CASES DECIDED JULY – DECEMBER 2016

Latest update: 25 May 2018

 

CASES DECIDED JULY – DECEMBER 2016

 

Cases added since the last update are indicated by a vertical line in the left margin.

 

Administrative law – review – grounds for – procedural fairness – audi alteram partem rule – disciplinary authority refusing to supply record of proceedings to person appealing against authority’s decision – gross irregularity

 

Moyo v Commr-Gen, ZRP & Ors HB-241-16 (Takuva J) (judgment delivered 29 September 2016)

 

A police constable was convicted of disciplinary offences by a board of inquiry. His request to be provided with a record of the proceedings by the police authorities to enable him to appeal was refused.

Held: (1) In terms of s 35(1) of the Police Act [Chapter 11:10] the proceedings of the board of inquiry were required to be as close as possible to those in the magistrates court. The denial of the record violated the section and amounted to a gross irregularity.

(2) The audi alteram partem rule or right to procedural fairness required that the applicant be provided with the record of the proceedings. His right was suffocated by the failure to supply the record and by the Commissioner-General’s failure to order that the record be supplied.

 

Arbitration – arbitral proceedings – parties reaching agreement after matter referred to arbitration – proceedings not automatically terminate – must be terminated by arbitrator – agreement being reduced to an award – party entitled to have award registered for enforcement

 

Karemba v Zimbabwe Mining Development Corporation HH-586-16 (Matanda-Moyo J) (judgment delivered 28 July 2016)

 

A labour dispute in which the applicant had sought compensation for unfair dismissal had been referred to arbitration. While the arbitration hearing was pending, the parties came to an agreement which had been registered as an arbitral award. When the applicant now applied to have it registered under s 28(14) of the Labour Act [Chapter20:01], the respondent objected, arguing that the parties had not referred to matter to arbitration, and that when the agreement was entered into, the arbitral proceedings pending before the arbitrator were terminated. There was thus no arbitral award to register.

Held: under articles 30 and 32 of the First Schedule to the Arbitration Act [Chapter 7:15], the arbitration proceedings can only be terminated by an order of the arbitral tribunal, to the effect that the proceedings have been terminated. Without such an order the proceedings remain pending before the arbitrator. No such order had been made. The parties had an obligation in terms of the law to ensure the proceedings were lawfully terminated. When the agreement was forwarded to the arbitrator, with the respondent’s knowledge, the arbitrator was still seized with the matter. It was within the arbitrator’s powers to proceed to reduce the agreement to an award. The fact of reaching an agreement did not automatically terminate the arbitral proceedings. The arbitrator must terminate the proceedings.

(2) The arbitrator had reduced the agreement to an award. His mandate ended with the granting of the award. The applicant was entitled to have the award registered in terms of the Labour Act.

 

 

Arbitration – award – setting aside of – grounds – award contrary to law of Zimbabwe – arbitrator in mining matter ordering transfer of mining claims – such order may only be given by High Court or mining commissioner – order set aside – allegation that arbitrator had violated principles of natural justice – arbitrator’s conduct entirely proper – no ground for setting aside whole award

 

Mtemwa Hldgs (Pvt) Ltd & Anor v Mutunja & Anor HH-532-16 (Mangota J) (Judgment delivered 7 September 2016)

 

A dispute as to the transfer of mining claims had been referred by agreement between the parties for arbitration by an arbitrator agreed by the parties. The arbitrator needed to decide whether an agreement had existed between the parties, whether it had been cancelled and whether aspects of the applicants conduct was tainted by fraud. He confirmed the cancellation of the contract which the parties had concluded and directed the reversal of all the mining claims which the respondent had transferred to the applicants and awarded costs against the applicants. The applicants applied for the arbitral award to be set aside, alleging it was in conflict with the public policy of Zimbabwe. It was further alleged that the arbitrator had violated the principles of natural justice and failed to disclose aspects which were likely to give rise to justifiable doubt as to his impartiality before the arbitration commenced.

Held: (1) The arbitrator was correct in his findings that the agreement between the parties had been properly cancelled by the  first respondent because the applicants had failed after due notice to make a required payment. (2) It was not permissible for the first respondent to raise before the court aspects which had been abandoned before the arbitrator.

(3) The arbitrator was incorrect in ordering the reversal of the mining claims, as this could only be done by the High Court or the Mining Commissioner.

(4) As the fraud allegation by the first respondent was not established, each party should pay its own costs and split the arbitrator’s fee equally.

(5) The arbitrator had been selected by both parties, had acted entirely properly and there was no evidence at all to suggest that he had violated the principles of natural justice or that he had failed to disclose any circumstances which were likely to give justifiable doubts as to his impartiality.

 

Burial

 

See below, under FAMILY LAW (Burial).

 

Company – judicial management and liquidation  – judicial manager – liquidator – duties – officer of court – duty to act in interests of all interested parties – judicial manager failing to answer serious allegations about his conduct – grounds for removal

 

Chipamba & Anor v Militala NO & Anor HH-824-16 (Phiri J) (Judgment delivered 7 December 2016)

 

The applicants sought the removal of the first respondent as provisional liquidator of two companies. They alleged, inter alia, that he had failed to take any steps to recover debts owed to the companies; in addition, they alleged that he dismissed experienced employees and hired his relations. He did not answer any of the allegations, nor did he explain what he was paying himself. The Master had also failed to address the allegations raised against the liquidator.

Held: (1) A liquidator is answerable to the Master who, in turn, is answerable to the court. Both the liquidator and the Master are officers of the court. They are, as such, enjoined to be always clear and transparent in the manner that they deal with cases which parties bring before them for determination. Anything which they do without transparency and/or accountability does, at the end of the day, impact negatively on the country’s system of justice delivery. Liquidators occupy a position of trust, not only towards creditors but also to the companies in liquidation whose assets vests in them. Liquidators are therefore required to act in the best interests of all interested parties. A liquidator should be wholly independent, should regard equally the interests of all creditors and should carry out his or her duties without fear or favour or prejudice.

(2) Irreparable harm was likely to ensue if the first respondent were not removed from the post of provisional liquidator. The interests of justice would be best served if the first respondent were removed from office and substituted and replaced by a person who would be in a position to manage the companies, in issue, honestly, dispassionately and professionally for the benefit of the creditors.

 

 

Company – liquidation – application for – grounds – “fair and equitable” – no alternative remedy available – when company should be wound up on such grounds

 

Kim v Sensationell (Zimbabwe) Pvt) Ltd HH-484-16 (Chigumba J) (Judgment delivered 17 August 2016)

 

The applicant filed an application for the winding up of the respondent company on the grounds that it was fair and equitable to do so. The applicant alleged that the respondent’s shares were held by one Park who had opened a competing company in Zimbabwe and another in Zambia. The applicant sought to file an additional affidavit deposed to by his wife as a further opposing affidavit but his wife had not filed any founding affidavit. The applicant’s wife had titled her affidavit “answering affidavit” although, because she had filed no founding affidavit, the court found that the affidavit was improperly before it.

Held: (1) in considering whether it ought to allow the admission of such a further affidavit, the court ought to consider whether the other litigants would be prejudiced by the contents of the supplementary affidavit which was proposed to be filed. The guidance given was that the court should be loath to admit any further affidavits, especially where they seek to introduce new evidence which would be prejudicial to the other party, where the prejudice could not be alleviated by an appropriate order as to costs.

(2) In applying the concept of “fair and equitable” as envisioned by s 206(g) of the Companies Act, one should consider the analogy of partnership and the concept is strictly confined to those small domestic companies in which, because of some arrangement, express, tacit or implied, there exists between the members in regard to the company’s affairs a particular personal relationship of confidence and trust similar to that existing between partners in regard to the partnership business. The applicant did not aver in his papers that the respondent company qualified as one that was amenable to the application of the deadlock principle, nor was it averred by that the parties were in a “quasi partnership”.

(3) It was not just, or equitable, to wind up the respondent company at the instance of the applicant who was only a 30 percent shareholder, in the absence of cogent evidence of wrongdoing on the part of the majority shareholder. Other remedies lay at the applicant’s disposal in terms of the Companies Act.

(4) The court dismissed the application and ordered that costs be awarded on a higher scale to register its displeasure at the filing of an application which was entirely devoid of merit, both on the facts, and in terms of the applicable law which the applicant sought to rely on.

 

Company – private company formed at dissolution of a parastatal – legislation indicates whether it is a successor company

 

Company – successor – assumes rights and obligations of the company it succeeds

 

Karoi Town Council v TelOne (Pvt) Ltd HH-402-16 (Chirewa J) (judgment delivered 6 July 2016)

 

The defendant company disputed the plaintiff council’s charge for a shop licence fee for the premises on which it operated its telephone exchange. The defendant argued that it was exempt under s 3 and the First Schedule of the Shop Licences Act [Chapter 14:17], being the successor to the Posts and Telecommunication Corporation (PTC), which had not been obliged to pay such fees. The Council was unable to prove its claim that the PTC had in fact paid but proceeded to argue that TelOne was not a successor to the PTC and was therefore not exempt. The PTC, as a parastatal, was a statutory body, and TelOne, as the successor to the PTC, was a private company and hence could not claim exemptions granted to a parastatal. The defendant argued that, in terms of s 108 of the Postal and Telecommunications Act [Chapter 12:05], it was clear that it was successor to the PTC and took over all rights and obligations of its predecessor.

Held: sections 105 and 106 of the Act determined that the legislation made it clear that the defendant was a successor company. Since the provision for exemptions in the Schedule to the Shop Licences Act had not been amended, the defenadnt was entitled to the same exemption.

 

Company – proceedings against – company under judicial management – court’s authority required to proceed against such company

 

Trustees, Makomo e Chimanimani Share Ownership Community Trust v Min of Lands & Anor HH-556-16 (Munangati-Manongwa J) (judgment delivered 22 September 2016)

 

See below, under PRACTICE AND PROCEDURE (Parties – locus standi).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – application to enforce such rights – who may bring – trust acting on behalf of its members

 

Trustees, Makomo e Chimanimani Share Ownership Community Trust v Min of Lands & Anor HH-556-16 (Munangati-Manongwa J) (judgment delivered 22 September 2016)

 

See below, under PRACTICE AND PROCEDURE (parties – locus standi – constitutional application).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – freedom from arbitrary eviction (s 74) – effect on by-laws authorizing demolition of illegal structures

 

Mungurutse &Ors v City of Harare & Anor HH-558-16 (Tagu J) (judgment delivered 28 September 2016)

 

A provisional order barred the first respondent from demolishing the applicants’ homes in a high density suburb in Harare, in the absence of a court order. In confirmation proceedings, the applicants alleged that the demolition was unlawful without  a court order in view of s 74 of the Constitution. The respondents argued that the council was entitled in terms of the Urban Councils (Model) (Use and Occupation of Land and Buildings) By-Laws 1979 (RGN 109 of 1979) to demolish structures it deemed illegal in the absence of a court order and that the by-laws had not been declared unconstitutional. The applicants contended, however, that all existing laws must be construed in conformity with the Constitution. The first respondent argued that s 74 of the Constitution needed to be read with s 86 of the Constitution, which stated inter alia that the fundamental freedoms may be limited in the interest of regional or town planning or the public interest.

Held: (1) the Constitution was the supreme law and any law inconsistent with the Constitution is ultra vires the Constitution. (2) Section 74 of the Constitution was clear and unambiguous and before the respondents could lawfully demolish the homes of the applicants, or any other illegal structures, a court order was required.

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – freedom of assembly and freedom to demonstrate (ss 58 & 59) – limitations which may be imposed (s 86) – limitations must meet test of proportionality

 

Dzamara & Ors v Comm-Gen of Police & Ors HH-398-16 (Tsanga J) (judgment delivered 4 July 2016)

The applicants had been holding an “indefinite” demonstration in Africa Unity Square in Harare, to continue until their grievances against the government were met. They were rounded up, assaulted and dispersed by police. They now made an urgent chamber application to interdict the police from violating their right to peacefully assemble and demonstrate and to be free of violence. They also sought a final order declaring the actions of the police unlawful. The court was requested to determine that the application be considered urgent.

The applicants based their claim for urgency on the fact that constitutional rights had been violated by the police, who had threatened to do so again if the demonstration was resumed. The police, as respondents, argued that the applicants had not shown that they had no other legal remedy, and they had been dispersed because they had resisted the arrest of some criminals hiding in their midst, thus threatening public safety. A continuous demonstration would also stretch the resources of the police. Furthermore, the applicants had contravened the law by not notifying the police of their demonstration.

The court considered the question of urgency in terms of rights as well as the permissible restrictions placed on those rights guaranteed by s 86 of the Constitution, and reflected in international human rights instruments. Anyone who violates rights must justify any restrictions in terms of s 86(2). The dispersal of a lawful gathering, even one of which the police have not been notified, will be unlawful unless it meets the proportionality test: the nature and extent of interference must be balanced against the reason for interfering. The applicants would have to take account of the possibility for violence and disorder if they wish to hold a demonstration in a public meeting place and engage the police to ensure order.

The behaviour of the police in perpetrating violence has at times contributed to a lack of culture of peaceful demonstration, but in this case, the reasons for restriction of the right made the restriction justifiable, since they were aiming at reducing crime. The potential for health and safety problems justify the limitations on the rights, which passed the test of proportionality. The applicants also did not show why they could not use other avenues to present their grievances to government.

In view of these conclusions, the matter was ruled not to be urgent and could be heard on the ordinary roll.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – protection against discrimination – discrimination on grounds of disability – given legislative effect by Disabled Persons Act [Chapter 17:01]

 

Masendeke v Kukura Kurerwa Bus Svcs (Pvt) Ltd HH-598-16 (Chigumba J) (Judgment delivered 12 October 2016)

 

See below, under CONTRACT (Termination).

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right of access to the courts (s 69(3)) – right to access Constitutional Court – party must first exhaust remedies through lower courts

 

Livera Trading (Pvt) Ltd & Ors v Tornbridge Assets Ltd & Ors CC-13-16 (Ziyambi JCC) (judgment delivered 17 October 2016)

 

The applicants, representing a company producing cigarettes, had been interdicted from any activity involving the marketing of their cigarettes on the grounds that they were infringing the trademark rights of another cigarette company. The High Court had granted an interim order and the respondents had applied for permission to execute the order immediately. In granting that permission, the High Court had ruled that appeal could only be pursued with its leave. The applicants then approached the Constitutional Court to invalidate the paragraph of the interim order which barred an appeal, on the grounds that it violated s 69 of the Constitution guaranteeing access to the courts.

In an urgent chamber application, the Constitutional Court rejected the application on the grounds that the applicants had not exhausted all other remedies before approaching the Constitutional Court. The correct approach would have been to lodge an appeal with the Supreme Court.

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right of access to courts (s 69(3)) – court challenge to appointment of chief – remedy available to approach Provincial Assembly with complaint – domestic remedies must be exhausted before brining matter to court – resolution of dispute regarding appointment of chief (s 283(c)(iii)) – ouster of jurisdiction of courts – would violate principle of separation of powers

 

Meki v Acting District Administrator, Masvingo Province & Ors HH-614-16 (Matanda-Moyo J) (judgment delivered 19 October 2016)

 

See below, under CUSTOMARY LAW (Chieftainship – appointment of chief – dispute – court’s role).

 

 

Constitutional law – Constitution of Zimbabwe 1980 – declaration of rights – right to fair trial within reasonable time (s 18(1) & 2)) – lengthy delay presumes unfairness – not unfair if delay caused by accused

 

S v Madzore CC-12-16 (Mavangira AJCC; Chidyausiku CJ, Malaba DCJ, Ziyambi, Gwaunza, Garwe, Gowora, Hlatshwayo, and Guvava JJCC concurring) (Judgment delivered 28 May 2014; reasons made available 11 July 2016)

 

The accused, a member of Parliament of the opposition party, was charged in 2006 with assaulting a policeman. In 2007 he was removed from remand, and the case did not proceed to trial until 2011, at which point the accused applied for referral to the Constitutional Court on the grounds that his right to a fair trial had been violated due to the long delay. The magistrate granted the referral under s 24 of the 1980 Constitution. The accused argued that the delay was caused mostly by the State, and that due to the delay he had lost contact with his sole witness and hence would be prejudiced. The State prosecutor countered that the delay had been caused by the accused himself failing to make himself available for service of summons, giving excuses as to why he could not be available for trial, and failing to appear when a trial date was agreed.

The court considered the factors which would indicate that the right to a fair trial had been violated if a trial was delayed. These were the length of the delay, the reasons for the delay, whether the accused attempted to exercise his rights, and whether the accused was prejudiced by the delay.

Held: (1) a lengthy delay provides a presumption of the inability to achieve a fair trial. (2) A delay of four years and six months in this case would be consider a sufficiently long delay. (3) The delay had been primarily caused by the accused himself, as detailed by the prosecution evidence. (4) He had made no attempt to assert his right to a speedy trial. (5) His defence would not be prejudiced by the absence of his witness, as that individual was now appearing on the list of State witnesses.  Hence the accused’s right to a speedy trial had not been violated.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to life (s 48) – permissibility of death penalty for murder where aggravating circumstances exist – requirement that “a law” should define what constitute aggravating circumstances – “law” not limited to Act of Parliament – can include judicial precedent

 

S v Kufakwemba & Ors HH-795-16 (Chatukuta J) (Judgment delivered 8 December 2016)

 

At the end of the accused persons’ trial for murder committed during the course of a robbery, the question arose whether the death penalty was competent. Under s 48(2) of the Constitution of Zimbabwe 2013 (which protects the right to life) –

“A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstance, and –

  • the law must permit the court a discretion whether or not to impose the penalty …”

The issue was whether or not there is a law that defines what constitutes aggravating circumstances and consequently whether or not the court could impose the death sentence. In some previous cases in the High Court, the judge had taken the view that an Act of Parliament was required to define the terms on which the court could impose the death penalty and, until such an Act was passed, the death penalty could not be imposed.

Held: (1) Under s 332 of the Constitution, the word “law” means more than just an Act of Parliament. It includes unwritten laws, such as customary law. Section 48(3), which protects the lives of unborn children, expressly provides that an Act of Parliament must make provision for such, but no such requirement was provided in s 48(2).

(2) The common law had, through judicial precedent, defined “aggravating circumstances”. The courts had always expressed the view that murder committed in the furtherance of other crimes such as rape or robbery amounts to murder committed in “aggravating circumstances”. The common law, which is also part of our law, provides for what constitute aggravating circumstances in the commission of a crime, as a plethora of decisions of the superior courts demonstrate. Notwithstanding the absence of a definition of aggravating circumstances, it is possible, from the particular facts of a case, to make a finding of what constitutes aggravating circumstances.

(3) Before the promulgation of the present Constitution, the Criminal Procedure and Evidence Act [Chapter 9:07] had made the death penalty mandatory for murder unless extenuating circumstances were found. “Extenuating circumstances” were not defined but this has not prevented the courts from finding such circumstances exist. Aggravating circumstances, being circumstances that worsen the accused’s moral blameworthiness, are the converse of extenuating circumstances. In the absence of extenuating circumstances, and of necessity the presence of aggravating circumstances, our courts have imposed the death penalty. One circumstance that has been found to be aggravating, warranting the imposition of the death penalty, is the murder of a person during the commission of a robbery. There is a plethora of case authority on this point. What constitutes aggravating circumstances can be gleaned from our common law and in particular from precedents. As such, the law envisaged in s 48(2) already exists in sources of law other than an Act of Parliament.

(4) The legislature has already provided in the Criminal Law (Codification and Reform) Act that killing a person during the course of a robbery is an aggravating circumstance.

(5) The amendment to the Criminal Law (Codification and Reform) Act outlining what constitute aggravating circumstances in determining the appropriate sentence for murder, although not having retrospective effect, merely restates or reconfirms what have always been considered to be aggravating circumstances. Murder during the commission of another offence has always been considered as committed in such circumstances. The amendment should therefore not be considered as filling any lacuna created by the new Constitution because none existed.

(6) Whilst the Constitution recognizes that the law that defines aggravating circumstances is in existence, the Constitution has changed the law in two respects. The first is that a court now has a discretion whether or not to impose a death sentence, even where there are aggravating circumstances. Secondly, the onus to prove whether or not the death penalty should or should not be imposed has been shifted to the State.

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – freedom from psychological torture and such like treatment (s 53) – unlawful deprivation if property without compensation (s 72(3)) – rights of persons with disabilities (s 83) – eviction of disabled farmer from farm after acquisition, without prior payment of compensation – not a breach of Declaration of Rights

 

S v Stander CC-1-16 (Malaba DCJ; Chidyausiku CJ, Gwaunza JCC, Gowora JCC, Guvava JCC, Hlatshwayo JCC, Mavangira AJCC, Chiweshe AJCC & Makoni AJCC concurring) (Decision given on 9 July 2014; reasons made available 1 September 2016)

 

The applicant was charged in the magistrates court with occupying gazetted land without lawful authority, in contravention of s 3(2) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:08]. The applicant raised a number of constitutional questions which the magistrate referred to the Constitutional Court for determination. The questions were: whether the eviction of the applicant from the farm without paying him for improvements on the land amounted to unlawful deprivation of property in terms of s 72(3) of the Constitution; whether eviction of the physically disabled applicant was in breach of obligations imposed by ss 2 and 83 of the Constitution; whether eviction without first paying compensation amounted to physical or psychological torture, or cruel inhuman or degrading treatment or punishment in violation of s 53 of the Constitution.

Held (1) No law required the State to pay the former owner of compulsorily acquired agricultural land compensation for improvements before eviction. (2) The applicant could not claim the benefit of the protection of the rights of disabled persons in terms of s 83 of the Constitution to defeat the enforcement of the obligation imposed on him by s 3(2)(a) of the Gazetted Land (Consequential Provisions) Act. (3)  There is nothing inhuman or degrading in  a process the purpose and effect of which is the prevention of a continued commission of a crime. The eviction of a former owner of compulsorily acquired agricultural land is an exercise of power sanctioned by the Constitution and cannot be said to be in contravention of fundamental rights included in the Constitution.

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – freedom of assembly (s 58) and freedom to demonstrate – police prohibiting all public processions and demonstrations for a specified period in a particular area – police power to do so in terms of s 27(1) of Public Order and Security Act – whether such prohibition a contravention of freedom of assembly

 

DARE & Ors v Saunyama NO & Ors (2) HH-589-16 (Chiweshe JP (judgment delivered 4 October 2016)

 

The first respondent, in his capacity as the police officer commanding Harare District, issued a notice in terms of s 27(1) of the Public Order and Security Act (POSA) barring for a specified period the holding of all public processions and demonstrations in the central business district of Harare. The applicants in the several cases being considered filed urgent chamber applications challenging the validity of the notice, alleging that s 27 of POSA violated the applicants’ rights protected by ss 58 (freedom of assembly and association), 59 (freedom to demonstrate and petition), 61 (freedom of expression), 66 (freedom of movement) and 67 (political rights) of the Constitution. They also sought the setting aside of the notice made by the first respondent.

Held: (1) The Constitution was the supreme law, and any law inconsistent with it was invalid to the extent of the inconsistency and the court should adopt a generous rather than a restrictive interpretation of the Constitution.

(2) Section 27 of POSA clearly constituted a derogation of the rights accorded in terms of s 59 of the Constitution (the right to demonstrate peacefully). But the question to be answered was whether it constituted a fair, reasonable, necessary and justifiable derogation or limitation in a democratic society of that freedom as allowed by s 86 of the Constitution. (3) The rights referred to form the very core of our democracy – they are sacrosanct. However, no democracy can function or thrive in an environment of public disorder and anarchy. The freedom of assembly was not absolute and must be balanced against the responsibility of government to maintain public order and protect public security. (4)  The provisions of s 27 of POSA satisfied the requirements set out under s 86 of the Constitution. The limitation it imposes on the right to demonstrate as enshrined under s 59 of the Constitution is fair, reasonable, necessary and justifiable in a democratic society based, on openness, justice, human dignity, equality and freedom. Accordingly s 27 is not ultra vires the Constitution. (5)  Although the applicants could have approached the magistrates court in the first instance, it was not inappropriate to have proceeded in the High Court, the High Court having original jurisdiction over all civil and criminal matters throughout Zimbabwe.

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – rights of accused person (s 70) – onus of accused person to show that confirmed statement was not made freely and voluntarily – whether accused person’s constitutional rights violated thereby

 

S v Chidhakwa HH-422-16 (Chitapi J) (judgment delivered 22 June 2016)

 

See below, under CRIMINAL PROCEDURE (Statement by accused person – production of).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right of arrested person to be released pending trial – s 50(1)(d) – whether such right applies to court application for bail

 

S v Kondo & Anor HH-99-17 (Chitapi J) (Judgment delivered 29 December 2016)

 

See below, under CRIMINAL PROCEDURE (Bail).

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to lawful administrative conduct (s 68(1)) – right violated if legal processes laid down by statute are not followed

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right not to be evicted without a valid court order (s 74) – rural council displacing villagers in order to expand growth point – need for council to follow due process in displacing villagers – right of villagers to raise claim in High Court if right violated

 

Bomba &Ors v Murewa RDC & Anor HH-497-16 (Tsanga J) (judgment delivered 24 August 2016)

 

The plaintiffs were a group of villagers who were being displaced from their rural homes by the actions taken by the defendant in expanding Murewa Growth Point. They had sought a declaratur stating that their constitutional and legal rights had been contravened and were seeking compensation.

The defendants entered a special plea barring the plaintiffs on the basis that they had approached the wrong court, that they had not exhausted domestic remedies and that their claim for compensation had prescribed. They argued that the plaintiffs should have approached the Administrative Court, since under s 53 of the Regional and Town and Country Planning Act [Chapter 29:12] grievances regarding compensation should be heard by that court. They also claimed that they were entitled to take any action when operating a master plan and once again grievances should be addressed to the Administrative Court. If they had a complaint under the Administrative Justice Act it could be taken to the High Court, but as an application, not by summons as they had done. Furthermore, since this process had begun several years previously, the plaintiff’s claims had expired through prescription and hence could not be heard.

The plaintiffs, challenging the special plea, argued that the jurisdiction of the Administrative Court does not provide for it to make a declaratur. They pointed out that the defendants could not rely on s 53 of the Regional and Town Planning Act, as they had produced no evidence that they were acting on the basis of a master plan, or even that a master plan existed, hence s 53 of this Act was irrelevant. No draft plan had been presented to the public, and no consultation had taken place. The plaintiffs were making their claim based on protections of rights in the Constitution and acting on s 85(1) of the Constitution. The council had acted unlawfully, evicting people without a court order, hence violating s 74(1) of the Constitution.

Held: in failing to follow legal procedures the Council had indeed violated the plaintiffs’ constitutional right under s 68 to administrative conduct that is lawful. According to s 327 of the Constitution, the court was required to interpret legislation in line with international law and that the right not to be evicted without due process is protected in international law. No evidence was presented to suggest that any legal process had been followed, hence the council’s actions were unlawful. The defendants could not restrict the plaintiffs to processes which would limit their ability to claim their rights when they themselves had not followed legal procedures.

The special plea was dismissed with costs.

 

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – rights of children – right to name and birth certificate (s 81) – not violated by s 12 of Births and Deaths Registration Act [Chapter 5:02]

 

Paunganwa v Registrar of Births and Deaths & Anor HH-406-16 (Munangati-Manongwa J) (judgment delivered 7 July 2016)

 

A woman who had been in an unregistered customary law union lost her husband two months after the birth of their baby, before the birth was registered. The registrar refused to issue a birth certificate including the father’s name, citing s 12(2)(c) of the Births and Deaths Registration Act [Chapter 5:02] which, in a case of the father of a child born out of wedlock, required a witness from the father’s family to confirm paternity. The mother had been unable to secure their co-operation and was now applying for an order compelling the Registrar to issue the birth certificate including her late husband’s name as father. She claimed that the section of the Act violated the child’s rights guaranteed in s 81(1)(b) and (c) of the Constitution – the right to a name and family and to be issued promptly with a birth certificate. Furthermore, it violated against her rights as it discriminated against her as a woman who was in a customary law marriage, and she sought to have the section declared unconstitutional. The respondent argued that there was no evidence of the putative marriage, and such discrimination was necessary to protect families from fraudulent claims of paternity.

Held: (1) s 86 of the Constitution allows limitations to rights in specified circumstances and s 56 allows for discrimination under certain circumstances. (2) The applicant had not been discriminated against on the basis of guardianship, gender or her unregistered marriage, as the requirements were not onerous or unreasonable. (3) The requirement of the Act that paternity be confirmed by the husband’s relative did not violate the child’s right to a name, as it was reasonable and justifiable in a democratic society. (4) The applicant had alternative remedies, as she could register the child in her own name or seek an order from the court requiring the relatives to undergo DNA testing. (5) Where an issue can be resolved without raising constitutional matters, such remedies should be sought.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – rule of law – primacy and meaning of – undermining of by government official failing to comply with court order

 

Mangwiro v Chombo NO HH-710-16 (Tsanga J) (Judgment delivered 16 November 2016)

 

The applicant had obtained a default judgment against the respondent in the latter’s official capacity as the Minister for Home Affairs. The respondent and his co-defendants had lodged an application for rescission, but this was not pursued to finality, resulting in the applicant filing an application for dismissal for want of prosecution. This application was granted following the respondent’s lack of action. Subsequently, the applicant obtained an order directing the respondent to exercise his powers under s 5(2) of the State Liabilities Act [Chapter 8:14] to pay, from the Consolidated Revenue Fund, the money awarded to the applicant in terms of the default judgment. The order directed him to comply within 14 days of service of the order, failing which he would be declared to be in contempt of court. The order was sent directly to the respondent 3 days later. This was followed by another letter from the applicant’s legal practitioners, reminding the respondent of the time limit. No compliance with the order having been shown, an application for committal for contempt was served personally on the respondent by the additional sheriff. The application was also served on the Attorney-General a few months later. No action was taken by the respondent or the Attorney-General. The application was accordingly set down for hearing.

The day before the hearing date, the respondent filed an affidavit stating that he had not been personally served, as required by the High Court Rules.

Held: (1) besides the factual realities, the legal basis for granting the order for contempt was fundamentally constitutionally rooted. One of the founding values of the Constitution is respect for the rule of law. The concept of the rule of law denotes a government of laws and not of men. Individuals working within the state machinery are expected to exercise their official duties and responsibilities in accordance with the law. In other words, the rule of law represents the supremacy of law. Central to the rule of law is that no person is above the law. The rule of law binds government and all officials to its precepts and also preserves the equality and dignity of all persons. In essence, equality before the law is not a hollow concept. Everyone, regardless of factors such as their economic or social status, or political affiliation is subject to the law. Respect for the rule of law would be ferociously eroded were courts to permit a government official to send a message to a litigant who has successfully sued that the State does not value court orders.

(2) Where a return of service clearly indicates that proper service has been effected, that is accepted as prima facie proof of what is stated. The onus is then on the person alleging otherwise to prove his or her assertion by clear and satisfactory evidence, which was lacking in this matter.

(3) There was evidence of a valid court order; that the order to comply with his statutory obligation had been brought to the respondent’s attention; and there had been no compliance with that order.

 

 

Contract – cession – what constitutes – how formed – distinction from pledge – justa causa for cession – need to show

 

Zimplow Hldgs (Pvt) Ltd v Senoj Invstms (Pvt) Ltd HH-761-16 (Dube J) (Judgment delivered 30 November 2016)

 

A cession is a contract between a cedent and a cessionary, whereby the cedent agrees to give up his rights. It is a transfer of rights to a claim, from one creditor to another, of a debtor’s obligations. The debtor is not involved in the cession. As soon as the cession agreement is concluded, the cedent falls out of the picture. The cessionary derives rights and interest on conclusion of the cession contract.

It is accomplished by means of an agreement of transfer between the cedent and the cessionary arising out of a justa causa from which the intention of the cedent to transfer the right to claim to the cessionary (animus transferendi) and the intention of the cessionary to become the holder of the right to claim (animus acquirendi) appears or can be inferred. The agreement of transfer can coincide with, or be preceded by, a justa causa which can be an obligatory agreement such as, for example, a contract of sale, a contract of exchange, a contract of donation an agreement of settlement or even a payment (solutio). The difference between an out and out cession and a pledge is that an out and out cession involves a total transfer of rights, whilst a cession in securitatem debiti is basically a pledge of the right and no transfer of the right takes place.

The justa causa determines the nature and extent to which the right is transferred between the parties. The justa causa of a cession can be an obligatory agreement as in a loan agreement, lease agreement, donation or contract of sale entered into between the debtor and the cedent. An agreement to provide security by means of a cession is adequate justa causa. Where a cession takes place, it is the justa causa that gets transferred to the cessionary. Where the justa causa is not expressly stated it must be capable of being inferred from the cession agreement in order for the agreement to be valid. A non-existent right of action or a non-existent debt cannot at law be transferred as a subject matter of a cession.

 

Contract – formation – contract based on a purchase order and memorandum of agreement not signed and having no start date – no clear offer and acceptance needed – valid if it was acted on

 

Bell PTA (Pvt) Ltd v Cab Park Invstms (Pvt) Ltd HH-430-16 (Tsanga J) (judgment delivered 20 July 2016)

 

The plaintiff had an agreement to supply a technician to maintain the machinery it had supplied to the respondent. The respondent had been paying for labour on an ad hoc basis, but had made a purchase order to the plaintiff for the supply of the technician on a full-time basis at 200 hours a month. The plaintiff sent a memorandum of understanding to that effect which had never been signed, but the technician was nevertheless supplied on a full-time basis. However, some errors in the billing were made and an hourly rate continued to be used, resulting in the respondent being under-invoiced. The respondent decided it would be advantageous to cancel the relationship and employ the technician directly, and thus wrote to the plaintiff cancelling the arrangement. The plaintiff then billed the respondent for the previous three months at 200 hours per month. The respondent denied that any such contract existed as the memorandum had not been signed.

 

Held: the existence of a contract did not depend on a firm offer and acceptance. The fact that a full-time technician had been supplied and the respondent had proceeded on that basis was sufficient to conclude that a contract was implicitly agreed. That was in fact the contract that the respondent was terminating when it wrote to the plaintiff. The respondent was ordered to pay the amount claimed by the plaintiff, minus the amounts already paid in terms of the hourly invoices.

 

Contract – performance – time for – position when time for performance not agreed between the parties – need for defaulting party to be placed in mora by demand being made specifying time for performance

 

Barrel Eng & Founders (Pvt) Ltd v Bitumen Construction Svcs (Pvt) Ltd HH-715-16 (Mangota J) (Judgment delivered 17 November 2016)

 

The defendant, when called upon to pay a debt owed to the plaintiff, sought and was more than once granted indulgences to pay. It did not deny liability. When the plaintiff brought the present action, the defendant claimed that the debt had prescribed. The plaintiff had also alleged that the defendant was liable on demand for payment being made, the contract not having been specific in this regard.

Held: (1) the defendant’s tacit acknowledgment of liability interrupted the period of prescription. The request for indulgences and the granting of the same interrupted the prescriptive period. The interruption caused the period of prescription to commence to run afresh.

(2) Where time for performance has not been agreed upon by the parties, performance is due immediately on conclusion of their contract or as soon thereafter as is reasonably possible in the circumstances. But the debtor does not fall into mora ipso facto if he fails to perform forthwith or within a reasonable time. He must know that he has to perform. This form of mora, known as mora ex persona, only arises if, after a demand has been made calling upon the debtor to perform by a specified date, he is still in default. The demand, or interpellatio, may be made either judicially, by means of a summons, or extra-judicially, by means of a letter of demand, or even orally; and to be valid it must allow the debtor a reasonable opportunity to perform by stipulating a period for performance.

 

 

Contract – termination – breach – anticipatory breach – what is – breach committed before performance is due

 

Masendeke v Kukura Kurerwa Bus Svcs (Pvt) Ltd HH-598-16 (Chigumba J) (Judgment delivered 12 October 2016)

 

The plaintiff was disabled, being unable to walk on his own without assistance. He was taken by his sister to catch a bus operated by the defendant company. He was accosted by defendant’s conductor as he was boarding the bus, and asked rude and embarrassing questions. He was given no assistance to board the bus, on which there was no area reserved for persons with disabilities. He eventually found a seat for himself. The conductor was rude to him, and the plaintiff withheld payment of the bus fare after the bus had started moving, unless the conductor apologized to him. The conductor refused to give the plaintiff his name and contact information. At the next town he was unceremoniously ejected from the bus by the conductor who with the assistance of two other men, manhandled him off the bus and dumped him on the ground on his back. He was humiliated and left stranded on the side of the road.

The plaintiff issued summons against the defendant, claiming, amongst other things, damages for violation of his freedom from discrimination, for injuria and for assault suffered as a result of being denied transport services on account of his disability, as well as interest and costs. The basis of his claim was that the defendant was liable in terms of the Disabled Persons Act [Chapter17:01], being vicariously liable for the wrongful conduct of its employees who acted within the course and scope of their employment when they verbally abused the plaintiff and forcibly threw him off the bus. The defendant, he claimed, was also liable for injuria for negligence because it owed a duty of care to disabled persons. The defendant’s treatment of the plaintiff was unfairly discriminatory, contrary to s 56 of the Constitution.

The matter was referred to trial for determination of whether plaintiff was entitled to payment of the sum claimed, or of any sum, from the defendant for violation of his freedom from discrimination.

 

At the conclusion of the plaintiff’s case, the defendant applied for absolution. It also argued that the plaintiff’s case was confined to the Disabled Persons Act and that he could not rely on the Aquilian action, as that had not been specifically pleaded. It was submitted that the cause of action in terms of the Act was a narrow one which should be confined to what the lawmaker provided. The guiding phrase, it was submitted, was “on the ground of disability alone”, which translated into the following elements which a plaintiff must prove in order to establish a cause of action:

  1. that the plaintiff was disabled
  2. that he sought access to a service or amenity which is ordinarily offered to members of the public at large;
  3. that he was denied the service only because he was disabled.

It was common cause that failing to pay the bus fare was an offence in terms of s 43 of the Motor Transportation Act [Chapter 13:15]. The defendant argued that this constituted an anticipatory breach of the contract.

The plaintiff argued that he had established a prima facie case against the defendant on the issue referred to trial, and that the evidence adduced on his behalf satisfied the definition of discrimination on the basis of disability set out in s 56(3) and (4) of the Constitution.

Held: (1) the 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. A pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another.

(2) By imposing a condition which did not form part of the original contract of carriage, the plaintiff in effect repudiated the contract, even though that may not have been his express intention. He created a different contract. The question then became one of whether the defendant owed the plaintiff a duty of care, or any duty at all, when the plaintiff refused to pay the fare and the contract of carriage was repudiated.

(3) The ejectment of the plaintiff from the bus was for failure to pay the fare, and not because of his disability. The plaintiff would have been transported to his destination had he paid the requisite fee. The plaintiff repudiated the contract of carriage when he refused to pay the fare. He was not entitled to any carriage by the defendant unless he paid the fare.  The cause of action based on the Act was not proved on a prima facie basis.

(4) It was shown to have been established, on a prima facie basis, that he was treated in a discriminatory manner for the purposes of s 56(3) of the Constitution by being subjected directly or indirectly to a condition, restriction or disability which other people were not, or that other people were accorded directly or indirectly a privilege or advantage which he was not accorded. Although the pleadings did not expressly and specifically rely on s 56 of the Constitution to found a cause of action, it is clear that the Act was born of the provisions of s 56(6) of the Constitution. It provided for and protected the rights of disabled persons.

(5) Section 176 of the Constitution itself provided that the court had inherent power to protect and regulate its own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of the Constitution. The plaintiff could rely on s 56 of the Constitution because it could not be said, as a matter of law, that he did not plead it as the basis of his cause of action.

 

 

Court – contempt – application for committal – need for application to be served personally

 

Mangwiro v Chombo NO HH-710-16 (Tsanga J) (Judgment delivered 16 November 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – rule of law).

 

 

Court – contempt – application for committal – grounds for refusal – disputes of fact – application should be granted where disputes of fact are illusory

 

Moyo v Ncube HB-237-16 (Mathonsi J, Bere J concurring) (judgment delivered 16 September 2016)

 

The appellant and respondent were neighbours involved in a dispute over boundary demarcation. The dispute was resolved by a consent order in the magistrates court. The respondent failed to comply with the consent order. The appellant commenced an application for contempt of court against the respondent in the magistrates court.  The magistrate dismissed the application, finding that it should have been commenced as an action and not an application as there were disputes of fact.

On appeal, held: there was a consent order and the boundary had also been properly demarcated by the relevant authorities. The dispute of fact was illusory and the magistrate should have granted the contempt of court order on application.

