AMNESTY INTERNATIONAL ZIMBABWE v COUSIN ZILALA (328 of 2025) [2025] ZWHHC 328 (30 May 2025)

13 HH 328-25 HCH 3026/20 AMNESTY INTERNATIONAL ZIMBABWE versus COUSIN ZILALA HIGH COURT OF ZIMBABWE DEMBURE J HARARE; 28, 29 & 30 January, 17 & 18 February & 30 May 2025 Civil Trial T R Mafukidze for the plaintiff N T Marufu for the defendant DEMBURE J: INTRODUCTION On 17 June 2020, the plaintiff, Amnesty International Zimbabwe, instituted this action against Cousin Zilala, who was cited as the first defendant, Sibongile Zimbeva and Takesure Musiiwa, the second and third defendants, respectively. The plaintiff’s claim is for the following relief: “(a) Payment of the total sum of US$148,609.08 by first defendant being the amount misappropriated and improperly benefited by the first defendant at the expense of the plaintiff. (b) Payment of the total sum of US$42,344.82 by second defendant being the amount misappropriated and improperly benefited by the second defendant. (c) Payment of the sum of ZWL101, 748, 29 by the defendants jointly and severally liable the one paying the other to be absolved being the total tax liability suffered by the plaintiff for conduct and or omissions of the defendants. (d) Payment of the sum of US$51,725.00 by the defendants jointly and severally liable the one paying the other to be absolved being the total of unlawful payments paid to staff bank accounts outside the plaintiff’s payroll. (e) Payment of the sum of US$330,000.00 jointly and severally liable the one paying the other to be absolved being financial prejudice suffered by plaintiff arising from improper payments made to companies known as Al Shams Global Limited and KMH. (f) Reimbursement of 61,880 litres of fuel by the defendants jointly and severally liable the one paying the other to be absolved being fuel unlawfully and irregularly drawn by staff members for the period from 2015 to February 2018 and fuel deficit unaccounted for or alternatively payment of the replacement value of the fuel at the time of the judgment. (g) Interest on the principal amounts claimed herein at the prescribed rate from first defendant 2018 to date of payment in full. (h) Payment of costs of suit on a legal practitioner and client scale.” Before trial, the plaintiff withdrew the claim against the second and third defendants. The first defendant accordingly remained the sole defendant in this suit. Of the plaintiff’s claims, only claims outlined in para(s) (a); (c); (d); (e) and (f) as well as for interest and costs of suit under para(s) (g) and (h) respectively, remained after the withdrawal of the case against the other defendants. These are the claims subjected to the trial proceedings, as the defendant denied liability. BACKGROUND FACTS It is common cause that the plaintiff is a registered Non-Governmental Organisation (NGO) based in Zimbabwe and is part of the Amnesty International movement. It is involved in the protection and enhancement of human rights in Zimbabwe. Its operations are based on and supported by donor funding. The plaintiff issued summons against three defendants, with Cousin Zilala cited as the first defendant. The second defendant, Sibongile Zimbeva (“Ms Zimbeva”), was the Finance and Office Administrator. The third defendant, Takesure Musiiwa (“Mr Musiiwa”), was a signatory to all the plaintiff’s bank accounts during the period covered by the forensic audit and also its Board Chairperson from 20 January 2018. After the case was withdrawn against the second and third defendants, Cousin Zilala is now the sole defendant. The defendant was employed as the plaintiff’s executive director from 1 May 2007 to 21 March 2018, when he resigned from employment. On 8 June 2018, the plaintiff engaged Deloitte Advisory Services (Pvt) Ltd, an accounting and auditing firm, to carry out a forensic audit or investigation for the period from 1 January 2015 to 28 February 2018. On 8 November 2018, the said audit firm submitted its forensic report to the plaintiff. The said forensic audit report titled “Amnesty International Zimbabwe Forensic Investigation Findings” was part of the plaintiff’s bundle of documents. It was tendered as an exhibit with the consent of the defendant. The plaintiff’s claims are in delict based on pure economic loss. They arise from the alleged various wrongful or unlawful acts and omissions of the defendant during his tenure as the executive director, resulting in serious financial prejudice to the plaintiff. The plaintiff seeks to recover the value of the financial prejudice or loss it allegedly suffered from the defendant. The financial losses, it was alleged, were unravelled by the forensic audit. The plaintiff persisted with the main claims in para(s) (a); (c); (d); (e) and (f) of the summons and declaration together with the ancillary relief for interest and costs of suit. It was averred for the plaintiff that some of the delicts were intentional, while some were based on negligence. At the trial, the plaintiff led evidence from the forensic auditor, Mr Wellington Mugabe (“Mr Mugabe” or “the auditor”) and Jesica Pwiti (“Ms Pwiti”), the plaintiff’s former acting director. The defendant denied liability for the plaintiff’s claims. He contended that the plaintiff’s claims in United States Dollars are unlawful as they should be in RTGS dollars due to the effect of the provisions of ss 22(1) and 23(1) as read with subsection (3) of the Finance Act (No. 2), 2019 Act No. 7 of 2019 (“the Act”). He further pleaded that the audit report was a sham process whose outcome was manipulated and influenced by the plaintiff. He contended that the plaintiff did not suffer any loss as a result of his conduct since everything was done procedurally in terms of the plaintiff’s policies and standards. He, therefore, prayed for the dismissal of the claim for want of legality and lack of merit with costs on a legal practitioner and client scale. He also testified in his own defence. ISSUES FOR TRIAL The triable issues were stated in the parties’ joint pre-trial conference minute as follows: “1.1 Whether or not the defendants are indebted to the plaintiff and if so, to what extent? 1.2 Whether or not the claim by the plaintiff can be granted in United States dollars as claimed?” These issues must now be resolved in the context that the case is against the defendant alone. I must deal with the second issue first to determine if the claims in foreign currency are lawful and can be granted in that currency, before I determine whether the defendant is liable and to what extent. 1. WHETHER OR NOT THE CLAIM CAN BE GRANTED IN UNITED STATES DOLLARS The issue arises from the defendant’s plea, where it was pleaded as follows: “1. Plaintiff’s claims sound[ing] in money denominated in USD currency are contrary to and in violation of the law; and therefore are unlawful to the extent that the claims remain in USD currency. 2. In terms of section 22 (1) (a) of Part VI of the Finance (No. 2) Act No. 7 of 2019, the electronic currency, RTGS Dollar was issued as the lawful currency of the Republic of Zimbabwe with effect from 22nd February 2019 (as defined in section 20 of the same Part VI) as validated by section 22(3) of the same Part VI. 3. Thus, per section 22 (I) (b), (c), (d) and (f), this RTGS Dollar became legal tender within Zimbabwe with effect from 22nd February 2019 and replaced the USD currency at par (one-to-one rate 1 : 1) as opening RTGS balances on that date. 4. Effectively, the USD currency ceased to exist and operate within Zimbabwe on midnight 22nd February 2019 to all transactions, judgment debts and all obligations except in respect of specified transactions mentioned in subsection 4 relating to Nostro foreign currency accounts and taxation charges levied in foreign currency. 5. Section 22 (l) (e) specifically provides for regulation and applies to authorised dealers' transactions in the exchange of RTGS dollar for the USD on a willing-seller wiling-buyer basis as validated by section 22 (3) of the same Part VI. 6. Furthermore, in terms of section 23 (1) of Part VI of the Finance (No. 2) Act No. 7 of 2019, RTGS Dollar being the lawfully issued currency of the Republic of Zimbabwe, is the sole legal tender in any transaction in Zimbabwe with effect from the second effective date, being 24th June 2019. 7. This, however, does not apply only to specified transactions mentioned in subsection 4 relating to Nostro foreign currency accounts and taxation charges levied in foreign currency. 8. Section 23 (3) of the said Part VI clearly declares that references to Zimbabwean dollar as the only currency and legal tender, also means bond notes or coins and the electronic currency, RTGS dollar, all being at par (one-to-one rate 1:1). 9. It therefore follows without doubt and ambiguity that at any claim sounding in money should be in RTGS Dollar or Zimbabwean dollar, which is the sole currency and sole legal tender in Zimbabwe with effect from 22nd February 2019. 10. Consequently, the plaintiff’ claim/s denominated in USD currency are unlawful, must therefore fail and be dismissed with costs on a legal practitioner and client scale for want of legality.” SUBMISSIONS MADE BY THE PARTIES It was submitted for the defendant that the plaintiff’s claim is unlawful for want of compliance with ss 22 and 23 of the Finance (No. 2) Act No. 7/2019 (“the Act”). The plaintiff issued summons claiming, inter alia, payment of US$148,609.08, being the amount misappropriated by the defendant, US$51,725.00 paid to staff bank accounts outside the payroll, and US$330,000.00 being improper payments made to Al Shams Global Limited and KHM. These claims were made in United States dollars contrary to the provisions of the Act. Mr Marufu further argued that as of 22 February 2019, the RTGS dollar became the lawful currency of Zimbabwe. Reference was made to ss 22(1) and (2) and 23(1) of the Act. It was also argued that in terms of these provisions, any debt owed or incurred before and after the coming into effect of the Act was claimable in RTGS dollars at a rate of one-to-one. The plaintiff's claims made in United States dollars should fail for their failure to comply with the provisions of the law. Reference was made to the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC 3/20, particularly at p 12. The argument was also that, given that the plaintiff’s claim is outlined in a foreign currency, it is inconsistent with the law and should be dismissed with costs. The liability, if any, arose when the audit report was completed and when the plaintiff issued its summons. Once it is ascertained that the liability to pay predates the effective date, 22 February 2019, the plaintiff’s claim is affected by s 4(1)(d) of SI 33/2019 and s 22(1)(d) of the Act, 2019 and the court must give effect to the provisions of the law. Reference was also made to the case of Exodus & Company (Pvt) Ltd v Shavi HH 510/21. Counsel also submitted that the plaintiff’s funds transferred to KHM and Al Shams Global Limited were not held by the plaintiff at or after the coming into effect of SI 33/2019. The transactions had long taken effect and had been accounted for. Even applying the principle of restitution in criminal matters, the plaintiff’s claim stands to suffer at the hands of the Act. See S v Harry HH 36/22 and S v Pemhiwa & Ors HH 717/18. Per contra, it was argued for the plaintiff that the Supreme Court settled the issue in Delta Beverages (Pvt) Ltd v Sarah Borcherds and Julian William Gerard Borcherds SC 494/24. The court overturned a High Court judgment in an ex tempore judgment and ordered that the respondents should pay to Delta the amount of US$1,031,697.34 in United States dollars or the equivalent in local ZIG equivalent at the prevailing rate of exchange on the date of payment, which is the amount the Borcherds stole or unlawfully transferred from Delta’s account during the period from 3 November 2016 to 21 February 2019. The first respondent had admitted liability to the appellant and paid the sum of ZWL1,093,648.12 on 20 January 2020. The High Court had applied the provisions of s 22(1)(d) of the Finance (No. 2) Act and held that they had discharged their debt. Mr Mafukidze further argued that in terms of s 21(2)(a) of the Act, funds held in nostro foreign currency account were exempted. The import of the exemption is that if the funds were stolen from the plaintiff or abused were held in nostro foreign currency accounts, it would not affect the plaintiff’s claim in USD. Funds held in foreign currencies continued to be designated in such foreign currencies. There was no conversion of such amounts to 1:1. The funds (US$330,000.00) were withdrawn from its FCA nostro account held with Ecobank. They were all denominated in foreign currency, and the balances were never the subject of conversion as stated by the law. In terms of s 21(2)(b), foreign loans and obligations denominated in any foreign currency shall continue to be payable in such currency. He further submitted that the US$330,000.00 that was stolen by the defendant in Zambia and transferred to Botswana into the accounts of KHM and Al Shams Global is a foreign obligation. It must be repaid in the currency of the loss. If property is stolen, the plaintiff’s damages are assessed as the market value of the property at the time and place of the loss. The tax obligation is the only amount payable in local currency. Should the court find that any of the USD-denominated amounts (excluding the US$330,000.00 in Zambia) should be paid in local currency, it can only order that the amount be paid at the ruling exchange rate as at the date of payment. The court is bound by the Supreme Court decision in the Delta case. Counsel went on to chronicle the legislative and policy history from the Finance Act (No.2) of 2009, culminating in the Finance Act (No. 2), 2019. It was argued that the assets and liabilities that existed immediately before 22 February 2019, deemed to be values in RTGS dollars at the rate of one-to-one to the United States dollar, do not include liabilities yet to be established in a court of law, such as arising from theft and negligence. Reference was made to the Zambezi Gas judgment where the Supreme Court held that s 4(1)(d) of SI 33/2019 would not apply to the value of assets and liabilities immediately before the effective date which was still to be assessed by the application of the agreed formula. There is no judgment debt. Liability is yet to be determined by the court hearing this action. The quantum of liability is yet to be determined. There is no judgment that could have been converted to local currency. A judgment debt is defined in s 20 of the Act. It was also argued that the defendant cannot benefit from his own wrong. Reference was made to the cases of Standard Chartered Bank of Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S) at 389G and Wimbledon Lodge (Pty) Ltd v Gore NO & Ors 2003 (5) SA 315 (SCA). Mr Mafukidze argued that the plaintiff would be prejudiced in value if the amount stolen in USD is paid in the form of RTGS dollars. The purpose of the Act could not have been to benefit criminal or delictual conduct. There is nothing in the language of the statute and the Directive that remotely suggests a purpose that can be aligned with fraudulent activity. On proper interpretation of the provisions of the statute, reference was made to various cases, including Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S). The defendant must make good the difference between the value of the plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed. See Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at p 917B. In the plaintiff’s replying submissions, the order issued by the Supreme Court in the case of Delta Beverages (Pvt) Ltd v Borcherds & Anor was quoted verbatim. It was argued that the respondent’s argument that the stolen money was converted at 1:1 in 2019 and settled was dismissed. The amounts stolen from the plaintiff’s account in Zambia are repayable in USD currency. It is not subject to conversion as it was foreign currency transferred from outside Zimbabwe. Counsel also submitted that if the court finds the amount convertible, it can order that the amounts are payable in USD or the local equivalent at the prevailing rate of exchange on the date of payment. ANALYSIS OF THE LAW AND THE FACTS The relevant provisions of the Finance (No. 2) Act, 2019, No. 7 of 2019 (“the Act”) are s 22(d) and (e), s 22(4) and also s 20. The relevant parts of s 22 read as follows: “22 Issuance and legal tender of RTGS dollars, savings, transitional matters and validation (1) Subject to section 5, for the purposes of section 44C of the principal Act, the Minister shall be deemed to have prescribed the following with effect from the first effective date— (a) that the Reserve Bank has, with effect from the first effective date, issued an electronic currency called the RTGS dollar; and (b) 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 first effective date, shall from the first effective date be deemed to be opening balances in RTGS dollars at par with the United States dollar; and (c) that such currency shall be legal tender within Zimbabwe from the first effective date; and (d) that, for accounting and other purposes(including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first 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 the first effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar; and (e) that after the first effective date any variance from the opening parity rate shall be determined from time to time by the rate or rates at which authorised dealers exchange the RTGS dollar for the United States dollar on a willing-seller willing-buyer basis; and (f) every enactment in which an amount is expressed in United States dollars shall, on the first effective date (but subject to subsection (4), 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. (2) From the first effective date, the bond notes and coins referred to in the Reserve Bank of Zimbabwe Amendment Act, 2017 (No. 1 of 2017) shall continue to be legal tender within Zimbabwe, exchangeable with the RTGS dollar at parity with each bond note unit, that is to say, at a one-to-one rate. (3) … (4) For the purposes of this section— (a) it is declared for the avoidance of doubt that financial or contractual obligations concluded or incurred before the first effective date, that were valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on the first effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar …” (Emphasis added) See also s 23 of the Act which provides that the Zimbabwean dollar shall be the sole legal tender. It reads: “23 Zimbabwe dollar to be the sole currency for legal tender purposes from second effective date (1) For the avoidance of doubt, but subject to subsection (4), it is declared that with effect from the second effective date, the British pound, United States dollar, South African rand, Botswana pula and any other foreign currency whatsoever are no longer legal tender alongside the Zimbabwe dollar in any transactions in Zimbabwe. (2) Accordingly, the Zimbabwe dollar shall, with effect from the second effective date, but subject to subsection (4), be the sole legal tender in Zimbabwe in all transactions.” (Emphasis added) The above provisions incorporated the provisions of 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, SI 33 of 2019 and the Reserve Bank of Zimbabwe (Legal Tender) Regulations, 2019, SI 142 of 2019. The Supreme Court has already interpreted the applicable provisions' legal effect in several judgments, including in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N. R. Barber (Pvt) Ltd & Anor 2020 (1) ZLR 138 (S). It is now settled that a delict cannot be categorised as an asset or liability that could be convertible into RTGS dollars in terms of s 22(1)(d) as read with ss 20 and 22(4)(a) of the Act until it is voluntarily accepted as such by the wrongdoer or until such acceptance is foisted upon the wrongdoer by a court of competent jurisdiction. Delictual claims are excluded from the effect of the said provisions, even if they arose before the effective date. The delict remains a claim until computed or quantified, or the liability is fixed and imposed by the court. The value of the loss becomes an asset or a liability and a judgment debt as defined in s 20 of the Act once the court has assessed the loss and ordered payment. This legal position was settled in Ingalulu Investments & Anor v NRZ & Anor SC 42/22, where the Supreme Court authoritatively held that: “Section 22 (1) (d) and (e) as read with s 22 (4) (a) of the Act prescribe that the values of all assets and liabilities that were expressed or any financial or contractual obligations, other than foreign obligations, that were concluded or incurred in United States dollars on or before 22 February 2019 (the effective date or cut-off date), were deemed to have been expressed, concluded or incurred in RTGS dollars at the rate of one-to-one to the United States dollar. Further, that the value of all assets accrued or liabilities incurred after the cut-off date would be payable at the prevailing interbank rate of the local currency to the United States dollar. Section 20 of the Act extends the application of the above cited provisions of the Act to judgment debts. In addition, the ratio decidendi in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC 3/20, was that, in terms of the relevant provisions of the Act, a judgment debt denominated in United States dollars on or before the cut-off date would be liquidated at the parity rate of one-on-one to the RTGS dollar. It is trite that regard must be had to the text, context and purpose of the provisions and the broader architectural design of the Act. The relevant provisions must, per force, be construed as a whole and not in piecemeal fashion. It is also axiomatic that a delict, unlike a financial or contractual obligation, cannot be categorized as an asset or liability until it is voluntarily accepted as such by the wrongdoer or until such acceptance is foisted upon the wrongdoer by a court of competent jurisdiction. This is because a delict is committed and does not accrue like an asset nor is it incurred like a liability. In accounting terms, an asset or a liability has an ascertainable monetary value, which is recorded in the relevant books or statements of account. This is the position that pertains to a judgment debt. It constitutes an asset in the books of the judgment creditor and, conversely, a liability in the hands of a judgment debtor. Neither of these parties can treat a delictual claim as an asset or a liability. They can only do so after a competent court of law has made a determination on whether the claim establishes a liability and thereafter assesses the measure of such a liability. In any event, only a judgment debt and not a delictual claim can be executed in the manner contemplated in s 20 of the Act. It is for these reasons that we agree with Mr Tshuma that the text, context and purpose of both the relevant provisions and the broader scheme of the Act incorporates a financial or contractual obligation concluded or incurred before the effective date and a judgment debt made on or before the effective date and not a mere delictual claim lodged on or before that date into the ranks of assets and liabilities. We are not persuaded by the contrary contentions made by Mr Mazibuko that the text of the Act is wide enough to include delictual claims lodged before the effective date into the category of assets and liabilities that are payable at the one-on-one parity rate.” (My emphasis) In casu, the plaintiff’s claims are delictual. The plaintiff alleged various acts and omissions constituting wrongful conduct against the defendant, which it further alleged caused it to suffer pure economic loss. It was alleged that these were unravelled in the forensic audit. Accordingly, its claims being delictual, fall squarely within what the Supreme Court has already settled. The delicts do not fall in the category of assets or liabilities, which could be deemed to be in local currency at the parity rate in terms of the Act. The delicts have not been accepted by the defendant, nor has the acceptance been foisted on the defendant by the court. They cannot, therefore, constitute a debt or judgment debt as defined in s 20 of the Act. This surely may be the basis of the decision in the Delta Beverages case supra. I say may be, because this court was not furnished with the reasons for the judgment in that matter. In any case, from the Ingalulu Investments case, supra, it is not in doubt that the issue has been settled by binding precedent. This court is bound to follow the decision of the Supreme Court on the same issue. Thus, in Shah v Nherera SC 55/24 Chatukuta Ja made the following remarks: “26. The Supreme Court had spoken. Decisions of this Court are absolute as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature. The court in Kasukuwere v Mangwana SC 78/23, at p 17, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ) at 757 A wherein it was held that: “What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct. The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.” (Own emphasis). 