JOSEPH MARSHAL STUART

Versus

NATIONAL RAILWAYS OF ZIMBABWE

IN THE HIGH COURT OF ZIMBABWE

NDOU J

BULAWAYO 10 & 23 JANUARY 2014

V. Majoko for applicant

A. Muchadehama for the respondent

Judgment

            NDOU J:          This is an opposed application.  The applicant seeks an order in the followingterms:

            “It is ordered that:

1.      Leave be and is hereby granted to the plaintiff/applicant to amend his claim so that his claim sounds in the currency currently in use in Zimbabwe and as particularized in his founding affidavit and annexures.

2.      Defendant/respondent pays costs of this application.”

I do not deem it necessary at this stage, to give the particulars of his founding affidavit, save to point out all that he seeks is to alter his claim from Zimbabwe dollar, in use at the time of the issuance of the summons in the main matter under case number HC 1777/04, to United States dollars currently under use in the country.  The background facts of this matter are the following.  Under case number HC 1777/04, supra, the applicant sued the respondent for damages arising from alleged wrongful dismissal from employment and harassment.  At the time the applicant, who is the plaintiff under HC 1777/04, filed his claim, the currency in use was the Zimbabwe dollar.  In February, 2009, it is common cause that the Zimbabwe dollar ceased to be used in trade.  The Government introduced a system of multi-currency.  The court can safely take judicial notice of this fact.  It is not necessary for me to deal with the theoretical argument raised by the respondent that the Zimbabwe dollar was never demonetized nor did it cease to be legal tender.  The bottom line is that no one, including the respondent, is currently using the Zimbabwe dollar as means of trade.  The respondent’s contention that the Zimbabwe dollar is in use is not premised on practical considerations.  As far as the law is concerned, our courts have accepted the competency to grant judgment in foreign currency, long before the multi-currency regime was introduced in February 2009.  In Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1998 (2) ZLR 482 (S) where it was held – “Justice requires that a plaintiff should not suffer by reason of a devaluation of a currency between the due date on which the defendant should meet his obligation and the date of actual payment or the date of enforcement of the judgment.”  See also “Despina R” case [1979] ALL ER 421; Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd SC-21-09; Kwindima v Mvundura HH-25-09 (at page 5 of the cyclostyled judgment); Samanyau and 38 Ors v Fleximail HH-108-11 and ZIMNAT Insurance Co Ltd v Chibanda 1990 (2) ZLR 143.

  In casu, to award the damages in Zimbabwe dollar, which has been rendered valueless by the abovementioned decision of the Government in February 2009, might deny the applicant, as plaintiff in the main matter the redress that he seeks.  The applicant is not the author of the demise of the Zimbabwe dollar and it would not be in the interest of justice to punish him for that fact.

The fact that he prosecuted his claim with delay cannot be used at this stage to deny him the amendment he seeks.  I do not see any prejudice to the respondent that cannot be cured by affording it the opportunity to challenge the evidence adduced by the applicant on the rating of the Zimbabwe dollar vis-à-vis the United States dollar.  The issue of delay can be dealt with via the determination of costs.  It is trite law that our courts allow amendments quite liberally.  This liberality is only affected where the amendments would cause considerable inconvenience to the court or prejudice to a party or where there is no prospect of the point raised in the amendment succeeding or where the matters in the raised amendment are vague and embarrassing – UDC Ltd v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H); ZFC v Taylor 1999 (1) ZLR 308 (H) and Lourence v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 157 (SC) – see also Rule 132, High Court Rules.

In casu, the amendment is being sought after the plaintiff has already testified (i.e. in the main matter).  The plaintiff’s second witness has also testified and concluded her testimony.  These witnesses can be recalled to deal with the issues raised in the amendment.  The respondent can still cross-examine such witness on these issues.  Frankly, I do not see why the respondent did not consent to the amendment.  There seems to be unnecessary belligerency and acrimony between the parties.  This is apparent from the language used in their papers. Parties should not rely too much on procedural issues to the detriment of justice.  In view of the foregoing I do not find any legal impediment to the amendment sought which cannot be cured during the course of the main trial.

Accordingly, the application is granted with costs being costs in the cause.

Majoko & Majoko, applicant’s legal practitioners

Mbidzo, Muchadehama & Makoni, respondent’s legal practitioners