 

 

Court – judicial officer – duties – deal with matters with reasonable promptness – unexplained delays – parties’ right to complain

 

Court – judicial officer – duties and role – encourage and support negotiated settlements between parties – desirability and benefits of reaching settlement

 

City of Harare v Thomas & Anor HH-544-16 (Chitapi J) (Judgment delivered 14 September 2016)

 

A consent order had been made between the applicant and the first respondent whereby the applicant undertook to supply water to the first respondent’s property for a minimum of two days a week or such lesser period as may be agreed, allowing an application for variation if the applicant maintained that the first respondent was unreasonably refusing to consent to variation. Several years later the applicant applied for variation of the court order to specify that it would supply water as and when it was able to do so. The judge, endeavouring to adopt a dispute resolution approach sought to seek an agreement between the parties, specifying that if agreement was not reached by a specific date, judgment would be handed down. Agreement was not reached and after a substantial delay occasioned by administrative deficiencies, the file was referred to the judge for judgment.  Held: (1) courts should endeavour to encourage and give judicial support to negotiated settlements between opposing parties. If parties settle their disputes amicably without the need for adjudication by the court, they basically enter into a compromise arrangement. A compromise puts an end to a law suit and would be on the same footing as a judgment because it renders the dispute re judicata. Compromise agreements invariably promote an orderly and effective system of justice administration. The litigants benefit from avoiding costs which are the hallmark of protracted and often acrimonious trials. The cases which have to be disposed of through trial are reduced hence reducing the case load on the judicial system. The court’s resources, including the judges, are not clogged and stretched. This allows for a smoother and more efficient justice delivery system. Compromise agreements help the parties to retain an amicable relationship which is likely to last and from a logic point of view, parties are likely to abide by and perform the rights and obligations which they will have created and/or imposed mutually on one another more readily that if the same are forced upon them.

(2) In terms of s 165(1)(b) of the Constitution, justice should not be delayed and the judiciary is required to perform its duties with “reasonable promptness”. In terms of s 162, “judicial authority derives from the people of Zimbabwe and is vested in the courts”. Unexplained delays in handing down judgments have the potential effect of undermining public confidence in the judicial system, in that the public will perceive courts as institutions which do not bother to expeditiously resolve disputes. The Judicial Service Code of Ethics 2012 was enacted to among other things set standards relating to the handing down of reserved judgements. The fact that one of the parties files a complaint should not and has not influenced the court’s decision. However, it is desirable, where a party makes follow ups on a reserved judgement or indeed on any matter in which there is another litigant involved, to also copy correspondence, to give the opportunity for openness. It should not appear as though the judge has been influenced or pressured to act by one party without the knowledge of the other.

(3) The variation sought by the applicant was very open ended, effectively leaving the first respondent unable to challenge the applicant’s inability to supply water. (4) The applicant, while pleading that it was beset by very severe financial constraints, that its pumping capacity was hampered by old and inefficient pumps which continually broke down and that the high altitude of the first respondent’s property made pumping extremely difficult, had not, however, indicated what remedial measures it was putting in place to surmount its stated challenges.

(5) The first respondent had accordingly not been unreasonable in refusing to consent to the variation and the application for variation of the consent order was dismissed.

 

 

Court – judicial officer – leaving bench – completion of part heard matters – magistrate – need for magistrate to take oath of office again before hearing matters

 

S v Munatsi HH-533-16 (Mtshiya J) (Judgment delivered 9 September 2016)

 

A regional magistrate commenced a trial but left the bench three months later, before completing the matter. He returned to continue the hearing three months after that, without retaking the oath of office.

Held: (1) Sections 6 and 9 of the Magistrates Court Act [Chapter 7:10] require a magistrate to take the oath of office before presiding over proceedings.

(2) Unlike the Labour Act and the Constitution which make provision for presidents of the Labour Court and judges of the High Court to complete matters they commenced before their appointments expired, there is no such provision in the Magistrates Court Act.

(3) Accordingly, the magistrate should have retaken the oath of office before presiding. The proceedings had to be quashed and commenced de novo before another regional magistrate.

 

Court – officer – deputy sheriff – sales in execution – attachment of property – sheriff’s duty to attach no more than required to satisfy judgment debt

 

Zimbabwe Mining Co (Pvt) Ltd v Outsource Security (Pvt) Ltd & Ors S-50-16 (Uchena JA, Malaba DCJ & Bere AJA concurring) (decision given on 29 March 2016; reasons made available 4 October 2016)

 

See below, under PRACTICE AND PROCEDURE (Execution – sale – attachment of property in execution – duties of sheriff).

 

 

Criminal law – general principles – liability – director or employee of a company – vicariously liable for criminal acts of other directors or employees

 

S v Chikuku HH-527-16 (Musakwa J, Hungwe J concurring) (Judgment delivered 12 September 2016)

 

The appellant was employed by a company as a clerk. A director of the company, together with the appellant’s co-accused (who had since died), bought maize from the complainant, purporting to act on behalf of a company. The maize was delivered to the company’s premises and an invoice was issued. The appellant undertook to have the complainant paid, but no payment was made. When the complainant called to see the appellant, he was told that the appellant was elsewhere in the country. The appellant was convicted of fraud. On appeal, the issue of his liability for the offence was raised.

Held: in terms of s 277 of the Criminal Law Code [Chapter 9:23], any conduct on the part of a director or employee of a corporate body who is acting in the exercise of his or her power or in the performance of his or her duties as such, or in furthering or endeavouring to further the interests of the corporate body, shall be deemed to have been the conduct of the corporate body. In terms of s 277(3), any conduct, which constitutes a crime for which a corporate body is or was liable to prosecution, is be deemed to have been the conduct of every person who at the time was a director or employee of the corporate body. However, where it is proved that a director or servant took no part in the conduct, such criminal liability shall not apply to him or her. The onus is on the director or servant to prove on a balance of probabilities that he did not take part in the commission of the offence and could not have prevented it. Here, although the appellant was not the one who initially made representations to the complainant, he subsequently made common cause with the director and his co-accused. This he did by making assurances that payment would be made.

 

Criminal law – offences under Criminal Law Code – culpable homicide – motoring case – sudden emergency – principles – collision by vehicle with a cyclist – travelling in the same direction – cyclist unexpectedly crossing into the vehicle’s path

 

S v Stockil HH-562-16 (Mushore J, Hungwe J concurring) (judgment delivered 28 September 2016)

 

See below, under EVIDENCE (Facts agreed).

 

 

Criminal law – offences under Criminal Law Code – fraud – theft – person taking property by means of misrepresentation – should be charged with fraud, not theft

 

S v Mashiri HH-596-16 (Musakwa J) (judgment delivered 7 October 2016)

 

See below, under CRIMINAL PROCEDURE (SENTENCE) (Offences under Criminal Law Code – theft).

 

Criminal law – offences under Criminal Law Code – murder – defences – defence of property – when can be a complete defence – accused’s action must be proportionate to the potential harm done by the attacker

 

S v Mundisi HH-645-16 (Chitapi J) (judgment delivered 18 October 2016)

 

The accused was a security guard employed to protect a crop of maize which was being harvested at the time. Thieves entered the field and stole bags of harvested maize. The accused shouted at them to stop, and, when they continued to run away, he fired one shot which killed one of the thieves. The verdict hinged on whether it was legal to kill in defence of property. The court reviewed the provisions of ss 257, 258 and 259 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] which lay out the circumstances under which defence of property can be a complete defence to a charge of murder.

Held: (1) in determining guilt or innocence the court should pass a value judgment which takes into account the circumstances of the case and the person of the accused. In this case, the accused had not acted unreasonably in seeking to defend the property of his employer and had cause to fear that the attackers might do harm to his person. However, his behaviour could not constitute a complete defence, since he had not satisfied the requirement of s 257(1)(d) that any harm in defence of property be proportionate to the harm which would be caused by the unlawful attack. He acted too hastily in firing his weapon without considering all the relevant factors of the situation. The doctrine of proportionality favours saving or preserving life unless this cannot be achieved without endangering grossly the life or property of the victim. The accused was thus found guilty of culpable homicide.

(2) In determining an appropriate sentence, it is necessary to consider the need to protect the right to life as provided in s 48 of the Constitution of Zimbabwe. In sentencing an accused guilty of culpable homicide, it is necessary to take into account the facts of the particular case and establish the degree of negligence or culpa demonstrated. The accused was negligent in the use of his firearm, but was a first offender, of good character, remorseful, and had tried to help the victim after he discovered that he had shot her. However, community service would not provide a sufficient deterrent to others; a long sentence would not be necessary as the accused was unlikely to repeat the offence. Hence a sentence of 30 months was appropriate.

 

 

Criminal law – offences under Criminal Law Code – undermining authority of or insulting the President (s 33) – what must be shown – statement must not only be false, but have potential to produce prohibited results

 

S v Maseko & Anor CC-11-16 (Malaba DCJ, Chidyausiku CJ, Ziyambi JCC, Gwaunza JCC, Garwe JCC, Gowora JCC, Hlatshwayo JCC, Patel JCC & Guvava JCC concurring) (decision given 15 January 2014; reasons for decision made available 13 September 2016)

 

The applicant told a public gathering that the President was 82 years old and because of that should not extend his term of office. He was charged with contravening s 33 of the Criminal Law Code [Chapter 9:23], it being alleged that he publicly, unlawfully and intentionally made a statement about or concerning the President with the knowledge or realizing that there was a real risk or possibility that the statement was false and that it might engender feelings of hostility towards or cause hatred, contempt or ridicule of, the President in person or in respect of the President’s office. The applicant brought an application to the Constitutional Court, questioning the constitutional validity of the statutory provision. At the hearing, State counsel advised the court that the State had decided not to proceed with the charges, on the grounds that the facts on which the charges against the accused was based could not if proved by the available evidence at the trial constitute an offence..

Held: the facts vindicated the State’s decision. The President’s age was a fact. To found a criminal charge on the allegation that the statement that the President was 82 years old was false was unfortunate. Considering the fact that the accused was making a political speech it would require more than merely alleging that he incited the gathering to public violence when he said the President should not extend his term in office because of old age. That is the kind of unsolicited advice a politician in opposition in a democracy would be prone to giving without intending to excite his or her audience to public violence. The right to freedom of expression would protect him when he said what he did, as it was not a false statement in the sense that it was deductive reasoning from the true statement on the President’s age. The criminal offence with which the accused was charged was not intended to cover facts relating to the kind of political speech made by the accused. Even if the statement had been false, it would be necessary to show that the statement in itself was capable of producing the prohibited results in the minds of right thinking people. Not every false statement about or concerning the President has the potentiality of producing the prohibited consequences even if they are intended.

 

 

Criminal procedure – bail – entitlement to – court application – whether necessary for State to show compelling reasons for bail to be granted

 

S v Kondo & Anor HH-99-17 (Chitapi J) (Judgment delivered 29 December 2016)

 

Section 50(1)(d) of the Constitution requires that an arrested person must be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention. It was argued for the applicants that this principle applies to a bail application in court.

Semble, that the provision only applies to a person who is yet to appear before a court. The provision has not changed the requirements of the Criminal Procedure and Evidence Act regarding the granting of bail by a court. Section 115C(2)(ii)(A) places the onus on the accused, if charged with a Third Schedule offence, to justify his release on bail.

 

 

Criminal procedure – bail – pending appeal – necessary to have record of proceedings of trial court and reasons for judgment – where record of proceedings cannot be found, it needs to be reconstructed by the State and appellant – duty of court to promote justice dispensation and ensure justice system was not brought into disrepute

 

Criminal procedure – record – trial record lost – how to be reconstructed

 

S v Sawadye HH-514-16 (Chitapi J) (Judgment delivered 26 August 2016)

 

The appellant had been convicted of armed robbery, attempted murder and a firearms offence in October 2005 and sentenced to an effective 28 years imprisonment. He successfully applied for condonation of late noting of appeal in January 2010 and in the same month filed grounds of appeal. Over six years later, in May 2016, he applied for bail pending appeal. He filed this application without including the necessary judgment from his criminal trial and record of proceedings. This was because the responsible court authorities had for all that period been unable to locate the judgment or record of proceedings – despite saying they had “frantically” tried to do so.

Held: (1) Granting condonation of late noting of appeal did not in itself entitle an appellant to bail pending appeal as he needed to satisfy the court that the interests of justice would not be endangered by his release on bail.

(2) The record of proceedings and judgment of the trial court were necessary for proper consideration of an application for bail pending appeal.

(3) Where the record is incomplete, destroyed or lost, the State and the accused have a duty to try to reconstruct the record, by obtaining depositions from the accused and witnesses who gave evidence at the trial as to the evidence they gave. Thereafter the presiding magistrate, in consultation with the State and accused, would certify the reconstructed record.

(4) The applicant had the right in terms of s 70 (4) and (5) of the Constitution to be given a copy of the record within a reasonable time, once he had paid for it, and have his appeal determined.

(5) Accordingly at the court’s direction further searches for the record had been urgently carried out and these resulted in the record which had been before the judge who granted condonation of late noting of appeal being found.

(6) The record being found following the Court’s intervention did not translate into automatic resolution of the defective bail application, and the appellant elected to withdraw the application as presently framed.

(7) It was, however, the duty of the court to promote justice dispensation and ensure that the judicial system was not brought into disrepute.

(8) The appellant was not legally represented and was granted leave to prosecute the appeal in person.

(9) The facts of the application presented a serious indictment of the criminal justice delivery system.

(10) Directions would be given to ensure that when the appellant filed a fresh application for bail pending appeal with the necessary record and judgment attached, it would be dealt with timeously.

 

 

Criminal procedure – charge – splitting of – rationale for rule against – extent to which rule has been diluted by s 145 of Criminal Procedure and Evidence Act [Chapter 9:07]

 

S v Chikukwa HH-813-16 (Chitapi J) (Judgment delivered 3 October 2016)

 

Section 145 of the Criminal Procedure & Evidence Act [Chapter 9:07] provides for what may be done when it is not clear which of several offences can be constituted by the facts proved. In that event, the accused may be charged with having committed all or any of those offences, and any number of such charges may be tried at one time; or the accused may be charged in the alternative with having committed some or one of those offences. The section has largely diluted the scope of the exception which an accused can take based on an alleged splitting of charges. It allows great latitude to the State to charge various offences, whether separately or in the alternative, arising from one act or series of acts or where facts are uncertain as to what charge exactly to put to the accused in the indictment. The objection to a slitting of charges may well have become academic in view of the provisions of the section.

One of the reasons for the rule against splitting of charges is that the rule is intended to protect the accused from being unduly prejudiced due to a multiplicity of convictions arising from one continuous conduct, in that the accused would then have to be sentenced on each charge. This can be cured by taking the counts as one for sentence.

The test for determining if there has been a splitting of charges is not a rule of law but of logic and common sense. The facts of each case must be considered on their merits in order to achieve fairness towards the accused. The application of the practice and tests should not lead to fettering the authority of the Prosecutor General to bring to court against the accused the charges which, on the evidence available, the accused should answer to.

 

 

Criminal procedure – discharge at close of State case – no application by accused – court finding insufficient evidence to proceed must nevertheless discharge

 

Criminal procedure – evidence – production of – extra-curial statement by accused – statement confirmed by magistrate – whether onus placed on accused to show such statement not freely made contravenes Constitution

 

S v Chidhakwa HH-422-16 (Chitapi J) (judgment delivered 22 June 2016)

 

A charge of murder against the accused had been poorly investigated. The confession by the accused had been confirmed by a magistrate, but the accused claimed he had been tortured and feared further torture. Even though there had been no application made for discharge at the close of the State case, the court ruled that in such a case, where the matter had clearly been mishandled by the police and prosecutor and there was no evidence on which a conviction might be secured, the judge had an obligation to discharge the matter without putting the accused on his defence.

Quaere: whether s 256(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] violates the provisions of s 70(1)(a) of the Constitution (on the presumption of innocence) and s 70(1)(i) (the accused’s right not to testify). The section requires that where an accused’s statement has been confirmed by a court, it lies with the accused to prove that the statement was not made voluntarily.

 

Criminal procedure – questioning of accused in relation to matters relevant to sentence – how such questioning should be conducted

 

S v Karadzangare HH-794-16 (Chitapi J) (judgment delivered 20 July 2016)

 

The accused had pleaded guilty to culpable homicide and had been convicted. In determining an appropriate sentence the judge applied the combination theory, which required him to consider the offence, the offender and the interests of society. The accused had strangled his heavily pregnant wife and left her motionless; when he returned later to find her lifeless he wrapped up her body and buried it in a shallow grave at night. He only confessed when the body was discovered some days later.

After counsel for both sides had made their submissions on sentence, the court posed several questions to the accused. It did so in terms of s 271(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The court held that the questions which the prosecutor and the court may put to the accused in terms of this section must be relevant to sentence and not conviction. The provisions of this section must be used sparingly and only in circumstances where the prosecutor or the court hold the view that there are pertinent facts relative and material to the assessment of sentence which the accused needs to shed light on. If not properly invoked and utilized, there is a danger that the procedure may degenerate into a mini trial and some questions, if not properly measured, may solicit answers which may lead the court to reconsider its verdict as the answers may raise a defence. It is also permissible where the accused is represented to elicit the relevant facts which need filling up by directing questions to the accused’s counsel who can always be approached by his counsel with the leave of the court to solicit the answers. Lastly, where the provisions of the section have been invoked and the accused is represented, defence counsel should strictly be guided by rules relating to re-examination. The questions which defence counsel may ask the accused should arise from questions by the prosecutor or the court, as the case may be, by way of clarifying any points or facts adduced during questioning by the prosecutor or the court. The procedure is not designed to give the accused’s defence counsel a second bite of the cherry to mitigate on sentence or elicit from the accused new facts in mitigation, save as such facts may arise from questions put to the accused by the prosecutor or the court.

The court considered that the accused should have realized that his actions could cause death, and narrowly escaped being convicted of murder; thus the negligence was gross and he went on further to lie and conceal his crime. However, he had no record of violence and had experienced several provocations from his wife, and was genuinely remorseful and wishing to compensate his in-laws. Society would require a sentence which showed a high degree of respect for life. The accused was sentenced to 12 years imprisonment, of which 4 years were suspended.

 

Criminal procedure – review – incomplete proceedings – refusal by magistrate to discharge applicant at conclusion of prosecution case – superior court should always be slow to intervene in unterminated proceedings of an inferior court – should only do so in the very rare situations where a grave injustice would occur if the superior court does not intervene

Achinulo v Moyo NO & Anor HB-226-16 (Mathonsi J) (Judgment delivered 25 August 2016)

The applicant was arraigned before a magistrate on a charge of theft. At the close of the prosecution case he applied for discharge, which application the presiding magistrate refused. The applicant took this decision on review but the prosecution wished to proceed with the trial and the applicant filed an urgent application for the stay of the criminal proceedings pending the review.

Held (1) a superior court should always be slow to intervene in unterminated proceedings of an inferior court and will ordinarily not sit in judgment over a matter that is before the court below except in very rare situations where the irregularity is gross and a grave injustice would occur if the superior court does not intervene.

(2) The magistrate’s failure to discharge the applicant at the close of the State case when there was no prima facie case established against him met the necessary stringent criteria and the application was granted pending the conclusion of the review proceedings commenced by the applicant.

 

Criminal procedure – trial – High Court trial – documents supplied to accused person before trial – list of witnesses and summary of witnesses’ evidence – what such list and summary should contain – not permissible for State simply to summarise all the State evidence

 

S v Moyo HH-528-16 (Chitapi J) (Judgment delivered 16 July 2016)

 

In preparing the summary of the State case in High Court prosecutions, the State should be guided by the provisions of s 66(6) of the Criminal Procedure and Evidence Act [Chapter 9:07]. In terms of this provision, the State is required to prepare a document to be served upon the accused together with the indictment or charge and a notice of trial. The document should contain a list of witnesses and a summary of the evidence of each such witness which he or she will give at the trial.

The content of the summarized evidence should be sufficient to inform the accused of all the material facts upon which the State will rely. The accused is required to give an outline of his or her defence and to also list the witnesses he or she propose to call and to outline the evidence of each such witness in sufficient detail to inform the Prosecutor-General of all the material facts relied upon in his or her defence.

The State has adopted a practice of considering the statements of its witnesses and other evidence and then making a summary what it alleges as having taken place. Such a summary or State’s conclusions is not provided for in the law and is of no evidential value. The summary may also have the effect of misleading the court on what the case is about.

If the prosecutor wants to address the court before leading evidence, he or she should do so before opening the State case, as provided for in s 198(1) of the Act. Whether such opening address is made in writing or verbally does not matter. The address or summary should not be included as part of the document which is referred to in s 66(6)(a), which document has come to be colloquially referred to as the State Outline or summary of State case. A distinction in procedure should be noted between trials in the magistrates court and the procedure in the High Court. In the magistrates court, where a plea of not guilty is entered, where in terms of s 188 of the Act, the prosecutor is required in terms of s 188 of the Act to make a statement outlining the nature of the State case and the material facts on which he relies.

 

Criminal procedure (sentence) – general principles – mandatory minimum sentences – when sentence higher than mandatory minimum sentence may be imposed – imposing higher sentence in order to allow for suspension of part thereof – impropriety of

 

S v Chitate HH-568-16 (Mafusire J) (Judgment delivered 22 September 2016)

 

Where a statute provides for a mandatory minimum sentence in the absence of special circumstances, the court may go above the prescribed minimum. The court’s discretion to impose a sentence other than the prescribed minimum should, though, be exercised judiciously, not whimsically. The sentence should not be a thumb-suck.

As a sentencing principle, a court may suspend the operation of a sentence, or a portion of it, on conditions that it must specify: s 358 of the Criminal Procedure and Evidence Act [Chapter 9: 07]. But where there is a prescribed minimum sentence for any given offence, the remaining effective sentence should not be less than the prescribed minimum. Where there is a prescribed minimum sentence for an offence, it is improper for the court to impose a harsher penalty above the prescribed minimum in circumstances where such a sentence is not warranted, simply to create some room to suspend a portion, for whatever purpose, for example, restitution. If the appropriate sentence is the prescribed minimum, the court should stick to that sentence. This does not necessarily leave the complainant without a remedy. Through the prosecutor, the injured person can always apply for restitution or compensation in terms of Part XIX of the Act. Unlike the award of restitution or compensation under s 358(2), the award of compensation or restitution under Part XIX is not part of the sentencing formula.

 

Criminal procedure (sentence) – general principles – suspended sentence – subsequent offence – existence of suspended sentence immediately brought to court’s attention – whether court has discretion to further suspend previous suspended sentence

 

S v Sibanda HB-243-16 (Mathonsi J) (judgment delivered 29 September 2016)

 

The accused was a pathological stock thief, regularly stealing goats. His first offence incurred a sentence of 90 days’ imprisonment. His second offence, committed very shortly thereafter, resulted in a sentence of 18 months’ imprisonment of which six months was suspended for five years on condition he was not convicted of an offence for which he was sentenced to imprisonment without the option of a fine. Shortly after his release he again stole a goat and was sentenced to 24 months imprisonment of which portion was suspended on condition of payment of compensation to the complainant before a specified date. The 6 months suspended for the prior conviction was further suspended on the same terms.

Held: (1) The discretion to grant further suspension of a suspended sentence is triggered only where the court has ordered an offender to be brought before it in terms of s358(5) of the Criminal Procedure and Evidence Act [Chapter 9:07]. (2) Where the offender is tried and convicted of a different or fresh charge and the sentence for that different or fresh charge brings about a violation of the suspended sentence, the court has no such discretion. A conviction during the currency of the period resulting in a sentence of imprisonment without the option of a fine, amounts to a breach of the condition of suspension. Having violated the condition, the accused lost the benefit of the suspension and the suspended sentence had to be brought into effect.

 

Editor’s note: this decision seems, with respect, to be contrary to long accepted practice, which has been that the court exercised a discretion. See R v Tachi 1950 SR 199.

  

Criminal procedure (sentence) – offences under Criminal Law Code – culpable homicide – motoring case – negligence causing death of a pedestrian – endorsement of driver’s licence under Road Traffic Act [Chapter 13:11]

 

S v Maposhere HH-451-16 (Tagu J) (judgment delivered 25 July 2016)

 

A magistrate sentenced a driver who had negligently caused the death of a child to a suspended sentence and community service as provided for in the Criminal Law Codification and Reform Act [Chapter 9:23]. The driver’s licence was also ordered to be endorsed in terms of the Road Traffic Act [Chapter 13:11]. A scrutinsing regional magistrate queried whether it was competent for the accused to be penalized under the Road Traffic Act when the law under which he had been charged did not provide for such a penalty.

Held: s 64 of the Road Traffic Act provides for anyone convicted under any other law in connection with driving a motor vehicle to have their licence endorsed as if they were being charged under the Road Traffic Act, as would have occurred before the criminal law was codified. It was thus competent for the court to invoke the provision of the Road Traffic Act which allowed the endorsement of the accused’s driving licence.

 

Criminal procedure (sentence) – offences under Criminal Law Code – culpable homicide – when custodial sentence necessary to demonstrate protection of right to life – length hinges on degree of negligence or culpa

 

S v Mundisi HH-645-16 (Chitapi J) (judgment delivered 18 October 2016)

 

See above, under CRIMINAL LAW Offences under Criminal Law Code (Murder – defences).

 

Criminal procedure (sentence) – offences under Criminal Law Code – theft – fine which may be imposed – provision in Code for level 14 fine or twice value of property stolen, whichever is the higher – mandatory minimum not intended

 

S v Mashiri HH-596-16 (Musakwa J) (judgment delivered 7 October 2016)

 

The accused was charged with two counts of theft of trust property. In each case, he had told the owner of a mobile phone that he wanted to borrow the phone to make a call, but made off with the phone and sold it. After conviction, he was fined. A scrutinising regional magistrate was of the view that the fine should have been at least twice the value of the items and that a fine of that level was mandatory in terms of s 113(1) of the Criminal Law Code. On review,

Held: (1) under s 344(2) of the Criminal Procedure and Evidence Act [Chapter 9:07], when a person is liable to be sentence to a fine of any amount, he may be sentenced to a fine of any lesser amount. Section 113(1) of the Criminal Law Code provides that a person convicted of theft is liable to a fine not exceeding level fourteen or twice the value of the stolen property, whichever is the greater. This does not entail any minimum mandatory fine or require the imposition of a fine that is equivalent to twice the value of the stolen property.

(2) As this was a case of misrepresentation, the accused should have been charged with fraud. However, the charge could not be amended after conviction and sentence, since an amendment is meant to cure an imperfect charge and not to substitute with a different one. The conviction and sentence would be set aside and a retrial held.

 

 

Criminal procedure (sentence) – offences under Criminal Law Code – murder – death penalty competent when murder committed in aggravating circumstances – what constitute – murder committed during armed robbery – such murder committed in aggravating circumstances

 

S v Kufakwemba & Ors HH-795-16 (Chatukuta J) (Judgment delivered 8 December 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right to life (s 48)).

 

Customary law – chieftainship – appointment of chief – dispute – duty reposed in President by Constitution to settle such disputes – need for parties to approach the President first before bringing President’s decision on review

 

Gweshe v The President & Ors HH-542-16 (Dube J) (Judgment delivered 14 September 2016)

 

The third defendant was appointed acting chief for the Negomo area. The plaintiff averred that the third defendant’s family had no traditional or other right to the chieftainship and that the chieftainship should come from the plaintiff’s family. He had sought the assistance of the second defendant (the responsible Minister) to resolve the dispute but the Minister had ruled against him. The plaintiff averred that that the Minister’s finding was irrational and sought the intervention of the court to declare that the plaintiff’s family were the rightful heirs to the chieftainship. The first and second defendants submitted that the ourt had no jurisdiction in terms of s 283 of the Constitution to resolve disputes regarding chiefs – that being the prerogative of the President, on the recommendation of the Provincial Assembly of Chiefs. It was accordingly submitted that the plaintiff had approached the court prematurely as he had not yet exhausted his domestic remedies.

Held: (1) In terms of s 283 of the Constitution, the President had the duty to resolve disputes between traditional leaders and the plaintiff had not exhausted the domestic remedies available and had come to the wrong forum (2) The court could only intervene on review after the President had resolved the dispute. (3) Accordingly the matter was improperly before the court and the order the plaintiff sought incompetent.

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right of access to courts (s 69(3)) – court challenge to appointment of chief – remedy available to approach Provincial Assembly with complaint – domestic remedies must be exhausted before brining matter to court – resolution of dispute regarding appointment of chief (s 283(c)(iii)) – ouster of jurisdiction of courts – would violate principle of separation of powers

 

Customary law – chieftainship – appointment of chief – dispute – court’s role – need to exhaust domestic remedies first

 

Meki v Acting District Administrator, Masvingo Province & Ors HH-614-16 (Matanda-Moyo J) (judgment delivered 19 October 2016)

 

The plaintiff wished to challenge the appointment to the position of Chief Mapanzure by the President. He had cited the DA of the district and the PA of the province, and the Minister of Local Government. He was challenging the recommendation made by the Minister to the President rather than the action of the President, which had already been taken. He sought an order declaring that the defendants had contravened custom by making the recommendation in question, that the recommendation be set aside, and that an independent body be appointed to review the process of making the recommendation.

The defendants maintained that the failure to cite the President was fatal to the application, since the President had already acted, and further, that jurisdiction of the courts in matters of disputes regarding appointment of chiefs was ousted by s 283(c)(iii) of the Constitution of Zimbabwe.

Held: (1) since the President had already made the appointment, and the Constitution placed on him the obligation to resolve disputes regarding appointments of traditional leaders, the failure to cite the President was fatal to the case.

2) The courts’ jurisdiction could not be ousted as no ouster clause appears in the Constitution, and any attempt to remove such jurisdiction would contravene the doctrine of separation of powers which requires the actions of the executive to be subject to the scrutiny of the judiciary.

(3) The plaintiff had not exhausted other domestic remedies before approaching it, in spite of his argument that due to the non-alignment of the Traditional Leaders Act with the Constitution, there was no other alternative. The plaintiff should have lodged his complaint with the Provincial Assembly of Chiefs, which is provided for in the Constitution as well as the Act.

 

Delict – liability – vicarious liability – right of plaintiff to sue both servant and master for wrongful acts committed in course of employment

 

Mahlangu v Dowa & Ors HH-653-16 (Chigumba J) (Judgment delivered 28 October 2016)

 

The plaintiff, a senior legal practitioner, was representing a client, on whose behalf he wrote a letter to the fourth defendant, the Attorney-General. The latter took the view that the letter was an attempt to interfere with the course of justice and instructed the third defendant, the Commissioner-General of Police, to arrest the plaintiff. The arrest was carried out by the first and second defendants, who were police officers. The plaintiff was detained overnight but released by a magistrate the following day. The plaintiff sued for damages, claiming that his arrest without a warrant was wrongful and unlawful, and contrary to the provisions of s 13 of the former Constitution, in that: there was no reasonable suspicion that he had committed an offence which entitled the first defendant to arrest him; the order given to the first defendant to arrest him was unlawful; and the fourth defendant’s instruction to the third defendant to cause his arrest was unlawful. The defendants, he averred, acted maliciously and in breach of the law and failed to exercise their discretion in a reasonable manner. He averred further that first four defendants were being sued in their personal capacities.

The defendants averred that they were acting in the course and scope of their employment, and that therefore it was improper for them to be sued in their personal capacities. In any event, they had acted lawfully and reasonably.

There was a dispute about whether the onus was on the defendants to start the trial, the plaintiff saying that where a litigant is arrested without a warrant, the onus lies on the arresting detail to prove the basis on which such an arrest was made. Here, the duty lay on the defendants. The defendants argued that the court had a discretion. The defendants also raised the issue of whether the plaintiff was entitled at law to sue the defendants in their personal capacities in the circumstances of this case. The plaintiff had given the necessary notice in terms of the Police Act [Chapter 8:14] and the State Liabilities Act [Chapter 8:14] of his intention to sue the first, second, third and fifth defendants. The plaintiff’s declaration had averred that the defendants were acting in the course and scope of their employment and thus they fall within the category of s 13(5) of the former Constitution which imputes liability for compensation to their employer. The defendants further submitted that the plaintiff’s declaration did not make the necessary averments for purposes of s 13(5) and allege that the defendants –

  • did not act reasonably; and
  • did not act in good faith; and
  • acted with culpable ignorance/negligence.

The defendants could not be asked to answer in their personal capacities for actions which they took while acting in their official capacities. They could only be held liable in their personal capacities if they were not acting in their official capacities.

The plaintiff argued that the first issue was one of vicarious liability, and that the question that the court should determine was that of whether the vicarious liability of the employer gives immunity to the employee. Case law indicated otherwise. The delict of wrongful arrest could be committed by an individual, and could give rise to a claim for compensation. The plaintiff was seeking compensation in terms of the common law and not in terms of the Constitution. In any event, Parliament had not made any law to exempt public officers from liability to pay compensation. The plaintiff was asserting his common law right to sue both the servant and the master.

Held: (1) accepting the common law position that a servant can be sued at the same time as his master in the same action for some wrong that he committed during the course and scope of his employment, the servant’s wrongful actions cannot be imputed to the master if the actions did not take place during the course of employment. If the defendants acted in their personal capacities, then they were not acting in the course and scope of their employment.

(2) The 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. A pleader cannot be allowed to direct the attention of the other party to one issue and then, at the trial, attempt to canvass another. When regard was had to the plaintiff’s summons and declaration, it was apparent that the plaintiff averred that the action that he sought to be compensated for took place during the course and scope of the defendants’ employment.

 

 

Employment – contract – termination – contract of fixed duration – when employee can be said to have legitimate expectation of re-engagement – engaging of another person in place of such employee – does not include engagement of company to carry out task performed by employee

 

ZETDC v Madungwe & Ors S-44-16 (Malaba DCJ; Gowora & Patel JJS concurring) (decision given 9 March 2015; reasons made available 6 October 2016)

 

The respondents were employed on fixed term contracts by the appellant as security guards. The contract period ranged between one and six months and were occasionally renewed. The appellant decided to do away with the system based on fixed term contracts and did not renew the respondents’ contracts when they expired. It instead engaged a private security company to provide security services. The respondents maintained, relying on s 12B(3)(b) of the Labour Act, that as their contracts had been renewed several times before, they had entertained a legitimate expectation that they would be employed on  a permanent basis when their fixed term contracts expired. The respondents further argued that while entertaining the legitimate expectation they were unfairly dismissed at the expiry of their contracts, when the appellant engaged another person.

Held: (1) The onus of proving a legitimate expectation rested with the respondents and in addition the respondents needed to prove that they were supplanted by another person. (2)  The respondents had not discharged the onus of establishing a legitimate expectation of being re-engaged when the contracts of fixed duration expired. (3) The respondents had also not established that another person had been engaged instead of themselves, as “another person” meant a natural person and could not include a company.

 

Employment – contract – termination – replacement of existing contracts with contracts on different terms – such amounting to retrenchment without following retrenchment procedures

 

Masvibo & Ors v vTN Harlequin Luxaire Ltd HB-253-16 (Makonese J) (judgment delivered 6 October 2016)

 

The applicants sought a declaratory order that the termination of their contracts of employment by the respondent was unlawful. The applicants had been employed on contracts without limits of time. The respondent, because of adverse economic conditions, wanted to terminate the applicants’ contracts and replace them with new contracts based on productivity. The applicants did not accept the offer of the new contracts, claiming that they amounted to retrenchment, without following the rules and regulations on retrenchment.

Held: (1) The respondent’s wholesale termination of the applicants’ contracts constituted an unlawful retrenchment exercise and an unlawful termination of the applicants’ contracts of employment. (2) It could not be stated on the facts that the applicants had repudiated their contracts.  (3) The grant of the declaratory order was appropriate.

 

Employment – dismissal – dismissible act of misconduct –employer’s discretion as to whether to dismiss – can only be overturned if discretion exercised unreasonably – appeal tribunal having no power to substitute its own discretion 

 

NEC, Catering Industry v Kundeya & Ors S-35-16 (Bhunu JA, Gwaunza JA and Hlatshayo JA concurring) (Judgment delivered 18 August 2016)

 

The four respondent employees were dismissed by their employer for disobeying a lawful instruction to relocate their workstations around the country. The respondents had been given reasonable notice of their employer’s requirement but sought to overturn the dismissal first in an arbitration. Subordination to the employer’s lawful orders is a fundamental ingredient of the contract of employment without which it cannot exist. In the arbitration, the dismissal was overturned. The Labour Court agreed with the arbitrator and reinstated the respondents. The decision of the Labour Court was taken on appeal.

 

Held: once an employer has established that an employee committed a dismissible act of misconduct, the discretion whether or not to dismiss lies solely with the employer. Generally speaking, it is not for the appellate court, arbitrator or tribunal to substitute its own discretion for that of the employer. The correct test on appeal was whether the disciplinary committee, on the facts before it, had acted unreasonably in ordering dismissal and not whether the mitigating factors outweighed the aggravating factors as postulated by the arbitrator and sustained by the court a quo. Both the arbitrator and the Labour Court fell into error by applying the wrong test. Both the arbitrator and the court a quo, being creatures of statute without inherent jurisdiction, fell into error and misdirected themselves by exercising a non-existent power to substitute their own discretion for that of the employer in the absence of any error or misdirection on the part of the disciplinary committee.

 

Employment – Labour Court – appeal to – stay of execution sought pending appeal against arbitral award – respondent nonetheless registering award in High Court – stay of execution granted against order registering award  

Unilever Zimbabwe (Pvt) Ltd v Murira & Ors HH-545-16 (Chitapi J) (Judgment delivered 14 September 2016)

The applicant filed a chamber application seeking a stay of execution of an order granted by a High Court judge in favour of the first and second respondents registering an arbitral award granted in favour of the respondents by an arbitrator. The involvement of the High Court arose from the fact that it was the court for execution of Labour Court orders. The applicant had noted an appeal to the Labour Court against the arbitral award and also a chamber application in the Labour Court for stay of execution. The main appeal in the Labour Court had been argued about a year earlier and judgment had been reserved, but was still outstanding. A check with the Labour Court had been unable to establish when it would be handed down.

Held: (1) Once an order of an arbitrator or the Labour Court had been registered in the High Court, it became an order of the High Court.  The ideal situation would be for the Labour Court to control its processes and execute its orders. However, once an order of an arbitrator or the Labour Court has been registered in the High Court for purposes of enforcement, it becomes an order of the High Court.

(2) The matter was not lis pendens before the Labour Court as the High Court has original jurisdiction in terms of s 171 of the Constitution over all criminal and civil matters. However, having two parallel processes running at the same time in different courts was undesirable and untidy and the Rules should be synchronised.

(3) It makes no sense that where an application for suspension of award and stay of execution pending appeal has been filed before a competent court and awaits determination by the same court which will hear the appeal, the respondent, who is opposing that application and the appeal, nonetheless and in the full knowledge of the pending application, proceeds to apply for registration of that same award. If after registration the registered order becomes an order of the High Court, what becomes of the pending application for stay of execution and suspension of award in the Labour Court? The labour legislation needs to be revisited.

(4) A prima facie case for granting the application had been established and a stay of execution was granted.

 

Evidence – admissibility – hearsay – civil proceedings – urgent application – reliance on hearsay evidence in founding affidavit – when such evidence is admissible

 

Glenwood Heavy Eqpt (Pvt) Ltd v Hwange Colliery Co Ltd & Ors HH-664-16 (Dube J) (Judgment delivered 25 October 2016)

 

The law allows the admission of first-hand hearsay evidence in motion proceedings, provided that the evidence sought to be introduced falls within the ambit of s 27(1) of the Civil Evidence Act [Chapter 8:01]. The rules that govern admissibility of evidence in trial actions are different to those applicable to applications, more so urgent applications. The rules are based on the standard that an application stands or falls on its founding affidavit. A founding affidavit constitutes evidence and must contain evidence that is admissible and sufficient to found a cause if action. The admission of hearsay evidence is subject to safeguards. A litigant seeking or rely on hearsay evidence in a founding affidavit must satisfy the court that it has a cause of action and that it has evidence to sustain such a cause of action. For hearsay evidence to be admissible in an urgent application, the following key requirements require to be met:

  • the deponent to the founding affidavit must sufficiently disclose the source of the information or statement he gives.
  • the deponent to the affidavit must state in his sworn statement that he believes those claims to be true. The grounds of his belief in the truthfulness of the evidence sought to be introduced must be disclosed in his sworn statement.
  • the evidence sought to be admitted must be about a statement made orally or in writing.
  • the evidence must be such that it would have been admissible if the person responsible for it were to be present to give the evidence.

Second hand and third hearsay evidence is inadmissible. This is purely on the basis that such evidence may not be capable of verification. The court is required to weigh the prejudice the admission of the evidence will have on the other party should the evidence be led later and determine if there is any justification, such as urgency, for the evidence being placed before it in in that form. The applicant must proffer both an acceptable explanation as to why direct evidence is not available and good reason why such evidence is being presented in that manner.

 

 

Evidence – extra-curial statement by accused – statement confirmed by magistrate – whether onus placed on accused to show such statement not freely made contravenes Constitution

 

S v Chidhakwa HH-422-16 (Chitapi J) (judgment delivered 22 June 2016)

 

See above, under CRIMINAL PROCEDURE (Statement by accused person – production of).

 

Evidence – facts agreed – court premising decision on facts not forming part of record – impermissibility of doing so

 

S v Stockil HH-562-16 (Mushore J, Hungwe J concurring) (judgment delivered 28 September 2016)

 

The appellant was convicted of culpable homicide and fined after a collision between the vehicle he was driving and a cyclist, which resulted in the death of the cyclist. The appellant and the cyclist were travelling in the same direction. The basis of the appellant’s defence was that as he approached the cyclist, the cyclist unexpectedly crossed into his path. He swerved to the left, hooted and braked to try and avoid the cyclist, but the deceased was hit by the right side of his vehicle.

Held: (1) The magistrate in convicting the appellant had based his decision on facts which were never part of the record. He excluded evidence on record when weighing up the evidence. He ignored crucial evidence and engaged in conjecture on unfounded facts, thereby rendering the conviction unsafe. (2) The appellant had been faced with a sudden emergency and took all the necessary care which could reasonably have been expected in the circumstances by swerving, hooting and braking.

