The plaintiff issued summons against the defendant on 19 May 2007 seeking an order for the payment of damages in the sum of $20 billion.

In her declaration, she averred that she had purchased, from the defendant, certain immovable property situate in the district of Kariba for the sum of $180 billion which she paid in full. At the time of the agreement of sale, the defendant had already sold the same property to a company going by the name of Woolwork Investments (Pvt) Ltd. On account of this prior sale, the plaintiff further averred that the sale to her was a fraud as the defendant knew he had disposed of his rights in the property and had none to sell to the plaintiff. Thus, she claimed damages from the defendant.

The claim was defended.

The matter proceeded to a pre-trial conference where, due to the plea that had been taken by the defendant, the issues for trial were settled as follows:

1. Whether the plaintiff and the defendant entered into an agreement of sale in respect of House No.52 Beira, Mahombekombe, Kariba;

2. Whether the defendant breached the agreement of sale by failing to transfer the property to the plaintiff;

3. Whether, as a result of the breach, the plaintiff is entitled to consequential damages, and, if so, the quantum thereof;

4. Whether the plaintiff is entitled to costs on a legal practitioner and client scale.

At the trial of the matter, the parties advised that the defendant was no longer defending the claim and that the sole issue that fell for determination in this matter is the quantum of damages due to the plaintiff.

The parties further narrowed down the issue between them to one of establishing the current market value of the property. The defendant agreed that such would represent the quantum of damages due to the plaintiff.

It is pertinent at this stage to note that prior to the matter being set down for hearing, the plaintiff had applied to amend her declaration to increase the amount of damages sought to US$35,000=. No objection having been raised against the amendment, I duly granted it with the consent of the defendant.

The plaintiff called the evidence of one Emmanuel Mutambirwa. He is employed by the City of Harare as a Chief Valuations Officer. He holds a Diploma in Quantity Surveying, a Bachelor of Banking and Commerce degree and an MBA, amongst his qualifications, all of which are set out in the report that he compiled on the value of the property in dispute. In or about October 2008, he visited the property in question and formed the opinion as to the value of the property. He revisited his opinion on 12 February, and, taking into account the trends in the property market, revalued the property at US$35,000=.

The witness, who, in my view is well qualified to give values of properties, gave his evidence well. He was understandably excited in having to be the first to testify in the matter and at times would be unnecessarily argumentative in his responses to questions put to him in cross-examination. All in all, I have little difficulty in accepting that he gave me his honest opinion on the value of the property in dispute.

The defendant also testified as to the value of the property.

He averred that he purchased the property from his employer, on a date that he cannot recall, for the sum of $150,000=. In his opinion, if he were to sell the property on the date of the trial, he would not ask for more than US$5,000=.

Clearly, the defendant is not an expert in the field and his opinion, as to the value of the property, is of marginal probative value.

The issue that has exercised my mind in this matter is not so much the current market value of the property in dispute, but, rather, whether, in the circumstances of this matter, I can award damages sounding in foreign currency.

In his address, counsel for the plaintiff was of the view that I can, following the decision in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC). On his part, counsel for the defendant confined himself to arguing that the plaintiff had not sufficiently proved her claim.

Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) was a ground breaking decision seeking to reconcile two conflicting judgments of this court.

In 1985, MFALILA J, in National Food Distributors v Weltman 1985 (2) ZLR 310 (HC), had held that in the face of exchange control restrictions, Zimbabwe courts could not freely give judgments in foreign currency even where the proper law of contract is foreign law. Anyone seeking redress in Zimbabwean courts would have to state their claim and have their judgment in Zimbabwean currency. In 1988, ADAM J took a different position in the Makwindi Oil Procurement Company matter, a decision that was then taken on appeal.

After reviewing the trend in English and South African cases on the issue, GUBBAY CJ was of the view that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative approaches taken in England and in South Africa, in making orders in foreign currency had to be adopted. This would bring Zimbabwe into line with many foreign legal systems.

Specifically regarding the award of damages in foreign currency, the learned judge appears to have fully endorsed the approach taken by the House of Lords in two appeals held concurrently were unanimous that that the approach taken earlier would also apply to claims for damages.

In allowing the appeal that was before them, GUBBAY CJ held, on the facts of the matter before the court, that the plaintiff, a company that conducted business in this country and was subject to exchange control regulations, and had to purchase its foreign currency using local currency, had failed to persuade him that its loss was in United States Dollars. He was of the view that the loss of foreign currency was felt or borne by the national foreign currency reserve and not by the plaintiff itself.

From his judgment, it appears to me that GUBBAY CJ was approving the approach by LORD WILBERFORCE in Owners of the MV Eleftherotria v Owners of the MV Despina R [1971]1 All ER 421 (HL)…, where he stated:

“It appears to me that the plaintiff, who normally conducts his business through a particular currency, and who, when other currencies are immediately involved, uses his own currency to obtain those currencies, can reasonably say that the loss he sustains is to be measured not by the immediate currencies in which the loss first emerges but by the amount of his own currency, which, in the normal course of operation, he uses to obtain those currencies. This is the currency in which his loss is felt, and is the currency which it is reasonably foreseeable he will have to spend.”

In the same year that the Supreme Court handed down its judgment in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC), a similar approach was taken in South Africa in Elgin Brown and Hammer v Dampskibsselskabet Torm Ltd 1988 (4) SA 671 (NPD).

After citing the passage I have cited above from Owners of the mv Eleftherotria v Owners of the mv Despina R [1971]1 All ER 421 (HL), the learned judge in that matter proceeded to hold that the court has a discretion which currency to award the judgment in, and, with refreshing clarity, had this to say about claims for damages…,:

“Where a loss is in fact suffered in a foreign currency, there is, as I see it, no reason not to assess and quantify the damages in that currency; indeed, not to do so might be to deny a plaintiff the amount of his actual loss.”

In the matter before him, the learned judge observed that the main heads under which the loss suffered by the plaintiff were either in the sense of money actually expended or money not received. These amounts were all in foreign currency, and, in the opinion of the learned judge, the plaintiff's loss was felt in foreign currency. That being so, the only way the plaintiff could be compensated properly for its loss was to grant judgment in foreign currency.

A review of the authorities on the matter appears to me to indicate that where there is no statutory bar, the courts can award judgments sounding in foreign currency. For damages claims, the plaintiff must prove that his or her loss was suffered in foreign currency, or, put in the language of LEON J in Elgin Brown and Hammer v Dampskibsselskabet Torm Ltd 1988 (4) SA 671 (NPD), the plaintiff must prove that he or she felt the loss in a foreign currency.

In casu, the plaintiff has approached the court for damages arising out of the failure of the defendant to transfer to her certain immovable property. I am persuaded that the property may command a purchase price of the amount of the claim by the plaintiff. However, it has not been argued before me that the property does not have a value in local currency. I would want to believe that it still has, but, as implicit in counsel for the applicant's submissions, the United States Dollar and other foreign currencies from the region have become the de facto currencies of Zimbabwe. The local currency has been rendered valueless by inflation.

In my view, the facts of this matter and the challenges posed by the hyperinflationary environment that Zimbabweans find themselves operating under present a res nova that was not envisaged by the decisions that I have referred to above. The issue that arises is whether a claim for delictual damages may be redressed in foreign currency where it has been felt in both the local and the foreign currency but the local currency has been ravaged by inflation and is de facto valueless.

The authorities seem to suggest that where the loss has been suffered in a particular currency, there is no good reason why the court should not award damages in that currency. They do not seem, to me, to proceed further to hold that where a loss has been suffered, the plaintiff may choose that currency in which he or she would like the loss to be redressed.

In my view, the facts of this matter present a situation where a loss has indeed been suffered. The loss so suffered has been calculated in one foreign currency as opposed to the local currency for the reasons given by counsel for the applicant.

It appears to me that the issue I have to determine is whether to extend the approach that has been taken in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) and be innovative enough to suggest that where a loss has been suffered and can be calculated in both the local and in a foreign currency, the court has a discretion to award judgment in that currency that will redress the injury suffered and adequately compensate the plaintiff for the loss. It would then follow that where that currency is the foreign currency as opposed to the local currency, then judgment should be in the foreign currency - for, to award damages in the local currency, where the local currency has been rendered valueless by inflation might be to deny a plaintiff the redress that he or she seeks.

I must confess that I find this approach attractive.

It is not in violation of any statutory provision governing exchange control. It does not render the local currency any less legal tender than do other judgments expressed in foreign currency. It is simply an act of applying the approach to a situation that has arisen due to the ravages of inflation and one that could not have been anticipated when Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) was decided. Like the Law Lords in 1975, I am merely opting for a more realistic approach to the current economic conditions prevailing in the country, and, as GUBBAY CJ observed in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…,:

“That the majority of the Law Lords succeeded in surmounting (such) an obstacle and opted for a more realistic approach to modern economic conditions, is strongly illustrative of the concept, never to be overlooked, that the law is a living system that adapts to the necessities of present times and is to be given new direction, where, on principle and in reason it appears right to do so.”

In the result, I make the following order:

Judgment with costs is hereby entered for the plaintiff in the sum of US$35,000=.

On 26 August 2004, the plaintiff instituted proceedings in the High Court wherein it sued for $60,000,000= being the sum assured in terms of a motor vehicle comprehensive policy it held with the second defendant. The first defendants were the insurance brokers who facilitated the policy.

On 21 December 2006, and before the pre-trial conference, the plaintiff amended its claim by the addition of paragraph 10 which is a claim for consequential damages in the sum of $100,000,000= being the replacement value of the vehicle.

The first defendant pleaded that it first acted as the second defendant's agent and its obligation ended as soon as the policy was in place and that the premium had not been paid at the time of the accident hence the policy was revoked.

The second defendant, in its plea, pleaded ignorance of the policy and put the plaintiff to the proof thereof.

At the commencement of the trial, the second defendant applied for, and was granted an amendment to its plea. The amendment was a withdrawal of the initial plea and its substitution with a plea to the effect that;

1. The first defendant, as agent of plaintiff, entered into an agreement with the second defendant that the plaintiff should pay the insurance policy premium of $3,524=26 in equal installments over a period of 3 months as from 25 February 2004.

2. That the plaintiff did not comply with this agreement, and, as at the date of the accident the plaintiff had not performed its obligations to pay the instalments.

3. In any event, the plaintiff is covered for a total of $60,000= in terms of the policy and is contractually precluded from claiming more.

The plaintiff gave evidence through its Managing Director, Mr. Zisengwe. Mr. Gideon Muchakwa gave evidence for the first defendant after which Mr. Moses T. Chakaringa and Mr. Member Murasiranwa gave evidence for the second defendant.

From the evidence adduced in court the following are common cause.

The plaintiff entered into an insurance contract with the second defendant. This was done through the first defendant who acted as broker. The premium was put at $3,524,259=. The insured value was put at $60,000,000= (old currency). On 10 February 2004, the plaintiff paid $200= (revalued) towards the premium. The plaintiff was then issued with a policy document dated 18 February 2004. The period of insurance was stated as 'From 10/02/ 04 to 31/01/05 (both dates inclusive)'.

On 23 March 2004 the motor vehicle so insured was involved in an accident and was declared a write off. As at the time of the accident, the plaintiff had not paid the balance of the premium. Such balance was only paid on 7 April 2004 to the first defendant. When the plaintiff attempted to make a claim on the policy the second defendant refused to honor the claim on the basis that the plaintiff had not paid the premium as per policy.

The testimony by Mr. Zisengwe was to the effect that the plaintiff had been asked to pay the premium in three months. It was never stated that the instalments had to be equal. At the time of the accident the three months period had not lapsed. When the accident occurred the plaintiff was asked to pay the balance in order that its claim can be sent to the second defendant - and it did so. In this regard he tendered two receipts as exhibits 1 and 2 for the payments.

The first defendant's evidence, on the other hand, was to the effect that when Mrs. Zisengwe came to insure the plaintiff's motor vehicle she was told the premium that had to be paid. As she did not have the full amount she was allowed to pay $200= on her undertaking to pay the balance in two weeks time. She was warned of the consequences of not paying the full premium. After failing to pay within that period the first defendant extended the period to three (3) months. According to Mr Muchakwa, this extension was at the plaintiff's risk.

At the pre-trial conference, the issues were viewed as;

“1. The interpretation of clause 1 of the contractual document. It being admitted that plaintiff paid its premium on 25 February 2004; and

2. The quantum of damages.”

After hearing evidence from the witnesses, it was apparent that the parties were not agreed that the premium was paid on 25 February, 2004. The receipts tendered showed the initial payment was on 10 February 2004 and the second payment was on 7 April 2004.

The main issues would thus be;

1. Whether or not the plaintiff had paid the premium in terms of the policy;

2. Whether or not the defendants are liable to the plaintiff as per claim;

3. Whether or not the plaintiff is entitled to payment of the sum of $100,000,000= in respect of its claim for the loss of its motor vehicle in terms of the policy agreement; and

4. Who between the defendants is liable to pay the plaintiff.

PAYMENT IN TERMS OF THE POLICY

The policy document, in its preamble, states that “whereas the insured, by a proposal and declaration which shall be the basis of this contract and deemed to be incorporated herein, has applied to the company for the insurance and has paid the premium as consideration for such insurance in respect of accident loss or damage occurring during the period of insurance.”

That preamble presupposes the applicant has paid the premium.

I did not hear any party to interpret that paragraph in any way as pre-supposing that premium would not have been paid. It is in that light that the issue of payment of the premium is important.

The plaintiff's case was that in spite of this there was a premium payment plan in place which was agreed with the first defendant at the time the policy was agreed in terms of which the premium was payable over a period of three months. Mr. Zisengwe tendered exhibit 3 as proof of the arrangement.

Paragraph 2 thereof states that;

“We hasten to add that a premium payment plan had been agreed to spread payment over three months and initial payment had been effected on receipt of policy before the accident, which we take cognizance of.”

This letter is from the first defendant to the plaintiff. The first paragraph thereof shows clearly that the second defendant was refusing to pay on the premise that premium payment was done after the loss which aspect they contended vitiates the terms and conditions of the policy.

In his evidence Mr. Muchakwa did not deny this.

The first defendant having allowed the plaintiff to pay in instalments found itself in difficulties to persuade the second defendant to pay.

In both its plea and in evidence the first defendant acknowledged that it had no authority to allow the plaintiff to pay its premium in installments. It is because of that lack of authority that it asked the plaintiff to pay up before they could file their claim. It is clear beyond doubt that the payment arrangement was initially as between the plaintiff and the first defendant. That arrangement was apparently not in terms of the policy document. It was an arrangement the first defendant agreed to for the convenience of the plaintiff and not because there was express authority from the second defendant for the first defendant to grant such payment terms.

The second defendant's evidence was to the effect that the insurance policy the plaintiff took out required a one off payment. In the instance case no such payment was made hence it declined the plaintiff's claim. However, in its amended plea, the second defendant stated that “first defendant, acting in its capacity as agent for plaintiff entered into an agreement with second defendant that plaintiff should pay the insurance policy premium of $3,524= 26 in equal installments over a period of 3 months as from 25 February 2004.”

There was thus contradiction between the second defendant's plea and evidence by its witnesses. The witnesses could not explain away the contradiction.

Mr Muchakwa who should have been better placed to testify on this was a ball of confusion and contradictions. For instance, whilst being categorical that the policy was of a one off payment at inception he was, at some stage, heard to say the second defendant should nevertheless have honored the claim. He found it difficult to admit the first defendant's negligence in not advising the plaintiff of the consequences of partial payment and also in not advising the second defendant about the credit arrangement with the plaintiff.

The second defendant, through Mr Murasiranwa, indicated that upon receipt of $200 towards payment of the premium they questioned the first defendant about it. The first defendant was reminded that a failure to pay the full premium would lead to the invalidity of the policy for non-remittance. When asked why the second defendant had not advised the first defendant of the invalidity of the policy in view of non payment of the premium Mr Murasiranwa said that events took over as the accident took place. In terms of clause 8 of the General Conditions of the policy document the second defendant could have cancelled the policy.

Despite not receiving full premium the second defendant issued the policy document and had not cancelled it by the time of the accident.

The amended plea acknowledges the arrangement to pay in instalments. If therefore the second defendant wishes to rely on a breach of contract the burden of proof is on it. See Brightside Enterprises (Pvt) Ltd v Zimnat Insurance Co. Ltd 1998 1 ZLR 117.

In casu, the second defendant seemed to have condoned the payment in installments and conceded in its amended plea that; “First defendant, acting in its capacity as agent for plaintiff entered into an agreement with second defendant that plaintiff should pay the insurance policy premium of $3,523=26 in equal installments over a period of 3 months from 25 February 2004.”…,.

The second defendant can thus not seek to rely on such mode of payment not to honor the claim.

Another point regards the first defendant's position.

Though in their initial pleadings impression was created that the first defendant was the second defendant's agent the closing submissions were clear that an insurance broker can act as agent for both the insured and the insurer. In Gordon and Getz on The South African Law of Insurance, 4^th edition by D.M DAVIS…, it is stated that:

“An insurance broker acts primarily as the insured's agent to obtain insurance, though he receives his commission from the insurer, and may, for limited purposes, such as collecting the premium, be the latter's agent.”

In casu, therefore, the first defendant was the insured's agent when they secured insurance cover for the plaintiff from the second defendant, but, in collecting the premiums and remitting them to the second defendant the first defendant acted as the second defendant's agent.

When the first defendant was now collecting money this was for and on behalf of the second defendant. Upon receipt of the money it was the first defendant's responsibility to account to the second defendant as the second defendant's agent. The second defendant, by accepting part payment of the premium, was in fact confirming its acceptance of the arrangement the first defendant had made with the plaintiff for the payment of the premium and that the first defendant was its agent in collecting the premium.

That probably explains the assertion in its amended plea acknowledging the arrangement to pay in three instalments.

If the second defendant had rejected the arrangement it should not have issued the policy document, or, at least, it should have cancelled the contract as soon as it became aware of the credit arrangement if such had not been known to it when it issued the policy document.

Instead of cancelling the contract, the second defendant opted to merely warn the first defendant, who, by then, had become its agent of the risk of non-payment of the full premium yet the contract provides that the second defendant could have cancelled the contract. Paragraph 8 of the General Conditions states that;

“The Company may cancel this policy by sending seven days notice by registered letter to the insured at his last known address, and, in such event, will return to the insured the premium paid pro-rata portion thereof for the period the policy has been in force…,.”

The second defendant gave an impression to the plaintiff that the arrangement was acceptable. If the second defendant now wishes to rely on such breach, which was there from inception, the onus is on it to prove such breach and to show that such vitiated the contract in spite of its own conduct.

This, the second defendant did not do.

The question of payment of the balance of the premium is between the first defendant and the second defendant. This is so because the plaintiff paid to the first defendant and it was for the first defendant, as agent for the second defendant, to account to the second defendant. The first defendant received the money on 7 April 2004 as agent for the second defendant. The second defendant had an arrangement with the first defendant on when and how premiums received on its behalf by the first defendant would be transmitted.

Though the two witnesses for the second defendant did not seem of the same mind on the period of credit the first defendant was granted, it was certainly a period of at least 60 days. Mr. Chakaringa put the credit period granted the broker at 90 days whilst Mr. Murasiranwa put the period at 60 days. They both agreed, however, that such credit was only to the broker and did not extend to the insured. As already alluded to, this contradicts the amended plea. Both witnesses indicated that queries on premium payments would be by the Accounts Department of which they were not part of.

Exhibit 2 confirms payment of the balance to the first defendant on 7 April 2004.

The first defendant alleged that it paid that sum over to the second defendant. As proof of the payment, the first defendant produced a document called BORDEREAU. Mr. Muchakwa argued that this was proof of payment to the second defendant. The document is addressed to Global Insurance from Kantharia Insurance Brokers and is titled; 'INTIMATION OF MARCH 2004 BORDEREAU'. It was tendered in as exhibit 5.

Item 6 thereon refers to the plaintiff and the balance of the premium.

