finance herein)
jointly and severally each paying the other and the other to be
absolved must pay the sum of US$142,000 (One Hundred and Forty-Two
Thousand United States dollars) cash to the Applicants.
4.
It is declared that exchange control directive No. R120/2018 dated 1
October 2018 is a nullity and is hereby set aside.
5.
It is declared that section
44B(3)
and (4)
of the Reserve Bank Act [Chapter 22.15]
are unconstitutional.
6.
The respondents jointly and severally each (sic) paying
the other to be absolved must pay (sic) the cost of suit."
7.
The respondents in relation to their main relief relied on the
principle ad
pecuniam solvendam,
and
stated in their founding affidavit that their claim against CABS was
simply a demand for the return of their deposit in the sum of
USD142,000 plus interest.
The
respondents submitted further that the alternative relief as set out
in their draft order, was being sought in terms of s85(1)(a)
of the Constitution 2013.
PROCEEDINGS
IN THE COURT A
QUO
The
respondents submitted that the relationship between them and CABS was
sui
generis
and
that CABS was obliged to pay back the money in the currency in which
it was deposited.
In
their view, the bond note and the USD 1:1 parity was a legal fiction.
They
further contended that CABS could not hide behind the 2018 Directive
as the instrument was unreasonable and ultra
vires
the provisions of the enabling Act.
However,
the respondents neither identified nor elaborated on the exact
provisions of the Act that they referred to.
The
respondents further argued that s44B(3)
and (4)
of the Reserve Bank of Zimbabwe Act [Chapter 22:15]
were
unconstitutional in that they constituted an unlawful appropriation
of value and property contrary to the provisions of s71
of the Constitution 2013.
Secondly,
they argued that the same provisions violated their right to equal
protection of the law as defined in s56
of the Constitution 2013,
in that they are grossly irrational and unreasonable.
On
the other hand, CABS submitted that it did not refuse to pay the
amounts standing to the respondents' credit. Rather, it was not for
them to insist that such payment be tendered in a specific currency.
It
further argued that the respondents had not proffered evidence to
show that they had deposited hard currency into their account nor
that offshore payments had been deposited therein.
It
further submitted that it had an obligation
to comply with the terms and conditions of its registration which
include compliance with the law and other directives given by the
RBZ. In that regard, CABS pointed out that such regulating directives
or laws were extant as they had not been declared unlawful.
Concerning
the alternative relief sought by the respondents, the RBZ submitted
that such relief was incompetent given that its Governor had acted
lawfully in issuing the directive in question.
With
regard to the constitutionality of the operative legal framework in
casu,
the RBZ, like CABS, argued that the 2018 Directive was valid and
demanded full compliance thereof unless and until it was declared
invalid. Further, that any act done in accordance with a valid piece
of legislation was also valid.
The
Minister of Finance objected to having been cited in the proceedings,
arguing that he had no interest in the dispute since the respondents'
claim, being one for an order ad
pecuniam solvendam
against
CABS was premised on a contract between them. However, the court
ruled that given the special relationship between the RBZ and the
Ministry of Finance, the Minister had a legal interest in the
proceedings and was properly cited.
FINDINGS
OF THE COURT A
QUO
The
court a
quo
found
that the relationship between CABS and the respondents was
contractual and that the former accordingly had an obligation to
repay the equivalent sum of money and not the exact notes deposited
into the bank. It further found that the respondents' account balance
being denominated in United States dollars and not any other
currency, CABS should not seek to unilaterally change the value of
its indebtedness.
The
court, however, noted that CABS was correct in its submission that it
could not defy the directive of the RBZ, an entity established in
terms of s317
of the Constitution 2013.
In
issuing the impugned directive, the court observed that the RBZ was
exercising its powers as conferred by the Constitution
and the Reserve
Bank of Zimbabwe Act [Chapter
22:15].
It
accordingly held that as long as the Exchange Control Directive No.
RT120/18 had not been set aside, CABS could not comply with the
respondents' demand without incurring the penalties and consequences
threatened by the enabling body. In that regard, the court a
quo
held
that it could not order such payment in the face of an extant
directive of the RBZ.
