THE TRUSTEES FOR THE TIME BEING OF THE MTU FAMILY TRUST v CHIDEMO (405 of 2025) [2025] ZWHHC 405 (8 July 2025)

4 HH 405 - 25 HCH 2236/24 THE TRUSTEES FOR THE TIME BEING OF THE MTU FAMILY TRUST versus TAPUWA EVANS CHIDEMO HIGH COURT OF ZIMBABWE MANZUNZU J HARARE, 12 June & 8 July 2025 Civil Trial – Stated Case P Mwandura, for the plaintiff T. L Mapuranga, for the defendant MANZUNZU J: INTRODUCTION This is a summons commencing action for payment of USD$34 000 being the refund of the purchase price paid by the plaintiff to the defendant pursuant to a sale and purchase agreement. The matter proceeded as a stated case to be argued only on two issues. The first being prescription and the second being whether the provisions of SI 33 of 2019 is applicable to this case. BACKGROUND The matter was converted to a special case in terms of Rule 52 of the High Court Rules, 2021.The plaintiff is the Trustees for the Time Being of the MTU Family Trust, a trust formed in terms of the laws of Zimbabwe.The defendant is Tapuwa Evans Chidemo, a male adult.On or about the 15th of February 2019, the plaintiffs and the defendant entered into an agreement of sale in terms of which the defendant sold 2500 ordinary shares of $2.00 each in a company known as Derwent Lodge Private Limited to the plaintiff. The shares were coupled with the right of possession and occupation in respect of Flat number 19 Derwent Lodge situated at Josiah Chinamano Avenue, Harare, (the property). The agreed purchase price was the sum of US$ 36 000.00. Pursuant to the signing of the agreement the plaintiff paid the sum of US$36 000.00.The plaintiff took occupation of the immovable property round about the 15th of March 2019.In terms of the agreement of sale, the defendant was obliged to effect the transfer of the shares within a reasonable time.Before the defendant could effect the transfer of shares to the plaintiff, the National Prosecuting Authority (NPA) instituted court proceedings in case number HC 7264/19 seeking an order for forfeiture for the property, on the basis that it constituted tainted property. In HC 7264/19 the defendant was unsuccessful in defending the proceedings and the shares were forfeited to the State in terms of the judgment of the High Court, which judgment was also confirmed by the Supreme Court in SC 321/22 on the 29th of February 2024. The defendant thus lost the right to the shares and became incapable of transferring valid title in the shares to the plaintiff and guaranteeing plaintiff’s right to possession and occupation of the property. On the 3rd of April 2024, the plaintiff rescinded the Sale Agreement and demanded a refund of the purchase price. The plaintiff recovered the sum of US$ 2000.00 from Mapaya and Associates, being a portion of the purchase price that had been deposited in trust pending Capital Gains Tax assessment. The plaintiffs now institutes summons action against the defendant for the recovery of the purchase price in the sum of US$34.000.00 in respect of the shares to the plaintiff. ISSUES FOR DETERMINATION Whether or not the matter has prescribed Whether or not the plaintiff is entitled to the US$ 34 000.00 at the rate of 1:1 in terms of S1 33 of 2019. THE LAW Whether The Matter Has Prescribed The defendant raises the argument that since the agreement was signed on or about the 15th of February 2019 any claims stemming from it ought to have been made within 3 years of the signature date. The plaintiff’s claim, according to the defendant, expired on or about the 15th of February 2022, this being 3 years from the signature date. The plaintiff on the other hand argues that the cause of action arose on the 29th of February 2024 when forfeiture of the shares was confirmed by the Supreme Court and not on the 15th of February 2019 when the agreement of sale was signed. In terms of section 15(d) and section 16 (1) of the Prescription Act [Chapter 8:11] the period of prescription shall be three years, and prescription shall commence to run as soon as a debt is due. Section 16 (3) of the Prescription Act provides that the running of prescription can only commence upon the creditor becoming aware of the debtor’s identity and all factors surrounding the claim. The provision reads: “A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.” In Nan Brooker v Mudhanda & Anor 2018 (1) ZLR 33 (S) at 35G-36A the court remarked that: “In order to determine the question of prescription the court first had to make a finding on the cause of action upon which the respondent’s claim was premised and when specifically, the cause of action arose.” The court in Kanjere v Old Mutual Life Assurance Company Limited SC 31/24 observed that: “The need for the entire set of facts entitling one to make a claim cannot be over emphasised. It can be construed from case law that once the cause of action, which is the entire set of facts entitling one to make a claim, is established, and it is ascertained when the cause of action arose, the Court can safely determine whether or not the debt has prescribed……… What can be deduced from the Act is that unless prescription is delayed and interrupted as envisaged in ss 17, 18 and 19 of the Act, it commences and or continues to run. Once the creditor is aware of the facts from which the