Valentine Ziswa & Anor v Graeme Shaun Chadwick

### Preamble
Judgment No SC 52/25
1
Civil Appeal No. SC 245/24
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REPORTABLE (52)

VALENTINE     ZISWA     (2)     MARGARET     ZISWA

v

GRAEME     SHAUN     CHADWICK

SUPREME COURT OF ZIMBABWE

UCHENA JA, KUDYA JA & CHATUKUTA JA

HARARE: 28 NOVEMBER 2024 & 3 JULY 2025

L. Uriri, for the appellants

T. Zhuwarara, for the respondent

CHATUKUTA JA

This is an appeal against the judgment of the High Court (the court a quo) wherein it granted with costs the respondent’s application for a declarator that his payment in local currency at the rate of one-to-one would discharge in full his judgment debt denominated in United States dollars.  It also dismissed, with costs, the appellants’ counter application for a declaratory order that they were entitled to payment in United States dollars or its equivalent at the prevailing interbank rate.

FACTUAL BACKGROUND

The background to the appeal is as follows: The first and second appellants are husband and wife.  They are the owners of Farm 23 of Lawrencedale Estate, in the District of Makoni, Rusape also known as Ziswa Farm (the farm).  The respondent is a commercial farmer who specialises in tobacco farming and a director of a company duly registered in terms of the laws of Zimbabwe called Landos Farm (Pvt) Ltd.

Sometime in September 2008, the parties entered into a verbal agreement for the lease of the farm and some equipment on the farm.  Subsequently, the first appellant signed                          a 10 year lease agreement with the respondent on 9 January 2009 for the purpose of growing “30 ha of tobacco, 40 ha of maize, 20 ha of wheat and any other crop agreed between the parties”.  The lease covered the farm together with all buildings and other permanent improvements and certain movables.  On the same date the parties executed a second Joint Venture Agreement with the respondent for the long term development of the farm wherein the respondent undertook to effect developments of an equal value to the rental due.  The two agreements were backdated to 1 September 2008.

The relationship between the parties deteriorated over time resulting in the respondent cancelling the lease agreement on 2 July 2012 and vacating the farm without notice.

In the aftermath, the appellants instituted proceedings in the High Court in HC 13643-12 against the respondent and Landos Farm (Pvt) Ltd. The appellants sought the following claims:

US$64 160.00, being arrear rentals for the 2011-2012 farming season, calculated as 8% of the tobacco crop’s gross product.

US$1 980.00 for a refund of rates and levies paid to Makoni Rural District, which the respondent was obligated to pay.

US$5 500.00 for the appellants 8% share of the hailstorm insurance claim after the destruction of the tobacco crop in the 2009-2010 farming season.

US$67 506.00 for the replacement value of the centre pivot and generator taken by the respondent and never returned.

US$187 707.00 for the property removed and not returned.

US$15 905.00 for the property returned in an impaired condition.

US$7 600.00 for the fences and gates that were badly damaged.

US$15 008.00 for repairs needed to the damaged tobacco barns.

US$780.00 for the cost of labour to clear tobacco stocks.

US$26 313.00 for vandalised infrastructure.

US$15 000.00 for 50 metric tonnes of maize which the respondent failed to deliver to the appellants.

US$4 240.00 for 8% of the value of tobacco seedlings that were grown by the respondent.

US$45 000.00 for the loss of income and damages suffered due to the premature and abrupt termination of the lease agreement.

All in all, the appellants claimed damages to the sum of US $456 699.00.  The respondent defended the claims, asserting that he was not indebted to the appellants.  He contended that the lessor failed to establish both liability and quantum.

On 11 March 2015, Mathonsi J (as he then was), by judgment HH 240-15, granted part of the appellant’s claim in the sum of US $92 808.00 and dismissed those parts which related to Landos Farm (Pvt) Ltd and some that related to the respondent.  The order read:

The plaintiff’s claims against the second defendant are hereby dismissed with costs.

The plaintiffs’ claim (a) against the first defendant succeeds only in the sum of $8 808-00 which the first defendant is directed to pay to the plaintiffs.

(a) The plaintiffs’ claim (e) partially succeeds to the extent of the 4km LTC electric cable   while the rest is hereby dismissed.

(b) the first defendant shall pay to the plaintiffs the sum of $84 000.00 being the replacement value of the 4km LTC electric cable removed from the plaintiffs’ farm.