Whilst Mr. Muchakwa argued that that was proof of payment Mr. Murasiranwa said that was just an intimation of what was to be expected. Proof of payment would be titled 'Payment bordereau'.

In any case, this could not have been proof of payment as the plaintiff had not paid the balance.

It is my view that not enough evidence was adduced to show that that sum was paid over to the second defendant. That is however as between the defendants and should not prejudice the plaintiff.

QUANTUM

It is common cause that the plaintiff insured its motor vehicle with the second defendant, through the first defendant, for the sum of $60,000= (revalued). In terms of that contract, the second defendant, in the event of a loss may pay the plaintiff the estimate of the value of the motor vehicle as specified in the schedule or the reasonable market value of the motor vehicle at the time of the loss or damage whichever is less. Paragraph 2(a) of section 1 of the policy document is quite clear on this when it states that, inter alia;

“…,. The Company may, at its own option, repair, reinstate or replace the motor car and /or…, may pay in cash the amount of the loss or damage and the liability of the Company shall not exceed the actual value of the parts damaged or lost plus the reasonable cost of fitting and such parts shall in no case exceed the insured's estimate of the value of the motor car including the accessories and spare parts thereon as specified in the schedule or the reasonable market value of the motor car including accessories and spare parts thereon at the time of the loss or damage whichever is less.”

I did not hear the plaintiff to deny that this was a limited value policy.

In his evidence, Mr. Zisengwe conceded that the policy was indeed a limited value policy. His argument for $100,000,000= was thus not based on the provisions of the contract.

The plaintiff alleged that “as a result of the defendants' breach of the insurance contract the plaintiff has suffered consequential damages in the sum of $100,000,000= which is the current replacement value of the motor vehicle.” This amendment was only to that extent. It did not go so far as to expunge the initial basis of the claim which was contractual.

In his closing submissions, the plaintiff's legal practitioner argued that it is not unheard of that even where a party is contractually bound to perform certain obligations, should he do so negligently the wronged party may sue both in contract and in delict.

Unfortunately, counsel could not cite any authority in support of this, and, in any case, the suit here was in contract and not delict. The nature of the amendment did not change the nature of the suit at all. Nowhere in the amendment is there any allegation of negligence on the part of the defendants.

The basis advanced by the plaintif'fs counsel for seeking consequential damages are based on what he termed common cause that;

1. That the sum assured is $60,000,000= (which is now $60,000= revalued).

2. That at the time of the inception of the contract that sum was the pre-accident estimated value of the motor vehicle.

3. That due to the volatile economic environment (which the court was urged to take judicial notice during the trial), the sum of $60,000= is but a tiny fraction of the actual market value or replacement value of such a vehicle.

4. That the first defendant, in a letter to the plaintiff, acknowledged the premium payment plan and acknowledged liability on behalf of the plaintiff.

5. That had payment of the $60,000= been made in 2004 the plaintiff would have been indemnified against his loss.

6. That the refusal to pay was grossly unreasonable in view of the facts.

Counsel for the plaintiff argued that in view of the above facts and also of what he perceived to be clear liability the defendants acted wrongfully in repudiating the claim.

The law in this aspect is quite clear.

“Property insurance is a contract for indemnity. The insurer's liability is therefore limited to the 'real and actual' value of the loss suffered by the insured through the happening of the event insured against. It cannot exceed either the amount insured or the amount of the insurable interest; and if it exceeds either or both these items, it must be reduced to correspond with the smaller of them.”

See Gordon and Getz on The South African Law of Insurance, 4^th edition by D.M DAVIS …,.

In cases of limited valued policy which specified the agreed value of the subject matter of the insured therefore the parties are bound by the value agreed to. In the case of Elcock v Thomson [1949] 2 ALL ER 381…, MORRIS J said;

“When the parties have agreed a valuation, then, in the absence of fraud or of circumstances invalidating their agreement, they have made an arrangement by which for better or for worse, they are bound.”

In General Principles of Insurance Law by E.R.H. IVAMY, 4^th edition…, the author thereof states that;

“In the case of a 'valued' policy the amount recoverable is fixed by the policy…,. In the case of an insurance upon property, the value of the subject matter may be fixed by agreement and inserted in the policy as the amount recoverable in the event of loss. This valuation is binding, except in the case of fraud or mistake, and dispenses the assured from the necessity of proving the value of his interest, though he still must prove that he has an interest in the subject-matter of insurance.”

A valued policy is one which specifies the agreed value of the subject-matter of the insurance.

In casu, there is no allegation of fraud or mistake. The plaintiff simply argued that by their refusal to pay when he lodged his claim the defendants acted grossly unreasonably and so must be made to pay consequential damages that would enable the plaintiff to buy a similar motor vehicle.

From the evidence adduced can it really be said that the defendants' refusal to pay was grossly unreasonable?

It is my view that there was no such unreasonableness as clearly the defendants were entitled to contest the claim as the plaintiff had only paid a fraction of the premium by the time of the accident. The contract required a one-off payment but for the plaintiff's failure to do so that led to the first defendant granting an extension of time within which to pay the balance. This not having been an express term of the contract, and, in fact, being contrary to the express provisions of the contract the second defendant cannot be said to have been unreasonable in seeking to repudiate the contract.

The defendants had an arguable case.

I am of the view that the plaintiff has not made out a case for a claim outside the policy document. The policy document shows the sum insured as $60,000,000=. In terms of that document there are some deductions to be made in the event of a claim as indicated in exhibit 6. The defendants witnesses outlined the deductions as including salvage value @ 30% of the sum assured, excess applicable in terms of the policy @ 4% of the value.

Mr. Murasiranwa confirmed the calculations as per exhibit 6. The calculations were as follows:

Sum insured of the vehicle at the time of the loss $60,000.00

Less salvage value @ 30% of the sum insured     $18,000.00

                                                                                $42,000.00

Less Excess applicable in terms of the policy

(4% of vehicle value)                                                $ 2,400.00

Claim amount                                                           $39,600.00

Less outstanding premium $3,524.26 less $200      $ 3,324.26

Amount due and payable                                          $36 275.74

As it was proved that the plaintiff paid the balance of $3,324=59, albeit after the accident, it follows that the sum payable to plaintiff is $39,600=.

As between the defendants the issue is who must pay the plaintiff?

In as far as the first defendant acted as agent for the second in collecting the premium, the second defendant cannot be absolved as the principal. Indeed “where the agent has authority to receive payment of premiums on behalf of the insurers, the effect of the payment is the same as if it had been made to the insurers themselves and the fact that the premiums thus received by the agent have been misappropriated by him, or have not reached the insurers owing to his bankruptcy, affords them no defence against a claim by the assured upon the contract.” See General Principles of Insurance Law by E.R.H. IVAMY, 4^th edition…,.

In the circumstances, the second defendant is liable as the insurer.

COSTS

In as far as the plaintiff has succeeded, albeit to the sum as per the policy document, I am of the view that the plaintiff's argument for costs on a higher scale cannot succeed. The plaintiff is entitled to costs on the general scale from both defendants.

Accordingly, judgment is entered for the plaintiff and against the second defendant in the sum of $39,600= (re-valued) with interest at the prescribed rate from the date of summons to date of payment in full.

Costs on the general scale against both defendants jointly and severally with one paying and the other to be absolved.

The distortions caused by the galloping inflation currently characterizing our economy are graphically shown, in part, by the claims that are being brought before the courts. The above, in my view, is one such example.

While inflation is a fact that they must take judicial note of, courts must, in my view, be wary that the distortions caused by inflation in the economy are not transported wholesale into the law thereby causing distortions of legal principles.

The plaintiff operates a butchery from Muzarabani Business Centre in Mashonaland Central. In 2003, he thought of adding to his assets by having a freezer room installed at the butchery. He approached the defendant, who, in or about September 2003, gave him a quotation for installing a 6x8x8 cubic metre cold room for $13 million. In terms of the written quotation, the plaintiff was required to pay 50% of the total cost as a deposit and to show confirmation of the order. A deposit in the sum of $5,4 million was duly paid on 29 September 2003 and installation was to be done in a week's time. On 17 October 2003, the defendant delivered the cold-room, ready to install and commission it. Upon realizing the error, the plaintiff declined to accept delivery and installation of the coldroom whereupon the defendant returned to Harare with the cold room. Efforts to get the defendant to return and install a freezer room were in vain, prompting the plaintiff to approach his legal practitioners for assistance.

In April 2004, the defendant refunded the sum of $1,955,000= to the plaintiff, retaining the sum of $3,445,000= as necessary expenses incurred in manufacturing and attempting to deliver the cold room to the plaintiff. Unhappy with this development, the plaintiff issued summons claiming a payment of the sum of “$13,000,000= of $2,480,000= which is current $657,200,000=, with room to in increase it to match the current costs of installing a freezer room at trial”…., together with interest at the prescribed rate from date of the deposit to date of payment in full and costs of suit.

At the trial of the matter, the claim was amended to $53 billion.

The matter was defended.

In its plea, the defendant denied that it ever quoted the plaintiff for the supply and installation of a freezer room and averred that it quoted it for the supply and installation of a cold room.

At the trial of the matter, the defendant was in default, and, in terms of Rules 59A and 60 of the High Court Rules, 1972 I called upon the plaintiff to lead evidence on the amount of his claim.

The plaintiff's evidence was largely a rehash of the facts of the matter as I have detailed above. In addition, the plaintiff adduced into evidence a quotation that he obtained from a company called Commercial Refrigeration in the sum of $202 billion. The date of the quotation is not given on the handwritten quotation which also includes a component of foreign currency.

When asked to explain his claim in the sum of $53 billion, the plaintiff had the following to say, in part:

“I am claiming an amount that has the same value as the amount that I paid to the defendant in 2003.”

He went on, further, to explain that the amount he is claiming is one quarter of the total amount of the quotation from Commercial Refrigeration just as the amount that the defendant retained was a quarter of the quotation it had given him.

At the commencement of the trial I was under the impression that the plaintiff's claim was one of damages.

It was with this response that it appeared to me that he is simply claiming a refund of the amount that the defendant retained as expenses of manufacturing the cold room and travelling to and from Muzarabani with the wrong refrigeration unit, not at its nominal value, but, at its appreciated value, taking into account the impact of inflation.

His claim appears to me to be one for a debt and not for damages arising ex contractu.

The plaintiff's evidence was to the effect that the sum of $3,445,000= that was retained by the defendant in 2004 now has the same value as $53 billion which he claims. It became clear to me, from this response, that the plaintiff is raising inflation as the basis of his claim.

The plaintiff's stance was re-affirmed by counsel for the plaintiff when he addressed me on the issue.

His argument was to the effect that the plaintiff is entitled to claim the same percentage of the amount that it will now cost to supply and install a freezer room as was the percentage of the amount that the defendant retained in 2004 to the cost of installing a cold room in 2004.

Judges have often used telling adjectives to describe submissions they did not expect from legal practitioners such as “startling” or “ingenious”. Neither term aptly describes my sentiments at being presented with this submission.

I hasten to remark that the matter before me, although set down for trial, proceeded as an application for default judgment.

Ordinarily, a request for default judgment is hardly denied, as, by his default, the defendant is taken to have admitted all the averments made by the plaintiff. I am also aware of the school of thought that holds the view that it is not for a judge or the court determining an application for default judgment to act as the unpaid and un-briefed counsel for the defendant who is in default and deny a plaintiff judgment on issues that the defendant may not have raised if in attendance. Thus, a court dealing with an application for default judgment is perfectly within its rights to enter a default judgment not on the merits of the matter but on the technical basis that the defendant is in default even in cases where it is of the opinion that a defence may have been available to the defendant.

There is, in my view, however, a limit to the non-participatory role that a court may play in an application for default judgment. In my view, where a claim is clearly not well founded in law, a court may not give judgment on such a claim simply on the basis that the defendant is in default. Similarly, where damages have not been adequately proved to the satisfaction of the court, judgment may not be entered in the claimed sum; again, simply on the basis that the defendant is in default.

The basis for drawing the limit to the non-participatory role of the court, in my view, is the fundamental principle that after the parties have made their submissions to the court, the decision or order that is made is solely that of the court and such decision or order must find a basis in law at all times.

In my view, the claim before me is a case compelling me to abandon my non-participatory role for two reasons;

(i) Firstly, I take the view that the plaintiff's claim, being a claim in which the alleged debt has been appreciated to take into account inflation, is badly founded in law. Courts will take inflation into account when assessing damages in certain delictual claims but inflation, on its own, cannot be a cause of action.

In Edward Marume and Another v Todd Muranganwa HH27-07, I had occasion to deal with the issue of inflation in another application for default judgment. The following were my views on the matter:

“In my view, the issue involves a detailed discussion of 'currency nominalism' and 'revalorization' and the place of such concepts in Zimbabwean Law.”

The concept of currency nominalism has been held to be applicable in all aspects of South African Law. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833. In view of the provisions of the Prescribed Rate of Interest Act, there is a strong case for arguing that the concept also underlies all aspects of Zimbabwean law and that revalorisation, or the appreciation of debts to take into account inflation has no place in our law.

Again, like in Edward Marume and Another v Todd Muranganwa HH27-07, I have not been adequately addressed on the issue.

I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.

Assuming that I have erred in classifying the plaintiff's claim as one based on inflation, and that properly it is one seeking damages for an alleged breach of contract, then, in my view, two other issues arise;

(i) Firstly, it has not been proved that the retention of the sum of $3,455,000= was wrongful in any way or that it constituted breach of the contract between the parties. In fact, it would appear to me that the parties were not ad idem as the plaintiff requested for a freezer room and the defendant supplied a cold room. The offer and the acceptance did not coincide and the parties never had a contract in my view.

Even if one were to be generous and hold that there was a contract that the defendant breached by supplying the wrong refrigeration unit, the damages suffered by the plaintiff for the alleged breach have not been adequately proved.

It cannot be said that the quotation from Commercial refrigeration in any way represents the correct loss of value in money between 2004 and the date of the hearing. It has also not been proved that the quotation by Commercial Refrigeration has any relationship to the quotation given by the defendant in 2003. One was quoting for a cold room of different dimensions and the other was quoting for a freezer room of entirely different dimensions.

How the one can be tendered as proof of the value of the other was not argued before me.

Despite much effort, I cannot figure out a possible argument on the relationship myself.

For the above reasons, I cannot accede to the prayer for default judgment in the matter in the amount prayed.

I have anxiously considered whether I can grant judgment in the sum of $3,455= that was retained by the defendant in 2004 together with interest thereon at the prescribed rate from the date of the retention to date of payment. The amount involved, even with interest, is so pitiful, in my view, as to make a mockery of the justice delivery system where I to order its payment. In m view, the plaintiff is best served by the order that I make below.

In the result, I make the following order:

1. The defendant is granted absolution from the instance.

2. The plaintiff is hereby granted leave, after effecting necessary amendments to his claim, and upon service of such on the defendant, to set the matter down for judgment in terms of Rule 58 of the High Court Rules, 1972.

3. There shall be no order as to costs.

I have already dealt with the deficiencies in the methodologies used by Nikita Masaya, Trenly Miles, and Anthony Derek Lamb, in setting the values of the four properties.

The method used by Anthony Derek Lamb of upgrading values is contrary to our law. It offends against the principle of nominalism that was enunciated by E.M.GROSSKOPF JA in SA Eagle Insurance Co. Ltd v Hartley 1990 (4) SA 833 (A)..., in the following terms:

“It would represent a revolutionary transformation of our legal system if courts were to be called upon to determine the true economic value (in terms of purchasing power) of all obligations sounding in money. I need not, however, labour this point; currency nominalism, for whatever reason, is firmly entrenched in our law.”  

At 839G she had defined “nominalism” in these terms:

“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 the currency. This places the risk of a depreciation of the currency on the creditor, and saddles the debtor with the risk of an appreciation.”

The learned Judge of Appeal emphasised..., that while the principle affected debts, it did not apply to general damages. In dealing with such damages, one would be determining, not a monetary debt, but a valuation of a non-monetary loss, which has to be made in terms of the currency values obtaining at the time of valuation, and not in an earlier time. She further noted that a valuer of a farm would not use the currency of the past, and concluded that “a monetary debt is not, however, subject to a similar type of valuation. It has to be paid according to its nominal value.”   

The principle was adopted in Zimbabwe by CHINHENGO J in Muzeya v Marais & Anor HH80/2004.., and passing reference was made by the JUDGE PRESIDENT in Marume & Anor v Muranganwa HH27/2007...,.

The principle of nominalism militates against the upgrading of values, as was employed by Anthony Derek Lamb in his Table.

While nominalism would not apply to evaluation of the properties in issue, or any other property for that matter, it would apply to monetary debts such as those that the plaintiff referred to as adjustments.

It would apply to the durawall and roofing assets disposal; property sales not banked; Planka rents not banked; and reservoir payments that appear in Anthony Derek Lamb's Table.

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

In view of the conclusion that I have reached..., it is not necessary that I determine whether this court can order refund of a purchase price paid in pursuance of an illegal transaction, where to do so will result in this court issuing a judgment sounding in foreign currency.

In the present case, the plaintiff is seeking to enforce an illegal claim through the backdoor.

The court cannot lend its assistance to the enforcement of an illegal transaction, that is, the conversion of a debt sounding in local currency to foreign currency, where there has been no prior agreement to do so.

What the plaintiff is asking the court to do is to enforce an illegality on the basis of financial sympathy. This is a wrong device to use.

This court cannot lend its aid in the enforcement of a claim now couched in foreign currency when the debt was in local currency.

The following order is accordingly made:-

1. Judgment is entered in the sum of $300 million dollars together with interest at the prime overdraft interest rate of Barclays Bank per month, calculated from the 31^st of March 2005 to the date of last payment.

In the alternative, the plaintiff claimed payment of the sum of $29,793,200= being the value of the property that allegedly went missing.

That value, however, is inclusive of items of property for which the plaintiff failed to adduce evidence specifying such items. In any event, the change of the Zimbabwe currency, as published in Statutory Instruments 199/2006 to 6/2009, S.I.199 of 2006 to S.I.6 of 2009, renders the amount claimed non-existent. No attempt was made by the plaintiff to amend its claim in any way.

This is an urgent chamber application for stay of execution pending review. The relevant background to this matter is as follows:

On 14 December 2009, the Regional Court sitting at Harare convicted the applicant Bank of contravening section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and sentenced the applicant to pay a fine of $500 and also ordered the applicant to compensate the first respondent the sum of $250,000.

The learned Magistrate suspended the payment of the fine to the next day, 15 December 2009. Immediately after the sentence, the applicant noted an appeal against both conviction and sentence.

That appeal is still pending before this court.

Mr Clemence Zingoni, who deposed to an affidavit on behalf of the applicant says that he was shocked to hear, on 17 December 2009, that, on the same day, the second respondent, armed with a writ of execution together with a Bond of Indemnity, had been at the applicant's Head Office with the intent to attaching property in order to satisfy the Order of Restitution.

Mr Zingoni averred, that, the issuing of the writ was improper and unlawful, as, the effect of noting of an appeal against the magistrate's decision was to suspend its execution. The writ was therefore defective as it could not be issued in those circumstances.

It was Mr Zingoni's further contention that the value of the writ exceeded the jurisdiction of the Regional Magistrate as prescribed by Statutory Instrument 21 of 2009.

It was also contented, that, in terms of section 372 of the Criminal Procedure and Evidence Act [Chapter 9:07] any Court purporting to enforce a Restitution Order made in criminal proceedings can only do so if it has monetary jurisdiction in the first instance.

Following the service of the writ of execution on the applicant, its legal practitioners immediately filed an ex parte application, on 18 December 2009, in the Magistrate's Court, for stay of execution.

The application was dismissed by a magistrate on the same day.

Immediately thereafter, the applicant filed an application for review of the learned magistrate's judgment. That application for review was filed simultaneously with this application for stay of execution.

It is worthy noting, that, in its application for the review of the conduct of the learned magistrate who dismissed the ex parte application, the Messenger and the Clerk of Court, the applicant concedes, that, the noting of an appeal does not suspend the execution of any sentence of imprisonment, fine or community service as is provided in section 63 of the Magistrate's Court Act [Chapter 7:10].