debt arises, prescription commences to run as soon as the debt is due. It is settled that once the entire set of facts which entitle a party to claim exists, then one should claim a due debt to avoid being affected by prescription.” The court in Nan Brooker v Mudhanda & Another and Pierce v Mudhanda & Another SC 5/18 further stated that: “In a plea of prescription, the onus is on the defendant to show that the claim is prescribed but if in reply to the plea the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived.” As stated above, prescription shall run as soon as the debt is due.In casu, the debt became due when the defendant failed to transfer shares to the plaintiff. The cause of action arose when the forfeiture of shares was confirmed by the Supreme Court. The matter has not prescribed, the special plea of prescription should thus be dismissed. It can possibly not be correct that prescription started to run on the day the parties appended their signature to the agreement. This is for the simple reason that no cause of action arose at that time until it became apparent that transfer was no longer possible.The defence of prescription must fail. Whether or not the Plaintiff is entitled to the US$ 34 000.00 at the rate of 1:1 in terms of S1 33 of 2019 In its opposing papers the defendant alleges that the amount owing is payable in RTGS dollars at the rate of 1:1 by operation of law as per S133 of 2019.Section 4 of SI 33 of 2019 stipulates that : “Issuance and legal tender of RTGS Dollars and savings For the purposes of section 44C of the principal Act as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (“the effective date”)— that the Reserve Bank has, with effect from the effective date, issued an electronic currency called the RTGS Dollar.that Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C (2) of the principal Act), immediately before the effective date, shall from the effective date be deemed to be opening balances in RTGS dollars at par with the United States dollar; andthat such currency shall be legal tender within Zimbabwe from the effective date; andthat, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar; andthat after the effective date any variance from the opening parity rate shall be determined from time to time by the rate at which authorised dealers under the Exchange Control Act exchange the RTGS Dollar for the United States dollar on a willing-seller willing-buyer basis; andthat every enactment in which an amount is expressed in United States dollars shall, on the and after effective date, be construed as reference to the RTGS dollar, at parity with the United States dollar, that is to say, at a one-to-one rate.” (32) The court in Yuesheng v Chinyadza HH 24/24 remarked on S1 33 of 2019 and said: “On 22 February 2019, the Government of Zimbabwe introduced a new currency called the Real Time Gross Settlement Electronic dollar (RTGS), through the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations, 2019, (hereinafter referred to as “S.I. 33/19” or the instrument). The instrument was gazetted on 22 February 2019. That date became the first effective date as defined in the Finance Act (No.2) Act, No.7 of 2019 (the Finance Act). The new currency ran parallel with other currencies that were accepted as legal tender, under what was known then as the multi-currency basket. On 24 June 2019, the Minister of Finance and Economic Development gazetted Statutory Instrument 142 of 2019 (Reserve Bank of Zimbabwe (Legal Tender) Regulations, 2019) (SI 142/2019). The 24th of June 2019 became the second effective date as defined in the Finance Act. This instrument abolished the multi currencies and declared the ZWL to be the sole legal tender in Zimbabwe. The two instruments were later incorporated into the Finance Act, which was gazetted on 21 August 2019.” The court in Zambezi Gas Zimbabwe (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor SC 3/20 dealt with SI 33 of 2019. The court stipulated that: “The values referred to in s 4(1)(d) of S.I. 33/19 show that after a one-to-one conversion the RTGS dollar takes the value and character of the United States dollar. The effect of the phrase “on and after” is that the conversion of the values of “all assets and liabilities” which were valued and expressed in United States dollars immediately before the effective date to values in RTGS dollars at a rate of one United States dollar to one RTGS dollar would apply at the time the value of the asset or liability is liquidated or discharged. Assets and liabilities covered by s 4(1)(d) of S.I. 33/19 are of a sui generis nature. They accrue immediately before the effective date and continue to exist after the effective date…………. Section 4(1)(d) of S.I. 33/19 states that for such sui generis liabilities, including judgment debts, a rate of one-to-one between the United States dollar and the RTGS dollar will apply. The transactions entered into after the effective date would fall under the provisions of section 4(1)(e) of S.I. 33/19.” In the National Oil Infrastructure Company of Zimbabwe v AC Controls Private Limited & Anor SC 12/25 the court stated: “It is this Court`s view that the failure to apply provisions of SI 33 of 2019, and the departure from the fundamental principles