The
court thus effectively dismissed the respondent's main claim.
Having
made these findings, the court then opined that there was need for
an inquiry into the constitutionality of that directive and/or the
section in terms of which it was issued.
It
proceeded, mero
motu,
to
make this enquiry based on considerations not presented or argued
before it.
The
court concluded that the retrospective application of the directive
had the effect of arbitrarily converting the USD balance in the
respondents' account, into an RTGS bank balance.
It
then expressed the view that the directive was 'an
incursion of vested rights'
and therefore 'unreasonable'.
The
court further held that the 2018 Directive reflected insensitivity
and unresponsiveness which offended against the values espoused in
the Constitution.
Lastly,
the court found that the directive was illegal, irrational and
unreasonable for offending against the rule of law and the
constitutional values of good governance. Accordingly, it pronounced
that the directive was unconstitutional.
Having
made this pronouncement, the court determined that it was not
necessary to consider the constitutionality of s44B(3)
and (4)
of the Reserve Bank Act [Chapter
22:15].
It
should be noted that this was part of the relief that the respondents
sought as an alternative to its main claim.
The
court accordingly declared the 2018 Directive to be invalid and set
it aside.
Inexplicably
and unprompted, the court went on to grant the main relief sought by
the respondents, and ordered CABS to pay them USD$142,000 in its
denominating currency or transfer the funds into a Nostro
Foreign
Currency Account within 7 days of granting of the order.
Consequently,
the court did not consider the rest of the relief sought by the
respondents in the alternative, to the effect that the RBZ and the
Minister be ordered, in the place of CABS, to pay to the respondents
the full amount that they had claimed from CABS.
THE
GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION
Aggrieved
by the decision of the court a
quo,
the appellants noted the instant appeals to this Court. Although they
together articulated a total of 15 grounds of appeal, in the court's
view the grounds raise the following issues for determination:
(a)
Having
initially declined to grant the main relief sought, whether the court
a
quo
erred in proceeding to grant the exact same relief:
(i)
on a basis not argued by the respondents; and
(ii)
even though such relief had not been sought under the respondents'
alternative prayer;
(b)
Whether
the court a
quo
erred
by setting aside the 2018 Exchange Control Directive when such relief
had not been sought on a constitutional basis, and in any case,
contrary to the principle of subsidiarity? and
(c)
Whether
the court erred in ordering CABS to pay the respondents an amount in
foreign currency contrary to the provisions of SI133/19
and ss20, 21, 22 and 23 of the Finance Act (No. 2) of 2019?
These
issues will be considered seriatim.
(a)
Having declined the main relief sought, whether the court a
quo
erred
in proceeding to grant the exact same relief even though it had not
been sought under the alternative relief, and on a basis not argued
before it?
The
appellants submit that the court a
quo
granted
an order which was not sought by the respondents, given that the
latter had sought in the main, an order that CABS pays them the sum
of USD$142,000 within seven days of the order being granted. However,
in the event that the CABS was found to have acted lawfully in not
acceding to their request for payment of this amount, the alternative
relief sought by the respondents was:
(i)
that the RBZ and the Minister be ordered to pay the amount in
question to the respondents;
(ii)
that the Exchange Control Directive No. R120/2018 be declared a
nullity;
(iii)
that section
44B(3)
and (4)
of the Reserve Bank of Zimbabwe Act [Chapter
22:15]
be declared unconstitutional.
The
appellants further contended that the court a
quo
created
an additional basis for the main relief sought by the respondents, in
respect of, the constitutional validity or otherwise of the 2018
Directive, and proceeded to grant the same relief even though it did
not form part of the alternative relief that they sought.
That
being the case, the appellants charge that the court went on a frolic
of its own by crafting a case for the respondents and proceeding to
determine a matter not before it.
Mr
Magwaliba
for
CABS further submitted that CABS and the respondents enjoyed a
banker/customer
relationship which was then interfered with by the RBZ through the
issuance of the 2018 Directive.