However, the applicant's argument is that the Order which is subject of these proceedings is neither a term of imprisonment, a fine nor an Order for community service. It is an order for restitution. It is further argued that restitution is not specifically mentioned by the said Magistrates Court Act, and, therefore, in accordance with rules of interpretation, the express mention of the other forms of punishment excludes what is not stated in section 63 of the Magistrate Court Act.

It was also submitted, on behalf of the applicant, that, the trial magistrate, in ordering restitution in the sum of USD$250,000 applied a parallel market exchange rate to the sum of ZWD16.1 trillion, which was unlawful and was not supported by evidence led at the trial and was contrary to the Reserve Bank of Zimbabwe letter designating an exchange rate of ZWD3000 to USD1 as being the exchange rate.

The correct version of facts on which the applicant was charged and convicted is that on 6 March 2008, and in Harare, R.T.O. Engineering (Pvt) Limited supplied the applicant Treasury, and not an individual employee, with Z$16.1 trillion which was to be transferred into some beneficiaries' accounts for the purposes of securing free funds, which funds were intended to buy some mechanized farm equipment. The applicant, thereafter, unlawfully misrepresented to RTO Engineering that it had transferred the money into the beneficiaries' accounts by originating 'swift transfers', and, by means of that misrepresentation caused R.T.O Engineering to believe that the transactions had been effected when in fact only a portion had been so effected causing an actual prejudice of USD$250,000.

The court was advised, that, the court a quo had accepted the fact that upon being paid by R.T.O. Engineering (Pvt), the applicant generated swift confirmations, which are electronic printouts that can only be generated by an authorised dealer after logging onto the international swift platform. 'Swift' is short for 'Society for the World Wide Funds Transfer'.

Upon being paid, the applicant generated the swift transfer to Tatumarchesan in Brazil for an amount of $100,000 only.

The amount paid by RTO Engineering had been meant to raise $351,000 of which $100,000 was sent to Brazil. $251,000 disappeared, and, it is that amount for which the court ordered compensation in the sum of USD$250,000.00.

It is therefore not correct for the applicant to argue, that, the court a quo failed to use the exchange rate applicable at the time. The court was correct in ordering compensation in the amount actually suffered by R.T.O Engineering.

The principle of currency nominalism holds 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 the currency. The principle has been applied in our jurisdiction in cases such as Muyeza N.O. v Marais & Anor HH80-04; Monica Komichi v David Edwin Tanner & Anor HH104-05; Edward Marume & Anor v Todd Muranganwa HH27-07.

CHINHENGO J had this to say in Muyeza N.O. v Marais & Anor HH80-04, after citing with approval SA Eagle Insurance Co. Ltd v Hartley 1990 (4) SA 833 (A)..., -

“I think that it is correct to adopt the principle of nominalism in dealing with all obligations sounding in money. I appreciate that the rate of inflation in Zimbabwe has been high, and, as stated by Mr.Muskwe, it is presently 500%. But a departure from the principle of nominalism will create such uncertainty in the law that the whole system will be unworkable. The monetary obligation to be discharged will then depend on when the plaintiff sought to exact it, and, even more ominously, on when the court handed down its judgment. Therefore, a debt sounding in money must be paid in terms of the nominal value of the currency irrespective of any fluctuations in its purchasing power. In any event, I think the principle of nominalism is even-handed because it places the risk of depreciation of the currency on the creditor, and that of appreciation on the debtor.”

I do not find any basis for departing from this principle either.

The plaintiff relied, in its submissions, in the cases of Leighton v Eagles Insurance Co. (Pvt) Ltd & Ors 2002 (2) ZLR 592 (H) and Cargo Carriers (Pvt) Ltd & Anor v Nettleford & Anor 1991 (2) ZLR 139 (SC).

In Leighton v Eagles Insurance Co. (Pvt) Ltd & Ors 2002 (2) ZLR 592 (H) the court deviated from the principle of nominalism on the basis that the defendant had filed its plea more than five years after the summons was served on it. However, the court..., accepted this to be a departure from the usual principle of determining patrimonial loss. The court in Cargo Carriers (Pvt) Ltd & Anor v Nettleford & Anor 1991 (2) ZLR 139 (SC) did not discuss the principle of nominalism, and, therefore, is not, in my view, of any assistance to the plaintiff.

It is my view that the plaintiff has, therefore, failed to establish the damages in the sum of $69,266,436= (revalued).

In any event, the plaintiff was paid almost the entire initial amount claimed. The outstanding balance of $583,250,000= (old currency) is of no value now (even at the time the trial commenced) because of the removal of zeros over the years by the Reserve Bank of Zimbabwe.

It is my view that there was no basis for the plaintiff to bring this action.

As regards the rate of exchange to be applied to the payment of MK4.8 million, counsel for the plaintiff submits that the figure should be converted at the rate prevailing in 2004 when the payment was received by the plaintiff.

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in the sum of US$12,658, payment of interest on the capital amount at the rate of 10% from the date of the issue of summons to the date of payment in full and costs of suit.

The defendant contested the matter.

The plaintiff's cause of action was disclosed in paragraphs 3, 4 and 5 of its declaration in these terms:

“3. The defendant became indebted to the plaintiff in respect of arrear salaries and other benefits arising from a contract of employment concluded between the parties on or about 21 September 2004 that was terminated by the plaintiff's resignation from employment on 7 March 2007.

4. During the month of April 2007, the defendant partly liquidated the amount claimed by the plaintiff by delivering to the plaintiff a motor vehicle and a laptop computer whose agreed values totalled US$30,000.

5. On or about 18 July 2007, the Group Chief Executive Officer of the defendant, Mr Hamish Rudland acknowledged liability for the sum as at that date of US$70,000 which would attract interest at the rate of 10% per annum.”

The defendant raised a plea in bar based on two grounds before pleading over to the merits. Its plea reads as follows:

“1. As appears from the plaintiff's declaration:-

1.1 The cause of action is predicated on a contract of employment concluded by the parties on 21 September 2004.

1.2 The claim is for payment of alleged arrear salaries and benefits consequent upon resignation.

1.3 The payment of salaries and benefits during and upon termination of a contract of employment is governed by the provisions of the Labour Act [Cap 28:01].

1.4 Accordingly, and in terms of section 89(6) of the Labour Act, this Honourable Court has no jurisdiction to hear and determine this claim.

2. Additionally, but without prejudice to the above, the defendant avers that:

2.1 The contract of employment between the parties provided for payment of salaries and benefits in Zimbabwe dollars, being the lawful legal tender.

2.2 The plaintiff's claim is denominated in foreign currency, namely, the United States dollars.

2.3 At the material time, the payment of salaries and benefits in foreign currency, without exchange control approval, was illegal and unenforceable by virtue of:

2.3 1. The Exchange Control Act [Cap 27:05].

2.3.2. Exchange Control Regulations, 1996, SI 110/1996.

2.3.3. The Labour Act [Cap 28:01].

2.4. In the premises, the plaintiff's claim is bad and unsustainable at law and ought therefore to be dismissed with costs.”

In pleading over to paragraphs 3, 4 and 5 of the plaintiff's declaration, the defendant denied these averments and put the plaintiff to the proof thereof and reiterated that the mode of payment sought was unlawful.

In his replication, the plaintiff averred that his cause of action was premised on an acknowledgment of debt signed by a representative of the defendant and not on the terms of employment.

He also averred that the defendant was obliged to obtain the necessary foreign currency exchange approvals to pay him in foreign currency using its free funds.

At the pre-trial conference that was held on 8 April 2010, the following four issues were referred to trial:

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01], has jurisdiction to adjudicate over the dispute between the parties;

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof;

(c) Whether the plaintiff's claim was lawful at the material time; and

(d) What amount, if any, is due to the plaintiff.

The trial in this matter was held on 14 June 2010. The plaintiff called the evidence of two witnesses and produced a 40-paged bundle of documents as exhibit 1.

After the close of the plaintiff's case, the defendant elected to open and close its case without calling any evidence.

My findings of fact are based on those aspects of the evidence called by the plaintiff that survived cross examination.

The plaintiff holds a Bachelor of Law (Honours) degree from the University of Zimbabwe (1983) and is a Chartered Accountant (1988). He was the Group Financial Director of the defendant from 1 June 2004 until his resignation on 7 March 2007. His contract of employment with the defendant is covered in pages 2 to 6 of exhibit 1. The relevant sections fall under the headings Remuneration and Benefits. I set them out below:

“3. REMUNERATION

As remuneration for services rendered, the Contractor shall pay the contracted person, during the subsistence of this agreement, the sum of $21 million per month, payable monthly in arrears. The salary will be subject to taxation in line with the rules and regulations of the Zimbabwe Revenue Authority. As you are on a fixed term contract, the company is not liable to pay any further sums of money which may be required of you by operation of law. This shall be reviewed every quarter.

4. BENEFITS

In addition to the salary stated above, you will be entitled to the following:

4.1 Cimas Medexec Medical Aid for you and your family.

4.2 Use of a company vehicle and 200 liters per month. Such allowance is for monthly usage and shall not accrue.

4.3 School fees for two children, but any change in school requires the authority of the CEO.

4.4 Cafeteria/entertainment allowance to be agreed annually by CEO.

4.5 Any other amounts will be deducted from the cafeteria allowance.”

The plaintiff indicated that his claim was based on the contents of pp7 and 8 of exhibit 1. It is an e-mail dated 13 July 2006 which the plaintiff dispatched to himself and copied to his website. It was signed and dated at the bottom of each page by Hamish Rudland, the acting Chief Executive Officer of the defendant at the time. The purported acknowledgment of debt was sandwiched between a set of seven action plans on the first page and another set of seven action plans on the second page. The acknowledgments read:

“HR acknowledges outstanding balance to KPM of US70K subject to update of figures.

HR acknowledges 10% interest per annum calculated monthly.

HR acknowledges salary US6K per month inclusive of local salary.”

The plaintiff stated that HR referred to Hamish Rudland while KPM referred to the plaintiff.

He stated that the defendant was to promote a company in Mauritius which would be used as the vehicle to pay top management in Zimbabwe in foreign currency and pay his outstanding debt.

It was common cause that the vehicle and laptop were sold to the plaintiff as indicated in the letter by Hamish Rudland (HR) of 10 September 2007 on p18 of exhibit 1. He averred that the two items were valued at US$30,000 and abated the outstanding capital sum and interest.

On pages 19 and 20 are the purported minutes that he wrote on 15 January 2008 of a meeting he held with Hamish Rudland (HR) and the plaintiff's wife in which he recorded, inter alia, his demand for payment of the outstanding debt by Pioneer Corporation Africa (PCA) and the reluctance to pay by Hamish Rudland (HR) until he had received a return on his investment and an undertaking that payment would be made at a later date.

He was the only one who signed those minutes.

He also relied on the minutes he authored on 18 March 2009 between Hamish Rudland (HR), EM Warhurst (EMW) and himself on pp 29-30 of exhibit 1. They were signed by EM Warhurst (EMW) and the plaintiff only.

They indicate that Pioneer Corporation Africa (PCA) owed EM Warhurst (EMW) US$15,000 and the plaintiff just over US$80,000.

While they show that Hamish Rudland (HR) was unwilling to pay the debt, they record that he had signed the plaintiff's contract of employment and acknowledgment of debt in July 2006.

Pages 38-39 show that, from October 2003 to February 2007, the plaintiff was entitled to receive from the defendant US$215,000 in salary. He was paid a total of US$157,251 between October 2003 and March 2007. The capital outstanding in salary arrears was US$57,749. The amount due as interest, from December 2005 to June 2009 was in the sum of US$26,462.

He was cross-examined.

He based his claim on an acknowledgement of debt of 17 July 2006. The acknowledgment arose from the failure to pay salaries during the period extending from October 2003 to February 2007.

He stated that he did not sue the defendant for arrear salaries that were incurred between October 2003 and July 2006 because during that period he was a member of the plaintiff's management team.

He accepted that, at that time, legal tender in Zimbabwe was the local dollar.

He was referred to section 12A of the Labour Act.

He was evasive on whether his claim was founded on a contract of employment or not. He was evasive on whether payment in United States dollars was payment in kind or not. He stated that in 2006 there were no exchange control prohibitions against the payment of salaries in foreign currency but conceded that during the period of his employment with the defendant he was never paid in United States dollars. He further acknowledged that at that time the defendant did not pay any of its employees in foreign currency.

He said the United States dollar was used to index the payment in kind in the form of air tickets that he received for holidays outside Zimbabwe.

He admitted that he could not claim in United States dollars before February 2009.

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

The plaintiff's only witness, Mr E.W. Turina (Turina) said he was the Chief Executive Officer of the plaintiff at the time of the purchase of US$750,000 from the defendant. He had, however, left the employ of the plaintiff in June 2006.

Mr Turina's evidence was, in the main, a confirmation of what was already contained in the pleadings.

He said due to the scarcity of foreign currency, the plaintiff had reached an agreement with the defendant whereby bids from the plaintiff would be given preferential treatment.

He confirmed, that, the information on the allocations was done telephonically and that once an allocation (ie the initial US$150,000 rising to $250,000) was made, the plaintiff was required to pay the equivalent in Zimbabwe dollars within twenty-four hours (24) hours.

The arrangement had worked well from January 2005 until August 2005 when the defendant failed/neglected to disburse US$750,000 to the plaintiff's customers/suppliers despite the fact that the plaintiff had paid the defendant the equivalent in Zimbabwe dollar as per the standing arrangement.

The Zimbabwe dollars had been paid in three transfers on 1, 11, and 19 August 2005. This was to cater for the increased weekly allocation of US$250,000.

He said when the first allocation was not released, after payment of the equivalent Zimbabwe dollars, the plaintiff had asked for an explanation but was promised that the money would be released.

The same had happened with respect to the two subsequent payments.

After failure by the defendant to forward payment to its suppliers, the plaintiff had then borrowed money from other sources so as to meet supplier requirements. This had led to the withdrawal of invoices from the defendant, which invoices were produced as exhibits 1, 2 and 3.

Mr. Turina confirmed, that, before he left the employ of the plaintiff, in 2006, negotiations for settlement were in progress and that the defendant had indicated that it would secure the US dollars at a later stage for the plaintiff or reimburse the plaintiff in Zimbabwe dollars.

He said some of the discussions were not directly conducted with him.

He had, however, later learnt, that, the defendant was not going to pay the US$750,000.

It was his view, that, once the plaintiff effected payment of the equivalent Zimbabwe dollar amount of the allocated foreign currency “the contract was completed.”

He said the company had opted to wait because the Zimbabwe dollar had become worthless.

Mr Turina stuck to his story under cross-examination.

The defendant also called only one witness, a Mr B. Musoso (Musoso).

The witness said he was employed by the defendant as its Head of Treasury Operations. He said the Treasury Division was responsible for settlement and payment of allocations. The auction system, he said, was run by a separate unit which was responsible for the allocations. The role of his department was to communicate with companies and advise them on foreign exchange rates.

He was aware of a list of special allotees who received payment on a weekly basis. These were companies considered key to the national economy. These included the plaintiff.

He said there were thirty-six (36) companies on the special list and the allocations were made by the auction unit. Some of these were Boc Gases, Quest Motors, Unilever, Olivine Industries, Dunlop, National Oil Company of Zimbabwe (NOCZIM) and the fertilizer companies.

Mr. Musoso said there were no formal contracts with the companies on the special list.

The role of his department was to effect payment when funds were made available.

The witness said his department dispatched foreign exchange quotations to various interested companies. The quotations were meant to enable companies to mobilize the necessary funds before allocations were made. He said payment to allotees depended on instructions from what he called “the front office” and the availability of foreign currency.

He said the non-availability of foreign currency explained why the three payments made by the plaintiff, in August, were not honoured.

Mr. Musoso said when the auction system ceased, in August 2005, there were many unpaid beneficiaries from the special list and the defendant decided to reimburse them in Zimbabwe dollars.

He said he had heard that the plaintiff wanted reimbursement in US dollars instead of the Zimbabwe dollar. It was his evidence, that, in reimbursing beneficiaries, the defendant did not take into account the devalued value of the Zimbabwe dollar because there was no financial obligation: “We were just returning whatever had been paid,” he said.

Under cross examination, Mr. Musoso maintained, that, the successful execution of the arrangement relied solely on the availability of foreign currency.

In addition to Mr. Musoso's evidence, the defendant also relied on responses by Dr G. Gono (Governor of the Reserve Bank of Zimbabwe) and Patience Aisam (Manager Compliance–Treasury Division) to the plaintiff's interrogatories filed on 29 September 2009.

Both responses to interrogatories were filed on 17 November 2009.

In his response, Dr Gono stated that he had, upon the specific request and representations from the plaintiff, advised that he would endeavour to source foreign currency for the plaintiff in the amounts mentioned (i.e initially US$150,000 rising to US$250,000).

He said this was in recognition of the strategic role played by the plaintiff in the national economy.

There was, however, no formal binding agreement.

He said he had indeed been advised that “the plaintiff had made payments totaling Z$13,535,110 being the quoted equivalent at the auction rate of US$750,000”, now being claimed by the plaintiff.

However, he said “due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency not only to the plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

It was his evidence that his officers had informed him, that, during August 2005, no disbursements were made to any applicant for foreign currency under the auction system.

In response to the plaintiff's interrogatories, Miss Patience Aisam confirmed, that, from “14 January 2005 to August 2005, she would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising it that its application for foreign currency allocation had been approved.”

She also confirmed, that, the approved amounts were US$150,000 per week from 14 January 2005 to mid-June 2005. Thereafter, the amount was increased to US$250,000 per week….,.

Counsel for the plaintiff submitted that the plaintiff's case was clear and did not warrant argument.

He submitted, that, the undisputed evidence of Mr. Turina had confirmed, that, upon approaching the Governor of the Reserve Bank, Dr Gono, for assistance in obtaining foreign currency, the plaintiff had been granted the status of a permanently successful bidder at the weekly foreign currency auctions.

The plaintiff, with that status, did not need to place bids at the auction, but, was merely telephonically advised of the agreed weekly allocations.

The practice, it was submitted, had been successfully operational from January 2005 to July 2005.

Payment(s) requirements were availed to the plaintiff who complied at all times by effecting the payment(s) of the equivalent amount of the foreign currency in Zimbabwe dollars.

The only condition was that “foreign currency will only be released after receipt of Zimbabwean dollars.”

Counsel for the plaintiff submitted, that, after the foreign currency amounts were not paid, in August 2005, the Deputy Governor, Mr Ncube, of the defendant, offered the plaintiff the choice of having the money paid by the plaintiff refunded in local currency or waiting for the foreign currency to be made available. That evidence was not contradicted.

I agree.

Counsel for the plaintiff further submitted, that, in practice, there were two initial contractual arrangements:

(i) The first was the undertaking by the defendant that the plaintiff would be allocated foreign currency without the need to make bids at the auction system.

(ii) The second was that once the plaintiff effected payment of the Zimbabwean dollars within twenty-four hours (ie equivalent of the foreign currency) the foreign currency allocated would be made available.

The plaintiff had, in all three instances in August 2005, complied with the payment requirements.

Counsel for the plaintiff said the third contractual arrangement, novating the August contracts, occurred when the defendant promised to pay the plaintiff the foreign currency when it became available.

The plaintiff had, in turn, agreed to wait for payment until it became necessary to institute these proceedings.

In support of the need for the plaintiff to institute legal proceedings, counsel for the plaintiff quoted from Asharia v Patel 1991 (2) ZLR 276 where the relevant part of the judgment of the former Chief Justice reads as follows:

“The general applicable rule is that where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon as thereafter as is reasonably possible in the circumstances.

But, the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform.

This form or mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default.

The demand or interpellatio, may be made either judicially by means of a summons or extra-judicially by means of a letter of demand or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance which is not unreasonable. If unreasonable, the demand is ineffective….,.”

The promise to refund was made in 2005 and summons was issued on 29 July 2008.