of law, the decision by arbitrator went beyond being wrong to offending public policy. The disregard of the relevant SI would not only render the prevailing economic monetary policy ineffectual but disrupt the uniformity of the law. Further, granting of an award outside the law based on what one viewed as fair and just would lead to total economic chaos, with the rate of one as to one being selectively applied on individual preferences. These factors when cumulatively considered, point to the second respondent’s decision as going beyond mere incorrectness or faultiness. On that note, the court a quo ought to have made a finding that the arbitrator misinterpreted the law and as such the award could not stand.” The Constitutional Court in Unifreight Africa Limited v Mashinya CCZ13/24 states that: “……Thus, the applicant’s liability for damages as expressed in United States dollars arose and became due and payable on that date, i.e. before the effective date of S.I. 33 of 2019. Consequently, the damages due to the respondent were to be calculated in United States dollars as at the date of her unlawful dismissal. However, in terms of s 4(1)(d) of S.I. 33 of 2019, they became payable in Zimbabwean dollars at the parity rate of one-to-one, irrespective of the date of payment………….” The Constitutional Court further stated that: “……. 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.” In terms of s4 (1) (d) of S.I 33 of 2019, the plaintiffs purchase price is converted to the rate USD 1: 1 with the RTGS. The plaintiff is therefore entitled to recover the purchase price as per S.1 33 of 2019 as cited in the above cases in Zimbabwean dollars. However as per the Constitutional Court decision in Unifreight Africa Limited v Mashinya CCZ 13/24, the plaintiff is entitled to the refund of the purchase price in Zimbabwean dollars but not at parity rate of one to one, but at the interbank rate prevailing at the time of payment. The plaintiff claimed costs on the ordinary scale in the summons. Costs being claimed at a higher scale in the heads are not justified. DISPOSITION The preliminary point on prescription has no merit and is therefore dismissed.The defendant shall pay the plaintiff the sum of USD 34 000 or its equivalent in local currency at the prevailing interbank rate on the date of payment.The defendant is to pay the costs of suit. Manzunzu J: …………………………………………… Wintertons, the plaintiff’s legal practitioners Rubaya and Chatambudza, defendant’s legal practitioners 4 HH 405 - 25 HCH 2236/24 4 HH 405 - 25 HCH 2236/24 THE TRUSTEES FOR THE TIME BEING OF THE MTU FAMILY TRUST versus TAPUWA EVANS CHIDEMO HIGH COURT OF ZIMBABWE MANZUNZU J HARARE, 12 June & 8 July 2025 Civil Trial – Stated Case P Mwandura, for the plaintiff T. L Mapuranga, for the defendant MANZUNZU J: INTRODUCTION This is a summons commencing action for payment of USD$34 000 being the refund of the purchase price paid by the plaintiff to the defendant pursuant to a sale and purchase agreement. The matter proceeded as a stated case to be argued only on two issues. The first being prescription and the second being whether the provisions of SI 33 of 2019 is applicable to this case. BACKGROUND The matter was converted to a special case in terms of Rule 52 of the High Court Rules, 2021. The plaintiff is the Trustees for the Time Being of the MTU Family Trust, a trust formed in terms of the laws of Zimbabwe. The defendant is Tapuwa Evans Chidemo, a male adult. On or about the 15th of February 2019, the plaintiffs and the defendant entered into an agreement of sale in terms of which the defendant sold 2500 ordinary shares of $2.00 each in a company known as Derwent Lodge Private Limited to the plaintiff. The shares were coupled with the right of possession and occupation in respect of Flat number 19 Derwent Lodge situated at Josiah Chinamano Avenue, Harare, (the property). The agreed purchase price was the sum of US$ 36 000.00. Pursuant to the signing of the agreement the plaintiff paid the sum of US$36 000.00. The plaintiff took occupation of the immovable property round about the 15th of March 2019. In terms of the agreement of sale, the defendant was obliged to effect the transfer of the shares within a reasonable time. Before the defendant could effect the transfer of shares to the plaintiff, the National Prosecuting Authority (NPA) instituted court proceedings in case number HC 7264/19 seeking an order for forfeiture for the property, on the basis that it constituted tainted property. In HC 7264/19 the defendant was unsuccessful in defending the proceedings and the shares were forfeited to the State in terms of the judgment of the High Court, which judgment was also confirmed by the Supreme Court in SC 321/22 on the 29th of February 2024. The defendant thus lost the right to the shares and became incapable of transferring valid title in the shares to the plaintiff and guaranteeing plaintiff’s right to possession and occupation of the property. On the 3rd of April 2024, the plaintiff rescinded the Sale Agreement and demanded a refund of the purchase price. The plaintiff recovered the sum of US$ 2000.00 from Mapaya and Associates, being a portion of the purchase price that had been deposited in trust pending Capital Gains Tax assessment. The