The ruling is from the lowest level of court that can handle such a matter and the decision may still require confirmation by the Constitutional Court in terms of Section 175 of the Constitution.
The directive separated the RTGS Foreign Currency Account from a Nostro Foreign Currency Account based on the source of funds. Money from the pair’s business could only be paid in bond notes and coins, but not in the United State dollar which was the currency in which it was denominated. The concept of the Nostro Foreign Currency Account came into existence following RBZ’s Monetary Policy Statement of October 1, 2018. Justice Happias Zhou granted the duo’s application on the grounds that it was legally and morally unjustified for the central bank to change the currency of a bank account by simply renaming it.
The impugned exchange control directive, Justice Zhou ruled had retrospective application, in that it arbitrarily converted an existing United States Dollar account balance into something else by arbitrarily imposing an RTGS value on the United States dollar value of the credit balance in the applicants’’ account. He said it was offensive to any sense of justice that a person who holds money in a bank can wake up on any day to be told that his money means something else different from what it has always been. “”The democratic founding values of accountability, responsiveness, justice and transparency would be violated by a decision which, without recourse to any affected individual, businessperson or investor, changes the currency of money in a bank. Justice Zhou said if the decision of CABS was to be allowed to stand the effect of it was that the duo’s money was now $142 000 which is probably less than 4 percent of its value at the prevailing official rates which the court cannot ignore.
“The sovereignty of any Government to determine currency cannot extend to arbitrarily changing the currency of money in a bank to another currency as that would not only be unlawful deprivation of property in contravention the right protected in the Constitution of Zimbabwe but compels a party, the CABS, to breach its contractual obligations,” said Justice Zhou. This, he added, would be contrary to all notions of justice and fairness, and to the rule of law and good governance if the State or the bank was allowed to simply rename money in an account and decide that it has become something else different from what is in the account. “The judge said such conduct was an affront to the tenets of the Constitution which binds the State and all institutions, respect “transparency, justice, accountability and responsiveness’’. “Power must be exercised with sensitivity to fairness and justice, and in a manner that does not unnecessarily deprive persons of their rights,” he said.