It was counsel for the plaintiff's submission, that, the evidence of the defendant's witness (Mr. Musoso) was irrelevant since he had no direct dealings with the auction system. He said the defendant had failed to call witnesses who could have given meaningful testimony as to what actually happened.

The only credible evidence available was that of Mr Turina, he argued.

Counsel for the plaintiff concluded by submitting as follows:

“1. That, it was the uncontradicted and unchallenged evidence on plaintiff that Deputy Governor Ncube gave an undertaking to pay plaintiff US$750,000 at a future unspecified date.

2. That, this undertaking was accepted by plaintiff and formed a binding contract.

3. That, the binding contract so formed created an obligation on defendant to perform within a reasonable time.

4. That, after the lapse of a time, that defendant has never claimed is unreasonable, plaintiff made interpellation by the issue of summons, calling for the enforcement of the contract.

5. That, in the alternative, the second contractual event is binding on the parties.

6. In any event, defendant so conducted itself between January2004 and July 2005 as to cause plaintiff to believe that it had a contractual relationship on an occasion by occasion basis; that plaintiff did so believe, and, as a result of defendant's actions and words, plaintiff altered its position to its detriment.

7. That, in enforcing specific performance of a contract, the court is to treat the State like any other individual.

8. That, in the circumstances, defendant has done nothing to prevent plaintiff from being granted a judgment in terms of the summons.”

Counsel for the defendant submitted, that, due to the scarcity of foreign currency, the plaintiff and thirty-six (36) other complainants were placed on a list of companies considered as strategic in the national economy.

Depending on availability, the defendant then agreed to allocate foreign currency to these companies – which included the plaintiff.

He said no formal contracts were drawn in respect of the arrangements.

He said the plaintiff had been offered a refund of the money it had paid upon failure by the respondent to source the requisite foreign currency.

Counsel for the defendant emphasized the point, that, the arrangement between the parties was always subject to the availability of foreign currency which the defendant could disburse.

Arguing that there was no contractual obligation, on the part of the defendant, to pay the plaintiff the amount claimed, counsel for the defendant said it was never the consensus of the parties that the payment of the Zimbabwe dollars sealed the contractual arrangements.

The payment, he said, was subject to the availability of foreign currency.

The defendant, he submitted, could not have guaranteed payment because it did not know how much foreign currency would be generated from the auction system.

Counsel for the defendant said the defendant's witness had confirmed that his department had not been allocated with foreign currency for disbursement.

In the main, counsel for the defendant submitted, “the plaintiff had been favoured with an allocation that it be given foreign currency of US$250,000 per week if the same was available. There was no intention to create contractual obligations.”

He said quotations sent to the plaintiff were not offers.

Counsel for the defendant further submitted, that, the plaintiff had failed to prove that foreign currency was available at the time the allocations were made.

He blamed the plaintiff for refusing to accept a refund in Zimbabwean dollars as had been done by the other companies.

In conclusion, counsel for the defendant had this to say:

“The issue of who was a better witness between plaintiff and defendant's witness is, with respect, of no great moment.

Material facts are common cause. The court should take a holistic approach in the matter and determine what the intentions of the parties were and what relationship was created.

It is submitted, that, it could not have been within the contemplation of the parties, that, a failure by the defendant to disburse foreign currency to the plaintiff due to non-availability would ground a cause of action for specific performance.

In all the circumstances, the plaintiff's claim should be dismissed with costs and it is noted it has refused the tender of the refund in Zimbabwe dollars.”

I fully agree with counsel for the defendant, that, in casu, the material facts are common cause and I made that observation at the commencement of the hearing of this matter.

My assessment is that, apart from merely confirming what is already contained in the pleadings, nothing much turns on the oral evidence from the witnesses called by both parties.

However, my view, on the one hand, is that the evidence of the defendant's witness was totally irrelevant because he was clearly a distant player in what took place in the actual allocation process.

On the other hand, I find that Mr. Turina's evidence buttressed the respondent's responses to the interrogatories.

The responses do not deny the practice that operated smoothly from January 2005 to July 2005. The only issue highlighted is that the arrangement was anchored on the availability of foreign currency.

That is undeniable, and, indeed, no allocation could have been made without the availability of foreign currency.

However, the main issue, in my view, is whether by allocating to the plaintiff US$150,000 and later US$250,000, from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty four (24) hours, of the Zimbabwe dollar equivalent at the defendant's instruction.

In interrogating that issue, one has to consider the following undisputed facts:-

(a) Every week, Patience Aisam, of the defendant, would telephone the plaintiff to advise on what had been allocated to the plaintiff and what had to be transferred through a Commercial Bank in Zimbabwe dollars - in fact, it was confirmation of the sale to the plaintiff of the allocated amount, in this case US$250,000.

(b) Upon advise from Patience Aisam, the plaintiff would, within twenty four (24) hours, transfer the Zimbabwe dollar equivalent. Indeed, in response to the interrogations, the Governor of the Reserve Bank of Zimbabwe says:

“I am advised that during the month of August 2005, plaintiff made payment totaling Z$13,535,110 being the quoted equivalent, at the auction rate, of US$750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

This is supported by paragraph 4 of the defendant's plea which reads:

“The defendant admits that the sums of money, as set out in paragraph 2 of the plaintiff's further particulars, were deposited with the defendant. The amounts would have exchanged for US$750,000 once this money had been successfully sourced by the defendant. The foreign currency was not availed to the plaintiff because the defendant was unable to mobilize the same.”

It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable.

My view is simply that the allocation was only made against funds that were already available from the auction.

Patience Aisam states:

“I confirm that during the period referred to, that is to say, from about the 14th January 2005 to August 2005 (the month of August included) I would, on a weekly basis, telephone or instruct that plaintiff be telephoned advising that its application for foreign currency had been approved.”

It is important to note that Patience Aisam spoke of an “approved allocation and not successful bid.” This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Patience Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff, is, in my view, very remote.

In addition to the above, it is important to determine at what stage a contract would be concluded between the parties.

The scenario in the operation was as follows:

(a) The Governor agreed to accord the plaintiff special treatment.

(b) The Governor allocated a specific amount to the plaintiff on a “permanent” basis.

(c) Patience Aisam would confirm the allocation and indicate the Zimbabwe dollar component to be paid within 24 hours; and

(d) The plaintiff would, within 24 hours, comply and then forward a list of its customers to the defendant for disbursement of funds.

The above scenario clearly fits into counsel for the plaintiff's submission, that, there were initially two contractual events (ie the Governor's undertaking and then the actual allocation accompanied by compliance on the part of the plaintiff).

I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.

The existence of the contract is further strengthened by the fact, that, the defendant admits, that, in August 2005, the plaintiff bought from it US$750,000 for a sum of Z$13,535,110.

However, what the defendant is now saying is simply this:-

“Yes, you bought US$750,000 but give us time to mobilise it. We seem to have sold you what we did not have at the time.”

The defendant then places before the plaintiff two choices, namely, reimbursement in the actual amount paid in Zimbabwe dollars or waiting until it mobilizes the amount of foreign currency already purchased by the plaintiff.

That, in my view, is not to deny contractual obligation.

The plaintiff elected to wait until litigation became the only option.

The plaintiff's election is based on the basis that devaluation has rendered the Zimbabwe dollar worthless.

The defendant's witness confirmed, that, the refund was to be the actual Zimbabwe dollar paid without taking into account the issue of inflation and devaluation.

It would, in the circumstances, be unreasonable to fault the plaintiff's election to await payment of what it actually purchased.

In Leighton v Eagle Insurance Co. Ltd & Ors 2002 (2) ZLR 592 (H) the plaintiff was injured in an accident involving a motor cycle and a motor vehicle in 1996. He was the driver of the motor cycle. The other motor vehicle was being driven by the second defendant. The first defendant was the insurer of the motor vehicle. The plaintiff claimed, among other things, the cost of repairs of the motor-cycle. The defendant agreed to pay for repairs to restore the motor-cycle to the plaintiff's satisfaction. A sum of Z$50,000= was spent on repairs but the plaintiff was not satisfied with the repairs. He returned the motor-cycle and claimed the sum of Z$850,000= being the current cost of the spares. At the time of issuance of summons, the value of the motor-cycle was not more than Z$95,000=. After five years from the date of summons the first defendant tendered Z$150,000= as replacement value for the motor-cycle. After a careful consideration of the law on the assessment of damages in such cases SMITH J…, stated that –

“However, in the light of the high levels of inflation in this country over the last two years such an offer could not be accepted as reasonable. Since the first defendant only filed its plea on 14 March 2002, more than five years after summons was issued, I considered that a departure from the normal yardstick is required. The present day values of goods such as motor cycles have escalated tremendously since 1996. I consider that, in all circumstances, the claim by the plaintiff is reasonable, having regard to the value of things today.”

In casu, the defendant admitted liability for the damage to the plaintiff's motor vehicle on the date of the accident and offered to repair the motor vehicle to the Automobile Association of Zimbabwe-approved standard. The defendant did not do so. The cost of repairs has escalated as a result of inflation and dollarization that was beyond the plaintiff's control. Restricting the plaintiff's damages to the value of the motor vehicle as at the time of the accident would, in my view do injustice to the plaintiff yet it is the defendant who, firstly, did an incomplete sub-standard job. When the plaintiff expressed dissatisfaction with the work done the defendant would not accept to redo the work. It is clearly the defendant's fault that up to this day the motor vehicle has not been repaired to the Automobile Association of Zimbabwe-approved standard.

Repair to gate, intercom and wall

The repairs were done in 2006 by a sole contractor. She did not keep the invoices of the cost of repairs. She failed to lead his evidence because she could not locate him. She bought a new gate. She sourced for quotations from suppliers and fitters who are in the business of manufacturing gates, selling intercoms and repairing walls similar to her own. She produced these quotations…,.  Raymond Alarms and Gates quoted an amount of US$2,505= on 14 June 2010; Aderan Enterprises (Pvt) Ltd quoted an amount of US$2,280= on 15 June 2010 while Fencerite Services (Pvt) Ltd provided her a quotation of US$2,970= on 16 June 2010.

The claim for the cost of repairs for the gate, intercom and wall was reduced to US$2,970=. The lowest quotation that was supplied was in the sum of US$2,280=. By the time the plaintiff issued summons the gate, intercom and wall had long been repaired in Zimbabwean dollars. She did not produce the cost of such repairs. It is not possible in the absence of that evidence to determine the value of the repairs at the time in United States dollars.

Counsel for the defendants also submitted that the amendment sought to have an assessment of contractual damages assessed at the date of judgment. He contended that the governing principle was that contractual damages had to be assessed as at the date when performance was due and not as at the date of judgment.

Mr Alvin Dumisani Ncube said some of the goods were purchased in Zimbabwe dollars whilst some of them were purchased in South Africa and paid for in foreign currency. He said the replacement values were in United States dollars and no depreciation had been factored.

Counsel for the first defendant argued that if at all any loss occurred, compensation would have to be based on Zimbabwe dollars at the time of such loss (i.e. 18 April 2008). He also said it was not proper to argue for a replacement of old goods with new ones.

On the issue of the claim being expressed in foreign currency, counsel for the plaintiff cited the cases of Watergate (Pvt) Ltd and Commercial Bank of Zimbabwe (SC78-05) and Makwindi Oil Procurement (Pvt) Ltd v National Oil of Zimbabwe 1988 (Z) ZLR 482 (SC) where payment in foreign currency was said to be acceptable if a party proved that its loss was in foreign currency. In such a case the loss would most be fully compensated in foreign currency. She argued that the thrust in the court's ruling should be to ensure that “damages are meaningful and that there is compensation to the plaintiff.” (See Fabiola v Louis HH25-09).

In casu, she argued, the introduction of the multi-currency system in February 2009 actually vindicated the wise position taken by the plaintiff. She observed that, in practice, dollarisation had already occurred. Furthermore, she argued, in Leighton v Eagle Insurance Company Limited & Others HH193-02, the effect of inflation had been recognised when SMITH J said -

“It would be grossly inequitable to fix blindly in every case, that the date for assessing damages is the date of the delict. The court can take judicial notice of the rampant inflation in the country…,. It would be most unfair to the plaintiff to award him damages assessed at the costs prevailing in 1996 with interest at the prescribed rate from that date. It would be much fairer, and more realistic, to fix damages at today's costs.”

All in all, she submitted, the plaintiff had proved its claim and there was nothing illegal about the plaintiff's claim being made in foreign currency. She therefore urged the court to grant the relief as prayed for.

Counsel for the first defendant went further to submit that the claim, having been instituted on 14 November 2008, could not have been expressed in United States dollars when the loss had been suffered in Zimbabwe dollars. He said the Makwindi Oil Procurement (Pvt) Ltd v National Oil of Zimbabwe 1988 (Z) ZLR 482 (SC) case did not lay down a strict rule that the issue of foreign currency was the only determining factor in matters of this nature. To that end, he argued, the plaintiff had not established that its normal business was in United States dollars. Furthermore, he argued, the bulk of the plaintiff's goods were not new and had been purchased in local currency (Zimbabwe dollars) as demonstrated by the plaintiff when, in its letter of demand, it asked for ZW$467 billion. He said even if the first defendant were to be found liable, it would not be equitable to compensate the plaintiff on the basis of values relating to new goods.

The defendant challenged the claim sounding in foreign currency when the contract of hire was denominated in Zimbabwe dollars. He stated that the plaintiff could not unilaterally impose a hire charge in US currency without consulting him.

The only challenge raised by the defendant was that the plaintiff was not entitled to payment in United States dollars but in Zimbabwe dollars which was the currency of account at the time.

The defendant lost sight of two factors.

The first was that the payment of the lost or damaged goods is made at the time of judgment when the goods are held to have been lost. In the present case, until judgment is granted, the defendant's main defence was that the goods were not lost but were returned to the plaintiff. At the date of judgment, a multi-currency regime that includes the USD has been in operation since February 2009.

The plaintiff's claims were originally pegged in the local currency.

THE AMENDMENT OF THE ARREAR RENTALS

Whilst the amendment of the arrear rentals was made by consent with no issue being taken by the parties on such amendment it occurs to me that such an approach inevitably triggered another legal issue, viz, currency nominalism.

I have no doubt in my mind that the amendment of the figure of arrear rentals was prompted by the debasement of the Zimbabwean dollar. Arrear rentals in this case are clearly a debt owed to the plaintiff by the defendant, and, in my view, it was not competent for the plaintiff to have amended its debt from Zimbabwe dollars to the United States dollars. It is clear to me that the sole motive was to circumvent the principle of nominalism of currency which underlines the fact that “a debt sounding in money has to be paid in terms of its nominal value in respective of any fluctuation in the purchasing power of the currency.”

On this point of law, I can do no better than to refer, with respect, to the statement of law expounded by E.M. GROSSKOPF JA in SA Eagle Insurance Co. Ltd v Hartley 1990 SA (4)…, when he stated -

“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 fluctuation 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 an appreciation…,.”

It is clear to me that even if the plaintiff had been able to lead evidence to show that the defendant had not paid the rentals, the plaintiff would not have been able to recover the amount in United States dollars but in Zimbabwe dollars.

However, fortunately in this case, the defendant's representative was able to demonstrate that his company was not in arrears. The plaintiff's counsel conceded this point.

It will be noted that as the trial unfolded there were basically two fundamental developments which took place.

Firstly, because of the unprecedented hyperinflation which characterized the economy of this nation, there were numerous applications filed to amend the amount of the claim. I advised the parties that given the extremely unusual circumstances that we were operating under it would be prudent for the plaintiff to defer the application for amendment to the end of trial. This was subsequently done. The plaintiff sought to amend its claim from the original suit of Z$2 billion to Z$100,000,000,000= (one hundred billion dollars).

The application was strenuously opposed by the first defendant….,. 

The Application for amendment of the amount of claim

As stated, the application for amendment of the amount of claim was prompted by the unprecedented hyperinflation which gripped this country from the time the trial commenced up until the hearing was completed. Inflation was astronomically rising. The times were unusual and literally presented what I *would refer to as an economic circus. Despite the opposition to the application by the defendant I felt judiciously bound to grant the application. In fact, I would have been surprised if the application for amendment had not been made because by the time the application was made the original amount of claim was literally non-existent. It had been completely wiped out by inflation….,.

Whilst it is accepted that the Zimbabwe dollar remains legal tender in this country the reality of our situation is that its value has been rendered otiose.

This brings me to another point which is of great concern to the court. Almost every Zimbabwean is currently burdened by notes in Zimbabwe dollars. The banks have yet to mop up this currency. I believe the retrieval of this money in real and useful currency is long overdue. The nation cannot just wish away the quiet and unceremonious disappearance of the Zimbabwe dollar. There is need for legislative intervention in this regard. Parliament must come up with an acceptable rate which people can then use to recover their investment still locked up in our banks and homes. The Zimbabwe dollar has literally been flushed out of the system with the advent of the multi-currency regime. It would be a mockery to award the plaintiff damages in that currency.

The background facts of this matter are the following.

Under case number HC1777/04, 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 HC1777/04, 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.” 

The court a quo having determined the period for which, in its view, the respondent was to be paid damages in lieu of reinstatement, considered the parties' arguments on whether or not it was competent for the court to convert such damages from Zimbabwe dollars to United States dollars. 

The court acknowledged the complexity of the issue, particularly in view of the fact that as of that date, the Supreme Court had not given guidance on the matter. The court a quo also correctly noted that the various cases that the respondent had cited in support of his argument for an assessment of the damages in United States dollars were “nowhere near the heart of the matter.” In stating that these cases do not bar the court from making judgments sounding in foreign currency, the court a quo, inter alia, Kwindima v Mvunduma HH25-09; Makwindi Oil Procurement (Private) Limited v National Oil Company of Zimbabwe 1989 (3) SA 199, relied on a passage from a High Court judgment, Gift Bob David Samanyau and 38 Others v Fleximail (Private) Limited 2001 (1) ZLR 529 H.

The first point to note, whatever the merits or demerits of the observations in Gift Bob David Samanyau and 38 Others v Fleximail (Private) Limited 2001 (1) ZLR 529 H, is that this was a High Court decision and this court is not bound by decisions of a lower court. 

Secondly, the decision has since been set aside on appeal, this court having determined that the High Court had no jurisdiction to hear the matter – a labour dispute – in the first place. The matter should have properly been determined by the Labour Court. 

Thirdly, and most importantly, the setting aside of the Gift Bob David Samanyau and 38 Others v Fleximail (Private) Limited 2001 (1) ZLR 529 H judgment has negated the court a quo's reliance on the dictum cited above.

In other words, the basis given by the court for its order to convert the damages in lieu of reinstatement in this case, from Zimbabwe dollars to United States dollars, has been discounted. No other legal basis was pronounced, for the court's order that the damages it awarded to the respondent in Zimbabwe dollars should be converted, firstly, to United States dollars, and, secondly, at the specific rate prevailing at the end of September 2006. Nor did the court, it seems, apply its mind to the question of whether the resultant United States dollar amount would have given true value, to the respondent, of the damages that he was entitled to. In other words, a value that would neither over-compensate the respondent, nor inadequately do so.

These are, in my view, pertinent considerations for any court that has to make a determination of this nature.

It should be noted that in 2006 there were two main Zimbabwe dollar to United States dollar exchange rates in force, i.e. the official and the unofficial rates. The former rate had much smaller denominations compared to the latter. It is quite possible that had the official rate prevailing in September 2006 been used to convert the Zimbabwe dollar amount awarded to the respondent by the court a quo as damages, an inflated amount with no relationship to the appropriate and meaningful compensation due to him would have been the result. Such an outcome would clearly have been both unrealistic and a mockery of justice.

This Court, in two recent judgments that dealt with the same taxing question, remitted the cases to the Labour Court and gave directions as to how and why that court should determine the issue. The cases are Fleximail (Pvt) Ltd v Gift Bob Samanyau and Thirty Eight Others SC21-14 and Horace Nzuma and 2 Others v Hunyani Paper and Packaging SC137-11….,.