27. The Supreme Court decision, being final was correct. Because of the principle of stare decisis, the decision was binding on the court a quo. The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court. See Denhere v Denhere & Anor CCZ 9/19, Diana Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 (H).” Given the decision in Ingalulu Investments supra, which is binding, the plaintiff’s claims cannot be unlawful. The amounts claimed were not converted by operation of the law into local currency as alleged. The court has not yet quantified the loss or foisted the claims on the defendant. This is the same principle enunciated in the Zambezi Gas Zimbabwe case, supra, at p 144F, where the Supreme Court also said: “Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date. If, for example, the value of the assets and liabilities was, immediately before the effective date, still to be assessed by application of an agreed formula, s 4(1)(d) of S.I. 33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars. It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.” (My emphasis) Further, it is also a settled principle of the law that “in the absence of an enactment directly prohibiting the courts to order payment in foreign currency, a court is at liberty to pronounce a judgment for damages sounding in foreign currency though such amount may be paid in local currency at the interbank rate prevailing at the date of payment.” See Shah v Nherera supra, where the Supreme Court had this to say: “In any event, the court a quo ordered that the payment of the damages in United States dollars be converted to RTGS dollars at the interbank rate prevailing on the date of payment. It could competently do so. In Construction Resources Africa (Pvt) Ltd v Central African Building and Construction Company (Pvt) Ltd & Another SC 110/22, at p 37, the court citing with approval the case of Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (S), remarked as follows: - “I am firmly of the opinion that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative lead taken both in Miliangos v George Frank (Textiles) Ltd [1975] 3 All ER 801 (HL)) and the subsequent extensions to the rule there enunciated, and in the Murata Machinery Ltd v Capelon Yarns (Pty) Ltd 1986 (4) SA 671 (C)at 673C-674B and 674E) case in South Africa, is to be adopted. This will bring Zimbabwe into line with many foreign legal systems. See Mann The Legal Aspect of Money 4 ed at pp 339-340. Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of a devaluation in the value of currency between the due date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into the local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.” 46. In view of the above, it is trite that in the absence of an enactment directly prohibiting the courts to order payment in foreign currency, a court is at liberty to pronounce a judgment for damages sounding in foreign currency though such amount may be paid in local currency at the interbank rate prevailing at the date of payment. The court a quo therefore did not misdirect itself when it held that the law did not proscribe the grant of damages in foreign currency to be paid in RTGS dollars at an equivalent rate reckoned at the interbank rate at the time of payment.” The court in this case is also at liberty to grant the amounts claimed in foreign currency to be paid at the equivalent local currency at the prevailing exchange rate. This is also what the Supreme Court ordered in the Delta Beverages case supra. In my view, this would not, however, extend to a foreign obligation which must remain payable in the denominated currency. If the funds held by the plaintiff in the offshore account with Ecobank in Zambia are to be found to have been misappropriated or stolen in that currency in Zambia, such sum of US$330,000.00 would have to be reimbursed in that currency. The defendant would be required to make good the difference between the value of the plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed. See Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at p 917B. The obligation to reimburse or pay arising from the delict relating to such funds remains a foreign obligation. The amount must be payable in the foreign currency denominated value of the loss. The principle that foreign obligations remain payable in the denominated foreign currency was restated in Brom v Verdure Investment & Ors SC 28/23, where Chiweshe Ja stated that: “The respondents have not denied the existence of this and other similar directives issued by the Reserve Bank from time to time. Neither have they challenged the validity of such directives from the monetary authorities. It is clear that the Reserve Bank of Zimbabwe regards funds such as those held by the appellant in a non-resident account at CABS as offshore or foreign funds. Any loans or obligations deriving from such funds are deemed to be foreign loans or obligations. This position as given by the monetary authorities accords with the provisions of s 44C (2) (b) of the Reserve Bank Act. In our view those provisions must be interpreted accordingly… For purposes of s 44C (2) (b) all that needs to be established is that the loans advanced to the respondents were sourced offshore. That on its own creates a foreign loan or obligation. It is not necessary that the appellant alleges that the funds advanced had been borrowed offshore thereby creating an obligation to pay off a creditor who is outside this jurisdiction. Once the loans are advanced from offshore funds, they are payable in foreign currency…” (My emphasis) Although the court in the above case was specifically dealing with loans, the reasoning therein fully applies to this case. The defendant, if found liable to pay US$330,000.00, which was stolen from an offshore account in Zambia that would create a foreign obligation payable in the denominated currency of the value of the loss. I, therefore, agree that the amount cannot be converted into local currency or be payable in local currency at the prevailing exchange rate, as with the other amounts. For the above reasons, the argument or legal point that the plaintiff’s claims in foreign currency are unlawful or irregular for want of compliance with the law is devoid of any merit. I accordingly dismiss the point. 2. WHETHER OR NOT THE DEFENDANT IS INDEBTED TO THE PLAINTIFF AND IF SO, TO WHAT EXTENT? THE LAW AND THE ANALYSIS The plaintiff’s case is delictual. It is what is commonly referred to as an Aquilian action. G. Feltoe, A Guide to the Zimbabwean Law of Delict, 2012, described an Aquilian action as the cornerstone of our law of delict. At p 9, he restated the requirements for an Aquilian action as follows: “(i) There must have been some conduct on the defendant’s part (i.e. an act on omission) which the law of delict recognizes as being wrongful or unlawful. (The wrongfulness requirement). (ii) The conduct must have led either to physical harm to person or property and, thereby to financial loss, or have caused purely financial loss which does not stem from any physical harm to person or property. (The so called patrimonial loss requirement, one’s patrimony being one’s property and finances); (iii) The defendant must have inflicted the patrimonial loss intentionally or negligently. (The fault requirement) (iv) There must be a casual link between the defendant’s conduct and the loss (the causation requirement).” The plaintiff claims for pure financial losses arising from the alleged wrongful conduct of the defendant, some caused by intention (dolus) and others by negligence (culpa). In Minister of Finance & Ors v Gore NO 2007 (1) SA 111 (SCA) at para 87, Cameron and Brand Jja writing for the court’s unanimous decision remarked as follows: “In the language of more recent formulations of the criterion for wrongfulness: in cases of pure economic loss, the question will always be whether consideration of public or a legal policy dictates that delictual liability should be extended to loss resulting from the conduct at issue. Thus understood, it is hard to think of any reason why the fact that the loss was caused by dishonest (as opposed to bona fide negligent) conduct, should be ignored in deciding the question. We do not say that dishonest conduct will always be wrongful for the purposes of imposing liability, but this is difficult to think of an example where it will not be so.” At para 88, the South African Supreme Court of Appeal further held that: “In our view, speaking generally, the fact that a defendant’s conduct was deliberate and dishonest strongly suggests that liability for it should follow in damages...” What constitutes “pure economic loss” in relation to negligent conduct was explained in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 1, where Harms Ja had this to say: “Pure economic loss” in this context connotes loss that does not arise directly from damage to the plaintiff's person or property but rather in consequence of the negligent act itself, such as loss of profit, being put to extra expenses or the diminution in the value of property.” The claims must be considered in the light of the defendant’s lawful duties and responsibilities as the executive director of the plaintiff during the relevant period. It was common cause that he was in that office from May 2007 to June 2018 and, therefore, during the period covered by the forensic investigations. There is also no dispute that the defendant signed his job description, which is at pp 284-286 of the plaintiff’s bundle. I agree that his job description placed him at the heart of this case, as he was the senior authority responsible for the overall management of the plaintiff’s financial resources. He was, inter alia, required to develop and maintain a culture of accountability; facilitate the development and maintenance of best practice, organisational processes and systems; ensure the effective financial and organisational performance of the plaintiff; achieve strategic plan’s financial and non-financial performance measures/standards; ensure the plaintiff met the requirements of the international movement and all relevant national and local legislation. His role was not, therefore, merely to ‘check’ payment vouchers or requisitions, as he put it. Under cross-examination, the defendant admitted that his role included approving and authorising payments as stated in the Finance Policy and Procedures Manual. It was clear that his role was not that of a person who simply checked payments. His duties included supervising the Finance and Office Administrator, Ms Zimbeva, who was reporting to him. See p 281, being the job description for that office, which the defendant duly signed. He remained responsible for accountability in the use of funds for the organisation, despite that he had officers under him. In that regard, he can be held to be negligent in this context if he failed to exercise due and reasonable care in the performance of the duty imposed. Further, Ms Pwiti, the plaintiff’s second witness, confirmed that as the executive director, the defendant authorised payments and was responsible for ensuring that the right persons were recruited and engaged in all offices involved in financial and administrative management. The defendant’s attempts to downplay his responsibilities and role were, therefore, unacceptable given the credible evidence from the plaintiff’s witnesses and the documents detailing his job description, as well as the Amnesty Finance Policy and Procedures Manual from p 184 of the record. The manual also established that the defendant was responsible for approving payments and managing financial resources. In that responsibility, he would be reporting to the board of trustees. He had a legal duty to act reasonably to protect the plaintiff’s financial resources. His defence that he was not in charge of the financial affairs of the plaintiff was clearly untenable, given the evidence which established his role and responsibilities in the financial management of the plaintiff. The position of the defendant in the plaintiff’s organisation and the responsibilities he had established the necessary legal duty of care he owed to the plaintiff. It is also pertinent to highlight that what is at the heart of the plaintiff’s claims is the forensic audit. The claims are founded on the findings from the forensic audit. The audit report was produced as evidence. The plaintiff’s evidence through its first witness, Mr Mugabe, established that the defendant was given an opportunity to participate in the audit process, but he spurned it. He was served with the questionnaire in terms of which his comments or input on several factual issues were sought. The form is part of the plaintiff’s documentary evidence produced at the trial and starts from p 219 of the plaintiff’s bundle. The document was served by the Messenger of Court upon his wife. Proof of service of such document in the form of the return of service was produced as part of the plaintiff’s evidence and is at p 218 of the plaintiff’s bundle. He acknowledged that he was served with this questionnaire seeking his comments or inputs on the auditor’s enquiries. The defendant also admitted that he was fully aware of the questions asked in the questionnaire. In his plea, he admitted that he had taken a position that he was no longer an employee of the plaintiff and that he could not comment. In my view, he erroneously refused to participate on the basis that he had ceased to be employed by the plaintiff. He, therefore, missed the crucial opportunity to test the veracity of the facts established by the auditors before they could make their conclusions. Further, the evidence of Mr Mugabe, which was also unchallenged, was that he contacted the defendant for interviews and the defendant requested him to send his requests in writing. He wrote an email to the defendant on 2 July 2018 informing him that they were carrying out an audit and wanted to interview him. But the defendant replied, stating that his contract with the plaintiff had ended and, therefore, his rights and duties pursuant to his contract were extinguished following the termination. Efforts by the auditor to have the meeting arranged through Mr Musiiwa again went unanswered by the defendant. He clearly refused to cooperate, and this position remained unchallenged even under cross-examination. Evidence showed that the forensic audit was commissioned by the plaintiff and that it endorsed its findings, hence this suit. Ms Pwiti also confirmed that the audit findings were adopted by the plaintiff and its recommendations implemented when she took over as the interim executive director of the plaintiff. Her evidence that the audit findings were presented to the board in the presence of the regional director and representatives from the International Secretariat was not challenged by the defendant. It was stated that at that meeting, as the report was being presented and when it became evident that there were findings incriminating Mr Musiiwa, he voluntarily resigned as the board chair to ensure the implementation of the corrective measures. She also said that Mr Musekiwa was elected as the new board chairman following Mr Musiiwa’s decision to withdraw. This evidence was not challenged by the defendant in cross-examination. I, therefore, reject the defendant’s defence that the audit was a sham or that it was manipulated and influenced by the plaintiff. On the same basis above, the court cannot accept the defendant’s defence that the audit report was not authentic or not adopted by the plaintiff’s board of trustees. During the cross-examination of Mr Mugabe, the defendant did not seriously challenge or discredit the report as a sham or a product of an improper and flawed process which the court ought not to rely on. I associate myself with the remarks in President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 2000 (1) SA 1, where the Constitutional Court of South Africa highlighted the purpose and importance of cross-examination as follows: “[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn [[1893] 6 R 67 (HL)] and has been adopted and consistently followed by our courts.” In determining the first issue, the court will consider each claim by the plaintiff and assess the evidence led by the plaintiff and by the defendant in his defence and determine if such claims have been proved or established on a balance of probabilities. The guiding principle is that one who alleges must prove. Thus, in ZIMSCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20, the court remarked that: “It is trite that “he who alleges must prove”. The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination.” CLAIM FOR US$148,609.08 The plaintiff claimed this total amount under various sub-claims. According to the plaintiff, the said amount arises from the financial prejudice it suffered whilst the defendant improperly benefited from such prejudice arising from paid non-contractual allowances, collected and unaccounted for cash withdrawals, outstanding loan balances, non-contractual and unauthorised fuel and mileage allowances and policy violations. Since the claim is made up of several sub-claims, the court must consider each such sub-part to establish whether the plaintiff discharged the onus to prove its claim on a balance of probabilities as required by the law. 43.1. Payment of non-contractual allowances 43.1.1. The plaintiff claimed a total of U$50,053.00 as non-contractual allowances improperly paid over and above contractual monthly salary to the plaintiff’s employees from sub-grants outside the plaintiff’s payroll. The payments also evaded tax in the form of PAYE. Mr Mugabe gave a detailed narration of their findings and referred the court to the audit report at pp 57-58 of the plaintiff’s bundle. Table 10 of the report provided the schedule of the totals paid to the staff members who included the defendant, Ms Muzerengi, Ms Zimbeva, Mr Mphande and Mr Munava. They were paid from the subgrants, namely Radio Help (of a total US$3,800.00), EEJ (US$42,497.00), and UNIDEF (US$3,756.00). These payments were made in addition to the salaries already covered by the Amnesty International Resource Allocation Mechanism (“RAM”) budget. 43.1.2. I find the auditor to be a credible witness. His testimony was corroborated by Ms Pwiti, who also confirmed that the salaries were fully covered by the RAM budget from Amnesty International. The defendant should not have authorised the payments of such additional non-contractual allowances. The defendant, in his evidence in chief, stated that the payments were approved by the International Secretariat under the Global Human Rights Program. He admitted under cross-examination that he did not put this position to the plaintiff’s witnesses in cross-examination. He also conceded that these allowances were not part of the terms and conditions of the staff members’ employment contracts, as that would be against the policy of the plaintiff. 43.1.3. The auditor’s testimony, as expanded in the audit report, was that Ms Zimbeva informed him that the defendant instructed her to make these payments. In any case, his role also included authorising the payments. To the extent that he did not put the issues to the plaintiff’s witnesses that the payments were approved by the secretariat and that he was authorised to make these payments outside the payroll by the Amnesty International Secretariat and pay them tax-free, I would accept the plaintiff’s testimony as unchallenged. See President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors supra. I also adopt the sentiments expressed in Small v Smith 1954 (3) SA 434 (SWA) that: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.” 43.1.4. The defendant raised an issue with the recording of the total sum of US$50,053.00 in the cross-examination of the auditor, focusing on para 7.17 at p 44 of the plaintiff’s bundle, where the words “monthly allowances” were used. Mr Mugabe clarified and corrected that the amount reflected the total allowances paid for the period under review and that it was not per month. That was also in line with the documentary evidence from para 10.1.5 at p 57 of the plaintiff’s bundle. In para 10.1.5 at p 57, the figure is correctly stated in the report as being the total amount paid for the whole period under review. The narrative is correctly recorded thereon, and the witness’s testimony clarified the correct position. That typing error in para 7.17 at p 44 cannot sway me to discard Mr Mugabe’s evidence on the issue. The witness’s clarification, as supported by the evidence from para 10.1.5, which is in sync with his testimony, was believable. 43.1.5. The plaintiff, therefore, managed to prove this sub-claim. The defendant is liable for the loss in the sum of US$50,053.00 as claimed. 43.2. Misappropriation of membership fees 43.2.1. The auditor gave evidence that from their findings, the defendant stole US$6,200.00 collected as membership fees. He testified that the amount was collected and signed for by the defendant from Ms Zimbeva. There were no supporting documents as to how he used the funds. Reference was made to p 73 of the plaintiff’s bundle. The exact dates and the amounts he collected from Ms Zimbeva and converted to his own use are reflected in the vouchers from pp 192-198 (Annexure 67) of the plaintiff’s bundle. The vouchers for each payment received by the defendant are shown. The defendant did not dispute that he collected the said sums as cash from Ms Zimbeva. He failed to account for it. This constituted theft of trust property. The defendant also did not give any evidence on this sub-claim or address it in his evidence at the trial. 43.2.2. During the cross-examination of the auditor, the only issue raised was that the period some of the vouchers showed was before that covered by the audit. Mr Mugabe said that they were instructed by Mr Musiiwa, the then chairman, to include them. In my view, it is immaterial that he had collected such cash from as far back as 2014, a period outside the audit itself. As long as that evidence establishes that he received such cash and failed to account for it, the value of such funds can still be claimed if shown to have been unlawfully misappropriated or stolen, too. The emphasis is not necessarily on the dates when the funds were stolen, but whether they were stolen. The issue of dates might have arisen if the defendant had raised the defence that claims running back to 2014 had prescribed. He did not raise such a defence. The evidence by the plaintiff, backed by the vouchers, established without any doubt that the defendant received US$6,200.00 cash, which was for membership fees. The plaintiff further managed to prove that the defendant unlawfully converted the said plaintiff’s funds to his own use or misappropriated the said funds. The plaintiff is, therefore, entitled to recover the said sum of US$6,200.00. 43.3. The claim for membership mapping fees misappropriated 43.3.1. The auditor testified that the cash disbursements signed for by the defendant for the membership mapping exercise and misappropriated amounted to a total of US$8,535.00. The court was referred to the audit report in para (b) at p 72 of the plaintiff’s bundle, which referred to that amount as the total prejudice to the plaintiff. He further testified that there was no document or record to show that the defendant used the funds for the intended activities. He enquired about the use of such funds to the Campaigns Coordinator, Mrs Muzerengi, and she confirmed that no such exercise was carried out. The coordinators also denied knowledge of such membership mapping exercise having been carried out. At p 186 of the plaintiff’s bundle (Annexure 64) are the cash requisitions signed for by the defendant. The total figure from the cash requisitions is US$8,035.00. 