The first defendant shall pay the plaintiffs the sum of $780.00 being value of labour hired to clear tobacco stalks and related expenses.

The plaintiffs’ claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

Absolution from the instance is granted in respect of plaintiff’s claims (h) and (k).

The plaintiffs shall pay 20 % of the first defendant’s costs of suit.

The respondent paid the judgment debt in local currency alleging that the payment was in full satisfaction of the judgment debt.  Displeased with this, the appellants appealed to this Court in SC 160/15.  The appeal related to the interpretation of the lease agreement, the credibility of evidence and the correctness of the court a quo’s conclusions on the respondent’s liability and quantum of damages.

The Court determined that the High Court in HH 240-15 had erred in dismissing some of the claims.  It issued the following order:

The cross appeal succeeds in part with costs.

Paragraphs 1, 2 and 3 of the order of the court a quo is amended as follows:

“1.	The plaintiffs’ claims against the second defendant are hereby dismissed with no order as to costs.

2.  (c) The first defendant shall pay to the plaintiffs an additional sum of US$58 694.40 `in respect of claim (a).

3.	The first defendant shall pay to the plaintiffs an additional sum of US            $68 257 in respect of claim (e).”

4.	The order of the court a quo in respect of para 5 is set aside and substituted with the following:

“(a).   The first defendant shall pay to the plaintiffs the sum of:

US$ 53 925.91 in respect of claim (d).

US$13 381 I respect of claim (f).

The first defendant is absolved from the instance in respect of claims (j) and (l).”

The order of the court a quo in respect of paras 6 and 7 are set aside and substituted with the following:

“(a). The first defendant shall pay to the plaintiff the sum of US                             $15 008 in respect of claim (h).

The first defendant is absolved from the instance in respect of claim (k).”

The first defendant shall pay the plaintiffs costs of suit.”

By letter dated 29 August 2022, the appellants demanded payment of the sum of                                 US $ 209 266.31.  The respondent tendered payment in the sum of ZWL 209 266.31 in full and final payment of the amount demanded.  The appellants declined the tender insisting on payment in United States dollars.  The respondent approached the court a quo in case number HC 6165-22 seeking a declaratory order for him to pay the sum of                    $ 209 266.31 in local currency at the parity rate of one-to-one in full and final settlement of a judgment debt owed to the applicants in SC 92-22 with costs on a legal practitioner and client scale.

PROCEEDINGS BEFORE THE COURT A QUO

The respondent argued that the judgment in SC 92-22 was not a new judgment but rather it was one meant to correct the judgment in HH 240-2015 dated 11 March 2015.  He contended that the payments reflected in the judgment of this Court were in essence obligations as at 11 March 2015 and therefore were a liability due prior the effective date of 22 February 2019 stipulated in the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act & Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) (S.I. 33/19). He argued that payment therefore ought to have been at a one to one rate as provided in SI 33 of 2019.

The appellants were opposed to the application.  The appellants argued that the judgment handed down by the Supreme Court in SC 92/22 was essentially a new judgment that superseded the High Court judgment.  Further, the appellants contended that the purpose of the Supreme Court was not to correct the judgments of lower courts but rather to give a correct judgment in terms of the law. It was argued by the appellants that liability arose on the date on which the judgment was handed down by this Court, being 29 July 2022.  It was argued that respondent was therefore obliged to pay the judgment debt in United States dollars or the equivalent in the local currency at the prevailing interbank rate at the time of payment.

The appellants lodged a counter court application for a declaratur that the full and final settlement should be payable in United States dollars or at the prevailing interbank rate at the date of payment.

DECISION OF THE COURT A QUO

The court a quo granted the respondent’s application and dismissed the appellants’ counter claim.   It held that the judgment of the Supreme Court varied and amended the High Court order and thus it could not be termed a new judgment. It found that the liability was payable in local currency at the parity rate of one-to-one.  It further held that the tender by the respondent of ZWL $ 209 266.31 in full and final settlement of the liability was in terms of the law.

GROUNDS OF APPEAL

Aggrieved by the decision of the court a quo, the appellants have approached this Court on the following grounds of appeal:

The court a quo erred and grossly misdirected itself at law in finding that the awards allowed by the Supreme Court in terms of judgment number SC 92-22 and which were only ascertainable after that judgment were judgment debts affected by the provisions of s 4 (1) (d) of Statutory Instrument 33 of 2019.