The undeniable fact is that a debt is not wiped out by the mere fact that there has been a change to the realisable currency. Equity would demand that a formula be found to give effect to the employee's entitlement to payment of, and the employer's obligation to pay, the debt in question….,.

I will note that I fully appreciate and do not in any way underestimate the complexity of the exercise to compute - from Zimbabwe to USA dollars – and for value, the damages awarded to the respondent in this appeal. This is particularly so given the intermittent changes to the worth of the Zimbabwe dollar that were occasioned by the removal of zeros from that currency during the hyper-inflationary era of 2006-2009. I would accordingly venture to suggest to the Labour Court that it considers enlisting the services of an appropriately qualified expert in financial matters in order to work out a formula for calculating the damages in question. Such formula should give fair value, in USA dollars, to the damages denominated in Zimbabwe dollars that have been awarded to the respondent in this case.

In the result, I make the following order;

1. The appeal succeeds in part;

2. Paragraphs (i) and (ii) of the order of the court a quo be and are hereby set aside and substituted with the following;

(a) The appellant shall pay the respondent 12 months' salary as damages in lieu of reinstatement on the basis of the September 2006 salary scale which was Z$587,444,085=88 per month, calculated as at 30 September 2006.

b) The damages shall be paid together with interest at the prescribed rate, from the date of the Labour Court judgment (13 July 2012) to the date of payment in full;

c) The amounts referred to in paragraphs (a) and (b), albeit, computed in Zimbabwe dollars, shall be converted to foreign currency in the manner and at the rate determined by the Labour Court in terms of paragraph 3 of this order,

3….,.

Mudavanhu and his co-respondents were awarded backpay in United States dollars. 

It is settled that an employee can only be compensated by an amount which should be calculated on the rate applicable at the time of dismissal.

In this case, it is obvious that there was a complete disregard by the arbitrator of established law and principles which the Labour Court failed to take note of in considering the appeal before it. The failure to take cognisance of legal principles and apply them to the matter before it constituted a gross misdirection on the part of the court a quo. The appeal has merit and must succeed.

In the result, the court makes the following order.

It is ordered that:

1. The appeal is allowed with costs.

2. The order of the court a quo is set aside and is substituted with the following:

(i) The appeal is allowed with costs.

(ii) The arbitrator's award is set aside.

2.2 Appropriate currency denomination

This brings me to the second issue raised by this appeal, which is whether or not the court a quo erred in upholding an award for back pay, benefits and damages in favour of the respondent which was denominated in US dollars. 

The appellant argues that no basis for such an award was established while the respondent contends to the contrary.

Both the arbitrator and the court a quo justified the disputed currency conversion on the fact that any award sounding in Zimbabwe currency would be a brutum fulmen. The court a quo states as follows in its judgment:

“It is worth noting that the basis upon which the arbitrator was asked to make an award sounding in foreign currency was that if he made an award in Zimbabwe dollars that would be tantamount to coming up with a brutum fulmen. This, in the court's view, was sufficient ground to ask the arbitrator to make an award sounding in forex as opposed to the Zimbabwe dollar.”…,.

Earlier in its judgment, the court a quo had correctly cited various authorities that have declared the competency of the court to make awards sounding in foreign currency in appropriate circumstances. See Gift Bob David Samanyau & 38 Others v Fleximail HH108-11; Terence Alan Blake & Anor v TABS Lighting (Pvt) Ltd SC13-10.

This would be where the party seeking such relief has pleaded, or made out clearly, that he or she is entitled to relief in foreign currency. The court noted, however that a number of the cases referred to were on appeal to the Supreme Court. This, however, did not deter the court in making the following determination:

“The court is therefore satisfied that the respondent, by raising that argument, did lay before the arbitrator sufficient grounds upon which the arbitrator had to make an award sounding in foreign currency. The court is therefore satisfied that there was no error of law which the arbitrator fell into in respect of these two grounds of appeal.”

Some of the cases that the judge cited as pending on appeal in this Court have since been determined and remitted to the Labour Court for computation and conversion of various Zimbabwe dollar amounts into US dollars. This Court has ruled that the Labour Court, as a court of equity, is the only court vested with jurisdiction to perform this task. Thus, contrary to the court a quo's sentiments that there was “no error of law” on the part of the arbitrator in respect of the US dollar-denominated award that he made, it is now settled that the question of which court is vested with authority to make the appropriate currency conversions, is one of jurisdiction. Not being vested with such jurisdiction, the arbitrator thus fell into an error of law by seeking to convert the back pay, benefits, and damages awarded to the respondent in casu, from Zimbabwe dollars into US dollars. The arbitrator compounded his error by settling on a conversion rate whose validity was in doubt.

This Court has, in the case of Madhatter Mining Company v Marvellous Tapfuma SC299-12 put the matter beyond doubt when it cited section 2A of the Labour Court Act and emphasized its purpose, which is to advance social justice and democracy in the workplace. It aims to do this by, among other things, “securing the just, effective and expeditious resolution of disputes and unfair labour practice.”

The court, in Madhatter Mining Company v Marvellous Tapfuma SC299-12, then went on to state as follows:

“The principles of equity and social justice as well as the imperative for the Labour Court to secure the just and effective resolution of labour disputes, are all called into question when it comes to determining the basis and formula for computing a debt (e.g. damages) suffered in Zimbabwe dollars but claimed in foreign currency. This is particularly so where such damages, being owed to an employee, can no longer be paid in Zimbabwe currency, realistically, or in a way that gives due value to the employee. The undeniable fact is that a debt is not wiped out by the mere fact that there has been a change to the realisable currency. Equity would demand that a formula be found to give effect to the employee's entitlement to payment of, and the employer's obligation to pay, the debt in question.”

I find, on the basis of this authority, that there is no merit in the appellant's submission that the respondent, not having 'suffered' the said damages in US dollars, was not entitled to damages denominated in that currency. Neither am I persuaded that the respondent's damages were “incapable of calculation,” nor that only nominal damages were appropriate. I have found that the respondent did suffer loss and was entitled to damages in lieu of reinstatement. Failure to award him the damages in a currency that realistically compensates him for the harm suffered, would, in my view, undermine the advancement of equity, social justice and democracy at the workplace.

In casu, the court a quo simply endorsed the calculations made by the arbitrator, without questioning his competency to do so under the law. As the authority cited above makes it clear, this was a misdirection. It is on this basis that the matter will be remitted to the Labour Court for a proper computation and conversion to US dollars of the damages that this Court has determined are properly due to the respondent. The same applies with respect to the back-pay and benefits that were awarded to the respondent.

In the final result, it is ordered as follows:

1. The appeal succeeds in part.

2. The matter is remitted to the Labour Court for a determination of the question, and the applicable rate of conversion into foreign currency, of the amounts referred to in paragraph 3(iii), (iv) and (v) below.

3. The judgment of the Labour Court is set aside and is substituted with the following:

“(i) The appeal is allowed with no order as to costs;

(ii) The Arbitrator's award be and is hereby set aside;

(iii) The appellant shall pay the respondent back pay and benefits covering the period 2 August 2000 to 12 July 2002, and amounting to Zimbabwe $446,442=;

(iv) The appellant shall pay the respondent 6 months' salary as damages in lieu of reinstatement, which shall be calculated in Zimbabwe dollars on the basis of the salary rates obtaining on 12 July 2002;

(v) The amounts referred to in subparagraphs (iii) and (iv) above shall be paid together with interest at the prescribed rate, from the date of the judgment of this Court to the date of payment in full,; and

(vi) The amounts referred to in paragraphs (iii),(iv) and (v) above, shall be converted to United States dollars in the manner and at the rate to be determined by this Court in the exercise of its equitable jurisdiction.”

The Supreme Court, in the case of Watergate (Pvt) Ltd v Commercial Bank of Zimbabwe SC70-06 held that:

“…, the legal position is that a party is entitled to payment in foreign currency if he can show that a judgment in that currency would most truly express his loss, and, therefore, most fully compensate him for that loss. That was the rational in the case of Makwindi Oil Procurement (Pv)t Ltd v National Oil Company of Zimbabwe 1998 (2) ZLR 482 (SC) where it has held that 'justice requires that a plaintiff should not suffer by reason of a devaluation of a currency…,.'“…,.

The plaintiff's claim, in this case, does not even sound in foreign currency, it sounds in the functional currency of the country as the Zimbabwean dollar is no longer applicable….,.

The plaintiff abandoned the claim for loss of earnings in the sum of US$50,400=. She also abandoned the claim for medical expenses and future earnings due to the difficulty in formulating them as they were suffered in local currency.

In Clause 2, the applicant seeks an order that the first respondent returns to the applicant's estate US$225,000= being rentals expended by the deceased from Anita June Bruk-Jackson's immovable property and US$100,344= being an equivalent of the devaluation of the immovable property.

The sums were derived from what the applicant said were rentals for the period the deceased took de facto administration of Anita's house to the time of his demise.

It is common cause that most of that time, 2001 to 2009 February, the official currency was the Zimbabwe dollar. If at all the deceased received rentals it would have been in that currency….,.

The applicant was not clear on the conversion rate for rentals that could have been received in the Zimbabwe dollar era to United States dollars.

How the rentals paid in Zimbabwe dollars were converted to US$200= per month after 2009 remains unknown.

Should our courts be courts of law or courts of justice?

One would pre-suppose that the law is justice and that justice is the law. To the ordinary man, i.e. one who is un-tutored in the practice of the law and the pursuit of justice, it would appear that law and justice have a symbiotic relationship; one is nothing without the other. Yet, those who practice the law, will know that, often times than not, the rigid application of the law may lead to a palpable injustice. That is why the law is fluid, meaning that its application depends on the circumstances before the court.

The law must be applied to avoid perpetrating an injustice, especially where the extent of the injustice would be the non-suiting of a litigant, leaving the litigant with nowhere else to turn as it were. That is not to say that non-deserving litigants should be shielded from the inevitable consequences that flow from a correct application of the law. On the contrary, it is my view that our courts should be courts of law that derive their authority and legitimacy from a fair and impartial application of the law in the pursuit of justice and fairness.

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

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

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”

It is common cause that the respondent has paid in full for the component of the 2008 judgment which provides for payment in Botswana Pula, in terms of the order of the Supreme Court dated 28 February 2012. It is common cause that payment of the Zimbabwe dollar component of the 2008 judgment remains outstanding - although the respondent has tendered this payment to the applicant. It is common cause that the applicant did not attempt to execute in respect of the Zimbabwe dollar component at the date of the judgment in 2008, and that, in 2009, Zimbabwe adopted a multi-currency regime. It is also common cause that after the accident the applicant was disabled.

The applicant has come before this court and avers that he requires urgent medical attention.

He has attached a quotation from a medical specialist, Mr. Bijay B. Garach, dated 23 March 2012, to show that he requires an estimated USD$279,400= for surgery in Durban South Africa. The purpose of the surgery is to correct a condition of stiffness in the right knee which is possibly related to a fracture and muscle tightness and to an associated knee joint injury. Mr. B.A.V. Ncube, a specialist orthopedic surgeon, certified that the applicant is in pain and gross discomfort in his right foot, on 4 June 2012, and that he needs further surgery to remove the implants and to fuse his mid-foot and correct his mal-aligned toes.

The applicant is currently unemployed and has urgent need for funds in order to access the medical assistance he requires.

On 24 October 2012, the applicant's legal practitioners addressed a letter to the respondent to which they attached the judgment of 23 January 2008. In the letter, the respondent was reminded that the Zimbabwe dollar component of the judgment remained unpaid in a total of ZWD$4,937,217=09. It is common cause that the Zimbabwean dollar has fallen into disuse. The respondent was advised that the applicant had approached the Reserve Bank of Zimbabwe which had confirmed that as at 23 January 2008 one United States dollar was equivalent to ZWD$30,000=. Converting ZWD$3,937,212=10 to USD translates into USD$164,573=90. Interest at the prescribed sum translates to USD$41,143=47. The total demanded from the respondent is USD$205,717=38.

In a letter dated 8 November 2012, the respondent, through its legal practitioners, tendered the ZWD$ to the applicant on the basis that the Zimbabwean dollar was still valid currency, and that, it being the currency of the judgment which the applicant was seeking to enforce, that is the currency in which the applicant should be paid. The computation of the interest was brought into question.

In a letter dated 19 November 2012, the applicant's legal practitioners explained that interest had been calculated at the prescribed rate of interest from February 2008. In paragraph 12.1-14 of the founding affidavit the applicant avers that:

“I need to execute against the respondent. I need to have the judgment in my favor sounding in Zimbabwe dollars amended to reflect United States dollars so that I am paid in a currency that I will be able to use. I submit that the Zimbabwe Dollar is now moribund and has fallen into disuse. It is no longer the currency in use at the moment. There is no point in giving me, as respondent contends, the Zimbabwe dollars as I will not be able to use them to access the medical attention that I so badly and urgently require. I submit that I am entitled to effective remedies and giving me Zimbabwean dollars is hardly such effective remedies.”…,.

The notice of opposition was filed of record on 30 May 2013. Mr. Charles Stewart Gardiner deposed to the opposing affidavit on behalf of the respondent. He is a son of the Managing Director of the respondent, and himself a director of the respondent company. He averred that the applicant should apply to the court which granted the judgment in question for the judgment to be corrected in accordance with the rules of this court.

Mr. Gardiner denied that the applicant had a right to correct the judgment in terms of the rules of this court. He denied that the applicant was permanently disabled, although he accepted that the applicant was injured in the accident. He emphatically declared that the applicant was dishonest and that he had fraudulently exaggerated his injuries and allegations of disability. He denied that the applicant is in urgent need of medical attention. He reiterated that the applicant has already received a sum of USD$90,332=24 from the respondent and averred that this amount ought to have been more than sufficient to fund whatever medical attention the applicant allegedly requires.

It was admitted that the respondent is bound by the terms of the Supreme Court order.

The respondent expressed certainty that the applicant's awards which emanated from this court were based on fraud, fraudulent documents and perjured evidence, and referred the court to its application for leave to adduce further evidence which it filed before the Supreme Court simultaneously with its appeal under case number SC19-2008.

Mr. Gardiner averred that the court should have regard to the independent expert evidence that was filed before the Supreme Court to prove the allegations of fraud against the applicant. He re-iterated that the respondent believed that it was obliged to effect payment in the amount claimed by the applicant and awarded to him by the court. It was denied, on behalf of the respondent, that it was to blame for the applicant's hardship because the basis of the liability of the respondent arises entirely from a finding of vicarious liability for the negligence of its former employee.

Three issues fall for determination by this court;

(a) The first one is whether this court has jurisdiction to entertain this matter.

(b) The second issue for determination is whether it is competent for this court to award payment in United States dollars in respect of a judgment sounding in Zimbabwean dollars.

(c) Finally, we must determine whether it is competent to determine the rate of exchange by which the conversion may be made.

(a) Jurisdiction

It was submitted, on behalf of the applicants, that the High Court has jurisdiction to deal with any matter that is placed before it and that there is nothing amiss in this court dealing with a matter arising out of a judgment of this court. The court was referred to the case of Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors SC21-14 as authority for this proposition.

The court perused the judgment of the court a quo HH108-11/ HC5710-09.

The issue for determination, as it was understood by that court, was that the applicants had approached that court since it was the only court with inherent jurisdiction seeking a declaratur that the principle of currency nominalism has no place in Labour Law (i.e. a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. The applicants sought a further declaratur that to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is, in an amount, currency, and quantity that achieves fairness as required by the Labour Act. A further order compelling the respondent to pay damages in USD was sought. The principle relied on by the applicants was that a successful appellant ought to have the discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him for the loss as well as fulfill the objectives of the Labour Act.

The respondent had opposed the relief sought by the applicants before the High Court on the basis that the matters raised had been canvassed and dismissed by the Labour Court and were therefore res judicata; that this matter was purely a labour issue by virtue of section 89(6) of the Labour Act [Chapter 28;01]; that the court was being asked to usurp the role of Parliament by repealing the common law principle of currency nominalism and that the court was being asked to 'overrule” those decisions of the Supreme Court which had already made the point that in quantifying damages in labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension.

The High Court took the view that it was the only court with power to issue declaratory orders. On the issue of usurping the role of Parliament, the High Court took the view that 'it is not impermissible for the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in an asylum of financial misery'.

On page 5 of the judgment, the High Court postulated the question of whether, in the circumstances of the case before it, it ought to declare that 'in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.'…,.

Clearly, the High Court limited the application and scope of its judgment to the realm of employment relations and to the period during which there was lack of economic normalcy. It applied the principles of equity and enjoined itself to 'tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.'

The High Court ordered the respondent to pay damages in USD using the official exchange rate obtaining as at 5 July 2007.

The respondent appealed.

The appeal and cross appeal came before a five member bench of the Supreme Court on 11 September 2013. The judgment of the Supreme Court was to allow the appeal to the extent of setting aside the judgment of the High Court for lack of jurisdiction. It was held, with the consent of both parties, that the matter should have been determined by the Labour Court.

It is this court's view that it would not be proper to rely on principles which were enunciated in the context of labour disputes, which differ materially from the matter under consideration, and in respect of which certain principles underline their conduct, which are not applicable here, such as social justice and equity. The court is bolstered in its view by the recent judgment of the Supreme Court, Madhatter Mining Company v Marvelous Tapfuma SC51-14, where the court stated that Fleximail (Pvt) Ltd v Gift Bob David Samanyau & 3 Ors HH108-11 had been overturned on appeal and could no longer be cited as authority or as a basis on which a court can convert damages awarded in Zimbabwe dollars to United States dollars.

The vexing question of whether the USD amount would give true value to the damages that the respondent would be entitled to was posed by the court.

True value was defined as a value that would 'neither over-compensate the respondent nor inadequately do so'. Other pertinent considerations for a court faced with the question of converting Zimbabwe currency to US$ were the issue the two main Zimbabwe dollar to USD$ exchange rates which obtained prior to 2009, i.e. the official and the unofficial rates….,. Finally, the Supreme Court emphasized that it is the Labour Court - and not the Supreme Court - which in endowed with jurisdiction to apply principles of equity in its determination of labour disputes based on the provisions of section 2A of the Labour Act [Chapter 28:01].

See Horace Nzuma & 2 Ors v Hunyani Paper & Packaging SC137-11.

I accepted the submission made on behalf of the respondent that this court has no similar jurisdiction to that of the Labour Court, to determine disputes on the basis of social justice or principles of equity.

The Labour Court, in Madhatter Mining Company v Marvelous Tapfuma SC51-14, was then given guidance by the Supreme Court and the matter was remitted back to it for the determination of the following issues:

(a) What is the effect of the change of currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe Dollar currency which, though not demonetized, is no longer in use?

(c) Has the principle of currency nominalism any application to the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realizable currency if the conclusion of the above issues is in favor of payment in United States dollars.

These questions given for the guidance of the Labour Court are regurgitated here in the realization that these are the same questions that this court may have to determine if the question of jurisdiction in this matter before it is resolved in favor of the applicant.

In defence of this claim, the respondent raised the main point of the absence of jurisdictional basis on which the court can 'change' or 'convert' a judgment that was given by it in January 2008.

I am grateful to counsel for the respondent for the extensive heads of argument filed of record, which appeared to have been tailored to respond to the questions for guidance which were issued by the Supreme Court, as listed above, for the guidance of the Labour Court.

It was submitted, on behalf of the respondent, that if there is such a jurisdiction, there is a dispute as to whether it can be exercised five years after the original judgment and one year after the judgment of the Supreme Court in which the matter was not raised; whether the conversion is to take place on the date of the judgment or on the date on which payment is made; what the proper rate of exchange would be; whether the conversion can be made in respect of those heads of damages which were incurred and paid for in Zimbabwe dollar currency and awarded as special damages at trial; and, finally, the bona fides of the applicant.