43.3.2. Mr Mugabe admitted that he omitted the cash requisition for US$500.00, and he claimed that the total misappropriated by the defendant should be US$8,535.00. Under cross-examination, the auditor conceded that there is no document to prove that the defendant collected the said US$500.00. He said it might have been missed from the photocopying of the record. There was no dispute that no proof of such cash requisition of US$500.00 was produced. The plaintiff accepted this position, as in its closing submissions, the assertion is that the plaintiff paid US$8,035.00 to the defendant for the membership mapping exercise, which he misappropriated. See para(s) 80 at p 26 of the plaintiff’s closing submissions. The defendant did not dispute that he received the said sum of US$8,035.00. His version in his evidence in chief that he utilised the funds for the membership mapping exercise with the chairman, which was the purpose the funds were collected, was not put to the auditor in cross-examination. He further claimed in his evidence in chief that he organised activities with local coordinators throughout the country and spoke of the creation of two WhatsApp groups where pictures and videos were shared. He admitted that he did not submit the narrative report by the time he went on what he said was forced leave. The defendant did not seriously challenge the auditor’s evidence that there were no narrative reports accounting for his use of such funds. 43.3.3. The defendant asserted that there were pictures and videos of the activities he carried out and that he filed reports with Ms Zimbeva. However, he produced nothing to establish these assertions. The general principle of the law is that he who makes an affirmative assertion whether the plaintiff or defendant bears the onus of proving the facts so asserted. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) at 459; Astra Paints Chemical v Chamburuka SC 27/12; Book v Davidson 1988 (1) ZLR 365 at 384 B-F. In Nyahondo, supra Korsah Ja said: “Where a person against whom a claim is made is not content with a mere denial but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in respect of that defence as being the claimant; for his defence to be upheld he bears the onus of satisfying the court that he is entitled to succeed on it.” 43.3.4. Bald assertions, in any case, are insufficient to establish his defence. The defendant failed to account for the sum of US$8,035.00, which he admitted he received. In his closing submissions, the only issue raised on this claim is that some of the vouchers at pp 193-196 and 198 of the plaintiff’s bundle relate to a period before the audit. That in itself is insufficient to evade liability. It is immaterial that he received part of the funds from the plaintiff during the period before that covered by the audit. He remains liable to reimburse the funds he unlawfully and intentionally misappropriated as long as that delict is established. I am satisfied that the plaintiff established that the defendant is liable to pay the sum of US$8,035.00. 43.4. Claim for financial prejudice from the outstanding housing loan 43.4.1. The auditor’s unchallenged evidence was that the loans were not provided for under the RAM budget approved by Amnesty International. It was not in dispute that despite this position, the defendant and the other staff got different loans which remained unpaid at the time the defendant left the organisation. The defendant benefited from these loans improperly, as they were not provided for in the RAM budget. Indeed, the Finance Policy and Procedures Manual provides for two loans: personal and emergency loans, which could be granted (see clause 8 thereof). In this case, it was not in dispute that they were unbudgeted for the relevant period. 43.4.2. The defendant claimed that there were no staff loans given to staff members, including himself, but they were salary advances. He repeated that there were simply salary advances and not loans, even under cross-examination. When questioned why he would repay his salary, he claimed that it was for the purposes of cash flow for the organisation to function. This defence clearly defied any logic. The defendant admitted making some repayments towards what he owed, an indication that he was fully aware it was a loan obligation. He could not approbate and reprobate. It is trite that a party is not allowed to have his or her cake and eat it at the same time. See United Harvest (Pvt) Ltd v Kewada (in his capacity as the executor testamentary of the estate late John Vigo Naested) & Anor SC 51/23 at pp 11-12. A salary advance cannot be repaid as shown from the schedule at p 142 of the plaintiff’s bundle produced by the auditor. 43.4.3. In any case, the defendant admitted that when his employment was terminated, his outstanding loan was US$31,000.00. In my view, however, this was simply a figure plucked from the air. He placed nothing before me to dispute the schedule at p 142 of the plaintiff’s bundle, nor any different calculations or challenge the sums borrowed. His admitted figure was simply unsubstantiated. The auditor’s testimony that he picked the deductions from his payroll went unchallenged. He also stated that Ms Zimbeva had advised that the loan balance had been reduced to US$35,811.00, but she did not bring any evidence to that effect. In the absence of any contrary evidence from the defendant, there would be no reason for the court to disbelieve the auditor, given that the audit findings established the figures as stated in Annexure 29 at p 142 of the plaintiff’s bundle. Mr Mugabe’s evidence in that regard was credible. 43.4.4. The total outstanding in loans due from the defendant is clearly shown on the schedule in the forensic audit report, that is, the sum of US$40,610.00. This can easily be ascertained by simple mathematics by deducting the total loans advanced (US$82,100.00) from the total deductions of US$41,490.00. In my view, the plaintiff proved that it is entitled to payment of US$40,610.00 as the financial prejudice arising from loans improperly advanced to the defendant and not repaid. The fact that the Finance Policy stated generally that personal loans could be given does not necessarily mean that the defendant could authorise the payments of such loans to himself outside the permissible budgeted expenditure for the period in question. 43.5. Claim relating to the disposal of the Toyota Vitz 43.5.1. Mr Mugabe testified that the Toyota Vitz registration number ADJ 6767 was disposed of to Ms Zimbeva in violation of the plaintiff’s Asset Disposal Policy. The motor vehicle was imported in the name of Ms Zimbeva for the plaintiff and registered in her name. In his evidence in chief, the defendant reasoned that the vehicle could not be imported by the plaintiff because it was a common law universitas and had no certificate of registration. He stated that it would then be changed into the plaintiff’s name when it is in the country. It remained registered in Ms Zimbeva’s name even at the time of its disposal. Its final book value was US$2,000.00. 43.5.2. In terms of the agreement of sale at p 143 of the plaintiff’s bundle (Annexure 30 of the audit report), the motor vehicle was sold to Ms Zimbeva for US$50.00. The relevant part of clause 2 of the said Disposal Policy states as follows: “2. Disposal of Motor Vehicles … Second hand vehicles are disposed of when three (3) years of use or when they clock a mileage of 200 000 km, whichever comes first.” It was common cause that the motor vehicle was acquired in June 2014 and sold on 2 February 2017. The defendant admitted under cross-examination that when the motor vehicle was sold, it was less than three years and had not clocked a mileage of 200,000 kilometres as per the Policy. He, however, stated that he used his discretion in terms of the Policy to dispose of the vehicle to Ms Zimbeva, who had the first priority as she was using it. He also stated that he had the power to exercise the discretion and sell the vehicle despite that it had not yet become due for disposal in terms of clause 2 of the Disposal Policy. He referred to the provisions of clause 1.2 of the Disposal Policy at p 154 of the record. This policy is indicated as being effective from 1 November 2014. Another extract of the Disposal Policy, the auditor said was applicable at the time the motor vehicle was disposed of formed part of the audit report at p 144 of the plaintiff’s bundle. The defendant did not dispute this as the applicable Disposal Policy at the time the Toyota Vitz was disposed of. 43.5.3. The said Disposal Policy at p 144 also included clause 1.2, which still read the same as in the previous Policy at p 154 and stated: “1.2 Any disposal of an Asset with a value of less than Ten Thousand United States Dollars (US$10,000.00) should be at the Executive Director’s discretion or proxy.” In addition, there is a specific provision relating to the disposal of motor vehicles under clause 2, which states that second-hand motor vehicles are disposed of when they are three years of use or when they have clocked a mileage of 200,000 kilometres, whichever comes first. In my view, the general provisions of clause 1.2 do not derogate from the specific provisions under clause 2. This arises from the principle of law often applied to resolve potential conflicts arising from general and specific provisions governing the same issue, known as the generalia specialibus non derogant. This principle means that the specific governs the general. The specific provisions take precedence over the general provisions. This maxim was fully explained in Bubye Minerals (Pvt) Ltd v Minister of Mines and Mining Development & Ors 2011 (2) ZLR 384 (S). 43.5.4. The general provision of clause 1.2 relates to any asset of value of less than US$10,000.00, and the executive director may exercise his discretion in its disposal. However, clause 2 is a specific provision governing the disposal of second-hand vehicles. While the motor vehicle generally is also an asset, the insertion of specific provisions relating to the disposal of motor vehicles (which were added to the Policy) clearly shows that the drafters intended specific provisions to govern the disposal of motor vehicles differently from other assets generally. There was, therefore, no discretion to exercise in this case. A sale of the second-hand vehicle would only arise once the vehicle had reached three years of use or a mileage of 200,000 kilometres. In casu, the Toyota Vitz did not. The disposal was, therefore, improper as it violated the plaintiff’s Disposal Policy. 43.5.5. The evidence also showed that the sale could not be said to have resulted in the plaintiff and Ms Zimbeva co-owning the vehicle. In terms of clause 1.7 of the Policy, the motor vehicle must have been disposed of at half its final book value. It is not in dispute that half of its final book value was US$1,000.00. The price of US$50.00, therefore, caused the plaintiff to suffer financial prejudice of US$950.00. The audit report confirmed this financial loss in para 10.3.1 (a) of the report at p 63 of the plaintiff’s bundle. I, therefore, find that the plaintiff proved this sub-claim and is entitled to judgment for US$950.00 as claimed. 43.5.6. In para 4(d) of the plaintiff’s summary of evidence, there was further reference to the sum of US$409.30 alleged to have been an improperly paid benefit for the same vehicle. However, no evidence was presented on this, and no reference was made to this claim in the closing submissions. It cannot succeed. 43.6. Loss from the disposal of wreckage 43.6.1. The plaintiff also claimed for the loss arising from the wreckage of an accident-damaged Toyota Prado ACV 2048, allegedly unaccounted for. On this claim, the auditor’s evidence was that they enquired on the method of disposal and the proceeds thereof from Ms Zimbeva, and she said that the motor vehicle was taken by the defendant and that there was no proof of receipts of the proceeds. He further stated that the proceeds of the disposal were not disclosed and that the vehicle was taken away by the defendant. There were then references to the annexures 36 to 39 at pp 156-157 of the plaintiff’s bundle. In his evidence in chief, the auditor did not speak to the value of the wreckage or the value it was disposed of and to whom. Even the audit report at p 64 of the plaintiff’s bundle did not relate to the financial prejudice arising from the said wreckage. Under cross-examination, the auditor confirmed the email communication he had with Ms Zimbeva, Annexure 39 at p 160 of the plaintiff’s bundle. He confirmed that Ms Zimbeva, in the email, said that the accident-damaged vehicle was taken by the defendant, but she was not aware as to whom and how much it was sold for, and that she had no account for it. She told him to get in touch with the defendant. He confirmed that Ms Zimbeva stated that the details of the disposal of the motor vehicle were not known to her. 43.6.2. On the other hand, the defendant stated that in terms of the Motor Vehicle Policy, the responsibility for the disposal of the wreck was with Ms Zimbeva, and she is the one who identified the buyer of that wreckage. He further testified that Ms Zimbeva said that the buyer offered US$700.00. He also stated that she was given the money, and he did not know why she did not cooperate. The onus was on the plaintiff to prove that the sum of US$700.00 was paid to the defendant, who failed to account for it. The plaintiff failed to prove its case. The testimony from the auditor did not establish any exact sum of money, nor is there such an amount in the audit report. Mr Mugabe’s evidence remained that the plaintiff could not account for the motor vehicle sold by the defendant and that the plaintiff did not receive any proceeds from its disposal. See also the conclusion in the audit report at p 83 of the plaintiff’s bundle. 43.6.3. The plaintiff attempted to make its case in the closing submissions. The case for the loss of US$700.00 arising from the wreck was not pleaded. There was also no evidence to establish the said damages. It is a settled principle of the law that pleadings guide the parties as to the nature of their case and help the court identify the issues that separate the two litigants. The purpose of pleadings was outlined remarkably well in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd SC 24/18 at pp 10-13, where Garwe Ja (as he then was) had this to say: “THE IMPORTANT PURPOSE OF PLEADINGS [25] The manner in which the respondent has handled its case both a quo and in this Court brings to the fore the question as to what the purpose of pleadings is. In general the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law. Various decisions of the courts in this country and elsewhere have stressed this important principle… 25.1 In Durbach v Fairway Hotel, Ltd 1949 (3) SA 1081 (SR) the court remarked:- “The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed.” … 25.4 In Courtney–Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), the court remarked at page 698:- “In any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.” 25.5 In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94(A), 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where at page 198 it was stated as follows:- “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.” 25.6 In Jowell v Bramwell-Jones 1998 (1) SA 836 at 898 the court cited with approval the following remarks by the authors Jacob and Goldrein in their text Pleadings: Principles and Practice at p 8-9: “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realm of speculation. … Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice. The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.” [26] I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally. The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.” (my emphasis) I have no option but to dismiss the claim related to the alleged wreckage for lack of evidence. 43.7. Claim for US$14,000.00 for the fraudulent purchase of motor vehicle. 43.7.1. It was not in dispute that the Toyota Land Cruiser Prado ADO 4143 was purchased for the plaintiff for the sum of US$14,000.00. There is no doubt that the motor vehicle was fraudulently acquired, as the alleged seller, Mr Huruva’s signature was forged. He also denied selling any motor vehicle in the affidavit annexure 42 at p 163 of the plaintiff’s bundle. This evidence was not challenged by the defendant. The defendant did not deny that he purchased the motor vehicle. He admitted that Mr Huruva agreed to sign the agreement of sale, though he was not the seller. He was aware that Mr Huruva was not the owner of the vehicle but actively participated in the fraudulent scheme to deceive the plaintiff, resulting in it suffering financial prejudice. 43.7.2. The auditor also stated that there was no evidence of the board's approval of the acquisition of the said motor vehicle. He also said that the motor vehicle was not being used for programmes as it was defective. This, he said, was confirmed by Mrs Muzerengi. He stated that the defendant and other members of staff used their personal vehicles for business. This was not challenged by the defendant. The auditor also stated that Ms Zimbeva said that the defendant brought the motor vehicle and instructed her to pay him the US$14,000.00. Again, this was not challenged in cross-examination. The defendant also authorised the cash requisition for this payment. The fact that the cash payment requisition was raised by Ms Zimbeva and that Mr Musiiwa also signed the requisition does not absolve him. He cannot downplay his role established from the evidence. He actively participated in the fraud and even received the purchase price of US$14,000.00. 43.7.3. The defendant stated that the actual owner or seller was in South Africa, and he, therefore, came up with a plan to have Mr Huruva sign the agreement so that the vehicle ownership could be changed into the plaintiff’s name. That reasoning was bizarre and unacceptable. His wrongful conduct resulted in financial prejudice to the plaintiff arising from what was clearly a fraudulent and illegal transaction. The fact that the vehicle was defective and could not be used for the plaintiff’s programmes clearly shows that the plaintiff never benefited. As stated in the report in para 8 at p 49 of the plaintiff’s bundle, the vehicle had no “residual economic/useful life or value”. Again, this was not challenged. I find that the defendant is liable to pay the plaintiff the sum of US$14,000.00. 43.8. While it was pleaded that the total sum of US$148,609.08 was being claimed, including for what was termed “non-contractual and unauthorised fuel and mileage allowances” (per para 12 of the declaration), there was no evidence under that head of the damages or sub-claim from the plaintiff. Having considered all the sub-claims making up the total claim for US$148,609.08 and the plaintiff’s evidence, it is my finding that the plaintiff only managed to prove the total sum of US$119,848.00 as the damages. That is what the court will grant. CLAIM FOR PAYMENT OF ZWL101, 748.29 This is the claim by the plaintiff for the tax liability arising from the defendant’s alleged acts and omissions in failing to deduct tax for staff loans, unauthorised allowances and or benefits paid to the defendant and other staff members. It was common cause that this liability was computed and raised by the Zimbabwe Revenue Authority (“ZIMRA”). There was also no dispute that the liability had been settled through a payment plan. Ms Pwiti’s evidence on the assessment thereof and the payment by the plaintiff of the tax liability to ZIMRA was largely unchallenged. The question arising is whether the defendant ought to be held liable to reimburse the said amount paid to extinguish the tax liability. 44.1. The auditor testified that they discovered several payments made to staff outside the payroll and not included in the PAYE. He said that these allowances were paid to the staff above their contractual salaries from sub-grants by EEJ, Radio Help and UNIDEF, amounting to US$50,053.00. Mr Mugabe also stated that the plaintiff was wholly supported by the Amnesty International headquarters for the salaries of its staff. The defendant maintained all salaries under the headquarters’ budget while the allowances were not included on the payroll and were tax-free. This was contrary to the plaintiff’s Finance Policy, requiring all such payments to go through the payroll. The figures are fully explained in para 10.1.5 at p 57 of the plaintiff’s bundle. The auditor’s evidence on their findings concerning the tax exposure arising from these payments of allowances outside the payroll was not challenged under cross-examination. The defendant’s legal practitioner particularly questioned if there were ZIMRA visits or inspections during the period between 2015 and 2018, and the auditor said they were not informed of such visits or inspections. The same question was put to Ms Pwiti. 44.2. Mr Marufu also questioned the auditor on who was responsible for paying remittances to ZIMRA, and the auditor said it was Ms Zimbeva, supervised by the defendant. He also said this was in line with the Finance Policy. The evidence by Ms Pwiti that the tax liability had been assessed by ZIMRA as due from the said allowances was not challenged when she was cross-examined. Even the version from the defendant’s evidence in chief that the allowances were below the tax threshold was never put to the witnesses. It was not even pleaded. What he simply pleaded in his plea was that he was not responsible for remitting taxes to ZIMRA in terms of his contract of employment. He erroneously downplayed his role as further outlined in his job description. It was his responsibility to ensure taxes were paid as he managed all other staff, including Ms Zimbeva. I, therefore, find the defence that the taxes were not due from these allowances to be an afterthought and inconsistent with the unchallenged evidence from the plaintiff. 44.3. It is common cause that the tax assessment was done and the liability discharged. The defendant accordingly failed to perform his duties as required and, by his omissions, negligently caused the plaintiff loss arising from that portion of the tax liabilities. The defendant, as the highest official in charge of the daily operations of the organisation, was required to comply with the law. 44.4. The other part of the tax liability arose from staff loans, which were granted at zero interest. The auditor raised an issue on the tax exposure from these staff loans. Ms Pwiti confirmed that the tax assessment for the unpaid tax arising from the interest-free staff loans was assessed, and the plaintiff had to pay for the liability. The auditor under cross-examination, however, accepted that the interest rate of 16% for staff loans was deleted following an amendment of the Finance Policy and Procedures Manual. He did not dispute that clause 8.1.5 which imposed that interest rate was deleted following a resolution by the board of trustees made on 6 April 2013, particularly at p 277 of the record. 44.5. While it was stated by the auditor that the amendment was contrary to the law, it was the plaintiff’s own board which made a Policy allowing for tax-free loans (subject, as noted earlier, to these loans having been budgeted for), thereby exposing the organisation itself to tax. It would then be improper in my view for the defendant to be held liable for not remitting the taxes for such loans when the organisation’s highest controlling board made a decision that tax-free personal loans may be granted. It ought to bear the consequences of making such an unlawful decision. It is not in dispute that the defendant reported to the said board and it had spoken as the highest decision-making authority for the plaintiff. 