State immunity or State liability legislation has on the principles of human rights, democracy and the rule of
law in so far as such legislation provides that State property cannot be the subject-matter of execution,
attachment or process in satisfaction of a judgment debt.
We turn now to the issue of the damages awarded to the Applicants which, according to learned Counsel
for the Applicants, should be revalorised, given that the currency of the Respondent has suffered excessive
depreciation over the years.
In Eden and Another v Pienaar 2000 (1) SA 158 (WLD), the Court explained the process of
revalorisation, at paragraph 159B as follows "This process by which the law seeks to reflect and (counteract) the influence of inflation on the amount of
a claim is known as 'revalorisation'. Its effect is that the depreciation of currency does not redound to the
benefit of the judgment debtor, and to ensure the that judgment creditor is protected against the ravages of
inflation by receiving the actual value of the amount awarded in judgment, as on the day on which he is
paid - no less and certainly no more. Although the face value of the debt increases once revalorisation is
applied, its real value does not: the purchasing power of the currency in which it is expressed remains
constant. Accordingly, revalorisation has nothing to do with interest, nor does it increase the real value of a
debt."
In this connection, reference may also be usefully made to Article 12(h) of the SADC Charter of
Fundamental Social Rights where the process of revalorisation is also mentioned and which states as
follows "Workers have the right to services, that provide for the prevention, recognition, detection and
compensation work related illness or injury, including emergency care, with rehabilitation and reasonable
job security after injury and adequate inflation-adjusted compensation" (the underlining is ours).
The amount of damages awarded to the Applicants must, in our opinion, be revalorised, in the interests of
justice, in order to ensure that the real or actual value of the compensation awarded in the various Court
orders is received by each Applicant on the date of full and final payment, after taking into account the
adverse effects of runaway inflation. In other words, the damages awarded to the Applicants must be
inflation-adjusted.
We therefore hold and declare that (a) section 5 (2) of the State Liability Act [Chapter 8:14] of the Respondent is in contravention of the
fundamental rights to have an effective remedy; to have access to the Courts; to be entitled to a fair
hearing, to equality before the law and to equal protection of the law; in so far as it provides that property of
the State may not form the subject-matter of execution, attachment or process to satisfy a judgment debt;
(b) the Respondent has acted in contravention of Article 4 (c) and 6 (1) of the Treaty by:
(i) failing to comply with the orders of the High Court of Zimbabwe regarding the Applicants;
(ii) persisting in its non-compliance with the Court orders referred to in sub paragraph (i) above.
We further order the Respondent's agents to meet with the agents of the Applicants, under the supervision
of the Registrar, to agree to a mutually satisfactory adjustment to the damages awarded in the Court orders
referred to in paragraph (b)(i) above.
In the event of non-compliance with the order made above by the Tribunal, the Applicants may revert to this
Tribunal on the same papers, appropriately amplified if necessary, in terms of Article 32 (4) of the Protocol
on Tribunal, on written notice to the Respondent's agents, for further relief regarding enforcement.
With regard to the issue of costs, we shall first refer to Rule 78 of the Rules of Procedure of SADC Tribunal
(the Rules).
Rule 78 provides as follows:
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