The respondent submitted that medical expenses and towing charges are special damages which were incurred in Zimbabwe dollars not United States dollars. The loss was incurred 15 years ago in Zimbabwe dollars, the damages were alleged and proved seven years ago in Zimbabwe dollars. The respondent disputed the applicant's entitled to interest at the prescribed rate, or at any rate, on the basis that the prescribed rate of interest sought to be relied on was only introduced on 23 October 2009 by S.I.164 of 2009 and backdated to 23 October 2008.

Finally, the respondent submitted that, in respect of the three heads of general damages that the applicant now seeks payment for in foreign currency, which was not available to him, and which he did not seek, at the time of the trial, those damages are not due to him in any other currency other than the currency that he claimed them in.

It is trite that the cause of action for the relief being sought must be found in the founding affidavit. See Poseidon Ships Agencies (Pty) Ltd v African Coaling and Exporting Co (Durban) (Pty) Ltd 1980 (1) SA 313 (D); Director of Hospital Services v Mistry 1979 (1) SA 626 (A)…,.; Dajen (Pvt) Ltd v Durco (Pvt) Ltd 1998 (2) ZLR 235 (SC)…,.; Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489 (SC)…,.

It was submitted, on behalf of the respondent, that the founding affidavit does not disclose the cause of action to support the relief sought. It was submitted, correctly in my view, that the applicant's need for urgent medical attention is not a jurisdictional basis for the relief sought. It was contended that the fact that the Zimbabwe dollar is now moribund and has fallen into disuse, and that, there is no point making payment in it, again affords the applicant no jurisdictional basis for the relief sought. Finally, it was submitted that to plead ad misericordiam that he is entitled to an effective remedy does not assist the applicant at all.

It is common cause that upon the introduction of the multi-currency basket in January 2009, Parliament did not see fit to introduce any legislation to enable this court to look at judgments given before January 2009.

It was contended that, in the absence of legislative authority that enables this court to look at judgments given in Zimbabwe dollars before dollarization in January 2009, we must be guided by the usual common law Rules. I find myself in full agreement with these statements of the law as it currently stands.

However, in case I am wrong in my view that there is no jurisdictional basis on which this court may grant the relief sought by the applicant, I will proceed to deal with the merits of the matter.

The law that underlies the legal principle of functus officio was summarized in the case of Firestone South Africa (Pty) Ltd v Genticuro 1977 (4) SA 298 (A)…, as follows:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that it thereupon becomes functus officio, its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter has ceased.

See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173 @ p176, 178,186-7 and 192; Estate Garlick v Commissioner of Inland Revenue 1934 AD 499 @ p502…,. There are, however, a few exceptions to the rule which are mentioned in the old authorities and have been authoritatively accepted by this court…, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement it in one or more of the following cases:

(i) The principal judgment or order may be supplemented in respect of accessory or consequential matters, for example costs or interest on the judgment debt which the court overlooked or inadvertently omitted to grant…,.

(ii) The court may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous, or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter 'the sense and substance' of the judgment or order…,.

(iii) The court may correct a clerical, arithmetical or other error in its judgment in order to give effect to its true intention…,.

(iv) Where counsel has argued the merits and not the costs of a case…, but the court makes an order granting costs…, it may thereafter correct, supplement or alter the order…,.”

The submission that none of these exceptions apply to the applicant was accepted by the court, as well as reference that the principle of finality in litigation (interest reipublicae ut sit finis litium) is a part of our law.

See Matanhire v BP Shell Marketing Services (Pvt) Ltd 2005 (1) ZLR 140 (SC)…,; Maheya v Independent Africa Church 2007 (2) ZLR 319 (SC)…,.

This court also accepted as correct, the submission made on behalf of the respondent, that the present application is not intended to supplement, clarify, or correct the judgment of January 2008 - but to alter its substance. The alterations are not incidental or consequential corrections - but go to the very heart of the orders made.

In respect of towing charges and medical expenses already incurred, the purpose of the application is to change the very basis of the currency in which those special damages were incurred. In respect of the three headings of general damages, the application intends to change the basis on which those damages were sought, when those damages were suffered in Zimbabwe, in the currency of payment then prevailing.

It is common cause that there was a considerable delay by the applicant in bringing this application, the original judgment having been handed down in January 2008 and the use of the United States dollar having been authorized by January 2009. The appeal was heard in October 2010 and the Supreme Court judgment handed down in February 2012. Nearly 15 years have passed since the accident in question and four and half years since dollarization. No explanation was given by the applicant for the inordinate delay in making this application. Any application to correct or supplement an order, whether in terms of the common law or under Rule 449 of the High Court Rules 1971, must be brought as soon as possible, or at the very least within a reasonable period. See West Rand Estates Ltd v New Zealand Insurance Co Ltd 1926 AD 173…,.

The leading cases on currency nominalism in this court merit discussion.

In Shava v Bergus Investments (Pvt) Ltd 2011 (2) ZLR 340 (HC), a full bench of this Court, through my brother MUTEMA J and CHIWESHE JP concurring, held that a party cannot revalue a judgment debt for purposes of execution. Citing Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08…, the court held it to be trite that the principle of currency nominalism was part of the law of Zimbabwe. The court held that, to allow a party to change the currency of the judgment was 'not only incompetent for arbitrariness but offended against the time honored principle of currency nominalism'. The court said the following…,:

“That principle holds 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 the currency.”

The court also said…,:

“It is beyond argument that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. The values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was accordingly idle for the first respondent to revalorize its claim on execution. It ought to have made a court application for the conversion of the currency.”….,.

Counsel for the respondent…, submitted that, before this court came to above underlined conclusion, it ought to have examined, in greater detail, the impact of the 'once and for all rule' and of the submission that the court cannot 'convert' the currency on application because it will be functus officio.

I found this view persuasive.

It was submitted, further, that reliance on Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08 should not have led the court to the conclusion that it came to, because, in that case, the court was emphatic in its view that:

“…, the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

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 the purpose of execution, let alone completely re-write an order granted nearly seven years ago. Any such power would have to be the consequence of legislation - which currently does not exist in Zimbabwe.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency, but payment must be made in local currency converted as at the date of payment. See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

This court is persuaded by the contention, which is supported by various decisions by the Supreme Court and the High Court, that, had the judgment in this matter been sought and made after January 2009, even in respect of an accident that occurred before that date, judgment could be granted in foreign currency as being the effective currency to redress the loss.

As further authority for this proposition, see Kwindima v Mvundura 2009 (1) ZLR 168 (H).

However, in this case, judgment was sought prior to January 2009, specifically in Zimbabwe dollars, and quite clearly Zimbabwe dollars is the currency in which the losses were sustained.

Section 41 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] reads:

“41 Legal tender of banknotes

(1) A tender of a banknote which has been issued by the Bank and which has not been demonetised in terms of subsection (2) shall be legal tender in payment within Zimbabwe of the amount expressed in the note.

(2) The President may, by statutory instrument, call in and demonetize any banknotes issued by the Bank, and shall likewise determine the manner in which and the period within which payment for such banknotes shall be made to the holders thereof.”

It is common cause that the President has not demonetized the Zimbabwe currency in terms of the Presidential Powers (Temporary Measures) (Currency Revaluation and Issue of New Currency) Regulations 2009, as confirmed by the Finance Act 2009, and that, he had not done so at the time that this application was filed, on 8 May 2013.

Section 44 of the Reserve Bank of Zimbabwe Act [Chapter 22:15] provides that:

“44A Legal tender of foreign currencies

The Minister may, in regulations made under section 64, prescribe that, subject to such conditions as may be specified in the regulations, a tender of payment in any currency other than Zimbabwean currency shall be legal tender in all transactions or in such transactions as may be specified in the regulations.”

It is submitted, on behalf of the respondent, quite correctly in my view, that this provision does not render the Zimbabwe currency to be moribund, but that it allows foreign currencies to be treated as legal tender in addition to the Zimbabwe currency. It was correctly submitted, in my view, that there is no statute or other legal instrument that has abolished or suspended the existence of the Zimbabwe currency. Accordingly, as a matter of law, if not practice, the Zimbabwe currency still exists. See Stuart v National Railways of Zimbabwe (unreported)…,.

If any conversion is to take place for the purposes of allowing the enforcement of a judgment granted before February 2009, in Zimbabwe currency, it must be done at the rate prevailing on the date of payment, not the date of judgment….,.

The Legislature, in its wisdom, only enacted section 44A of the Reserve Bank Act, and did not see fit to provide a further framework to guide us on how to dispose of these matters. If the applicant's judgment has been rendered incapable of being satisfied through lack of a legislative framework that regulates its execution, then the applicant's remedies must lie with the Legislature.

The applicant seeks to use the date of judgment as the date on which conversion into US dollars is to be made, and seeks to use the rate of exchange allegedly applicable on that date. However, it is pertinent to note that, at the date of the judgment, January 2008, the use of United States dollars in Zimbabwe was not permitted, and any judgment given in United States dollars as being the currency in which the loss was sustained could only be satisfied by the payment of Zimbabwe currency as at that date.

This court lacks that jurisdictional basis to make any conversion as at the date of judgment because such conversion would, at that time, have been contrary to exchange control legislation. Any attempt to do a conversion as at the date of the judgment would in effect be to render a completely new judgment, in breach of the once and for all rule.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,.

In his book The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge-made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No. 43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened.

In the result, this court finds that it has no jurisdiction to grant the relief sought by the applicant, and that, no factual basis has been laid in the founding affidavit to justify granting the relief sought. The court is functus officio, the damages which the applicant seeks to be 'converted' to another currency now, were assessed and awarded in 2008. Any attempt to re-assess the award made in 2008 now, even if such assessment involves the calculation of the value of the damages in a different currency, would amount to changing the nature of the judgment given in 2008, a power which is only available to a superior court on appeal.

The matter cannot properly be determined by the improper use of this court's inherent jurisdiction.

This court's inherent jurisdiction does not cloak it with power to re-determine issues between the same parties which have already been conclusively determined. It may only do so on limited grounds where it is directed to do so by a higher court, the Supreme Court, and on very specific directions. There being no such direction from the Supreme Court, to this court, it is trite that the issues between the parties are res judicata.

This court has no jurisdiction to exercise the same principles of social justice and equity as the Labour Court, and any attempt to rely on labour matters, as the basis for inviting this court to exercise powers that are specific to and pertinent to the Labour Court will find no truck with this court.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that, there is no factual or legal basis in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

Despite this finding, this court respectfully declines to exercise its discretion and grant punitive costs against the applicant as advocated for by counsel for the respondent.

Accordingly, the application is dismissed with costs on an ordinary scale.

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.”

There were three issues for determination before the court a quo. These were the following:

(i) The amount in local currency to be converted into foreign currency;

(ii) The date of the prevailing rate of exchange to be applied for purposes of conversion.

(iii) The rate of exchange applicable for such conversion.

On the first issue, the court a quo found that the total amount to be converted into United States dollars was ZW$3,937,217=09. The learned judge concluded, on the second issue, that the date of rate of exchange to be applied was that rate which was prevailing on the date of judgment, being 23 January 2008.

It is this conclusion that the appellant disputes.

The appellant was aggrieved by that decision and noted this present appeal. The appellant moved an amendment to its grounds of appeal. The respondent did not object and the amendment was allowed by consent. The grounds of appeal, as amended, are framed as follows:

1. The court a quo erred at law in not finding that the ZW$ award made in favour of the respondent had, by operation of law, completely been decimated, and that, consequently, there was no ZW$ to convert to US dollars.

2. The court a quo erred in using the 23^rd of January 2008 as the date of payment, and, therefore, the conversion date instead of using 24 October 2012 as the conversion date, it being the date on which the respondent demanded payment.

3. In any event, the court a quo erred in finding, as common cause, that the rate of conversion from Zimbabwean dollars to United States dollars, as at 23^rd January 2008, was USD$1: ZWD$30 contrary to the conversion rate of USD$1: ZWD$30,000= pleaded by the respondent and accepted by the appellant.

4. The court a quo erred in finding that, on the facts pleaded, the appellant was liable to the respondent in the amount of USD$131,240=56.

The respondent was also not satisfied with the determination by the court and filed a cross-appeal on the following grounds:

1. The court a quo erred in making a determination on the issue of pain and suffering which was not an issue in dispute leaving the issue of future medical expenses which was an issue in dispute.

2. The court a quo, as a result, erred in awarding the respondent the sum of US$131,240=56 instead of US$164,573=90.

I will begin with the claim as presented in the main appeal, where the salient issues for determination appear to be whether there was continued liability, and, if so, the conversion rate at the time of the dispute.

The appellant sought that either the application a quo be dismissed, or, by application of the suggested rate, it be ordered to pay US$131=24.

MAIN APPEAL: WHETHER THERE WAS A CLAIM TO BE CONVERTED?

The first two grounds are being raised for the first time in this appeal.

Counsel for the appellant submitted that the issues being raised in those grounds were not before the court a quo. Critically, therefore, in its amended notice of appeal, the appellant seeks to introduce an issue that the court a quo erred in failing to note that the award made in favour of the respondent in 2008 was completely decimated and therefore there was nothing to convert.

The appellant argues that the amount awarded as damages had been ravaged by inflation, and, as a consequence, there was nothing to convert into foreign currency. In addition, it was contended that the currency was devalued in terms of S.I.109 of 2008, the effect of which was to render the local currency moribund.

It is common cause that the award of damages was appealed to this Court immediately after the judgment was rendered. The appeal itself was heard on 5 October 2010 and there is no indication that during the hearing the appellant made any effort to suggest that the amount being appealed was no longer capable of being paid and that the judgment could not in fact be given effect to. In addition to the above, the appellant did not, at any stage, attempt to have the order rectified following the promulgation of S.I.109/08. The appellant did not, in this Court, provide any authority that would support its contention that an order of court can be altered merely by the promulgation of a legal instrument without a formal request to a court for such alteration. In the premises, it is my view that the amount awarded as damages in local currency was what should have been used as a basis for the calculation of the foreign currency equivalent.

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.”

What is evident in that passage is the absence of any suggestion from the appellant that the amount awarded as damages could not be converted by reason of the application to the award of the provisions of S.I.109 of 2008.

Had the court been addressed on this critical issue it would have made a determination as to whether, in addition to the question of jurisdiction relating to the conversion, the High Court enjoyed a jurisdictional base related to the existence or otherwise of an amount capable of conversion. The contention by the appellant that there was nothing for it to convert to foreign currency therefore raises two critical issues for determination.

(a) The first is that the court a quo is being criticised for failing to determine an issue that was never placed before it for adjudication.

It is evident that the appellant chose to have the matter decided without alerting the court of its views on the provisions of the statutory instrument in question. After counsel for the appellant's admission that this was an issue being placed before the court for the first time, it stands to reason that for that reason the ground cannot succeed.

In addition to the above, it was contended that notwithstanding that this issue was not before the court a quo this Court could make a determination on the same. We were not invited to remit the matter for the determination on this issue.

It is trite that a point of law may be raised for the first time on appeal. The question is, is this a point of law strictu sensu?

In my view, whether or not S.I.109/2008 should be applied to the amount to be converted constitutes not merely a question of law, it also involves factual issues. The exercise in its application to the dispute would, of necessity, require the leading of evidence from both parties as to how the statutory instrument should be implemented, the amount to be converted and the sum available, if any. This, in my view, would have been an exercise properly undertaken before the court a quo. It was not and it does not fall for this Court to undertake this exercise for the simple reason that this Court is not a court of first instance.

In my view, the two grounds on which this premise is taken therefore lack merit and ought to be dismissed.

In addition to the above, a decision of the Supreme Court on a factual issue is final.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court confirmed that the amount of damages awarded in the local currency be converted to foreign currency. I am fortified in this view by the remarks of MALABA CJ, in the case of Lytton Investments (Pvt) Ltd v Standard Chartered Ltd & Anor CC11-18, to the following effect:

“What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non constitutional matters. A decision of the Supreme Court, on a non-constitutional matter, is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct….,.

The law of finality of decisions of the Supreme Court on non-constitutional matters applies to all litigants equally, whether they become winners or losers in the litigation process. The declaration of finality of a decision of the Supreme Court, on a non-constitutional matter, is itself a protection of the law. Once a decision is as a matter of fact a decision of the Supreme Court on a non-constitutional matter, no inquiry into its legal effect can arise.”

Court orders must address the dispute before the court for to do otherwise would result in a patent miscarriage of justice.

The issue was how much the award translated to in foreign currency and that has been done.

At this point, the words of OLIVER WENDELL HOLMES in his opening page of The Common Law become appropriate. He stated that:

“The life of the law has not been logic; it has been experience…,.The law embodies the story of a nation's development through many centuries.”

In Kwindima Fabiola v Mvundura Louis HH25-09…, MAKARAU JP…, then opined that the court has a discretion to award judgment in a currency that will redress the injury suffered and adequately compensate the injured for that loss. The learned Judge held that it would naturally follow that where that currency is the foreign currency as opposed to the local currency, the judgment should sound in the foreign currency as to award damages in the local currency, where the local currency has been rendered valueless by inflation, might be to deny a plaintiff the redress that he or she seeks.

To this end, the first two grounds are entirely devoid of merit.

The next issue of contention is the date of conversion of the local currency into foreign currency.

The High Court found that the date of conversion was 23 January 2008 which was the date of judgment. The appellant disagrees and submits that the date of conversion must be 24 October 2012 which is the date on which the respondent demanded payment. In this regard, the appellant contends that the court a quo erred and that the date of conversion should be the date of payment. It sought reliance on a judgment of this Court by GWAUNZA AJA…, in Chisese v Garamukanwa 2002 (2) ZLR 392 (S) wherein the learned judge stated:

“In the absence of any stipulation to the contrary the general rules should be followed; that the applicable rate of exchange is the one prevailing at the time of payment and not at the time the contract was made.”

The facts of this authority are the following.

The appellant therein paid tuition fees for the respondent's son in the United Kingdom. Payment was made in pound sterling and the parties regarded such payment as a loan by the appellant to the respondent. The respondent avoided repaying the loan for nine years, and, when the appellant finally sued him for payment, raised a series of specious defences. The High Court found that the respondent was indebted to the appellant, but, the appellant appealed to the Supreme Court on the issues of how much was owed, the currency in which the debt was to be paid and the appropriate exchange rate and the rate of interest payable.

The Supreme Court, having determined the outstanding amount, dealt with the questions of the appropriate exchange rate, the rate of interest, and costs.

The decision in the above authority is in sync with judgments of this Court in which the principle has been clearly set out that where a judgment has been expressed in foreign currency the rate of exchange to be applied for purposes of execution of the judgment is that prevailing when leave to execute is given. It is common cause that in March 2008, when the judgment was rendered, its value as against other currencies was capable of assessment by the Reserve Bank of Zimbabwe.

It has since been demonetized.

The contention by the appellant, following upon the dicta in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) is that the rate of exchange to be applied for the conversion of the local currency to the United States Dollar payable to the respondent be that prevailing as at the date of payment.

In my view, this contention, on the part of the appellant, completely ignores the point that the award which was converted by the court a quo was made in 2008 and that the date for the conversion of the award is the date of the judgment, which, in this case, is 23 January 2008. When the court was called upon to convert the award, it was called upon to look at the award as at the time the judgment was granted - that is 23 January 2008. Thus, the court was called upon to convert the amount granted on 23 January 2008.

The remarks of GUBBAY JA…, in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (S)…, are apposite. The learned Judge of Appeal said:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of a devaluation in the value of the currency between the due date on which the defendant should have met his obligation and the actual date of payment or the date of enforcement of the judgment.

Since execution cannot be levied in foreign currency, there must be a conversion into the local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

In casu, the reverse situation is what prevails.

A judgment sounding in the local currency was, by order of court, made payable in foreign currency. The primary reason was that although claimed in the local currency by the time judgement was rendered the local currency had become moribund through disuse. It was no longer a currency of choice. It was, for all intents and purposes, shunned by the generality of the populace. The judgment expressed in the local currency was of no beneficial value to the respondent.