44.6. The plaintiff claimed a total of ZWL101,748.29 but did not place any evidence establishing a clear breakdown of the tax liability, separating the tax arising from the non-contractual allowances paid and that from tax-free loans. The auditor did not testify to any quantified liability, save to say they raised the tax exposure with the plaintiff. Ms Pwiti did not give any breakdown but spoke of the assessment and payment of a global amount. Since I have rejected part of the claim for tax liability arising from tax-free loans, I am unable to separate that from the tax liability arising from the non-contractual allowances paid. I have no option but to reject the whole claim. The claim for loss from the tax liability discharged by the plaintiff is accordingly dismissed. CLAIM FOR US$51,725.00 The plaintiff claimed US$51,725.00 as payments improperly transferred from the plaintiff’s foreign currency accounts to bank accounts of six staff members outside the payroll and were unaccounted for. The auditor’s evidence was that they identified the transfers made to staff members from the bank statements. They requested supporting documents for these payments, but they were not provided. He also said that Ms Zimbeva explained that the funds were transferred to staff so that they could obtain cash for the organisation. There was no record to show that the funds were paid back. While they interviewed some of the concerned staff members, including Mr Machakaire, who said he withdrew the funds and handed them over to Ms Zimbeva, there was no evidence to support that the funds were returned. The breakdown and explanations thereof are in Table 3 at p 52 of the plaintiff’s bundle. The auditor confirmed that when he enquired with the Ecobank manager, Mr Mugadzi, he was informed that the bank had always availed cash to the plaintiff and there were no cash restrictions to necessitate this arrangement. His evidence was clear that the payments were authorised by the defendant and Mr Musiiwa. 45.1. The funds were unlawfully paid out to staff members outside the payroll and unaccounted for, as no record could be found of the repayments made to the plaintiff. The defendant did not challenge this evidence. He also did not give any evidence on this claim. He had a duty to account for and safeguard the plaintiff’s financial resources, but he negligently failed to do so. While there are submissions made in the defendant’s closing submissions on this claim that cannot cure the absence of evidence from the defendant on the claim. A defence is not made in the closing submissions. In the circumstances, I find the defendant liable to reimburse the plaintiff the sum of US$51,725.00. CLAIM FOR US$330,000.00 The plaintiff claimed that it suffered financial prejudice to the value of US$330,000.00 arising from the defendant’s improper payments to Al Shams Global Limited (“Al Shams Global”) and KHM Societe Anonyme (“KHM”) for unknown and unjustified cause. The amount was made up of US$80,000.00 paid to Al Shams Global and US$250,000.00 paid to an entity called KHM from the plaintiff’s offshore account with Ecobank, Zambia. The auditor testified that they managed to get the bank statements of the plaintiff’s foreign currency account with Ecobank Zambia after the intervention of the Ecobank manager. 46.1. Mr Mugabe’s evidence was that they identified three transfers which were made to an organisation called KHM from the Zambian account for a total of US$250,000.00. The beneficiary’s bank account was held with Banc ABC, Botswana. Ms Zimbeva is said to have initially professed ignorance of this entity and referred him to the defendant. He further said that Mr Musiiwa, the chairman and one of the signatories to the bank account, also denied knowledge of the said entity. The board members also said they were not aware of KHM. The payments to KHM were made up as follows: US$120,000.00, which was transferred on 11 April 2017, US$60,000.00, transferred on 26 May 2017 and US$70,000.00, transferred on 14 June 2017. 46.2. The defendant admitted under cross-examination that all the supporting documents for these payments were falsified. It is common cause that the cash/cheque requisition for the payment of US$120,000.00 was prepared by Ms Zimbeva, checked and signed by the defendant and also has Mr Musiiwa’s signature, who is said to have approved the payment. See Annexure 44 at p 163 of the plaintiff’s bundle. The narration on the requisition was falsely stated as “Grant Encashment”. As part of the misrepresentation, it was common cause that the invoices for the total payment of US$120,000.00 were also falsified. The one for US$117,000.00 was allegedly for “Professional services rendered in connection with: Fees for carrying out research and surveys” and the invoice for US$3,000.00 also falsely purported to be for disbursements expended on telephone, mileage and stationery. The defendant admitted that there was no contract between the plaintiff and KHM and that such services were never rendered. 46.3. On the same day, 11 April 2017, the defendant signed and sent a letter to Ecobank Zimbabwe’s Mr Mungazi instructing the bank to assist in facilitating the transfer of the funds from the plaintiff’s Zambian account to KHM’s Banc ABC Botswana account. It was not in dispute that the transfer was effected and the plaintiff’s offshore account in Zambia was debited on 11 April 2017. 46.4. The second payment to KHM was for US$60,000.00. There was another cash requisition for this payment issued on 24 May 2017, signed by Ms Zimbeva, the defendant and Mr Musiiwa. The reference for the payment is falsely stated as “Loan Repayment”. The application for the telegraphic transfer was made to Ecobank Zambia on a form signed by the defendant and Mr Musiiwa. The payment instructions are again falsely given as “ESCR Consultancy”. The amount was debited on the plaintiff’s Zambian account. All these facts are common cause. The defendant also admitted that there was no loan which was given to the plaintiff by KHM. The auditor said that Mr Musiiwa denied knowledge of this telegraphic transfer. 46.5. It was also not in dispute that the third payment of US$70,000.00 was made to KHM. The cash/cheque requisition for this payment, dated 13 June 2017, was prepared by Ms Zimbeva, checked and signed by Mr Zilala and authorised by Mr Musiiwa. The description on the requisition was falsely stated as “2nd Grant liquidation”. On the telegraphic transfer signed by the defendant and Mr Musiiwa for that payment, the payment instruction was falsely given as “Consultancy”. The funds were transferred on 14 June 2017. The auditor testified that Ms Zimbeva advised that the payments were made so that they would get cash. She said the cash for the transfers was received from the defendant. The auditor did not see any evidence or record to support the inflow of the funds. He said Mr Mungazi confirmed that there were no challenges for the plaintiff to get cash at Ecobank Zimbabwe during that period, as corporates would withdraw up to US$10,000.00 per day. 46.6. The defendant also accepted that US$80,000.00 was transferred to Al Shams Global through its Botswana bank account from the plaintiff’s offshore bank account with Ecobank Zambia. The defendant claimed KHM and Al Shams Global were one entity, but this was shown to be false. The auditor narrated how they established the people behind these entities, with KHM owned by Kingstone and Sarah Chikodzi, who were also its two directors. It was not in dispute that there was no cash requisition signed for this payment. The bank statement, however, showed that on 12 September 2017, the amount was transferred to Al Shams Global’s Botswana account, and the narration is falsely stated as “Consultancy fees”. Ms Zimbeva and the defendant were the two authorised signatories. The defendant claimed the payment was also for the same reason as the payments to KHM, that it was to get cash from these two entities in Zimbabwe. 46.7. Mr Mugabe stated that he enquired from the board members, who denied knowledge of these transfers and any business relationship with KHM and Al Shams Global. Under cross-examination, the defendant confirmed that the payments were all made under falsified supporting documents. He did not deny that there was no existing business relationship between the plaintiff and these two entities. I find that the defendant was not a credible witness. In his evidence in chief, he falsely claimed that the said two entities were one. When further probed, that indeed these are separate entities and whether he did not hear the auditor name the directors of KHM, he replied that “Yes. These were separate payments made to two entities.” The alleged purpose of the payments that they wanted cash in return was absurd and untenable. It became clear that it was a contrived purpose to siphon the funds from the plaintiff. This is so as the local bank confirmed that cash was available for the plaintiff to access during that period, and the withdrawal limit was up to US$10,000.00 per day. 46.8. The defendant did not challenge that the average cash requirement for the plaintiff was about US$22,000.00 per month. It was also not disputed, as confirmed by Ms Pwiti and Mr Mugabe, that the salary bill was around US$18,000.00 and that utilities were paid in local currency. The requirement of such a huge outlay of cash, for example, of US$250,000.00 within a period of sixty-four days was not there. It was also not disputed that while these payments were being processed, there were also other funds transferred to the plaintiff’s Ecobank Zimbabwe account. The evidence clearly showed an elaborate plan to steal the funds from the plaintiff. At the centre of such falsified payments was the defendant and Ms Zimbeva. Mr Musiiwa purportedly signed the payment documents. It was shown by the plaintiff that the board did not authorise these transactions and the payments thereof. There was also no business relationship between the plaintiff and the two entities. 46.9. There was no evidence that cash was received in exchange for the payments made to the said entities. There was also no evidence of what the funds were used for, if the cash was ever paid back. While the defendant claimed there were cash books and reports sent to the international secretariat, he never placed before the court any such evidence to establish his assertions. I find his defence incredible given the clear paper trail produced by the auditor from the audit report. The auditor spoke very well, illustrated and backed up his figures with documents from the plaintiff. If ever there were records to show that the funds totalling US$330,000.00 in cash were received by the plaintiff and properly employed for its business operations, they should easily have been availed. It was the defendant who alleged that the records were there to prove it. He failed to show any contrary evidence that there were receipts for the return of the funds, vouchers establishing the use of such funds and that any other programs were running outside the EEJ and Radio Help, which required such a huge cash outlay. 46.10. Further, the defendant failed to challenge that the payments to the two entities were fraudulently masked criminal activities falling to be regarded as money laundering. I agree that the transactions were a criminal enterprise meant to embezzle funds from the plaintiff. He admitted the dishonesty and false declarations masked as genuine legitimate payments for services rendered, when he accepted that such services were never rendered to the organisation. The defendant misappropriated the plaintiff’s funds for his own selfish ends. I do not agree that the plaintiff suffered no prejudice. 46.11. There was no documentary evidence to establish the defendant’s assertion that the money was repaid as cash to the plaintiff. The auditors found no such records, and Mr Mugabe’s evidence was not seriously challenged under cross-examination. The defendant also largely failed to put his version of the defence to the witnesses under cross-examination. For example, that it was Ms Zimbeva who collected the cash and kept cash books for the money. He also sought to claim that he got approval from Cynthia Moyo, who was the chairperson at the time, for the Al Shams Global payment, but he conceded that this was not put to the auditor. That also worked against him. I, therefore, fully associate myself with the remarks in Small v Smith supra that “it is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.” 46.12. It would be difficult for the court to believe the defendant’s version and explanations on these payments, which were not put to the plaintiff’s witnesses. In these circumstances, I accept the evidence from the auditor, with some portions of it corroborated by Ms Pwiti. He was credible. The plaintiff established on a balance of probabilities that the defendant’s wrongful conduct resulted in the loss or financial prejudice to the plaintiff in the sum of US$330,000.00 as claimed. I will grant this claim as prayed for. CLAIM FOR 61,880 LITRES OF FUEL The plaintiff claimed for the reimbursement of a total of 61,880 litres of fuel from the defendant. It averred that the forensic audit established that 55,720 litres of fuel were unlawfully and irregularly drawn by staff duly authorised by the defendant when such employees were not entitled to such fuel, thereby prejudicing the plaintiff. The auditor referred to para 10.1.2 Table 5 at p 54 of the plaintiff’s bundle, and said that it shows a schedule of the fuel drawn by the plaintiff’s staff, including the defendant, without a lawful basis. The full schedule with the itemised quantities over the period under review is as morefully shown on Annexure 18 at pp 122-125 of the plaintiff’s bundle. In addition, it claimed that 6,160 litres were unaccounted for from the bulk purchases made during the period. 47.1. The auditor’s evidence was that the staff members’ contracts of employment did not entitle them to any fuel. This was not challenged under cross-examination. The defendant’s questions were largely centred on the fuel for the generator and business trips. He also claimed the organisation saved money, otherwise claiming mileages would have been costly to the plaintiff, which did not have sufficient resources to cover such allowances. The Motor Vehicle Policy referred to by the defendant did not provide that employees shall be entitled to fuel, which in this case was dispensed through coupons. The Policy only referred to car allowances for those using private cars to conduct business when they are entitled to an allocation of a motor vehicle. They would be paid an allowance using the Automobile Association of Zimbabwe (“AAZ”) rates. See pp 162-163 of the record. 47.2. There was no dispute that Ms Zimbeva kept a record for fuel allocations and that the schedules alluded to above were drawn from that record. No question about the record being incorrect was raised. It was also not in dispute that the RAM budget from the headquarters had no fuel allocations or allowances for staff. The quantities drawn were not on the budgets. As per the Policy, Ms Zimbeva, even if she was using her vehicle for business operations, she was not entitled to fuel as allocated, but to claim mileage using the AAZ rates. That she was not entitled to fuel in terms of her contract was not challenged. 47.3. It was shown that there was no record concerning fuel consumption for the generator. Fuel for business trips was clearly recorded, and no issue was raised on those. It was also shown to be false as per the schedules that Mr Musiiwa was given fuel after trips for travelling to Harare to sign authorisations. The existence of pre-signed documents by Mr Musiiwa, such as cash withdrawal slips and bank telegraphic transfer forms kept with Ms Zimbeva, was not denied. Further, Mr Musiiwa received some litres of fuel in advance as “bonus”, for example, on 29 October 2015. It was not, however, disputed that there was no entitlement or budget for such fuel allocations or allowances to members of staff from the RAM budget. The auditors also did not come across any claims for mileage by Mr Musiiwa, which is what the Policy could only permit him to claim. There was no lawful authority for him to be issued with fuel. Without any lawful basis for such fuel payments to be made, the defendant was culpable in authorising these fuel allocations to the staff members, thereby causing the plaintiff financial prejudice of 25,120 litres outside his own allocations, which I will deal with later. That loss was proved. 47.4. In addition, it was also proved that from the reconciliation of the bulk fuel purchased with the register of fuel allocations kept by Ms Zimbeva, there was a difference of 6,160 litres which had no trail. The schedule detailing how this quantity was arrived at is in para (e) at p 55 of the plaintiff’s bundle. The said quantity was unaccounted for. This was not challenged in cross-examination, and no evidence was provided by the defendant on this part of the loss. The total fuel proved to have been unlawfully drawn for which the defendant was culpable and due to be reimbursed is, therefore, 31,280 litres. 47.5. As for the fuel drawn by the defendant himself (which totalled 30,600 litres), an addendum to his contract of employment at p 152 of the record dated 31 January 2012 stated under the title “ADDENDUM SECTION 7” as follows: “You shall receive a monthly fuel allowance which shall be reviewed by the Chairperson or Board from time to time.” Admittedly, from that clause, there were no fuel quantities stated; however, the fact that he was contractually entitled to fuel allowances over the period in question was not seriously challenged. The fact that no quantities were specified does not, in my view, take away that contractual entitlement. If he drew what the plaintiff considered unreasonable quantities, then there should have been a limit imposed by the board. There existed a board during the relevant period. Surely the plaintiff had ample time to seek to limit the quantities to what it would consider reasonable instead of simply leaving the entitlement open-ended. Again, if the fuel was unbudgeted for, it was also a further problem that the plaintiff created for itself upon agreeing to enter into such an addendum to the defendant’s contract of employment. 47.6. Further, while Ms Pwiti stated that the quantities were unusual and excessive, the plaintiff itself had to blame for not setting reasonable limits on the quantity of fuel he would be entitled to. The plaintiff sought to amend its claim in the closing submissions by seeking to adjust its claim from what it had pleaded. The purported amendment followed the testimony of Ms Pwiti about what she had said was the reasonable quantity of fuel for people in similar positions. I would apply the Supreme Court decision in the Medlog Zimbabwe case, supra, where it was held that parties are bound by what they pleaded. The settled principle is that pleadings serve an important purpose as they define issues for trial and alert the defendant of what to expect and prepare accordingly. 47.7. It is improper to amend a claim in the closing submissions. Litigants may be granted leave to amend their pleadings at any stage before judgment. See rule 41(10) of the High Court Rules, 2021. However, there is a procedure to be followed to amend pleadings. The plaintiff did not seek such an amendment at the appropriate stage. The defendant also testified based on the plaintiff’s claim as pleaded. 47.8. I do not accept the purported amendment of the claim under the guise of what the plaintiff alleged was an adjustment of the claim downwards. The purported adjustment, in my view, is an admission that the plaintiff has realised the futility of its claim in relation to the fuel drawn by the defendant as initially pleaded. It then sought to claim the excess drawn for what it considered excessive or unreasonably high quantities of fuel he withdrew. If that was the case, the plaintiff should have sought to amend its pleadings to bring out that basis for the claim. Pleadings are not amended in closing submissions. To that extent, I have no option but to reject the claim for unauthorised or unlawfully drawn fuel in respect of the fuel which was allegedly drawn by the defendant himself. As already alluded to above, I will only accept the claim insofar as it relates to the other staff members for the total of 31,280 litres, as that is what was proved. DISPOSITION The plaintiff’s claims were properly and lawfully made in foreign currency. The sums claimed were not converted by operation of the law into RTGS dollars as they cannot be considered assets or liabilities affected by the deeming provisions of s 22(1)(d) as read with s 22(4) of the Finance (No.2) Act, 2019 on the effective date. There is nothing unlawful in making and the court assessing delictual claims in foreign currency. The Act did not proscribe the granting of a judgment denominated in and payment thereof in foreign currency. Section 23 of the Act did not do so either. The court can competently order payment of delictual loss or damages in United States dollars, and that the payment be converted to the ZWG currency (ZIG) at the interbank rate prevailing on the date of payment. See Shah v Nherera supra. Thus, save for the claim for US$330,000.00, which is a foreign obligation, the other successful claims are payable in the equivalent ZIG at the prevailing rate of exchange on the date of payment. The court finds the claim for damages in the sum of US$330,000.00 to be a foreign obligation payable in the denominated foreign currency. Concerning the costs of suit, there is no reason for the court to depart from the general rule that costs shall follow the cause. The successful party must be allowed to recover its costs. The plaintiff further claimed costs on a legal practitioner and client scale. The plaintiff simply claimed costs on a punitive scale without setting out the justification for such costs. They are not simply awarded against a litigant merely because a party has requested them. It is trite that costs on a legal practitioner and client scale are only awarded if there is conduct deserving of an award of such costs or the circumstances of the case justify such an order. Costs are a matter within the discretion of the court. See Mahembe v Matambo 2003 (1) ZLR 148 (H). In casu, the plaintiff did not justify an award for such punitive costs. I find no justification for the court to mulct the defendant with costs on a punitive scale as prayed for. Accordingly, it is hereby ordered as follows: The defendant shall pay the plaintiff the following sums or the ZIG equivalent at the prevailing foreign exchange rate on the date of payment: US$119,848.00. US$51,725.00. The defendant shall pay the plaintiff US$330,000.00 payable in the denominated foreign currency. The defendant shall pay interest on the principal sums stated in paragraphs (1) and (2) above at the prescribed rate from 1 December 2018 to the date of payment in full. The defendant shall reimburse the plaintiff 31,280 litres of fuel or its equivalent at the prevailing price and currency on the date of payment. The claim for the payment of the sum of ZWL101,748.29 is dismissed. The defendant shall pay the costs of suit. Dembure J: ……………………………………… Bere Brothers, plaintiff’s legal practitioners Muhonde Attorneys, defendant’s legal practitioners 13 HH 328-25 HCH 3026/20 13 HH 328-25 HCH 3026/20 AMNESTY INTERNATIONAL ZIMBABWE versus COUSIN ZILALA HIGH COURT OF ZIMBABWE DEMBURE J HARARE; 28, 29 & 30 January, 17 & 18 February & 30 May 2025 Civil Trial T R Mafukidze for the plaintiff N T Marufu for the defendant DEMBURE J: INTRODUCTION On 17 June 2020, the plaintiff, Amnesty International Zimbabwe, instituted this action against Cousin Zilala, who was cited as the first defendant, Sibongile Zimbeva and Takesure Musiiwa, the second and third defendants, respectively. The plaintiff’s claim is for the following relief: “(a) Payment of the total sum of US$148,609.08 by first defendant being the amount misappropriated and improperly benefited by the first defendant at the expense of the plaintiff. (b) Payment of the total sum of US$42,344.82 by second defendant being the amount misappropriated and improperly benefited by the second defendant. (c) Payment of the sum of ZWL101, 748, 29 by the defendants jointly and severally liable the one paying the other to be absolved being the total tax liability suffered by the plaintiff for conduct and or omissions of the defendants. (d) Payment of the sum of US$51,725.00 by the defendants jointly and severally liable the one paying the other to be absolved being the total of unlawful payments paid to staff bank accounts outside the plaintiff’s payroll. (e) Payment of the sum of US$330,000.00 jointly and severally liable the one paying the other to be absolved being financial prejudice suffered by plaintiff arising from improper payments made to companies known as Al Shams Global