The court a quo erred and grossly misdirected itself at law, in failing to find that the effect of its judgment was varying the Supreme Court’s judgment number                      SC 92-22 which allowed appellant’s claims in United States dollars.

For the stronger reason in ground of appeal number 2, the court a quo erred at law by exceeding its jurisdiction by varying the Supreme Court’s judgment number                           SC 92-22 contrary to the law and precedent as set out in Commercial Farmers Union v Mhuriro & Ors 2000 (2) ZLR 405 SC.

The court a quo erred and grossly misdirected itself at law, in failing to find that the debt claimed by appellants which was based on contracts for tobacco farming and selling was dischargeable in United States dollars.

Having found that the obligation to pay the debt arose in 2022 per judgment number SC 9-/22, the court a quo erred and grossly misdirected itself in finding that such debt was a debt incurred before the effective date of s 4 (1) (d) of the Statutory Instrument 33 of 2019.

RELIEF SOUGHT

The appeal is allowed with costs.

The judgment of the court a quo is set aside and substituted with the following:

The application be and is hereby dismissed with costs.

The respondent’s counter application is allowed with costs.

The applicant shall pay the respondents the sum of USD 209 266,31                         (two hundred and nine thousand, two hundred and sixty-six United States dollars or the equivalent thereof at the rate applicable on the date of payment).

The applicant be and is hereby ordered to pay the respondents’ costs at the legal practitioner and client scale.

PROCEEDINGS BEFORE THIS COURT

Application for recusal

At the commencement of the hearing, Mr Zhuwarara for the respondent, made an oral application for the recusal of Honourable Justices Uchena JA and kudya JA.  He highlighted that the judges were part of the panel of judges that had rendered the judgment in SC 92-22.  He argued that the respondent was apprehensive that the judges would not see the present case with fresh eyes.  He further argued that while the court in SC 92-22 did not deal with the issue of currency of the liability at the date of payment, the bench had already expressed itself in respect of the respondent’s liability.  He submitted that, the respondent was uncomfortable with the two judges being part of the bench.

The appellants opposed the application. Mr Uriri, for the appellants, submitted that the matter had been postponed by the same bench on several occasions without the respondent making the application for recusal.  Counsel argued that discomfort was not a basis for recusal.  He submitted that the test for recusal was that of the reasonable man standard and entails an objective assessment.  He contended that the bench in SC 92-22 dealt with the question of liability and not the currency of the liability and the respondent had not expressed any dissatisfaction with the findings of the Court in that regard.  He submitted that the Court, having dealt with the question of liability only, there was no basis for any apprehension of bias in relation to the question of the currency of the liability at the date of payment.

After hearing submissions, we dismissed the application.  Our reasons will become apparent below.

The Appellants’ Submissions on the merits

Mr Uriri submitted that the liability to pay the amounts reflected in the judgment issued under SC 92-22 arose on 29 July 2022 the date on which the judgment was handed down. He submitted that the liability was denominated in United States dollars.  He argued that on the effective date, that is on 22 February 2019, the liability as reflected in the judgment had not yet been ascertained as the question of the outstanding claims was still in dispute. Furthermore, counsel contended that this Court has held in a plethora of cases that debts expressed in United States dollars after the effective date are payable at the prevailing interbank rate.

The Respondent’s Submissions.

In response, Mr Zhuwarara argued that the obligation to pay arose on 11 March 2015 being the date the court a quo issued its judgment in HH 240-15.   He argued that in terms of s 24 of the Supreme Court Act [Chapter 7:13] (‘Supreme Court Act’), the judgment in SC 92-22 ought to be interpreted as if it was handed down on 11 March 2015 by the court a quo.  He conceded that the respondent had in fact paid what was due in terms of the 2015 judgment pursuant to a writ.

ISSUES FOR DETERMINATION

The sole issue for determination in this appeal is whether or not the Supreme Court judgment in SC 92-22 was a judgment debt affected by the provisions of s 4(1)(d) of                        SI 33/2019 now of the Finance Act (No. 2) of 2019.

However, before dealing with that issue, the following are the reasons for the dismissal of the application for recusal.

THE APPLICATION FOR RECUSAL

The application for recusal was based on the respondent’s “discomfort” with Uchena JA and Kudya JA determining this appeal when they had been part of the bench that determined the appeal in SC 92-22.

