Zimbabwe: local currency challenge rejected

Chief Court Reporter

A Harare lawyer’s challenge to invalidate civil penalties imposed on businesses or individuals refusing to accept local currency was stillborn after the High Court dismissed the claim on the grounds that the lawyers lacked the legal capacity to bring such action.

Mr Obey Shava had asked the court to declare Statutory Instrument 127 of 2021 unconstitutional, arguing that the regulation amounted to price controls and could lead to shortages of goods in the formal market.

Regulations issued on May 26 last year impose significant penalties on those who charge above the official exchange rate or refuse to accept Zimbabwean dollars.

Civil penalties could be imposed by authorized officers of the Reserve Bank of Zimbabwe, rather than a court, and as there are no criminal charges when imposed, the standard of proof is that of probability rather than proof beyond a reasonable doubt.

Judge David Mangota ruled that Mr. Shava had no legal basis to make such a claim in court and declined to hear the case.

In his petition, Mr. Shava asserted that he was acting in the public interest and therefore had a legal basis to do so.

The attorney, however, could not explain why those whose rights would have been harmed by the settlements had not sued to repair the harm.

In his ruling, Judge Mangota said Mr. Shava could not substitute for bankers, forex traders and traders who might breach regulations and had the resources to mount their own legal challenge. This category of people, the judge said, has better standing than the lawyer to make such a request, given their direct and substantial interest in the case.

“It is obvious…that the reason of public interest that the plaintiff advances in applying as he did remains inapplicable in the circumstances of this case,” Judge Mangota said. He said that bankers, currency traders and traders are not among the disadvantaged members of society because they are socially and economically capable members of society who can go to court and assert their rights if they feel have been raped.

“The plaintiff is like a voice crying out in the desert,” Judge Mangota said.

“He is, so to speak, moaning more than the bereaved.”

The judge also noted that because Mr. Shava lacked the required legal basis in this case, he could only lead the court to a dead end, resulting in a stillbirth in his claim.

“Plaintiff has failed to prove his case on a balance of probabilities,” he said, dismissing the claim with court costs.

Mr Shava, who was represented by Mr Tonderai Bhatasara of Zimbabwe Lawyers for Human Rights, quoted President Mnangagwa, Finance Minister Prof Mthuli Ncube and Attorney General Prince Machaya as saying as respondents.

Some unscrupulous companies charge in US dollars, with customers having the option of paying in local currency at rates higher than the official exchange rate.

And this despite the fact that the regulations in force oblige prices to be indicated in the local currency, payment in American dollars being offered as an option at the official rate.

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