plaintiffs now institutes summons action against the defendant for the recovery of the purchase price in the sum of US$34.000.00 in respect of the shares to the plaintiff. ISSUES FOR DETERMINATION Whether or not the matter has prescribed Whether or not the plaintiff is entitled to the US$ 34 000.00 at the rate of 1:1 in terms of S1 33 of 2019. THE LAW Whether The Matter Has Prescribed The defendant raises the argument that since the agreement was signed on or about the 15th of February 2019 any claims stemming from it ought to have been made within 3 years of the signature date. The plaintiff’s claim, according to the defendant, expired on or about the 15th of February 2022, this being 3 years from the signature date. The plaintiff on the other hand argues that the cause of action arose on the 29th of February 2024 when forfeiture of the shares was confirmed by the Supreme Court and not on the 15th of February 2019 when the agreement of sale was signed. In terms of section 15(d) and section 16 (1) of the Prescription Act [Chapter 8:11] the period of prescription shall be three years, and prescription shall commence to run as soon as a debt is due. Section 16 (3) of the Prescription Act provides that the running of prescription can only commence upon the creditor becoming aware of the debtor’s identity and all factors surrounding the claim. The provision reads: “A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.” In Nan Brooker v Mudhanda & Anor 2018 (1) ZLR 33 (S) at 35G-36A the court remarked that: “In order to determine the question of prescription the court first had to make a finding on the cause of action upon which the respondent’s claim was premised and when specifically, the cause of action arose.” The court in Kanjere v Old Mutual Life Assurance Company Limited SC 31/24 observed that: “The need for the entire set of facts entitling one to make a claim cannot be over emphasised. It can be construed from case law that once the cause of action, which is the entire set of facts entitling one to make a claim, is established, and it is ascertained when the cause of action arose, the Court can safely determine whether or not the debt has prescribed……… What can be deduced from the Act is that unless prescription is delayed and interrupted as envisaged in ss 17, 18 and 19 of the Act, it commences and or continues to run. Once the creditor is aware of the facts from which the debt arises, prescription commences to run as soon as the debt is due. It is settled that once the entire set of facts which entitle a party to claim exists, then one should claim a due debt to avoid being affected by prescription.” The court in Nan Brooker v Mudhanda & Another and Pierce v Mudhanda & Another SC 5/18 further stated that: “In a plea of prescription, the onus is on the defendant to show that the claim is prescribed but if in reply to the plea the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived.” As stated above, prescription shall run as soon as the debt is due. In casu, the debt became due when the defendant failed to transfer shares to the plaintiff. The cause of action arose when the forfeiture of shares was confirmed by the Supreme Court. The matter has not prescribed, the special plea of prescription should thus be dismissed. It can possibly not be correct that prescription started to run on the day the parties appended their signature to the agreement. This is for the simple reason that no cause of action arose at that time until it became apparent that transfer was no longer possible. The defence of prescription must fail. Whether or not the Plaintiff is entitled to the US$ 34 000.00 at the rate of 1:1 in terms of S1 33 of 2019 In its opposing papers the defendant alleges that the amount owing is payable in RTGS dollars at the rate of 1:1 by operation of law as per S133 of 2019. Section 4 of SI 33 of 2019 stipulates that : “Issuance and legal tender of RTGS Dollars and savings For the purposes of section 44C of the principal Act as inserted by these regulations, the Minister shall be deemed to have prescribed the following with effect from the date of promulgation of these regulations (“the effective date”)— that the Reserve Bank has, with effect from the effective date, issued an electronic currency called the RTGS Dollar. that Real Time Gross Settlement system balances expressed in the United States dollar (other than those referred to in section 44C (2) of the principal Act), immediately before the effective date, shall from the effective date be deemed to be opening balances in RTGS dollars at par with the United States dollar; and that such currency shall be legal tender within Zimbabwe from the effective date; and that, for accounting and other purposes, all assets and liabilities that were, immediately before the effective date, valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on and after the effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar; and that after the effective date any variance from the opening parity rate shall be determined from time to time by the rate at which authorised dealers under the Exchange Control Act exchange the RTGS Dollar for the United States dollar on a willing-seller willing-buyer basis; and that every enactment in which an amount is