BARKER v AFRICAN HOMESTEADS TOURING & SAFARIS (PVT) LTD & ANOR 2003 (2) ZLR 6 (S)

Flynote

Exchange control”Exchange Control Regulations 1996 (SI 109 of 1996) c ” s 11 B payment by Zimbabwean resident in foreign currency to non- resident ” need for both agreement to pay and payment itself to be authorised by exchange control authorities

Headnote

The respondent company entered into an agreement to buy a property from the appellant, who had emigrated from Zimbabwe. Part of the total price was to be paid in Zimbabwean currency and part in US dollars. The appellant sought to resile from the contract as he had subsequently had a better offer. The respondent obtained an order from the High Court restraining the appellant from selling the property to anyone else. On appeal:

Held, that in terms of s 11(1)(a) and (b) of the Exchange Control Regulations, as read with s 11(2), both an actual payment and an agreement to make payment outside Zimbabwe require authorization by the exchange control authority, except where the act is done by an individual (as opposed to a company, for example) with free funds available to him at the time of the act concerned. There being no such authorization, the agreement was illegal and unenforceable. In addition, there was no question of the terms of payment of the purchase price of in Zimbabwean currency being severable.