N.R Barber Appeals To Con-Court Over Ruling On Debts Accrued In US Dollars

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By Mary Taruvinga

A LOCAL, company, NR. Barber, which is in a legal battle with Zambezi Gas over a US$3.8 million debt is now seeking Constitutional Court’s intervention following a ruling by the Supreme Court that all debts incurred before February 22 2019 be settled using the local currency on US$1 to Z$1 basis.

The company has filed an application at the Constitutional Court for leave to appeal against the decision of the Supreme Court made by the Chief Justice Luke Malaba last month.

Through its judicial manager, Antiock Kurauone, the company argued that Malaba and presiding judges failed to interpret the law and breached the company’s constitutional rights.

The judgement in question was delivered on January 20 this year.

“The judgment of the court considered constitutes a breach of applicant’s constitutional rights as set out under sections 56(1), 69 (2) and (3) and 71 of the Constitution of Zimbabwe 2013. Applicant further alleges that the court erred on certain constitutional questions that it had to determine,” said Kurauone in his founding affidavit.

“It is further contention of the applicants that the judgment constitutes a negation of the law and represents on the part of the court an abdication of constitutional function. In the main applicant seeks leave to appeal against the judgment alternatively an order for direct access to the Constitutional Court.”

Zambezi Gas was cited as the first respondent while the Sheriff of Zimbabwe was the second respondent.

Kurauone further argued that it is apparent upon a consideration of the judgement of the Supreme Court that the court not only granted relief which had not been sought and on which it had heard no argument but also did not deal with the issues that had been squarely placed before it.

“Applicant is aggrieved by the judgment and means to appeal it on a constitutional basis. Applicant is satisfied that there are constitutional issues that arise in this matter and that such issues were squarely before the Supreme Court when the matter was heard,” he said.

“The court a quo erred in not holding S.I 33 of 2019 constitutes unlawful expropriation in the contemplation of section 71 of the constitution in its deeming provisions, sanctions the undue deprivation of appellant’s proprietary interests, unjustifiably interferes with contractual obligations and is on the authority of section 2 (1) of the same constitution void and of no effect.”

In June 2018, N.R. Barber won a lawsuit against Zambezi Gas Zimbabwe for US$3,885,000, a debt which had arisen for services rendered.

However, Zambezi Gas appealed against the judgment, but it was thrown out in May 2019.

A week later, Zambezi deposited RTGS$4,136,806.54 as a settlement of the debt.

NR.Barber protested that the amount was far less than what Zambezi Gas had been ordered to pay by the court.
It stated that the amount paid was only equivalent (at the prevailing interbank market rate) to US$144,788.23 (out of the US$3,992,018.31, which it was expecting).

However, Zambezi Gas insisted that it had complied with the law.

It argued, SI 33/2019 allowed the conversion of all US dollar-denominated local assets and liabilities at the government-decreed rate of one-to-one.

N.R Barber instructed the Sheriff of the High Court to attach Zambezi Gas’ property to settle the difference.
That is when Zambezi Gas went to the High Court pleading for a stay of execution and a declaration that the payment it had tendered in RTGS dollars was a full and final settlement of the judgment debt.

The High Court dismissed Zambezi Gas’s application. Zambezi Gas then appealed to the Supreme Court which ruled in its favour provoking massive criticism from the markets.

The Supreme Court agreed with Zambezi Gas that SI 33/2019 permitted it to convert the US dollar-denominated judgment debt at the government decreed rate of one-to-one. 

The current application is yet to be heard.