expressed in United States dollars shall, on the and after effective date, be construed as reference to the RTGS dollar, at parity with the United States dollar, that is to say, at a one-to-one rate.” (32) The court in Yuesheng v Chinyadza HH 24/24 remarked on S1 33 of 2019 and said: “On 22 February 2019, the Government of Zimbabwe introduced a new currency called the Real Time Gross Settlement Electronic dollar (RTGS), through the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars)) Regulations, 2019, (hereinafter referred to as “S.I. 33/19” or the instrument). The instrument was gazetted on 22 February 2019. That date became the first effective date as defined in the Finance Act (No.2) Act, No.7 of 2019 (the Finance Act). The new currency ran parallel with other currencies that were accepted as legal tender, under what was known then as the multi-currency basket. On 24 June 2019, the Minister of Finance and Economic Development gazetted Statutory Instrument 142 of 2019 (Reserve Bank of Zimbabwe (Legal Tender) Regulations, 2019) (SI 142/2019). The 24th of June 2019 became the second effective date as defined in the Finance Act. This instrument abolished the multi currencies and declared the ZWL to be the sole legal tender in Zimbabwe. The two instruments were later incorporated into the Finance Act, which was gazetted on 21 August 2019.” The court in Zambezi Gas Zimbabwe (Pvt) Ltd v NR Barber (Pvt) Ltd & Anor SC 3/20 dealt with SI 33 of 2019. The court stipulated that: “The values referred to in s 4(1)(d) of S.I. 33/19 show that after a one-to-one conversion the RTGS dollar takes the value and character of the United States dollar. The effect of the phrase “on and after” is that the conversion of the values of “all assets and liabilities” which were valued and expressed in United States dollars immediately before the effective date to values in RTGS dollars at a rate of one United States dollar to one RTGS dollar would apply at the time the value of the asset or liability is liquidated or discharged. Assets and liabilities covered by s 4(1)(d) of S.I. 33/19 are of a sui generis nature. They accrue immediately before the effective date and continue to exist after the effective date…………. Section 4(1)(d) of S.I. 33/19 states that for such sui generis liabilities, including judgment debts, a rate of one-to-one between the United States dollar and the RTGS dollar will apply. The transactions entered into after the effective date would fall under the provisions of section 4(1)(e) of S.I. 33/19.” In the National Oil Infrastructure Company of Zimbabwe v AC Controls Private Limited & Anor SC 12/25 the court stated: “It is this Court`s view that the failure to apply provisions of SI 33 of 2019, and the departure from the fundamental principles of law, the decision by arbitrator went beyond being wrong to offending public policy. The disregard of the relevant SI would not only render the prevailing economic monetary policy ineffectual but disrupt the uniformity of the law. Further, granting of an award outside the law based on what one viewed as fair and just would lead to total economic chaos, with the rate of one as to one being selectively applied on individual preferences. These factors when cumulatively considered, point to the second respondent’s decision as going beyond mere incorrectness or faultiness. On that note, the court a quo ought to have made a finding that the arbitrator misinterpreted the law and as such the award could not stand.” The Constitutional Court in Unifreight Africa Limited v Mashinya CCZ13/24 states that: “……Thus, the applicant’s liability for damages as expressed in United States dollars arose and became due and payable on that date, i.e. before the effective date of S.I. 33 of 2019. Consequently, the damages due to the respondent were to be calculated in United States dollars as at the date of her unlawful dismissal. However, in terms of s 4(1)(d) of S.I. 33 of 2019, they became payable in Zimbabwean dollars at the parity rate of one-to-one, irrespective of the date of payment………….” The Constitutional Court further stated that: “……. 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.” In terms of s4 (1) (d) of S.I 33 of 2019, the plaintiffs purchase price is converted to the rate USD 1: 1 with the RTGS. The plaintiff is therefore entitled to recover the purchase price as per S.1 33 of 2019 as cited in the above cases in Zimbabwean dollars. However as per the Constitutional Court decision in Unifreight Africa Limited v Mashinya CCZ 13/24, the plaintiff is entitled to the refund of the purchase price in Zimbabwean dollars but not at parity rate of one to one, but at the interbank rate prevailing at the time of payment. The plaintiff claimed costs on the ordinary scale in the summons. Costs being claimed at a higher scale in the heads are not justified. DISPOSITION The preliminary point on prescription has no merit and is therefore dismissed. The defendant shall pay the plaintiff the sum of USD 34 000 or its equivalent in local currency at the prevailing interbank rate on the date of payment. The defendant is to pay the costs of suit. Manzunzu J: …………………………………………… Wintertons, the plaintiff’s legal practitioners Rubaya and Chatambudza, defendant’s legal practitioners