 

 

Family law – burial – right to determine place of burial – customary law partially followed by deceased – no clear right of spouse – common sense must prevail

 

Mhindu v Machokoto & Anor HH-399-16 (Mafusire J) (judgment delivered 5 July 2016)

 

The widow and the father of a deceased pastor were in dispute over the place of burial of the deceased. The widow was supported by her children and several pastors in demanding that the burial take place on a farm which they had occupied only a few months previously, and the father was supported by the rest of the extended family in claiming burial in a cemetery which would be accessible to the public.

Held: (1) when it comes to deciding burial rights over a deceased person, there is no single overriding factor. Neither the right of the heir or spouse in relation to burial rights, nor the right of the deceased’s family, is exclusive. Where the surviving spouse is the heir, the family of the deceased must also participate in the decision, according to tradition and custom. Although the deceased was a Christian pastor and concluded a Christian marriage, there was sufficient evidence that he had also followed African custom in some aspects of his life. Where there is disagreement, common sense must be imposed by the court. (2) Here, burial in a public cemetery was more reasonable than burial on a farm allocated under the land reform, where there are no title deeds and no public access.

 

 

Family law – child – birth registration – child born out of wedlock – father deceased – requirement of relatives of father to confirm paternity – not unconstitutional

 

Paunganwa v Registrar of Births and Deaths & Anor HH-406-16 (Munangati-Manongwa J) (judgment delivered 7 July 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – rights of children).

 

Interdict – interim – requirements for – alternative remedy available – interdict refused

 

Landlord and tenant – tenant – sub-tenant – rights vis-à-vis landlord – eviction from leased premises – sub-tenants having no right to be treated as statutory tenants

 

Zindodyeyi & Anor v Aspinal Invstms (Pvt) Ltd & Anor HB-239-16 (Takuva J) (judgment delivered 22 September 2016)

 

The applicants sought an urgent interim interdict preventing their eviction from premises they claimed to be renting from the first respondent in terms of an oral agreement, having previously rented them as sub-tenants of the second respondent. They claimed that the rent due was being paid to the first respondent, who refused to provide them with receipts.

Held: (1) an interim interdict may only be granted if the applicant establishes (a) that the right he seeks to protect is clearly or at least prima facie established; (b) there is a well-grounded apprehension of irreparable harm if interim relief is not granted; (c) the balance of convenience favours granting interim relief; and (d) the applicant has no satisfactory remedy. (2) The applicants had failed to prove on a balance of probabilities that they had an oral lease agreement with the the first respondent. The version in their affidavits was not only improbable but thoroughly incredible. (3) The applicants had no rights as statutory tenants as they had not paid rent to the landlord. (4) The applicants had a satisfactory alternative remedy in terms of s 39 of the Magistrates Court Act.

 

 

Land – acquisition – agricultural land – what constitutes agricultural land – land unsuitable for cropping but used for keeping animals

 

Land – acquisition – challenge to – acquisition can only be challenged when acquitted outside provisions of the law

 

CMAL (Pvt) Ltd v Min of Lands & Anor HH-561-16 (Muremba J) (judgment delivered 28 September 2016)

 

The applicant was the owner of a farm close to the Harare city boundary. It was served with a notice of intention to acquire the land in terms of s 5 of the Land Acquisition Act [Chapter 20:10] and an order of acquisition was granted. The applicant challenged the acquisition on the ground that the land was not suitable for agricultural purposes as it consisted of a rocky hill and was used for dwellings and horses were kept there for riding. Since the State acquiring the land in 2001 no-one had been allocated the land or issued with an offer letter. Held: (1) Although the acquisition of land within the provisions of the Constitution cannot be challenged in a court of law, where the Minister has acted outside the provisions of the law, that can be challenged and the court can nullify such acquisition. (2) Although the Minister did not dispute the applicant’s contention in its founding affidavit that the land was not agricultural, the definition of “agricultural land” included land used for keeping animals. The applicant had admitted that it was doing horse breeding for the purpose of riding on the farm. Accordingly this met the definition of “agricultural land” and the application was dismissed.

 

Local government – by-laws – construction of – must be read in conjunction with Constitution – by-law authorizing demolition of illegal structures – constitutional prohibition of demolition of homes without court order – such prohibition overriding by-laws

 

Mungurutse &Ors v City of Harare & Anor HH-558-16 (Tagu J) (judgment delivered 28 September 2016)

 

See above, under CONSTITUTIONAL LAW (Declaration of Rights – freedom from arbitrary eviction).

 

 

Posts and telecommunications – PTC – successor company to – assumes all rights and obligations of PTC

 

Karoi Town Council v TelOne (Pvt) Ltd HH-402-16 (Chirewa J) (judgment delivered 6 July 2016)

 

See above, under COMPANY (Private company formed at dissolution of parastatal).

 

 

Practice and procedure – affidavit – supporting affidavit – supplementary affidavit

 

Kim v Sensationell (Zimbabwe) Pvt) Ltd HH-484-16 (Chigumba J) (Judgment delivered 17 August 2016)

 

See above, under COMPANY (Liquidation).

 

Practice and procedure – application – for committal for contempt of court – need for application to be served personally

 

Mangwiro v Chombo NO HH-710-16 (Tsanga J) (Judgment delivered 16 November 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – rule of law).

 

 

Practice and procedure – application – urgent – grounds for –defence of constitutional rights – not sufficient grounds for urgency

 

Dzamara & Ors v Comm-Gen of Police & Ors HH-398-16 (Tsanga J) (judgment delivered 4 July 2016)

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – freedom of assembly and freedom to demonstrate).

 

Practice and procedure – application – urgent – matter struck off as not being urgent – whether matter requires to be re-enrolled

 

Ramwide Invstms (Pvt) Ltd v Rondebuild Zimbabwe (Pvt) Ltd & Ors HH-444-16 (Matanda-Moyo J) (judgment delivered 27 July 2016)

 

See below, under PRACTICE AND PROCEDURE (Striking off roll).

 

Practice and procedure – execution – sale – attachment of property in execution – duties of sheriff – should attach no more than enough to satisfy judgment debt

 

Zimbabwe Mining Co (Pvt) Ltd v Outsource Security (Pvt) Ltd & Ors S-50-16 (Uchena JA, Malaba DCJ & Bere AJA concurring) (decision given on 29 March 2016; reasons made available 4 October 2016)

In respect of a debt totalling $36 748, the Deputy Sheriff Gwanda attached a large amount of property valued in excess of several hundred thousand dollars. She then sold three of the attached items for a total of $104 000.

Held (1) The Deputy Sheriff is required in terms of r 335 of the High Court Rules to make a proper inventory and valuation of the items attached and only to attach items deemed sufficient to satisfy the debt. (2) The Deputy Sheriff is also required in terms of r 340 of the High Court Rules to stop the sale when enough money has been raised to meet the judgment debt and costs. (3) The Deputy Sheriff utterly failed to act in terms of the specific requirements of the High Court Rules. Her conduct was patently unreasonable, irresponsible, unlawful and vindictive. (4) The attachment was a nullity and all of the sales in execution in consequence of the attachment were a nullity and set aside.

 

Practice and procedure – execution – sale – setting aside of – grounds — purchase by third party who is not bona fide – failure to advertise – need to show that such irregularities resulted in a lower price if sale is to be set aside

 

Ramwide Invstms (Pvt) Ltd v Rondebuild Zimbabwe (Pvt) Ltd & Ors HH-444-16 (Matanda-Moyo J) (judgment delivered 27 July 2016)

 

See below, under PRACICE AND PROCEDURE (Striking off roll).

 

 

Practice and procedure – execution – stay of – grounds for granting stay – matter not finally resolved – stay granted

 

MOB Capital (Pvt) Ltd v Chabata & Ors HB-242-16 (Makonese J) (judgment delivered 29 September 2016)

 

The respondents had filed a bar against the applicants after refusing to supply further and better particulars requested by the applicant and had obtained default judgment. An application for rescission of judgment had been filed but not resolved and an application to uplift the bar had also been filed and was outstanding. In spite of all the pending and unresolved matters, the respondent had proceeded with execution and attached the applicant’s property for removal.

Held: (1) The applicant had established a prima facie right to a stay of execution. Matters were still pending to be resolved and the applicant stood to suffer irreparable harm if execution was not stayed. (2) It could not be argued that the application for stay had been filed for the sole purpose of delay and frustrating the course of justice and the balance of convenience favoured the applicant.

 

 

Practice and procedure – interpleader proceedings – property attached in execution – claim to ownership of – property found in possession of person other than the claimant –what must be shown

 

Deputy Sheriff, Marondera & Anor v ZB Bank Ltd & Ors HH-417-16 (Dube J) (judgment delivered 13 July 2016)

 

A claimant introduced interpleader proceedings, claiming to own property seized by the sheriff to satisfy the judgment debt of another person. The property in question was found in the possession of the other person, creating a presumption of ownership. To prove that he was the owner of the item in question, a truck, the claimant provided an unstamped and undated list of assets in which it was included. The court denied the claim, ruling that in interpleader proceedings a person who disputes ownership must overcome the presumption of ownership in favour of the possessor by producing a legal document, such as, in this case, a registration book. The list of assets was insufficient to prove his claim to own the truck.

 

 

Practice and procedure – judgment – rescission – judgment granted “in error” – opposing affidavit not being submitted due to administrative error and matter erroneously being treated as unopposed – such affidavit not presenting arguments of substance – rescission refused

 

Pandhari Hotels v Nyabadza & Ors HH-622-16 (Chitapi J) (judgment delivered 19 October 2016)

 

The applicant had been the unsuccessful party in a labour case which was decided by arbitration. When the successful party applied for registration of the award, the applicant filed an opposing affidavit which was mistakenly omitted from the case file by the Registrar when it was presented to the judge. The matter was treated as unopposed. The award was registered and on the same day execution was granted. The applicant requested that the order for registration of the award be rescinded since it had been granted in error, in absence of the opposing affidavit.

Held: it is important to correct any error made by a court, since the aim is to serve justice. However, it was necessary to determine whether the opposing affidavit, which had not been considered, presented a valid argument, which would have altered the court’s judgment. The arguments made in favour of the applicant were without substance, seeking merely to avoid execution. While a clerical error had been made, it resulted in no error of substance, hence thd judgment did not need to be corrected

 

 

Practice and procedure – judgment – rescission – judgment granted “in error” in absence of party affected – what error will justify rescission – “patent” error – what is

 

Rainbow Tourism Group Ltd v Clovegate Elevators HH-616-16 (Chiweshe J) (Judgment delivered 19 October 2016)

 

Once an order or judgment is pronounced, the court becomes functus officio and cannot ordinarily revisit the case to correct any perceived errors. Where the terms of the judgment are clear and unambiguous and there is no patent error or omission to be found therein, there can be no basis for a court revisiting its judgment. A “patent” error or omission is an error or omission as a result of which the judgment granted does not reflect the intention of the judicial officer pronouncing it.

However, provided the court is approached within a reasonable time of its pronouncing the judgment or order, it may correct, alter or supplement the judgment or order in one or more of the following situations:

  • in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the court overlooked or inadvertently omitted to grant;
  • to clarify the judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain, so as to give effect to its true intention, provided it does not thereby alter the sense and substance of the judgment or order;
  • to correct a clerical, arithmetical or other error in its judgment or order so as to give effect to its true intention. This exception is confined to the mere correction of an error in expressing the judgment or order; it does not extend to altering its intended sense of substance;
  • where counsel has argued the merits and not the costs of a case, but the court, in granting judgment, also makes an order concerning the costs, it may thereafter correct, alter or supplement that order.

For the purposes of an application made under r 449(1)(a) of the High Court Rules, it is irrelevant whether the reasoning of the court in arriving at the judgment or order is sound or unsound.  What is important is that the order was made and that it reflects the intention of the judge giving it.

 

Practice and procedure – parties – joinder – application – how should be made – should be by court application, not chamber application

 

Practice and procedure – parties – joinder – purpose – avoidance of unnecessary duplication of litigation

 

Sibanda v Vansburg Drumgold Entprs & Ors HB-251-16 (Makonese J) (judgment delivered 6 October 2016)

 

An urgent chamber application was made for joinder in a mining dispute. The dispute involved a number of interested parties, and there were several other applications in regard to the same dispute already filed. The applicant was the landowner on whose land the mining claims in dispute were located.

Held: (1) Applications for joinder may be brought at any stage of the proceedings but should be brought by court application and not by chamber application. (2) The court, however, has a discretion in terms of r 4C of the High Court Rules to order a departure from the Rules as it saw fit. (3) The purpose of joinder is to ensure that all matters in the cause may be effectively and completely determined and adjudicated upon and to prevent an unnecessary multiplication of litigation and to facilitate the speedy resolution of disputes, by ensuring that everyone whose legal interests are likely to be affected by the outcome of the proceedings is joined as a party to the proceedings. (4) The applicant, as the landowner on whose land the disputed claims were located, clearly had an interest in the matter and joinder was ordered.

 

 

Practice and procedure – parties – joinder – failure to join – action brought against wrong party – effect

 

Reitz v Standard Chartered Bank Zimbabwe Ltd & Anor HH-565-16 (Tsanga J) (judgment delivered 28 September 2016)

 

The applicant was immigrating to America to set up a business. He filed an urgent chamber application seeking to compel the first respondent, his bank, to transfer his funds to America. The funds were held in trust by the second respondent, a firm of legal practitioners, in an account with the bank.  Approval to remit the funds was received from the Reserve Bank of Zimbabwe (RBZ). The law firm, on receipt of confirmation from the bank that the RBZ had given authority to remit the funds, contacted the bank in regard to the payment. The bank immediately wrote to the RBZ indicating that it had insufficient funds from its allocation to make the payment and requested the requisite funds from RBZ’s Allocation Committee. The RBZ responded to indicate that the application had been referred to the Financial Markets Division for consideration.

Held: (1) The applicant lacked locus standi in bringing the application against the bank and the firm. The remedy would lie against the RBZ in an application brought by the firm on the applicant’s behalf, since it was the RBZ which had the responsibility to issue funds to the bank, in order for them to put into effect instructions given to them by the firm on behalf of the applicant.

(2)The applicant’s right to freedom of movement was not being infringed by the bank or the firm.

 

 

Practice and procedure – parties – joinder – President – Presidential action being challenged – must join President

 

Meki v Acting District Administrator, Masvingo Province & Ors HH-614-16 (Matanda-Moyo J) (judgment delivered 19 October 2016)

 

See above, under CUSTOMARY LAW (Chieftainship – appointment of chief – dispute – court’s role).

 

Practice and procedure – parties – locus standi – constitutional application – trust acting on behalf of members, seeking to assert constitutional right –wide scope of s 85 of Constitution in regard to infringements of constitutional rights

 

Trustees, Makomo e Chimanimani Share Ownership Community Trust v Min of Lands & Anor HH-556-16 (Munangati-Manongwa J) (judgment delivered 22 September 2016)

 

The applicant alleged it represented people who, prior to the colonial period, enjoyed use of the land that became known as the Tilbury Estate and claimed the right to this land. This land was owned by the second respondent before being compulsorily acquired by the Government of Zimbabwe in 2005. It was now held in terms of a Bilateral Investment Protection Promotion Agreement between the Zimbabwe and the German Federal Republic. The applicant sought to assert that it had rights granted by s 72(7)(c) of the Constitution, such that that the compulsory acquisition of land for the resettlement of people in accordance with the land reform process must be conducted in such a manner as to ensure that the people of Zimbabwe are enabled to reassert their rights and regain ownership of their land. A number of points in limine were dealt with by the court to resolve the application.

Held (1) In regard to the claim of lack of locus standi and absence of authority on the part of the applicant, the applicant trust had locus standi to bring the application. The object of the trust was to further the interest of the aboriginal people of the Chimanimani area. Furthermore, s 85 of the Constitution greatly widened the group of persons who can take action when there are allegations of infringement of constitutional rights. (2) The applicant’s deponent’s statement that he had authority to depose the founding affidavit on behalf of the applicant was sufficient. (3) Failure to cite the judicial manager of the second respondent was not a fatal misjoinder. It was sufficient to cite the second respondent company and specify that it was under judicial management. (4) There was, however, a specific court order requiring all actions against the second respondent under judicial management not to be proceeded with, without the leave of the court. Accordingly the applicant’s attempt to bring proceedings against the second respondent without obtaining the leave of the court was fatal to the application.

 

 

Practice and procedure – pleadings – cause of action – need to specify cause of action – impermissible to plead one cause of action but rely on another one

 

Masendeke v Kukura Kurerwa Bus Svcs (Pvt) Ltd HH-598-16 (Chigumba J) (Judgment delivered 12 October 2016)

 

See above, under CONTRACT (Termination).

 

 

Practice and procedure – pleadings – founding affidavit – hearsay evidence in founding affidavit – when admissible

 

Glenwood Heavy Eqpt (Pvt) Ltd v Hwange Colliery Co Ltd & Ors HH-664-16 (Dube J) (Judgment delivered 25 October 2016)

 

See above, under EVIDENCE (Admissibility – hearsay).

 

Practice and procedure – pleadings – further particulars – application for – purpose of further particulars – limits as to what may be requested

 

Glendenning v Kader HH-575-16 (Mafusire J) (judgment delivered 5 October 2016)

 

The applicant (the defendant in the main action) made an application to compel delivery of further particulars in respect of the respondent’s (plaintiff in the main action) declaration in the main action. The applicant had made an extremely lengthy and very detailed request for further particulars, to which the respondent had responded in part. The applicant, without asking the respondent to supply further and better particulars, made the court application to compel the delivery of the further particulars.

Held: (1) Although it might well have been much more sensible and cost saving to have sought further and better particulars from the respondent before commencing the court application, there was no legal requirement to do so. (2) The furnishing of further particulars were, inter alia, to define the issues with more precision, to enable a party to know the case or defence he has to meet. (3) It was not the function of further particulars, inter alia, to enable a party to find out on what evidence his opponent intended to rely, or to go on fishing expedition on the other party’s pleadings. (4)  The respondent’s claim in the declaration was set out with sufficient particularity to enable the applicant to plead to it and the application was accordingly dismissed.

 

 

Practice and procedure – pleadings – need to set out clearly what basis of claim is – citation of servants in their personal capacities – need for pleadings to make clear how parties are being cited

 

Mahlangu v Dowa & Ors HH-653-16 (Chigumba J) (Judgment delivered 28 October 2016)

 

See above, under DELICT (Liability – vicarious lability).

 

 

Practice and procedure – process – service of – proof of service – sheriff’s return of service as prima facie proof – what party must show if alleging lack of service

 

Mangwiro v Chombo NO HH-710-16 (Tsanga J) (Judgment delivered 16 November 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – rule of law).

 

Practice and procedure – process – service of – summons – dies induciae –summons may be served with or without particulars of claim – 10 days added to the time for filing a plea only after appearance to defend served – rescission under r 449 limited to cases where there has been error or oversight by court

 

Delward Eng (Pvt) Ltd & Anor v Warara & Associates HH-463-16 (Tagu J) (Judgment delivered 17 August 2016)

 

Default judgment was granted after the defendant had failed to enter an appearance to defend 10 days after service of a provisional sentence summons and declaration.  The defendant applied to court for rescission of judgment in terms of r 449, contending that it was allowed 20 days to enter an appearance to defend.  It was common cause that the appearance to defend had been served after the ten days normally allowed for an appearance to defend.  In the majority of cases, where a party does not proceed in terms of r 20 (i.e. summons claiming provisional sentence), the practice is to file summons and declaration together as provided for under rule 113. It is only then that a further 10 days are added to the time for filing a plea (not for filing appearance to defend).

Held: r 119 permits a plaintiff to serve both the summons and the declaration upon the defendant at the same time. Once that has happened, the defendant is entitled to an extra ten days within which to file his plea, exception or special plea. The defendant is expected to file his or her appearance to defend within ten days from date of service of the summons. Then within the next extra ten days the defendant is expected to file his or her plea. The proviso only gives a period of 20 days to the defendant in which to file a plea, exception or special plea. The proviso does not extend the dies induciae within which to enter appearance to defend.

 

Practice and procedure – provisional sentence – application for – when should be referred to opposed roll for hearing – notice of opposition filed – not in itself reason to refer to opposed roll – what court should consider

 

Zimbabwe Leaf Tobacco Co (Pvt) Ltd v Cooke HH-829-16 (Matanda-Moyo J) (Judgment delivered 28 December 2016)

 

The remedy of provisional sentence is for a plaintiff who is a holder of a liquid document to secure speedy relief.  To therefore postpone the remedy if all requirements are met is to deny the plaintiff such quick access to relief. Unlike summary judgement such relief is not final in nature. The defendant is still free to defend the matter, once he has acted in terms of the provisional sentence. Also if the provisional sentence proceedings are not successful, the matter continues on the normal course. The relief is therefore provisional in nature and does not take away the defendant’s right to pursue any possible defences to the claim.

The next question is whether the noting of any opposition to the claim for provisional sentence automatically result in the matter being removed from the roll of unopposed matters to the roll of opposed matters. There is no consensus on the position by this court. One school of thought has found that once a notice of opposition has been filed prior to set down, the matter should not be set down on the unopposed roll. The other believes the matter can still be heard on the unopposed roll.

Rule 25 of the High Court Rules does not make a hard and fast rule that simply because an opposition has been filed the matter should automatically be referred to the opposed roll. The rule is supposed to be interpreted in the context of an application for a provisional sentence. Order 32 is interpreted with the necessary changes that would not take away the meaning of provisional sentence. To automatically refer the matter to the opposed roll, without the court making a finding that the defendant has a defence to be canvassed, is to undermine or take away the remedy. The court on the date of set down should hear the parties, especially the defendant. If the defendant’s defence is such that the matter can be resolved either way, the court should dispose of the matter. If the defence raised by the defendant requires further filing of papers by the parties, the court can either refer the matter to the opposed roll, or to trial if the facts are not capable of resolution on papers. This can be done where the defendant produces sufficient proof on affidavit to show that the probability of success in the principal case favours the defendant.

Accordingly, the mere fact that a notice of opposition has been filed should not automatically lead to the matter being referred to the opposed roll.

 

Practice and procedure – striking off roll – urgent application – matter struck off as not being urgent – whether matter requires to be re-enrolled

 

Ramwide Invstms (Pvt) Ltd v Rondebuild Zimbabwe (Pvt) Ltd & Ors HH-444-16 (Matanda-Moyo J) (judgment delivered 27 July 2016)

 

The applicant sought to set aside a sale in execution of movable goods. Before the main matter could be heard a point in limine was raised by the respondent claiming that the matter had been struck off the roll previously and hence it was necessary for the applicant to re-apply to place it on the roll. The applicant argued that the matter had been struck off as urgent but remained on the normal roll, hence there was no need to apply to re-enroll the matter.

On the main issue, the applicant sought to set aside a sale in execution on the grounds that the purchaser of the property was an interested party, the property was not properly valued by the messenger, the auctioneer did not adequately advertise the property and hence a low price had been obtained.

Held: (1) there is no High Court rule covering this situation. There is a distinction between striking a matter off because it is defective and the present situation. Since the matter had been struck off the urgent roll, but had not been deemed defective, it was simply transferred to the normal roll, and as there was no prejudice to anyone, the hearing could proceed.

(2) On the facts the purchaser was not a bona fide third party, hence was not protected by vindication. The property had not been adequately advertised. However, valuation does not necessarily have to be done formally in writing, and the respondent had not brought any evidence to show that the interested nature of the purchaser and the failure to advertise had affected the sale price. Hence the sale could not be set aside.

 

 

Practice and procedure – taxation – fee – whether refundable – State Liabilities Act [Chapter 8:14] – application of s 6

 

Puwayi Chiutsi Legal Practitioners v Registrar of the High Court & Anor HH-485-16 (Chigumba J) (Judgment delivered 17 August 2016)

 

A bill of costs had been taxed by the taxing master (the second respondent). The second respondent has raised a fee in respect of his taxation of that bill. Subsequently the taxation was set aside. The parties resolved the matter and the bill was withdrawn. The respondents refused to refund the taxing fee, but did not oppose this application and asked the court for guidance regarding the legal position.

One issue was whether a taxing fee, deducted at the instance of the registrar or taxing officer refundable in any circumstances and, in particular, where the bill of costs had been set aside on review and the parties to the dispute reached amicable settlement. The High Court Regulations were promulgated by the Minister in terms of s 57 of the High Court Act and provided for all fees in respect of instruments, services or other matters received, issued, provided for or otherwise dealt with by the Registrar or the Sheriff or an officer of the High Court in the course of his duties.

Held: (1) nothing in the rules provides for a refund of the fee. A taxing fee is payable in recognition of the work done by the Registrar in scrutinizing the bill, applying the prescribed fee and allowing or disallowing items, calculating the amount due as well as other issues incidental to setting the date for taxation and notifying the parties. Once the service has been rendered it is not refundable. Had the court intended it to be so, such would have been attached to the order considering review.

(2) s 6 of the State Liabilities Act applies to such circumstances since the officer’s powers of taxation, emanating from the Minister and said officers, had executed their official duties. Consequently 60 days’ notice ought to have been given of the intended action.

 

 

Prescription – interruption of – acknowledgment of debt – tacit acknowledgment made when seeking indulgence – prescription thereby interrupted

 

Barrel Eng & Founders (Pvt) Ltd v Bitumen Construction Svcs (Pvt) Ltd HH-715-16 (Mangota J) (Judgment delivered 17 November 2016)

 

See above, under CONTRACT (Performance).

 

 

Property and real rights – movable property – ownership – proof of – unstamped list of assets not sufficient – requires legal document

 

Deputy Sheriff, Marondera & Anor v ZB Bank Ltd & Ors HH-417-16 (Dube J) (judgment delivered 13 July 2016)

 

See above, under PRACTICE AND PROCEDURE (Interpleader proceedings).

                   

 

Review – criminal matter

 

See above, under CRIMINAL PROCEDURE (Review).

 

 

Road traffic – motoring offences – culpable homicide in the course of driving – sentence – endorsement of offender’s driving licence

 

S v Maposhere HH-451-16 (Tagu J) (judgment delivered 25 July 2016)

 

See above, under CRIMINAL PROCEDURE (SENTENCE) (Offences under Criminal Law Code – culpable homicide – motoring case)

 

 

Statutes – Public Order and Security Act [Chapter 11:17] – power given to police to prohibit processions and gatherings – need for interested parties to be given notice of intention to prohibit processions – parties’ constitutional rights violated when no notice given – no power under section given to any person to make regulations – statutory instrument issued by police invalid

 

DARE & Ors v Saunyama NO & Ors (1) HH-554-16 (Chigumba J) (judgment delivered 23 September 2016)

 

The applicants intended to hold public gatherings and processions against police brutality. They had given notice to the police of the date of the proposed demonstration. A week before the planned date, the first respondent (the Officer Commanding Harare Police District) issued a statutory instrument, seeking to proscribe any public processions for a two week period. The notice was purportedly issued in terms of s 27 of the Public Order and Security Act (POSA). The applicants sought interim orders suspending the operation of the statutory instrument and interdicting the police from interfering with the processions. As final relief, they sought orders or declarations that’s that the statutory instrument was ultra vires the POSA, and that the statutory instrument, as well as s 27 of the POSA, breached the applicants’ fundamental rights protected by ss 59, 61, 66, 67, 68 and 92 of the Constitution. The application was sought on an urgent basis.

Held: (1) The application for a declaration that s 27 of POSA was unconstitutional was not urgent. The section had been on the statute book for over three years and the applicants would suffer no irreparable damage if the matter was not dealt with immediately.

(2)  It was, however, appropriate to urgently consider the constitutional validity of the statutory instrument. The applicants’ need to act arose when the instrument was published. The applicants did so and the issue was not one within the exclusive jurisdiction of the Constitutional Court.

(3) The applicants had also established the basic requirements for the granting of an interim interdict.

(4) Section 27 of POSA did not give power to the first respondent or the Commissioner of Police or the Minister of Home Affairs to make regulations. The first respondent had abrogated to himself a power which he did not have. This was illegal and unconstitutional and the Attorney General was guilty of drafting the statutory instrument.

(5) The statutory instrument was therefore null and void for being ultra vires.

(6) The constitutionality of s 27 of POSA was not before the court but the respondents had at any rate failed to follow the requirements of s 27 of POSA. They had failed to give the interested parties an opportunity to be heard, failed to provide written reasons before issuing the notice, failed to issue the notice in the manner prescribed and issued the notice as statutory instrument when they had no power to do so.

(7) The applicants’ right to lawful, prompt, efficient, reasonable, proportional, impartial administrative conduct was violated when the statutory instrument was purportedly issued.

(8)  In terms of s 175 of the Constitution the court had the power to suspend conditionally or unconditionally a declaration of invalidity for any period to allow the competent authority to correct the defect.

(9)  It was just and equitable to suspend the declaration of constitutional invalidity for 7 working days to allow the competent authority to comply with the requirements of the Constitution and the POSA.

 

 

CASES DECIDED JANUARY – JUNE 2016

Download: Case Summaries January – June 2016 Download

Latest update: 16 December 2016 (2nd edition)

Cases added since the last update are indicated by a vertical line in the left margin.

 

Agent – liability of – contract entered into by agent on behalf of principal – agent not a party to such contract – order for specific performance under contract – can only be brought against party to contract

 

Musemwa & Ors v Gwinyai Family Trust & Ors HH-136-16 (Dube J) (Judgment delivered 14 January 2016)

 

The plaintiffs, who were the purchasers of various stands in a suburb of Harare, entered into agreements of sale with the first and second defendants. The third and fourth defendants were estate agents who had handled the sales. It was necessary that the original stands be subdivided in order for title to pass. The plaintiffs brought actions, which were consolidated, against the defendants, seeking an order requiring the defendants to subdivide the relevant properties and transfer title, alternatively, to reimburse the purchase price for each stand to the relevant plaintiff.

The defendants excepted to the summons. The third and fourth defendants averred that the plaintiffs failed to allege that the third and fourth defendants were parties to the contract on which the plaintiffs’ sue. The allegations made by the plaintiffs established that the third and fourth defendants were at best agents. The plaintiffs’ claim for restitution could only be made pursuant to a claim for rescission of the agreement, which claim had not been brought by the plaintiffs. Any claim for specific performance and restitution could only lie against parties to the contract and not against an estate agent.

The defendants also said the three of the plaintiffs were trusts, which had no locus standi. Only the trustees of those trusts could sue in the name of the trusts.

Held: (1) The concept of a trust originated in English law over 900 years ago and continues to evolve. A trust is a legal relationship of parties which usually involve the founder, trustees and beneficiaries. The relationship is created by the founder who places assets under the control and administration of the trustee for the benefit of named persons, the beneficiaries. It is created by a trust deed. A trust has no legal personality and the common law does not recognise a trust as having locus standi to sue in its own name. If a trust is to be clothed with juristic personality, it would be a persona made up of assets and liabilities. In fact, the assets and liabilities in a trust vest with the trustee. When it sues or is being sued, a trust should be represented by its trustees in whom the trust’s assets and liabilities vest. However, in Order 2A of the High Court Rules (introduced in 1997), an associate (which includes a trustee) may sue and be sued in the name of their association. Under r 8, a trust is clothed with the power to sue and be sued in its own name. The rules have modified trust law to permit and create locus standi for a trust.

(2) An agent is a person authorised to act on behalf of another, being his principal. Where one person tasks another to sell his property on his behalf, an agency is created. The third and fourth defendants were agents of the first and second defendants and facilitated the sales of the stands to the plaintiffs. They were not party to the contracts of sale and remained purely agents of the first defendant. An agent can only be accountable in his personal capacity where he has purported to represent a non-existent principal, where he has pledged responsibility for his actions, where he has no authority to act and or where he has not disclosed his principal or the principal is unidentified. Here, the third and fourth defendants were acting on behalf of their principals, the first and second defendants. There was no privity of contract between them and the plaintiffs. The plaintiffs were suing in contract. The remedy of specific performance is one claimable in contract only and for breach of contract. A claim for specific performance can only be brought against a defendant who was a party to the contract and who can legally perform the acts complained against. There was no basis for such an order against the third and fourth defendants. They did not have title to the properties and this could not transfer it. The claims against the third and fourth defendants must fail.

 

 

Appeal – criminal matter – appeal against discharge at close of State case – appeal by Prosecutor-General against – application for leave to appeal – correct procedure to follow – time within which Prosecutor-General must make application – must be time that is reasonable in the circumstances

 

P-G v Mtetwa & Anor HH-82-16 (Mawadze J) (Judgment delivered 27 January 2016)

 

See below, under CRIMINAL PROCEDURE (Discharge at close of State case).

 

 

Arbitration – arbitration agreement – requirement to be in writing – when such an agreement may be said to be in writing – not essential that signed and binding contract should be in existence

 

Tel-One (Pvt) Ltd v Capital Ins Brokers (Pvt) Ltd HH-26-16 (Charewa J) (Judgment delivered 13 January 2016)

 

In terms of art 7(2) of the Model Law (contained in the First Schedule to the Arbitration Act), an arbitration agreement must be in writing. Even in the absence of a signed and binding contract, an arbitration agreement is regarded as being in writing if it is contained in (a) a document signed by the parties; or (b) an exchange of letters, telex, telegrams or other means of communication which provide a record of the agreement; or (c) in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by another.

 

 

Arbitration – arbitration clause – what is – need for such clause to be clear and unequivocal and to require that arbitration must precede litigation – clause cast in permissive terms not ousting inherent jurisdiction of court

 

Air Duct Fabricators (Pvt) Ltd v A M Machado & Sons (Pvt) Ltd HH-54-16 (Chigumba J) (Judgment delivered 22 January 2016)

 

The arbitration clause in a construction contract provided that “If either the contractor or the subcontractor is unwilling to accept mediation or is dissatisfied with or unwilling to accept the opinion expressed by the mediator, then and in such case either the contractor or the sub-contractor may within 28 days after receiving notice of such proposal or decision require that the matter shall be referred to arbitration …”. The applicant, who was defendant in the main case, filed a special plea that the action be stayed pending the final determination of the dispute by arbitration.

Held: language of a predominantly imperative nature is generally taken to be indicative of peremptoriness, and that the verb “shall” is one such word. A court called upon to determine whether a particular provision is peremptory or directory must construe the language of the concerned provision in the context, scope, and object of the act which it forms part. “Peremptory” requires exact compliance whilst “directory” requires substantial compliance, though the distinction between the two has now become blurred. What degree of compliance is necessary and what the consequences are of non- or defective compliance. These must ultimately depend upon the proper construction of the statutory provision, or, in other words, upon the intention of the lawgiver as ascertained from the language, scope and purpose of the enactment as a whole. When the legislature uses the word “may” in a statute by which it confers power on a public official to do a thing, the intention is to confer the power only without a duty to exercise it. The statute must be construed as conferring on the repository of the power a discretion to decide whether or not to do the thing, unless there is something in the subject-matter to which the statute relates which shows that the word “may” is used in an imperative sense to impose a duty on the public official to exercise the power. The meaning attributed to the words “may” and “shall” applies to those words in any context. “May” implies permissiveness, as in a discretion or a choice, while “shall” is an imperative, a duty or obligation to take the prescribed course of action.

Here, mediation or arbitration was not mandatory. The wording is not couched in peremptory as opposed to permissive terms. Referring the matter to arbitration was a choice, not an imperative, as evidenced by the use of the word “may” in relation to the issue of arbitration. The inherent jurisdiction of the court was thus not ousted. It is only when an arbitration clause is clear and unequivocal – that arbitration must proceed at first instance in resolving the dispute – that such a clause can have the effect of staying proceedings.

 

 

Arbitration – arbitrator – recusal – application – formal application must be made and valid reasons for seeking recusal must be given

Arbitration – award – appeal against – to Labour Court – does not suspend award – award remains extant – award finding wrongful dismissal but not quantifying damages – award allowing parties to approach arbitrator to determine damages – successful party entitled to do so in spite of noting of appeal

 

Tendai v Econet Wireless (Pvt) Ltd HH-97-16 (Mtshiya J) (Judgment delivered 3 February 2016)

 

The applicant sought the registration of an arbitral award made in her favour. The arbitrator had found that she had been constructively dismissed and that the respondent was to pay damages. He ruled that if the parties did not agree on the quantum, they could approach him for quantification. The parties did not discuss the issue of quantum, and the respondent filed an appeal in the Labour Court, as well as an application to that court that the arbitrator should be ordered to suspend any further proceedings. The applicant then filed an application with the arbitrator for quantification. The respondent, in correspondence, objected to this move, saying that the application would prejudice the proceedings in the Labour Court. The arbitrator replied that there was nothing in the law or by way of a court order to prohibit the quantification process. The quantification was heard and attended by both parties. The respondent argued that the arbitrator had no jurisdiction in view of the pending proceedings in the Labour Court. The matter was postponed for further hearing. Before the hearing resumed, the respondent requested the arbitrator to suspend the proceedings, saying that it would be prejudiced. It also asked the arbitrator to recuse himself. It relied on the proviso to s 7(1)(c) to the Labour (Arbitrators) Regulations 2012 SI 173 of 2012) and argued that where a party requests the recusal of an arbitrator, the arbitrator has no choice but to recuse himself. The applicant disagreed with the respondent’s views and said that there was no basis for demanding the recusal of the arbitrator. The respondent said it would not take part in any further proceedings before that arbitrator. The quantification hearing was resumed and an award made, which the applicant now sought to register. The respondent opposed the registration, arguing that the arbitrator had no jurisdiction to make the award.

Held: (1) the appeal to the Labour Court did not suspend the original award and the award remained extant. The applicant was entitled to apply for quantification in terms of the award and there was nothing to stop her from registering the award.

(2) Under s 98(9) of the Labour Act [Chapter 28:01] the arbitrator is clothed with the same powers as are enjoyed by the Labour Court when determining any labour dispute. An arbitrator in a labour matter operates under certain guidelines and should be able to give directions where necessary. Here, the arbitrator directed that, instead of a mere request through a letter, a formal application for his recusal should have been made. That directive was ignored. That directive having been ignored, the arbitrator was correct in ignoring the letter of request. There must always be valid reasons for a party to request for the recusal of an arbitrator and indeed the section of the regulations relied upon spells out the grounds upon which such a request must stand. If those grounds are met, then the arbitrator must recuse himself. The grounds for recusal are issues for argument by both parties before the arbitrator, hence the need for a formal application.

 

 

Arbitration – award – registration of – award sounding in foreign currency – award providing that debtor must seek approval for payment of such debt in foreign currency – not open to debtor to pay in local currency – award registrable with High Court

African Banking Corp Ltd v Enviro-Solutions (Pvt) Ltd S-75-15 (Malaba DCJ, Hlatswayo & Guvava JJA concurring) (Decision given 7 November 2013; judgment published 26 January 2016)

 

The appellant was a bank incorporated in Botswana, with subsidiaries in other countries, including Zimbabwe. The respondent was also incorporated in Botswana, but having business operations in Zimbabwe. In 2002 the appellant and the respondent entered into an agreement, in terms of which the respondent provided the appellant with software necessary to secure its computerised banking and financial systems against viruses. The respondent was to provide the support and maintenance services to ensure the smooth functioning of the software. The appellant undertook to pay the software licence and maintenance fees calculated in terms of the agreement.

A dispute arose over the performance of the contract. The appellant had ceased paying, alleging various irregularities. The respondent claimed for outstanding fees of some US$188 000. The matter was referred to arbitration, and the arbitrator found for the respondent, finding that the appellant had unlawfully terminated the agreement between the parties. The respondent sought to register the award with the High Court, for enforcement in Botswana, on the basis of the arrangement for reciprocal enforcement of judgments existing between the two countries. The arbitrator ordered the appellant to pay the sum claimed or, in the absence of lawful authority for such payment, the equivalent in Zimbabwe dollars at the date of payment.

The court a quo decided that the arbitral award was registrable on the grounds that the appellant was a foreign company incorporated in Botswana; the award ordered the payment of the debt which sounded in United States dollars in foreign currency and the indication by the respondent’s legal practitioner that they were receiving the payment tendered in local currency at the time “without prejudice to their clients’ rights” meant that the respondent had not accepted payment in local currency. The arbitrator had acted on the principle that a creditor must receive his award in the appropriate currency, with a rate of interest appropriate to the currency in the circumstances. The arbitrator held that the money of account and the money of payment was the US dollar.

The issues on appeal were whether the appellant was incorporated in Botswana and not in Zimbabwe; what the currency of payment was and whether the appellant had discharged its obligations; which party had to seek exchange control approval; and what the effect was of the respondent’s legal practitioners endorsing the receipt with the phrase “without prejudice to our client’s rights”.

Held: (1) the appellant was registered in Botswana. The production of a certificate of incorporation in Zimbabwe of a subsidiary company was an attempt to mislead the court.

(2) The money of account is the currency in which the obligation is measured. It tells the debtor how much he has to pay. The money of payment is the currency in which the obligation has to be discharged. It tells the debtor by what means he has to pay. Here, the appellant had the obligation to pay the money owed to the respondent in designated foreign currency. It was under an obligation to seek the necessary authority from the Reserve Bank to pay the money in foreign currency. It could not pay the money in local currency without producing proof that it had sought and failed to obtain the necessary authority to pay the money in foreign currency. In attempting to pay the money in local currency without having applied for authority to make payment in the currency of payment stipulated in the arbitral award, the appellant did not discharge its obligation under the award. It was not open to the appellant to choose the currency in which it discharged the debt owed to the respondent.