Judicial recusal refers to the withdrawal or disqualification of a judge presiding over a matter when circumstances exist that might reasonably create an apprehension of bias, prejudice or a conflict of interest.  This is rooted in the timeless legal doctrine nemo judex in causa sua, which translates to “no one should be a judge in their own cause”.  Section 5 of the Supreme Court Act reads:

“A judge of the Supreme Court shall not sit as a judge on the hearing of an appeal to the Supreme Court from any judgment given by himself or in which he has concurred or from which he has dissented or in respect of which he has been formally consulted.”

In the landmark case of President of the Republic of South Africa v South African Rugby Football Union 1999 (4) SA 147 (CC), the court established the standard test for bias as follows:

“It follows from the foregoing that the correct approach to this application for the recusal of members of this court is objective and the onus of establishing it rests upon the applicant.  The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the case that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves.  At the same time, it must never be forgotten that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

The test is an objective one, where the court should seriously evaluate whether a reasonable informed observer of the facts would reasonably apprehend that the judge might not approach the matter impartially. It relies on justifiable apprehension, not the subjective feelings of the applicant.

It is plausible to assume that a judge who has previously rendered a decision might, albeit, unintentionally, be predisposed to defend their earlier conclusions, even in the face of new evidence. Prior involvement in the matter could unconsciously influence their judgment.

In casu, the issue before this Court is substantially distinct from that which was considered in SC 92-22.  The issue addressed in SC 92-22 was centred on whether the respondent was liable for the appellant’s claims, a question which the court resolved in favour of the appellants.  By contrast, the matter now before this Court concerns the timing of when the respondent’s liability to pay the damages arose and, ultimately, the appropriate rate to be applied in satisfying the judgment debt.

The issue of the rate at which the debt was payable emerged only after the final order in SC 92-22, which conclusively determined the respondent's liability. The respondent's subsequent application for a declaratory order regarding the applicable rate of payment introduced a new and previously unaddressed legal question.

The case of National Social Security Authority v Housing Corporation Zimbabwe (Pvt) Ltd & Anor SC 21/24 is apposite. Therein, the first respondent requested the recusal of a judge of this Court on the basis that he had been part of the bench in a previous case before the Supreme Court.  He thus submitted that the judge, having been part of the previous bench, may already have formed an opinion on the matter and as a result, the respondent would not receive a fair hearing.  The Court remarked at pp. 12-13 that:

“The factual basis upon which the first respondent based his application for recusal is clear in that, although the appeal was based on the same parties and subject matter, the court did not hear or determine the merits of the matter. The court determined a procedural irregularity which was introduced through the amended ground of appeal of the appellant. There is therefore, in my view, no basis upon which a reasonable apprehension can be had that Uchena JA will be biased against the first respondent and arguments to be made by counsel for the first respondent as initially the appeal was disposed of on a technicality and not on the merits of the matter. The arguments to be made on the merits of the matter by counsel for the respondent before this Court were never made under SC338/20. There can be no argument that Uchena JA has been pre-empted on the arguments sought to be made by Adv Tivadar as no such arguments were made at the hearing of the appeal under SC338/20.  We agree with Adv Mpofu that the first respondent has failed to satisfy the requirements for the recusal of Uchena JA”

In similar fashion, the case of Mawere v Mupasire & Ors CCZ 02/22 is directly on point with the present instance.  The court was presented with an application for intervention, and prior to the hearing, the applicants made an application for recusal. Central to the application for recusal were two matters determined in 2005 and 2007, respectively.  In both instances, preliminary objections were raised that precluded the court from delving into the merits. Makarau JCC at p 7 aptly held that:

“The law against bias prohibits a judicial officer who has already expressed himself or herself on the merits of the matter at hand, in or out of court, from sitting in determination of such merits.  It prohibits a judicial officer who will not bring an open mind to bear on the matter to be determined to sit in adjudication of such a matter. Mere exposure, without comment, to the merits of the matter is not an adequate and valid basis for seeking recusal.”

It is common cause that the court in SC 92-22 was not seized with the question of the applicable conversion rate to be applied by the respondent in paying the appellants’ claim denominated in United States dollars. Its determination was narrowly confined to affirming the respondent’s liability to the appellants and providing a definitive quantification thereof.  Nowhere in the judgment did the court avert to the issue of the applicable currency.  All that the appellants were interested in was the respondent’s liability in respect of the claims that had been dismissed in HH 240-15 or awarded in a lesser amount.   It is also common cause that the issue of the applicable rate only arose with the promulgation of SI 33/19.  The appeal giving birth to the judgment in SC 92-2022 was noted in 2015 under case number SC 160/15.  The judgment SC 92-22 does not advert to any amendment that would have formed a basis for the court to engage the question of the applicable rate.  Neither, did the parties allude to such amendment and engagement before the court.