The
implication of this interference, he further argued, was that the
principal relief, which was based on the banker/customer relationship
could not be granted.
The
court a
quo
having
made a finding to that effect, Mr Magwaliba's
contention was that the matter should have ended there in so far as
the main, and only, relief against CABS was concerned.
The
court finds merit in the appellants' contentions.
In
their heads of argument, the respondents do not dispute that the
court a
quo
granted
an order that was not sought by them as an alternative to the main
relief.
Indeed,
the cause of action in relation to the principal relief sought by the
respondents, was anchored on a perceived breach of the
banker-customer relationship between them and CABS. Hence the claim
ad
pecuniam solvendam
against
that bank.
The
court a
quo
indicated
that CABS was correct in its submission that it could not defy the
2018 Directive of the Reserve Bank in circumstances where the
Directive had not been set aside. It was on this basis that the court
in its judgment stated as follows:
“This
Court accepts that as long as the exchange control directive has not
been set aside, the first respondent could not comply with the
applicant's demand without incurring the penalties and other
consequences threatened by the second respondent. On this basis, the
court cannot order the first respondent to make payment in the face
of the exchange control directive which is to the contrary
...” (my emphasis)
The
finding that the court a
quo
could
not order the first respondent to make the payment in question was in
this Court's view not only correct, but also dispositive of the main
claim of the respondents.
This
is because it was effectively a dismissal of that claim, the only one
seeking any relief against CABS.
As
is evident from the evidence before the court, the appellants did not
advance or argue any other basis for this relief. The court, after
reaching that decision, could and should only have adverted to the
alternative relief sought by the respondents against the RBZ and the
Minister.
This
it effectively did not do.
As
already noted, the respondents made it clear in their founding
affidavit that the alternative claim requiring RBZ and the Minister
to pay the amount in question, was to be granted only in the event
that the court was not persuaded to grant the main relief against
CABS.
Thus,
by completely disregarding that part of the of respondents'
alternative claim - whatever its merits or demerits given that no
clear cause of action in this respect was articulated - the court a
quo
clearly
misdirected itself.
A
court is duty bound to consider and determine every issue that is
placed before it unless such issue has otherwise been resolved.
(b)
Whether the court a
quo
erred by setting aside the 2018 change Control Directive when such
relief had not been sought on a constitutional basis, and in any
case, contrary to the principle of subsidiarity?
The
court a
quo,
in
what seems to be a procedural non
sequitur,
took
the view that its dismissal of the main claim against CABS somehow
gave rise to the need for an enquiry by it, into the constitutional
validity of the directive or the provision in terms of which it was
issued.
This
was despite the fact that the respondents had not challenged the
constitutional validity of the 2018 Directive.
Instead,
in part of their alternative relief, the respondents explicitly
sought an order striking down s44B(3) and (4) of the Reserve Bank Act
- the enabling provisions - on the basis that they were
unconstitutional.
In
fact, the only reference - indirect at that - that the respondents
made to any constitutional challenge to the directive was contained
in para 15 of the respondents' founding affidavit as follows:
"As
far as our locus standi in respect of our alternative claim (sic),
(we) bring this application in terms of section
85(1)(a) of the Constitution of Zimbabwe.”
As
already indicated to the extent that the respondents may have, on the
basis of these words, intended to motivate a constitutional challenge
to the 2018 Directive, in the end they did not do so.
It
would appear though, from a reading of the judgment of the court a
quo
that
the genesis of its belief that it had a constitutional matter before
it concerning the 2018 Directive, was a misapprehension of the issues
that it was called upon to determine. The court formulated the third
issue for its determination, as follows:
"Whether
the Exchange Control Directive RT12/18 is unconstitutional and, if
so, the implications thereof."
It
not being in dispute that the respondents did not impugn the 2018
Directive on the basis of its constitutional invalidity or otherwise,
there is little doubt that the court a
quo
read into the papers before it, an issue that was clearly not there.
Its
determination of that issue was therefore incompetent.
