Fidelis Munyoro Chief Court Reporter
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.