The question of the applicable rate emerged as a novel issue, and arose only after the final order was rendered in SC 92-22.  The principles governing judicial recusal mandate that for a judge to withdraw from a matter previously adjudicated, the issues presently before the court must be substantially identical to those previously considered. Mere prior involvement is insufficient.

As rightly put by Guvava JA in NSSA (supra), it is an unavoidable reality that a judge who has previously overseen a matter may, in due course, be required to deliberate on an appeal arising from the same proceedings owing to the practical finite number of judges available.  Recusal of a judge, in such circumstances, solely lies in whether the judge previously adjudicated the very same issues now presented for determination in the current matter.  In NSSA (supra) at p 14 it was held that:

“It must also be noted that the Supreme Court, by its composition has a limited number of judges. This means that there will always be a likelihood that a judge who has heard a chamber application or a court application will invariably hear the appeal in the main matter.  It follows that judges of the Supreme Court cannot be called upon to recuse themselves willy-nilly merely because they have dealt with the same parties on procedural matters at some stage before hearing the appeal. It will be recalled, as already discussed above that the Judges by taking the oath of office and by their training will not, as a general rule, be affected by such matters to become biased.”

Judges are duty bound to adjudicate every matter properly placed before them, except where substantial and legitimate grounds for recusal exist.  This mandate transcends mere duty.  By virtue of their appointment, judges undertake a solemn oath of office as prescribed by the Constitution. This pledge embodies their unwavering obligation to adjudicate all matters submitted for their determination.

While every litigant retains the right to seek a judge’s recusal in light of the apprehension of bias, such applications must be firmly rooted in the law and substantiated by evidence. Baseless or frivolous allegations of bias not only erode public confidence in the judiciary but also risk undermining the integrity and functionality of the justice system.

The respondent’s discomfort cannot be elevated to a reasonable man’s apprehension of bias. The application fell short of the requisite requirements for recusal.

It is for these reasons that the application for recusal was dismissed.

THE APPEAL

Whether or not the Supreme Court judgment in SC 92-22 was a judgment debt affected by the provisions of s 4 (1) (d) of S.I. 33/19.

The appellants argued that the respondent’s liability was triggered on 29 July 2022, being the date the judgment in SC 92-22 was issued, that is after the effective date of 22 February 2019 in terms of SI 33/2019 and as such the judgment debt should be settled at the prevailing interbank rate on the date of payment.   The respondent argued that the judgment rendered in SC 92-22 ought to be interpreted as if it had been handed down by the court a quo in judgment HH 240-15 on 11 March 2015.  Accordingly, he argues that liability arose in 2015 before the effective in SI 33 of 2019 and ought to be extinguished by payment in local currency at the parity rate of one-to-one.

The noting of an appeal automatically suspends the operation and execution of the judgment being appealed pending the final determination of the appellate court. This ensures that the judgment is not enforced prematurely, allowing the appeal process to unfold. As such, the finality of the matter rests with the decision of the appellate court.  In our jurisdiction, the Supreme Court occupies the position of the ultimate court of appeal, rendering final and unassailable decisions, except in instances where the Constitutional Court holds jurisdiction.

Section 169(1) of the Constitution provides:

“The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In construing the scope of the aforesaid provision in Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd & Anor 2018 (2) ZLR 743 (CC) at 756 F, the Chief Justice held:

“The principles that emerge from s 169 (1) of the Constitution, as read with s 26 of the Act, are clear. A decision of the Supreme Court on any non-constitutional matter in an appeal is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.”

The Supreme Court does not simply affirm or overturn the decision of the court a quo but rather it exercises its judicial discretion to make an independent judgment that supersedes all previous decisions. The effect of the respondent’s submission would therefore mean that the judgment of the Supreme Court ceases to be such and is novated into a judgment of a lower court or tribunal. That clearly was not the intention of the legislature.

In casu, following the appellants' appeal of the decision in HH 240-15, the question of liability, in so far as it related to the dismissed claims and re-quantification, remained unresolved until this Court, as the ultimate judicial authority, rendered a definitive pronouncement on the claims.