(3) Payment was now to be done as per the arbitral award and not the contract because there was no longer any contract to talk of, the appellant having terminated the contract. There was nothing illegal about the arbitral award. It did not order the appellant to ignore the exchange control regulations and pay the foreign currency to the respondent without the requisite authority from the Reserve Bank. The argument that registration of the arbitral award would be contrary to public policy because it authorised payment of foreign currency without the necessary authority was ill conceived. A holder of an arbitral award has a right to apply to the High Court to have it registered as a judgment of that court for purposes of enforcement. Registration of such an award cannot be contrary to public policy when it is authorised by law.

(4) The duty to seek authorization lay on the appellant. The obligation was not on the respondent to show that it had the authority to recover the money from the appellant in foreign currency.

(5) The appellant knew that the arbitral award forbade the tender of payment of the money of account with the equivalent amount in local currency unless clear proof was produced of authority from the Reserve Bank to pay in the currency of account having been sought and refused. The respondent’s legal practitioners could not waive on its behalf rights under the arbitral award, which why they endorsed on the receipt of the money tendered by the appellant that they had received the money “without prejudice to the rights” of their client.

 

 

Arbitration – award – setting aside of – grounds – breach of natural justice – arbitrator nominated by one party – lease agreement entitling lessor to nominate arbitrator – lessee bound by agreement – bias – proof of – adverse award – not in itself proof of bias

 

Oasis Medical Centre (Pvt) Ltd v Beck & Anor HH-84-16 (Matanda-Moyo J) (Judgment delivered 27 January 2016)

 

The first respondent was the owner of a property which she leased to the applicant. Following the applicant’s failure to pay rent and various other charges, the first respondent initially applied in the magistrates court for an ejectment order. She withdrew that application and referred the matter to arbitration. The arbitrator (the second respondent) found in her favour and she applied for the registration of the award. The applicant brought a counter-application for the setting aside of the award on the grounds that the arbitrator was biased in favour of the first respondent; that the appointment of the arbitrator by the first respondent in terms of the lease agreement was contra bonos mores and offended the principles of natural justice. The lease agreement, which the applicant had signed, provided that in the event of a dispute arising out of the lease, the dispute should be referred to a member of the Real Estate Institute of Zimbabwe who would be nominated by the lessor and “who shall consult both parties and whose decision as to the matter in dispute and the allocation of costs shall be final and binding on both parties”. The applicant claimed that this offended against the principle of nemo iudex in propria causa.

Held: the lease agreement indeed gave the first respondent the power to appoint an arbitrator without recourse to the applicant. However, the applicant voluntarily signed the agreement which took away his powers. That signature brought into operation the caveat subscriptor rule: a party to a contract is bound by his signature whether or not he has read and understood the contract. As for bias, no bias can be found if the facts are against the person alleging bias. The applicant was indeed in breach of the lease agreement. There was ample evidence that the debt alleged was owing. An adverse award in itself can never be proof of bias. There must be some evidence of improper conduct.

 

 

Bank – curatorship – bank placed under curatorship – shareholders of bank – powers suspended and exercised by curator – sole shareholder of bank a holding company – holding company not prevented from transacting other business – curator having no power to intervene with such other transactions

 

Timba & Anor v Chetsanga & Ors HH-87-16 (Tagu J) (Judgment delivered 3 February 2016)

 

The issue in this stated case was: what is the legal effect of s 54 of the Banking Act [Chapter 24:20] in respect of any shareholder that may be the shareholder of a banking institution that has been placed under curatorship by the Reserve Bank of Zimbabwe?

The first plaintiff was a shareholder in a holding company which held a 100% shareholding in a bank. The bank was placed under curatorship by the Reserve Bank, and a curator was appointed. The company itself was not placed under curatorship. The three defendants were directors in the company. Well after the bank had been placed under curatorship, the board members of the company held an extraordinary general meeting at which the three defendants were dismissed from the board.

The day before the meeting, the curator had purported to cancel the meeting because he had not sanctioned it. The meeting was held in spite of the curator’s action.

The plaintiffs sought a declaratur that the defendants were validly dismissed and that any business purportedly undertaken by them since the general meeting was void, as well as an interdict preventing them from holding themselves out as directors. He defendants claimed that the meeting was invalid for want of compliance with s 54 of the Banking Act.

Held: In terms of s 53 of the Act it is the Reserve Bank that issues a direction that a particular bank be placed under curatorship. Once a curator has been appointed, he exercises all or some of the powers given to him in terms of s 55 of the Act in as far as they affect the operations of the bank that has been placed under curatorship. The effect of s 54 is that the powers of every director, officer and shareholder (who could be an individual or a corporate entity) of a bank placed under curatorship are suspended unless they are told what to do by the curator. The affairs which the curator was to oversee were the affairs of the bank, not of the second plaintiff, which was never placed under curatorship.

The next question was whether the curator was mandated to oversee and control the separate affairs of the shareholders that have nothing to do with the bank under curatorship. The powers of the curator under s 55 are in respect of the banking institution concerned. In this case, it was the bank, not the holding company, which was placed under curatorship. Section 54 suspended the powers of the shareholders of the banking institution. As long as the transactions of the holding company had nothing to do with the bank, the curator could not intervene. The meeting was valid and the defendants were validly dismissed.

 

 

Company – judicial management – application for provisional order for judicial management – nature of application – made ex parte – no other parties need be notified – only person required to be served with application is the Master – parties opposed to provisional order – not entitled to oppose order before its grant but may seek variation or discharge immediately after its grant

 

Ex p Zimasco (Pvt) Ltd HH-53-16 (Chitapi J) (Judgment delivered 13 January 2016)

 

The applicant was applying for a provisional order to be placed under judicial management. The matter was on the unopposed roll, but when it was called, counsel for four banks announced that her clients intended to intervene in the matter. The question arose whether they had any locus standi to oppose the application at this stage, as opposed to applying, after the grant of a provisional order, for a variation or discharge of the order, in terms of s 302(1) of the Companies Act [Chapter 24:03]. It was argued that there was nothing in the Act or the Companies (Winding Up) Rules 1972 to preclude such intervention.

Held: (1) there are no specific rules which govern the procedure to be followed with regards court applications for a provisional order of judicial management. The Winding Up Rules only deal with petitions for the winding up of a company and to judicial management where the court grants a provisional order of judicial management instead. They do not deal with applications brought to court for the grant of a provisional order of judicial management as opposed to a winding up order.

(2) In terms of s 299 of the Act, the filing of a court application for the grant of a provisional judicial management order is preceded by service of the intended application upon the Master. It is a peremptory requirement that the Master be served with the application, together with any supporting affidavits and documents which the applicant seeks to rely upon to move the court to grant the order. The section does not require the applicant to serve or give notice of the application prior to making it upon any other party except the Master. The Master, after service of the application upon him, is expected if not required to go through the application and report to the court on any circumstances which appear to him to justify the court in postponing or dismissing the application. If he makes such a report, the Master is required to then deliver the report to the applicant. He does not have to prepare a report where he does not identify any circumstance which would justify the court to postpone or dismiss the application.

(3) The application is made ex parte. No respondents are cited. The Master is not a respondent but the law requires that he be served because he oversees the process of judicial management by the judicial manager.

(4) Interested or affected persons are given notice ex post facto the grant of the provisional order. The logic behind the giving of notice after the grant of a provisional is that the person applying for the provisional order is given the opportunity to make out a case to the satisfaction of the court that cumulatively, the matters referred to in s 300 of the Companies Act, have been proven on a balance of probabilities. The provisional order calls upon all, not only a selected group of interested parties, to oppose the confirmation of the provisional order which will have been issued without hearing them. This allows for an orderly procedure and process. To hear any interested party who may by chance have come to know about the making of the application, and to take into account what such interested person may have to say, would amount to an undue preference to the exclusion of other interested parties who would not have become aware of the application. A holistic and orderly process can therefore only be achieved by not allowing opposition to be filed piecemeal.

(5) Section 301(2) ensures that there is no undue prejudice which an interested party may suffer if it had to wait for the return date. The section allows for creditors, shareholders, the provisional judicial manager, the Master or any person who is entitled to apply for a provisional judicial management order to anticipate the return date seeking a variation or discharge of the order. Where such an application has been made, the court or a judge may at any time and in any manner, as the justice of the matter may appear to the court or judge to be best served, vary or discharge the provisional order. In the present matter, the respondents could have sought a variation or discharge of the provisional order (assuming it was granted) immediately after it had been granted. Their rights would still be protected because no final order is made before they are heard.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – action to enforce rights – who make bring – action said to be in public interest – what must be shown by person bringing action on such grounds – factors to consider

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – marriage rights (s 78) and rights of child (s 81) – right to found a family – includes right to marry – no right to marry granted to a child – provision of Marriage Act allowing girl under 18 to marry – such provision invalid

 

Mudzuru & Anor v Min of Justice & Ors CC-12-15 (Malaba DCJ, Chidyausiku CJ, Ziyambi JCC, Gwaunza JCC, Garwe JCC, Gowora JCC, Hlatshwayo JCC, Patel JCC & Guvava JCC concurring) (judgment delivered 20 January 2016)

 

The applicants, young women of 18 and 19 years of age, applied to the Constitutional Court for a declaratory order that the effect of s 78(1), as read with s 81(1), of the Constitution of Zimbabwe 2013 is to set 18 as the minimum age for marriage; that no person under that age may enter a marriage union; and that the Customary Marriages Act [Chapter 5:07] is unconstitutional, in that it does not provide for a minimum age limit of 18 years.

Section 78, headed “Marriage Rights”, provides that every person who has attained the age of 18 years has the right to found a family. Section 81 defines a child as a boy or girl under the age of 18 years, and provides, inter alia, for equal treatment for every child before the law as well as the right to be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse. The protection of the fundamental rights of the child is guaranteed under s 44 of the Constitution, which imposes an obligation on the State and every person, including juristic persons, and every institution and agency of the government at every level to respect, protect, promote and fulfil the rights and freedoms set out in Chapter 4.

The applicants argued that s 78(1) cannot be subjected to a strict, narrow and literal interpretation to determine its meaning, if regard is had to the contents of similar provisions on marriage and family rights found in international human rights instruments from which s 78(1) derives inspiration. They claimed that the issues were being raised “in the public interest”, in terms of s 85(1)(d) of the Constitution.

At the time the Constitution came into force, s 22(1) of the Marriage Act [Chapterv5:11] provided that a girl who had attained the age of 16 was capable, with her guardians’ consent, of contracting a valid marriage. A boy under the age of 18 years and a girl under the age of 16 years had no capacity to contract a valid marriage except with the written permission of the Minister of Justice. A “child” was defined under s 2 of the Child Abduction Act [Chapter 5:05] and s 2 of the Children’s Protection and Adoption Act [Chapter 5:06] to be a person under the age of sixteen years. The applicants contended that, in view of the definition of “child” in s 81(1) of the Constitution, no child has the capacity to enter into a valid marriage in Zimbabwe. They contended that any law which authorises a girl under the age of 18 years to marry infringes the fundamental right of the girl child to equal treatment before the law enshrined in s 81(1)(a) of the Constitution. They argued that s 22(1) of the Marriage Act exposes the girl child to the horrific consequences of early marriage which are the very injuries against which the fundamental rights are intended to protect every child.

The respondents opposed the application. Their first point in limine was that the applicants had no locus standi as they did not allege that any of their own interests was adversely affected by the alleged infringement of the fundamental rights of the girl child. The applicants were no longer children protected from the consequences of early marriage by the fundamental rights of the child enshrined in s 81(1) of the Constitution. Further, they had not produced any facts to support their claim to be acting in the public interest.

On the merits, they argued that s 78(1) simply gives a person over the age of 18 the right to found a family. This did not imply the right to marry. The words of d 78(1) were clear and unambiguous and only amendable to a literal interpretation. They argued that any law which authorises a girl child who has attained the age of sixteen years to marry did not contravene s 78(1). A rationale for the difference in the treatment of a girl child and a boy child under s 22(1) of the Marriage Act was that a girl matures physiologically and psychologically earlier than a boy. The difference in the rates of maturity in the growth and development of girls and boys was justification for the legislation.

There were thus four issues: (1) whether the applicants had locus standi; (2) whether s 78(1) does set 18 as the minimum age of marriage; (3) if so, did the coming into force of the Constitution render invalid s 22(1) of the Marriage Act or any other law authorising a girl under 16 to marry; and (4) if it did, what relief should be granted.

Held: (1) In claiming locus standi under s 85(1) of the Constitution, a person should act in one capacity in approaching a court and not act in two or more capacities in one proceeding. Where a person claims to be acting in his or her own interests, he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim, or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person. In other words, the person must have a direct relationship with the cause of action. A person could also claim under this head if he or she could be liable to conviction for an offence charged under the law even though the unconstitutional effects were not directed against him or her per se. It would be sufficient for a person to show that he or she was directly affected by the unconstitutional legislation. If this was shown it mattered not whether he or she was a victim. Here, as the applicants were not victims of the infringements of the fundamental rights enshrined in s 81(1) as they were not children, they could not benefit personally from a declaration of unconstitutionality of any legislation authorising child marriage.

(2) To argue that the applicants were not entitled to approach the court to vindicate public interest in the well-being of children protected by the fundamental rights of the child overlooked the fact that children are a vulnerable group in society whose interests constitute a category of public interest. Section 85(1)(d) is based on the presumption that the effect of the infringement of a fundamental right impacts upon the community at large or a segment of the community such that there would be no identifiable persons or determinate class of persons who would have suffered legal injury. The primary purpose of proceedings commenced in terms of s 85(1)(d) is to protect the public interest adversely affected by the infringement of a fundamental right. The effective protection of the public interest must be shown to be the legitimate aim or objective sought to be accomplished by the litigation and the relief sought. Under s 44 of the Constitution, the State is expected to know what is happening to the fundamental rights and freedoms enshrined in Chapter 4. It is under an obligation to account, in the public interest, for any infringement of a fundamental right, even by a private person.

(3) Section 85(1) is a product of the liberalisation of the narrow traditional conception of locus standi. The object of s 85(1) is to ensure that cases of infringement of fundamental rights which adversely affect different interests covered by each rule of standing are brought to the attention of a court for redress. The object is to overcome the formal defects in the legal system so as to guarantee real and substantial justice to the masses, particularly the poor, marginalised and deprived sections of society. The liberalisation of the narrow traditional conception of standing and the provision of the fundamental right of access to justice compel a court exercising jurisdiction under s 85(1) to adopt a broad and generous approach to standing. The approach must eschew over reliance on procedural technicalities, to afford full protection to the fundamental human rights and freedoms enshrined in Chapter 4, and to ensure that the exercise of the right of access to judicial remedies is not hindered, provided the substantive requirements of the rule under which standing is claimed are satisfied.

(4) As to what is public interest rather than private, personal or parochial interest, the limits and substance are difficult to define precisely. As most violations of fundamental human rights and freedoms are fact and context specific, it is appropriate to keep concepts such as “public interest” broad and flexible, to develop in line with changing times and social conditions reflective of community attitudes. There are many categories or facets of public interest. The task is to ascertain, amongst others, the public interest to be served. The term embraces, among other things, matters of standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well-being of its members. The paramount test should be whether the alleged infringement of a fundamental right or freedom has the effect of prejudicially affecting or potentially affecting the community at large or a significant section or segment of the community. The test covers cases of marginalised or underprivileged persons in society who because of sufficient reasons such as poverty, disability, socially and economically disadvantaged positions, are unable to approach a court to vindicate their rights.

Because of the elasticity and relativity of the concept of public interest, it is necessary to test the actions of the applicant against a set of factors as an objective standard. It is also necessary to prevent the notion of acting in the public interest being used as a smokescreen to garner support for something that actually is in the applicant’s own interest. Factors to consider will include: whether there is another reasonable and effective manner in which the challenge can be brought; the nature of the relief sought and the extent to which it is of general and prospective application; and the range of persons or groups who may be directly or indirectly affected by any order made by the court and the opportunity that those persons or groups have had to present evidence and argument to the court. It is not necessary for a person challenging the constitutional validity of legislation to vindicate public interest on the ground that the legislation has infringed or infringes a fundamental human right, to give particulars of a person or persons who suffered legal injury as a result of the alleged unconstitutionality of the legislation.

(5) The constitutional invalidity of existing legislation takes place immediately the constitutional provision with which it is inconsistent comes into force. Constitutional invalidity of legislation enacted after the constitutional provision has come into effect occurs immediately the legislation is enacted. Constitutional invalidity of legislation does not depend on when a fundamental human right is infringed.

(6) The applicants had no personal or financial gain to derive from the proceedings. They were not acting mala fide or out of extraneous motives. They were driven by the laudable motive of seeking to vindicate the rule of law and supremacy of the Constitution. It is a high principle of constitutional law that people should be in a position to obey laws which are consistent with constitutional provisions enshrining fundamental human rights and freedoms. They acted altruistically to protect public interest in the enforcement of the constitutional obligation on the State to protect the fundamental rights of girl children enshrined in s 81(1) as read with s 78(1) of the Constitution. Children fall into the category of weak and vulnerable persons in society. They have no capacity to approach a court on their own seeking appropriate relief for the redress of legal injury they would have suffered. The reasons for their incapacity are disability arising from minority, poverty, and socially and economically disadvantaged positions. The law recognises the interests of such vulnerable persons in society as constituting public interest. The proceedings instituted by the applicants and the relief sought were the only reasonable and effective means for enforcement of the fundamental rights of the girl children subjected to early marriages.

(7) Section 46(1)(c) of the Constitution requires a court, when interpreting any provision of the Constitution contained in Chapter 4, to take into account international law and all treaties and conventions to which Zimbabwe is a party. Both s 22(1) of the Marriage Act and s 78(1) of the Constitution were born out of provisions of international human rights law prevailing at the time of their respective enactment. In deciding whether s 22(1) of the Marriage Act, or any other law which authorises child marriage, infringes the fundamental rights of girl children, regard must be had to the contemporary norms and aspirations of the people of Zimbabwe as expressed in the Constitution. Regard must also be had to the emerging consensus of values in the international community, of which Zimbabwe is a party, on how children should be treated and their well-being protected so that they can play productive roles in society upon attaining adulthood. The constitutional provisions should be interpreted so as to resonate with the founding values and principles of a democratic society based on openness, justice, human dignity, equality and freedom set out in s 3 of the Constitution, and regional and international human rights law.

(8) Until 1990, almost all the conventions which contained provisions on marriage avoided specifying a mandatory minimum age of marriage for the States Parties. While many conventions provided that marriage must be freely consented to by the bride and groom, there was no recognition of the special vulnerabilities of children where “consent” could be easily coerced or unduly influenced by adults. The Marriage Act was enacted in that context. Once a girl child got married, either with the Minister’s permission or having reach the age of 16, she was treated as a person of full age. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) came into force in 1981, but did not, although prohibiting child marriage, define “child”. The Convention on the Rights of the Child (CRC) (1990) did define child as a person under the age of 18. By so doing, it followed that under CEDAW the marriage of a person under 18 was invalid.

(9) Studies showed how child marriage infringed the fundamental rights of the girl child guaranteed by the CRC, particularly the right to education; the right to be protected from all forms of physical or mental violence, injury or abuse, including sexual abuse; the right to be protected from all forms of sexual exploitation; the right to the enjoyment of the highest attainable standard of health; the right to educational and vocational information and guidance; the right to seek, receive and impart information and ideas; the right to rest and leisure and to participate freely in cultural life; the right not to be separated from parents against their will and the right to protection against all forms of exploitation affecting any aspect of the child’s welfare.

(10) The African Charter on the Rights and the Welfare of the Child (1990) (ACRWC) imposed on States Parties, including Zimbabwe, an obligation to take all appropriate measures to eliminate harmful social and cultural practices affecting the welfare, dignity, normal growth and development of the child and to take effective measures, including legislation, to specify the age of 18 years as the minimum age for marriage. They are obliged to abolish child marriage.

(11) The horrific consequences of child marriage have been set out in detail by, among other bodies, UNICEF. Child marriage and lack of access to continued educational opportunities also limit young women’s access to employment opportunities. Child marriage is also associated with early widowhood, divorce and abandonment which often results in “feminization of poverty”. Girls with higher levels of schooling are less likely to marry as children. Early marriage takes a terrible toll on a girl’s physical and emotional health. Because of her age, inexperience and vulnerability, she is likely to be dominated and controlled by her husband, who has the power to keep her a virtual prisoner. Rape, beatings and other forms of sexual and domestic violence are common and early and repeated pregnancies are life threatening. Young mothers also face far greater risks of complications in pregnancy because their bodies are not sufficiently developed and infant mortality is far greater among young mothers.

(12) Section 78(1) of the Constitution was enacted for the purpose of complying with the obligations Zimbabwe had undertaken under article 21(2) of the ACRWC to specify by legislation 18 years as the minimum age for marriage and abolish child marriage. A literal interpretation of s 78(1) would be absurd. It would mean that a family is not founded on marriage; that persons who have attained 18 years have a right to found a family but no right to marry; and that whilst persons under 18 years would have the right to marry, they would not have the right to found a family. A literal interpretation would not give the fundamental right guaranteed and protected under s 78(1) the full measure of protection it deserves. Only a broad, generous and purposive interpretation would give full effect to the right to found a family. For the persons who have attained the age of 18 to enjoy the right to enter into marriage freely and with full consent as intending spouses, they must first have the right to enter into marriage.

(13) Section 81(1) puts the matter of the legal effect of s 78(1) beyond any doubt. It provides that a person aged below 18 years is “a child” entitled to the list of fundamental rights guaranteed and protected thereunder. That means that the enjoyment of the right to enter into marriage and found a family guaranteed to a person who has attained the age of 18 years is legally delayed in respect of a person who has not attained the age of eighteen years. A child cannot found a family. The prohibition is absolute. When read together with s 81(1), s 78(1) has effectively reviewed local traditions and customs on marriage. The legal change is consistent with the goals of social justice at the centre of international human rights standards requiring Zimbabwe to take appropriate legislative measures, including constitutional provisions, to modify or abolish existing laws, regulations, customs and practices inconsistent with the fundamental rights of the child. There was obvious social need to break with the past where a child aged 16 could be turned into a wife. To the extent that it provides that a girl who has attained the age of 16 can marry, s 22(1) of the Marriage Act is inconsistent with the provisions of s 78(1) and therefore invalid.

(14) Section 78(1) has the effect of protecting every child equally regardless of his or her personal condition. Whether or not a girl matures earlier than a boy is of no consequence in the determination of the effect of s 78(1) of the Constitution on the validity of the legislation. Section 78(1) entitles a girl and a boy to equal protection and treatment before the law. The rationale advanced in support of the difference in the treatment of girls and boys formalised by the impugned legislation is the old stereotypical notion that females were destined solely for the home and the rearing of children of the family and that only the males were destined for the market place and the world of ideas and is contrary to the fundamental values of human dignity, gender equality, social justice and freedom which the people of Zimbabwe have committed themselves to uphold and promote through legislation governing the interests of children. Girl children are entitled to effective protection by the court which is the upper guardian of the rights of children and whose duty it is to enforce the fundamental rights designed for their protection. The history of the struggle against child marriage sadly shows that there has been, for a long time, lack of common social consciousness on the problems of girls who became victims of early marriages.

(15) There is a difference between making a man take responsibility for the pregnancy of a girl and the maintenance of the baby once it is born and compelling a girl child to get married because she got pregnant. Pregnancy can no longer be an excuse for child marriage.

(16) While declaring that s 22(1) of the Marriage Act is invalid, it would not be is just and equitable to make the ruling retrospective because of the immense disruption that a retrospective declaration of invalidity may cause on the persons who conducted themselves on the basis that the legislation was valid. The order would be granted to have effect from the date of issue.

(17) (per Hlatshwayo JCC) The age of sexual consent which currently stands at 16 years is now seriously misaligned with the new minimum age of marriage of 18 years. This means that, absent legislative intervention and other measures, the scourge of early sexual activity, child pregnancies and related devastating health complications are likely to continue and even increase. The upside is that the new age of marriage might have the positive effect of delaying sexual activity or child bearing until spouses are nearer the age of 18. The downside is that children between 16 and 18 years may be preyed upon by the sexually irresponsible without such people being called upon to take responsibility and immediately marry them. Thus, there is an urgent need, while respecting children’s sexual rights, especially as between age mates as opposed to inter-generational sexual relationships, to extend to the under-eighteens the kind of protection currently existing for under-sixteens with the necessary adjustments and exceptions.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – arrested person – right to be released – onus on State to show why bail should be refused

 

S v Munsaka HB-55-16 (Mathonsi J) (Judgment delivered 25 February 2016)

 

In terms of s 50(1)(d) of the Constitution of Zimbabwe 2013, an arrested person is entitled as of right to be released either unconditionally or on reasonable conditions pending a charge or trial. It is only where it is shown that there are compelling reasons justifying that person’s continued detention that an arrested person can be denied bail. The onus of establishing the existence of compelling reasons why the arrested person should remain in detention lies on the State. Where bail is being opposed without reference to compelling reasons for an arrested person’s continued detention, there is no basis for opposition to bail. Simply to say that the applicant for bail will abscond, will endanger the public or will interfere with witnesses, with substantiating such allegations, does not meet the threshold of compelling reasons set by the Constitution.

 

Editor’s note: s 115C(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] (inserted by Act 2 of 2016) states that the grounds for refusing bail, set out in s 117(2), “are to be considered as compelling reasons for the denial of bail by a court”. Where the offence is specified in the Part I of the Third Schedule to the Act, s 115C(2) places the onus on the accused to show that it is “in the interests of justice” for him to be granted bail. Where the offence is specified in the Part II of the Third Schedule, the accused must show that “exceptional circumstances” exist which would permit his release on bail. These provisions would appear (a) to put the law back to its previous state and (b) to impose a burden on the accused that was not contemplated by the Constitution.

 

 

Constitutional law – Declaration of Rights – claims arising out of alleged breaches of Declaration of Rights – prescription period in respect of claims against police – whether constitutional

 

Mangena v Min of Home Affairs & Anor HH-115-16 (Munganati-Manongwa J) (Judgment delivered 10 February 2016)

 

See below, under POLICE (Claims against).

 

 

Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – right to protection of the law – prosecution of former farm employees for unlawfully remaining on farm after acquisition – legislation creating an offence to do so constitutional – no constitutional issue arising

 

Yoramu & Ors v P-G CC-2-16 (Garwe JCC; Chidyausiku CJ, Malaba DCJ, Ziyambi JCC, Gwaunza JCC, Gowora JCC, Hlatshwayo JCC, Patel JCC & Mavangira AJCC concurring) (Decision given 21 January 2015; reasons published 24 February 2016)

 

See below, under LAND (Acquisition).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to water (s 77) – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

 

Hopcik Invstm (Pvt) Ltd v Min of Environment & Anor HH-137-16 (Dube J) (Judgment delivered 17 February 2016)

 

The applicant sought an order compelling the respondents to supply water to its premises in a Harare suburb. The first respondent, the Minister responsible for the administration of the Water Act [Chapter 20:34], had the responsibility to regulate the supply of water by the second respondent, the city council, whose mandate was to provide and maintain a supply of water within or outside the council. There had been no supply of water to the applicant’s area for over 3 years, although other areas received a regular supply. The applicant conceded that the council had certain difficulties in making water available to all residents of the city but argued that the council was not doing everything necessary to provide an equitable distribution of water to all the inhabitants of the city. It acted in an irresponsible manner, in that it failed to attend to water pipes breaking, which remain unrepaired for long periods of time, depriving citizens of water. The council was not taking its responsibility seriously and had not done enough to ensure adequate supply of water to residents. The council put forward various reasons why it was unable to supply water to the applicant, such as lack of funds, old equipment, a poor rainy season and a rapid expansion of the urban population.

Held: Water is the most basic of all needs. Without it there is no life. Access to water has become a human right in this country and is guaranteed in our Constitution. The responsible authorities have a duty to ensure that they provide residents access to a reliable supply of potable water. The authorities lack the will to accomplish this objective. It is time for the authorities to take reasonable and satisfactory steps to rectify the situation and ensure adequate supplies of water. The authorities cannot be allowed to merely observe and adopt a nonchalant attitude. The realisation of this right will require concerted efforts of all concerned.

The right to water was recognised by the United Nations General Assembly in 2010 as a human right. A number of international treaties, which include the Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Rights of the Child and the International Covenant on the Economic Social and Cultural Rights, recognise this right. It is an economic, and social right and is recognised as a self-standing human right. The right to water contains an entitlement to access to a minimum amount of safe drinking water to sustain life and health. The supply must be sufficient and continuous to cover personal and domestic uses and meet basic needs. Under s 77 of the Constitution, the State must take reasonable legislative and other measures, within the limits of the resources available to it, to achieve the progressive realisation of this right. Implementation of the right is made possible through the Urban Councils Act and the Water Act. The latter Act places a responsibility on the Minister to ensure the availability of water to all citizens for primary purposes and other uses. The Government must also ensure that organisations such as the first respondent that has a responsibility to supply and distribute water in accordance with the law are afforded the resources to enable them to do so. This has been through s 183 of the Urban Council Act, which places a responsibility on local authorities to ensure adequate supply of water in terms of the power delegated to them. Councils are required to take measures to construct such works for providing and maintaining a supply of water. The word “may” in s 183 was recognises that there are instances when a council may fail to provide and maintain adequate supplies of water. The legislature was alive to the possibility that the institution delegated the power to supply the water may at some stage be unable to comply with the requirement, for one reason or another. Depending on the reasons furnished for the failure, these may constitute good and acceptable reasons. It was not the intention of the legislature that government be held accountable for matters outside its control.

Where a complaint against a failure to supply water has been filed, the relevant authorities are required to account for their actions. The court is required to enquire into the reasons for the failure to comply. The State and the local authority involved may only be absolved where good and sufficient reasons for failing to provide and maintain a safe, clean and potable supply of water have been given. Litigation concerning the realisation of constitutional rights makes government and other responsible authorities accountable for their actions. Although the council had claimed lack of resources, they might be failing to prioritise their needs. The respondents had not taken meaningful and reasonable steps to address the issue at hand. They had been able to supply water to some residents whilst others are starved of it. What the second respondent ought to do is to ration water so that the scarce resource is distributed fairly.

 

 

 

Constitutional law – Constitution of Zimbabwe 2013 – High Court – powers of – original jurisdiction over all civil and criminal matters – High Court not thereby given jurisdiction over labour matters falling within competence of Labour Court

 

Triangle Ltd & Ors v Zim Sugar Milling Industry Workers’ Union & Ors HH-74-16 (Makoni J) (Judgment delivered 21 January 2016)

 

See below, under COURT (Jurisdiction – High Court).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – local government – removal from office of mayor or councillors – procedure which must be followed – independent tribunal must be established – power to remove mayor and councillors not vested in Minister for Local Government

 

Kombayi & Ors v Min of Local Govt & Ors HB-57-16 (Bere J) (Judgment delivered 22 February 2016)

 

See below, under LOCAL GOVERNMENT (Urban council – suspension and dismissal of councillors).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – national objectives – protection of children – paramountcy given by Constitution to best interests of children – rights of children enunciated in Declaration of Rights – requirement to take account of international instruments to which Zimbabwe is a party – court’s duty to give weight to such considerations – sexual offences against young children – need for severe sentences to give effect to constitutional objectives and protections

 

S v Banda & Anor HH-47-16 (Charewa J) (Judgment delivered 20 January 2016)

 

See below, under CRIMINAL PROCEDURE (SENTENCE) Offences under Criminal Law Code (Having sexual relations with a young person).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – societal values reflected in Constitution – marriage – recognition and protection given to marriage – effect on delict of adultery

 

Njodzi v Matione HH-37-16 (Mwayera J) (Judgment delivered 14 January 2016)

 

See below, under DELICT (Actio injuriarum – adultery).

 

 

Contract – formation – relational contract theory – distinction from classical form of contract – how such contracts may be formed

Contract – sale – instalment sale – no time specified for payment of outstanding instalment – courses open to innocent party

 

Vuya Resources (Pvt) Ltd v Mahachi & Ors HH-107-16 (Tsanga J) (Judgment delivered 10 February 2016)

 

In an instalment sale, the buyer is entitled to immediate possession and to retain possession pending the full payment of the purchase price. In the event of default in payment, the innocent party may insist on performance or cancel the agreement. Where the contract does not stipulate when performance should be due, the creditor has an obligation to place the debtor in mora by way of a demand or an interpellatio. An interpellatio is a demand calling upon a debtor to perform on a particular day failing which the debtor will be in mora. A demand must be made (whether by way of summons or extra judicially, by means of a letter of demand or even orally) to be valid. A reasonable opportunity to perform must be granted and, upon failure to comply, the contract can be cancelled by serving notice of rescission, in which a second reasonable time limit is stipulated.

A contract can be formed in terms of relational contract theory as opposed to the classical framework of contract law. This theory is to the effect that relational contracts are situated at the intersection of law and society, and relational contract theory constitute an important paradigm shift within the law of contract. Not individualism, but the interdependence of individuals in social and economic relationships, is the guiding principle of relational contract theory. Intricate linkings of habit, custom and rules are found in such relational contracts.

The relational rules may be summarised thus: (a) the object of contracting is not primarily the allocation of risk, but the commitment to co-operate; (b) obligations in the long term agreements change as circumstances change; (c) in bad times, parties are expected to support one another, rather than standing on their respective rights; (d) insistence on literal performance will be considered wilful obstructionism; (e) in the event of unexpected contingencies causing severe losses the parties are to search for equitable ways of dividing the losses; and (f) the sanction for bad behaviour is refusing to contract in the future. The modern law of contract, which is founded on realism, puts emphasis on contextualising the facts of a particular case in order to keep law real and achieve substantive as opposed to formal equality. Formalism or the classical approach, on the other hand, is based on strict and logical adherence to legal doctrines and principles and rules.

Whilst rules often settle disputes in the face of agreements, a rigid approach to rules for the sake of rules may not result in justice within the context of the facts in a particular case. Moreover, as illustrated in the description of the key characteristics of relational contract theory, formalism has not been a changeless essence. To return to a set of formalist contractual rules to resuscitate the matter, when the facts speak for themselves that the parties had renegotiated otherwise, would not yield a fair and reasonable result. It would also not be in keeping with what the parties intended.

 

 

Contract – illegal – par delictum rule – relaxation of – considerations – unjust enrichment of one party – party should not be allowed to profit from illegality

 

Value Chain Trading (Pvt) Ltd v Pentecostal Assemblies of Zimbabwe HH-148-16 (Charewa J) (Judgment delivered 24 February 2016)

 

See below, under LANDLORD AND TENANT (Lease –commercial premises).

 

 

Costs – claim for collection commission and costs – agreement in contract that defaulting party would pay both – party bound by such agreement unless penalty out of proportion to prejudice suffered by creditor

 

CBZ Bank Ltd v Chelsy Auto (Pvt) Ltd & Ors HH-67-16 (Tagu J) (Judgment delivered 27 January 2016)

 

Where the parties to a loan agreement have agreed that the borrower will, in case of default, pay costs on a legal practitioner and client scale as well as collection charges, that provision is a penalty clause and prima facie unenforceable. However, under s 4(1) of the Contractual Penalties Act [Chapter 8:04], penalty stipulations are enforceable provided that the penalty is not out of proportion to the prejudice suffered by the creditor. Where parties have agreed on certain terms the court should not readily interfere with that agreement, unless good cause is shown why the court should interfere.

 

Editor’s note: see also United Africa Technologies (Pvt) Ltd v Twenty Third Century Systems (Pvt) Ltd HH-118-16 (below), where the opposite conclusion was reached.

 

 

Costs – claim for collection commission and costs – collection commission payable only where payment obtained before judgment – where matter proceeds to judgment, collection commission not payable

 

United Africa Technologies (Pvt) Ltd v Twenty Third Century Systems (Pvt) Ltd HH-118-16 (Muremba J) (Judgment delivered 20 January 2016)

 

It is not permissible to claim both collection commission and costs, even where there is an acknowledgment of debt or other document from the debtor agreeing to do so. Collection commission is essentially a charge made by a legal practitioner or a commission agent when payment has been obtained through his services prior to judgment. If the matter has to proceed to judgment, then what is recovered is not recovered as a result of a collection by the legal practitioner, but as a result of the judgment of the court and the process that follows thereafter.

 

 

Costs – legal practitioner and client scale – agreement to pay – limited circumstances in which court may depart from specific terms of contract

 

First Mutual Invstm (Pvt) Ltd v Jonsput Trading (Pvt) Ltd & Ors HH-1-16 (Mushore J) (Judgment delivered 6 January 2016)

 

In this dispute arising out of a lease agreement, the parties agreed to settle the matter. The plaintiff sought costs on the higher scale. The tenant argued that such costs were not warranted and that both parties should bear their own costs. However, the lease agreement specifically provided that where the landlord was required to take legal proceedings against the tenant, the tenant would be responsible for costs on the legal practitioner and client scale.

Held: where the parties enter into a contract freely and voluntarily, the court which interprets the contract must treat the contract as sacrosanct when enforcing it. The court cannot and is not allowed to create another contract for the contracting parties. However, even though a court is generally bound to give effect to a contract as it stands, in special circumstances the court still retains a residual discretion to refuse to enforce the costs the way they appear in the agreement. A special circumstance may be where the claimant is guilty of conduct which justifies the court in depriving the claimant of the costs agreed upon in the contract. To that end, where necessary the court has the means available to it to reward or penalise the claimant and therefore deviate from the strictures of a dogmatic approach of enforcement. However, those circumstances should not only be special, but more or less exceptional, as the courts are reluctant to stray too far from ensuring that the sanctity of a contract be preserved and the agreement enforced. No such circumstances existed here.

 

 

Costs – liability for – party withdrawing action or application – normally should tender costs – where withdrawing party can nonetheless be regarded as the successful party, costs may be awarded in its favour

 

Manica Zimbabwe Ltd v Grindsberg Invstms (Pvt) Ltd & Ors HH-95-16 (Dube J) (Judgment delivered 3 February 2016)

 

A court assessing the question of costs is required to take into account all the relevant factors. The subject of costs is always in the discretion of the court. If it decides to make an award of costs, it is usually guided by the general rule that the unsuccessful party pays the costs of the successful party. The court will not allow costs that have been unreasonably incurred. The court also has to be satisfied that the costs sought are payable by one party to another. In determining which party to award costs to and what is the appropriate scale of costs to impose the court will have regard to (a) the conduct of the parties before and during the proceedings; (b) whether a party has been wholly or partly successful in his case; (c) whether the other party has offered to settle the matter; and (d) any other pertinent circumstances.

With regards costs following a withdrawal, the general rule is that a party may withdraw any proceedings before they have been set down; and where he does so after set down of the matter, he may do so with the consent of the other side or with the leave of the court. He is expected to file a formal notice of withdrawal and make a tender of costs. If no consent to pay costs is embodied in the notice of withdrawal, the other side may apply to court for an order of costs. A party who withdraws his action or application is in the same position as an unsuccessful litigant, because his claim or application is futile and the defendant or respondent is entitled to all costs caused by the institution of proceedings by the withdrawing party. However, in exceptional circumstances a respondent will be deprived of costs. A party withdrawing an action or application may only be entitled to costs where very strong reasons have been shown to exist. Where that party has been wholly or partly successful in its claim, this fact may constitute very good reasons for an entitlement to costs. An example would be where the respondent belatedly, after the proceedings had begun, advised the court of circumstances which obviated the need for the hearing, leaving the applicant in effect the successful party, albeit that it withdrew the application.

 

 

Court – jurisdiction – High Court – original jurisdiction over all civil and criminal matters – High Court not thereby given jurisdiction over labour matters falling within competence of Labour Court

 

Triangle Ltd & Ors v Zim Sugar Milling Industry Workers’ Union & Ors HH-74-16 (Makoni J) (Judgment delivered 21 January2016)

 

The applicants, owners of sugar mills, sought an order interdicting the first respondent, a trade union, from embarking on collective job action. The union had embarked on such action shortly before this application was brought, but was terminated or at least suspended following the intervention of the second respondent, the Minister of Labour. Negotiations failed and the union advised that it would resume the collective job action. The applicants argued that the threatened and purported resumption of the collective job action was defective and would be unlawful for want of compliance with the provisions of the Labour Act [Chapter 28:01] on collective job action.

The first respondent argued in limine that the High Court had no jurisdiction to entertain labour disputes, the Labour Court having been granted exclusive jurisdiction by s 89(6) of the Act. In terms of s 104 of the Act, employees are entitled to go on strike. If the employer regards the job action as illegal, he will be entitled to act in terms of s 106 to apply for a show cause order, returnable to the Labour Court, which then disposes of the matter in terms of s 107. In terms of s 106(2)(b), the Minister can issue interim orders which include suspension of the collective job action. The applicants had not exhausted their available domestic remedies. They could appeal to the Labour Court in terms of s 110(1). They had since filed an application in the Labour Court for the determination of the substantive dispute between the parties. While declaraturs and interdicts can be granted by the High Court, show cause orders are specifically provided for in the Act.

The applicants argued that the Labour Court had no power to grant interdicts and, because the show cause order had not been determined, the Minister could not offer effective alternative remedies.

Held: (1) Until the enactment of the 2013 Constitution, it was settled law that neither the High Court nor any other court had jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Act. It had been opined in one High Court judgment that s 171(1) of the Constitution reinstated the High Court’s jurisdiction in labour matters, but in another the judge took the view that whilst s 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions, as well as legislation force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances. Section 172(2) of the Constitution gives the Labour Court “jurisdiction over labour matters as conferred by an Act of Parliament”, the applicable Act of Parliament in labour matters being the Labour Act. Section 89(6) of the Act clearly confers on the Labour Court jurisdiction in the first instance to hear and determine any applications, appeals or other matters stipulated in the Act. This view was the preferable one: provisions of the Constitution cannot be read in isolation. If s 171(1) is read with s 172, it becomes clear that “all matters” in s 171(1) excludes matters over which a specialized court, such as the Labour Court, is established. The absurdity that would arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants would be able to by-pass it and approach the High Court. This would render the establishment of specialized courts nugatory, which could not have been the intention of the drafters of the law.