Limited and KMH. (f) Reimbursement of 61,880 litres of fuel by the defendants jointly and severally liable the one paying the other to be absolved being fuel unlawfully and irregularly drawn by staff members for the period from 2015 to February 2018 and fuel deficit unaccounted for or alternatively payment of the replacement value of the fuel at the time of the judgment. (g) Interest on the principal amounts claimed herein at the prescribed rate from first defendant 2018 to date of payment in full. (h) Payment of costs of suit on a legal practitioner and client scale.” Before trial, the plaintiff withdrew the claim against the second and third defendants. The first defendant accordingly remained the sole defendant in this suit. Of the plaintiff’s claims, only claims outlined in para(s) (a); (c); (d); (e) and (f) as well as for interest and costs of suit under para(s) (g) and (h) respectively, remained after the withdrawal of the case against the other defendants. These are the claims subjected to the trial proceedings, as the defendant denied liability. BACKGROUND FACTS It is common cause that the plaintiff is a registered Non-Governmental Organisation (NGO) based in Zimbabwe and is part of the Amnesty International movement. It is involved in the protection and enhancement of human rights in Zimbabwe. Its operations are based on and supported by donor funding. The plaintiff issued summons against three defendants, with Cousin Zilala cited as the first defendant. The second defendant, Sibongile Zimbeva (“Ms Zimbeva”), was the Finance and Office Administrator. The third defendant, Takesure Musiiwa (“Mr Musiiwa”), was a signatory to all the plaintiff’s bank accounts during the period covered by the forensic audit and also its Board Chairperson from 20 January 2018. After the case was withdrawn against the second and third defendants, Cousin Zilala is now the sole defendant. The defendant was employed as the plaintiff’s executive director from 1 May 2007 to 21 March 2018, when he resigned from employment. On 8 June 2018, the plaintiff engaged Deloitte Advisory Services (Pvt) Ltd, an accounting and auditing firm, to carry out a forensic audit or investigation for the period from 1 January 2015 to 28 February 2018. On 8 November 2018, the said audit firm submitted its forensic report to the plaintiff. The said forensic audit report titled “Amnesty International Zimbabwe Forensic Investigation Findings” was part of the plaintiff’s bundle of documents. It was tendered as an exhibit with the consent of the defendant. The plaintiff’s claims are in delict based on pure economic loss. They arise from the alleged various wrongful or unlawful acts and omissions of the defendant during his tenure as the executive director, resulting in serious financial prejudice to the plaintiff. The plaintiff seeks to recover the value of the financial prejudice or loss it allegedly suffered from the defendant. The financial losses, it was alleged, were unravelled by the forensic audit. The plaintiff persisted with the main claims in para(s) (a); (c); (d); (e) and (f) of the summons and declaration together with the ancillary relief for interest and costs of suit. It was averred for the plaintiff that some of the delicts were intentional, while some were based on negligence. At the trial, the plaintiff led evidence from the forensic auditor, Mr Wellington Mugabe (“Mr Mugabe” or “the auditor”) and Jesica Pwiti (“Ms Pwiti”), the plaintiff’s former acting director. The defendant denied liability for the plaintiff’s claims. He contended that the plaintiff’s claims in United States Dollars are unlawful as they should be in RTGS dollars due to the effect of the provisions of ss 22(1) and 23(1) as read with subsection (3) of the Finance Act (No. 2), 2019 Act No. 7 of 2019 (“the Act”). He further pleaded that the audit report was a sham process whose outcome was manipulated and influenced by the plaintiff. He contended that the plaintiff did not suffer any loss as a result of his conduct since everything was done procedurally in terms of the plaintiff’s policies and standards. He, therefore, prayed for the dismissal of the claim for want of legality and lack of merit with costs on a legal practitioner and client scale. He also testified in his own defence. ISSUES FOR TRIAL The triable issues were stated in the parties’ joint pre-trial conference minute as follows: “1.1 Whether or not the defendants are indebted to the plaintiff and if so, to what extent? 1.2 Whether or not the claim by the plaintiff can be granted in United States dollars as claimed?” These issues must now be resolved in the context that the case is against the defendant alone. I must deal with the second issue first to determine if the claims in foreign currency are lawful and can be granted in that currency, before I determine whether the defendant is liable and to what extent. 1. WHETHER OR NOT THE CLAIM CAN BE GRANTED IN UNITED STATES DOLLARS The issue arises from the defendant’s plea, where it was pleaded as follows: “1. Plaintiff’s claims sound[ing] in money denominated in USD currency are contrary to and in violation of the law; and therefore are unlawful to the extent that the claims remain in USD currency. 2. In terms of section 22 (1) (a) of Part VI of the Finance (No. 2) Act No. 7 of 2019, the electronic currency, RTGS Dollar was issued as the lawful currency of the Republic of Zimbabwe with effect from 22nd February 2019 (as defined in section 20 of the same Part VI) as validated by section 22(3) of the same Part VI. 3. Thus, per section 22 (I) (b), (c), (d) and (f), this RTGS Dollar became legal tender within Zimbabwe with effect from 22nd February 2019 and replaced the USD currency at par (one-to-one rate 1 : 1) as opening RTGS balances on that date. 4. Effectively, the USD currency ceased to exist and operate within Zimbabwe on midnight 22nd February 2019 to all transactions, judgment debts and all obligations except in respect of specified transactions mentioned in subsection 4 relating to Nostro foreign currency accounts and taxation charges levied in foreign currency. 5. Section 22 (l) (e) specifically provides for regulation and applies to authorised dealers' transactions in the exchange of RTGS dollar for the USD on a willing-seller wiling-buyer basis as validated by section 22 (3) of the same Part VI. 6. Furthermore, in terms of section 23 (1) of Part VI of the Finance (No. 2) Act No. 7 of 2019, RTGS Dollar being the lawfully issued currency of the Republic of Zimbabwe, is the sole legal tender in any transaction in Zimbabwe with effect from the second effective date, being 24th June 2019. 7. This, however, does not apply only to specified transactions mentioned in subsection 4 relating to Nostro foreign currency accounts and taxation charges levied in foreign currency. 8. Section 23 (3) of the said Part VI clearly declares that references to Zimbabwean dollar as the only currency and legal tender, also means bond notes or coins and the electronic currency, RTGS dollar, all being at par (one-to-one rate 1:1). 9. It therefore follows without doubt and ambiguity that at any claim sounding in money should be in RTGS Dollar or Zimbabwean dollar, which is the sole currency and sole legal tender in Zimbabwe with effect from 22nd February 2019. 10. Consequently, the plaintiff’ claim/s denominated in USD currency are unlawful, must therefore fail and be dismissed with costs on a legal practitioner and client scale for want of legality.” SUBMISSIONS MADE BY THE PARTIES It was submitted for the defendant that the plaintiff’s claim is unlawful for want of compliance with ss 22 and 23 of the Finance (No. 2) Act No. 7/2019 (“the Act”). The plaintiff issued summons claiming, inter alia, payment of US$148,609.08, being the amount misappropriated by the defendant, US$51,725.00 paid to staff bank accounts outside the payroll, and US$330,000.00 being improper payments made to Al Shams Global Limited and KHM. These claims were made in United States dollars contrary to the provisions of the Act. Mr Marufu further argued that as of 22 February 2019, the RTGS dollar became the lawful currency of Zimbabwe. Reference was made to ss 22(1) and (2) and 23(1) of the Act. It was also argued that in terms of these provisions, any debt owed or incurred before and after the coming into effect of the Act was claimable in RTGS dollars at a rate of one-to-one. The plaintiff's claims made in United States dollars should fail for their failure to comply with the provisions of the law. Reference was made to the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC 3/20, particularly at p 12. The argument was also that, given that the plaintiff’s claim is outlined in a foreign currency, it is inconsistent with the law and should be dismissed with costs. The liability, if any, arose when the audit report was completed and when the plaintiff issued its summons. Once it is ascertained that the liability to pay predates the effective date, 22 February 2019, the plaintiff’s claim is affected by s 4(1)(d) of SI 33/2019 and s 22(1)(d) of the Act, 2019 and the court must give effect to the provisions of the law. Reference was also made to the case of Exodus & Company (Pvt) Ltd v Shavi HH 510/21. Counsel also submitted that the plaintiff’s funds transferred to KHM and Al Shams Global Limited were not held by the plaintiff at or after the coming into effect of SI 33/2019. The transactions had long taken effect and had been accounted for. Even applying the principle of restitution in criminal matters, the plaintiff’s claim stands to suffer at the hands of the Act. See S v Harry HH 36/22 and S v Pemhiwa & Ors HH 717/18. Per contra, it was argued for the plaintiff that the Supreme Court settled the issue in Delta Beverages (Pvt) Ltd v Sarah Borcherds and Julian William Gerard Borcherds SC 494/24. The court overturned a High Court judgment in an ex tempore judgment and ordered that the respondents should pay to Delta the amount of US$1,031,697.34 in United States dollars or the equivalent in local ZIG equivalent at the prevailing rate of exchange on the date of payment, which is the amount the Borcherds stole or unlawfully transferred from Delta’s account during the period from 3 November 2016 to 21 February 2019. The first respondent had admitted liability to the appellant and paid the sum of ZWL1,093,648.12 on 20 January 2020. The High Court had applied the provisions of s 22(1)(d) of the Finance (No. 2) Act and held that they had discharged their debt. Mr Mafukidze further argued that in terms of s 21(2)(a) of the Act, funds held in nostro foreign currency account were exempted. The import of the exemption is that if the funds were stolen from the plaintiff or abused were held in nostro foreign currency accounts, it would not affect the plaintiff’s claim in USD. Funds held in foreign currencies continued to be designated in such foreign currencies. There was no conversion of such amounts to 1:1. The funds (US$330,000.00) were withdrawn from its FCA nostro account held with Ecobank. They were all denominated in foreign currency, and the balances were never the subject of conversion as stated by the law. In terms of s 21(2)(b), foreign loans and obligations denominated in any foreign currency shall continue to be payable in such currency. He further submitted that the US$330,000.00 that was stolen by the defendant in Zambia and transferred to Botswana into the accounts of KHM and Al Shams Global is a foreign obligation. It must be repaid in the currency of the loss. If property is stolen, the plaintiff’s damages are assessed as the market value of the property at the time and place of the loss. The tax obligation is the only amount payable in local currency. Should the court find that any of the USD-denominated amounts (excluding the US$330,000.00 in Zambia) should be paid in local currency, it can only order that the amount be paid at the ruling exchange rate as at the date of payment. The court is bound by the Supreme Court decision in the Delta case. Counsel went on to chronicle the legislative and policy history from the Finance Act (No.2) of 2009, culminating in the Finance Act (No. 2), 2019. It was argued that the assets and liabilities that existed immediately before 22 February 2019, deemed to be values in RTGS dollars at the rate of one-to-one to the United States dollar, do not include liabilities yet to be established in a court of law, such as arising from theft and negligence. Reference was made to the Zambezi Gas judgment where the Supreme Court held that s 4(1)(d) of SI 33/2019 would not apply to the value of assets and liabilities immediately before the effective date which was still to be assessed by the application of the agreed formula. There is no judgment debt. Liability is yet to be determined by the court hearing this action. The quantum of liability is yet to be determined. There is no judgment that could have been converted to local currency. A judgment debt is defined in s 20 of the Act. It was also argued that the defendant cannot benefit from his own wrong. Reference was made to the cases of Standard Chartered Bank of Zimbabwe Ltd v Matsika 1997 (2) ZLR 389 (S) at 389G and Wimbledon Lodge (Pty) Ltd v Gore NO & Ors 2003 (5) SA 315 (SCA). Mr Mafukidze argued that the plaintiff would be prejudiced in value if the amount stolen in USD is paid in the form of RTGS dollars. The purpose of the Act could not have been to benefit criminal or delictual conduct. There is nothing in the language of the statute and the Directive that remotely suggests a purpose that can be aligned with fraudulent activity. On proper interpretation of the provisions of the statute, reference was made to various cases, including Endeavour Foundation & Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S). The defendant must make good the difference between the value of the plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed. See Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at p 917B. In the plaintiff’s replying submissions, the order issued by the Supreme Court in the case of Delta Beverages (Pvt) Ltd v Borcherds & Anor was quoted verbatim. It was argued that the respondent’s argument that the stolen money was converted at 1:1 in 2019 and settled was dismissed. The amounts stolen from the plaintiff’s account in Zambia are repayable in USD currency. It is not subject to conversion as it was foreign currency transferred from outside Zimbabwe. Counsel also submitted that if the court finds the amount convertible, it can order that the amounts are payable in USD or the local equivalent at the prevailing rate of exchange on the date of payment. ANALYSIS OF THE LAW AND THE FACTS The relevant provisions of the Finance (No. 2) Act, 2019, No. 7 of 2019 (“the Act”) are s 22(d) and (e), s 22(4) and also s 20. The relevant parts of s 22 read as follows: “22 Issuance and legal tender of RTGS dollars, savings, transitional matters and validation (1) Subject to section 5, for the purposes of section 44C of the principal Act, the Minister shall be deemed to have prescribed the following with effect from the first effective date— (a) that the Reserve Bank has, with effect from the first effective date, issued an electronic currency called the RTGS dollar; and (b) 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 first effective date, shall from the first effective date be deemed to be opening balances in RTGS dollars at par with the United States dollar; and (c) that such currency shall be legal tender within Zimbabwe from the first effective date; and (d) that, for accounting and other purposes(including the discharge of financial or contractual obligations), all assets and liabilities that were, immediately before the first 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 the first effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar; and (e) that after the first effective date any variance from the opening parity rate shall be determined from time to time by the rate or rates at which authorised dealers exchange the RTGS dollar for the United States dollar on a willing-seller willing-buyer basis; and (f) every enactment in which an amount is expressed in United States dollars shall, on the first effective date (but subject to subsection (4), 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. (2) From the first effective date, the bond notes and coins referred to in the Reserve Bank of Zimbabwe Amendment Act, 2017 (No. 1 of 2017) shall continue to be legal tender within Zimbabwe, exchangeable with the RTGS dollar at parity with each bond note unit, that is to say, at a one-to-one rate. (3) … (4) For the purposes of this section— (a) it is declared for the avoidance of doubt that financial or contractual obligations concluded or incurred before the first effective date, that were valued and expressed in United States dollars (other than assets and liabilities referred to in section 44C (2) of the principal Act) shall on the first effective date be deemed to be values in RTGS dollars at a rate of one-to-one to the United States dollar …” (Emphasis added) See also s 23 of the Act which provides that the Zimbabwean dollar shall be the sole legal tender. It reads: “23 Zimbabwe dollar to be the sole currency for legal tender purposes from second effective date (1) For the avoidance of doubt, but subject to subsection (4), it is declared that with effect from the second effective date, the British pound, United States dollar, South African rand, Botswana pula and any other foreign currency whatsoever are no longer legal tender alongside the Zimbabwe dollar in any transactions in Zimbabwe. (2) Accordingly, the Zimbabwe dollar shall, with effect from the second effective date, but subject to subsection (4), be the sole legal tender in Zimbabwe in all transactions.” (Emphasis added) The above provisions incorporated the provisions of 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, SI 33 of 2019 and the Reserve Bank of Zimbabwe (Legal Tender) Regulations, 2019, SI 142 of 2019. The Supreme Court has already interpreted the applicable provisions' legal effect in several judgments, including in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N. R. Barber (Pvt) Ltd & Anor 2020 (1) ZLR 138 (S). It is now settled that a delict cannot be categorised as an asset or liability that could be convertible into RTGS dollars in terms of s 22(1)(d) as read with ss 20 and 22(4)(a) of the Act until it is voluntarily accepted as such by the wrongdoer or until such acceptance is foisted upon the wrongdoer by a court of competent jurisdiction. Delictual claims are excluded from the effect of the said provisions, even if they arose before the effective date. The delict remains a claim until computed or quantified, or the liability is fixed and imposed by the court. The value of the loss becomes an asset or a liability and a judgment debt as defined in s 20 of the Act once the court has assessed the loss and ordered payment. This legal position was settled in Ingalulu Investments & Anor v NRZ & Anor SC 42/22, where the Supreme Court authoritatively held that: “Section 22 (1) (d) and (e) as read with s 22 (4) (a) of the Act prescribe that the values of all assets and liabilities that were expressed or any financial or contractual obligations, other than foreign obligations, that were concluded or incurred in United States dollars on or before 22 February 2019 (the effective date or cut-off date), were deemed to have been expressed, concluded or incurred in RTGS dollars at the rate of one-to-one to the United States dollar. Further, that the value of all assets accrued or liabilities incurred after the cut-off date would be payable at the prevailing interbank rate of the local currency to the United States dollar. Section 20 of the Act extends the application of the above cited provisions of the Act to judgment debts. In addition, the ratio decidendi in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd & Anor SC 3/20, was that, in terms of the relevant provisions of the Act, a judgment debt denominated in United States dollars on or before the cut-off date would be liquidated at the parity rate of one-on-one to the RTGS dollar. It is trite that regard must be had to the text, context and purpose of the provisions and the broader architectural design of the Act. The relevant provisions must, per force, be construed as a whole and not in piecemeal fashion. It is also axiomatic that a delict, unlike a financial or contractual obligation, cannot be categorized as an asset or liability until it is voluntarily accepted as such by the wrongdoer or until such acceptance is foisted upon the wrongdoer by a court of competent jurisdiction. This is because a delict is committed and does not accrue like an asset nor is it incurred like a liability. In accounting terms, an asset or a liability has an ascertainable monetary value, which is recorded in the relevant books or statements of account. This is the position that pertains to a judgment debt. It constitutes an asset in the books of the judgment creditor and, conversely, a liability in the hands of a judgment debtor. Neither of these parties can treat a delictual claim as an asset or a liability. They can only do so after a competent court of law has made a determination on whether the claim establishes a liability and thereafter assesses the measure of such a liability. In any event, only a judgment debt and not a delictual claim can be executed in the manner contemplated in s 20 of the Act. It is for these reasons that we agree with Mr Tshuma that the text, context and purpose of both the relevant provisions and the broader scheme of the Act incorporates a financial or contractual obligation concluded or incurred before the effective date and a judgment debt made on or before the effective date and not a mere delictual claim lodged on or before that date into the ranks of assets and liabilities. We are not persuaded by the contrary contentions made by Mr Mazibuko that the text of the Act is wide enough to include delictual claims lodged before the effective date into the category of assets and liabilities that are payable at the one-on-one parity rate.” (My emphasis) In casu, the plaintiff’s claims are delictual. The plaintiff alleged various acts and omissions constituting wrongful conduct against the defendant, which it further alleged caused it to suffer pure economic loss. It was alleged that these were unravelled in the forensic audit. Accordingly, its claims being delictual, fall squarely within what the Supreme Court has already settled. The delicts do not fall in the category of assets or liabilities, which could be deemed to be in local currency at the parity rate in terms of the Act. The delicts have not been accepted by the defendant, nor has the acceptance been foisted on the defendant by the court. They cannot, therefore, constitute a debt or judgment debt as defined in s 20 of the Act. This surely may be the basis of the decision in the Delta Beverages case supra. I say may be, because this court was not furnished with the reasons for the judgment in that matter. In any case, from the Ingalulu Investments case, supra, it is not in doubt that the issue has been settled by binding precedent. This court is bound to follow the decision of the Supreme Court on the same issue. Thus, in Shah v Nherera SC 55/24 Chatukuta Ja made the following remarks: “26. The Supreme Court had spoken. Decisions of this Court are absolute as the Supreme Court is the final court of appeal in all matters, except in matters of a constitutional nature. The court in Kasukuwere v Mangwana SC 78/23, at p 17, quoted with approval the case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Limited & Anor 2018 (2) ZLR 743 (CCZ) at 757 A wherein it was held that: “What is clear is that the purpose of the principle of finality of decisions of the Supreme Court on all non-constitutional matters is to bring to an end the litigation on the non-constitutional matters. A decision of the Supreme Court on a non-constitutional matter is part of the litigation process. The decision is therefore correct because it is final. It is not final because it is correct. The correctness of the decision at law is determined by the legal status of finality. The question of the wrongness of the decision would not arise. There cannot be a wrong decision of the Supreme Court on a non-constitutional matter.” (Own emphasis). 