However, Chisese v Garamukanwa 2002 (2) ZLR 392 (S) made the very important distinction that the parties did not intend to deal in foreign currency – the loan was extended in a foreign currency but payable in Zimbabwe in Zimbabwean dollars. The court ordered that the loan amount to be paid back was to be the Zimbabwean dollar equivalent of the loan that was extended in pound sterling. This judgment was handed down in 2002 where the question was related to devaluation but the currency itself was still in use. The court simply had to set the date for consideration of the value.

In casu, the currency had fallen away – it no longer existed for a payment in its equivalent.

In Chisese v Garamukanwa 2002 (2) ZLR 392 (S), the court applied the principle of currency nominalism which was explained by R H CHRISTIE, in the Law of Contract in South Africa, 3^rd Edition…, as follows:

“Once the place, time, and currency of payment have been settled, by reference to the terms of the contract and to the above general rules, were not excluded by those terms, any profit or loss accruing to either party as a result of fluctuations in rates of exchange must lie where it falls; Toff v African Life Assurance Society Ltd 1933 TPD 189; Aktiebolaget Tratalja v Evelyn Haddon & Co Ltd 1933 CPD 156; Tropic Plastic and Packaging Industry v Standard Bank of SA Ltd 1969 (4) SA 108 (D).”…,.

The rationale of this principle is that stability and certainty in the value of money enhances legal security between contracting parties which is seen as necessary in upholding the sanctity of contract principle as any changes in the value of the contractual obligation would undermine legal security. The wisdom in this may be seen where the economic fluctuations are not so gross as to entirely prejudice one party over the other.

This principle could still be applied in 2002 in Zimbabwe as the Zimbabwean dollar was still in use. However, as of 2008/2009 when the country adopted a multi-currency system and the Zimbabwean dollar fell into disuse the courts were in a precarious position.

In 2009, the country adopted a multi currency regime to allow for monetary transactions in view of the status of the local currency. That decision effectively put the nail in the coffin where the local currency is concerned. Not only did it become moribund it became unavailable. It was, as a matter of course, demonetized soon thereafter.

I would venture to suggest that the issue in this case is clearly distinguishable from the authorities as to the applicable rate of exchange when issues pertaining to conversion of currencies are considered.

In this case, the respondent obtained an order to permit him to convert a judgment rendered in local currency into foreign currency. The chief reason was that the local currency had depreciated in value to such an extent that the judgment would be a brutum fulmen as long as it remained expressed in the local currency. The second reason is that the currency had been rendered moribund through dis-use and was of no monetary value to him in enforcement of the same. The last and most important reason is that it has been demonetized.

I am unable to conceive of a situation where a currency that has been officially demonetized can be subjected to a rate of exchange. It is a practical impossibility. I would also venture to opine that where a judgment rendered in a local currency is converted by a court into a judgment expressed in foreign currency by virtue of the devaluation of the former different considerations must apply as regards the date of conversion of the currencies. I say this mindful of the dicta by GUBBAY JA…., in Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (S) that justice requires that a plaintiff should not suffer by reason of the devaluation in the value of the currency between the due date on which the defendant should have met his obligation and the actual date of payment or the date of enforcement of the judgment.

The learned judge in the court a quo had regard to a letter from the Reserve Bank wherein the Bank stated that the official rate of exchange prevailing on the date of judgment, viz, 28 January 2008 was ZWD30,000 to USD1. However, from the judgment, it is evident that the court a quo applied a different rate that of ZWD30 to USD1.

There is reference in the supplementary heads of argument filed on behalf of the respondent in the court a quo to the removal of three zeros from the ZWD currency in accordance with the provisions of S.I.109 of 2008. The appellant suggests that the court a quo applied an incorrect rate of exchange. Sight must not be lost of the fact that balances in bank accounts and bills were affected by the implementation of the statutory instruments. Although counsel for the appellant suggested before us that it did not have a retroactive effect; it became law as at 30 July 2008 and its immediate effect was a revaluation of balances. Unfortunately, it did not have the effect of revaluing orders of court.

I find no misdirection on the part of the High Court in applying an exchange rate of ZWD30 to USD1.

As regards the date of conversion, the court a quo sought reliance on Avacalos v Riley HH75-07 wherein MAKARAU JP…, clearly made a distinction between judgments expressed in the local currency from those expressed in foreign currency. The learned judge said:

“It appears to me that Mrs Wood is seeking reliance from the dicta in Makwindi Oil Procurement (Pvt) Ltd (supra) where it was laid down that the amount of foreign currency in a judgment is to be converted into local currency at the date when leave is given to enforce the judgment. This is the established position, but, in my view, it only applies where the judgment is expressed in foreign currency. Where the judgment is to be expressed in local currency, then the amount of the judgment is set and determined on the date that the consent to judgment is filed. It cannot be re-converted on the date that judgment is finally given as to do so will, in my view, be highly prejudicial to the defendant who would have unequivocally elected to have a judgment entered against him in a certain specified amount.”

In the premises, I would resolve all the grounds in the respondent's favour. The appeal is therefore dismissed as being devoid of merit....,.

In the result the following order will issue:

IT IS ORDERED THAT:

1. The main appeal is dismissed.

At the conclusion of submissions by counsel, the parties in this case agreed that this matter should have been determined by the Labour Court and not the High Court.

It was also common cause that a determination by the Labour Court was necessary before the Supreme Court could be seized with this matter. Consequently, it was agreed between the parties that the matter be referred to the Labour Court for determination, and that, in the event of either party not being satisfied with the determination of the Labour Court, the aggrieved party appeals to the Supreme Court.

The Court agreed with the common stance of the parties.

The Court directed the parties to submit a draft order by consent for approval by the Court. The parties were not able to agree on the details of the order by consent. They addressed the following letter to the Registrar of this Court:

“FLEXIMAIL (PVT) LTD v GIFT BOB SAMANYAU AND 38 OTHERS: CASE NO. SC-135/11

We respectfully request that you place this memorandum before His Lordship The Chief Justice.

We refer to the above Supreme Court appeal in respect of the above matter which was heard on the 11^th of September 2013. Pursuant to the Court's direction that the parties draft a consent order and revert to the Court by the 13^th of September, we advise that there are areas of agreement and areas of disagreement.

Areas of agreement

The parties agree that the matter be referred to the Labour Court for quantification.

Areas of disagreement

The parties disagree on the following three issues:

1. Whether or not the appeal was allowed.

2. Whether or not the cross-appeal was allowed.

3. Whether or not the Labour Court was directed to quantify the damages in United States dollars or whether this issue remains open.

It is the appellant's view that the appeal was allowed as the Court indicated that the judgment of the High Court was set aside. However, the question of whether the respondents are entitled to damages in United States dollars remained to be decided by the Labour Court during the quantification proceedings. Accordingly, the cross appeal cannot have been granted.

We respectfully request the Court's direction as to how to proceed.”

The Court has considered the submissions by counsel and the above letter addressed to the Registrar of this Court seeking directions. The Court has come to the following conclusion.

1. The judgment of the High Court in this matter is hereby set aside for lack of jurisdiction. To that extent the appeal succeeds. The matter should have been determined by the Labour Court.

2. There being no valid appeal to this Court from a court of competent jurisdiction, the cross appeal falls away. The matter is hereby remitted to the Labour Court for determination.

3. For the guidance of the Labour Court, the Labour Court is directed to determine the following issues –

(a) What is the effect of the change in currency effected in February 2009 on debts occurring before the effective date?

(b) Does the Labour Court have the power to order payment in the operational currency (the United States dollar) of debts incurred under the Zimbabwe dollar currency which, though not demonetised, is no longer in use?

(c) Has the principle of currency nominalism any application in the circumstances of this case?

(d) The method of calculating the quantum of the debt in current realisable currency if the conclusion of the above issues is in favour of payment in United States dollars.

This matter has trudged a long and tortuous journey.

The applicants are former employees of the respondent who were charged with misconduct and dismissed in 2005 following disciplinary processes. The applicants challenged their dismissal right up to the Labour Court in case number LC/H15/06. The Labour Court found for the applicants on 5 July 2007 and ordered their reinstatement, alternatively, payment of damages in lieu of reinstatement. The respondent opted to pay damages, caused their quantification on 10 December 2008 equivalent to 5 years salary using the cut off date of 5 July 2007 and tendered them to the applicants.

The tender, dated 11 February 2009 from the respondent's legal practitioners addressed to the applicants' erstwhile legal practitioners, Mwonzora & Associates, reads:

“RE: L MAWERE AND OTHERS v FLEXMAIL: QUANTIFICATION OF DAMAGES

In line with the judgment of the Labour Court handed down on 10 December 2008, please find herewith our client's cheque in the sum of $12,594=77 (revalued) in full settlement of the amounts due to your clients. A copy of the schedule as to how the various figures were arrived at is attached hereto.

You will note from the computation that the amounts have been revalued and inflation adjusted to February 2009.

The matter is accordingly closed…,.”

The applicants, through their then legal practitioners mentioned above rejected the tender and returned the cheque in question. The attempt at payment was tendered after breakdown of quantification negotiations. The primary reason for rejecting the tender was that the respondent attempted to pay the damages in Zimbabwe dollars in February 2009 when the currency had become moribund.

In their amended draft order the applicants are seeking a declaratory order in the following terms:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States Dollars using the initial United States Dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.

2. That the respondent pay the costs of suit.”

The main thrust of the applicants' argument, as gleaned from the founding affidavit and heads of argument, is as follows:

The applicants have approached this court, since it is the only court with inherent jurisdiction, seeking a declaratur that the principle of currency nominalism has no place in Labour Law (a common law principle) as it would be at variance with the Labour Act's aim of achieving social justice. Further, they seek a declaration to the effect that damages in lieu of reinstatement have to be paid in an effective manner, that is in an amount, currency, and quantity that achieves fairness as required by the Labour Act. The applicants further seek an order compelling the respondent to pay damages in United States dollars using the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency i.e. in February 2009. A successful appellant, so the argument went, should have a discretion to choose payment of damages in the currency that will redress the injury suffered and adequately compensate him/her/ it for the loss as well as fulfil the objectives of the Labour Act.

Interpreting the order of the Labour Court to mean payment in Zimbabwe dollars would amount to making the order a brutum fulmen because the Zimbabwe dollar, by the time of the tender, had became de facto valueless and useless, this would amount to non-payment thereby reducing court orders into empty judgments which is both unfair and against public policy.

The respondent's opposition was premised on the following main planks:

1. The matter is res judicata in that the Labour Court handed down judgment in case number LC/H/15/06 ordering the respondent to either reinstate the applicants or pay damages in lieu thereof. Following quantification of such damages, the amount due and payable was duly remitted to the applicants. In the event, this application disguised as an “application for a declaratory order” is merely meant to deal with the same issues which were concluded by the Labour Court.

2. The issue brought before this court is an employment/labour issue and by virtue of section 89(6) of the Labour Act [Chapter 28:01], the jurisdiction of this court is ousted.

3. What the applicants are asking this court to do is to:

3.1 Ignore the salaries payable to the applicants as at 5 July 2007 when an order of reinstatement was made by the Labour Court.

3.2 Depart from the current position of law and order payment of damages based on a date after the order of reinstatement was made.

3.3 Ignore the lawful currency that governed the contractual relationship between the parties as at 5 July 2007 (which required payment of salaries in Zimbabwe dollars) and set aside that trite position to enable the applicants to be paid afresh damages in lieu of reinstatement in US dollars. This is despite the fact that, as at 5 July 2007, the applicants' employment contracts entitled them to remuneration in Zimbabwe dollars and not in US dollars sought by the applicants.

4. The issues raised by the applicants have been dealt with by the courts on many occasions and are not unique to the applicants.

I am mindful of the fact that what the applicants are inviting this court to do, as submitted by counsel for the respondent, boils down to two pertinent issues, viz:

1. To do that which Parliament should, i.e. to make law by repealing the common law principle of currency nominalism; and

2. To “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of dismissal or suspension. See Redstar Wholesalers v E Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi 2000 (1) ZLR 325 (S).

Points 3 and 4 of the respondent's opposition cited above are interwoven with point 2 cited immediately above so I shall deal with them pari passu…,. First, let me deal with points one and two of that opposition quoted above. They allude to the issue of res judicata and ousting of this court's jurisdiction by virtue of section 89(6) of the Labour Act.

As regards the issue of res judicata, I have not been persuaded that it is applicable in the instant case.

In order to successfully ground such a defence, the litigant raising it must show that the dispute has been conclusively settled on the merits by a court of competent jurisdiction and that the two actions are between the same parties, concerning the same subject matter founded on the same cause of complaint. See Gwaze v National Railways of Zimbabwe 2002 (1) ZLR 679.

The original dispute before the Labour Court was concerned with the lawfulness or otherwise of the applicants' dismissal and the quantum of damages payable in lieu of reinstatement. That court did not deal with the issue of the form of currency of payment - which is the gravamen of the present application.

That issue only arose following the introduction of the multi-currency regime in January/February 2009 – well after the Labour Court had already handed down its judgment which was silent on the currency to be used thereby providing the basis of discretion being asserted by the applicants. The present application seeks not to reverse, amend or modify the order that the applicants be paid five years salary as damages for the unlawful dismissal, but simply seeks a declaratory order that in view of the introduction of the multicurrency and the judicial and State recognition of the de facto redundancy of the Zimbabwe dollar, a successful litigant may choose to be paid in any applicable foreign currency in the country and that payment in a moribund currency is not an effective fulfilment of the court's order.

The Labour Court, not being endowed with inherent jurisdiction to make such a declaration, it cannot be said that the dispute was dealt with on the merits let alone conclusively settled.

Regarding the issue that this court's jurisdiction is ousted by section 89(6) of the Labour Act [Chapter 28:01], I am unable to subscribe to this view. The subsection cited provides that:

“(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal or matter referred to in subs (1)”.

Subsection (1) has six paragraphs listing the functions to be exercised by that court to the exclusion of all other courts. Those functions do not include issuing declaratory orders. This meant that the Labour Court has no inherent jurisdiction to issue declaratory orders, and, in the event, the jurisdiction of the High Court remains intact.

In Sibanda & Anor v Chinemute NO & Anor HH131-04, MAKARAU JP…, put it aptly thus:

“Thus, the power to issue a declaratory order is not available in all courts that apply common law. It is specific to this court…,.

It is common cause that the Labour Court has not been specifically empowered to issue declaratory orders as this court has been. It cannot create such a relief or the procedure for granting such relief as it is not a court of inherent jurisdiction.”

I am in respectful agreement with this view.

I now turn to the other points raised in opposition cited supra.

Regarding the point raised, that the applicants are inviting this court to do what Parliament should, viz to make law by repealing the common law principle of currency nominalism, it is settled that it is not impermissible of the judiciary to make law by way of decided cases if an opportunity presents itself to plug a legislative gap especially where not to do so will leave many an unlawfully dismissed employee languishing in the asylum of financial misery.

The applicants are not asking this court to declare that the principle of currency nominalism no longer has any space in our common law generally. They are simply asking the court to pronounce that following the introduction of the multi currency regime, in January/February 2009, and the concomitant disuse of the Zimbabwe dollar which had become moribund as a result of economic and many other circumstances which had conspired to facilitate this major unprecedented conflagration, and Parliament has remained in a near catatonic state in addressing this occurrence, this court should declare that in the realm of employment relations, the principle of nominalism has, for now, no place until economic normalcy has been restored.

This court is enjoined to take judicial notice of the reality that immediately before and after the country adopted the multi-currency regime, in about February 2009, the Zimbabwe dollar was so valueless that it had ceased to be the medium of exchange in all financial transactions. To therefore have an employer tender damages in lieu of reinstatement in the form of Zimbabwe dollars in February 2009, as what the respondent did to the applicants in casu, is tantamount to giving someone an ordinary stone and expect him/her to transact using that stone as a medium of exchange. It does not make any sense in any sane society.

Should Zimbabwe continue being immutable to change on this score?

On principles of equity, this court should tread a path that will avoid iniquity and injustice where legislative intervention is not forthcoming.

The words of GUBBAY ACJ…, in the case of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S)…, regarding judicial law-making, bear useful repetition for clarity:

“Even if confirmation of the appellant's liability to the respondent should meet with disapproval as being an encroachment upon the discretion reposed in the law-giver to change the law, we would strongly defend the Judiciary's right to do so. Law in a developing country cannot afford to remain static. It must undoubtedly be stable, for otherwise reliance upon it would be rendered impossible. But, at the same time, if the law is to be a living force it must be dynamic and accommodating to change. It must adapt itself to fluid economic and social norms and values and to altering views of justice. If it fails to respond to these needs, and is not based on human necessities and experience of the actual affairs of men rather than on philosophical notions, it will one day be cast off by the people because it will cease to serve any useful purpose. Therefore, the law must be constantly on the move, vigilant and flexible to current economic and social conditions.”

After quoting the celebrated American jurist, OLIVER WENDELL HOLMES opening page of his famous work, The Common Law which reads:

“The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries and it cannot be dealt with as if it contained only the axioms and corollaries of a Book of Mathematics.”

The learned ACTING CHIEF JUSTICE, at page 154 paragraphs A-E of Zimnat Insurance Company Limited v Chawanda 1990 (2) ZLR 143 (S), went on to say:

“Today, the expectations amongst people all over the world, and particularly in developing countries, are rising, and the judicial process has a vital role to play in moulding and developing the process of social change. The judiciary can, and must, operate the law so as to fulfil the necessary role of effecting such development. It sometimes happens that the goal of social and economic change is reached more quickly through legal development by the Judiciary than by the Legislature. This is because judges have a certain amount of freedom or latitude in the process of interpretation and application of the law. It is now acknowledged that judges do not merely discover the law - but they also make law. They take part in the process of creation. Law-making is an inherent and inevitable part of the judicial process. The opportunity to play a meaningful and constructive role in developing and moulding the law to make it accord with the interests of the country may present itself where a judge is concerned with the application of the common law, even though there is a spate of judicial precedents which obstructs the taking of such a course. If judges hold to their precedents too closely they may well sacrifice the fundamental principles of justice and fairness for which they stand.”

The learned ACTING CHIEF JUSTICE then quoted a famous passage by LORD ATKIN, referring to judicial precedents:

“When these ghosts of the past stand in the path of justice clanking their medieval chains the proper course is for the judge to pass through them undeterred.”

The quotations cited above are not only attractive and persuasive but fit the instant scenario of the application before me like a fiddle.

The principle of currency nominalism works fairly in an economy which can be described as normal or stable, or, at the very worst, in which inflation is not hyper, not like in an environment with a runaway inflation as was the case in this country in the period immediately preceding the introduction of the multi-currency regime.

After introduction of multiple currency, in February 2009, it is beyond cavil that the Zimbabwe dollar died a natural death by disuse. To then give someone such currency, which no one nationwide was prepared to accept in any transaction, let alone beyond our borders, as damages in lieu of reinstatement, and after having laboured for the employer for periods ranging between 25 and 46 years like what the respondents did in casu is not only immoral but an infringement of a human right.

If judges continue to cling to their precedents in such a scenario of social and economic change, like the grasp of an epileptic during a fit, they will certainly be sacrificing the fundamental principles of justice and fairness for which they stand.

I am prepared in the instant case not to let the ghosts of the past stand in the path of justice clanking their medieval chains but to pass through them undeterred in the interests of justice and fairness.

In any event, the assertion that by granting the order sought would be usurping the role of the Legislature has no legal leg to stand on for the issuing of orders in foreign currency has been decisively dealt with before locally, regionally, and internationally.

In Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC) GUBBAY JA…, was of the view that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative approaches taken in England and South Africa, making orders in foreign currency, had to be adopted in order to bring Zimbabwe into line with other foreign legal systems. In that case, the court relied on the House of Lords decision in Owners of the MV Eleftherotria v Owners of the MV Despina R (1971) 1 ALL ER 421 (HL).

In South Africa, a similar approach was followed in the case of Elgin Brown & Hammer v Dampskibsselskabet Torm Limited 1988 (4) SA 671 (NPD).