After
it improperly considered the issue of the constitutional validity of
the 2018 Directive, the court a
quo
concluded
as follows:
"The
exchange control directive is in my view illegal, irrational, and
unreasonable for offending against the rule of law and the
constitutional values of good governance. It
is therefore unconstitutional.
(my emphasis)"
On
this basis, the court declared the 2018 Directive to be invalid and
accordingly
set it aside.
Thereafter,
and instead of relating to para 1 of the respondents' alternative
relief, it proceeded to resuscitate and grant the principal relief
against CABS that it had earlier properly thrown out.
This
faux pax
could only have compounded the misdirection by the court, that
started with it crafting a case for the respondents.
Further
to this and as discussed below, the court's unprompted consideration
of the constitutionality or otherwise of the 2018 Directive violated
the doctrine of subsidiarity.
The
respondents in their heads of argument sought to sanitise the
irregular process adopted by the court a
quo,
by stating that in
constitutional matters,
the power of the court to grant a just and equitable order is so
wide and flexible, that it allows courts to formulate an order that
does not follow prayers in the notice of motion, or some other
pleadings.
They in this respect submitted as follows in para 70:
"Against
this backdrop, it cannot be said the court a quo erred in the
granting of consequential relief against the appellant (CABS).
The
payment of the amount claimed by the first and second respondents is
at the heart of the matter.
The
court a quo held that it would have been unable to grant the relief
sought by the first and second respondents without having set aside
the Exchange Directive because that would mean that the appellant
(CABS) would be susceptible to breaching its contractual obligations
under the banker-customer relationship. We agree."
The
respondents thus took the view that the court a
quo,
having
declared the 2018 Directive unconstitutional, granted the order
requiring CABS to pay the amount in question, as some form of
'consequential relief'.
The
court finds these submissions by the respondents to be flawed in a
number of respects.
(i)
Firstly, and as is evident from their founding affidavit, they did
not challenge the validity of the 2018 Directive on the basis that it
offended against any provision of the Constitution.
Their
cause of action was based on the principle of ad
pecunium solvendam.
There
was therefore no constitutional matter before the court in so far as
the directive was concerned.
(ii)
Secondly the order of the court a
quo
requiring
CABS to pay the amount at issue cannot, as a consequence, be
categorised as an order issued in the exercise of a court's power in
constitutional matters to
formulate
an order that does not follow prayers in the notice of motion, or
some other pleadings.
(iii)
Lastly, because the order was granted as a result of the court a
quo
having
gone on a frolic of its own, it stands to reason that no
consequential relief could competently flow from it.
The
appellants are therefore correct in their submissions that the court
a
quo
created
a (constitutional) case for the respondents and went on to determine
it in their favour.
It
is trite that the court's duty is to determine disputes as presented
before it and not to go on a frolic of its own. This position was
authoritatively articulated as follows in the Namibian case of Kauesa
v Minister of Home Affairs and Others
1996
(4) SA 965 (NMS):
“It
is the litigants who must be heard and not a judicial officer. It
would be wrong for judicial officers to rely for their decisions on
matters not put before them by litigants either in evidence or in
oral or written submissions. Now
and again a judge comes across a point not argued before him by
counsel but which he thinks material to the resolution of the case.
It is his duty in such circumstances to inform counsel on both sides
and invite them to submit arguments either for or against the judge's
point. It
is undesirable for a court to deliver a judgment with a substantial
portion containing issues never canvassed or relied upon by counsel."
(my emphasis)
These
sentiments were reinforced by this Court in the case of Nzara
& Ors v Kashumba N.O & Ors
18-SC-018
wherein it was stated as follows at paras 57-60:
“This
position has become settled in our law. Each
party places before the court a prayer he or she wants the court to
grant in its favour. The Rules of court require that such an order be
specified in the prayer and the draft order.
These requirements of procedural law seek to ensure that the court is
merely determining issues placed before it by the parties and not
going on a frolic of its own.
The
court must always be seen to be impartial and applying the law to
facts presented to it by the parties in determining the parties
issues. It is only when the issues or the facts are not clear that
the court can seek their clarification to enable it to correctly
apply the law to those facts in determining the issues placed before
it by the parties.