27. The Supreme Court decision, being final was correct. Because of the principle of stare decisis, the decision was binding on the court a quo. The principle of stare decisis is that a lower court cannot depart from findings on questions of fact and law made by a superior court. See Denhere v Denhere & Anor CCZ 9/19, Diana Farm (Pvt) Ltd v Madondo NO & Anor 1998 (2) ZLR 410 (H).” Given the decision in Ingalulu Investments supra, which is binding, the plaintiff’s claims cannot be unlawful. The amounts claimed were not converted by operation of the law into local currency as alleged. The court has not yet quantified the loss or foisted the claims on the defendant. This is the same principle enunciated in the Zambezi Gas Zimbabwe case, supra, at p 144F, where the Supreme Court also said: “Section 4(1)(d) of S.I. 33/19 would not apply to assets and liabilities, the values of which were expressed in any foreign currency other than the United States dollar immediately before the effective date. If, for example, the value of the assets and liabilities was, immediately before the effective date, still to be assessed by application of an agreed formula, s 4(1)(d) of S.I. 33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars. It is the assessment and expression of the value of assets and liabilities in United States dollars that matters.” (My emphasis) Further, it is also a settled principle of the law that “in the absence of an enactment directly prohibiting the courts to order payment in foreign currency, a court is at liberty to pronounce a judgment for damages sounding in foreign currency though such amount may be paid in local currency at the interbank rate prevailing at the date of payment.” See Shah v Nherera supra, where the Supreme Court had this to say: “In any event, the court a quo ordered that the payment of the damages in United States dollars be converted to RTGS dollars at the interbank rate prevailing on the date of payment. It could competently do so. In Construction Resources Africa (Pvt) Ltd v Central African Building and Construction Company (Pvt) Ltd & Another SC 110/22, at p 37, the court citing with approval the case of Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (S), remarked as follows: - “I am firmly of the opinion that in the absence of any legislative enactments which require our courts to order payment in local currency only, the innovative lead taken both in Miliangos v George Frank (Textiles) Ltd [1975] 3 All ER 801 (HL)) and the subsequent extensions to the rule there enunciated, and in the Murata Machinery Ltd v Capelon Yarns (Pty) Ltd 1986 (4) SA 671 (C)at 673C-674B and 674E) case in South Africa, is to be adopted. This will bring Zimbabwe into line with many foreign legal systems. See Mann The Legal Aspect of Money 4 ed at pp 339-340. Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of a devaluation in the value of currency between the due date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into the local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.” 46. In view of the above, it is trite that in the absence of an enactment directly prohibiting the courts to order payment in foreign currency, a court is at liberty to pronounce a judgment for damages sounding in foreign currency though such amount may be paid in local currency at the interbank rate prevailing at the date of payment. The court a quo therefore did not misdirect itself when it held that the law did not proscribe the grant of damages in foreign currency to be paid in RTGS dollars at an equivalent rate reckoned at the interbank rate at the time of payment.” The court in this case is also at liberty to grant the amounts claimed in foreign currency to be paid at the equivalent local currency at the prevailing exchange rate. This is also what the Supreme Court ordered in the Delta Beverages case supra. In my view, this would not, however, extend to a foreign obligation which must remain payable in the denominated currency. If the funds held by the plaintiff in the offshore account with Ecobank in Zambia are to be found to have been misappropriated or stolen in that currency in Zambia, such sum of US$330,000.00 would have to be reimbursed in that currency. The defendant would be required to make good the difference between the value of the plaintiff’s estate after the commission of the delict and the value it would have had if the delict had not been committed. See Dippenaar v Shield Insurance Co Ltd 1979 (2) SA 904 (A) at p 917B. The obligation to reimburse or pay arising from the delict relating to such funds remains a foreign obligation. The amount must be payable in the foreign currency denominated value of the loss. The principle that foreign obligations remain payable in the denominated foreign currency was restated in Brom v Verdure Investment & Ors SC 28/23, where Chiweshe Ja stated that: “The respondents have not denied the existence of this and other similar directives issued by the Reserve Bank from time to time. Neither have they challenged the validity of such directives from the monetary authorities. It is clear that the Reserve Bank of Zimbabwe regards funds such as those held by the appellant in a non-resident account at CABS as offshore or foreign funds. Any loans or obligations deriving from such funds are deemed to be foreign loans or obligations. This position as given by the monetary authorities accords with the provisions of s 44C (2) (b) of the Reserve Bank Act. In our view those provisions must be interpreted accordingly… For purposes of s 44C (2) (b) all that needs to be established is that the loans advanced to the respondents were sourced offshore. That on its own creates a foreign loan or obligation. It is not necessary that the appellant alleges that the funds advanced had been borrowed offshore thereby creating an obligation to pay off a creditor who is outside this jurisdiction. Once the loans are advanced from offshore funds, they are payable in foreign currency…” (My emphasis) Although the court in the above case was specifically dealing with loans, the reasoning therein fully applies to this case. The defendant, if found liable to pay US$330,000.00, which was stolen from an offshore account in Zambia that would create a foreign obligation payable in the denominated currency of the value of the loss. I, therefore, agree that the amount cannot be converted into local currency or be payable in local currency at the prevailing exchange rate, as with the other amounts. For the above reasons, the argument or legal point that the plaintiff’s claims in foreign currency are unlawful or irregular for want of compliance with the law is devoid of any merit. I accordingly dismiss the point. 2. WHETHER OR NOT THE DEFENDANT IS INDEBTED TO THE PLAINTIFF AND IF SO, TO WHAT EXTENT? THE LAW AND THE ANALYSIS The plaintiff’s case is delictual. It is what is commonly referred to as an Aquilian action. G. Feltoe, A Guide to the Zimbabwean Law of Delict, 2012, described an Aquilian action as the cornerstone of our law of delict. At p 9, he restated the requirements for an Aquilian action as follows: “(i) There must have been some conduct on the defendant’s part (i.e. an act on omission) which the law of delict recognizes as being wrongful or unlawful. (The wrongfulness requirement). (ii) The conduct must have led either to physical harm to person or property and, thereby to financial loss, or have caused purely financial loss which does not stem from any physical harm to person or property. (The so called patrimonial loss requirement, one’s patrimony being one’s property and finances); (iii) The defendant must have inflicted the patrimonial loss intentionally or negligently. (The fault requirement) (iv) There must be a casual link between the defendant’s conduct and the loss (the causation requirement).” The plaintiff claims for pure financial losses arising from the alleged wrongful conduct of the defendant, some caused by intention (dolus) and others by negligence (culpa). In Minister of Finance & Ors v Gore NO 2007 (1) SA 111 (SCA) at para 87, Cameron and Brand Jja writing for the court’s unanimous decision remarked as follows: “In the language of more recent formulations of the criterion for wrongfulness: in cases of pure economic loss, the question will always be whether consideration of public or a legal policy dictates that delictual liability should be extended to loss resulting from the conduct at issue. Thus understood, it is hard to think of any reason why the fact that the loss was caused by dishonest (as opposed to bona fide negligent) conduct, should be ignored in deciding the question. We do not say that dishonest conduct will always be wrongful for the purposes of imposing liability, but this is difficult to think of an example where it will not be so.” At para 88, the South African Supreme Court of Appeal further held that: “In our view, speaking generally, the fact that a defendant’s conduct was deliberate and dishonest strongly suggests that liability for it should follow in damages...” What constitutes “pure economic loss” in relation to negligent conduct was explained in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 1, where Harms Ja had this to say: “Pure economic loss” in this context connotes loss that does not arise directly from damage to the plaintiff's person or property but rather in consequence of the negligent act itself, such as loss of profit, being put to extra expenses or the diminution in the value of property.” The claims must be considered in the light of the defendant’s lawful duties and responsibilities as the executive director of the plaintiff during the relevant period. It was common cause that he was in that office from May 2007 to June 2018 and, therefore, during the period covered by the forensic investigations. There is also no dispute that the defendant signed his job description, which is at pp 284-286 of the plaintiff’s bundle. I agree that his job description placed him at the heart of this case, as he was the senior authority responsible for the overall management of the plaintiff’s financial resources. He was, inter alia, required to develop and maintain a culture of accountability; facilitate the development and maintenance of best practice, organisational processes and systems; ensure the effective financial and organisational performance of the plaintiff; achieve strategic plan’s financial and non-financial performance measures/standards; ensure the plaintiff met the requirements of the international movement and all relevant national and local legislation. His role was not, therefore, merely to ‘check’ payment vouchers or requisitions, as he put it. Under cross-examination, the defendant admitted that his role included approving and authorising payments as stated in the Finance Policy and Procedures Manual. It was clear that his role was not that of a person who simply checked payments. His duties included supervising the Finance and Office Administrator, Ms Zimbeva, who was reporting to him. See p 281, being the job description for that office, which the defendant duly signed. He remained responsible for accountability in the use of funds for the organisation, despite that he had officers under him. In that regard, he can be held to be negligent in this context if he failed to exercise due and reasonable care in the performance of the duty imposed. Further, Ms Pwiti, the plaintiff’s second witness, confirmed that as the executive director, the defendant authorised payments and was responsible for ensuring that the right persons were recruited and engaged in all offices involved in financial and administrative management. The defendant’s attempts to downplay his responsibilities and role were, therefore, unacceptable given the credible evidence from the plaintiff’s witnesses and the documents detailing his job description, as well as the Amnesty Finance Policy and Procedures Manual from p 184 of the record. The manual also established that the defendant was responsible for approving payments and managing financial resources. In that responsibility, he would be reporting to the board of trustees. He had a legal duty to act reasonably to protect the plaintiff’s financial resources. His defence that he was not in charge of the financial affairs of the plaintiff was clearly untenable, given the evidence which established his role and responsibilities in the financial management of the plaintiff. The position of the defendant in the plaintiff’s organisation and the responsibilities he had established the necessary legal duty of care he owed to the plaintiff. It is also pertinent to highlight that what is at the heart of the plaintiff’s claims is the forensic audit. The claims are founded on the findings from the forensic audit. The audit report was produced as evidence. The plaintiff’s evidence through its first witness, Mr Mugabe, established that the defendant was given an opportunity to participate in the audit process, but he spurned it. He was served with the questionnaire in terms of which his comments or input on several factual issues were sought. The form is part of the plaintiff’s documentary evidence produced at the trial and starts from p 219 of the plaintiff’s bundle. The document was served by the Messenger of Court upon his wife. Proof of service of such document in the form of the return of service was produced as part of the plaintiff’s evidence and is at p 218 of the plaintiff’s bundle. He acknowledged that he was served with this questionnaire seeking his comments or inputs on the auditor’s enquiries. The defendant also admitted that he was fully aware of the questions asked in the questionnaire. In his plea, he admitted that he had taken a position that he was no longer an employee of the plaintiff and that he could not comment. In my view, he erroneously refused to participate on the basis that he had ceased to be employed by the plaintiff. He, therefore, missed the crucial opportunity to test the veracity of the facts established by the auditors before they could make their conclusions. Further, the evidence of Mr Mugabe, which was also unchallenged, was that he contacted the defendant for interviews and the defendant requested him to send his requests in writing. He wrote an email to the defendant on 2 July 2018 informing him that they were carrying out an audit and wanted to interview him. But the defendant replied, stating that his contract with the plaintiff had ended and, therefore, his rights and duties pursuant to his contract were extinguished following the termination. Efforts by the auditor to have the meeting arranged through Mr Musiiwa again went unanswered by the defendant. He clearly refused to cooperate, and this position remained unchallenged even under cross-examination. Evidence showed that the forensic audit was commissioned by the plaintiff and that it endorsed its findings, hence this suit. Ms Pwiti also confirmed that the audit findings were adopted by the plaintiff and its recommendations implemented when she took over as the interim executive director of the plaintiff. Her evidence that the audit findings were presented to the board in the presence of the regional director and representatives from the International Secretariat was not challenged by the defendant. It was stated that at that meeting, as the report was being presented and when it became evident that there were findings incriminating Mr Musiiwa, he voluntarily resigned as the board chair to ensure the implementation of the corrective measures. She also said that Mr Musekiwa was elected as the new board chairman following Mr Musiiwa’s decision to withdraw. This evidence was not challenged by the defendant in cross-examination. I, therefore, reject the defendant’s defence that the audit was a sham or that it was manipulated and influenced by the plaintiff. On the same basis above, the court cannot accept the defendant’s defence that the audit report was not authentic or not adopted by the plaintiff’s board of trustees. During the cross-examination of Mr Mugabe, the defendant did not seriously challenge or discredit the report as a sham or a product of an improper and flawed process which the court ought not to rely on. I associate myself with the remarks in President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors 2000 (1) SA 1, where the Constitutional Court of South Africa highlighted the purpose and importance of cross-examination as follows: “[61] The institution of cross-examination not only constitutes a right, it also imposes certain obligations. As a general rule it is essential, when it is intended to suggest that a witness is not speaking the truth on a particular point, to direct the witness's attention to the fact by questions put in cross-examination showing that the imputation is intended to be made and to afford the witness an opportunity, while still in the witness-box, of giving any explanation open to the witness and of defending his or her character. If a point in dispute is left unchallenged in cross-examination, the party calling the witness is entitled to assume that the unchallenged witness's testimony is accepted as correct. This rule was enunciated by the House of Lords in Browne v Dunn [[1893] 6 R 67 (HL)] and has been adopted and consistently followed by our courts.” In determining the first issue, the court will consider each claim by the plaintiff and assess the evidence led by the plaintiff and by the defendant in his defence and determine if such claims have been proved or established on a balance of probabilities. The guiding principle is that one who alleges must prove. Thus, in ZIMSCO (Pvt) Ltd v Tsvangirai & Ors SC 12/20, the court remarked that: “It is trite that “he who alleges must prove”. The maxim was applied in the cases of Circle Tracking v Mahachi SC 4/07 and Goliath v Member of the Executive Council for Health, Eastern Cape 2015 (2) SA 97 (SCA). In the absence of such evidence, the court as the adjudicating authority cannot make its determination.” CLAIM FOR US$148,609.08 The plaintiff claimed this total amount under various sub-claims. According to the plaintiff, the said amount arises from the financial prejudice it suffered whilst the defendant improperly benefited from such prejudice arising from paid non-contractual allowances, collected and unaccounted for cash withdrawals, outstanding loan balances, non-contractual and unauthorised fuel and mileage allowances and policy violations. Since the claim is made up of several sub-claims, the court must consider each such sub-part to establish whether the plaintiff discharged the onus to prove its claim on a balance of probabilities as required by the law. 43.1. Payment of non-contractual allowances 43.1.1. The plaintiff claimed a total of U$50,053.00 as non-contractual allowances improperly paid over and above contractual monthly salary to the plaintiff’s employees from sub-grants outside the plaintiff’s payroll. The payments also evaded tax in the form of PAYE. Mr Mugabe gave a detailed narration of their findings and referred the court to the audit report at pp 57-58 of the plaintiff’s bundle. Table 10 of the report provided the schedule of the totals paid to the staff members who included the defendant, Ms Muzerengi, Ms Zimbeva, Mr Mphande and Mr Munava. They were paid from the subgrants, namely Radio Help (of a total US$3,800.00), EEJ (US$42,497.00), and UNIDEF (US$3,756.00). These payments were made in addition to the salaries already covered by the Amnesty International Resource Allocation Mechanism (“RAM”) budget. 43.1.2. I find the auditor to be a credible witness. His testimony was corroborated by Ms Pwiti, who also confirmed that the salaries were fully covered by the RAM budget from Amnesty International. The defendant should not have authorised the payments of such additional non-contractual allowances. The defendant, in his evidence in chief, stated that the payments were approved by the International Secretariat under the Global Human Rights Program. He admitted under cross-examination that he did not put this position to the plaintiff’s witnesses in cross-examination. He also conceded that these allowances were not part of the terms and conditions of the staff members’ employment contracts, as that would be against the policy of the plaintiff. 43.1.3. The auditor’s testimony, as expanded in the audit report, was that Ms Zimbeva informed him that the defendant instructed her to make these payments. In any case, his role also included authorising the payments. To the extent that he did not put the issues to the plaintiff’s witnesses that the payments were approved by the secretariat and that he was authorised to make these payments outside the payroll by the Amnesty International Secretariat and pay them tax-free, I would accept the plaintiff’s testimony as unchallenged. See President of the Republic of South Africa & Ors v South African Rugby Football Union & Ors supra. I also adopt the sentiments expressed in Small v Smith 1954 (3) SA 434 (SWA) that: “It is, in my opinion, elementary and standard practice for a party to put to each opposing witness so much of his own case or defence as concerns that witness, and if need be, to inform him, if he has not been given notice thereof, that other witnesses will contradict him, so as to give him fair warning and an opportunity of explaining the contradiction and defending his own character. It is grossly unfair and improper to let a witness's evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.” 43.1.4. The defendant raised an issue with the recording of the total sum of US$50,053.00 in the cross-examination of the auditor, focusing on para 7.17 at p 44 of the plaintiff’s bundle, where the words “monthly allowances” were used. Mr Mugabe clarified and corrected that the amount reflected the total allowances paid for the period under review and that it was not per month. That was also in line with the documentary evidence from para 10.1.5 at p 57 of the plaintiff’s bundle. In para 10.1.5 at p 57, the figure is correctly stated in the report as being the total amount paid for the whole period under review. The narrative is correctly recorded thereon, and the witness’s testimony clarified the correct position. That typing error in para 7.17 at p 44 cannot sway me to discard Mr Mugabe’s evidence on the issue. The witness’s clarification, as supported by the evidence from para 10.1.5, which is in sync with his testimony, was believable. 43.1.5. The plaintiff, therefore, managed to prove this sub-claim. The defendant is liable for the loss in the sum of US$50,053.00 as claimed. 43.2. Misappropriation of membership fees 43.2.1. The auditor gave evidence that from their findings, the defendant stole US$6,200.00 collected as membership fees. He testified that the amount was collected and signed for by the defendant from Ms Zimbeva. There were no supporting documents as to how he used the funds. Reference was made to p 73 of the plaintiff’s bundle. The exact dates and the amounts he collected from Ms Zimbeva and converted to his own use are reflected in the vouchers from pp 192-198 (Annexure 67) of the plaintiff’s bundle. The vouchers for each payment received by the defendant are shown. The defendant did not dispute that he collected the said sums as cash from Ms Zimbeva. He failed to account for it. This constituted theft of trust property. The defendant also did not give any evidence on this sub-claim or address it in his evidence at the trial. 43.2.2. During the cross-examination of the auditor, the only issue raised was that the period some of the vouchers showed was before that covered by the audit. Mr Mugabe said that they were instructed by Mr Musiiwa, the then chairman, to include them. In my view, it is immaterial that he had collected such cash from as far back as 2014, a period outside the audit itself. As long as that evidence establishes that he received such cash and failed to account for it, the value of such funds can still be claimed if shown to have been unlawfully misappropriated or stolen, too. The emphasis is not necessarily on the dates when the funds were stolen, but whether they were stolen. The issue of dates might have arisen if the defendant had raised the defence that claims running back to 2014 had prescribed. He did not raise such a defence. The evidence by the plaintiff, backed by the vouchers, established without any doubt that the defendant received US$6,200.00 cash, which was for membership fees. The plaintiff further managed to prove that the defendant unlawfully converted the said plaintiff’s funds to his own use or misappropriated the said funds. The plaintiff is, therefore, entitled to recover the said sum of US$6,200.00. 