Nhimbe Fresh Export (Pvt) Ltd v Prisma Packaging and Messenger of Court, Marondera

Prisma Packaging (1st respondent) obtained a default judgment against Nhimbe Fresh Export (applicant) at Marondera Magistrate's Court on 19 February 2019 under case number MC 420B/18 for ZAR252,356.38 plus interest at 5% per annum from 9 November 2015 and costs on an attorney-client scale. When Nhimbe failed to settle the judgment debt, Prisma obtained a warrant of execution and the Messenger of Court (2nd respondent) attached certain goods belonging to Nhimbe. In response, Nhimbe paid ZWL23,000, which it claimed to be full settlement of the judgment debt, interest and costs. Nhimbe had converted the ZAR amount to US$17,000 using the interbank rate on the judgment date, added US$6,000 for interest and costs (totaling US$23,000), and applied the 1:1 rate with the Zimbabwean dollar to pay ZWL23,000. Prisma denied that this payment extinguished the debt. Nhimbe then brought this application seeking an order declaring the debt paid in full and the release of the attached property.

• Whether payment of ZWL23,000 extinguished a judgment debt denominated in ZAR252,356.38
• Whether section 4(1)(d) of Statutory Instrument 33/19 applied to convert judgment debts denominated in South African Rands to RTGS dollars at a 1:1 ratio with United States dollars
• The correct interpretation of section 4(1)(d) of SI 33/19 regarding which foreign currency debts were subject to the deemed conversion to RTGS dollars
• Whether the maxim expressio unius est exclusio alterius applies to the interpretation of SI 33/19

The application was dismissed. The applicant was ordered to pay the 1st and 2nd respondents' costs of suit. Costs on a higher scale were refused as the court recognized that the new monetary legislation created jurisprudential uncertainties that needed to be tested. The 2nd respondent was awarded costs despite being cited in his official capacity because the applicant unusually sought costs against him, prompting him to oppose the application and incur costs.

Section 4(1)(d) of Statutory Instrument 33/19 applies only to assets and liabilities that were (1) valued and expressed in United States dollars, and (2) existed immediately before the effective date of 22 February 2019. The provision does not apply to assets and liabilities denominated in foreign currencies other than United States dollars. A judgment debt expressed in South African Rands does not fall within the scope of section 4(1)(d) and cannot be converted to RTGS dollars (or Zimbabwe dollars) at the 1:1 rate prescribed for United States dollar obligations. The express mention of United States dollars in the statute excludes other foreign currencies from the automatic conversion mechanism (expressio unius est exclusio alterius). Payment calculated on the basis of an incorrect conversion of a foreign currency judgment debt does not extinguish the debt.

The court observed that while the United States dollar became a prominent currency in Zimbabwe before the enactment of SI 33/19, it did not graduate to being the sole currency in use. The court took judicial notice that other currencies also remained in the market, with the frequency of their use depending on one's geographical location. The court also made observations about costs, noting that costs on a higher scale were not justified given the jurisprudential uncertainties created by the new monetary legislation, which needed judicial testing and clarification. The court further observed that the 2nd respondent (Messenger of Court) is ordinarily cited in his official capacity and would normally take a neutral position, but in this case was entitled to costs because the applicant unusually sought costs against him, forcing him to oppose the application.

This case is significant in Zimbabwean law for clarifying the scope and application of section 4(1)(d) of Statutory Instrument 33/19, which introduced the RTGS dollar and converted certain obligations to the new currency. The judgment establishes that the currency conversion provisions apply only to debts denominated in United States dollars, not to other foreign currencies such as South African Rands. The case reinforces the principle of expressio unius est exclusio alterius in statutory interpretation and confirms that the legislature's express mention of United States dollars excluded other foreign currencies from the automatic conversion mechanism. This has important implications for the enforcement of foreign currency judgments and debts in Zimbabwe's evolving monetary regime. The case also provides guidance on the two-part test established in Zambezi Gas Zimbabwe for determining when SI 33/19 applies to judgment debts.