Source: . . . court throws out challenge | The Herald November 29, 2016
Daniel Nemukuyu Senior Court Reporter—
Judge President George Chiweshe has dismissed, with costs, an application by a Harare businessman challenging the legality of Statutory Instrument 133-2016 that backed the release of bond notes into circulation.Mr Fredrick Charles Mutanda also contested the constitutionality of the Presidential Powers (Temporary Measures) Act that was used in the promulgation of the bond notes law.
Through his lawyers — Mr David Drury and Advocate Girach Firoz — Mr Mutanda argued that the Presidential Powers (Temporary Measures) Act was unconstitutional in that it violated Parliament’s primary law-making role, thereby encroaching on the doctrine of separation of powers.
The lawyers argued that the issuance of legal tender in the form of bond notes and coins was unlawful as it fell outside recognised legal tender and currencies as provided for by the RBZ Act.
Justice Chiweshe yesterday handed down the judgment, dismissing the application after the new notes and coins had already hit the market.
The judge ruled that the matter lacked urgency and that the concerns raised by Mr Mutanda were speculative.
“More importantly, the applicants have not established, to the satisfaction of the court that the introduction of bond notes would cause them irreparable harm.
“The third and fourth respondents (RBZ and its Governor Dr John Mangudya) have clearly spelt out, as monetary authorities, the objectives sought to be met by the introduction of bond notes.
“The concerns of the applicants are not based on any objective facts. What the applicants foresee as the inevitable consequence of the introduction of bond notes is, to all intents and purposes, based on speculation.
“I am satisfied that the requirements for urgency have not been met in this application and for that reason, the application cannot succeed.
Accordignly, it is ordered that the application be and is hereby dismissed with costs,” ruled the Judge President.
During the hearing, Adv Mpofu argued that the bond notes were supported by the RBZ Act hence their issuance was lawful.
He also slammed the applicant for the manner he challenged the Presidential Powers.
“It is not possible for a serious litigant to challenge the constitutionality of the whole Act. Is the title of the Presidential Powers (Temporary Measures) unconstitutional, is the short title unconstitutional. A serious litigant will identify the provisions and juxtapose them with the Constitution,” said Adv Mpofu.
Adv Mpofu said promulgation of a Statutory Instrument did not constitute usurping of Parliament’s primary lawmaking process which, in any case was subject to review by Parliament.
Presidential Powers, he said, had a life span of six months.
Adv Mpofu submitted that by challenging the issuance of bond notes, the applicant was questioning the policymaking role of the Executive.
He said issues like export incentives and measures aimed at curbing foreign currency leakages were policy decisions which rested with the Executive.