After reviewing the three authorities cited immediately above, MAKARAU JP…, awarded delictual damages in foreign currency to a party who had purchased a house in local currency against a seller who had failed to effect transfer as a result of a prior sale to another party in Kwindima Fabiola v Mvudura Louis HH25-09. At page 5 of the cyclostyled judgment the learned judge reasoned as follows:

“It appears to me that the issue I have to determine is whether to extend the approach that has been taken in the Makwindi case and be innovative enough to suggest that where a loss has been suffered and can be calculated in both the local and in a foreign currency, the court has a discretion to award judgment in that currency that will redress the injury suffered and adequately compensate the plaintiff for the loss. It would then follow that where that currency is the foreign currency as opposed to the local currency, then judgement should be in the foreign currency, for to award damages in the local currency, where the local currency has been rendered valueless by inflation might be to deny a plaintiff the redress that he or she seeks.”

Adopting the approach taken in Kwindima Fabiola v Mvudura Louis HH25-09, I am persuaded that in the instant case, in order to adequately compensate the applicants, the currency which the respondent must pay them as damages for unlawful dismissal in lieu of reinstatement should be in foreign currency. I say so because in a multi-currency regime where the local currency has become moribund, to award damages to an unlawfully dismissed employee who has toiled for the employer for between 25 and 46 years in such local currency is not only clinging to a positivist jurisprudential approach but iniquitous and offends against all known tenets of justice in a civilised and democratic society.

Such an award should not be a brutum fulmen but must be meaningful and beneficial to the beneficiary.

Even on an international plane, in terms of Article 10 of the I.L.O. Convention 158 Termination of Employment Convention 1982, adequate compensation should be paid for unjustified loss of employment.

Certainly payment in Zimbabwe dollars in this era will not amount to adequate compensation.

The last point to deal with relates to points 3 and 4 of the respondent's opposition as encapsulated in the contention that the applicants are inviting this court to “overrule” those decisions of the Supreme Court which have already made the point that in quantification of damages in respect of labour disputes, the rates that are applicable are those that applied at the time of reinstatement as held inter alia, in the case of Redstar Wholesalers v Mabika SC52-05 and First Mutual Life Limited v Jackson Muzivi SC09-07.

In the instant case, the applicants, in applying for payment of their damages to be made in US dollars want the rate applicable to be “the initial United States dollar salary scales which were used by the respondent when it started paying its employees in foreign currency.” In support of their contention in this regard, the applicants argued, in their heads of argument, in this vein:

“As to a potential objection of what would be the appropriate salary in foreign currency to use, this is not an insurmountable obstacle. Reference may be had to the salary scales of the first month that the respondent first started fully and wholly paying its employees remuneration in foreign currency. Alternatively, is to look at the first National Employment Council (NEC) salaries in foreign currency and applying those. After all, these are exactly the salaries that the applicants would have been earning if they had been reinstated rather (than) being paid damages in lieu of reinstatement. What is called for here is not mathematical precision computation but substantive justice and fairness that, in the words of OMERJEE J in Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation, places the successful party 'as nearly as possible in the same position as he would have occupied if the contract had been performed…,.'”

Prima facie, the argument is titillating.

The citation of Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation is HC3074/04. Therein, OMERJEE J made the pronouncement when holding that regarding judgments sounding in foreign currency “it is the plaintiff's prerogative to claim in a currency that will most truly express his loss and accordingly most fully and exactly compensate him for that loss. However, in order to succeed, a claimant is required to lay a foundation that supports him claim.”

In that case, the court found that the plaintiff had laid an adequate foundation establishing its entitlement to damages in United States dollars because the defendant was selling the disputed shares (which it claimed were valued in Zimbabwe dollars) in United States dollars including their final disposal.

I am constrained to shy away from the applicants' contention in this connection for two reasons;

(i) Firstly, the pronouncements by OMERJEE J, in Stanmarker Mining (Pvt) Ltd v Metallon Gold Corporation HC3074/04, were confined to the choice of currency by the claimant which I have already disposed of supra in the applicants' favour and not to the rate of salary to invoke when calculating damages in lieu of reinstatement.

(ii) Secondly, and more importantly, based on the doctrine of stare decisis, this court is bound by the plethora of Supreme Court decisions to the effect that in calculating damages for unlawful dismissal in lieu of reinstatement, the rate of salary to be used is the one pertaining at the date of the reinstatement order - certainly not the one obtaining at a later date.

Since I have already held that the applicants must be paid their damages not in Zimbabwe dollars but in foreign currency of their choice (and they chose the United States dollars), the rate of salary to be used in the calculation of the damages should be the one obtaining as at 5 July 2007 (the date of the reinstatement order) but being the official rate of exchange of the Zimbabwe dollar – United States dollar equivalent.

I also find that the respondent, in the face of the stark economic reality obtaining at the time of its tender of the damages, was quite unreasonable in refusing to yield to reason. It should accordingly pay the applicants costs of suit. In any event, costs always follow the result.

In the event, there is need to amend the applicants' amended draft order to read as follows:

“IT IS HEREBY ORDERED:

1. The respondent be and is hereby ordered to pay damages in lieu of reinstatement to the applicants in United States dollars using the official rate of exchange of the Zimbabwe dollar-United States dollar equivalent obtaining on 5 July 2007.

2. That the respondent pay the costs of suit.”

The bare bones of the dispute in this appeal are these:

The appellant and the first respondent entered into a lease agreement for premises situate at 26 East Road, Belgravia, Harare on 16 May 2003. On 14 March 2008, the first respondent, following its cancellation of the lease agreement, obtained an order in the Magistrates' Court under case number MC1701/07. The contentious order was couched in these words:

“Claim granted, defendant to vacate the premises of the plaintiff by 30 June 2008. Defendant ordered to pay holding over damages as claimed by the plaintiff from February 2007.”

The first respondent did not enforce the order from 14 March 2008 until February 2009 when it proceeded to have the appellant evicted from the premises and also caused the appellant's property to be attached by the second respondent to satisfy the judgment debt.

There is a dispute as to why the first respondent sat on its laurels for almost a year without executing the judgment.

The appellant avers that subsequent to the 14 March 2008 order he concluded a verbal lease agreement with the first respondent in terms of which the appellant would have continued use of the premises provided he paid rentals in foreign currency. While the first respondent disputed the existence of such a verbal lease agreement the odds are against it for it could not proffer any plausible explanation for the delay in enforcing the judgment.

Be that as it may, following the eviction of the appellant and attachment of his property alluded to above, the appellant successfully filed an urgent chamber application in this court under case number HC1116/09 to stay execution of the writ.

The terms of the final order sought were that the first respondent stay execution of the warrant pending finalisation of this appeal in terms of which a determination would be made with regard to whether it was proper that the warrant should be sounding in foreign currency when the judgment sounded in Zimbabwe dollars and whether the fact that the warrant was signed by a representative of the second respondent and not a legal practitioner was fatal to the execution thereof.

The crisp issues for our determination are three, viz:

1. Whether the judgment of the magistrate in case number MC1701/07 met the requirements for the issue of a warrant;

2. Whether the first respondent was entitled to revalorise its claim on execution; and

3. Whether the warrant was fatally/totally defective.

Hereunder we proceed to deal with those issues seriatim.

1. REQUIREMENTS FOR THE ISSUE OF A WARRANT

It is trite that a writ of execution will be set aside on application if the judgment upon which it is premised was not definite and certain. The test to apply was propounded by CLAYDEN J…, in McNutt v Mostert 1949 (3) SA 253 (T) and cited with approval in Hartley v Hartley 1999 (1) ZLR 431 (SC)…,. It is that:

“…,. The judgment upon which execution is issued must be a judgment from which there can be gathered what money or thing the judgment debtor must deliver.”

In the instant case, the magistrate's judgment was worded in the following language:

“Claim granted, defendant to vacate the premises of the plaintiff by 30 June 2008. Defendant ordered to pay holding over damages as claimed by the plaintiff from February 2007.”…,.

While the magistrate's order was inelegantly drafted, it is, however, clear that the claim that was granted is the claim as stated in the summons. That claim includes the following:

(a) An order cancelling the lease;

(b) That defendant pays holding over damages at the rate of Z$1,137,000= per month with effect from 21 February 2007 for the duration that the defendant remained in occupation of the premises;

(c) Specific performance that the defendant replaces the damaged kitchen door, alternatively, pays as damages replacement value of the damaged door at the time judgment is entered i.e. 14 March 2008; and

(d) Specific performance that the defendant re-decorates interior of premises, alternatively, he pays for cost of paint, materials and labour costs at the time judgment is entered i.e. 14 March, 2008….,.

While the judgment is definite and certain in that it can be gathered what money or thing the judgment debtor must deliver, the first respondent only executed it some eleven months later and wrongly included amounts sounding in United States dollars for a maximum of only one quotation obtained long after judgment had been entered contrary to the time prayed for in the claim.

In terms of the judgment that was granted, the value of the damaged door and the costs for materials and labour was to be pegged at the time judgment was entered, namely, 14 March 2008 and not at the time of execution - eleven months later!

At the time judgment was entered the currency in use was the Zimbabwe dollar and not US dollar.

From a legal stand point, the first respondent was not entitled to effect currency conversion on the warrant of execution without an application for the same having been made and granted.

2. WHETHER FIRST RESPONDENT WAS ENTITLED TO REVALORISE ITS CLAIM ON EXECUTION

The claim was in Zimbabwe dollars and the court a quo's judgement was in Zimbabwe dollars. However, the first respondent revalorized the claim in US dollars on execution. This, as alluded to in number (1) above, was not only incompetent for arbitrariness but offended against the time honoured principle of currency nominalism.

That principle holds 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 the currency. The appellant relied for this principle on Komichi v Tanner and Anor HH104-05.

Counsel for the first respondent argued that the principle of currency nominalism is only invoked where there is a specific amount of money. She submitted that case law to that effect abounds but failed to cite even a single such case.

It is trite that the principle of currency nominalism is part of our law.

In Jeofrey Mukorera v Ocean Breeze Engine and Cooling Systems HH13-08, MAKARAU JP…, stated the principle as follows:-

“The concept of currency nominalism has been held to be applicable in all aspects of South African Law…,. I hold the view that the distortions caused by inflation in the economy should not lead to the wholesale distortion of legal principles that have withstood the test of time in a bid to find legal solutions to a problem that is not legal in nature and origin and may prove to be transient. I am yet to be persuaded that revalorization is part of our law of debt collection.”

We respectfully associate ourselves within those sentiments.

Even in England, the same principle applies. In Treseder & Anor v Co-operative Insurance Society Ltd (1956) 2 QB 127 (CA)…, DENNING LJ had this to say:-

“…,. In England, we have always looked upon a pound as a pound whatever its international value…,. In all our dealings we have disregarded alike the debasement of the currency by kings and rulers or the depreciation of it by the march of time or events…,. A man who stipulates for a pound must take a pound when payment is made whatever the pound is worth at that time.”

The learned judge commented on currency nominalism in the Netherlands and German legal systems which he found to be similar and then went on to consider the reasons commonly given for currency nominalism in these words;

“…,. It would represent a revolutionary transformation of our legal system if courts were to be called upon to determine the true economic value (in terms of purchasing power) of all obligations sounding in money. I need not, however, labour the point; currency nominalism, for whatever reason, is firmly entrenched in our law.”

It is beyond caevil that the first respondent's debt sounded in money and the judgment was given in March 2008 with the specific directive that the values of whatever was damaged by the appellant were to be as at the time of judgment. Those values were in Zimbabwe dollars and not in US dollars. The principle of currency nominalism was therefore still applicable. It was, accordingly, idle for the first respondent to revalorise its claim on execution. It ought to have made a court application for the conversion of the currency.

3. WHETHER THE WARRANT WAS FATALLY DEFECTIVE

Order 26 Rule 1(1) of the Magistrates Court Civil Rules provides that a warrant is issued and signed by the Clerk of Court and addressed to the Messenger of Court. Subrule (2) provides that such process may be sued out by any person in whose favour any such judgment has been given.

In casu, the warrant was sued out by the first respondent as the judgment creditor. Rule 323 of the High Court Rules is the corresponding provision to the Magistrates' Court's Order 26 Rule 1(2) and it has the addition that suing out a writ of execution is done at the risk of the party who does so. Hartley v Hartley 1999 (1) ZLR 431 (SC) held that the judgment creditor ran the risk of liability for costs if the writ were set aside.

In casu, while the warrant was not defective in form, it was fatally defective in content due to the revalorization. It therefore cannot be allowed to stand.

In the event, it is ordered that:

(i) The appeal succeeds with costs.

(ii) The second respondent is ordered to release the appellant's attached property.

(iii) If the first respondent still wishes to pursue the enforcement of the judgment it must, first, on notice to the appellant, make an application before the Magistrate's Court for leave to revalorise the claim as well as proof of the damages.

The defendant has applied for absolution from the instance at the close of the plaintiff's case.

The brief background facts of this matter are the following.

On 20 May 2004, the plaintiff caused summons and declaration to be issued out against the defendant claiming:

(1) Z$248,292=38 past medical expenses.

(2) Z$1,292,460= for future medical expenses.

(3) Z$6,000,000= for psychological injury, loss of general health and loss of amenities of life.

(4) Z$5,000,000= contumelia, humiliation and defamation.

(5) Z$115,136,000= for loss of pension benefit.

(6) Z$411,300,774= for loss of earning.

(7) Interest on all the above at the prescribed rate from the date of service of summons to date of full payment.

(8) Costs of suit.

According to the plaintiff, the claims arose from an incident which had occurred in about September 2000 where it was alleged that the plaintiff, as a train conductor, had charged a passenger an incorrect and lesser figure and converted the sum of Z$108= to his own use. The plaintiff was charged with misconduct and initially dismissed. The dismissal was later reversed and the plaintiff was retired on medical grounds.

The plaintiff then claimed damages under the heads referred to above.

The trial took a chequered route characterised by delays in prosecuting the plaintiff's claim, change of legal practitioners, and attempts at amendments. On 20 April 2015, after calling two witnesses, the plaintiff closed his case prompting the above-mentioned application by the defendant.

The application is premised on the provisions of Order 49 Rule 437(1) of the High Court Rules, 1971.

The requirements of granting of the absolution from the instance at the close of the plaintiff's case are now settled. The application is granted where the plaintiff's evidence is insufficient for a finding to be made against the defendant. The defendant must show that after the plaintiff has led all evidence in his case, the plaintiff's burden of proof has not been discharged. In other words, the defendant must show that there is no prospect that the plaintiff's case might succeed.

Sibanda v Chikumba HH92-14; Manyange v Mpofu & Ors HH162-11; and HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa (4^th Ed)…,.

The test on whether the court will grant absolution from the instance at the close of the plaintiff's case was laid down in Gascoyne v Paul Hunter 1917 TPD 170 and was accepted as a proper formulation of the test in our law in Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A) and its thus:

“Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?”

See also Dube v Dube 2008 (1) ZLR (H); Delta Beverages v Rusito SC42-13; Standard Chartered Finance (Zimbabwe) Ltd v Georgias & Anor 1998 (2) ZLR 547; and Bailey N.O. v Trinity Engineering (Pvt) Ltd 2002 (2) ZLR 484.

In Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A)…, BEADLE CJ stated:

“I must stress that the rules of procedure are meant to ensue justice is done between the parties, and, so far as it is possible, court should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant…, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.”

This formulation has been accepted in Dube v Dube 2008 (1) ZLR (H); Standard Chartered Finance (Zimbabwe) Ltd v Georgias & Anor 1998 (2) ZLR 547; Delta Beverages v Rutsito SC42-13; and Bailey N.O. v Trinity Engineering (Pvt) Ltd 2002 (2) ZLR 484.

Though used in a different context, the observation by MALABA DCJ in Mawarire v Mugabe & Ors CC01-13 is apposite when he said;

“…,. It is better to let people have access to the fountain of justice where they fail for reasons of their folly than have them blame the gatekeepers.”

In order to defeat an application for absolution from the instance at this stage of the trial, the threshold the plaintiff must cross is low. In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403…, it was set out as follows:

“When absolution from the instance is sought at the close of the plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff establishes what would be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff.”

Explaining this in ATW De Klerk v ABSA Bank Ltd & Ors SCA 176-02 SCHULTZ JA said:

“This implies that a plaintiff has to make out a prima facie case…, in the sense that there is evidence relating to all the elements of the claim…,.”

The defendant attacks the plaintiff's case on the ground that the plaintiff's claim was denominated in Zimbabwe Dollars and argues that the plaintiff has not shown the relationship between the Zimbabwe dollar and the United States dollar. Further, the defendant argues that a comparison of the original claims filed 20 May 2004 and the amendment granted on 23 January 2014 show that the original claims bear no relationship to the amended claims as evinced in the following table:

In other words, the plaintiff's latest amendment to United States dollars was not a conversion of his original claims in Zimbabwe dollars to United States dollars. The amendment was a complete substitution of the original claims by new claims, claims which bore no relationship to the original ones.

It is trite law that an application for absolution from the instance, at the close of the plaintiff's case, if successful, must have the effect of terminating the case completely. The procedure is not intended for the court to determine issues piecemeal – see Dube v Dube 2008 (1) ZLR (H).

Further, damages are either general or special, and different rules apply to general as opposed to special damages: The Quantum of Damages in Bodily and Injury Cases (3^rd Ed) by CORBETT, BUCHNAN and GAUNTLETT. At page 99, the learned authors correctly observed:

“In the case of damages which are capable of exact mathematical computation…, proper evidence establishing the loss…, must be tendered. Where, on the other hand, mathematical proof…, is in the nature of thing impossible, then provided that there is evidence that, pecuniary damages, in this regard has been suffered, the court must estimate the amount of the damages as best it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.”

In Minister of Defence and Anor v Jackson 1990 (2) ZLR 708 (SC), GUBBAY JA…, said the following on the daunting task confronting a judicial officer is assessing damages in personal injury cases;

“It must be recognized that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task, therefore, of assessing damages in personal injury is one of the most perplexing a court has to decide.”

See also Mbundire v Buttress SC13-11.

In casu, damages of psychological injury, loss of general health, loss of amenities of wife, contumelia, humiliation and defamation do not lend themselves to mathematical calculation. They are arrived at as a value of judgment and the issue of the currency does not come into it.

One cannot say that those damages, if proven to have been suffered, were only claimable in Zimbabwe dollars.

The plaintiff led evidence that he was imputed a thief and fraudster by the defendant. Such imputations, according to the plaintiff, have even been maintained after this court quashed the proceedings of the lower court and the imputations are repeated in the pleadings.

The plaintiff led evidence of a specialist on his mental stress.

On the claim of loss of earnings, the plaintiff wanted to call the defendant's Human Resources Manager. The testimony of this witness is necessary to determine the issue of the loss of earnings, if any. The defendant opposed the calling of this witness and indicated that it intended to call this witness as its own should this application fail. It is beyond dispute that evidence of the loss of earning is peculiarly within the knowledge of the defendant and the Human Resources Manager would readily have such information.

In Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A) it was stated;

“Courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant…, the plaintiff should not lightly be deprived at his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box must not be permitted to shelter behind the procedure of absolution from the instance.”

On account this fact alone, it would be difficult for the defendant to establish that the plaintiff failed to prove loss of earnings. The defendant denied the plaintiff access to the witness he intended to call who is in the employ of the defendant. The defendant's conduct amounts to using rules of procedure to cause an injustice. I cannot, therefore, lightly deprive the plaintiff the remedy he seeks without first hearing what the defendant has to say.

Further, on general damages sought, I do not wish to make findings on the credibility of the plaintiff's witnesses at this stage. What is important is that the plaintiff led evidence on the alleged wrongful conduct by the defendant. He has led evidence that he suffered damages as a result of such wrongful conduct by the defendant. As far as general damages are concerned, as alluded to above, the court will award such damages as in its estimation justified. There may be merit in the defendant's attack in so far as special damages are concerned, but, this procedure is not intended for the court to determine issues piecemeal -Dube v Dube 2008 (1) ZLR (H).

In light of the foregoing, the application must fail.

Accordingly, the defendant's application for absolution from the instance at the close of the plaintiff's case is dismissed with costs being costs in the cause.