The
judgment of the court a quo unfortunately fell short of these guiding
principles. In seeking to find middle ground, the court a quo granted
orders which had not been sought by either party.
It granted the first and fourth respondents a further grace period
and a referral to arbitration. The first and fourth respondents had
not sought such orders." (my emphasis)
The
weighty remarks cited above are eminently apposite in
casu.
By
setting aside the 2018 Directive on the basis that it was
unconstitutional, the court a
quo
granted
relief that was neither motivated nor sought by the respondents.
Like
in the
Nzara
case
(supra)
the judgment of the court a
quo
in
this respect fell short of the guiding principles enunciated in the
relevant authorities on the issue. The relief that the court granted
against CABS was therefore incompetent and cannot be sustained.
Accordingly,
the attempt by the respondents to justify the granting of such
relief, was misplaced.
The
court a
quo,
by
considering the constitutional validity of the 2018 Directive, not
only went on a frolic of its own, but did so in a manner that
violated the principles of subsidiarity.
Mr
Magwaliba
for
the appellant correctly submits that the 2018 Directive could not be
declared unconstitutional without regard to the constitutionality of
the enabling provisions under which it was made in the Act.
In
view of this, the court a
quo
clearly misdirected itself when it stated as follows:
"In
view of the conclusion reached in respect of the constitutionality of
(the) Exchange Control Directive RT120/18, it is unnecessary for the
court to determine the constitutionality of s44(3) and (4) of the
Reserve Bank Act. This is so because the matter turns to be disposed
on the basis of this Court's conclusion that the impugned directive
is unconstitutional and consequently invalid".
Based
on the principle of subsidiarity, and also because the respondents
specifically sought such relief, it was incumbent upon the court a
quo
to
consider and determine the constitutional validity of s44B(3)
and (4)
of the Act,
before addressing its mind to the issue of whether or not the 2018
Directive was a nullity. The court, instead, relied directly on
principles enshrined in the constitution, to hold, as it did, that
the 2018 Directive was unconstitutional. That the court could not
properly proceed in that manner is stressed in a number of
authorities in this jurisdiction and beyond.
MALABA
CJ in the constitutional case of Moyo
J v Sergeant Chacha
17-CC-019
elaborated on the principle of subsidiarity as follows: in paras
114-115:
“One
cannot ignore non constitutional remedies preferring to
directly enforce the right as enshrined in the Constitution,
where
the question for at determination is whether conduct the legality of
which is impugned is consistent with the provisions of a statute, the
principle of subsidiarity forbids reliance on the Constitution,
the provisions of which would have been given full effect by the
statute." (my emphasis)
In
the South African case of My
Vote Counts NPC v Speaker of the National Assembly & Ors [2015]
ZACC
31; 2010
(4) SA 1 (CC),
the Constitutional
Court of South Africa in explaining the meaning of the doctrine of
subsidiarity relied on the judgment rendered in Mazibuko
and Others v City of Johannesburg and Ors
[2009] ZACC 28. It stated as follows in paras 53 and 54:
“These
considerations yield the norm that a litigant cannot directly invoke
the Constitution
to extract a right he or she seeks to enforce without first relying
on, or attacking the constitutionality of, legislation enacted to
give effect to that right.
This
is the form of constitutional subsidiarity Parliament invokes here.
Once
legislation to fulfil a constitutional right exists, the
Constitution's
embodiment of that right is no longer the prime mechanism for its
enforcement. The legislation is primary. The right in the
Constitution
plays only a subsidiary or supporting role." (my emphasis)
The
remarks cited above make it very clear that the court a
quo
fell
into grave error when, after improperly crafting a constitutional
case for the respondents, it went on to determine the case in a
manner that fundamentally offended against the requirements of the
doctrine of constitutional subsidiarity.
More
damning in this respect is the fact that the respondents themselves,
perhaps taking cognisance of the principle of subsidiarity, had
properly sought to have the enabling provisions to the 2018 Directive
set aside as being unconstitutional, relief that the court a
quo
decided
not to entertain.