The Supreme Court not only affirmed the respondent's liability but it identified material inaccuracies in the valuations adopted by the court a quo. Through re-quantification, it overturned a substantial part of the substantive order of the court a quo, thereby precisely quantifying the debt owed. The ruling issued was entirely novel and distinct from the court a quo’s decision. This Court in exercising its judicial authority rendered a definitive and independent determination that supplanted the prior ruling, providing an authoritative and final resolution on both the issue of liability and its precise monetary value in United States dollars.

Mr Zhuwarara sought to argue that the judgment in SC 92-22 amended the judgment of the High Court in HH 240-15 and is therefore a 2015 judgment of the High Court by virtue of s 24 of the Supreme Court Act. Section 24 reads:

“Except as otherwise provided in any other law, judgment of the Supreme Court in any appeal in terms of this part shall be recorded in the court or tribunal of first instance and such judgment may be enforced in all respects as if it had been given by that court or tribunal.”(Own emphasis)

The above provision conveys that unless explicitly provided for by another law, a judgment rendered by the Supreme Court in an appeal must be formally recorded in the court or tribunal of first instance.  Once recorded, the judgment holds the same legal force and enforceability as if it had been issued by the original court or tribunal, thereby ensuring its full execution through the same mechanisms and procedures of that court or tribunal.

Section 24 is explicit that the judgment of the Supreme Court remains a judgment of the Supreme Court and is not a judgment of the lower court or tribunal.  The phrase “as if it had been given by that court or tribunal” clearly reflects the intention of the legislature that the judgment does not become the judgment of the lower court.

The words “as if” have been defined in Rajasthan State Industrial Development and Investment Corporation & Another v Diamond and Gem Investment Corporation Limited & Anor Civil Appeal Nos. 7252/53 of 2003 and 8222/23 of 2003 to mean that the legislature would have created a legal fiction. It was remarked that:

“26. The expression “as if” is used to make one applicable in respect of the other. The words “as if” create a legal fiction.  By it when a person is “deemed to be” something, the only meaning possible is that, while in reality he is not that something, but for the purpose of the Act of legislature he is required to be treated as that something, and not otherwise. It is a well settled rule of interpretation that, in construing the scope of a legal fiction, it would be proper and even necessary to assume all those facts on the basis of which alone such fiction can operate. The words “as if” in fact show the distinction between twothings, and such words must be used only for a limited purpose. They further show that a legal fiction must be limited for the purpose it was created.”

27.	In East End Dwellings Co. Ltd. v Finsbury Borough Council 1952 AC 109, (1951) 2 All ER 587 (HL) this Court approved the approach which stood adopted and followed persistently.  It set out as under: (AC p. 133)

“…The statute says that you must imagine a certain state of affairs; it does not say having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”

28.	In Industrial Supplies (P) Ltd. v Union of India (1980) 4 SCC 341, AIR 1980 SC 1858 this Court observed as follows:

“It is now axiomatic that when a legal fiction is incorporated in a statute, the court has to ascertain for what purpose the fiction is created. After ascertaining the purpose, full effect must be given to the statutory fiction and it should be followed to its logical conclusion…. The legal effect of the words “as if he were” in the definition of “owner” in s 3n of the Nationalisation Act read with s 2(1) of the Mines Act is that although the petitioners were not the owners, being the contractors for the work of the mine in question, were to be treated as such though, in fact, they were not so.””

The words ‘as if” in s 24 of the Supreme Court Act are akin to the words “deemed to be” which are generally used in our legislation. Both phrases connote a supposition that one is the other for the identified purpose. The words “deemed to be” are defined in WORDS AND PHRASES Judicially Defined Vol 2:

“Generally speaking, when you talk of a thing being deemed to be something, you do not mean to say that it is that which it is deemed to be. It is rather an admission that it is not what it is deemed to be, and that, notwithstanding it is not that particular thing nevertheless ….it is to be deemed to be that thing”.

