Martin Boka v Rhodaliegh Scott and Goldridge Primary School and The Headmistress of Goldridge Primary School and The Bursar of Goldridge Primary School and Ministry of Primary and Secondary Education and The Reserve Bank of Zimbabwe

### Preamble
1
HH 70-25
HCH 1452/24
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MARTIN BOKA

versus

RHODALIEGH SCOTT

and

GOLDRIDGE PRIMARY SCHOOL

and

THE HEADMISTRESS  OF GORDRIDGE PRIMARY SCHOOL

and

THE BURSAR OF GOLDRIDGE PRIMARY SCHOOL

and

MINISTRY  OF PRIMARY AND SECONDARY EDUCATION

and

THE  RESERVE BANK OF  ZIMBABWE

HIGH COURT OF ZIMBABWE

TAKUVA J

HARARE 14 June 2024 & 11 February 2025

Urgent Chamber Application

P M Sagwete, for the applicant

B Muzenda, for the 1st respondent

A Mutatu, for the second & 4th respondent

No appearance for the 5th respondent

No appearance for the 6th respondent

TAKUVA J:	This is an urgent chamber application for a declaratory order and consequential relief in terms of s14 of the High Court Act [ Chapter 7:06].

BACKGROUND FACTS

Applicant settled an  invoice for the first term 2024 tuition fees for his minor child at  Goldridge  Primary School in full at  the prevailing Reserve Bank inter Bank  rate on the date of payment. The  1st  to 4th respondents have opposed the  application on the basis that the application is fatally defective  and further that tuition fees for the  minor child have not been settled in full  based on an alleged contract entered  into  between  1st and 2nd respondents and as  such, application must fail.

The respondents raised a multitude of meritless points in limine which I proceed to deal with seriatum.

DECLARATORY ORDER DOES NOT REQUIRE AN INTERIM ORDER

The 2nd and 4th respondents have submitted that the draft order is defective for not providing interim relief. It is trite that not every urgent chamber application must be accompanied by a provisional order or interim relief. See Lifebrand Agriculture and Ngoni Munangagwa v Millicent Tendai Mugayi & The Sheriff of the High Court HH 499/18 at 5 of the cyclostyled judgment.

The application in casu is for a declaratory order and consequential relief. A declaratory order is normally in the form of a final   order- see Chikwinya & 6 Ors v Mudenda No & Ors   HH 48/22. This cocincides with applicant’s relief namely that he has sought an order that he has settled the invoice for first term   of 2024  school fees in full based on two  payments made at the prevailing Reserve  Bank interbank rate on the  date of payment.  It is therefore not a  legal requirement that every urgent chamber application  must be accompanied  by a provisional order or interim  relief. I find that the point in  limine lacks merit. It is accordingly dismissed.

Application  Fatally Defective for want of form

I do not consider the present application to be fatally defective for want of form  because it is trite that save for instances in which a law specifically  provides that defined proceedings must be commenced by way of court application  as provided in  r 8 in  which  case the applicant  would be obligated  to follow that procedure. See r 58(13) which provides that:

“ without derogation from r 8 but subject to any enactment, the fact that  applicant has instituted-

A court application when he or she  should have proceeded by way of chamber application; or

A chamber application when he or she should have proceeded by way of a court  application; shall not in itself be  a  ground for  dismissing the application  unless the court or judge, as  the case my be,  considers that-

Some interested party has or may have  been prejudiced by the applicant’s failure to institute the application in  proper form, and

Such prejudice can not be remedied by directions for the service of the  application on that party with  or without an appropriate order of  costs.”

In the present matter, the 1st -4th respondents did not in the opposing affidavit allege any prejudice suffered by them  by virtue of the alleged improper form of the application . I would  dismiss the point in limine for lack of merit.

3. DRAFT ORDER FATALLY DEFECTIVE

The averment here is that the draft order is fatally defective for its failure to specify which minor child is being mentioned and secondly for its failure to cite which respondents are to bear the costs of suit.  Now, it is axiomatic that a draft order is not something that is final. What the court can do is to look at the relief and see if the court can vary the order – see CRAFT v CRAFT ( nee MOSS) HH 241/22 where the court stated that the exact wording  of the  order is the ultimate responsibility of the court, as long as the  substance of what  is being  claimed does not change and the  relief sought is supported.

According to the draft order and the founding affidavit what the applicant is asking this court to declare that first term 2024 school fees have been  paid in full.  Also applicant already pleaded in his founding affidavit that he is the father of Mathew Boka, it cannot be said it is not known which child is referred to. The point lacks merit.