In
the result, the court's decision setting aside the 2018 Directive
cannot be sustained on any ground.
Accordingly,
the first and second issues are determined against the respondents.
(c)
Whether the court erred in ordering CABS to pay the respondents an
amount in foreign currency contrary to the provisions of SI
133/19
and
ss20, 21, 22 and 23 of the Finance Act (No. 2) of 2019
This
Court has found that the court a
quo
was
correct in its finding that it could not grant the main relief sought
by the respondents given that CABS had acted lawfully in terms of the
2018 Directive, in its refusal to pay the amount claimed in United
States dollars. The directive had not been set aside and therefore
remained valid.
This
Court also determined that the court a
quo
could
not properly grant this same relief on a basis neither pleaded nor
argued before it.
That
order, being incompetent, must be vacated.
That
being the case, the court considers that it is not necessary to
determine the third issue listed for determination.
A
number of other issues however, call for comment.
The
manner in which the respondents presented and argued their case
before the court a
quo
left
a lot to be desired. It is clear that due care and diligence were not
exercised, nor was proper consideration given to the relevant
procedural and substantive law.
As
correctly stated by Mr Madhuku
for
the Minister, an application under s85
of the Constitution 2013
should not be raised as an alternative cause of action.
In
addition to that, the propriety of combining an ordinary application
with a s85(1)
constitutional application on the basis of the same founding papers
may also be open to question.
Section
85(1)
is a fundamental provision of the Constitution
and an application under it, being sui
generis,
should ideally be made specifically and separately as such.
To
the extent that a case stands or falls on its founding papers, the
respondents lamentably failed to meet the test of soundly
articulating their case in their founding affidavit. Some material
averments were not fully canvassed or motivated.
For
instance, the respondents, while challenging the validity of the 2018
Directive on the basis of it being unlawful, grossly irrational and
ultra
vires
'the provisions of the enabling Act', did not identify the Act in
question, nor the exact provisions referred to. They only did so in
their draft order.
Further
to this, the respondents challenge to the constitutionality of
s44B(3) and (4) of the Reserve Bank Act was superficially set out in
half a paragraph of text.
Contrary
to the assertion in para 15 of their founding affidavit that their
alternative claims were being brought in terms of s85(1)(a)
of the Constitution 2013,
no case based on this provision was motivated in relation to paras 3
and 4 of the alternative relief sought.
Over
and above this the respondents' papers are littered with a myriad
of typographical and other errors ranging from misspellings to wrong
citation of the parties.
It
hardly needs mentioning that presenting a case that properly pays
homage to the requisite procedural and substantive law would greatly
aid the court in fully comprehending, and therefore properly
determining, the issues that are before it.
By
the same token, the opposing party would be placed in a good position
to fully appreciate the case that it has to meet. This is
particularly so in the case of disputes of such national importance
and significance as the one at hand.
The
situation created by the shortcomings in the presentation of the
matter before the court
a quo
was
compounded by the court's misconstruction of the basis upon which the
respondents sought the striking down of the 2018 Directive.
Needless
to say, a judicial officer cannot competently determine a case
arising out of his or her misreading of the issues placed before the
court. Nor can the judicial officer create and determine a case for
the parties no matter how strong his or her views may be as to how
the case should have been articulated.
DISPOSITION
In
all respects therefore, the court finds that the appeals are
meritorious and ought to be allowed.
Costs
will follow the cause.
In
the result, it is ordered as follows:
1.
The appeals in cases SC187/20,
SC203/20
and SC183/20
be and are hereby allowed with costs.
2.
The judgment of the court a
quo
be
and is hereby set aside and substituted with the following:
"The
application be and is hereby dismissed with costs."
MAKONI
JA: I agree
KUDYA
AJA: I agree
Mawere
& Sibanda, legal practitioners for CABS
Tendai
Biti Law, Respondents legal practitioners
Mlotshwa
& Magwedze,
legal practitioners for Reserve Bank of Zimbabwe
Civil
Division of the A-G's Office, legal practitioners for the Minister of
Finance & Economic Development