(2) This matter was a labour dispute which could be dealt with by the Labour Court. Under s 106, if any collective job action is threatened or begun, the Minister, meru moto or on the application of any person who may be affected by the action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made. Such an order requires that the person should appear before the Labour Court to show cause why a disposal order should not be made. The order is returnable to the Labour Court, which after an inquiry issues an order in terms of s 107. Here, the applicants approached the Minister, who made no determination. As a result, the applicants could not appeal in terms of s 110 of the Act, there being no disposal order.

(3) Under s 4 of the Administrative Justice Act [Chapter 10:28], where an administrative authority, among other things, has failed to act within a reasonable period, an aggrieved person can apply to the High Court for an order directing the administrative authority to take action. The court may also give directions necessary to ensure compliance by the administrative authority with the requirements of s 3. This was the course of action that the applicants should have adopted when they realised that the Minister was refusing or neglecting to determine their show cause. The matter could have then proceeded in terms of s 106 of the Act. In terms of s 106(2)(b), the Minister has power to issue interim measures such as the termination, postponement and suspension of the collective job action. The applicants chose to go along with the parallel process adopted by the Minister and abandon the show cause order application. Whilst the High Court has residual powers to grant declaraturs and interdicts, show cause orders are specifically provided for in the Act and could provide the same remedies that the applicants sought. To ask the court to interdict a collective job action would amount to usurping the powers given to the Minister in terms of s 104.

 

 

Court – jurisdiction – High Court – labour matters – exclusive power given to Labour Court by Labour Act to deal with labour matters at first instance – such power not diminished by s 171(1)(a) of 2013 Constitution

Court – jurisdiction – High Court – labour matters – what are – indebtedness of employer to employee after employment terminated – when High Court has jurisdiction – need for document equivalent to acknowledgment of debt

 

Nyanzara v Mbada Diamonds (Pvt) Ltd HH-63-16 (Chitapi J) (Judgment delivered 13 January 2016)

 

The respondent dismissed the applicant on notice and sent him a letter setting out what it acknowledged that it owed the applicant. The letter stated that the amounts were gross and subject to statutory deductions. The applicant did not, as requested, sign the letter. He later brought an application to the High Court claiming the payment of a larger amount, as he claimed that certain allowances had been omitted from the respondent’s letter. The respondent raised the issue of the jurisdiction of the High Court to deal with a labour matter, as well as (a) whether the applicant could rely on a document that he did not sign; and (b) the fact that the computations presented by the applicant were disputed. The applicant claimed that the respondent had by the letter acknowledged its debt to the applicant and that this removed the claim from being a labour dispute.

Held: (1) there have been High Court rulings that the jurisdiction of the court has not been ousted in matters involving an admitted indebtedness by the employer to an employee, even if such indebtedness arises from a labour relationship. Here, however, there was no valid acknowledgment of debt, that is, a document containing an unequivocal admission of liability by the debtor. The amount owed by the debtor must be specified and so should the manner and time of payment. In essence, an acknowledgment of debt must pass the test of a liquid document, i.e a document which proves the debtor’s indebtedness without extraneous or outside evidence. The letter stated that the sum was a gross figure from which statutory deductions, loans and advances would have to be calculated and deducted. The applicant was claiming the whole amount, plus other amounts which were disputed.

(2) Section 13(1) of the Labour Act provides that where an employee’s employment is terminated, he is entitled to his benefits as soon as reasonably practicable. Failure to do so is an unfair labour practice. The employee’s remedy lies in what the Act provides as the corrective remedy to be followed and implemented when an unfair labour practice has been committed, and the matter must be dealt with by the Labour Court. The fact that the employer may have acknowledged its obligations arising from its statutory obligations to an ex-employee in a separate document which may be in the form of an acknowledgment of debt does not detract from the fact that what is acknowledged to be owing are the terminal benefits. The relationship of employer/employee can loosely be said to continue after termination of employment but only for the purposes of giving effect to or enforcement of payment of terminal benefits.

Section 13(2) of the Act criminalises failure to pay terminal benefits and an employee should consider using this provision.

(3) Section 171(1)(a) of the Constitution, which provides for original jurisdiction of the High Court over all civil matters, does not conflict with s 89(6) of the Labour Act. An exercise of original jurisdiction over a matter does not mean that such jurisdiction, “original” as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature has passed a law by virtue of powers given to it by the same Constitution. The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specified matters by the legislature, thus excluding other courts from exercising such exclusive powers, is proper.

(4) Jurisdiction would be declined and the application dismissed.

 

 

Court – officer – Sheriff and his assistants – duties – returns of service of process – court’s entitlement to rely on such returns – assistants rendering false returns of service – need for severe punishment

 

Regional Manager, Beitbridge, & Anor v Maramba & Anor HB-21-16 (Mathonsi J) (Judgment delivered 11 February 2016)

 

The office of the sheriff, which only recently was clothed with wider responsibility to serve virtually all processes of this court, including those which previously could be served by legal practitioners or their employees, should be reformed pretty fast before the administration of justice grinds to a halt. Accusations of false service, fake returns of service and no service at all until the date of hearing are becoming louder by the day in this part of the country where, perhaps owing to lack of supervision, representatives of the sheriff think they are holiday making. It must be said now, in an effort to nip the rot in the bud, that the court transacts very serious business whose outcome affects the lives of members of the public as well as public institutions. In doing so, the court relies heavily on the goodwill, diligence and trustworthiness of the assistants of the sheriff tasked with the responsibility of serving court process and submitting returns of service which the court uses to determine matters. After all, the sheriff is an officer of the court and his return of service is prima facie evidence of service. The submission of a false return of service is not only a travesty of justice but an affront to the dignity of the court. It must, where proved, be severely punished in order to discourage those among the assistants of the sheriff who are too lazy to deliver process and think they can hoodwink the court by submitting fake returns. What is even worse is that such a rogue officer would still levy a fee for lying which litigants have to cough up their hard earned money to settle.

 

 

Criminal procedure – bail – arrested person’s entitlement to – need for State to show compelling reasons why bail should not be granted

 

S v Munsaka HB-55-16 (Mathonsi J) (Judgment delivered 25 February 2016)

 

See above, under CNSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – arrested person).

 

 

Criminal procedure – discharge at close of State case – appeal by Prosecutor-General against – application for leave to appeal – correct procedure to follow – time within which Prosecutor-General must make application – must be time that is reasonable in the circumstances

 

P-G v Mtetwa & Anor HH-82-16 (Mawadze J) (Judgment delivered 27 January 2016)

 

The first respondent, a well-known legal practitioner, was arrested and detained before being granted bail. She was charged with defeating and obstructing the course of justice, following her intervention on behalf of a client whose premises were being searched by the police. She pleaded not guilty and at the end of the prosecution case successfully applied for her discharge. The Prosecutor-General brought an application for leave to appeal against the magistrate’s decision. The application was brought in terms of s 61 of the Magistrates Court Act [Chapter 7:10]. At the hearing, the first respondent raised three points in limine: (a) the application was a nullity, as it should have been brought in terms of s 198(4) of the Criminal Procedure and Evidence Act; (b) the founding affidavit was irregular, having been commissioned by a police officer, the police having a substantial interest in the matter; and (c) there was an inordinate and unexplained delay in bringing the application.

Held: (1) An appeal against the decision of a magistrate to discharge at the end of the State case must be brought under s 198(4) of the Criminal Procedure and Evidence Act. The Prosecutor-General may appeal under s 61 of the Magistrates Court Act against the decision of a magistrates court on a point of law or because it acquitted on a view of the facts which could not reasonably be entertained. The latter procedure applies a situation where all the proceedings are terminated or a full trial has been completed, whereas the former applies during the course of the trial at the close of the State case. There being no application for condonation of the use of the wrong procedure, the first point would be upheld.

(2) An affidavit tendered in evidence should be attested by a commissioner of oaths who is impartial and independent in relation to the subject matter of those affidavits. However, there is a clear distinction between the Prosecutor-General’s Office and the police force. It would be far-fetched to allege that the commissioner of oaths in the circumstances of this case was partial and biased.

(3) The application for leave to appeal was filed a little over five months after the discharge. While no time limit is prescribed in s 198(4), such an application must be made in a reasonable time, in view of the need for finality in litigation and to ensure that the interests of justice are safeguarded. The right to a fair hearing within a reasonable time is enshrined in s 69 of the Constitution. What constitutes a reasonable time is a matter of fact and depends on the circumstances of the case. In the circumstances of this case, the delay was inordinate and unexplained.

 

 

Criminal procedure (sentence) – offences under the Criminal Law Code – having sexual relations with a young person – constitutional protections given to children – need to impose deterrent sentences where older male has relations with young girl – other factors to take into account in aggravation

 

S v Banda & Anor HH-47-16 (Charewa J) (Judgment delivered 20 January 2016)

 

The two accused, who were both aged over 30 years, were convicted, in unrelated trials, of having sexual relations with a young person. In both matters the girls were aged 15. They both impregnated the young girls. Fortunately, neither of the girls contracted a STI or HIV. The only difference was that one accused took the young girl for his wife. The other gave the young girl two small sums of money after he had had his way with her. In each case, the accused was sentenced to 24 months’ imprisonment, half of which was suspended.

On review:

Held: the sentences handed down trivialized the protective measures for young persons prescribed in our law and in the current international framework for safeguarding young persons. Judicial officers seem not to be aware that s 327(6) of the 2013 Constitution requires them, in interpreting legislation, to adopt any reasonable interpretation that is consistent with international conventions, treaties, agreements that are binding on Zimbabwe. In passing sentences for these kinds of offences, therefore, in addition to the usual reasons for sentencing that have evolved in our jurisdiction, judicial officers ought also to take into consideration the following:

  • domestic law prescribes extensive provisions for the protection of children, for which judicial officers must not be seen to be giving mere lip service. Chapter 2 of the Constitution sets out national objectives, one of which is the protection of children. Section 19(1) requires the State to adopt policies and take measures to ensure the paramountcy of the best interests of children. Children must be protected from maltreatment, neglect or any form of abuse. The Declaration of Rights, in s 81(1)(e), provides that children must be protected from economic and sexual exploitation and from maltreatment, neglect or any form of abuse. Section 81(1)(f) guarantees children’s rights to education and health care while subs (2) declares that the best interest of children are paramount.
  • judicial officers should ensure the paramountcy of children’s interests in all proceedings before them, including handing down appropriate sentences that deter those preying on children to refrain from doing so in order to give the maximum protection accorded to children by law. Judicial officers must always ask themselves in sentencing predatory adults who sexually exploit young persons: what message is the judicial service sending, when a person more than twice the age of a child, is sentenced to serve a mere 12 months in jail? Is it in the paramount best interests of young persons to hand down such a sentence? The specific obligation placed on the courts, and the High Court in particular, by s 81(3), makes it high time that the courts had a serious relook at the sentencing regime for sexual offences, so that the message is clearly sent that the courts, in the discharge of their protective mandate for young persons, find that it is totally unacceptable to sexually exploit young persons. This is especially pertinent for offences committed against those young victims aged between 12 and 16 who were directly or impliedly assumed to have “consented” to the sexual violations. The courts must be seen to apply the law in a manner that achieves the intended aim of the legislature in these cases: that is, to effectively protect children from predatory older persons and ensure the eradication, or seriously attempt to eradicate the problem.
  • Zimbabwe is part of the international consensus that effective and full protection must be accorded to children to ensure their health, education and consequent full realisation of their potential as participants in socio-economic and political development. She is signatory to the African Charter on the Rights and Welfare of the Child, which defines anyone under 18 as a child. The Charter notes that children require special safeguards and care on account of their physical and mental immaturity. It reinforces the need for legal protection of children to ensure particular care with regard to their health, physical, mental, moral and social development. Article 4 echoes our Constitution in directing that, in all processes, it is the best interests of children that are paramount. Other provisions emphasise children’s rights to education to promote development of a child’s personality, talents and mental and physical abilities to the fullest potential; the child’s right to physical, mental and spiritual health; and protection against sexual abuse. Article 21 goes to the extent of requiring member States to pass legislation specifying the minimum age of marriage as 18 in order to enhance the protection of children. Zimbabwe has ratified the UN Convention on the Rights of the Child, thus subjecting itself to the rigours of regular examination and review of its child protection record by the United Nations Committee on the Rights of the Child. The review process focuses, among other issues, on the prevalence of sexual exploitation and abuse of children and forced or early marriages of young girls. In our jurisdiction therefore, judicial officers must, in the discharge of their mandate, take into account the norms and standards that Zimbabwe has subscribed to in the treaties and conventions it has ratified.

Gone are the days when it was enough for a judicial officer to be insular in his jurisprudence: attention must be paid to international best practices, particularly on matters that impinge on the rights of vulnerable groups, such as children. The current position that Zimbabwe holds on the African continent requires judicial officers to rise to the responsibility that go with it and help, if not lead, in setting judicial standards and benchmarks for the protection of children. Sentencing man of over 30 to an effective 12 months imprisonment for having sexual intercourse with a young person of 15 can hardly be aimed at deterring other older men from preying on young and immature persons, who are swayed by the offer of $1 or $2, in these harsh economic times. The very fact that a young person “agrees” to sexual intercourse with a much older men for such a paltry amount is clear evidence of her immaturity and incapacity to make an informed choice or decision. Nor can a promise to marry, or even eventual marriage of the child be mitigating. This is because, firstly, s 70(1)(a) of the Criminal Law Code penalises extra marital intercourse with a young person and, at the time of the commission of the offence, the accused was certainly not married to the complainant. Judicial officers should not, when assessing sentence, look with favour on these much older men who “marry” or intend to marry these children, as this attitude from the bench would seem to be promoting child marriages, which our Constitution and the international instruments which Zimbabwe has ratified frown on.

An effective sentence of not less than three years should be imposed in these cases, on an incremental basis for those accused who are twice the victims’ ages, are married with children of their own, and impregnate the young persons or infect them with sexually transmitted diseases other than HIV.

 

 

Criminal procedure – indictment – lodged with Registrar – effect – matter now in hands of court – cannot be struck off roll at instance of prosecutor without explanation

 

S v Chimhau HH-58-16 (Chitapi J) (Judgment delivered 12 January 2016)

 

Once an indictment in a criminal matter has been lodged with the Registrar of the High Court, the case concerned is deemed to be pending before the court for hearing or determination by the court. The accused, once indicted for trial, will be in the hands of the court awaiting trial. Neither the State nor defence counsel has authority to discharge or liberate the accused. If the State is unable to proceed due to the unavailability of its witnesses, its counsel should not just apply for the matter to be struck off from the court roll, even if defence counsel agrees with such a course. An explanation should be given as to why the matter should not proceed.

 

 

Criminal procedure (sentence) – general principles – community service – requirement to consider – where court considers prison sentence of 24 months or less, must consider whether community service is appropriate – must give sounds reasons for holding otherwise

 

S v Silume HB-12-16 (Mathonsi J, Bere J concurring) (Judgment delivered 4 February 2016)

 

It is a misdirection for a trial magistrate not to inquire into the suitability of community service where he or she settles for effective imprisonment of 24 months or less. It is not enough to simply pay lip service to the question of community service by merely saying, with more, that it is inappropriate or that it will trivialize the offence. Where the trial magistrate is of the view, after making a real inquiry into it, that community service is inappropriate, cogent or sound reasons for arriving at that conclusion must be given. This is especially so where what is regarded as aggravation is nothing out of the ordinary, but the usual consequence of theft, like the convenience to the complainant.

It is extremely difficult to understand why there is this visible readiness on the part of magistrates to send convicted persons to prison, even where an alternative and indeed appropriate sentence exists. Petty crimes are being visited with imprisonment without due regard to existing guidelines. This occurs even when the penalty section of the infringed statute enjoins the sentencing court to first give regard to a fine. This attitude defeats logic, especially at a time when prisons are overcrowded and the State is reeling under the yoke of an economic crunch which incapacitates it leaving it scarcely able to sustain the upkeep and maintenance of prisoners.

 

 

Criminal procedure (sentence) – offences under Criminal Law Code – theft – what fine may be imposed – provision that fine may be up to twice the value of the property stolen – no minimum fine thereby stipulated

 

S v Mamvura HH-50-16 (Tsanga J) (Judgment delivered 15 January 2016)

 

Section 113 of the Criminal Law Code [Chapter 9:23] provides that where a fine is imposed for theft, the fine can be one “not exceeding level fourteen or twice the value of the property, whichever is the greater”. This does not mean that the minimum fine must be twice the value of the property stolen, simply that where twice the value of the property exceeds level fourteen, the court may impose a fine of up to that value. Where the facts do not call for a maximum penalty, the fine that the court can choose to impose could be anything starting from level one ($5) to a maximum of level fourteen ($5000) or twice the value of the property, if that figure is above $5000.

 

 

Damages – claim for – future loss – loss of business – such claim recognised in our law – assessment and mode of proof – same as for loss of contractual or professional profits

 

Graphlink Invstms (Pvt) Ltd v Puzey & Payne (Pvt) Ltd HH-123-16 (Tagu J) (Judgment delivered 17 February 2016)

 

The plaintiff and the defendant entered into an agreement under which the defendant was to sell a bus to the plaintiff. The initial deposit was paid, but the bus was not delivered. The plaintiff claimed, inter alia, for “loss of business” and for a sum representing the difference the plaintiff would have to pay for a bus of a similar model. Other claims were either admitted by the defendant or abandoned by the plaintiff. The defendant excepting to these claims, argued that there was no claim in Roman Dutch law of “loss of business”; and that, under our law of contract, damages are claimable for two forms of loss, namely damnum emergens, or loss actually incurred, which is termed actual damages, and lucrum cessans, or loss of profit. Loss of business, it was argued, was not a genus of lucrum cessans. A claim predicted on lucrum cessans could only be couched as a claim for loss of profits and not loss of business. On the price difference, it was argued that the figure represented a tax obligation on the purchase price of any bus.

Held: (1) five categories or forms of prospective loss are recognised in practice: (a) future expenses on account of a damage-causing event, such as future medical costs; (b) loss of future income, such as where an injured person is prevented form earning income; (c) loss of business; contractual and professional profit, as where the wrong goods are delivered; (d) loss of prospective support from a breadwinner who has been killed; and (e) loss of a chance. A claim styled “loss of business” is available in our law and its assessment and mode of proof is the same as loss of contractual or professional profits. The onus is on the plaintiff to prove such loss of business.

(2) With regard to the claim for the price difference, a purchaser is entitled to claim as damages the difference between the purchase price and such higher price as he is obliged to pay for the article in the market. The onus would lie on the plaintiff to prove whether the difference was as a result of tax or not.

 

 

Delict – actio iniuriarum – adultery – contumelia and loss of consortium – purpose of delict – constitutionality of delict – constitutional recognition and protection of marriage institution – society’s views of marriage and adultery – delict not unconstitutional

 

Njodzi v Matione HH-37-16 (Mwayera J) (Judgment delivered 14 January 2016)

 

The plaintiff claimed delictual damages from the defendant for the latter’s adultery with the plaintiff’s husband. The adultery resulted in a child. The plaintiff claimed damages for contumelia and loss of consortium. At the trial the defendant made an application on the constitutionality or otherwise of the plaintiff’s claim. It was argued that it was improper to sue the defendant to the exclusion of the plaintiff’s spouse, although he was the main architect of the relationship. This was discriminatory and therefore contrary to the constitutional provisions of equality before the law. It was further argued that the claim amounted to infringement into privacy of the defendant’s sexual life, thus violating not only the right to privacy, but also the right to freedom of association. She argued that the claim by the plaintiff was archaic and unconstitutional. The plaintiff argued that the institution of marriage was recognised by the Constitution and adultery was a threat to the existence of a marriage.

Held: (1) adultery is an injury occasioned to the innocent spouse because of the adulterous relationship. The spouse can recover damages for loss of a spouse’s consortium as well as any patrimonial loss suffered and also personal injury or contumelia suffered by the innocent spouse, inclusive of loss of comfort, society and services. Contumelia is the injury, hurt, insult and indignity that occurs to an innocent spouse where the other commits adultery. Once there is evidence of such injury, hurt, insult and indignity having been occasioned by the adulterous relationship, then the innocent spouse is entitled to damages for contumelia. Once contumelia is established, then the next issue would be whether or not there is loss of consortium, that is, loss of comfort and society. Adultery damages, whether classified as falling under contumelia or consortium, are delictual damages arising from a delictual wrong occasioned to an innocent married party. To this extent, the distinction is fallacious.

(2) Marriage is a contract sui generis entered into by two willing parties. The sanctity of this contract is what an adultery damages claim seeks to protect. The claim should not be viewed in isolation but from the view point of its purpose, being to protect the sanctity of marriage. In suing the third party, the claimant will be seeking a personal remedy for hurt, injury, iniquity of company and comfort occasioned by the third party’s association with the claimant’s spouse.

(3) While the courts in South Africa, following rulings in other jurisdictions, have held that an award of damages for loss of consortium is no longer justified, the issue was whether such reasoning was applicable in Zimbabwe in the light of the Constitution’s normative framework and our social context. In our case law, adultery damages are underpinned on the preservation of the sanctity of marriage. Adultery may, in terms of the Matrimonial Causes Act [Chapter 5:13], be evidence of the irretrievable breakdown of a marriage. Similarly, it may, in terms of s 10 of the Maintenance Act [Chapter 5:09], affect whether maintenance should be granted or continued.

(4) Adultery claims are very much in sync with the present day social and legal reality in Zimbabwe. Public policy is now infused with constitutional values and norms. It is apparent that public policy often represents the legal convictions of the community. It reflects those values that are held dearly by a society. To that extent, therefore, in deciding whether a delictual claim of adultery damages is constitutional or otherwise, while appreciating and respecting foreign jurisdictions’ decisions, the decision should be contextualised to reflect the legal convictions and societal values of this country. Section 3 of the Constitution outlines the values and principles on which the Constitution is founded, and shows that the Constitution recognizes and accepts that the Zimbabwean moral fabric is engraved in the country’s culture, religion and traditional values. Any development of the common law therefore ought to be underpinned on the interests of justice, and of course, in conformity with the Constitution. The institution of marriage is entrenched deeply in the country’s culture, tradition and religion, and its protection has been in unambiguous language propagated by the courts. Adultery is still regarded as a threat to marriage.

Marriage is recognised and protected by s 78 of the Constitution.

(5) The purpose of adultery damages is protection of the marriage institution and to compensate the innocent party for the loss of consortium and contumelia. This does not preclude the innocent party from either suing for divorce or condoning the wrong and continuing with the marriage. Marriage and family are social institutions of vital importance. They have more than personal significance: the Constitution would not seek to protect the institution of marriage if the sustenance of the institution was wholly for the parties, at least in the Zimbabwean context, given the importance placed by society on the institution.

(6) The argument that the delict brings about indignity on the third party and that it infringes on the rights of the third party cannot be sustained when from the perspective of its invasion of the marriage institution. The invasion of a marriage by a third party in the Zimbabwean context is an attack on the dignity of the innocent party. The dignity of the adulterer ought not to be more important than that of an innocent party to a marriage. Rights have to be exercised reasonably and with due regard for the rights and freedoms of other persons. The defendant’s rights in this matter are the same as the plaintiff’s; the potential infringement of her dignity and privacy should not be viewed in disregard of the rights of the innocent spouse in a marriage.

(7) While other jurisdictions have in part or fully done away with the delict or tort of adultery, the protection of the family and marriage institutions is encapsulated in the Constitution. Society, which was involved in the constitution-making process, still views adultery negatively. A third party who, with knowledge, intrudes into the marriage institution, ought to compensate the innocent spouse for the injury occasioned. Adultery is almost always debilitating for the innocent spouse who suffers indignity and hurt because of the adultery.

 

 

Employment – disciplinary proceedings – disciplinary authority in terms of Labour (National Employment Code of Conduct) Regulations – when properly constituted – employer’s discretion in determining make up of such authority

 

National Eng Workers’ Union v Dube S-1-16 (Gwaunza JA, Hlatshwayo JA & Mavangira AJA concurring) (Judgment delivered 15 February 2016)

 

The respondent was suspended from her employment with the appellant on various disciplinary grounds. A disciplinary hearing was conducted, following a letter addressed to the respondent. The respondent was found guilty of four acts of misconduct falling under s 4 of the Labour (National Employment Code of Conduct) Regulations 2006 (SI 15 of 2006) and dismissed. The matter was referred to a labour officer and eventually to an arbitrator, whose sole term of reference was to determine whether or not the respondent was unfairly dismissed. He found that the labour dispute emanated from sour working relations between the parties; that the disciplinary committee was improperly constituted; and that the committee failed to consider mitigating factors before imposing the penalty of dismissal. The arbitrator ordered reinstatement, or damages in lieu thereof. The Labour Court dismissed the appellant’s appeal against this decision and substituted an order that the appellant pay the respondent damages calculated from the date of her dismissal to the date on which the respondent commenced employment with another employer. The court found that although the disciplinary proceedings were conducted in terms of the National Code, this was done before an improperly constituted disciplinary committee.

On appeal to the Supreme Court, the issues were (a) whether the disciplinary hearing was conducted by a disciplinary authority or by a disciplinary committee; (b) whether the adjudicating authority was properly constituted; and (c) if it was, whether or not the Labour Court erred in ordering that the respondent be paid damages in the absence of any evidence before, and without the parties addressing, the court on that issue.

Held: (1) there are two definitions of “disciplinary committee” in the definitions section of the Code, one being a “stand alone” definition, and the other being subsumed under the definition of “disciplinary authority”. This means that a disciplinary committee as so subsumed, is one of the “bodies” that may constitute a disciplinary authority, just like the “person” or “authority” mentioned in the definition in question. However, while both definitions are in the definitions section of the Code, only “disciplinary authority” is referred to in the body of the Code, in s 6(4)(b), which confers on a disciplinary authority powers to conduct a disciplinary hearing at the workplace. By contrast, there is no provision in the Code that confers similar powers on a disciplinary committee or for an employee to appear before a disciplinary committee unless such committee is constituted as part of a disciplinary authority. It was clear from the letter to the respondent that the appellant intended to set up a disciplinary authority, and invited her to bring a person of her choice to represent her. The hearing was conducted in accordance with the requirements of s 6(4)(b). The Code does not impose any limitation as to the number of persons who should constitute a disciplinary authority, nor is the designation of such persons stipulated. It is all left to the employer’s discretion. The authority which conducted the hearing was thus properly constituted.

(2) Having resolved not to remit the matter to the appellant for a hearing de novo, it behoved the Labour Court to hear evidence on the matter of the respondent’s culpability and damages, if any. Instead it simply set aside the arbitrator’s award of damages and fell into the same error as the arbitrator, by substituting the award in the absence of any evidence having been led on the issue. Apart from finding a specific figure of damages, the court should have heard evidence on how long it might have reasonably taken the respondent to secure alternative employment, as well as evidence on what steps, if any, she took to mitigate her loss.

(3) The matter would be remitted to the Labour Court, for it to determine the lawfulness or otherwise of the respondent’s dismissal and the damages, if any, to be paid.

 

 

Employment – disciplinary proceedings – representation at – code of conduct providing that employee may be represented by trade union representative or member of workers’ committee – provision in breach of constitutional right to legal representation before any court, tribunal or forum

 

Chanakira v Zimbabwe Post (Pvt) Ltd HH-110-16 (Mangota J) (Judgment delivered 4 February 2016)

 

Relying on a provision in its code of conduct defining “member representative” as either a trade unionist or a member of the workers’ committee, the respondent’s disciplinary committee refused audience to the applicant’s legal practitioner when the applicant appeared on disciplinary charges. The applicant brought proceedings to have the disciplinary proceedings declared illegal, on the grounds that his rights under s 69(4) of the Constitution were being infringed. This provides that every person has a right, at his own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.

Held: the interpretation which the respondent’s disciplinary committee relied upon in denying the applicant his constitutional right to legal representation was misplaced. The interpretation rendered the committee’s proceedings a nullity.

 

 

Employment – Labour Court – jurisdiction – labour matter – what is – unfair labour practice – includes failure to pay terminal benefits as soon as reasonably practicable after termination of employment – Labour Court having jurisdiction even though employer-employee relationship has ceased

 

Nyanzara v Mbada Diamonds (Pvt) Ltd HH-63-16 (Chitapi J) (Judgment delivered 13 January 2016)

 

See above, under COURT (High Court –Jurisdiction).

 

 

Employment – strike – show cause order by Minister – failure by Minister to respond to application for show cause order – applicant’s remedies under Administrative Justice Act – Minister’s failure not entitling applicant to approach High Court for other relief

 

Triangle Ltd & Ors v Zim Sugar Milling Industry Workers’ Union & Ors HH-74-16 (Makoni J) (Judgment delivered 21 January 2016)

 

See above, under COURT (Jurisdiction – High Court).

 

 

Employment – suspension on allegations of misconduct – effect of suspension – employee retains status as such – subsequent finding of not guilty – whether employer obliged to reinstate employee – “reinstatement” – meaning of – distinction from order for reinstatement following finding that employee wrongfully dismissed

 

CIMAS v Nyandoro S-6-16 (Malaba DCJ, Hlatshwayo & Mavangira JJA concurring) (judgment delivered 25 February 2016)

 

An employee who is suspended is not dismissed from employment ipso facto. Suspension and dismissal are different, though related, concepts. A suspended employee does not lose his employee status. He remains employed and can be called upon any time by the employer to perform work

Depending on the circumstances of the case, an employer whose employee was suspended on allegations of having committed an act of misconduct may serve a notice in writing on the employee reinstating him in the job if the grounds of suspension are not proved at a disciplinary hearing. Whilst an employer is under an obligation in terms of s 6(2)(b) of the Labour (National Employment Code of Conduct) Regulations (SI 15 of 2006) to investigate the allegations of misconduct levelled against an employee and conduct a disciplinary hearing within fourteen days following the employee’s suspension, the employer is not under an obligation to serve the employee with a notice of removal of the suspension after he is found not guilty of the alleged misconduct for which he was suspended, if the circumstances of the case do not allow for such a reinstatement.

Failure to serve a notice of removal of a suspension in terms of s 6(2)(b) of the Code is not necessarily an unfair conduct. Whether it is unfair conduct will depend on the circumstances of the case. An employer may be entitled not to serve the employee with a notice of removal of the suspension if the behaviour of the employee is such that it would satisfy any reasonable employer that he regards the relationship between the parties to have broken down to the extent that he no longer wants to work for the employer.

The word “reinstatement” in s 6(2)(b) does not have the same meaning it has when it forms the content of an order directed at an employer following a finding that the employee was unfairly dismissed. It has the limited meaning of removal of the suspension so that the employee can resume work. There can be no question of payment of damages in lieu of reinstatement. The ordinary meaning of reinstatement is the restoration of a person in his former job with no loss of salary and benefits. In its wide sense, an employee who is allowed to resume work upon the removal of suspension is “reinstated”. The employee is regarded as never having been suspended.

Where an order of reinstatement is accompanied by an option to pay damages in lieu of reinstatement, it means that there has been a determination by the tribunal that the employee had been unfairly dismissed. In other words, an order of reinstatement, coupled with an option for payment of damages in lieu of reinstatement, is evidence of the fact that the tribunal was faced with the question of the fairness or otherwise of a dismissal of an employee. Back-pay is associated with reinstatement following a determination that the dismissal of an employee was unfair, because back-pay forms a large portion of damages payable in lieu of reinstatement. So an order of payment or reimbursement is evidence of a finding by the tribunal that the employee was unfairly dismissed.

 

 

Family law – child – abduction – child removed from jurisdiction by one parent – application for return of child to country of habitual residence – how application should be made – applicant having obtained order of court of country of child’s habitual residence – mechanisms for enforcement

 

Wheeler v Egglestone HH-99-16 (Chitakunye J) (Judgment delivered 29 January 2016)

 

The parties, who were not married to each other, were the parents of a minor child. They lived in South Africa, where the child was born. Their relationship deteriorated and they separated, the applicant (who was the mother) remaining with the child. The respondent had regular access to the child. The applicant then came to Zimbabwe, where her parents lived. With the consent of the respondent, she brought the child to Zimbabwe. It was expected that the child would return to South Africa, so that the respondent could have access and the child could attend school. The applicant did not return the child to South Africa, but remained in Zimbabwe. The respondent obtained an order from a South African court, ordering the applicant to return the child to South Africa. The applicant sought an interdict declaring the order to be of no force or effect and preventing the respondent from removing the child. Her application was said to be in terms of the Child Abduction Act [Chapter 5:05], which gives effect within Zimbabwe to the Convention on the Civil Aspects of International Child Abduction.

The objects of the Convention are to secure the prompt return of children wrongfully removed to or retained in any contracting state; and to ensure that rights of custody and of access under the law of one contracting state are effectively respected in the other contracting states. Some instances where the removal will be deemed wrongful include where the removal is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and at the time of removal or retention those rights were actually exercised either jointly or alone, or would have been exercised but for the removal or retention.

It was common cause that the child was habitually resident in South Africa before being brought to Zimbabwe, as were both parents. The principles of custody and of access in South Africa would thus have to be taken into account in determining whether there was wrongful removal or retention as the country of habitual residence.

Held: (1) the application was said to be in terms of arts 13 and 20 of the Convention, which articles pertain to grounds upon which a judicial or administrative authority may refuse to grant the request for the return of the minor child. These articles presuppose an application or request for the return of the child has been made, which the applicant had not alleged.

(2) A foreign judgement cannot be enforced without invoking internal processes. Under the Convention, the respondent would have to approach the Secretary for Justice, the central authority for Zimbabwe. This he had not done. He could also have approached the High Court for registration of the judgment. As the judgment did not sound in money, it could not be enforced under the Civil Matters (Mutual Assistance) Act [Chapter 8:02], but under the common law, which the Act specifically preserved, while it could not be directly enforced, it constituted a cause of action. Such an action could be enforced, subject to well established principles. The respondent had to comply with the relevant legal processes to obtain the relief he sought.

(3) The Convention was clear that the preference is for the issue of custody to be dealt with by a court of the child’s country of habitual residence. It would thus be premature to deal with issue of custody before an application and determination has been made on whether the child should be returned or not. Whilst the applicant had rights to protect vis-à-vis the minor child, this should take into account the provisions of the Convention under which she made her application. She could raise the available defences to the removal of the child back to the country of habitual residences in terms of the Convention whenever an application for the removal was made. The removal of the child without a proper hearing and ascertainment of the key issues in terms of the applicable law would not be in the best interest of the child. The applicant would be allowed to retain custody pending the determination of a proper application for the registration or enforcement of the South African judgment in terms of the Convention or by a lawful internal process, whichever the respondent chose.

 

 

Family law – husband and wife – marriage – minimum age for – marriage of person under 18 unconstitutional

 

Mudzuru & Anor v Min of Justice & Ors CC-12-15 (Malaba DCJ, Chidyausiku CJ, Ziyambi JCC, Gwaunza JCC, Garwe JCC, Gowora JCC, Hlatshwayo JCC, Patel JCC & Guvava JCC concurring) (judgment delivered 20 January 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – marriage rights)

 

 

Family law – husband and wife – marriage – recognition and protection given to marriage by Constitution – effect on delict of adultery – delict still subsisting

 

Njodzi v Matione HH-37-16 (Mwayera J) (Judgment delivered 14 January 2016)

 

See above, under DELICT (Actio injuriarum – adultery).

 

 

Human rights – right to water – legislative measures to ensure supply of potable water – duty of urban council to ensure water distributed fairly

 

Hopcik Invstm (Pvt) Ltd v Min of Environment & Anor HH-137-16 (Dube J) (Judgment delivered 17 February 2016)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right to water).

 

 

Insurance – broker – function of – liability – broker undertaking to secure insurance cover – contract providing that insured and insurer must then enter into contract – insurer refusing to provide insurance cover on terms proposed by insurer – broker not liable for subsequent loss cause by lack of insurance cover

 

Tel-One (Pvt) Ltd v Capital Ins Brokers (Pvt) Ltd HH-26-16 (Charewa J) (Judgment delivered 13 January 2016)

 

The plaintiff, a State agency, floated a tender inviting registered insurance brokers for the provision of insurance cover. The defendant won the tender. The tender documents included a pro-forma agreement between the plaintiff and the insurer, which contract would only come into effect after the parties signed it. The defendant sourced for an insurer and when it advised the plaintiff of this, the plaintiff paid the premiums it had proposed. The insurer withdrew on the basis that there was no agreement between it and the plaintiff. A second insurer was found; this one demanded either a higher premium or a reduction in the benefits. The plaintiff did not accept either of these adjustments. The result was that the plaintiff was left without insurance cover, and was not indemnified against deaths of staff members. It sued the defendant for payment of the sum of money arising from those deaths. Among other issues, one was whether there could be a claim against the defendant.

Held: an insurance broker does not provide insurance cover as it is not an insurer. An insurance broker is a facilitator and cannot force an insurer to cover a risk. It can only advise an insured on how it can properly secure its risk and it facilitates negotiations with an insurer for an appropriate package for the insured, following which an insurance contract would be entered into between the insurer and insured. Here, in order to succeed in its claim, the plaintiff had to prove the fact that either of the two insurers, or indeed any other insurer, was willing to cover its risk on its terms. The defendant presented to the first insurer the insurance package required by the plaintiff in terms of the tender. The insurer was willing to assume the risk, but it made a counter offer whereby the plaintiff had to pay more in premium rates to maintain the level of cover that the plaintiff required. The plaintiff insisted that it would only pay the rates in terms of the tender documents. The first insurer and the plaintiff were therefore never ad idem. A similar situation arose with the second insurer. The fact that the defendant wrote to the plaintiff advising that it had placed cover with one or other insurer did not negate the requirement for the plaintiff to enter into a contract of insurance with the insurers. Since no insurer was willing to assume the risk on the plaintiff’s terms, and the plaintiff was unwilling to compromise, it could not be said that the defendant breached its duty.

 

 

Land – acquisition – former employees remaining on farm – no right to do so – employment ceased on acquisition of farm – liable to prosecution for occupying gazetted land without lawful authority

 

Yoramu & Ors v P-G CC-2-16 (Garwe JCC; Chidyausiku CJ, Malaba DCJ, Ziyambi JCC, Gwaunza JCC, Gowora JCC, Hlatshwayo JCC, Patel JCC & Mavangira AJCC concurring) (Decision given 21 January 2015; reasons published 24 February 2016)

 

The applicants had been employees of a farmer whose farm had been expropriated for resettlement and allocated to various beneficiaries. After the farmer left, the applicants remained on the farm and continued to use the farm compound, house and storage sheds situated on land allocated to one of the beneficiaries. The applicants were not formally engaged to provide services for any of the persons who had been allocated land on the farm. They were consequently charged with of contravening s 3(2)(a) as read with s 3(3) of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28], it being alleged that as “former occupiers of gazetted land” they had continued to use and occupy the farm without lawful authority. When placed on remand, they requested that various matters be referred to the Supreme Court in terms of s 24(2) of the 1980 Constitution.

They alleged that they had either migrated to Zimbabwe a long time ago or had been born and bred on the farm and had worked for the farmer for many years. As part of their conditions of employment, he had provided them with accommodation, clean and safe drinking water, electricity, sanitary facilities and food rations. Whilst accepting that title in the farm now vested with the Government, they maintained that the acquisition of the farm had not meant the automatic termination of their contract of employment, rather that it had resulted in a transfer of the farming undertaking and consequently, in terms of s 16 of the Labour Act [Chapter 28:01], the beneficiaries had assumed the position of employer, with the concomitant responsibility of employing them, on terms and conditions similar to those they previously enjoyed. They further submitted that their prosecution and possible eviction at a time when their employment had not been lawfully terminated violated their right to the protection of the law under s 18(1) and (1a) of the Constitution and in particular their labour rights and the right not to be subjected to inhuman and degrading treatment.

It was argued for the respondents that s 16B of the 1980 Constitution provided for the compulsory acquisition of agricultural land for resettlement and such land would vest in the State with full title therein. Section 16B(6) provided that an Act of Parliament may make it a criminal offence for any person to continue to possess, occupy or use acquired land without lawful authority. The prosecution of former owners or occupiers of gazetted land was therefore derived directly from the Constitution. As the applicants had no lawful authority to occupy a portion of the farm, they were liable to prosecution in terms of the Act. They had ceased being employees. Their employment had been terminated following the acquisition of the farm. The Labour Relations (Terminal Benefits and Entitlement of Agricultural Employees affected by Compulsory Acquisition) Regulations (SI 6 of 2002) applied to them.

The respondents also argued that no constitutional issue arose from the prosecution of the applicants in this matter. Section 3(2) of the Gazetted Lands Act refers to “every former owner or occupier” of gazetted land. The applicants were occupiers of such land. A number of decisions of the Supreme Court, sitting as a constitutional court, had held that the prosecution of former owners or occupiers was not a violation of the right to the protection of the law or any other right under the Declaration of Rights. On the merits the respondent has submitted that the acquisition of land is not a contractual transaction and, therefore, the employment of the applicants was not transferred to the beneficiaries of the land redistribution programme.

