Mr Obey Shava had asked the court to declare Statutory
Instrument 127 of 2021 unconstitutional, arguing that the regulations were
tantamount to price controls and could lead to shortages of goods in the formal
market.
The regulations gazetted on May 26 last year, impose
swinging penalties on those charging above the official exchange rate or
refusing to accept the Zimbabwe dollar.
Civil penalties could be imposed by approved officers of
the Reserve Bank of Zimbabwe, rather than a court, and because there is no
criminal charge when they are imposed the standard of proof is one of
probability rather than proof beyond reasonable doubt.
Justice David Mangota ruled that Mr Shava had no legal
footing to bring such an application to court and declined to hear the case.
In his application, Mr Shava claimed that he was acting in
the public interest, hence he had legal basis to do so.
The lawyer, however, could not explain why those whose
rights were allegedly adversely affected by the regulations had not sued to
right the wrong.
In his ruling, Justice Mangota said Mr Shava could not
stand in the place of bankers, foreign currency dealers and traders who might
fall foul of the regulations and had the resources to mount their own legal
challenge. This class of people, said the judge, have a better standing than
the lawyer to bring such an application, given their direct and substantial interest
in the case.
“It is evident…that the public interest reason which the
applicant advances in applying as he did remains inapplicable in the
circumstances of the present case,” said Justice Mangota. He said bankers,
foreign currency exchange dealers and traders were not among the
underprivileged members of society as they are socially and economically able
members of the society who are able to approach the court and vindicate their
rights, if they feel have been violated.
“The applicant is like a voice which is crying in the
wilderness,” said Justice Mangota.
“He is, as it were, moaning more than the bereaved.”
“The applicant failed to prove his case on a balance of
probabilities,” he said dismissing the application with costs of suit.
Mr Shava, who was represented by Mr Tonderai Bhatasara of
the Zimbabwe Lawyers for Human Rights, listed President Mnangagwa, Finance
Minister Professor Mthuli Ncube and Attorney-General Advocate Prince Machaya as
respondents.
Some unscrupulous businesses have been charging in US
dollars, with customers having an option to pay using local money at rates
higher than the official exchange rate.
This is despite the fact that current regulations make it
mandatory to quote prices in the local currency, with payment in US dollars
offered as an option using official rate. Herald
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