Chief Court Reporter
The challenge by a Harare lawyer to invalidate civil penalties imposed on businesses or individuals refusing to accept local currency suffered a stillbirth after the High Court threw out the application on the basis that the lawyers had no legal standing to mount such a lawsuit.
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 judge also noted that because Mr Shava lacked the requisite legal footing in this case, he was only able to lead the court to a dead end area which resulted in his application suffering a still birth.
“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.