43.3. The claim for membership mapping fees misappropriated 43.3.1. The auditor testified that the cash disbursements signed for by the defendant for the membership mapping exercise and misappropriated amounted to a total of US$8,535.00. The court was referred to the audit report in para (b) at p 72 of the plaintiff’s bundle, which referred to that amount as the total prejudice to the plaintiff. He further testified that there was no document or record to show that the defendant used the funds for the intended activities. He enquired about the use of such funds to the Campaigns Coordinator, Mrs Muzerengi, and she confirmed that no such exercise was carried out. The coordinators also denied knowledge of such membership mapping exercise having been carried out. At p 186 of the plaintiff’s bundle (Annexure 64) are the cash requisitions signed for by the defendant. The total figure from the cash requisitions is US$8,035.00. 43.3.2. Mr Mugabe admitted that he omitted the cash requisition for US$500.00, and he claimed that the total misappropriated by the defendant should be US$8,535.00. Under cross-examination, the auditor conceded that there is no document to prove that the defendant collected the said US$500.00. He said it might have been missed from the photocopying of the record. There was no dispute that no proof of such cash requisition of US$500.00 was produced. The plaintiff accepted this position, as in its closing submissions, the assertion is that the plaintiff paid US$8,035.00 to the defendant for the membership mapping exercise, which he misappropriated. See para(s) 80 at p 26 of the plaintiff’s closing submissions. The defendant did not dispute that he received the said sum of US$8,035.00. His version in his evidence in chief that he utilised the funds for the membership mapping exercise with the chairman, which was the purpose the funds were collected, was not put to the auditor in cross-examination. He further claimed in his evidence in chief that he organised activities with local coordinators throughout the country and spoke of the creation of two WhatsApp groups where pictures and videos were shared. He admitted that he did not submit the narrative report by the time he went on what he said was forced leave. The defendant did not seriously challenge the auditor’s evidence that there were no narrative reports accounting for his use of such funds. 43.3.3. The defendant asserted that there were pictures and videos of the activities he carried out and that he filed reports with Ms Zimbeva. However, he produced nothing to establish these assertions. The general principle of the law is that he who makes an affirmative assertion whether the plaintiff or defendant bears the onus of proving the facts so asserted. See Nyahondo v Hokonya & Ors 1997 (2) ZLR 457 (S) at 459; Astra Paints Chemical v Chamburuka SC 27/12; Book v Davidson 1988 (1) ZLR 365 at 384 B-F. In Nyahondo, supra Korsah Ja said: “Where a person against whom a claim is made is not content with a mere denial but sets up a special defence or raises a fresh issue (when he confesses and avoids) then he is regarded in respect of that defence as being the claimant; for his defence to be upheld he bears the onus of satisfying the court that he is entitled to succeed on it.” 43.3.4. Bald assertions, in any case, are insufficient to establish his defence. The defendant failed to account for the sum of US$8,035.00, which he admitted he received. In his closing submissions, the only issue raised on this claim is that some of the vouchers at pp 193-196 and 198 of the plaintiff’s bundle relate to a period before the audit. That in itself is insufficient to evade liability. It is immaterial that he received part of the funds from the plaintiff during the period before that covered by the audit. He remains liable to reimburse the funds he unlawfully and intentionally misappropriated as long as that delict is established. I am satisfied that the plaintiff established that the defendant is liable to pay the sum of US$8,035.00. 43.4. Claim for financial prejudice from the outstanding housing loan 43.4.1. The auditor’s unchallenged evidence was that the loans were not provided for under the RAM budget approved by Amnesty International. It was not in dispute that despite this position, the defendant and the other staff got different loans which remained unpaid at the time the defendant left the organisation. The defendant benefited from these loans improperly, as they were not provided for in the RAM budget. Indeed, the Finance Policy and Procedures Manual provides for two loans: personal and emergency loans, which could be granted (see clause 8 thereof). In this case, it was not in dispute that they were unbudgeted for the relevant period. 43.4.2. The defendant claimed that there were no staff loans given to staff members, including himself, but they were salary advances. He repeated that there were simply salary advances and not loans, even under cross-examination. When questioned why he would repay his salary, he claimed that it was for the purposes of cash flow for the organisation to function. This defence clearly defied any logic. The defendant admitted making some repayments towards what he owed, an indication that he was fully aware it was a loan obligation. He could not approbate and reprobate. It is trite that a party is not allowed to have his or her cake and eat it at the same time. See United Harvest (Pvt) Ltd v Kewada (in his capacity as the executor testamentary of the estate late John Vigo Naested) & Anor SC 51/23 at pp 11-12. A salary advance cannot be repaid as shown from the schedule at p 142 of the plaintiff’s bundle produced by the auditor. 43.4.3. In any case, the defendant admitted that when his employment was terminated, his outstanding loan was US$31,000.00. In my view, however, this was simply a figure plucked from the air. He placed nothing before me to dispute the schedule at p 142 of the plaintiff’s bundle, nor any different calculations or challenge the sums borrowed. His admitted figure was simply unsubstantiated. The auditor’s testimony that he picked the deductions from his payroll went unchallenged. He also stated that Ms Zimbeva had advised that the loan balance had been reduced to US$35,811.00, but she did not bring any evidence to that effect. In the absence of any contrary evidence from the defendant, there would be no reason for the court to disbelieve the auditor, given that the audit findings established the figures as stated in Annexure 29 at p 142 of the plaintiff’s bundle. Mr Mugabe’s evidence in that regard was credible. 43.4.4. The total outstanding in loans due from the defendant is clearly shown on the schedule in the forensic audit report, that is, the sum of US$40,610.00. This can easily be ascertained by simple mathematics by deducting the total loans advanced (US$82,100.00) from the total deductions of US$41,490.00. In my view, the plaintiff proved that it is entitled to payment of US$40,610.00 as the financial prejudice arising from loans improperly advanced to the defendant and not repaid. The fact that the Finance Policy stated generally that personal loans could be given does not necessarily mean that the defendant could authorise the payments of such loans to himself outside the permissible budgeted expenditure for the period in question. 43.5. Claim relating to the disposal of the Toyota Vitz 43.5.1. Mr Mugabe testified that the Toyota Vitz registration number ADJ 6767 was disposed of to Ms Zimbeva in violation of the plaintiff’s Asset Disposal Policy. The motor vehicle was imported in the name of Ms Zimbeva for the plaintiff and registered in her name. In his evidence in chief, the defendant reasoned that the vehicle could not be imported by the plaintiff because it was a common law universitas and had no certificate of registration. He stated that it would then be changed into the plaintiff’s name when it is in the country. It remained registered in Ms Zimbeva’s name even at the time of its disposal. Its final book value was US$2,000.00. 43.5.2. In terms of the agreement of sale at p 143 of the plaintiff’s bundle (Annexure 30 of the audit report), the motor vehicle was sold to Ms Zimbeva for US$50.00. The relevant part of clause 2 of the said Disposal Policy states as follows: “2. Disposal of Motor Vehicles … Second hand vehicles are disposed of when three (3) years of use or when they clock a mileage of 200 000 km, whichever comes first.” It was common cause that the motor vehicle was acquired in June 2014 and sold on 2 February 2017. The defendant admitted under cross-examination that when the motor vehicle was sold, it was less than three years and had not clocked a mileage of 200,000 kilometres as per the Policy. He, however, stated that he used his discretion in terms of the Policy to dispose of the vehicle to Ms Zimbeva, who had the first priority as she was using it. He also stated that he had the power to exercise the discretion and sell the vehicle despite that it had not yet become due for disposal in terms of clause 2 of the Disposal Policy. He referred to the provisions of clause 1.2 of the Disposal Policy at p 154 of the record. This policy is indicated as being effective from 1 November 2014. Another extract of the Disposal Policy, the auditor said was applicable at the time the motor vehicle was disposed of formed part of the audit report at p 144 of the plaintiff’s bundle. The defendant did not dispute this as the applicable Disposal Policy at the time the Toyota Vitz was disposed of. 43.5.3. The said Disposal Policy at p 144 also included clause 1.2, which still read the same as in the previous Policy at p 154 and stated: “1.2 Any disposal of an Asset with a value of less than Ten Thousand United States Dollars (US$10,000.00) should be at the Executive Director’s discretion or proxy.” In addition, there is a specific provision relating to the disposal of motor vehicles under clause 2, which states that second-hand motor vehicles are disposed of when they are three years of use or when they have clocked a mileage of 200,000 kilometres, whichever comes first. In my view, the general provisions of clause 1.2 do not derogate from the specific provisions under clause 2. This arises from the principle of law often applied to resolve potential conflicts arising from general and specific provisions governing the same issue, known as the generalia specialibus non derogant. This principle means that the specific governs the general. The specific provisions take precedence over the general provisions. This maxim was fully explained in Bubye Minerals (Pvt) Ltd v Minister of Mines and Mining Development & Ors 2011 (2) ZLR 384 (S). 43.5.4. The general provision of clause 1.2 relates to any asset of value of less than US$10,000.00, and the executive director may exercise his discretion in its disposal. However, clause 2 is a specific provision governing the disposal of second-hand vehicles. While the motor vehicle generally is also an asset, the insertion of specific provisions relating to the disposal of motor vehicles (which were added to the Policy) clearly shows that the drafters intended specific provisions to govern the disposal of motor vehicles differently from other assets generally. There was, therefore, no discretion to exercise in this case. A sale of the second-hand vehicle would only arise once the vehicle had reached three years of use or a mileage of 200,000 kilometres. In casu, the Toyota Vitz did not. The disposal was, therefore, improper as it violated the plaintiff’s Disposal Policy. 43.5.5. The evidence also showed that the sale could not be said to have resulted in the plaintiff and Ms Zimbeva co-owning the vehicle. In terms of clause 1.7 of the Policy, the motor vehicle must have been disposed of at half its final book value. It is not in dispute that half of its final book value was US$1,000.00. The price of US$50.00, therefore, caused the plaintiff to suffer financial prejudice of US$950.00. The audit report confirmed this financial loss in para 10.3.1 (a) of the report at p 63 of the plaintiff’s bundle. I, therefore, find that the plaintiff proved this sub-claim and is entitled to judgment for US$950.00 as claimed. 43.5.6. In para 4(d) of the plaintiff’s summary of evidence, there was further reference to the sum of US$409.30 alleged to have been an improperly paid benefit for the same vehicle. However, no evidence was presented on this, and no reference was made to this claim in the closing submissions. It cannot succeed. 43.6. Loss from the disposal of wreckage 43.6.1. The plaintiff also claimed for the loss arising from the wreckage of an accident-damaged Toyota Prado ACV 2048, allegedly unaccounted for. On this claim, the auditor’s evidence was that they enquired on the method of disposal and the proceeds thereof from Ms Zimbeva, and she said that the motor vehicle was taken by the defendant and that there was no proof of receipts of the proceeds. He further stated that the proceeds of the disposal were not disclosed and that the vehicle was taken away by the defendant. There were then references to the annexures 36 to 39 at pp 156-157 of the plaintiff’s bundle. In his evidence in chief, the auditor did not speak to the value of the wreckage or the value it was disposed of and to whom. Even the audit report at p 64 of the plaintiff’s bundle did not relate to the financial prejudice arising from the said wreckage. Under cross-examination, the auditor confirmed the email communication he had with Ms Zimbeva, Annexure 39 at p 160 of the plaintiff’s bundle. He confirmed that Ms Zimbeva, in the email, said that the accident-damaged vehicle was taken by the defendant, but she was not aware as to whom and how much it was sold for, and that she had no account for it. She told him to get in touch with the defendant. He confirmed that Ms Zimbeva stated that the details of the disposal of the motor vehicle were not known to her. 43.6.2. On the other hand, the defendant stated that in terms of the Motor Vehicle Policy, the responsibility for the disposal of the wreck was with Ms Zimbeva, and she is the one who identified the buyer of that wreckage. He further testified that Ms Zimbeva said that the buyer offered US$700.00. He also stated that she was given the money, and he did not know why she did not cooperate. The onus was on the plaintiff to prove that the sum of US$700.00 was paid to the defendant, who failed to account for it. The plaintiff failed to prove its case. The testimony from the auditor did not establish any exact sum of money, nor is there such an amount in the audit report. Mr Mugabe’s evidence remained that the plaintiff could not account for the motor vehicle sold by the defendant and that the plaintiff did not receive any proceeds from its disposal. See also the conclusion in the audit report at p 83 of the plaintiff’s bundle. 43.6.3. The plaintiff attempted to make its case in the closing submissions. The case for the loss of US$700.00 arising from the wreck was not pleaded. There was also no evidence to establish the said damages. It is a settled principle of the law that pleadings guide the parties as to the nature of their case and help the court identify the issues that separate the two litigants. The purpose of pleadings was outlined remarkably well in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd SC 24/18 at pp 10-13, where Garwe Ja (as he then was) had this to say: “THE IMPORTANT PURPOSE OF PLEADINGS [25] The manner in which the respondent has handled its case both a quo and in this Court brings to the fore the question as to what the purpose of pleadings is. In general the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law. Various decisions of the courts in this country and elsewhere have stressed this important principle… 25.1 In Durbach v Fairway Hotel, Ltd 1949 (3) SA 1081 (SR) the court remarked:- “The whole purpose of pleadings is to bring clearly to the notice of the court and the parties to an action the issues upon which reliance is to be placed.” … 25.4 In Courtney–Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), the court remarked at page 698:- “In any case there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively there is no authority for ignoring the pleadings … and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.” 25.5 In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94(A), 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where at page 198 it was stated as follows:- “The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within those limits the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.” 25.6 In Jowell v Bramwell-Jones 1998 (1) SA 836 at 898 the court cited with approval the following remarks by the authors Jacob and Goldrein in their text Pleadings: Principles and Practice at p 8-9: “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings … For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realm of speculation. … Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party is equivalent to not hearing him at all and may thus be a denial of justice. The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.” [26] I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally. The position is therefore settled that pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.” (my emphasis) I have no option but to dismiss the claim related to the alleged wreckage for lack of evidence. 43.7. Claim for US$14,000.00 for the fraudulent purchase of motor vehicle. 43.7.1. It was not in dispute that the Toyota Land Cruiser Prado ADO 4143 was purchased for the plaintiff for the sum of US$14,000.00. There is no doubt that the motor vehicle was fraudulently acquired, as the alleged seller, Mr Huruva’s signature was forged. He also denied selling any motor vehicle in the affidavit annexure 42 at p 163 of the plaintiff’s bundle. This evidence was not challenged by the defendant. The defendant did not deny that he purchased the motor vehicle. He admitted that Mr Huruva agreed to sign the agreement of sale, though he was not the seller. He was aware that Mr Huruva was not the owner of the vehicle but actively participated in the fraudulent scheme to deceive the plaintiff, resulting in it suffering financial prejudice. 43.7.2. The auditor also stated that there was no evidence of the board's approval of the acquisition of the said motor vehicle. He also said that the motor vehicle was not being used for programmes as it was defective. This, he said, was confirmed by Mrs Muzerengi. He stated that the defendant and other members of staff used their personal vehicles for business. This was not challenged by the defendant. The auditor also stated that Ms Zimbeva said that the defendant brought the motor vehicle and instructed her to pay him the US$14,000.00. Again, this was not challenged in cross-examination. The defendant also authorised the cash requisition for this payment. The fact that the cash payment requisition was raised by Ms Zimbeva and that Mr Musiiwa also signed the requisition does not absolve him. He cannot downplay his role established from the evidence. He actively participated in the fraud and even received the purchase price of US$14,000.00. 43.7.3. The defendant stated that the actual owner or seller was in South Africa, and he, therefore, came up with a plan to have Mr Huruva sign the agreement so that the vehicle ownership could be changed into the plaintiff’s name. That reasoning was bizarre and unacceptable. His wrongful conduct resulted in financial prejudice to the plaintiff arising from what was clearly a fraudulent and illegal transaction. The fact that the vehicle was defective and could not be used for the plaintiff’s programmes clearly shows that the plaintiff never benefited. As stated in the report in para 8 at p 49 of the plaintiff’s bundle, the vehicle had no “residual economic/useful life or value”. Again, this was not challenged. I find that the defendant is liable to pay the plaintiff the sum of US$14,000.00. 43.8. While it was pleaded that the total sum of US$148,609.08 was being claimed, including for what was termed “non-contractual and unauthorised fuel and mileage allowances” (per para 12 of the declaration), there was no evidence under that head of the damages or sub-claim from the plaintiff. Having considered all the sub-claims making up the total claim for US$148,609.08 and the plaintiff’s evidence, it is my finding that the plaintiff only managed to prove the total sum of US$119,848.00 as the damages. That is what the court will grant. CLAIM FOR PAYMENT OF ZWL101, 748.29 This is the claim by the plaintiff for the tax liability arising from the defendant’s alleged acts and omissions in failing to deduct tax for staff loans, unauthorised allowances and or benefits paid to the defendant and other staff members. It was common cause that this liability was computed and raised by the Zimbabwe Revenue Authority (“ZIMRA”). There was also no dispute that the liability had been settled through a payment plan. Ms Pwiti’s evidence on the assessment thereof and the payment by the plaintiff of the tax liability to ZIMRA was largely unchallenged. The question arising is whether the defendant ought to be held liable to reimburse the said amount paid to extinguish the tax liability. 44.1. The auditor testified that they discovered several payments made to staff outside the payroll and not included in the PAYE. He said that these allowances were paid to the staff above their contractual salaries from sub-grants by EEJ, Radio Help and UNIDEF, amounting to US$50,053.00. Mr Mugabe also stated that the plaintiff was wholly supported by the Amnesty International headquarters for the salaries of its staff. The defendant maintained all salaries under the headquarters’ budget while the allowances were not included on the payroll and were tax-free. This was contrary to the plaintiff’s Finance Policy, requiring all such payments to go through the payroll. The figures are fully explained in para 10.1.5 at p 57 of the plaintiff’s bundle. The auditor’s evidence on their findings concerning the tax exposure arising from these payments of allowances outside the payroll was not challenged under cross-examination. The defendant’s legal practitioner particularly questioned if there were ZIMRA visits or inspections during the period between 2015 and 2018, and the auditor said they were not informed of such visits or inspections. The same question was put to Ms Pwiti. 44.2. Mr Marufu also questioned the auditor on who was responsible for paying remittances to ZIMRA, and the auditor said it was Ms Zimbeva, supervised by the defendant. He also said this was in line with the Finance Policy. The evidence by Ms Pwiti that the tax liability had been assessed by ZIMRA as due from the said allowances was not challenged when she was cross-examined. Even the version from the defendant’s evidence in chief that the allowances were below the tax threshold was never put to the witnesses. It was not even pleaded. What he simply pleaded in his plea was that he was not responsible for remitting taxes to ZIMRA in terms of his contract of employment. He erroneously downplayed his role as further outlined in his job description. It was his responsibility to ensure taxes were paid as he managed all other staff, including Ms Zimbeva. I, therefore, find the defence that the taxes were not due from these allowances to be an afterthought and inconsistent with the unchallenged evidence from the plaintiff. 44.3. It is common cause that the tax assessment was done and the liability discharged. The defendant accordingly failed to perform his duties as required and, by his omissions, negligently caused the plaintiff loss arising from that portion of the tax liabilities. The defendant, as the highest official in charge of the daily operations of the organisation, was required to comply with the law. 44.4. The other part of the tax liability arose from staff loans, which were granted at zero interest. The auditor raised an issue on the tax exposure from these staff loans. Ms Pwiti confirmed that the tax assessment for the unpaid tax arising from the interest-free staff loans was assessed, and the plaintiff had to pay for the liability. The auditor under cross-examination, however, accepted that the interest rate of 16% for staff loans was deleted following an amendment of the Finance Policy and Procedures Manual. He did not dispute that clause 8.1.5 which imposed that interest rate was deleted following a resolution by the board of trustees made on 6 April 2013, particularly at p 277 of the record. 