THE legal validity of a Supreme Court judgment which
converted United States dollar debts to the Zimdollar at a rate of 1:1 in line
with Statutory Instrument 33 of 2019, must be tested by a nine-judge panel of
the Constitutional Court, according to lawyers acting for NR Barber, a mining
company, locked in a fierce legal battle with Zambezi Gas Pvt Ltd.
NR Barber is basing its challenge on its submission that
the Statutory Instrument was unconstitutional and that it should have been
declared so at the appeal hearing which overturned a previous High Court ruling
that debts in US dollars retained their value in that currency.
The firm, which is seeking permission to challenge the
Supreme Court ruling and hired Advocate Thabani Mpofu to argue the
constitutional matter, has filed its heads of argument at the apex court.
It claims that it was unconstitutional for the lower court
to uphold an executive measure that resulted in last year’s currency reforms.
“The Supreme Court judgment constitutes an abduction of
judicial function and a breach of the principle of legality and rule of law
calling for an appeal against the ruling,” says Adv Mpofu.
“The judgment establishes the principle that a non
constitutional determination may implicate a breach of the constitution and
thereby provide a basis for a challenge before the Constitutional Court.”
It also the mining company’s argument that if the Supreme
Court has been engaged with a constitutional issue and fails to deal with it
whose obligation it was to do so, a challenge would be competent.
NR Barber lost its case early this year after Zambezi Gas
Private Limited, a mining services provider, successfully appealed to overturn
the earlier ruling by the High Court, which was in favour of NR Barber.
The Supreme Court found that the statutory instrument made
it clear that debts contracted before the statutory instrument were to be
converted at 1:1.
NR Barber was owed $3 885 000 plus interest by Zambezi Gas
Zimbabwe (Private) Limited since 2014 and at that stage the debt was
effectively denominated in US dollars
The mining firm, which is a legal person in terms of the
law, contends that the judgment has an effect of violating its property rights
as enshrined under Section 71 of the Constitution of Zimbabwe, the section on
property rights in the declaration of rights.
It argues that the lower court erred in proceeding on a
“false basis being that the validity of Statutory Instrument SI33 of 2019 was
not challenged and was consequently not an issue before it”.
SI33 of 2019 abolished the multi-currency regime and
reintroduced the Zimdollar. Herald
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