Zambezi Gas Zimbabwe (Private) Limited v N.R Barber (Private) Limited and The Sheriff for Zimbabwe

On 25 June 2018, the High Court (Muzenda J) ordered the applicant to pay the first respondent USD$3,885,000.00 plus interest and costs on an attorney-client scale in HC 7882/17. The applicant appealed but the Supreme Court dismissed the appeal on 13 March 2019, confirming the debt. On 21 May 2019, the applicant deposited RTGS$4,136,806.54 into the first respondent's account, claiming this fully satisfied the judgment in terms of Statutory Instrument 33 of 2019. The first respondent rejected this, stating the amount was only equivalent to USD$144,788.23 at the interbank rate of 3.5 (RTGS to USD) on that date, leaving a balance of USD$3,992,018.31 outstanding. On 4 June 2019, the Sheriff attended the applicant's premises in Hwange and attached property pursuant to a writ of execution. The applicant then filed an urgent application on 5 June 2019 seeking a stay of execution and a declaratory order that its RTGS payment had fully satisfied the judgment.

• Whether the matter was urgent and whether urgency had been properly established
• Whether section 4(1)(d) of Statutory Instrument 33 of 2019 applied to convert pre-existing court orders denominated in USD to RTGS at a 1:1 rate
• Whether the applicant's payment in RTGS had fully satisfied the USD-denominated court judgment
• Whether the first respondent had applied the correct exchange rate in calculating the outstanding balance
• Whether the legislature intended SI 33 of 2019 to alter court orders made before the effective date

The application was dismissed with costs on a legal practitioner and client scale against the applicant. The stay of execution was refused, and the declaratory order sought was not granted. The first respondent was entitled to proceed with attachment of the applicant's property to recover the outstanding balance of the judgment debt.

Section 4(1)(d) of Statutory Instrument 33 of 2019, which deems assets and liabilities valued in USD immediately before the effective date to be valued in RTGS at a 1:1 rate, does not apply to court orders made before the effective date. The legislature cannot, through subordinate legislation, alter court orders, as this would violate the constitutional principle of separation of powers. A judgment debtor who has been ordered by a court to pay a specific amount in USD cannot unilaterally decide to satisfy that judgment by paying in RTGS at a 1:1 conversion rate that does not reflect the actual market exchange rate. Where a debtor chooses to pay a USD-denominated judgment in an alternative currency, they must use the prevailing interbank exchange rate at the time of payment to ensure the creditor receives the equivalent value ordered by the court.

The court observed that attachment of property pursuant to a writ of execution is not per se a ground for urgency, but may constitute urgency depending on the circumstances of each case. The court also noted that even if the applicant's interpretation of SI 33 of 2019 were correct regarding liabilities being treated as covered by the provision, the debt in this case was not valued "immediately before the effective date" as required by the statute, since it was due on 25 June 2018, well before the effective date of 22 February 2019. The court suggested that if the legislature had intended SI 33 of 2019 to include court orders and writs, it should have expressly said so in the legislation.

This case is significant in Zimbabwean jurisprudence as it clarifies the application of Statutory Instrument 33 of 2019 in relation to pre-existing court orders. The judgment establishes important principles regarding: (1) the limits of legislative power to alter court orders through subordinate legislation, reinforcing the constitutional doctrine of separation of powers; (2) the proper method of satisfying USD-denominated judgments after currency reforms; and (3) that debtors cannot unilaterally convert court-ordered USD payments to RTGS at artificial rates. The case provides guidance on currency conversion issues arising from Zimbabwe's monetary policy changes and protects the integrity of court judgments from being undermined by subsequent legislative or regulatory changes. It affirms that judgments must be satisfied according to their terms, and any conversion to alternative currencies must use market rates, not arbitrary statutory conversions.