MERITS

An application for a declaratory order ought to be considered in light of the provisions of s 14 of the High Court Act.  The requirements for a declaratory order were aptly considered in the case of Johnsen v Agricultural Finance Corporation 1995(1) ZLR 65 where the court stated as follows;

“The condition precedent to the grant of a declaratory order under s 14 of the High Court Act of Zimbabwe, 1981 is that the applicant must be  an “ interested person” in the sense of having  a direct and substantial interest in the  subject matter of the suit which could  be prejudicially affected by the judgment of  the court . The interest must concern an existing, future contingent right. The court will not decide abstract, academic or hypothetical questions unrelated  there to. But the presence of an actual dispute or controversy between the parties is not a pre- requisite to the exercise of jurisdiction. See Ex P. Chief Immigration Officer 1993 (1) ZLR 122 (S) at 129 F-G; 1994 (1) SA 370(25) at 376 G-H; Munn Publishing ( Pvt) Ltd v ZBC  1994 (1)  ZLR 337 (S) and the cases cited therein”

In casu, the existing rights and obligations of the applicant have been fully explained in the founding affidavit. It is common cause that the invoice sent to the applicant is that of Goldridge Primary School for the 1st term of 2024. It  is also not disputed that  applicant  made payments at the prevailing interbank rate on  the date of  payment.

The dispute centers on  the financial  changes introduced by the Government of Zimbabwe on 22 February 2019. What happened  is that the  government  introduced a new currency called the Real Time Gross  Settlement Electronic dollar (RTGS), through the Presidential  Powers (Temporary Measures ) Amendment of Reserve Bank  of Zimbabwe Act And  lesue of Real Time  Gross Settlement  Electronic Dollars (RTGS DOLLARS)  Regulations,2019 hereafter referred to as “S. I.33/19” or  the instrument. The instrument was  gazetted on 22 February 2019 which date became the first effective date as  defined in  the Finance Act (No2) Act  No . 7 of 2019 ( The Finance ACT). The new currency  ran  parallel with other currencies that were accepted as legal  tender under what was known as  the multicurrency basket.

Later on 24 June  2019 the government gazetted statutory instrument 142/2019 which abolished  the multicurrencies and declared the ZWL  to be  the sole legal  tender in  Zimbabwe. The two instruments were  later incorporated into the Finance Act  gazetted on 21 August 2019. The critical  parts are  ss22 and 23. Section 22 allowed the Reserve Bank, to with effect from the  first effective date  issue an electronic  currency called the RTGS dollar ;and that  such currency shall  be legal tender within  Zimbabwe.  It also provided that ;

(4) For the purposes of this section –

It is declared for the avoid dance 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 s 44 C (2) of the principal Act) shall  on the first effective date be deemed to  be valves in RTGS  dollars at a rate of one  to one to the United States Dollar:”

Section 23 provides that the Zimbabwe in dollar shall be the sole currency for legal tender purposes from the second effective date. The words “ assets and liabilities” are not defined in the Finance  Act or in  S.I.33/19. However the Supreme Court dealt with the issue in Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd  & Anor. The court held inter – alia that in interpretating s. 4 (1) (d) regard  should be had to assets and liabilities which existed immediately before the effective date of promulgation of S.I 33/19.

The import of this legislation is to permit the payment of liabilities in  accordance  with the provisions of  S I 33/19. It is common cause that the applicant settled the invoice send to him in terms of the laws of Zimbabwe stated above. The  2nd to 4th respondent’s argument that fees  have not been settled  because  the 2nd respondent prefers foreign currency  only is  obviously inconsistent with  the laws of the country. Equally untenable is 2nd  to 4th respondents’ contention that applicant has not  settled the invoice in full based on  a contract between the school and  the first respondent. (the pupil’s mother)

It is common cause that applicant is not privy to that contract as he is not a party to it. The first respondent concedes that school fees have been paid in full in RTGS. Indeed, the law is settled on  issues such as the one at hand, see Zambezi Gas Zimbabwe (Pvt) Ltd v N.R Barber Supra. The school fees being a liability denominated in United States Dollars is payable in RTGS at the inter – bank transfer rate on the date of payment . Therefore the applicant paid the school fees in full. What is noteworthy is that the first respondent (the child’s mother) agrees with this position.

The 2nd to 4th respondents opposition has no merit. It is simply that the invoice should be settled in United States dollars only. They do not want to be paid in RTGS Dollars. Unfortunately, the law of the land is  the exact  opposite. The contract relied upon does not bind the applicant. In my view this is a proper matter in which a declaratory order should be issued.  The applicant is an interested party as the father of the student affected by 2nd to 4th respondents’ conduct.

I find the application to be merited.    In the result, I make the following order.

IT IS ORDERED THAT:

The application be and is here by allowed.

It be and is here by declared that the applicant has paid full tuition fees for first term 2024 in respect of Mattew Boka a student at Goldridge Primary School Kwekwe.

The 2nd respondent to pay costs of suit on an ordinary scale.

Uasawi and Partners, applicant’s legal practitioner

Hore & Partners, 1st respondent’s legal practitioner

Wilmot and Bennet,  2nd – 4th respondents