Held: (1) Section 3 of the Gazetted Lands Act has been held in a number of decisions of the Supreme Court sitting as a constitutional court to be constitutional. The 2013 Constitution, in s 72(6), provides that an Act of Parliament may make it a criminal offence for any person, without lawful excuse, to possess or occupy agricultural land. In effect, therefore, the 2013 Constitution has not tampered in any way with the law as it existed under the 1980 Constitution and in fact re-affirms that the provision remains the same. There was this no constitutional issue to be referred.

(2) The question whether the applicants remained employees in terms of s 16 of the Labour Act was a question of interpretation. It was not an issue involving a breach of the declaration of rights.

 

 

Landlord and tenant – lease – commercial premises – sum paid to secure lease – payment of such sum a breach of Commercial Premises (Rent) Regulations (SI 676 of 1983) – landlord not entitled to retain such sum on termination of leas

Value Chain Trading (Pvt) Ltd v Pentecostal Assemblies of Zimbabwe HH-148-16 (Charewa J) (Judgment delivered 24 February 2016)

 

The plaintiff issued summons against the defendant for a refund of monies paid towards goodwill and security deposit, interest thereon and costs on the higher scale, arising from a lease agreement. The issue for determination was whether or not, upon cancellation of the lease agreement between the parties, the plaintiff was entitled to a refund of the goodwill paid to the defendant. The lease agreement had been for four years. As well as a security deposit, the plaintiff had paid a sum of money as “goodwill”. After four months, the plaintiff cancelled the lease and gave possession to the defendant. The plaintiff argued that the issue was covered by s 19 of the Commercial Premises (Rent) Regulations (SI 676 of 1983), which proscribes extra payments apart from rent and security deposits. Any such payment, being illegal, should be refunded. If the plaintiff were to forfeit the “goodwill” deposit, that would amount to a tacit contractual penalty contrary to the Contractual Penalties Act [Chapter 8:04], leading to the defendant’s unjust enrichment. The defendant argued that s 19 was not applicable; that the plaintiff had not properly pleaded unjust enrichment; and that that the payment of goodwill was not illegal, and did not render the lease agreement illegal. In terms of the in pari delicto rule, the loss lay where it fell.

Held: (1) The clear intention of the legislature in enacting s 19 was to prohibit the tendency on the part of some landlords to take advantage of desperate tenants seeking to rent accommodation by demanding, over and above the amounts that a landlord may lawfully demand from a lessee, such as rent and a security deposit, other amounts that are not permissible in terms of the Regulations. It is impermissible and a breach of the law for a landlord to demand payment of “a commitment fee”, or “goodwill”, or “a lease consideration fee” or any other fee, by whatever name, which amounts to a bonus or premium or a consideration for negotiating the lease. The agreement to pay goodwill was contrary to the statutory provisions, illegal and therefore null and void.

(2) The forfeiture of the goodwill premium would amount to a disproportionate penalty in terms of the Contractual Penalties Act, because the defendant would have both the premises and the goodwill, to the detriment of the plaintiff. At best, were such goodwill validly due to the defendant, it would be appropriate to order a refund of an amount commensurate with the period that the plaintiff was in tenancy.

(3) Ordinarily, the in pari delicto rule presupposes that both parties are equally morally guilty and hence the loss should lie where it falls. However, the courts have chosen not to adopt an overly technical approach, choosing instead to examine the results of the illegal agreement to determine where the equities lie. The approach is normally to examine whether public policy would be best served by upholding or rejecting the plaintiff’s claim. If public policy considerations do not favour either party, then the rule will operate against the plaintiff who seeks to extricate himself from the consequences of the illegal agreement. In every case, the court will not enforce an illegal agreement, but will seek to do justice between the parties. Here, both parties were in breach of the Regulations, but in the interests of the public, there was need to protect other prospective tenants from being charged goodwill illegally for the same premises. The equities therefore favoured the plaintiff, as it would be unconscionable for the defendant to have both the property and the goodwill. Public policy required that the defendant should not be allowed to profit from the illegality.

(4) It was not necessary for the plaintiff to have specifically pleaded for the relaxation of the in pari delicto rule or that defendant was unjustly enriched. Once it was shown that the defendant retained both the premises and the goodwill, the onus shifted onto it to show that it had not been unjustly enriched.

 

Editor’s note: Goodliving Real Estate (Pvt) Ltd & Anor v Lin, referred to in the judgment, is reported in 2013 (2) ZLR at p 393.

 

 

 

Police – claims against – prescription period – period applies whether claim is under delict or arising out of alleged breach of constitutional right

 

Mangena v Min of Home Affairs & Anor HH-115-16 (Munganati-Manongwa J) (Judgment delivered 10 February 2016)

 

Under s 70 of the Police Act [Chapter10:11], any civil proceedings instituted against the State or a member in respect of anything done or omitted to be done under the Act must be commenced within 8 months after the cause of action has arisen and notice in writing of any such civil proceedings and the grounds thereof shall be given in terms of the State Liabilities Act [Chapter 8:14].

The plaintiff was wounded by gunshots fired at his car by members of the police force on 24 March 2014. He was hospitalised, and whilst there was chained to his bed by the police and kept under guard. Only 12 days later was he informed of the reasons for his arrest. He denied the allegations against him. He was never prosecuted in respect of those allegations. On 5 March 2015, after having given timeous notice of his intention to sue the police, the plaintiff issued summons claiming damages for wrongful arrest and for other wrongs. The defendants claimed that the claim was made out of time and was prescribed.

The plaintiff opposed the special plea. One ground was abandoned, but he also argued that the cause of action only arose on 19 September 2014, when he became aware through a letter from the police that the he was shot by a police officer as he was a suspect in a robbery case and they still intended to prosecute him. He alleged that before this official confirmation, which only came after requesting the police for an investigation, he was not armed with the full facts that could enable him to prosecute his case.

He also argued that his claim was based on s 85 of the Constitution which grants a right to any person acting on his own interests the right to approach a court alleging that a right has been infringed. In terms of that provision, the court may grant appropriate relief including a declaration of rights and an award for compensation. The plaintiff alleged that his rights under various other sections of the Constitution were violated when he was shot and unlawfully arrested by the police. That being so, the Police Act did not cover constitutional claims as the application of s 70 of the Police Act was limited to acts or omissions under the Police Act. The 8 months prescription period provided for in the Police Act did not apply as his claim was grounded upon a constitutional provision. Alternatively, he submitted that if the court found that the Police Act applied, then s 70 is ultra vires the Constitution. He submitted that the limitation of time provided in s 70 of Police Act promotes violation of human rights and promotes anarchy, as it was designed to protect the police rather than citizens.

Held: (1) statutes of limitation do not affect the substantive right guaranteed under a Constitution but merely limit the time within which a person has to institute proceedings when enforcing his or her rights for a remedy. In pursuing a remedy or compensation for violation of a fundamental right, the claim has to be within the four corners of the rules of procedure, and evidence and if there are limits prescribed by statute, they have to be adhered to. The claims by the plaintiff against the defendants should comply with the time limit stated in s 70 of the Police Act, irrespective of whether they are based in delict or arising from a violation of constitutional rights.

(2) The second question was when the cause of action arose, the “cause of action” being the entire set of facts which gives rise to an enforceable claim and includes every fact which it is material to plead and prove so as to successfully sustain an action. Here, the cause of action in respect of the shooting only arose on 19 September 2014 when the plaintiff became aware of the debtor’s identity and the full facts of the matter which were material in order for him to succeed in his claim for damages arising out of the shooting. Full information came out after the police had done an internal investigation when a complaint was raised by the plaintiff’s legal practitioner. In respect of the claim for unlawful arrest, at the time of arrest the plaintiff was not informed of the charges against him. Having been arrested, a warned and caution statement already recorded, the plaintiff was uncertain of his future. Plaintiff remained an accused person with a threat of prosecution hanging over his head. A process was set in motion which became continuous and could be said to have been reasonably stopped by the plaintiff when he realised that no prosecution was to be done when he instituted proceedings on 5 March 2015. The threats of prosecution having been made on 19 September 2014 and nothing turning on it, the plaintiff could not be expected to wait till eternity.

 

 

Local government – District Development Fund – proceedings against – Fund not a legal persona – need to sue Minister of Local Government

 

Masiya v District Development Fund & Anor HH-119-16 (Charewa J) (Judgment delivered 17 February 2016)

 

See below, under PRESCRIPTION (Extinctive).

 

 

Local government – urban council – suspension and dismissal of councillors – powers given to Minister in terms of Urban Councils Act – such powers inconsistent with constitutional requirement for establishment of independent tribunal for such purpose

 

Kombayi & Ors v Min of Local Govt & Ors HB-57-16 (Bere J) (Judgment delivered 22 February 2016)

 

The applicants, who were the elected mayor and councillors of Gweru, were suspended from office by the first respondent in terms of s 114(1) of the Urban Councils Act [Chapter 29:15] on allegations which impacted negatively on their ability to continue discharging their functions. They were thereafter served with a formal notice to appear before a tribunal to be chaired by the third respondent, the two other members of which were the fourth and fifth respondents. Subsequently, they were served with a document containing specific allegations which had been preferred against them and which the tribunal was supposed to deal with. These charges were framed by the second respondent, the Provincial Administrator. Following a letter to the respondents by the applicants’ legal practitioner, the present application was brought, seeking a declaration that the proceedings were ultra vires s 278 of the Constitution and thus void ab initio. That section requires the establishment of an independent tribunal to exercise the function of removing mayors and councillors from office and specifies the grounds on which this may be done, whereas the Act gives such power to the Minister.

Held: the Constitution is the supreme law and any law inconsistent with it is invalid to the extent of the inconsistency. Whenever a legal norm or rule or decision laid down by the Constitution comes into practical collision with the legal norm or rule of decision laid down by any sort of non-constitutional law – be it parliamentary legislation, subordinate legislation, common law, or customary law – the Constitution’s norm is to be given precedence by anyone whose project is to carry out the law. Although the Act predated the Constitution and continued in force, it had to be construed in conformity with the Constitution.

When courts give relief, they attempt to synchronise the real world with the ideal construct of constitutional world. This means that a court should not only consider what is appropriate relief under the circumstances is, but also what the effect of its order on the general public will be. It must take into account the interests of all persons affected thereby. It must also determine whether the declaration of invalidity will give rise to a situation less consistent with the Constitution than the existing situation. However, this was not merely a superficial violation of the Constitution. The court had to deal with illegal actions not only by the first respondent but also by the second respondent, who gave himself powers which were not given in s 114 of the Act, there being nothing in the section for him to lay any charges against the applicants; that was the prerogative of the Minister.

When s 278 of the Constitution speaks to the need to appoint an independent tribunal to look into the allegations raised against the applicants, it meant much more than hand picking those who constitute such a tribunal. The qualifications of those independent members of such a tribunal must not be a subject of speculation; it was the prerogative of the Legislature to define such qualifications. In the absence of a specific Act of Parliament to define the nature of the independent tribunal envisaged, it was not competent for the first respondent to hand pick individuals to sit in the tribunal.

 

 

Practice and procedure – affidavit – authentication of – affidavit commissioned by local commissioner of oaths – no requirement to authenticate document with seal of office

 

United Africa Technologies (Pvt) Ltd v Twenty Third Century Systems (Pvt) Ltd HH-118-16 (Muremba J) (Judgment delivered 20 January 2016)

 

Where a local justice of the peace or commissioner of oaths commissions an affidavit, it is not essential that he or she authenticates the affidavit by affixing thereto the seal or pressing thereon the stamp used by him or her in connection with his office. The need to authenticate only arises in affidavits that are commissioned outside Zimbabwe.

 

 

Practice and procedure – affidavit – who may commission affidavit – commissioner must be impartial and unbiased in relation to subject matter – officer in police commissioning founding affidavit in application brought by Prosecutor-General – propriety of

 

P-G v Mtetwa & Anor HH-82-16 (Mawadze J) (Judgment delivered 27 January 2016)

 

See above, under CRIMINAL PROCEDURE (Discharge at close of State case).

 

 

Practice and procedure – execution – sale – dwelling house – dwelling house occupied by judgment debtor – what debtor must show and do to avoid sale in execution

 

Masimbe v Rainbow Tourism Group HH-158-16 (Muremba J) (Judgment delivered 24 February 2016)

 

A judge may postpone or suspend the sale in execution of a dwelling house if he is satisfied that the execution debtor or his family are in occupation of the house and will likely suffer great hardship if the dwelling is sold. In addition to showing that great hardship is likely to be suffered, the execution debtor should make a reasonable offer to settle the debt. If a reasonable offer is made, the judge will postpone or suspend the sale to enable the execution debtor to pay off the debt. If the execution debtor cannot make a reasonable offer to settle the debt, he should, in addition to showing that he or his family will likely suffer great hardship, show that he or his family needs a reasonable period to secure alternative accommodation. In that case, the judge will postpone or suspend eviction for a reasonable period to enable the debtor or his family to find alternative accommodation before they can vacate the dwelling. If the execution debtor, after showing that he or his family will likely suffer great hardship, neither offers a reasonable offer to settle the debt nor shows that he or his family needs a reasonable period to acquire alternative accommodation, but advances some other good ground which persuades the judge, the judge may postpone or suspend the sale or the eviction on conditions he thinks fit.

 

 

Practice and procedure – execution – sale in execution – dwelling house – house mortgaged as security for loan – mortgagee foreclosing when debt not serviced – mortgagor not entitled to stay of execution

 

Nyadindu & Anor v Barclays Bank of Zimbabwe Ltd & Ors HH-135-16 (Dube J) (Judgment delivered 17 February 2016)

 

The applicants, who were husband and wife, sought an order for the setting aside of the sale, conducted by the Sheriff, of their house, which had been mortgaged a security for a loan. When the first applicant failed to service the loan, the first respondent, the bank which had made the loan, obtained judgment to recover the balance. The Sheriff sold the house by public auction. The first applicant filed an objection with the Sheriff in terms of r 359 of the High Court Rules, claiming that the bid price was unreasonably low, in that the price realized at the sale could not extinguish the debt owed to the judgment creditor, and, given time to sell the property by private treaty, they could get a higher offer for the property. The Sheriff dismissed the objections and confirmed the sale.

The applicants submitted that the property was a family home and the family’s primary home and ought not to have been sold. They submitted that the effect of the respondents’ action was to make the applicants’ family destitute. They said that the respondents had taken all their movable property, including their motor vehicle and furniture. They argued that sale of their primary residence was contrary to public policy and s 28 of the Constitution. They should be given a chance to settle the debt and exhaust all avenues available to them before their home was sold.

The bank argued that the application was out of time. The sale was proper. The applicants had never suggested that the Sheriff had not complied with the provisions of r 348A(2)(a) in that he failed to communicate to the Secretary for Housing the fact of the sale, nor that the sale had been improperly conducted.

Held: (1) objections challenging a sale in execution may be raised on any impropriety that may have occurred from the moment of commencement of execution of the order given against the judgment debtor to the time of the judicial sale, including its conduct. The objections are not limited to the actual conduct of the judicial sale. The Sheriff is expected to hear the objections and render a ruling. A party aggrieved by the decision of the Sheriff may apply to the court to set it aside in terms of r 359(8).

(2) Where a dwelling is attached, r 348A(2) a) provides that when the Sheriff receives documents and particulars relating to the attachment, he shall forthwith send written notice to the Secretary for Housing indicating that the dwelling has been attached and is to be sold in execution. Here, though, the bank had a mortgage bond over the property and instituted foreclosure proceedings when the applicants failed to pay the debt. Rule 348A is applicable where the Sheriff attaches a “dwelling” in circumstances where the debt sought to be recovered is not linked to the dwelling concerned. It applies where the dwelling attached is not under mortgage. The rule is not applicable to foreclosure proceedings. Where a person approaches a bank for a loan and mortgages his house as security for a debt, he cannot, when he defaults, plead that his house is his sole dwelling. A person who puts his home up as security for loan and does so being well aware of the fact that, should he fail to service the loan, his house will be up for sale cannot complain when the bank attaches his home. Such a person takes a risk which he should live with. To allow litigants in foreclosure proceedings to hide behind the fact that the mortgaged house is a family dwelling would amount to home seekers getting mortgages without security. This would naturally have a negative effect on the mortgage lenders as they will not be able to recover their investments. They will no longer be keen to give mortgages to home seekers. There is nothing that is contrary to public policy about two parties entering into a loan agreement and a mortgagor calling up loaned monies and foreclosing on the mortgage bond. This arrangement remains purely a commercial transaction and is legal.

 

 

Practice and procedure – heads of argument – what they should contain – should be clear and precise – not necessary to contain every fact and argument

Practice and procedure – judgment – correction, rescission or variation of judgment granted in error in absence of affected party – no time limits specified – applicant for rescission should nonetheless act expeditiously in making application – should also explain reason for delay

 

Milton Gardens Assn & Anor v Mvembe & Ors HH-94-16 (Dube J) (Judgment delivered 3 February 2016)

 

Heads of argument are meant to be simply that. Their purpose is to set out briefly the main heads of argument, not to be a platform to set out fully one’s arguments. They are required to be drawn up in a clear and concise manner. It is inappropriate to file voluminous papers and expect the other party, as well the court, to plough through such papers and still be able to make sense out of them. It is an abuse of court process for the heads to contain every fact and argument. This style of drafting heads of argument and conduct ought to be discouraged. The eventual consequence of such conduct results in delays in delivery of the judgment concerned. Litigants who bombard the court with voluminous papers and information deserve to be penalized even if they are eventually successful in the litigation. Where they lose the application, they deserve to be mulcted with an order of costs on a punitive scale.

Rule 449 of the High Court Rules provides for the correction, rescission and variation of a judgment or order granted in error in the absence of a party affected by the judgment or order. The rule does not set time frames within which rescission should be sought, but it is required that an r 449 application be made expeditiously. The nature of the application envisaged under r 449 is one where an applicant is expected to take expeditious steps to vacate an obviously erroneous order. It was not envisaged that a party who is aware of an erroneous order would delay in bringing the application, hence the lack of a provision setting out the time frames within which the application is required to be brought. A party who delays in taking remedial measures to correct an order erroneously sought or granted may be taken to have acquiesced to the order. The court will only exercise its discretion favourably towards such a party, who, through no fault of his, was not afforded an opportunity to oppose an order and who, upon being aware of the order, takes expeditious steps to correct the order. Whilst the rules do not require that a party who has delayed in bringing the application make an application for condonation of the late filing of the application, a statement explaining the circumstances surrounding the delay is pertinent and should form part of his application. The purpose of this is to equip the court in assessing the reasonableness of the delay. Failure to do so will result in the application being thrown out.

 

 

Practice and procedure – judgment – rescission – grounds for – judgment erroneously granted in absence of applicant for rescission – meaning of absence – includes deliberate and intentional not to appear or to file papers timeously even though aware of proceedings

 

Capital Brake Co (Pvt) Ltd & Anor v Benatar HH-34-16 (Chigumba J) (Judgment delivered 13 January 2016)

 

Under r 449 of the High Court Rules, a judgment may be corrected, varied or rescinded on the grounds, inter alia, that it was erroneously sought or erroneously granted in the absence of any party affected thereby. The purpose of the rule is to enable the court to revisit its orders and judgments to correct or set aside any orders or judgments given in error where to allow such to stand on the excuse that the court is functus officio would result in an injustice and would destroy the basis on which the justice system rests. It must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way. The rule goes beyond the ambit of mere formal, technical and clerical errors and may include the substance of the error or judgment. “Absence”, for the purposes of r 449, refers not only to physical absence as in not being before the court or judge when judgment is granted, but to absence in terms of the rules, as in being deliberately and intentionally not in attendance despite service of the papers in terms of the rules, or despite notice that an order is being sought, in default. “Absence” also means that a litigant was not before the court when the judgment was granted, as in not having filed the requisite papers, in time, despite having notice of intention of obtaining judgment. Rule 449 does not apply where a party or his legal practitioner is aware of the proceedings and deliberately opts not to appear or to file the necessary papers within the prescribed time period.

 

 

Practice and procedure – judgment – superannuation of – when judgment becomes superannuated – need for judgment to be revived before may be executed on

 

Nzara & Ors v Kashumba NO & Ors HH-151-16 (Mafusire J) (Judgment delivered 24 February 2016)

 

In terms of Part IV of the Prescription Act [Chapter 8: 11], a judgment debt becomes extinct by prescription after the lapse of 30 years. But prescription is irrelevant here. In the context of court judgments, prescription and superannuation may be cognates. But they are different concepts. Once it has run its course, prescription constitutes an absolute bar to claim. On the other hand, superannuation refers to something that may just be too old to be used. It still can be revived and be used.

The Roman-Dutch law provided for the superannuation of judgments. In Holland, in the 16th century, there had developed, alongside prescription, a rule of practice whereby the executability of a judgment debt would lapse after a certain period. According to that rule, the judgment became superannuated and execution could not be carried into effect unless the judgment was revived. The ratio of the superannuation rule was to prevent a judgment debtor being taken by surprise when the plaintiff suddenly executed some years later. The rule was introduced for the benefit of a debtor, who, however, could waive it. The period of superannuation was 3 years. Our common law, being Roman-Dutch law, the rule applies in this country. Our rules of court, in r 324, provide that no writ of execution shall be issued after the judgment has become superannuated, unless that judgment has first been revived.

The superannuation rule may not apply to all judgments. For example, in matrimonial proceedings, once an order of annulment, or decree of divorce, is granted, the result is that the putative or pre-subsisting marriage immediately terminates. On the other hand, the superannuation rule would apply to a judgment for the transfer of an immovable property which involves the delivery up or transmission of real rights from one person to another.

 

 

Practice and procedure – parties – District Development Fund – proceedings against – Fund not a legal persona – need to sue Minister of Local Government

 

Masiya v District Development Fund & Anor HH-119-16 (Charewa J) (Judgment delivered 17 February 2016)

 

See below, under PRESCRIPTION (Extinctive).

 

 

Practice and procedure – parties – trust – not a legal person – may nonetheless through a trustee sue and be sued in its own name

 

Musemwa & Ors v Gwinyai Family Trust & Ors HH-136-16 (Dube J) (Judgment delivered 14 January 2016)

 

See above, under AGENT (Liability of).

 

 

Practice and procedure – pre-trial conference – failure by party to attend – judge striking out defence and plea – judgment given in default – remedies open to defaulting party – must apply for rescission of judgment – not competent to apply for reinstatement of plea and defence

 

Jonas v Mabwe HH-72-16 (Chigumba J) (Judgment delivered 22 January 2016)

 

The applicant’s plea was struck out at the pre-trial conference due to the non-appearance of his legal practitioner, who averred that he had entered the wrong time in his diary. The applicant sought the reinstatement of his plea and of his defence to the action, which he averred to be bona fide. The respondent said that the applicant did not indicate the procedural basis on which his application was founded, and that the proper course of action would be to seek an order for rescission of default judgment, as opposed to reinstatement of plea and defence. The respondent contended that in terms of r 182(11) of the High Court Rules, the default which the court takes into consideration is that of the litigating party, not that of his legal practitioner. Therefore the lawyer’s dilatoriness in attending late at the pre-trial conference was irrelevant to the question of default, as it was not his attendance at the pre-trial conference which was mandatory in terms of the rules, but that of the applicant. The applicant’s lawyer stated that he had intended to apply to excuse the applicant’s failure to attend personally, as the applicant resided outside Zimbabwe.

Held: under r 182(11), the pre-trial conference judge has a discretion to dismiss a party’s claim or strike out his defence, or make some other appropriate order, where the party fails to comply with any direction given by the judge as prescribed in r 182, or where the party fails to comply with a notice issued in terms of r 182. In this case, there was no direction issued in terms of r 182, but the failure by the applicant to attend the pre-trial conference at the set down date and time constituted a failure to comply with a notice given in terms of r 182(4). That failure constituted a default on the applicant’s part. The striking out of a defence for failure to attend a pre-trial conference constitutes a judgment given in default. The applicant ought to have elected to approach the court using any one of the three methods of seeking rescission. All three methods of rescission of judgment require that the necessary averments be set out in the founding affidavit, which in this case they were not. The relief sought was thus incompetent. Had the applicant and his legal practitioner applied their minds to the rules, they would have brought an appropriate application, buttressed by the necessary averments.

 

 

Practice and procedure – provisional sentence – requirement for plaintiff to hold a “liquid document” – requirements for document to be accepted as a liquid document

 

Maseko v Ndlovu HB-20-16 (Mathonsi J) (Judgment delivered 11 February 2016)

 

In order to obtain provisional sentence, a plaintiff must hold a valid acknowledgment of debt, commonly known as a “liquid document”. The term is not defined in the High Court Rules, but the following principles have emerged from the decided cases:

  • any clear, unequivocal and unambiguous written promise to pay a debt constitutes a liquid document;
  • a liquid document which, on the face of it, speaks unequivocally, must have the story of the transaction behind it as an investigation into the story may show that the defendant is not liable in terms of the liquid document
  • if the court has to go behind the liquid document the onus is on the defendant to show that if evidence is heard the probabilities are that he would succeed;
  • where the legality of a document is called into question, as when the document may be tainted with illegality, the court has to decide whether to let the loss lie where it falls or to relax the rule against illegal agreements in order to do justice between the parties. Such an inquiry cannot be made at the provisional sentence stage; it can only be determined at the trial of the matter;
  • where the defendant denies that the signature on a document is his or that of his agent, the onus is on the plaintiff to prove that the signature is the defendant’s;
  • it would be a travesty of justice if the court were to grant provisional sentence on the strength of vague, confusing and unclear documents whose authenticity has been questioned.

 

 

Practice and procedure – striking out – application to strike out unnecessary parts of pleadings – form of application – need for applicant to show prejudice in conduct of claim or defence if material not struck out

 

Hepker v Woncon Invstms (Pvt) Ltd & Ors HH-19-16 (Musakwa J) (Judgment delivered 13 January 2016)

 

The plaintiff (respondent) issued an endorsed summons in terms of r 13() of the High Court Rules. The summons was accompanied by a declaration. Appearance to defend was then filed on behalf of the defendants (applicants). Subsequently they requested for further particulars to which the plaintiff responded. They again sought further and better particulars to which the plaintiff responded. They then wrote to the plaintiff, pointing out that the filing of a declaration was superfluous since he had opted to file an endorsed summons. They intimated an intention to apply for the striking out of those parts of the summons that were inconsistent with the particulars furnished. The plaintiff replied that there was nothing to prevent the defendants from pleading and filed a notice to plead and intention to bar. The defendants then filed an application to strike out. The application to strike out was in the form of a statement which contended that the plaintiff’s declaration should be struck out as being superfluous.

Held: an application to strike out should be in the form of a court application or chamber application, as required by r 226. The form of such application is stipulated in r 227. An application to strike out will not be granted unless the applicant shows that it will be prejudiced in the conduct of its claim or defence. While the plaintiff needlessly filed a declaration accompanying an endorsed summons, the defendants had not led evidence showing in what way it they had been prejudiced in the conduct of their defence. That the defendants would needlessly incur costs in pleading to the additional document was neither here nor there. The plaintiff would, in the event of succeeding in his claim, be restricted to costs of preparation of the endorsed summons only.

 

 

Prescription – extinctive – cause of action – when arises – delictual claim arising out of motor vehicle accident – plaintiff able to ascertain names of potential defendants within short period after accident – criminal proceedings against defendants – no need for plaintiff to wait until completion of such proceedings

Prescription – interruption of – notice of intention to proceed in terms of State Liabilities Act – not legal process – does not interrupt running of prescription

 

Masiya v District Development Fund & Anor HH-119-16 (Charewa J) (Judgment delivered 17 February 2016)

 

The plaintiff claimed damages from the defendants. The second defendant was an employee of the first (the DDF) and was responsible for a road accident in which the plaintiff’s wife was killed. A little over a year later, the second defendant was convicted of culpable homicide. Summons was issued 2 years and 2 months after the accident. The defendants raised 3 special pleas: (a) the first defendant was not a legal persona capable of suing and being sued; (b) the citation of the second defendant was improper in terms of the State Liabilities Act, as he was being sued in his official rather than his personal capacity; and (c) the matter had prescribed. It was argued that the first defendant was a trust and thus was not a legal persona. The Minister should have been cited, in which case the provisions of s 3 of the State Liabilities Act would apply. In respect of prescription, the defendants argued that the cause of action arose on the date of the accident, that being the date when the plaintiff became aware that a wrongful act had been committed against him. The notice of intention to sue given just over 2 years after the accident was not process for purposes of interrupting prescription in terms of s 6(4) of the Prescription Act [Chapter 8:11]. The plaintiff argued that the cause of action only arose either on the conviction of the second defendant for culpable homicide or a year later, he became aware of the first defendant’s identity. He contended that, though he knew that his wife had died in an accident, he was not aware who actually caused the accident and how until the time of the second defendant’s conviction for culpable homicide. This was because there were two accused persons and he could only proceed against one or the other at the conclusion of the prosecution and conviction. Further, he was not aware that the first defendant was the second defendant’s employer and could be sued for vicarious liability until he was so advised by his lawyers.

Held: (1) only legal persons may be brought to court. If such a person is constituted by statute, the relevant Act of Parliament must vest legal persona on that person must make provision for it to operate as a legal persona. Consequently, for summons to have force and effect it must be issued against a legal person with capacity to sue and be sued. The DDF was established by the District Development Fund Act [Chapter 29:06]. Section 3(2) of the Act vests in the Minister for Local Government, Rural and Urban Development the sole management, control and use of the Fund as the trustee, while s 4 also vests the control of the Fund’s assets, liabilities and expenditure in the Minister. The development of areas and application of the fund is also vested in the Minister in terms of ss 5 and 6. The DDF is a fund set up for a particular purpose and managed by a legal person, who is responsible for its assets and liabilities, and has the authority to sue and be sued with regard thereto. There is no provision in the Act creating corporate identity or legal persona for the DDF, which is thus not a self-administering institution which cannot acquire rights and is not capable of suing or being sued because the relevant Act has not made provision for it to act as a legal persona.

(2) The second defendant was being sued for his own act of negligence and there was no reason to sue him as an officer of the DDF.

(3) A debt does not become due until the claimant is aware or ought reasonably to have become aware, of the facts from which the debt arose. These “facts” have generally been interpreted to mean the material or broad facts from which a cause of action arises or all the facts which a plaintiff must prove to obtain judgment in his favour. For loss, injury or death claims, these facts relate to the damage and loss suffered, how such loss or damage was caused and the wrongful conduct and negligence from which the loss flowed. The plaintiff will be deemed to have such knowledge if he is aware of the cause of damage or loss and that he has been wronged by the defendant, even if he may not know all the details of the wrongdoing. It is not necessary or required that plaintiff should have specific knowledge of the actual details of how he was wronged. The onus is on the defendant to prove that, within three years before the date of service of summons, the plaintiff had or ought to have had knowledge of the facts on which the debt arose. Wrong legal advice and ignorance of the law are irrelevant.

The occurrence of the accident itself and the circumstances thereof alerts a plaintiff of the cause of his action. In any event, s 16 of the Prescription Act requires that, by exercising reasonable care, the plaintiff ought, within a few days of the accident, to have discovered how the accident occurred and who the suspected culprits were.

Whether the plaintiff’s wife died as a result of the negligence and wrong doing of one or other of the two persons charged with her death was immaterial to the issue of the plaintiff’s awareness of the facts giving rise to his claim. What mattered was that, at the very least, at the time the two drivers collided, one or other of them caused the accident, and upon being informed that his wife had died in an accident, the plaintiff became aware of the cause of his wife’s death.

The conviction of a person is not necessary to ground awareness of the plaintiff’s rights or claim. Delictual liability is not predicated on a conviction for any offence. In any event, the plaintiff waited for over a year from the conviction before issuing summons.

(3) A notice of intention to proceed in terms of the State Liabilities Act is not legal process for the purposes of the Prescription Act.

 

 

 

Property and real rights – immovable property – property subject to mortgage – mortgagee’s right to foreclose if debt not serviced – mortgagor not entitled to stay on grounds that dwelling house is being attached

 

Nyadindu & Anor v Barclays Bank of Zimbabwe Ltd & Ors HH-135-16 (Dube J) (Judgment delivered 17 February 2016)

 

See above, under PRACTICE AND PROCEDURE (Execution – sale in execution).

 

 

Revenue and public finance – income tax – exemptions from income tax – amount received by or accrued to or in favour of an employee participating in approved employee share ownership trust – requirements for such trust – dominant purpose or effect – must be for employees to share in the profits or income of company – trust created to ensure compliance by employer with indigenisation legislation – not constituting approved employee share ownership trust

 

Old Mutual Zimbabwe Ltd v C-G,ZRA & Anor HH-143-16 (Kudya J) (Judgment delivred 24 February 2-16)

 

In order to comply with the objectives of the Indigenisation and Economic Empowerment Act [Chapter 14:33], the applicant company created its Indigenisation Employees Share Trust. The trust had two main objectives: (a) to satisfy the requirements of the indigenisation legislation of moving majority shares from the control of foreign shareholders to local control; and (b) as a skills retention measure, wherein the employee would hold a stake in the company and earn income from the shares allocated to him or her. The trust, together with additional trusts for the benefit of senior and former employees, a youth fund and a special purpose company (all set up by the applicant), were to hold 25% of the issued share capital of the applicant.

In order to avoid tax liability for the employees and for itself, the applicant sought to have the trust treated as an approved employee share ownership trust (AESOT), as defined in s 2, as read with s 15(2)(jj), and para 19 of the Third Schedule to the Income Tax Act [Chapter 23:06]. The respondent determined that it lacked the authority to approve the scheme as an AESOT and that the scheme, on the information supplied, failed to meet the requirements of s 2(a) and (b) and especially of 2(b)(ii) of the definition of an AESOT in the Act. The scheme was disqualified under s 2(b)(ii) on the basis of the ownership structure of the trust shares. The applicant sought to have the matter brought on review.

Held: (1) the respondents were not empowered by law to approve an AESOT. No administrative authority is empowered by any law to grant such an approval. In any event, no such approval is required. An AESOT is merely an appellation described and defined in s 2 of the Act. The use of the term “approved” does not indicate that approval is required. The role of the Minister for Indigenisation is not to approve an AESOT but to certify compliance of indigenisation plans with the requirements of the indigenisation legislation. He is certainly not authorised to approve an AESOT.

(2) The requirements for an AESOT are:

  • the existence of a notarised trust deed, and
  • whose dominant purpose or dominant effect is for employees to share in the profits or income of the company emanating from trading operations and share dealings of the company, and
  • in which the shares are held in trust for the employees; and
  • either –
  • any contributions of the employees or profits or income from which disbursements come are pooled or
  • each employee has a right or interest in the shares held in trust for him capable of being sold to or bought by the trust.

Requirement (a) was satisfied, but (b) was not. The dominant purpose for forming the trust was not for the employees to share in the profits or income of the applicant; rather, it was for the applicant to comply with the requirements of the indigenisation legislation. This was further confirmed by the inherent fear expressed by the applicant that the failure to recognize the trust as an AESOT jeopardised the approved indigenisation plan. Again, the expressed dominant result of the formation of the trust was to retain staff in the applicant and its subsidiaries by giving them a stake in the company. With respect to requirement (c), there were no shares held in trust for the employees, as shown by the absence of any share certificates in the names of the trustees and the purported direct payment of dividends by the applicant to the prospective beneficiaries rather than to the trust. In respect of (d)(i), there was no evidence that any such income was received by or accrued to the trust or that any dividend income was pooled in the trust. Rather, the evidence was that the applicant paid the dividends directly to each employee and withheld income tax which it remitted to the respondents. In respect of (d)(ii), the applicant failed to establish as a matter of law that each employee, including the bad leavers, was capable of selling his allotment to the trust or that the trust could buy his allotment from him before the share vested. In addition, the applicant failed to establish on a balance of probabilities that in the two years between the award date and the first date of vesting or for that matter even until the date of the determination any shares had been bought from any employee by the trust or sold to the trust by any employee. It thus failed to establish the factual existence of sales and acquisitions before the date of vesting between the trust and any one of the employees.

Accordingly, the Commissioner was correct in saying that he was not satisfied that the arrangement in the trust deed constituted an AESOT as defined.

 

 

Trust – nature of – not a legal persona – can only be represented by trustee – trustee may sue or be sued in name of trust

 

Musemwa & Ors v Gwinyai Family Trust & Ors HH-136-16 (Dube J) (Judgment delivered 14 January 2016)

 

See above, under AGENT (Liability of).

Zimbabwe Rule of Law Journal | Volume 1, Issue 1 February 2017

Download: Zimbabwe Rule of Law Journal Download

FOREWORD

I am delighted to welcome the inaugural issue of the Zimbabwe Rule of Law Journal. The idea of establishing this Rule of Law Journal has largely been influenced by existing demand in the legal fraternity for a peer reviewed law journal with a national scope.

The aim of this Zimbabwe Rule of Law Journal is to make a significant contribution towards knowledge creation, raising general awareness on aspects of the law and instill informed scholarly debates. The journal is a joint endeavor between the International Commission of Jurists Africa Regional Programme and the Centre for Applied Legal Research (CALR). This journal is composed of articles and papers written by academics, legal practitioners and law students.

The rule of law is a foundational value and principle of our Constitution as set out in section 3. The Preamble of the Constitution recognises the need to entrench the rule of law because it underpins democratic governance. The rule of law is the means by which fundamental human rights are protected. It is therefore absolutely necessary that there be a way in which the legal profession is enabled to play its role in ensuring that the rule of law is maintained and promoted. This first issue contains articles on house demolitions in violation of s 74 of the Constitution, the right of access to the voters’ roll, fair labour standards, the justice delivery mandate of the Judicial Service Commission, the right to life and applicable criminal defences, employment of persons with disabilities, accountability of persons in high offices and public statements prejudicial to the State.

It is my hope that this journal will play an important role in nation building. It will offer information on rule of law issues and disseminate the jurisprudence of our courts and international and regional courts on this very vital subject. It will hopefully introduce, through the contributions by lawyers and other practitioners of their professional expertise, to the comparative and international dimensions of the rule of law principle and the comprehensive developments in this area. In this way this journal will seek to protect and promote the rule of law through critical analysis of judgments of the courts.

 

 

The current Constitution of Zimbabwe was adopted in 2013. Many of its provisions require interpretation by the courts in order to build a body of jurisprudence for the future. It can be said that with the coming into force of the 2013 Constitution and establishment of the Constitutional Court, the process of balancing the Court’s functional and institutional establishment has just began. There is a need to strike a proper balance between constitutional functions and the concrete power of the Court and between the objects and subjects of constitutional control. This journal can, with the contribution of many professionals, become a permanent, continual and systemic source of assessment of the work of our courts and provide invaluable insights into the working of our system of governance.

 

 

I wish to thank the many individuals who have made it possible for this Journal to be produced and congratulate those who have prepared the articles that make up this first issue. I wish to apologize in advance for any inadequacies that may be picked up in this issue. It is the first and all efforts will not be spared to improve subsequent issues in all respects.

 

 

Harare, February 2017

 

Justice MH Chinhengo, Chief Editor

 

ACCESSING THE NATIONAL VOTERS’ ROLL THROUGH THE RIGHT OF ACCESS TO INFORMATION IN ZIMBABWE

 

 

 

Justice Alfred Mavedzenge1

 

 

 

 

Abstract

 

The call for electoral reforms in Zimbabwe has been at the centre of deliberations on political governance and democratic reform in the country. The Constitution2 prescribes minimum standards and principles to which the conduct of elections in Zimbabwe must adhere. Zimbabwe is also bound by the SADC Principles and Guidelines Governing Democratic Elections which should give effect to amendments to the Electoral Act3   and related legislation.4

Amongst the key changes5 which must be made to the Electoral Act are those giving the Zimbabwe Electoral Commission (ZEC) the independence to fundraise for its operations; the independence to decide on foreign observer missions without interference from the sitting government; allowing diaspora Zimbabweans to cast their vote in elections; and imposing certain professional standards6 to be applied by ZEC when recruiting staff.

 

The main opposition party, Movement for Democratic Change led by Morgan Tsvangirai, has collaborated with other opposition parties7 to craft a document titled the National Electoral Reform Agenda, which details the reforms required to give effect to the standards and principles prescribed by the Constitution. However, the issue of public access to the national

 

 

1 By Justice Alfred Mavedzenge, a Doctoral candidate in the Department of Public law at the University of Cape Town and a practising constitutional lawyer in Zimbabwe.

2 2013. See in particular sections 155, 156 and 158

3 [Chapter 2:13] of Zimbabwe

4 Including the legislation governing freedom of the media, freedom of expression and the freedom of assembly.

5 This information is gleaned from unpublished position papers presented by various Zimbabwean civil society organisations and academics. Some of the information can be obtained from https://erczim.org/?cat=36 (Accessed on 29 July 2016)

6 To protect the independence and integrity of ZEC. It has been argued that these standards should, amongst other stipula- tions, prohibit the recruitment of serving State security agents to work within ZEC as this may undermine the independence of the Commission

7 Which include the MDC led by Professor Welshman Ncube, Transform Zimbabwe, the African Democratic Party and Progres- sive Democrats of Zimbabwe.

 

 

 

 

 

 

voters’ roll has attracted much attention as signified by the court applications8   made to compel ZEC to release the national voters’ roll to the public. The national voter’s roll should be available to the public as it is an existing constitutional right, which the legislature are obliged to give effect to through amendments to the Electoral Act.