In S v Synman 1989 (1) ZLR 89 at 94B-D,  Dumbutshena CJ cited with approval the definition ascribed to the word “deemed” in Steel v Shanta Construction (Pty) Ltd & Ors 1973 (2) SA 537 (T) at 541A where Coetzee J stated that:

“When 'deemed' is used as meaning 'considered' or 'regarded' and not in one of its other meanings (such as, for instance, to 'think') it is a very strong word to denote, frequently exhaustively, that something is a fact regardless of the objective truth of the matter. It is an indispensable word, in legal parlance, to convey that enquiry into this truth is irrelevant for the purpose of the particular instrument. Struggle as one may against such deemed meaning, it is inevitable that the struggle will be in vain (cf the remarks of Hathorn JP in Collins v Durban Corporation 1946 NPD 785 at 786).”

In casu, the purpose of s 24 is clear. It is to facilitate the enforcement of a Supreme Court judgment by ensuring that it is recorded in the court of first instance. It does not diminish the fact that the Supreme Court's judgment represents the final and authoritative pronouncement on legal matters, which stands independently of the lower court.  The provision merely ensures that the judgment can be enforced using the same procedural mechanisms available to the court of first instance. The Supreme Court judgment is  considered or deemed in s 24 of the Supreme Court Act to be a High Court judgment solely for purposes of execution.  It follows that liability to pay the judgment debt in SC 92-22 arose on 29 July 2022.

It is trite that, in terms of s 4 (1) (d) of SI 33 of 2019 now of the Finance Act (No. 2) of 2019, all assets and liabilities, including judgment debts denominated in United States dollars immediately before the effective date of 22 February 2019 would, on or after the aforementioned date, be valued in RTGs dollars on a one-to-one rate.  It was remarked in Zambezi Gas Zimbabwe (Pvt) Ltd v NR Barber & Anor 2020 (1) ZLR 138 (S) at 144 E that:

“The liabilities referred to in s 4 (1) (d) of S.I 33/19 can be in the form of judgment debts and such liabilities amount to obligations which should be settled by the judgment debtor. In interpreting s 4 (1) (d), regard should be had to assets and liabilities which existed immediately before the effective date of the promulgation of S.I 33/19. The value of the assets and liabilities should have been expressed in United States dollars immediately before 22 February 2019 for the provisions of s 4 (1) (d) of S.I 33/19 to apply to them.”(Emphasis added)

However, all assets and liabilities, including judgment debts denominated in United States dollars post effective date do not therefore fall under the ambit of s 4 (1) (d) of SI 33 of 2019.  They instead fall under s 4 (1) (e).  Such assets and liabilities, including judgment debts are payable in the denomination of the assets or liabilities or are converted to RTGS dollars at the prevailing interbank rate on the date of payment.

In Unifreight Africa Limited v Mashinya CCZ 13/24 Patel JCC remarked at p 8 that:

“On the facts of this case, I am inclined to agree with the position advanced by the respondent and adopted by the court a quo. While the damages payable to the respondent by the applicant were capable of being calculated in United States dollars before the effective date of SI 33 of 2019, they had not been so agreed or quantified and therefore expressed in that currency at any time before that date. They only became a liability in the form of a judgment debt, within the contemplation of s 4(1) (d) of S.I. 33 of 2019, after the effective date of 22 February 2019.  Consequently, in accordance with s 4(1) (e) of S.I. 33 of 2019, they must be discharged in Zimbabwean dollars, not at the parity rate of one-to-one, but at the interbank rate prevailing at the time of payment. Additionally, I note that the same position was accepted and adopted in two other decisions of the Supreme Court, namely, the Ingalulu & Magauzi cases, supra, which are relied upon by counsel for the respondent.”

The judgment debt having being issued on 29 July 2022, was valued after the effective date. It is therefore excluded from the ambit of s 4 (1) (d) of S.I. 33/19 and falls under                       s 4(1) (e).

The Court a quo therefore misdirected itself in holding that the respondent was entitled to discharge a judgment debt issued after the effective date at the rate of one to one. The appeal has merit.  As for costs, there is no justification to depart from the norm that costs follow the cause.

DISPOSITION

In the result, it be and is hereby ordered as follows:

The appeal is allowed with costs.

The judgment of the court a quo is set aside and substituted with the following:

“(a) The application be and is hereby dismissed with costs.

(b) The respondents’ counter application be and is hereby granted with costs.

(c) The applicant shall pay the respondents the sum of US$209 266.31 or the equivalent thereof in local currency at the prevailing interbank rate on the date of payment.”

UCHENA JA		:	I agree

KUDYA JA		:	I agree

Coghlan, Welsh & Guest, appellant’s legal practitioners.

Scanlen & Holderness, respondents’ legal practitioners.