Court throws away RTGS$ challenge

THE High Court has dismissed with costs an application filed by Harare businessman and University of Zimbabwe lecturer, Shakespear Hamauswa, challenging the legality of the Real Time Gross Settlement dollar (RTGS$) as legal tender and the Presidential (Temporal Measures) Act evoked by President Emmerson Mnangagwa to introduce the currency.

High Court judge Justice Alpheus Chitakunye, who received the application, ruled that Hamauswa failed to establish a case for the court to entertain his application.

The court then slapped him with costs on a higher scale.

In March this year, Hamauswa approached the court soon after Finance minister Mthuli Ncube announced that the President had gazetted Statutory Instrument 33 of 2019 converting the banking public's existing RTGS bank balances and bond notes into a new currency known as the RTGS$.

Hamauswa was seeking a court order declaring as null and void the Presidential (Temporal Measures) Act, amendment of the Reserve Bank of Zimbabwe (RBZ) Act (SI33/2019) through which the RTGS$ had been issued, arguing that the Act gave the President sweeping powers to make laws virtually on every subject, thus infringing on citizens' rights.

But in his determination of the matter, Justice Chitakunye said Hamauswa's claim of infringement of his rights had not been established.

"In casu, the applicant (Hamauswa), despite the voluminous nature of his application, has not made any allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. If anything, his allegations are not concerned with unequal treatment, but his perceived abuse of the provisions of the Presidential Powers (Temporal Measures) Act and the manner in which the Statutory Instrument 33 of 2019 was promulgated," the judge said.

"This had nothing to do with unequal treatment or application of the legislation in question. As he has not alleged unequal treatment or discrimination against him in the application of the legislation in question, it follows that he has failed to establish a case for this court to entertain his application.

"In short, since the applicant has not alleged unequal treatment or discrimination, his allegations that his right enshrined in section 56(1) of the Constitution has been infringed cannot be sustained.

"On the question of costs, I am of the view that the applicant must pay the cost of suit. It must have been evident from inception that the right he was fronting as having been infringed was, in fact, not alluded to in its proper context in his founding affidavit. He clearly unnecessarily dragged respondents to court on a wrong premise altogether. It is only proper that he should bear the costs on the legal practitioner client scale."

Meanwhile, the High Court is yet to give a determination on an application by another local businessman and lawyer, Tawanda Nyambirai, who is seeking an order to interdict Ncube, and Reserve Bank of Zimbabwe governor John Mangudya from introducing or implementing any policies, regulations or decisions relating to the scraping of the multi-currency regime.

In his application, Nyambirai said he is representing his own interest and that of the members of public, who were holders of foreign currencies as was at the effective date of the RBZ (legal tender) Regulations SI 142 of 2019 and who were holders of Zimbabwe bond notes and coins and electronic United States dollar balances that were compulsorily converted to RTGS dollars without compensation.