 

 

This paper argues that the issue as to whether citizens are entitled to access the national voter’s roll has been settled in the Constitution which requires all State institutions to exercise public power and discharge their functions in a transparent and accountable manner as enforced through the right of access to information, enshrined in s 62. This right entitles citizens to request any record of information held by the State which is obliged to provide the requested information if that information is needed by the requester for purposes of fostering public accountability.

 

 

ZEC has the duty to provide citizens with access to the national voters’ roll because it must be accountable and transparent regarding the state and condition of the national voters’ roll. Additionally, the State is obliged to provide access to the requested record if the information is needed by the requester to protect or exercise any of the rights entitled to the citizen by law. Citizens have the right to a free and fair election as interpreted in the context of the entrenched values of transparency and accountability which include the right to hold ZEC accountable for the manner in which elections are organised. To exercise this right, the citizens can request access to the national voters’ roll by invoking the right of access to information held by the State.

 

 

Introduction

The Constitution of Zimbabwe9 , s 62 entrenches the right of access to information and provides as follows:

 

8 These include Justice Mavedzenge v Chairperson of the Zimbabwe Electoral Commission HC 4014/14

9 Constitution of Zimbabwe, Amendment No 20, 2013

 

 

 

 

 

“Every Zimbabwean citizen or permanent resident, including juristic persons and the Zimbabwean media, has the right of access to any information held by the State or by any institution or agency of government at every level, in so far as the information is required for the exercise of public accountability.” 10

 

 

In addition, the Constitution provides as follows:

 

“Every person, including the Zimbabwean media, has the right of access to any information held by any person, including the State, in so far as the information is required for the exercise or protection of a right.” 11

 

 

This paper argues that the right to access any information held by the State includes the constitutional right of citizens and permanent residents of Zimbabwe to access the national voters’ roll in both electronic and hard copy format. This argument is predicated on the fact that access to the national voters’ roll is necessary for citizens to hold the ZEC accountable regarding how it discharges its constitutional duty of managing the national voters’ roll and related registers. This argument is also based on the fact that citizens require access to the national voters’ roll for them to be able to exercise their political rights, particularly the right to a free and fair election.

 

 

This paper is divided into three parts. In Part I, the nature and object of the right of access to information held by the State is discussed and it is sought to show that the purpose of the right of access to information is to give effect to the constitutional values of transparency and accountability. The discussion is also aimed at showing that the purpose of this right is to facilitate the protection and enforcement of other legal rights to which citizens are entitled.

 

 

In Part II, the paper discusses the application of the right of access to information held by

 

10 See s 62 (1) ibid.

11 See s 62 (2) ibid.

 

 

 

 

 

 

the State to show that ZEC is an institution of the State and is therefore bound by the right of access to information.

 

 

In Part III, the paper discusses the scope and meaning of this right in order to show that it includes the right of the citizens to access the national voters’ roll. The paper discusses the two possible constitutional grounds, within the scope of the right of access to information, upon which citizens can claim access to the national voters’ roll. It is argued that the right to a free and fair election, as opposed to the right to participate in a free and fair election, includes the right to know that the elections will be or have been free and fair and that right can only be exercised if one has access to the national voters’ roll.

 

 

Reference will be made to existing literature on access to information as a human right. The paper also refers to comparative foreign law because a wide or elaborate right of access to information is still a new right in Zimbabwe12   and the local courts are yet to develop adequate jurisprudence in this area. Reference to relevant foreign law is permitted by the Constitution.13

 

Much of the foreign case law referred to in this paper is drawn from the jurisprudence of the Constitutional Court of South Africa and the Supreme Court of Kenya because both countries can be regarded as comparable jurisdictions in relation to Zimbabwe. The Constitution of South Africa14 and that of Kenya15 provide for the right to access information in a context where transparency, accountability and free and fair elections are entrenched as constitutional values. In Zimbabwe, constitutional rights are to be interpreted in a manner which upholds,

 

 

12 The right of access to information was an implied right under the auspice of the right to freedom of expression enshrined in s 20 of the former Constitution of Zimbabwe, 1979. However the scope of the right was not as widely formulated as it exists in section 62 of the current Constitution.

13 Section 46 (1) (e provides that, ‘when interpreting this Chapter [the Declaration of Rights], a court, tribunal, forum or body may consider relevant foreign law.’

14 1996 s 32

15 2010 s 35

 

 

 

 

 

resonates and promote these values16   and, as Zimbabwean courts develop their own jurisprudence on the right of access to information, they ought to be persuaded by how the courts in Kenya and South Africa have interpreted this right to give effect to the values of transparency, accountability and free and fair elections.

 

 

Another comparable point between Kenya and South Africa is the creation of independent electoral bodies17 with a constitutional mandate to ensure the realisation of certain political rights entrenched in the Bill of Rights, including the right to vote in a free and fair election.18

The Constitution of Zimbabwe creates ZEC to perform a similar constitutional function19 and Zimbabwean courts, therefore, ought to be persuaded to hold their electoral management bodies accountable to honour the rights enshrined in the Constitution’s Bill of Rights. Thus, there are sufficient constitutional similarities between Zimbabwe, Kenya and South Africa which make it possible to refer to those jurisprudences regarding comparative foreign law to advance the arguments made in this paper.

 

Part I: Nature and object of the right of access to information held by the State Jagwanth and Calland20 have described the right of access to information as a leverage right, whose purpose is, on one hand, to facilitate the enforcement of public accountability and, on the other hand, the enforcement of other rights. This notion has been endorsed by various other authors, for instance, Currie and de Wal argue that the right to access information originates from the idea that, in an open and democratic society, government should be transparent and accountable for its actions and decisions, and therefore the public must have access to the relevant information in order to assess the rationality of Government decisions.21   In his commentary on the South African Bill of Rights, Devenish asserts that

 

16 See ss 3 and 46 (1) (b). Also see Mudzuru v Ministry of Justice, Legal & Parliamentary Affairs [2015] ZWCC 12 at 26

17 These are the Independent Electoral and Boundaries Commission of Kenya and the Electoral Commission of South Africa

18 See section 19 of the Constitution of South Africa, 1996 and Article 38 of the Constitution of Kenya, 2010

19 See sections 238 and 239 of the Constitution of Zimbabwe, 2013

20 Saras Jagwanth and Richard Calland.’The Right to Information as a Leverage Right’. University of Cape Town (2002) at 3

21 Iian Currie and Johan De Wal. The Bill of Rights Handbook 5th Ed (2005) at 684

 

 

 

 

 

 

the right of access to information is predicated on the need for accountability.22 Diallo and Calland23 posit that the right of access to information serves different democratic objectives which include holding government to account and increasing citizen participation in State or public affairs.

 

 

The right of access to information is perceived as a leverage right which gives effect to the values of transparency and accountability because it allows citizens to access certain useful information held by the State; to scrutinize the lawfulness, propriety and rationality of decisions taken;24 and to hold their leaders accountable. Furthermore, the right of access to information gives the citizens access to certain information which they can use to assess and establish whether or not their rights have been violated or are being threatened.25   Hence the right of access to information is perceived as a right which is meant to give effect to the idea of open and transparent government, as well as facilitate the exercise of other rights.

 

 

The notion that the right of access to information is purposed to foster transparency and State accountability has also been endorsed in South Africa,26 for instance, in the seminal case of Brümmer v Minister for Social Development27   where the Constitutional Court of South Africa held as follows:

The importance of this right … in a country which is founded on values of accountability, responsiveness and openness, cannot be gainsaid. To give effect to these founding values, the public must have access to information held by the State. Indeed one of the basic values and principles governing public administration is transparency. And the Constitution demands that transparency must be fostered by providing the public with

timely, accessible and accurate information”

 

22 Gorge Devenish. A Commentary of the South Africa Bill of Rights (1999) at 446

23 Fatima Diallo and Richard Calland (Ed). Access to Information in Africa: Law, Culture and Practice (2013) at 21

24 See Note 23 at 685

25 See Note 23 above

26 See ss 1 (d) and 32 of the Constitution of South Africa, 1996

27 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) at 62.

 

 

 

 

 

More recently, the South African Constitutional Court maintained the same stance in President of the Republic of South Africa v M & G Media Ltd,28 , when it held that:

“The constitutional guarantee of the right of access to information held by the state gives effect to accountability, responsiveness and openness, as founding values of our constitutional democracy. It is impossible to hold accountable a government that operates in secrecy. The right of access to information is also crucial to the realisation of other rights in the Bill of Rights. The right to receive or impart information or ideas, for example, is dependent on it. In a democratic society such as our own, the effective exercise of the right to vote also depends on the right of access to information. For without access to information, the ability of citizens to make responsible political decisions and participate meaningfully in public life is undermined.”

 

 

Similarly, in De Lange v Eskom Holdings,29 the South African High Court had the occasion to interpret the significance and purpose of the right of access to information held by the State where it held as follows:

“Various authorities and our higher courts have consistently held that the purpose of the right of access to information is to subordinate the organs of the state to a new regimen of openness and fair dealing with the public.”

 

Thus, the South African jurisprudence on the interpretation of the right of access to information shows that the judiciary has taken the view that the purpose of this right is to guarantee citizens’ access to information held by Government as a means of compelling the State to operate transparently and to be accountable. The Court also endorses this right to provide citizens with access to certain information necessary for them to exercise their other rights as transparency and accountability are entrenched as constitutional values30

 

 

28 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC) at 10

29 2012 (1) SA 280 (GSJ); [2012] 1 All SA 543 (GSJ); 2012 (5) BCLR 502 (GSJ) at 28

30 See s 1 (d) of the Constitution of South Africa, 1996

 

 

 

 

 

 

to be interpreted in a manner which upholds and promotes those values.31   Zimbabwean courts ought to be persuaded by this stance due to the entrenchment of similar values in the Constitution of Zimbabwe.

 

 

That the right of access to information is a leverage right, predicated on the need to enforce public accountability and other rights, is unequivocally endorsed by the Constitution of Zimbabwe, s 62 which allows that the right of access to information held by the State is guaranteed for two purposes. First, access to State information is guaranteed in order to foster public accountability. Section 62 (1) entitles citizens and permanent residents as well as Zimbabwean media to

“… any information held by the State or by any institution or agency of government at every level, in so far as the information is required in the interests of public accountability.”

 

 

Second, through section 62 (2) the notion that the right of access to information is a leverage right to facilitate the enforcement of other rights is established, and entitles Zimbabweans to any information held by the State, “in so far as the information is required for the exercise or protection of a right.”

 

The term ‘right’ is not only limited to constitutionally entrenched rights. Section 47 indicates that the entrenchment of the Declaration of Rights “does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with this Constitution”. Therefore the term ‘right’, as used in section 62 (2) should be interpreted broadly to include any right recognised under the law applicable in Zimbabwe, as long as the exercise of that right will not infringe or violate any provision of the Constitution. Lovemore Madhuku observes that law in Zimbabwe includes legislation, common law and customary law32 and, although this observation was made prior to the enactment of

 

31 See section 39 (1) (a) of the Constitution of South Africa, 1996

32 Lovemore Madhuku. An Introduction to Zimbabwean Law (2010) at 13-25

 

 

 

 

 

the 2013 Constitution, his views are still relevant as signified by section 332. Therefore the term ‘any right’ include those rights conferred upon the citizens by any legislation, common law, customary law or international law that is applicable in Zimbabwe.

 

 

The foregoing discussion demonstrates that, in terms of the Constitution of Zimbabwe, citizens have a right to access any information held by the State if they need that information for purposes of enforcing government transparency and accountability, or for purposes of enforcing any legal right. This paper contends that access to the national voters’ roll can be justified on both grounds and therefore fits within the ambit of the right to access information, as enshrined in s 62.

 

 

Part II: Application of the right of access to information held by the State

 

In order to understand why and how access to the national voters’ roll can be justified as part of the right of access to information, it is important to understand certain aspects regarding how the right of access to information applies in terms of the Constitution of Zimbabwe. First, the Declaration of Rights binds the State and all its agencies, including those that are in the executive, legislative and judicial branch of Government, as defined by the constitution.33

In addition, the Constitution prescribes that the State and all the institutions and agencies of government at every level must respect, protect, promote and fulfil the rights enshrined in the Declaration of Rights.34

 

The Constitution establishes the ZEC as an independent constitutional body35   responsible for the proper custody of the national voters’ roll and related registers.36   Therefore, ZEC is an institution of the State. It has been argued elsewhere37   that, by virtue of being an

 

33 See s 45 (1) of the Constitution of Zimbabwe, 2013

34 See s 44 ibid.

35 See ss 232 (a) and 238 ibid.

36 See s 239 (e) ibid.

37 In the opposing affidavit submitted by the Chairperson of the Zimbabwe Electoral Commission in Justice Alfred Mavedzenge v Chairperson of the Zimbabwe Electoral Commission case no. HC 4014/14

 

 

 

 

 

 

independent constitutional body, ZEC is not bound by the Declaration of Rights. The fact that ZEC is an independent constitutional commission does not exonerate it from being bound by the Declaration of Rights or the Constitution. A Constitution prescribes how the State shall be organised or structured, creates State institutions, confers power to those institutions and prescribes rules, principles and values through which the assigned power shall be exercised by those institutions.38 ZEC is guaranteed independence from being pressured by other State institutions or non-State actors but is still subject to law and Constitutional provisions. Only the judiciary, when applying the law, has the authority to direct how ZEC shall operate.39

Therefore, there should not be doubt that ZEC is an institution of the State, which is required

 

to respect, protect, promote and fulfil the rights enshrined in the Constitution.

 

 

 

 

Furthermore, ZEC is bound by the Declaration of Rights given that it is a Commission created to ensure the effective realisation of the rights enshrined in the Declaration of Rights. ZEC’s mandate is to organise, supervise and conduct elections in a manner that is consistent with the principles set by the Constitution, in order to fulfil the right to a free and fair election40 as enshrined in s 67 (1) (a). As will be shown later, the right to a free and fair election is not a right which can be exercised in isolation as it is closely related and sometimes dependent on other rights such as the right to access certain information which enables citizens to cast their votes freely and have those votes counted fairly. ZEC is thus not only bound by the right to vote but by the entire Declaration of Rights, to respect, protect, promote and fulfil the relevant rights enshrined therein, which include the right of access to information held by the State.

 

The notion that ZEC is bound by the rights enshrined in the Declaration of Rights is further supported by s 233 (a) and (c), which binds ZEC to support human rights and promote

 

38 I derive this definition from Gorge Devenish’s discussion of constitutionalism in A Commentary on the South African Bill

of Rights (1999) at 16-17

39 See s 165, read together with s 69 of the Constitution of Zimbabwe, 2013

40 As well as other rights enshrined in the Declaration of Rights.

 

 

 

 

 

constitutionalism. Section 233 is significant as it is one of the provisions through which ZEC is created and it can be argued that the same constitutional provisions which create ZEC further bind it to honour human rights. Access to information is recognised as a constitutional human right and therefore ZEC is bound to honour that right. Constitutionalism is a complex phenomenon to define but, as Francois Venter argues, it is a doctrine that encapsulates the idea that:

“… those who govern are obliged to conduct the business of government in accordance with publicly articulated, prospective rules that enable citizens to assess the legitimacy and propriety of public policies”.41

 

 

These rules are set by the Constitution and expanded in the enabling legislation and regulations. Constitutionalism, therefore, implies respect for the Constitution and all other laws which flow from it. In terms of s 233, ZEC is therefore obliged to promote respect for the Constitution, which also includes respect of the rights enshrined in the Constitution. In that regard, ZEC is bound not only to honour the right of access to information, enshrined in s 62, but to actively promote the observance of this right when discharging its constitutional mandate.

 

 

Since the adoption of the Constitution in May 2013, the Zimbabwean courts have handled some petitions42 in which citizens and or political parties sought to hold ZEC accountable on the basis of the Declaration of Rights. However, the courts have not been able to deal with this issue as most of those petitions were thrown out on technicalities.

 

 

However, prior to the commencement of the 2013 Constitution, the Zimbabwean Electoral

 

Court in Movement for Democratic Change v the Chairperson of the Zimbabwe Electoral

 

 

 

41 Francois Venter ‘The Withering of the Rule of Law’ (1973) Vol 8 Spectrum Juris at 69-88

42 These are largely unreported because they were dismissed on technicalities.

 

 

 

 

 

 

Commission43 held that:

 

“The clear intention of the Legislature in s 61 (5) of the Constitution [1979] was to ensure ZEC’s independence provided it was operating within the law. It has to exercise its functions as provided by subs (4) for it to enjoy that immunity. It cannot for example conduct elections unfairly, outside the law, and which are not free and fair, but on being sued insist that the courts have no jurisdiction over it. The court would in such circumstances have jurisdiction to hear and determine complaints against ZEC.”

 

 

This case was decided in 2008 in terms of the former Constitution of Zimbabwe,44   which created ZEC as an independent constitutional body. However the Court insisted that the independence is not from the law and ZEC was subject to the jurisdiction of the Courts. Given that the 2013 Constitution has maintained a similar legal principle of subjecting all State institutions to the principle of the rule of law45 and to honour the constitutional rights,46 the courts must be able to follow a similar approach to hold ZEC accountable on the basis of the Constitution’s Declaration of Rights.

 

 

The argument in favour of ZEC’s accountability on the basis of the Declaration of Rights is well supported in comparative jurisdictions that have persuasive force in the Zimbabwean legal system.47   In Kenya, in the case of Raila Odinga v the Independent Electoral and Boundaries Commission,48   (IEBC) the IEBC was petitioned by a contestant of the State Presidential elections for having failed to maintain a credible national voters’ roll.49 On the question of whether the IEBC was bound by the Bill of Rights or not, the court made the following indication:

“[The] IEBC is a constitutional entity entrusted with specified obligations, to organize,

 

43 HH-37-08 at 3

44 The Lancaster House Constitution, 1979

45 Section 3 (1) (b) of the Constitution of Zimbabwe, 2013

46 Section 44 ibid.

47 By virtue of section 46 (1) (e) ibid.

48 Petition No. 5 of 2013, [2013] eKLR

49 See Raila Odinga v the Independent Electoral and Boundaries Commission, Petition No. 5 of 2013, [2013] eKLRat 10

 

 

 

 

 

manage and conduct elections, designed to give fulfilment to the people’s political rights (Article 38 of the Constitution). The execution of such a mandate is underpinned by specified constitutional principles and mechanisms and by detailed provisions of the statute law”. 50

 

 

Thus the Supreme Court of Kenya interpreted the IEBC as an entity created to fulfil certain rights enshrined in the Constitution’s Bill of Rights and thus bound by the Bill of Rights to honour the various fundamental rights enshrined therein, including the political rights entrenched in Article 38 of the Constitution of Kenya. This approach should be applicable in the Zimbabwean context as in similar situation, the ZEC is a constitutional entity, entrusted with the responsibility to protect, promote and fulfil the rights enshrined in the Declaration of Rights, which include the right to free and fair elections51 and the right of access to information.52

 

 

In South Africa, the judiciary has also taken a similar stance that, although the electoral management body is created as an independent institution, it remains a State institution bound by the Bill of Rights. This was first confirmed by the Constitutional Court in its landmark judgment in the August v Electoral Commission.53 In this case, the Independent Electoral Commission (IEC) was petitioned in an application which challenged the constitutionality of its decision to deny prisoners their right to vote. On the question regarding whether the IEC is bound by the Bill of Rights, the Court indicated as follows:

“The right to vote by its very nature imposes positive obligations upon the legislature and the executive. A date for elections has to be promulgated, the secrecy of the ballot secured and the machinery established for managing the process. For this purpose the

Constitution provides for the establishment of the [Independent Electoral] Commission

 

 

 

50 Ibid at 197

51 Enshrined in s 67 (1) (a) of the Constitution of Zimbabwe, 2013

52 Enshrined in s 62 ibid.

53 Case CCT 8/99

 

 

 

 

 

 

to manage elections and ensure that they are free and fair.”54

 

 

 

 

Thus the Court took the view that the electoral commission is created to fulfil the rights enshrined in the Constitution’s Bill of Rights, particularly the right to vote. Therefore, the IEC is bound to respect, protect, promote and fulfil the rights enshrined in the Bill of Rights.55

 

Jagwanth observes that the right of access to information held by the State creates positive duties which must be performed by the State.56 In Zimbabwe, these duties are encapsulated in s 44, whose import is to require the State to protect and promote the citizen’s right to access information held by the State. The duty to protect human rights entails the obligation to take positive steps to protect rights bearers from activities which have the potential to undermine the enjoyment of their constitutional rights.57 The duty to promote fundamental rights encompasses the obligation to take positive measures to create conditions which enable citizens to access and enjoy their fundamental rights.58   Therefore both the duty to protect and promote culminate in the establishment of the obligation of the State to take positive measures to ensure that citizens enjoy their rights. Regarding the right of access to information, ZEC is therefore bound to take positive steps to provide citizens with information when they request it. The scope of this duty must be interpreted consistent with s 194 (1) which obliges all institutions of the State to ensure that they discharge their functions in accordance with the basic values and principles governing public administration, as enshrined in the Constitution. These include the requirement to foster transparency by providing the public with timely, accessible and accurate information.59   Therefore ZEC has a positive obligation to timeously provide the national voters’ roll when requested to do so and it must be provided in its accurate form.

 

54 August v Electoral Commission Case CCT 8/99 at 16

55 See s 7 (2) of the Constitution of South Africa, 1996

56 See Note 23 at 7

57 A. Akintayo. “Planning law versus the right of the poor to adequate housing: A progressive assessment of the Lagos State of Nigeria’s Urban and Regional Planning and Development Law of 2010” (2014) African Human Rights Law Journal at 561

58 Ibid

59 See section 194 (1) (h) of the Constitution of Zimbabwe

 

 

 

 

 

 

 

 

Currie and de Wal rightly observe that constitutional rights are not absolute.60 Constitutional rights must be exercised in a manner which respects the boundaries set by other rights and by important social concerns which include national security, public order and safety.61 Section

86 (1) read together with (2) (a) of the Constitution of Zimbabwe entrenches this principle of limitation by cautioning that the rights enshrined in the Declaration of Rights “must be exercised reasonably and with due regard for the rights and freedoms of other persons.” However, it ought to be emphasised that, although these rights are subject to limitations, they may only be limited for a reason and in a manner that is constitutionally valid.

 

 

Constitutional rights may only be limited through a law of general application, to the extent that the limitation is fair, necessary and is consistent with the underlying values of a democratic state62   which are openness, justice, human dignity, equality and freedom. Whether the limitation is justifiable is determined by considering the nature of the right being limited, the purpose, nature and extent of the limitation, the relationship between the limitation and the purpose of such limitation, and whether there are any less restrictive means of achieving the same purpose.63 In South Africa, where similar guidelines exist, this has been interpreted to mean that the limitation must be for a purpose regarded as compelling in a democratic constitutional state,64 there must be a good reason to believe that the purpose will be achieved by restricting the right, the restriction of the right must not be more than what is necessary to achieve the purpose and it must be the least restrictive manner through which the purpose may be achieved.65

 

 

In view of the foregoing, the right of access to information may only be limited through a law of

 

60 See Note 24 at 163

61 Ibid

62 See s 86 (2) of the Constitution of Zimbabwe, 2013

63 See section 86 (2) (a)-(f) of the Constitution of Zimbabwe, 2013

64 Based on such values as openness, freedom and human dignity. Also see Denise Meyerson. Rights Limited: Freedom of

Expression, Religion and South African Constitution (1998) at 36-43

65 S v Manamela 2000 (3) SA 1 (CC) at 32

 

 

 

 

general application, and such law includes legislation which applies to everyone in Zimbabwe. This right may be limited only for a purpose that is considered acceptable and compelling in a democratic state66 and the State may enact legislation which may restrict access to certain information. Currently this legislation is the Access to Information and Protection of Privacy Act67 which was, however, enacted prior to the adoption of the Constitution and it is due for realignment. The Constitution allows this legislation to restrict access to information if it is necessary for purposes of protecting or promoting national defence, public security or professional confidentiality.68 Additionally, in terms of section 86 (2) (b, access to information may also be restricted if it is necessary to protect public order, public safety and health. However, it is not enough for the State to merely give one of these reasons as justification for restricting access to information. There must be a rational connection between the nature of the information for which access is being denied and the purpose for such restriction. Put differently, the nature of the information must be such that if released to the citizen, the legitimate purpose for the protection of such information will be undermined. Furthermore, the Constitution unequivocally cautions that, even where restriction is contemplated in order to promote or protect any of the aforementioned legitimate interests, the restriction must not go beyond what is necessary, fair and must be consistent with the values of a democratic society that is based on accountability and transparency69   and must remain reasonable both in terms of the length of time and the amount of information for which access is being restricted.

 

In the next section of this paper, it will be demonstrated that there is no constitutionally justifiable reason for denying a citizen access to the national voters’ roll. To the contrary, the Constitution obliges ZEC to provide citizens with access to the national voters’ roll because it is in the interest of public accountability to do so and it is necessary for the exercise of

 

 

66 See s 86 (2) of the Constitution of Zimbabwe, 2013

67 [Chapter 10:27]

68 See s 62 (4) ibid

69 See ss 62 (4) and 86 of the Constitution of Zimbabwe, 2013

 

 

 

 

one’s political rights, particularly the right to a free and fair election, enshrined in section

 

67 (1) (a) of the Constitution.

 

 

 

 

Part III The transparency and public accountability argument

 

Every Zimbabwean citizen has a constitutional right to access the national voters’ roll in order to enforce public accountability by ZEC regarding the management of elections. This view is predicated on the fact that ZEC has a constitutional mandate to ensure proper custody of the national voters’ roll and at the same time, it has the obligation to discharge this function in a transparent and accountable manner, especially when requested to do so.

 

 

Transparency and accountability are necessary normative values upon which every constitutional democratic State must be based.70 Transparency is a normative constitutional value which demands that State institutions must discharge their duties and exercise public power in a manner that is open to the citizens as well as other State institutions.71 State accountability encapsulates the obligation of State institutions entrusted with public power and public resources to be answerable for the exercise of their power and utilisation of resources.72

Thus transparency is the idea that state affairs should be conducted in a manner that is open to public scrutiny and accountability is the idea that the State must account for its actions. A democratic society must incorporate adherence to these two values, amongst others, because public power is less likely to be abused when exercised openly and when the State is legally obliged to account to the citizens.

 

The Preamble to the 2013 Constitution shows that the Zimbabwean society has committed itself to establish a united, just, prosperous nation, founded on transparency as one of the cardinal values.73   Additionally, transparency and accountability are entrenched amongst

 

 

70 Justice Mavedzenge and Doug Coltart. A Constitutional law guide towards understanding Zimbabwe’s socio-economic human rights (2014) at 18

71 Ibid

72 See Black’s Law Dictionary 2nd Edition

73 See paragraph 9 of the Preamble to the Constitution of Zimbabwe, 2013

 

 

 

 

 

 

the founding values and principles upon which the government should be based.74 To give effect to these two values, the 2013 Constitution entrenches as fundamental the right of access to any information held by the State,75 and a duty for all public institutions to ensure that they are:

“… governed by the democratic values and principles enshrined in this Constitution, including [that] transparency must be fostered by providing the public with timely, accessible and accurate information”76

 

 

By entrenching transparency and accountability as founding values and by guaranteeing the right of access to information held by the State, there cannot be doubt that the 2013

Constitution has subordinated the exercise of all public power to openness and public scrutiny.

 

 

 

 

ZEC exercises public power to prepare, supervise and conduct elections of public office bearers in Zimbabwe, as described in Part II of this paper. This power should be discharged to give effect to the constitutional principle that the authority to govern is derived from the people77 and through a free and fair election78 which is conducted in accordance with the principles enshrined in s 155 as well as the founding values stated in s 3 of the 2013 Constitution. ZEC has the responsibility to compile voters’ rolls79 and to ensure the proper custody and maintenance of these rolls and registers.80   This constitutional function must be exercised in a manner which adheres to the normative values of transparency and accountability, as discussed earlier.

 

 

The proper maintenance of the national voters’ roll is the bedrock of the electoral democracy81

 

74 See s 3 (2) (g) of the Constitution of Zimbabwe, 2013

75 See s 62 (1) and (2) ibid

76 See s 194(1) (h) ibid

77 Entrenched in section 3 (2) (f) ibid

78 See s 3 (2) (a) and (b) ibid

79 See s 239 (d) ibid

80 See s 239 (e) ibid

81 This is because the right to vote is exercised when one is registered as a voter on the voters’ roll. See schedule 4 of the

 

 

 

 

 

because, in terms of the 2013 Constitution,82 the authority to govern is acquired through a free and fair election and the right to vote in that election may only be exercised when a citizen is registered as a voter.83   It is impossible to achieve the constitutional goal of establishing and maintaining a democratic Zimbabwean society in which the authority to govern is derived from the people through a free and fair election, if the national voters’ roll is not managed properly. Thus, ZEC has a duty to inspire confidence amongst the citizens that the elections are based on a properly managed national voters’ roll. In that regard, the citizens have both a legitimate interest and a justiciable fundamental right to know if the national voters’ roll does exist in proper shape and condition necessary for the proper conduct of elections.84 This right is exercised on the basis of s 62 (1)85 by requesting ZEC to provide a copy of the national voters’ roll in a manner that enables the public to scrutinize its’ quality. ZEC has an obligation to respect, protect and promote this right and therefore has a duty, especially when requested to do so, to uphold and foster the obligation of transparency and accountability in the management of the national voters’ roll and the maintenance of the democratic electoral system.

 

 

Access to the national voters’ roll as a means of enforcing the right to a free and fair election.

In addition to the public accountability argument, access to the national voters roll is constitutionally justified for purposes of protecting and enforcing the right to a free and fair election. The right of access to information guarantees the citizens access to any information held by the State, if access to the requested information is necessary to exercise or protect

their rights.86

 

 

 

 

Constitution of Zimbabwe, 2013

82 See s 3 (2) of the Constitution of Zimbabwe, 2013

83 See schedule 4 ibid

84 Section 155

85 Which guarantees citizens the right of access to information held by the State

86 See s 62 (2) of the Constitution of Zimbabwe, 2013

 

 

 

 

 

 

Section 67(1) (a) entrenches the right of every Zimbabwean citizen to a free and fair election for any elective public office.87 Despite the numerous election petitions brought before it, the Zimbabwean judiciary has not yet elaborately interpreted what this right entails. Devenish88 argues that when interpreting the provisions of the Constitution, the starting point should be the consideration of the grammatical formulation of the provision. In Zimbabwe, this principle is constitutionally entrenched in section 46(1) (d) which requires the court or a body to duly consider the relevant provisions of the Constitution when interpreting the fundamental rights. It is therefore imperative to pay attention to the grammatical formulation of the right to a free and fair election, in order to establish its scope and meaning.

“Every Zimbabwean citizen has the right-(a) to free, fair and regular elections for any

 

elective public office established in terms of this Constitution or any other law”.89

 

 

 

 

The grammatical formulation of this right shows that it is not limited to the right to ‘participate’ in a free and fair election. Citizens are not mere participants in an electoral process, but are also active agents with legitimate interests or concerns. Therefore, in addition to the right to

‘participate’ in a free and fair election, they have the right to know that the elections have been or are going to be free and fair, and the right to take legally valid corrective actions to ensure that the elections comply with set requirements of being free, fair and regular. Additionally, s 46(1) (b) of the 2013 Constitution, prescribes that:

“When interpreting this Chapter [The Declaration of Rights], a court, tribunal, forum or body must promote the values and principles that underlie a democratic society based on openness, justice, human dignity, equality and freedom, and in particular, the values and principles set out in section 3 [of the Constitution]”

 

 

The above provision has been interpreted by the Constitutional Court of Zimbabwe90   to

 

87 Elective public offices in Zimbabwe include the State President, Legislators and Local authority councillors.

88 Gorge Devenish. Interpretation of Statutes (1992) 26

89 Section 67(1) (a)

90 See Mudzuru v Ministry of Justice, Legal & Parliamentary Affairs [2015] ZWCC at 26

 

 

 

 

 

imply that constitutional rights must be interpreted in a manner which adequately resonates with the entrenched founding constitutional values and principles. Therefore the scope and meaning of the right to a free and fair election ought to be established in a manner which incorporates and upholds the values of openness and accountability.

 

 

The incorporation of the value of transparency into the scope of the right to a free and fair election creates the right of a citizen to an election which is conducted transparently. The management of the national voters’ roll is an integral part of the process of organising the elections. Therefore, the citizens have the right to have their national voters’ roll managed properly and in a manner that is open to them. Put differently, as part of the right to a free and fair election, the citizens have the right to know and verify the condition of the national voters’ roll. This right may be exercised by invoking the right of access to information held by the State through access to the national voters’ roll as that information is necessary to exercise their right to know and verify the condition of the national voters’ roll.

 

 

The incorporation of the value of accountability into the scope and meaning of the right to a free and fair election creates a duty for ZEC to be accountable to the citizens when called upon do so, during the process of preparing or conducting an election. As indicated above, the management of the national voters’ roll is a significant part of preparing for an election in terms of the 2013 Constitution. Therefore, as part of the right to a free and fair election, the citizen is entitled to the right to call ZEC to account on the condition of the national voters’ roll and it is impossible to demand accountability without access to the necessary information.

 

 

For the citizens to be able to call ZEC to account regarding the condition of the national voters’ roll, they need to have access to a copy of the national voters’ roll in a form which is suitable for them to assess whatever they need to ascertain. On that basis, the citizens can

 

 

 

 

 

 

invoke section 62 (2) of the 2013 Constitution to request access to the national voters’ roll.

 

 

 

 

Conclusion

 

Access to the national voter’s roll is guaranteed as a constitutional right. This right is derived from the governance framework as entrenched in the 2013 Constitution. This framework requires that the exercise of all public power and the discharge of all public functions must be done in a manner that is open to the public, and the State must be accountable to its citizens. The right of access to any information held by the State is a constitutional right which citizens are entitled to use in order to enforce public transparency and accountability. It is a mechanism provided by the Constitution to give effect to the underlying values of transparency and accountability.

 

 

Therefore the citizens may request access to the national voters’ roll in order to foster transparency in the manner in which ZEC manages and maintains the national voters’ roll. In addition, the right of access to information is a leverage right, which can be used to access information necessary to exercise or protect other rights. The right to a free and fair election implies the right to know if the elections have been free and fair or are going to be free and fair. This right may only be exercised if a citizen has access to the national voter’s roll.

 

 

 

 

 

BIBLIOGRAPHY

 

State Constitutions and Statutes

 

Access to Information and Protection of Privacy Act [Chapter 10:27] of Zimbabwe

 

Constitution of Kenya, 2010

 

Constitution of South Africa, 1996

 

Constitution of Zimbabwe, 2013

 

Electoral Act [Chapter 2:13] of Zimbabwe

 

 

 

 

Case law

 

August v Electoral Commission Case CCT 8/99

 

Brümmer v Minister for Social Development 2009 (6) SA 323 (CC); 2009 (11) BCLR 1075 (CC) De Lange v Eskom Holdings 2012 (1) SA 280 (GSJ); [2012] 1 All SA 543 (GSJ); 2012 (5) BCLR 502 (GSJ)

Justice Mavedzenge v Chairperson of the Zimbabwe Electoral Commission HC 4014/14

 

Movement for Democratic Change v the Chairperson of the Zimbabwe Electoral Commission

 

HH-37-08

 

Mudzuru v Ministry of Justice, Legal & Parliamentary Affairs [2015] ZWCC 12

 

Raila Odinga v the Independent Electoral and Boundaries Commission, Petition No. 5 of

 

2013, [2013] EKLR

 

Republic of South Africa v M & G Media Ltd 2012 (2) BCLR 181 (CC); 2012 (2) SA 50 (CC)

 

S v Manamela 2000 (3) SA 1 (CC)

 

 

 

 

Articles

 

  1. A. Akintayo ‘Planning law versus the right of the poor to adequate housing: A progressive assessment of the Lagos State of Nigeria’s Urban and Regional Planning and Development Law of 2010’ African Human Rights Law Journal (2014)

Francois Venter ‘The Withering of the Rule of Law’ Vol 8 Spectrum Juris (1973)

 

 

 

 

 

 

Saras Jagwanth and Richard Calland ‘The Right to Information as a Leverage Right’ University of Cape Town (2002)

 

 

Books

 

Denise Meyerson Rights Limited: Freedom of Expression, Religion and South African

 

Constitution, Juta Legal and Academic Publishers, South Africa, 1st edition, 1998

 

 

 

 

Fatima Diallo and Richard Calland (Ed). Access to Information in Africa: Law, Culture and

 

Practice, Brill, Netherlands, 2013

 

 

 

 

Gorge Devenish A Commentary of the South Africa Bill of Rights, Butterworths, South Africa,

 

1999

 

 

 

 

Gorge Devenish Interpretation of Statutes, Juta, South Africa, 1992

 

 

 

 

Henry C Black Black Law Dictionary, 2nd Ed, Lawbook Exchange Limited, New Jersey United

 

States of America, 1995

 

 

 

 

Iian Currie and Johan de Wal. The Bill of Rights Handbook 5th Ed, Juta and Company, South

 

Africa, 2005

 

 

 

 

Justice Mavedzenge and Doug Coltart A Constitutional law guide towards understanding

 

Zimbabwe’s socio-economic human rights, International Commission of Jurists, Zimbabwe,

 

2014

 

 

 

 

Lovemore Madhuku An Introduction to Zimbabwean Law, Weaver Press, Zimbabwe, 2010

 

 

FAIR LABOUR STANDARDS ELEVATED TO CONSTITUTIONAL RIGHTS: A NEW APPROACH IN ZIMBABWEAN LABOUR MATTERS.

 

 

 

Rodgers Matsikidze1

 

 

 

 

Introduction

 

Labour rights, like any other socio-economic rights, have been statutory rights since the enactment of the Labour Relations Act of 1985. The Constitution of Zimbabwe 2013 brought in another dimension that incorporates the second and third generation rights into the Bill of Rights. This paper seeks to argue that s 65 (1) of the Constitution of Zimbabwe introduces a new approach in determination of labour matters as it entitles direct access to the Constitutional Court through which alleged violations of labour standards may be addressed and, secondly, fairness is the central factor in determination of alleged violations and practices. This paper concludes by arguing that the Supreme Court decision in the case of Nyamande & Another v Zuva Petroleum (Pvt) Ltd2   (the Zuva case), among others, is incorrect as it exalts common law over clear constitutional rights. It further concludes that the Supreme Court leapt to the protection of the employer when that protection could still have been attained without the court entangling itself in judicial activism.

 

 

The meaning of section 65(1) of the Constitution of Zimbabwe

 

Section 65(1) of the Constitution of Zimbabwe provides as follows:

“Every person has the right to fair and safe labour practices and standards and to be paid a fair and reasonable wage”.

 

 

 

 

 

1   Rodgers Matsikidze teaches civil procedure and labour law at the University of Zimbabwe and is the Director of Legal Aid Clinic and Attachment Office. He is the Managing Partner at Matsikidze and Mucheche Legal Practitioners in Zimbabwe. He is the author of ADR in Zimbabwe and holds several positions on various boards in the private and public sectors.

2 Nyamande and Another v Zuva Petroleum (Pvt) Ltd SC -43-15

 

 

 

 

 

 

This section is basically three in one. The section may be expanded as follows:

 

  1. a. right to fair labour practices and standards, b. right to safe practices and standards,
  2. c. right to be paid a fair and reasonable wage.

 

 

 

 

This paper will focus on part (a): the right to fair labour practices and standards. What is clear and apparent is that the right does not define fair labour practices and standards. The right is pluralistic in nature; it appears one right yet is a convolution of rights. The concept of fair labour practice is alien to common law but is an invention of the International Labour Organization (ILO).3   There are a number of ILO Conventions that set out various labour standards and minimum practices that are acceptable under the ILO family.4 International labour standards are legal instruments drawn up by the ILO’s constituents, setting out basic principles and rights at work.5 The international labour standards are therefore either conventions, which are legally binding international treaties that may be ratified by member states, or recommendations that are non-binding agreements.6 What is apparent from this definition is that standards are a creation of ILO.7   Hence the referral to standards under municipal law should derive its definition from the ILO definitions.

 

Zimbabwe employs the transformation doctrine as a way of domesticating international instruments. In section 327 (2) of the Constitution of Zimbabwe, an international instrument needs to be signed and ratified first for it to be binding. In addition, after the ratification, parliament should then by an Act of parliament incorporate the convention or treaty into municipal law. Hence, in this instance, the definition of what is a standard or practice can be

 

 

3 Xavier Beaudonnet (ed) International Labour Law and Domestic Law, ILO, Switzerland, 2010

4 ILO, Freedom of Association, Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO, 2006.

5 ILO, Rules of the Game, A brief introduction to International Labour Standards, ILO, Revised Edition, Switzerland,

2009, p14.

6 Ibid

7 ILO, Constitution of the International Labour Organisation, ILO Switzerland, Geneva, 2009

 

 

 

 

 

adopted from the ILO literature since Zimbabwe has already ratified and signed a number of international labour standards as will be discussed. Section 326 (1) of the Constitution of Zimbabwe provides reference to the international customary law in interpreting treaties and conventions and provides that customary international law is part of the Zimbabwean law unless it is inconsistent with the Constitution and Acts of parliament. However, when interpreting a statute or the Constitution of Zimbabwe the rule is that the Constitution or statute must be interpreted in such a manner that is consistent with international customary law or convention or treaty.8

 

 

The answer to what constitutes a fair labour standard and practice is thus found under international law. As already pointed out, a number of these fair labour standards and practices exist, including:

  1. a. right to fair dismissal,

 

  1. b. right to maternity leave, c. right to vacation leave,
  2. d. right to fair conditions and terms of employment, e. right to organize
  3. f. right to join trade union of choice etc.9

 

 

 

 

The Zimbabwean Labour Act [Chapter 28.01] does set a number of fair practices and standards. Section 6, s7, s8, s9 and s10 of the Labour Act (28:01) lists unfair labour practices and standards.

