Frederick Charles Moses Mutanda and Fredex Financial Services (Pvt) Ltd v The President and Others

The first applicant, Frederick Charles Moses Mutanda, was a Zimbabwean citizen with substantial interest in the second applicant, Fredex Financial Services (Pvt) Ltd, a company licensed by the Reserve Bank of Zimbabwe as an authorized dealer handling diaspora fund transfers in US dollars. On 31 October 2016, the Government published Statutory Instrument 133 of 2016 ("Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016") which amended the Reserve Bank Act by inserting section 44B to provide a legal framework for bond notes as legal tender. Both the Minister of Finance and the Governor of the Reserve Bank publicly announced that bond notes would be introduced in November 2016. The applicants sought urgent relief to prevent the introduction and circulation of bond notes, challenging the constitutionality of the Presidential Powers (Temporary Measures) Act and the validity of the Statutory Instrument.

• Whether the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is ultra vires the Constitution of Zimbabwe for violating constitutional values of good governance and separation of powers
• Whether the Presidential Powers Act impermissibly derogates Parliament's primary law-making power under section 134(a) of the Constitution to the President
• Whether Statutory Instrument 133 of 2016 is ultra vires the Presidential Powers Act for non-compliance with prerequisites in section 2(1)(a)-(c)
• Whether the promulgation of SI 133 of 2016 is null and void for want of procedural compliance with section 3 of the Presidential Powers Act
• Whether bond notes constitute lawful legal tender under sections 40 and 41 of the Reserve Bank of Zimbabwe Act
• Whether the applicants met the requirements for urgent relief

The application was dismissed with costs.

The binding legal principle established is that urgency for purposes of urgent chamber applications cannot be founded on deliberate or careless abstention from taking action until a deadline is imminent. A matter is urgent only if, at the time the need to act arises, the matter cannot wait. Furthermore, applicants seeking urgent relief must establish, on objective facts rather than speculation, that they will suffer irreparable harm. Where constitutional or legislative challenges could have been brought at an earlier time, delay in bringing such challenges will defeat claims of urgency.

The court noted, without deciding the substantive issues, that the respondents had explained the objectives of introducing bond notes and that bond notes were intended to operate alongside currencies within the multi-currency system at par with the United States dollar, similar to bond coins already in circulation. The court observed that applicants' concerns about the character and value of their US dollar banking accounts being affected were speculative and not objectively established, though this was not necessary to decide given the finding on urgency.

This case is significant in Zimbabwean jurisprudence as it involved a constitutional challenge to the Presidential Powers (Temporary Measures) Act and the introduction of bond notes into Zimbabwe's multi-currency system. While the substantive constitutional issues were not determined due to the procedural failure on urgency, the case demonstrates the strict approach courts take to applications based on urgency, particularly where applicants delay in bringing challenges to legislation or regulatory measures that have been publicly known for extended periods. The case also illustrates the courts' reluctance to grant relief based on speculative harm rather than established facts, particularly in matters involving monetary policy and economic regulation.