44.5. While it was stated by the auditor that the amendment was contrary to the law, it was the plaintiff’s own board which made a Policy allowing for tax-free loans (subject, as noted earlier, to these loans having been budgeted for), thereby exposing the organisation itself to tax. It would then be improper in my view for the defendant to be held liable for not remitting the taxes for such loans when the organisation’s highest controlling board made a decision that tax-free personal loans may be granted. It ought to bear the consequences of making such an unlawful decision. It is not in dispute that the defendant reported to the said board and it had spoken as the highest decision-making authority for the plaintiff. 44.6. The plaintiff claimed a total of ZWL101,748.29 but did not place any evidence establishing a clear breakdown of the tax liability, separating the tax arising from the non-contractual allowances paid and that from tax-free loans. The auditor did not testify to any quantified liability, save to say they raised the tax exposure with the plaintiff. Ms Pwiti did not give any breakdown but spoke of the assessment and payment of a global amount. Since I have rejected part of the claim for tax liability arising from tax-free loans, I am unable to separate that from the tax liability arising from the non-contractual allowances paid. I have no option but to reject the whole claim. The claim for loss from the tax liability discharged by the plaintiff is accordingly dismissed. CLAIM FOR US$51,725.00 The plaintiff claimed US$51,725.00 as payments improperly transferred from the plaintiff’s foreign currency accounts to bank accounts of six staff members outside the payroll and were unaccounted for. The auditor’s evidence was that they identified the transfers made to staff members from the bank statements. They requested supporting documents for these payments, but they were not provided. He also said that Ms Zimbeva explained that the funds were transferred to staff so that they could obtain cash for the organisation. There was no record to show that the funds were paid back. While they interviewed some of the concerned staff members, including Mr Machakaire, who said he withdrew the funds and handed them over to Ms Zimbeva, there was no evidence to support that the funds were returned. The breakdown and explanations thereof are in Table 3 at p 52 of the plaintiff’s bundle. The auditor confirmed that when he enquired with the Ecobank manager, Mr Mugadzi, he was informed that the bank had always availed cash to the plaintiff and there were no cash restrictions to necessitate this arrangement. His evidence was clear that the payments were authorised by the defendant and Mr Musiiwa. 45.1. The funds were unlawfully paid out to staff members outside the payroll and unaccounted for, as no record could be found of the repayments made to the plaintiff. The defendant did not challenge this evidence. He also did not give any evidence on this claim. He had a duty to account for and safeguard the plaintiff’s financial resources, but he negligently failed to do so. While there are submissions made in the defendant’s closing submissions on this claim that cannot cure the absence of evidence from the defendant on the claim. A defence is not made in the closing submissions. In the circumstances, I find the defendant liable to reimburse the plaintiff the sum of US$51,725.00. CLAIM FOR US$330,000.00 The plaintiff claimed that it suffered financial prejudice to the value of US$330,000.00 arising from the defendant’s improper payments to Al Shams Global Limited (“Al Shams Global”) and KHM Societe Anonyme (“KHM”) for unknown and unjustified cause. The amount was made up of US$80,000.00 paid to Al Shams Global and US$250,000.00 paid to an entity called KHM from the plaintiff’s offshore account with Ecobank, Zambia. The auditor testified that they managed to get the bank statements of the plaintiff’s foreign currency account with Ecobank Zambia after the intervention of the Ecobank manager. 46.1. Mr Mugabe’s evidence was that they identified three transfers which were made to an organisation called KHM from the Zambian account for a total of US$250,000.00. The beneficiary’s bank account was held with Banc ABC, Botswana. Ms Zimbeva is said to have initially professed ignorance of this entity and referred him to the defendant. He further said that Mr Musiiwa, the chairman and one of the signatories to the bank account, also denied knowledge of the said entity. The board members also said they were not aware of KHM. The payments to KHM were made up as follows: US$120,000.00, which was transferred on 11 April 2017, US$60,000.00, transferred on 26 May 2017 and US$70,000.00, transferred on 14 June 2017. 46.2. The defendant admitted under cross-examination that all the supporting documents for these payments were falsified. It is common cause that the cash/cheque requisition for the payment of US$120,000.00 was prepared by Ms Zimbeva, checked and signed by the defendant and also has Mr Musiiwa’s signature, who is said to have approved the payment. See Annexure 44 at p 163 of the plaintiff’s bundle. The narration on the requisition was falsely stated as “Grant Encashment”. As part of the misrepresentation, it was common cause that the invoices for the total payment of US$120,000.00 were also falsified. The one for US$117,000.00 was allegedly for “Professional services rendered in connection with: Fees for carrying out research and surveys” and the invoice for US$3,000.00 also falsely purported to be for disbursements expended on telephone, mileage and stationery. The defendant admitted that there was no contract between the plaintiff and KHM and that such services were never rendered. 46.3. On the same day, 11 April 2017, the defendant signed and sent a letter to Ecobank Zimbabwe’s Mr Mungazi instructing the bank to assist in facilitating the transfer of the funds from the plaintiff’s Zambian account to KHM’s Banc ABC Botswana account. It was not in dispute that the transfer was effected and the plaintiff’s offshore account in Zambia was debited on 11 April 2017. 46.4. The second payment to KHM was for US$60,000.00. There was another cash requisition for this payment issued on 24 May 2017, signed by Ms Zimbeva, the defendant and Mr Musiiwa. The reference for the payment is falsely stated as “Loan Repayment”. The application for the telegraphic transfer was made to Ecobank Zambia on a form signed by the defendant and Mr Musiiwa. The payment instructions are again falsely given as “ESCR Consultancy”. The amount was debited on the plaintiff’s Zambian account. All these facts are common cause. The defendant also admitted that there was no loan which was given to the plaintiff by KHM. The auditor said that Mr Musiiwa denied knowledge of this telegraphic transfer. 46.5. It was also not in dispute that the third payment of US$70,000.00 was made to KHM. The cash/cheque requisition for this payment, dated 13 June 2017, was prepared by Ms Zimbeva, checked and signed by Mr Zilala and authorised by Mr Musiiwa. The description on the requisition was falsely stated as “2nd Grant liquidation”. On the telegraphic transfer signed by the defendant and Mr Musiiwa for that payment, the payment instruction was falsely given as “Consultancy”. The funds were transferred on 14 June 2017. The auditor testified that Ms Zimbeva advised that the payments were made so that they would get cash. She said the cash for the transfers was received from the defendant. The auditor did not see any evidence or record to support the inflow of the funds. He said Mr Mungazi confirmed that there were no challenges for the plaintiff to get cash at Ecobank Zimbabwe during that period, as corporates would withdraw up to US$10,000.00 per day. 46.6. The defendant also accepted that US$80,000.00 was transferred to Al Shams Global through its Botswana bank account from the plaintiff’s offshore bank account with Ecobank Zambia. The defendant claimed KHM and Al Shams Global were one entity, but this was shown to be false. The auditor narrated how they established the people behind these entities, with KHM owned by Kingstone and Sarah Chikodzi, who were also its two directors. It was not in dispute that there was no cash requisition signed for this payment. The bank statement, however, showed that on 12 September 2017, the amount was transferred to Al Shams Global’s Botswana account, and the narration is falsely stated as “Consultancy fees”. Ms Zimbeva and the defendant were the two authorised signatories. The defendant claimed the payment was also for the same reason as the payments to KHM, that it was to get cash from these two entities in Zimbabwe. 46.7. Mr Mugabe stated that he enquired from the board members, who denied knowledge of these transfers and any business relationship with KHM and Al Shams Global. Under cross-examination, the defendant confirmed that the payments were all made under falsified supporting documents. He did not deny that there was no existing business relationship between the plaintiff and these two entities. I find that the defendant was not a credible witness. In his evidence in chief, he falsely claimed that the said two entities were one. When further probed, that indeed these are separate entities and whether he did not hear the auditor name the directors of KHM, he replied that “Yes. These were separate payments made to two entities.” The alleged purpose of the payments that they wanted cash in return was absurd and untenable. It became clear that it was a contrived purpose to siphon the funds from the plaintiff. This is so as the local bank confirmed that cash was available for the plaintiff to access during that period, and the withdrawal limit was up to US$10,000.00 per day. 46.8. The defendant did not challenge that the average cash requirement for the plaintiff was about US$22,000.00 per month. It was also not disputed, as confirmed by Ms Pwiti and Mr Mugabe, that the salary bill was around US$18,000.00 and that utilities were paid in local currency. The requirement of such a huge outlay of cash, for example, of US$250,000.00 within a period of sixty-four days was not there. It was also not disputed that while these payments were being processed, there were also other funds transferred to the plaintiff’s Ecobank Zimbabwe account. The evidence clearly showed an elaborate plan to steal the funds from the plaintiff. At the centre of such falsified payments was the defendant and Ms Zimbeva. Mr Musiiwa purportedly signed the payment documents. It was shown by the plaintiff that the board did not authorise these transactions and the payments thereof. There was also no business relationship between the plaintiff and the two entities. 46.9. There was no evidence that cash was received in exchange for the payments made to the said entities. There was also no evidence of what the funds were used for, if the cash was ever paid back. While the defendant claimed there were cash books and reports sent to the international secretariat, he never placed before the court any such evidence to establish his assertions. I find his defence incredible given the clear paper trail produced by the auditor from the audit report. The auditor spoke very well, illustrated and backed up his figures with documents from the plaintiff. If ever there were records to show that the funds totalling US$330,000.00 in cash were received by the plaintiff and properly employed for its business operations, they should easily have been availed. It was the defendant who alleged that the records were there to prove it. He failed to show any contrary evidence that there were receipts for the return of the funds, vouchers establishing the use of such funds and that any other programs were running outside the EEJ and Radio Help, which required such a huge cash outlay. 46.10. Further, the defendant failed to challenge that the payments to the two entities were fraudulently masked criminal activities falling to be regarded as money laundering. I agree that the transactions were a criminal enterprise meant to embezzle funds from the plaintiff. He admitted the dishonesty and false declarations masked as genuine legitimate payments for services rendered, when he accepted that such services were never rendered to the organisation. The defendant misappropriated the plaintiff’s funds for his own selfish ends. I do not agree that the plaintiff suffered no prejudice. 46.11. There was no documentary evidence to establish the defendant’s assertion that the money was repaid as cash to the plaintiff. The auditors found no such records, and Mr Mugabe’s evidence was not seriously challenged under cross-examination. The defendant also largely failed to put his version of the defence to the witnesses under cross-examination. For example, that it was Ms Zimbeva who collected the cash and kept cash books for the money. He also sought to claim that he got approval from Cynthia Moyo, who was the chairperson at the time, for the Al Shams Global payment, but he conceded that this was not put to the auditor. That also worked against him. I, therefore, fully associate myself with the remarks in Small v Smith supra that “it is grossly unfair and improper to let a witness’s evidence go unchallenged in cross-examination and afterwards argue that he must be disbelieved.” 46.12. It would be difficult for the court to believe the defendant’s version and explanations on these payments, which were not put to the plaintiff’s witnesses. In these circumstances, I accept the evidence from the auditor, with some portions of it corroborated by Ms Pwiti. He was credible. The plaintiff established on a balance of probabilities that the defendant’s wrongful conduct resulted in the loss or financial prejudice to the plaintiff in the sum of US$330,000.00 as claimed. I will grant this claim as prayed for. CLAIM FOR 61,880 LITRES OF FUEL The plaintiff claimed for the reimbursement of a total of 61,880 litres of fuel from the defendant. It averred that the forensic audit established that 55,720 litres of fuel were unlawfully and irregularly drawn by staff duly authorised by the defendant when such employees were not entitled to such fuel, thereby prejudicing the plaintiff. The auditor referred to para 10.1.2 Table 5 at p 54 of the plaintiff’s bundle, and said that it shows a schedule of the fuel drawn by the plaintiff’s staff, including the defendant, without a lawful basis. The full schedule with the itemised quantities over the period under review is as morefully shown on Annexure 18 at pp 122-125 of the plaintiff’s bundle. In addition, it claimed that 6,160 litres were unaccounted for from the bulk purchases made during the period. 47.1. The auditor’s evidence was that the staff members’ contracts of employment did not entitle them to any fuel. This was not challenged under cross-examination. The defendant’s questions were largely centred on the fuel for the generator and business trips. He also claimed the organisation saved money, otherwise claiming mileages would have been costly to the plaintiff, which did not have sufficient resources to cover such allowances. The Motor Vehicle Policy referred to by the defendant did not provide that employees shall be entitled to fuel, which in this case was dispensed through coupons. The Policy only referred to car allowances for those using private cars to conduct business when they are entitled to an allocation of a motor vehicle. They would be paid an allowance using the Automobile Association of Zimbabwe (“AAZ”) rates. See pp 162-163 of the record. 47.2. There was no dispute that Ms Zimbeva kept a record for fuel allocations and that the schedules alluded to above were drawn from that record. No question about the record being incorrect was raised. It was also not in dispute that the RAM budget from the headquarters had no fuel allocations or allowances for staff. The quantities drawn were not on the budgets. As per the Policy, Ms Zimbeva, even if she was using her vehicle for business operations, she was not entitled to fuel as allocated, but to claim mileage using the AAZ rates. That she was not entitled to fuel in terms of her contract was not challenged. 47.3. It was shown that there was no record concerning fuel consumption for the generator. Fuel for business trips was clearly recorded, and no issue was raised on those. It was also shown to be false as per the schedules that Mr Musiiwa was given fuel after trips for travelling to Harare to sign authorisations. The existence of pre-signed documents by Mr Musiiwa, such as cash withdrawal slips and bank telegraphic transfer forms kept with Ms Zimbeva, was not denied. Further, Mr Musiiwa received some litres of fuel in advance as “bonus”, for example, on 29 October 2015. It was not, however, disputed that there was no entitlement or budget for such fuel allocations or allowances to members of staff from the RAM budget. The auditors also did not come across any claims for mileage by Mr Musiiwa, which is what the Policy could only permit him to claim. There was no lawful authority for him to be issued with fuel. Without any lawful basis for such fuel payments to be made, the defendant was culpable in authorising these fuel allocations to the staff members, thereby causing the plaintiff financial prejudice of 25,120 litres outside his own allocations, which I will deal with later. That loss was proved. 47.4. In addition, it was also proved that from the reconciliation of the bulk fuel purchased with the register of fuel allocations kept by Ms Zimbeva, there was a difference of 6,160 litres which had no trail. The schedule detailing how this quantity was arrived at is in para (e) at p 55 of the plaintiff’s bundle. The said quantity was unaccounted for. This was not challenged in cross-examination, and no evidence was provided by the defendant on this part of the loss. The total fuel proved to have been unlawfully drawn for which the defendant was culpable and due to be reimbursed is, therefore, 31,280 litres. 47.5. As for the fuel drawn by the defendant himself (which totalled 30,600 litres), an addendum to his contract of employment at p 152 of the record dated 31 January 2012 stated under the title “ADDENDUM SECTION 7” as follows: “You shall receive a monthly fuel allowance which shall be reviewed by the Chairperson or Board from time to time.” Admittedly, from that clause, there were no fuel quantities stated; however, the fact that he was contractually entitled to fuel allowances over the period in question was not seriously challenged. The fact that no quantities were specified does not, in my view, take away that contractual entitlement. If he drew what the plaintiff considered unreasonable quantities, then there should have been a limit imposed by the board. There existed a board during the relevant period. Surely the plaintiff had ample time to seek to limit the quantities to what it would consider reasonable instead of simply leaving the entitlement open-ended. Again, if the fuel was unbudgeted for, it was also a further problem that the plaintiff created for itself upon agreeing to enter into such an addendum to the defendant’s contract of employment. 47.6. Further, while Ms Pwiti stated that the quantities were unusual and excessive, the plaintiff itself had to blame for not setting reasonable limits on the quantity of fuel he would be entitled to. The plaintiff sought to amend its claim in the closing submissions by seeking to adjust its claim from what it had pleaded. The purported amendment followed the testimony of Ms Pwiti about what she had said was the reasonable quantity of fuel for people in similar positions. I would apply the Supreme Court decision in the Medlog Zimbabwe case, supra, where it was held that parties are bound by what they pleaded. The settled principle is that pleadings serve an important purpose as they define issues for trial and alert the defendant of what to expect and prepare accordingly. 47.7. It is improper to amend a claim in the closing submissions. Litigants may be granted leave to amend their pleadings at any stage before judgment. See rule 41(10) of the High Court Rules, 2021. However, there is a procedure to be followed to amend pleadings. The plaintiff did not seek such an amendment at the appropriate stage. The defendant also testified based on the plaintiff’s claim as pleaded. 47.8. I do not accept the purported amendment of the claim under the guise of what the plaintiff alleged was an adjustment of the claim downwards. The purported adjustment, in my view, is an admission that the plaintiff has realised the futility of its claim in relation to the fuel drawn by the defendant as initially pleaded. It then sought to claim the excess drawn for what it considered excessive or unreasonably high quantities of fuel he withdrew. If that was the case, the plaintiff should have sought to amend its pleadings to bring out that basis for the claim. Pleadings are not amended in closing submissions. To that extent, I have no option but to reject the claim for unauthorised or unlawfully drawn fuel in respect of the fuel which was allegedly drawn by the defendant himself. As already alluded to above, I will only accept the claim insofar as it relates to the other staff members for the total of 31,280 litres, as that is what was proved. DISPOSITION The plaintiff’s claims were properly and lawfully made in foreign currency. The sums claimed were not converted by operation of the law into RTGS dollars as they cannot be considered assets or liabilities affected by the deeming provisions of s 22(1)(d) as read with s 22(4) of the Finance (No.2) Act, 2019 on the effective date. There is nothing unlawful in making and the court assessing delictual claims in foreign currency. The Act did not proscribe the granting of a judgment denominated in and payment thereof in foreign currency. Section 23 of the Act did not do so either. The court can competently order payment of delictual loss or damages in United States dollars, and that the payment be converted to the ZWG currency (ZIG) at the interbank rate prevailing on the date of payment. See Shah v Nherera supra. Thus, save for the claim for US$330,000.00, which is a foreign obligation, the other successful claims are payable in the equivalent ZIG at the prevailing rate of exchange on the date of payment. The court finds the claim for damages in the sum of US$330,000.00 to be a foreign obligation payable in the denominated foreign currency. Concerning the costs of suit, there is no reason for the court to depart from the general rule that costs shall follow the cause. The successful party must be allowed to recover its costs. The plaintiff further claimed costs on a legal practitioner and client scale. The plaintiff simply claimed costs on a punitive scale without setting out the justification for such costs. They are not simply awarded against a litigant merely because a party has requested them. It is trite that costs on a legal practitioner and client scale are only awarded if there is conduct deserving of an award of such costs or the circumstances of the case justify such an order. Costs are a matter within the discretion of the court. See Mahembe v Matambo 2003 (1) ZLR 148 (H). In casu, the plaintiff did not justify an award for such punitive costs. I find no justification for the court to mulct the defendant with costs on a punitive scale as prayed for. Accordingly, it is hereby ordered as follows: The defendant shall pay the plaintiff the following sums or the ZIG equivalent at the prevailing foreign exchange rate on the date of payment: US$119,848.00. US$51,725.00. The defendant shall pay the plaintiff US$330,000.00 payable in the denominated foreign currency. The defendant shall pay interest on the principal sums stated in paragraphs (1) and (2) above at the prescribed rate from 1 December 2018 to the date of payment in full. The defendant shall reimburse the plaintiff 31,280 litres of fuel or its equivalent at the prevailing price and currency on the date of payment. The claim for the payment of the sum of ZWL101,748.29 is dismissed. The defendant shall pay the costs of suit. Dembure J: ……………………………………… Bere Brothers, plaintiff’s legal practitioners Muhonde Attorneys, defendant’s legal practitioners