CABS has been ordered to pay US$142 000 to businessman Richard Harold Stuart Beattie and his wife Penelope Douglas Stone it had converted to local currency following monetary policy changes in 2019.
This follows a landmark ruling by High Court Judge Justice Joseph Mafusire.
Beattie and Stone were the joint applicants, while the respondents were CABS, Reserve Bank of Zimbabwe and Minister of Finance and Economic Development Mthuli Ncube.
The applicants were represented by Advocate Tererai Mafukidze instructed by Tendai Biti Law, while CABS was represented by Advocate Thembinkosi Magwaliba.
The RBZ was represented by Lewis Uriri and the Ministry of Finance Mthuli Ncube by D Jaricha.
The applicants first approached the courts in 2019 and won the case but CABS did not pay them the money. The other respondents also successfully appealed against the court ruling.
The matter came back to court in 2021 and they sought an order that the Exchange Control Directive No. R120/2018 issued by the Reserve Bank [is] unconstitutional and invalid as it violates s 71 of the Constitution, that the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires s 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid, that Sections 44B(3) and (4) of the Reserve Bank Act are unconstitutional and invalid as they violate s 71 of the Constitution.
The applicants also sought that Section 22(1)(b) and (d), s 22(4)(a) and s 23(1) and (2) of the Finance (No. 2) Act of 2019 are unconstitutional and invalid as they violate s 71 of the Constitution, that the conversion of the applicants’ USD142 000 to RTGS142 000 is unconstitutional and invalid as it violates Section 71 of the Constitution, and that the first respondent should pay to the applicants the amount of USD142 000.
The other order sought was that CABS pay interest on the aforestated amount at the rate of 5% per annum from 28 November 2016, to the date of payment, and that the respondents must pay costs of suit, jointly and severally, the one paying the other[s] to be absolved.
In his ruling, Justice Mafusire said paragraphs 2.5 and 2.6 of the Exchange Control Directive RT120/2018, issued in terms of section 35 (1) of the Exchange Control Regulations Statutory Instrument 109 of 1997 changing the currency situation, which CABS relied on, was ultra vires the constitution.
“The impugned laws are so intertwined and almost inexorably linked to one another,” Justice Mafusire said.
“However, what is at the epicentre of the applicants’ grievance as compacted under para 6 of their draft order, was the conversion of their USD142 000 to RTGS142 000.
“Therefore, the task for this court is to locate the particular legislative provision, or provisions, in the whole gamut that has been impugned which the respondents relied on as the basis for that conversion, in contravention of s71(2) of the constitution.
“Unquestionably, it was not the whole range of those laws as cited by the applicants. The rest of them are in reality abstract questions and not the pith of their dispute. Nonetheless, all the impugned laws are set out below, those that do not call for determination…
As policy measures violated the applicants’ right to property in breach of s71(2) of the constitution, “the first respondent shall pay the applicants the sum of USD142 000, together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment.”
