Admire Zhakata and Sandra Musarurwa v Homelink Private Limited and Sheriff of the High Court

On 21 April 2005, the applicants (a husband and wife resident in Canada) entered into a mortgage loan agreement with the first respondent, Homelink Private Limited, for CAD 82,418.50, secured by a mortgage bond over their property in Greendale. The applicants defaulted from 6 July 2011, accumulating arrears of CAD 114,581.97. On 2 July 2018, Munangati-Manongwa J ordered the applicants to pay the first respondent CAD 114,581.97. When the judgment remained unpaid, a writ of execution was issued on 26 November 2018 and enforcement proceedings were initiated. Following changes in monetary policy under s 22(1)(d) and 4 of the Finance Act No. 2 of 2019, which provided for discharge of USD-denominated debts at a parity rate of 1:1 with the Zimbabwean dollar (ZWL), the applicants deposited ZWL 210,000.00 toward the judgment debt. The first respondent rejected this payment, insisting on payment in Canadian dollars as per the court order. The applicants then sought a declaratory order that their payment in ZWL constituted legal tender discharging their judgment debt.

• Whether s 22(1)(d) and 4 of the Finance Act No. 2 of 2019 applies to judgment debts denominated in Canadian dollars or other foreign currencies besides the United States dollar
• Whether payment in Zimbabwean dollars at a 1:1 parity rate constitutes legal tender for discharging a judgment debt denominated in Canadian dollars
• Whether the applicants, as peregrini (foreign residents), were required to furnish security for costs
• Whether the applicants' non-joinder of relevant ministerial departments was fatal to the application
• Whether the applicants had dirty hands by failing to comply with the original court order
• Whether the draft order was defective
• The appropriate canon of statutory interpretation to apply to s 22(1)(d) and 4 of the Finance Act No. 2 of 2019

The application was dismissed with costs at a higher scale against the applicants.

Section 22(1)(d) and 4 of the Finance Act No. 2 of 2019 applies exclusively to judgment debts denominated in United States dollars and does not extend to judgment debts denominated in other foreign currencies, including Canadian dollars. Where the language of a statute is clear and unambiguous, courts must apply the literal rule of interpretation and give words their ordinary grammatical meaning. The express mention of the United States dollar from a basket of known foreign currencies constitutes a deliberate legislative choice to exclude other foreign currencies (application of expressio unius est exclusio alterius). Courts cannot fill gaps in legislation (casus omissus) or usurp the legislative function by reading in words deliberately omitted by Parliament. Payment in Zimbabwean dollars at a 1:1 parity rate does not constitute legal tender for discharging a judgment debt denominated in Canadian dollars and is ultra vires the Finance Act provisions.

The court noted that while there is a worldwide shift toward purposive approaches to statutory interpretation, both parties agreed the language of s 22(1)(d) and 4 was unambiguous. The court observed that the applicants were essentially arguing for gap-filling rather than interpretation of ambiguous language. The court emphasized the clear separation of powers between the judiciary and legislature, noting that statutes emerge from extensive policy research and consultation to address social needs and challenges. The court also observed that granting the relief sought would effectively amend the legislation, which is Parliament's domain. On costs, the court indicated that a higher scale was appropriate given that the applicants had benefited from the first respondent's mortgage scheme yet demonstrated reluctance to pay, as evidenced by the protracted legal proceedings. The court also noted that had the applicants persisted with their constitutional invalidity argument, the non-joinder of relevant parties would have been fatal under Rule 33(1) of SI 202 of 2021.

This case establishes important principles regarding the interpretation and application of Zimbabwe's Finance Act No. 2 of 2019, particularly s 22(1)(d) and 4, clarifying that the statutory provisions permitting discharge of foreign currency-denominated debts at a 1:1 parity rate with the Zimbabwean dollar apply exclusively to United States dollar debts and do not extend to other foreign currencies such as Canadian dollars. The judgment reinforces the literal rule of statutory interpretation where legislative language is clear and unambiguous, and affirms the principle that courts cannot usurp legislative functions by reading in omitted provisions (casus omissus). It also provides guidance on several procedural issues including the dirty hands doctrine, security for costs requirements for peregrini with local property, non-joinder principles under the High Court Rules, and the distinction between statutory interpretation and constitutional invalidity challenges. The case demonstrates proper application of the expressio unius est exclusio alterius maxim and the binding nature of Supreme Court precedent, particularly the Zambezi Gas decision.