Mr Duncan Hugh Cocksedge had approached the High Court
seeking an order compelling the bank to pay him the money it effectively
converted to local currency in his account back to US dollars.
He also sought to impugn the Reserve Bank of Zimbabwe
exchange control directive converting US dollars’ accounts into RTGS accounts
as unconstitutional.
But the court refrained from deciding what it saw as a pure
political question.
In a judgment handed down on Monday, Justice Webster
Chinamora found Mr Cocksedge’s claim for repayment of his money in foreign
currency contemptuous of the Government’s policy directive.
The judge took a view that the regulation of banking
activities to achieve stability in the economic sector falls exclusively within
the realm of the executive arm of Government.
“Put it differently, how the Government makes policies
aimed to achieve monetary stability and incentivise the generation of foreign
exchange in the national interest is a political question, best left to the
politicians,” said Justice Chinamora.
“Courts in this jurisdiction are familiar with the
political questions doctrine and how to deal with a case where this arises.”
The Supreme Court has since confirmed that all balances and
liabilities which were denominated in United States Dollars before February 22,
2019 became balances in Zimbabwean dollars at par with the United States
dollar.
To this end, Mr Cocksedge’s claim for repayment in United
States currency could not be sustained if it did not qualify under the
provisions of section 44C of the Reserve Bank Act.
Mr Cocksedge’s account could not escape the consequences of
the decision of the Supreme Court in Zambezi Gas Zimbabwe (Pvt) Ltd versus N.R.
Barber and others and, Justice Chinamora flagged the claim as a disingenuous
stunt to try and reverse the effects of the judgment in Zambezi Gas Zimbabwe.
“I also find the claim for repayment in the United States
dollar against CABS a bit cynical, given that the banking institution was only
complying with the law.
“I will therefore award costs on the scale of client and
attorney in respect of CABS and costs on the ordinary scale to the second and
third respondents,” he said, dismissing the claim.
This means that Mr Cocksedge has to pay the authorised fees
of the CABS lawyers, as well as the far lower general legal costs of copying
and serving papers and the like in the ordinary costs.
Justice Chinamora disagreed with Mr Cocksedge’s lawyer Mr
Tendai Biti that by abiding by the RBZ directive and the Finance Act (No. 2) of
2019, CABS had failed in its duty to exercise caution in respect of Mr
Cocksedge’s account.
He ruled that a registered and regulated banking
institution would, in his view, be acting to the detriment of its clients if it
behaved like a rebel and disobeyed the country’s banking laws and directives
issued by its regulators.
“Section 17, as we have seen, makes this mandatory. My view
is that no fault can accrue to CABS for complying with the law,” Justice
Chinamora said.
Advocate Thabani Mpofu represented CABS, while Mr V Mhungu
and Mr D Jaricha acted for RBZ and the Ministry of Finance and Economic
Development. Herald
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