 

However, particular to the purpose of this paper is s12B of the Labour Act where it is provided that an employee has a right not to be unfairly dismissed. It is submitted that this provision

 

 

8 Sections 326 and 327 of the Constitution of Zimbabwe.

9 See ILO, Rules of the Game, A brief introduction to International Labour Standards, ILO, Revised Edition, Switzerland, 2009, in general.

 

 

 

 

 

 

is a fair labour practice and standard. Thus, when interpreting the provisions of s65 (1) of the Constitution of Zimbabwe, there should be inclusion of the right to fair dismissal. In dealing with cases of fair labour standards as set in the Labour Act the courts will be essentially be dealing with matters raising constitutional issues. In the case of NEHAWU v University of Cape Town (NEHAWU) the court ruled that because the Labour Relations Act 66 of 1995 gave content to the rights in respect of labour relations in s 23 of the constitution, its interpretation application “in application compliance with the constitution” are constitutional issues.

 

 

The court in NEHAWU further held that the right to fair labour standards and practices in s

 

23(1) of the Labour Relations Act 66 of 1995 is applicable to both the workers and employers. Rautenbach argues that the focus of s23 (1) of South African Labour Relations Act is to ensure that the relationship between the worker and the employer is fair to both.10 He says the right not to be unfairly dismissed is essential to the right to fair labour practices.11

 

 

The Supreme Court of Zimbabwe (SCZ) seems to have adopted an opposite approach in dealing with matters of unfair dismissal. Its standard is clearly a common law approach as opposed to ILO jurisprudence yet the common law does not define what unfair dismissal constitutes. The approach by the Zimbabwean Supreme Court seems to be conservative as it is based on the concept of lawfulness and not fairness.

 

There is a difference between the two concepts of fairness and lawfulness. A termination maybe within the parameters of the law but yet not fair. Lawfulness is confined to what the rules of law say yet fairness referred to in s12B of the Labour Act (28.01) extends beyond what the rules of law enunciate. Fairness also includes the aspect of equity and morality to some extent unlike law that may be law despite its moral content.12 Hence, the correct

 

 

10 I M Rautenbach, Overview of Constitutional Court Decisions on the Bill of Rights-2002, TSAR 2003 p182

11 Ibid

12 Lovemore Madhuku, Introduction to Law In Zimbabwe, Harare, Weaver Press, 2010

 

 

 

 

 

interpretation of the provisions of sections 65(1) of the Constitution of Zimbabwe as read with s12B of the Labour Act [Chapter 28.01] requires dismissal not only to be lawful but fair. Hence the penalty to terminate ought not only to be lawful but fair.

 

 

In the case of Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 12 BLLR

 

1097 (Sidumo), the South African Supreme Court ruled that in deciding dismissal disputes in terms of the compulsory arbitration provisions of the Labour Relations Act 66 of 1995 (LRA), Commissioners should approach a dismissal with ‘a measure of deference’ because the commissioner ought to be persuaded that dismissal is the only fair sanction. The Supreme Court held that once the employer establishes that dismissal is the only fair sanction, and the end of the inquiry as the discretion to dismiss lies with the employer. This approach is the same as the one adopted in the judgments of Toyota v Posi SC -55-2007; Tregers Plastics (Pvt) Ltd v Woodreck Sibanda and Anor SC-22-2012; and Innscor Africa Limited v Letron Chimoto SC264-2010 where the Supreme Court clearly concretise the sanctity and supremacy of the employer’s decision to dismiss in cases where there is belief that the misconduct goes to the root of the contract.

 

 

The South African Constitutional Court ruled that the Sidumo case raised constitutional issues especially in view of the fact that the Labour Relations Act was enacted to give effect to the rights contained in ss 23 and 33 of the South African Constitution.13 Further, the court noted that the issues pertaining to the determination of the powers and functions of the Labour Court canvassed in the Sidumo case are essentially constitutional issues.14

 

The South African Constitutional Court (SCC) in disposing the Sidumo case ruled that, although s23 (1) of the South African Constitution affords fair labour practices to both the employer

 

 

 

 

13 See p 50 of the Sidumo judgment.

14 See para 51 ibid.

 

 

 

 

 

 

and the employee alike, to the employees it affords security of employment.15   The Court held that a primary purpose of the LRA is to give effect to the fundamental rights conferred by s23 of the South African Constitution. The provisions of s1 of LRA are similar to the provisions of s2A of the Labour Act [Chapter 28.01]. Hence the application and interpretation of the provisions is the same. The SCC further ruled that s185 of the LRA provides that every employee has the right not to be unfairly dismissed and subjected to unfair labour practices. 16It ruled that the onus is on the employer to prove that the dismissal is fair.17

The reasoning in the Zimbabwean Zuva case, however, is contrary to the SCC reasoning in the Sidumo case.

 

 

Right to terminate on notice under section 65 (1) of the Constitution of Zimbabwe The SCC ruled further that the Commissioner first examines whether the decision to dismiss was fair or reasonable and that such a decision should be made in light of the rule breached. The SCC ruled that the Commissioner was an independent adjudicator who considers the competing interests of the employer and the employee. The court noted that when interpreting s145 of LRA they ought to do so in a manner that is compatible with the values of reasonableness and fair dealing that an open and democratic society demands.18

 

 

The SCZ endorsement of termination in the Zuva case resulted in mixed feelings between the employees and employers. The workers described it as a resurrection of the Master and Servant Ordinance of 1905, while the employers celebrated it as a case that enhances labour flexibility and an entrance to a free market economy.

 

 

This paper argues that the approach by the SCZ exalted the common law right of termination

 

on notice over a constitutional right, and incorrectly so. The case ignored the new legal

 

15 See para 55ibid.

16 See para 58 ibid.

17 See para 58 ibid.

18 See para 158 of the Sidumo judgment.

 

 

 

 

 

terrain set by the Constitution of Zimbabwe 2013. What is clear is that the discretion of the employer to dismiss in terms of s 65 of the Constitution of Zimbabwe is subjected to the test of fairness. The SCZ seems to deviate from jurisprudence that clearly originates from ILO conventions on labour. The Zuva case buttresses the above view on termination.

 

 

The employees in question were terminated on notice after the following sequence of events: the employer initiated a retrenchment process and the employees in question were then selected for retrenchment. The employer then offered a retrenchment package to the employees, which the employees rejected. The employer opted to refer the matter to Retrenchment Board for quantification of the retrenchment package. The employer later revised its position and then terminated the employees on three months’ notice on a no fault basis. The Supreme Court then ruled that both the employer and the employee had a common law right to terminate an employment relationship on notice. The court further held that the common law right in respect of both the employer and the employee could only be limited, abolished or regulated by an Act of Parliament or a statutory Instrument Act which is, clearly, intra vires an Act of Parliament.

 

 

The Supreme Court further ruled that it is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly. The court did find that in s12B of the Labour Act [Chapter 28:01] there expressly or impliedly was no abolition of the employer’s common law right to terminate an employment relationship by way of notices. The court ruled that section 12B deals with dismissal and the procedures to be followed in those instances where an employment relationship is to be terminated by way of dismissal following misconduct proceedings. The court made a finding that termination on notice is another method of dismissal similar to other methods like retrenchment etc.

 

 

 

 

 

 

It is argued that the termination on notice is contrary to the provisions of S65 (1) of the Constitution of Zimbabwe through exalting the common law right over a constitutional right. This is so if termination on notice is looked in the context of ILO jurisprudence, or as a component of right to fair labour practice and standards.

 

 

Termination on notice is dismissal

 

John Grogan argues that there is significant development on the law of dismissal19   which, as Grogan puts it, has gone outside the framework of the statute to the Constitutional framework.20 Grogan argues that s 23 of the South African Constitution affords everyone the right to fair labour standards.21   In addition, Grogan argues that in the case of Old Mutual Life Assurance Company SA Ltd v Gumbi 2007 28 ILJ 1499 the Supreme Court of Appeal recognized, as an implied term of every contract of employment, a right to be terminated fairly. Grogan defines dismissal anchored on section 186(1) of the LRA.22

 

 

In terms of section 186 (1) of the LRA, dismissal means that:

 

  1. a. An employer has terminated a contract of employment with or without notice.

 

  1. b. An employee reasonably expected the employer to renew a fixed term contract of employment on the same or similar terms and then the employer offers to renew it on less favourable terms or did not renew it.
  2. c. An employer refuses to allow an employee to resume work after she took maternity leave in terms of any law or collective agreement governing her contract of employment.
  3. d. An employer who dismisses a number of employees for the same or similar reasons and then offers to re-employ one or more of them but refuses to re-employ another or;
  4. e. An employee terminates a contract of employment with or without notice because the

 

employer made employment intolerable for the employee.

 

19 John Grogan, Dismissal, Juta (2010) p9

20 John Grogan, ibid p10

21 ibid p10

22   ibid p10

 

 

 

 

 

  1. f. An employee terminated a contract of employment without notice because the new employer, after a transfer of the business, lowered the conditions and terms of employment.

 

 

The provisions of s186 (1) LRA buttress the argument that dismissal includes terminating on notice or without notice. In other words dismissal is not confined to misconduct hearings as the Supreme Court implied. The term dismissal is not a common law principle. Grogan argues that the word dismissal does not occur in the language of the common law.23 Hence s 12B (1) of the Labour Act that provides the right not to be unfairly dismissed is not to be interpreted from a common law position. There are two key aspects in s12B (1) of the Labour Act, namely, the concept of fairness and lawfulness.

 

 

The Supreme Court therefore was incorrect to rule that termination on notice is outside the armpit of dismissal. The South African LRA clearly puts termination on notice in the armpit of the dismissal. Assuming that one does not want to follow the above reasoning, termination on notice still will be found to be violating s 65(1) of the Constitution of Zimbabwe. The violation occurs in respect to two aspects.

 

First, the right to terminate on notice without compensation does not pass the test of fairness under ILO Convention (C150).24   Convention 158 governs termination and the concept of fair termination is enshrined in this convention. Even though Zimbabwe has not signed and ratified the Convention, Convention 158 has great persuasive value and the courts can rely on it based on s326 of the Constitution of Zimbabwe. In other words, the Supreme Court should have followed the decisions of the courts of other jurisdictions where the definition of fairness in termination have been pronounced. Hence the employees in the Zuva case terminated on notice without compensation were terminated unfairly.25

 

23 Ibid 13

24 Termination of Employment Convention, 1982

25 Michelle Olivier, Interpretation of the Constitutional provisions relating to international law, paper based on doctoral thesis ‘International Law in South African Municipal Law: human rights procedure, policy and practice’

 

 

 

 

 

 

The second aspect was for the Supreme Court to inquire whether terminating on notice without compensation is a fair labour practice or standard. In other words, the court ought to have proceeded to measure the termination on notice against set standards or practices on termination particularly as the countries that follow ILO jurisprudence are member states, like Zimbabwe.

 

 

What is clear and apparent is that there is no standard or practice that classifies termination

 

on notice without compensation as a fair standard.26

 

 

 

 

Conclusion

The Constitution of Zimbabwe, particularly s 65 (1), provides a new approach to labour matters but what remains for any Zimbabwean court is to adopt an approach that helps for citizenry to enjoy their rights in full. In any event, the Constitution of Zimbabwe 2013 requires a purposive and broad interpretation rather than a narrow interpretation that unduly constricts the rights. It is hoped that in the near future the Supreme Court will expand on the right to fair labour practices and practices as provided for in s 65 (1) of the Constitution of Zimbabwe.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(2002) UNISA.

26 See also Munyaradzi Gwisai, Labour and Employment Law in Zimbabwe, Harare, UZ & Zim Labour Centre, 2006.

 

 

ASSESSING THE JUSTICE DELIVERY MANDATE OF THE JUDICIAL SERVICE COMMISSION IN ZIMBABWE’S CONSTITUTIONAL FRAMEWORK

 

 

 

James Tsabora1 and Shamiso Mtisi2

 

Abstract

 

The judicial service commission has emerged as one of the most integral institutions in constitutional and democratic states that respect the ideals of the rule of law and constitutionalism. As an institution therefore, a judicial service commission is a critical functionary in a constitutional state; it oils the wheels and fuels the engine of justice. Its integrity and status in a constitutional democracy derives, not only from the nature of its mandate, but also from the manner of its constitution, composition, appointment and most importantly, the scope of its powers. Generally, the mandate of the judicial service commission is to promote judicial independence, which is a fundamental facet in ensuring the rule of law and constitutionalism. Indeed, important debates on the rule of law and constitutionalism have invariably included the contribution of judicial institutional systems in the promotion or erosion of the rule of law and democracy in a constitutional society. Such debates necessarily take new twists and turns with the substitution of a constitutional framework by another.

 

 

This article explores the constitutional mandate of Zimbabwe’s Judicial Service Commission, and makes the finding that this Commission is vital in the promotion of judicial independence, in safeguarding democracy, and in entrenching constitutionalism in Zimbabwe. It further observes that in view of Zimbabwe’s long road to democracy and judicial independence, the Commission can only be applauded and given time to consolidate its true status and position in Zimbabwe’s justice administration system.

 

 

  1. Introduction

 

The Judicial Service Commission (JSC) is positioned at the fulcrum of the justice administration

 

1 James Tsabora LLB (University of Zimbabwe), LLM (University of KwaZulu-Natal) PhD Law (Rhodes University); Lecturer, Faculty of Law, Midlands State University, Gweru.

2 Shamiso Mtisi LLB (University of Zimbabwe), LLM Cand. (Midlands State University), Head of Programs, Zimbabwe Environ- mental Lawyers Association, Harare.

 

 

 

 

 

 

system in Zimbabwe. Its mandate is both regulatory and administrative, and is expected to promote constitutionalism by being independent, impartial, accountable, and efficient as well as through its capability to instill public confidence. These mandates are critical in view of the greatest danger faced by contemporary African democracies, being the subsuming of judicial service commissions as arms or extensions of the executive. This consequently translates to a reality where justice equates to the wishes and whims of the executive, with for instance, the appointment of judges being based not on merit but on political grounds of loyalty.3   Accordingly, one of the most problematic questions in contemporary African judicial systems is how the JSC could effectively discharge its justice delivery and administration mandate without political interference. This question is central to the major arguments fostered in this paper.

 

Structurally, these arguments are presented in four layers of analysis. The first layer of analysis is the applicable legal framework, including the 2013 Constitution, the Judicial Service Act, the Judicial Service Regulations and the Judicial Service (Code of Ethics). This legal framework establishes the JSC institutional system and illustrates its structure, mandate, powers and limitations. Within the legal framework are different strands of inquiry that will be analysed such as composition of JSC, judicial appointment, tenure of office, removal and resource availability among others. The second level of inquiry is the contribution of the JSC to judicial independence. Measured against international instruments and national legislation, there is need to assess how far the JSC has advanced the principle of judicial independence, which is central to constitutionalism and judicial integrity. The third component will be an assessment of the practical challenges faced by the JSC since its inception in Zimbabwe. The final component suggests possible ways of alleviating some of the challenges, and a statement of recommendations that can be adopted to enhance the capacity of the JSC to effectively discharge its constitutional mandate.

 

 

 

 

 

3 J.B Diescho “The Paradigm of an Independent Judiciary: Its History, Implications and Limitations in Africa”, in N. Horn and A Bosl (ed) “The Independence of the Judiciary in Namibia” (2008) Konrad Adenauer Foundation (Macmillan Educational Namibia) 35.

 

 

 

 

 

1.2 Why is a Judicial Service Commission necessary?

 

In the Zimbabwean context, the JSC is generally understood as the body responsible for the administration of justice.4   However in practice, the JSC has advisory, supervisory and regulatory mandates which enable the judiciary to function efficiently and deliver its constitutional functions5. The JSC’s administrative role extends beyond mere provision of stationery and salaries; it now extends to judicial selection processes through conducting public interviews and even making regulations governing the judiciary with the approval of the Minister of Justice, Legal and Parliamentary Affairs.6

Further, and more substantively, it is now the appointing authority for magistrates in Magistrates’ Courts.7

 

It appears that, in other countries the functions of judicial service commissions similarly extend beyond administrative duties. According to Manyatera and Fombad, the emerging trend is that JSCs are becoming increasingly popular and an important feature of most judicial appointment systems in both civil and common law jurisdictions.8 The authors cite several jurisdictions that have adopted either judicial selection commissions or judicial services commissions.9 The use of judicial appointment commissions might reduce political patronage through use of open and transparent mechanisms in the appointment process.10   However, all this depends on the surrounding or enabling political or governmental system. As Manyatera and Fombad were quick to note, the existence of JSCs do not necessarily translate to effective and transparent justice delivery by the judiciary; much depends on the composition and competencies of the commission,11 with these commissions faring much better

 

 

4 The Judicial Service Commission was first introduced into Zimbabwe’s Lancaster House Constitution by Constitutional

Amendment Act No.23 of 1987 (the 7th Constitutional Amendment).

5 This was confirmed in the case of Judicial Service Commission v Ndlovu and Others HB 172/13 in which Justice Moyo stated that the Judicial Service Commission does the administrative work leading to the appointment of judges.

6 On making regulations see Section 190(3) of the Constitution of Zimbabwe

7 Section 181(3) of the Constitution of Zimbabwe

8 See generally G. Manyatera and C.M Fombad “An Assessment of the Judicial Service Commission in Zimbabwe’s New

Constitution(2014), XLVII Comparative and International Law of South Africa 2-9

9 Manyatera and Fombad op cit note 6) 6-7; cited the example of UK, USA, South Africa and some countries in Anglophone Africa as well as Latin American countries such as Argentina, Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Guate- mala, Mexico, Panama and Paraguay among others.

10 Manyatera and Fombad (op cit note 6) at 8

11 Manyatera and Fombad (op cit note 6) at 3

 

 

 

 

 

 

in political contexts which respect and uphold the rule of law.12

 

 

 

 

This is confirmed by international soft law principles that recognise the use of commissions. A good example is the Latimer House Guidelines on the Independence of the Judiciary, which states that a judicial service commission should be established by the Constitution or by statute, with a majority of members drawn from the senior judiciary.13   Similarly, the Beijing Statement of Principles of the Independence of the Judiciary also recognise the consultation of JSCs in making appointments and, further, that such commissions should include representatives of higher courts and legal practitioners to ensure judicial competence, integrity and independence.14

 

 

1.3 The constitutional mandate of the Judicial Service Commission in Zimbabwe

 

Pursuant to constitutional best practises and international standards, Zimbabwe made specific provision for the functions of the JSC in the 2013 Constitution. This is clearly in line with the Latimer House Guidelines which state that judicial appointments should be made by a JSC established by the Constitution or statute.

 

 

The Judicial Service Commission is accordingly established in terms of Section 189 of the Constitution. Under the old Lancaster House Constitution, the JSC had been established in terms of Section 84 whose role was to be consulted by the President and recommend appointment and removal of judges. 15

 

Section 190(2) of the 2013 Constitution establishes the primary responsibility of the JSC, and states that, “the Judicial Service Commission must promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice in Zimbabwe, and has all the powers needed for this purpose(emphasis added). Further, section 190(3) proceeds

 

 

12 Manyatera and Fombad (op cit note 6) at 9

13 The Latimer House Guidelines on the Independence of the Judiciary (2008)

14 Article 15 of the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA Region 1995.

15 See generally Brian Crozier ‘Courts and Judiciary Under a New Zimbabwe Constitution’ in N. Kersting (ed) Constitutional in Transition Academic Inputs for a New Constitution in Zimbabwe, FES, 2005, 279.

 

 

 

 

 

to provide that the Judicial Service Commission, with the approval of the Minister responsible for justice may make regulations. Moreover, section 190(4) provides for the passage of an Act of Parliament that may confer on the JSC functions in connection with the employment, discipline and conditions of service of persons employed in the higher courts. These provisions have deep implications and need to be clearly analysed and examined.

 

 

1.3.1 Comment

 

Under the 2013 Constitution, the JSC appears to be a constitutionally entrenched body responsible for matters relating to the judiciary and the administration of justice.16 It may be submitted that this entrenchment is general, not specific, and this is strongly supported by a closer reading and contextual analysis of the whole Constitution. It may also be argued that what the constitution did was to merely establish the JSC and set out its functions. The concept of constitutional entrenchment connotes inclusion of provisions in the Constitution that are deliberately and exceedingly difficult or almost impossible to amend. Section 190 that establishes the JSC is not one of the specially protected clauses or strongly entrenched clauses in the constitution such as the Bill of Rights, the land provisions as well as term limits for public office.17 Those provisions are the ‘entrenched’ provisions of the Constitution and would demand, for instance, a referendum to be changed, while the rest of the constitutional provisions including the provision establishing the JSC only require 90 days notice, public views and a two-third majority vote in parliament to be changed, an easy task if a ruling political party commands more than two-thirds majority in Parliament. To that extent therefore, the JSC is not a specifically

‘entrenched’ constitutional institution.

 

 

 

The second point of inquiry is the mention in the Constitution that the JSC has “…all powers needed” for the purpose of discharging its constitutional mandate referred to in section 190(2). If measured against the powers of the executive, one may come to the conclusion that the JSC does not have all the powers. This conclusion can be reached after assessing the powers of the Minister and the role

 

16 See section 189 of the Constitution of Zimbabwe, 2013; See also Manyatera and Fombad (op cit note 6) at 19.

17 Section 328 provides for the Amendment of the Constitution.

 

 

 

 

 

 

of Parliament as stated respectively in section 190(3) and (4). The Minister has power to approve regulations made by the JSC. The fact that the JSC can make regulations does not mean that they will automatically pass into law. They require Ministerial approval and if the Minister does not approve them it means the regulations will not be passed. This means that the Constitution came close to granting the JSC law-making powers, but did not go far enough. Further, if Parliament feels threatened by the JSC it may pass an Act that does not provide adequate protections for employment, discipline and conditions of service of persons employed by the courts as contemplated in Section 190(4). Cumulatively, the powers of the executive and even the legislature in the Constitution whittle down the powers granted by the “all powers needed for the purposes” provision.

 

 

1.3.2 Other functions and contextual aspects on the role of JSC

 

It is important to state that the functions and responsibilities of the JSC should be understood in the context of the whole Constitution. This is because, unlike other commissions in the Constitution, the JSC is an institution that directly safeguards democracy, constitutionalism and the rule of law. In this regard, the fact that JSC is responsible for facilitating and promoting judicial independence, impartiality, integrity as well as effective and efficient delivery of justice means that it is also concerned with promoting the founding values and principles stated in s 3 of the Constitution. In particular the following values and principles are key; the supremacy of the Constitution, the rule of law, fundamental human rights and freedoms, equality of all human beings, good governance and transparency and accountability. These values tie in very well with the concept of judicial independence which is espoused in s 164 of the Constitution. Section 164 (1) states that the courts are independent and subject only to the Constitution and the law, which they must apply impartially, expeditiously and without fear, favor or prejudice. Section 164(2) goes on to state that the independence, impartiality and effectiveness of the courts are central to the rule of law and democratic governance. In this equation it is evident that the JSC should be at the centre of promoting judicial independence, impartiality and effectiveness. It has been observed that rigorous application of rule of law is the bedrock of a democratic society and if the rule of law is to be upheld,

 

 

 

 

it is essential that there should be an independent judiciary to scrutinise the actions of government and ensure they are lawful.18 Even the Bangalore Principles of Judicial Conduct states in its preamble that a competent, independent and impartial judiciary is essential if the courts are to fulfill their role in upholding constitutionalism and the rule of law.19

 

 

1.4 The JSC and the legal framework

 

Under the 2013 Constitution, the JSC clearly has the power to drive and implement judicial reforms.20

 

However, as highlighted above, the mandate of the JSC to make regulations has to be exercised with the approval of the Minister of Justice.21 When the JSC was established (under the Lancaster House Constitution), it had no secretariat and had to meet only when the need arose22   but, despite the lack of secretariat, there were a number of developments between 2006 and 2014 that positively enhanced its justice delivery mandate. These include the passage of the Judicial Service Act in 2006, the Judicial Service Regulations in 2012 and the Judicial Service (Code of Ethics) Regulations in 2014. These statutes were essential to give effect to the constitutional mandates and functions of the JSC and, most importantly, in promoting judicial independence. A short analysis of some of these laws is therefore apposite.

 

The Judicial Service Act [Chapter 7:18] was passed in 2006, giving effect to section 91(1) of the old Constitution. Section 5 (1) of the Act outlined the functions of JSC to include fixing conditions of service, administering and supervising the judicial service, appointing persons and exercising disciplinary powers among other functions. However, there might be need to amend the Judicial Services Act so that it clearly captures the functions of the JSC as currently reflected in the Constitution. This is simply because the Act predates the 2013 Constitution, and does not clearly emphasize the JSC role

 

 

18 Lord Phillips ‘Judicial Independence’ http://www.ucl.ac.uk/constitution-unit/events/judicial-independence-events/lord- phillips-transcript.pdf, accessed 2 November 2015

19 The Bangalore Principles of Judicial Conduct, 2002

20 See generally, Chief Justice G. Chidyausiku “The Role of Judicial Service Commissions in Enhancing Judicial Independence and Ensuring the Right to a Fair Trial”, (27 -30 August 2015), paper presented during the Southern Africa Chief Justices Forum Annual General Meetings and Conference, 4

21 Section 190(3)

22 Chief Justice Chidyausiku op cit note 18 at 4

 

 

 

 

of promoting and facilitating the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice in Zimbabwe, as prescribed in Section 190 of the new Constitution.

 

 

In much the same light, the Judicial Service (Code of Ethics) Regulations were passed in 2012, and similarly predate the 2013 Constitution. However, it is one of the key achievements of the JSC to date due to the establishment of a comprehensive framework on procedures for appointment and recruitment of judicial members, performance, resignation, termination of employment and salaries. Generally, under the Regulations, in order to promote efficiency and effectiveness, the JSC is required to recruit members with knowledge and ability about the task, relevant experience and requisite qualifications and qualities.23 Therefore, recruitment is based on merit.24 On disciplinary issues and procedures,25 the important aspect is what constitutes acts of misconduct. Some of the acts of misconduct include absence from duty, failure to perform duties, negligence, inefficiency or incompetence, sexual harassment and corruption or dishonesty.26 These Regulations clearly indicate that the JSC has made significant efforts, at least from a legislative perspective, to contribute to judicial independence, impartiality and integrity. The language used in the “code of ethics” is also in accord with international soft law principles and guidelines on judicial service commissions and judicial independence.27

 

 

  1. Contribution of JSC to judicial independence: theory and practice

 

 

 

 

2.1 Conceptual meaning and scope of judicial independence

A conceptual analysis of judicial independence is important at this point in order to fully assess how the JSC has contributed to judicial independence. The independence of the judiciary is pivotal to the protection of human rights28   and instrumental in the pursuit of constitutional values and the

 

23 Section 3

24 Section 3 (2)

25 Section 45 -46

26 Third Schedule to Section 45

27 Bangalore Principles op cit note 17; Latimer House Guidelines op cit note 11

28 L.Chiduza “Towards the Protection of Human Rights. Do the new Zimbabwean Constitutional Provisions on Judicial

 

 

 

 

 

rule of law.29 As a starting point, judicial independence was one of the concepts associated with the separation of powers doctrine in the writings of the French jurist, Montesquieu in the second half of the 18th century.30 The basic importance of judicial independence is that it is a balancing power on the exercise of power by the other two arms of government, namely the executive and the legislature.31

 

 

In principle this means that some constitutional guarantees and safeguards are important to protect the judiciary from interference by the executive. In that regard the words of Judge ‘O’ Linn in the Namibian case of S v Heita are most apposite. The learned judge stated that

“… the judiciary has no defence force or police force. They are not politicians. They cannot descend to the arena to defend themselves….precisely because they cannot protect themselves, unscrupulous persons may exploit this weakness by scandalising the court…” 32

 

At the international level, judicial independence has been recognised in many instruments, and the emphasis has been on the need for competent, independent and impartial tribunals or courts.33 Further, judicial independence has been characterised as having two components or two separate pillars, namely institutional independence and individual independence.34 It manifests itself through several essential criteria that include security of tenure, integrity, impartial judicial appointments and dismissal mechanisms as well as ability of the judiciary to manage its own budget and administration of the

 

 

 

Independence Suffice” (2014) PER/PELJ (17) 1.

29 J. Ferejohn “Dynamics of Judicial Independence: Independent Judges, Dependent Judiciary” (November, 1998) 7; http://

www.usc.edu/dept/law/symposia/judicial/pdf/ferejohn.pdf, accessed 2 November 2015

30 See generally O.C Ruppel “The role of the Executive in Safeguarding the Independence of the Judiciary in Namibia” (2008)

http://www.kas.de/upload/auslandshomepages/namibia/Independence_Judiciary/ruppel.pdf, accessed 2 November 2015

31 N. Horn and A Bosl (ed) “The Independence of the Judiciary in Namibia” (2008) 10 Konrad Adenauer Foundation, Macmillan

Educational Namibia

32 S v Heita (1992) 3 SA 785 (NmHC)

33 See Article 19 of the Universal Declaration of Human Rights 1948, Article 14 of the International Covenant on Civil and Political Rights 1966 and Article 7 of the African Charter on Human and Peoples’ Rights. The treaties recognise the right of every person to equality and to a fair and public hearing by an independent, competent and impartial tribunal or judiciary established by law.

34 International Bar Association “Beyond Polokwane: Safeguarding South Africa’s Judicial Independence” (July 2008) 20;

http://www.ibanet.org/Article/Detail.aspx?ArticleUid=B2397A56-9D7C-4990-9B57-2749409604A5; accessed 3 November

2015; also see generally the words of Justice Parker in Jacob Alexander v The Minister of Justice and others (Unreported case) HC of Namibia Case No. A210/2007 and Value 1 of The Bangalore Principles of Judicial Conduct, 2002.

 

 

 

 

 

 

courts.35 Financially, a restricted budget, for example, can create inefficiency and affect independence and this will eventually lead to the manipulation of the judiciary by the executive.36

 

 

However, it has been stated that there is an exception to the rule of judicial independence which exists for purposes of facilitating the achievement of the mandate of the judiciary.37   The exception is the requirement that the state should take measures to protect the judiciary and, in fact, the executive is legally obliged to protect the judiciary.38 John Ferejohn candidly stated that, even if judges enjoy some insulation from political intrusions, the Constitution ensures that the institutions within which they work, i.e. the courts, remain remarkably dependent on executive power-wielding officials.39 This is because the courts rely on parliament and government for implementation of judicial decisions, allocation of funds and passage of laws. This portrays a necessary linkage between the judiciary and the executive. If the limits and scope of this necessary linkage is not properly established, the legislature, for instance, can interfere with judicial independence by passing legislation to limit the jurisdiction of the courts if they feel threatened.40

 

 

2.2 Analysis of the legal functions of JSC in promoting judicial independence

As observed above, the concept of judicial independence has significant meaning and relevance for promoting the rule of law and constitutionalism in Zimbabwe. For a start, the JSC itself is at the centre of promoting judicial independence as stated in s 190 (2) which states that the JSC must promote and facilitate the independence, accountability, and the effective and efficient administration of the judiciary. Such a mandate supposes that the JSC should promote the practical application of s 164(1)

 

35 See generally M. Diibotelo (Chief Justice of Botswana) (August 2015) “Importance of Appointment Procedures in ensuring judicial Accountability and Independence of the Bench” paper presented during The Southern Africa Chief Justices Forum Annual General Meeting and Conference held at Victoria Falls from 27 – 30 August 2015

36 See generally O.C Ruppel op cit note 28 at 224

37 Op cit note 28 at 219

38 Op cit note 28 at 219

39 J. Ferejohn op cit note 27 at 6

40 In Zimbabwe during the height of the land invasions and land reform programme, government passed Constitutional Amendment No. 17, through insertion of Section 16B in the old Constitution, now Section 72 (3)(b) in the new Constitution which ousted the jurisdiction of the courts after a string of Supreme Court decisions based on discrimination, inequality. See generally, Commercial Farmers Union v Minister of Lands and Others 2000 (2) ZRL 469 (S)

 

 

 

 

 

which states that courts are independent and are subject to the Constitution and law which they must apply impartially, expeditiously and without fear, favour or prejudice. It can also be argued that under s 164 (2) (a), the state is required not to interfere with the functioning of the courts, and the JSC has an implicit duty to ensure this is the case. Further, given its administrative functions to make the judiciary operate efficiently and effectively, the JSC has a clear duty to ensure that the state, as proclaimed in s 164 (2) (b), assists and protects courts to ensure their independence and well-being. This the JSC can do by approaching the state for adequate funding for salaries and administration costs.

 

 

Moreover, the JSC has a duty implied in s 165 to ensure that its members follow the guiding principles related to judicial independence such as to desist from any political activity, or acceptance or solicitation of any gift, loan or favour that may influence their judicial conduct.41

 

 

As indicated already, the adoption of the Judicial Service Act, the Judicial Service Regulations and the Judicial Service (Code of Ethics) Regulations has been made in order to enhance the mandate, role and responsibility of the JSC under the Constitution. There are many provisions in these Acts that have a direct bearing on judicial independence and those provisions are an expression of the commitment of JSC towards promoting judicial independence. These include personal and institutional independence, integrity, propriety, equality, impartiality and competence and diligence.42   Other important aspects related to judicial independence relate to the need to curb corruption, dishonesty and involvement in political activities.43   These are similar to the principles expressed in s 165. Therefore to a large extent, by including these values and principles as part of the ethics that the judiciary should abide by, the JSC’s constitutional mandate of promoting judicial independence is made very clear.

 

 

2.3 Composition of JSC and judicial independence

 

The composition of the JSC itself, in theory and in practice, has great implications for the independence

 

of the judiciary and its integrity. This is because if the JSC is not composed of fit and proper persons

 

41 Section 165 (5)

42 Section 4

43 Third Schedule to Section 45 of the Judicial Service Regulations

 

 

 

 

 

 

or is packed with people who advance the interests of a certain faction, then this will be a threat to judicial independence. Madhuku therefore correctly notes that the extent to which the appointment of judges is free from political manipulation is largely reliant on the independence of the JSC itself.44

In terms of composition, s 189 (1) states that the JSC is made up of the Chief Justice, Deputy Chief Justice, Judge President of the High Court, one judge nominated by other judges, Attorney-General, Chief Magistrate, Chairperson of the Civil Service Commission, three practicing legal practitioners, one professor or senior lecturer of law, a public accountant and a person with human resources experience. The Chief Justice presides over the meetings of the JSC.45 Section 189(3) states that some members of the JSC will serve for only one non-renewable term of six years. Those that serve one term include the judge nominated by other judges, legal practitioners, law professor or lecturer, public accountant and human resources person.

 

 

An analysis of the composition of the JSC shows that there has been an attempt to promote diversity in terms of representation of various interests. Further, the inclusion of the representatives of the senior members from the judiciary and the independent legal profession goes a long way in ensuring judicial independence, integrity of the judicial sector and impartiality of judges and magistrates. Manyatera and Fombad, rightly note that such a composition might augur well for the assessment of judicial candidates as most of the members are well placed to critically scrutinise the suitability or otherwise of the candidates to the judicial office.46

 

Apart from these observations, however, there are several issues to examine as they may in practice affect decisions of the JSC to effectively promote judicial independence. The first issue is that the there are two opportunities for Presidential appointment of members of JSC. These include the human resources person in terms of s 189(1) (k) and a possible appointee by the President from the academic field in terms of s 189(1) (i). Section 189(1)(i) states that one professor or senior lecturer

 

 

44 L. A Madhuku (2002), Journal of African Law 238; see also L. Chiduza op cit note 26 at 379.

45 Section 189 (2)

46 Manyatera and Fombad op cit note 6 at 18

 

 

 

 

 

of law designated by an association representing the majority of the teachers of law at Zimbabwean universities or, in the absence of such as association, appointed by the President. What is worrying about this provision is that, it is possible that such an association might not exist. If that is the case, then the President will make an appointment of a senior law lecturer or a professor to sit in the JSC for a period of six years. Section 189(1)(i) and (k) are just a simple indication of how it is virtually impossible to completely exclude political appointments to the JSC.

 

 

The second point arising from Section 189 in relation to nominations by associations is that it is not clear what criteria the associations will use, within their internal systems, to select members who will sit in the JSC. Both the Constitution and the Judicial Service Act appear to be silent on the qualities and abilities of members that may be chosen to represent their associations in the JSC. The importance of this is that given the crucial role the JSC is supposed to play in the appointment, removal and administration of justice the qualities of people who should be chosen by the associations to sit in JSC should also fit within the framework of what is called a fit and proper person.

 

 

The third and somewhat worrisome point is that, as in other countries, the Chief Justice is the Chairman of the JSC. The Chief Justice already has other responsibilities including head of the Supreme Court and the Constitutional Court. There is too much concentration of powers in one individual, and there is a high chance of him failing to effectively fulfil his duties.

 

Comparatively, however, the South African JSC has been criticised as heavily weighted with Presidential and parliamentary appointees and in that sense, it has become too political.47 This is because South Africa adopted a multistakeholder approach. The South African JSC is made up of representatives of the judiciary, legal profession, including attorneys, academics, advocates, political parties represented in parliament, members of the national and provincial executive and presidential appointees.48

 

 

47 E. Camer “Judicial Selection Processhttp:www.courtingjustice.com/judicialselection.html, accessed 4 November 2015

48 See Democratic Governance and Rights Unit (DGRU) “Judicial Selection in South Africa” (2010) www.dgru.uct.ac.za/usr/

dgru/…judicial%20selectionoct2010pdf, accessed 9 November 2015

 

 

 

 

 

 

Commenting on the composition of the South African JSC, Magaisa stated that it is a system that says democracy is about majority rule, but it also considers the interests of the minority and recognizes the importance of skills and expertise.49   This is a sober assessment of the position in South Africa, but it does not make the system attractive in any way since it is heavily composed of political players. It defeats the whole purpose of judicial independence and it inevitably raises the risk of political-party based deliberations and decision making.

 

 

2.4 Appointment of judges generally

 

Appointment of judicial officers has a great bearing on judicial independence. Theoretically, there are several threats to judicial independence that may be brought about by judicial appointments. Executive controlled judicial appointments processes mostly result in “court packing”. The International Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa recommend that an independent body should be entrusted with selection of judicial officers.50 There are a wide variety of judicial appointment mechanisms world-wide that reflect different levels of adherence to the concept of judicial independence.51   In the USA, for example, the President appoints judges whom are then subjected to interrogation by the Senate. During apartheid in South Africa, the courts were packed with political appointees and prosecutors and judges had to follow the direction of the incumbent leaders and deal with enemies of the apartheid regime.52

 

As stated already, the Latimer House Guidelines makes it clear that constitutional systems should have an appropriate independent process in place for judicial appointments which should be made by a JSC and based on merit,53 while judicial positions are also advertised.54 What this boils down to

 

 

49 A. Magaisa “Does the public have a role in Zimbabwe’s new Judicial appointment process?” (July 2014) http://alexmagaisa.

com/does/-the-public-have-a-role-in-zimbabwes-new-judicial-appointments-process/, accessed 30 October 2015

50 L.Chiduza op cit note 26 at 376

51 Ginsburg and Garoupa “The Comparative Law and Economics of Judicial Councils” 2008, Berkeley Journal of International

Law Vol 27.1.53 quoted by Manyatera and Fombad op cit note 6 at 2

52 J. B Diescho op cit note 1 at 35

53 Principle II of Annex of the Commonwealth (Latimer House) Principles on the Three Branches of Government (2003) and

see also Principle 12.3 of the Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (2010)

54 Latimer House Guidelines, 1998

 

 

 

 

 

is that to secure judicial independence, judicial appointments should be made on the basis of clearly defined criteria and a publicly declared process to enhance equal opportunity.55   On tenure, the UN Basic Principles on the Independence of the Judiciary state that once a person is appointed as a judge, their tenure should be guaranteed until mandatory retirement age or expiry of their term of office. Therefore, security of tenure is an important factor in promoting judicial independence.

 

 

2.5 The appointment process and role of JSC in Zimbabwe

 

As stated, the JSC plays a role in the selection and appointment of judges, magistrates and other judicial officers. The appointments are in terms of the Constitution and the Judicial Service Act. In order to critically assess the performance of the JSC on judicial appointments it is important to analyse the specific rules first.

 

Section 180(1) provides for the appointment of all judges and s 180(2) goes on to state that whenever it is necessary to appoint a judge, the JSC must advertise the position, and invite the President and the public to make nominations. Thereafter, JSC is required to prepare a list of three qualified persons as nominees and submit the list to the President whereupon the President must appoint one of the nominees. However, if the President considers that none of the persons on the list submitted by the JSC is suitable for appointment, he must require the JSC to submit a further list of three qualified persons from which he will appoint one of the nominees.56   Another important provision is s 184 which provides that the appointments to the judiciary must reflect broadly the diversity and gender composition of Zimbabwe. What is clear is that s 180 sets out the procedures for the appointment of judges and JSC plays a role. Below is an analysis of the intricate aspects about these provisions as well as what the JSC did in practice.

 

 

 

 

 

 

 

 

55 Latimer House Guidelines ibid

56 Section 180(3)

 

 

 

 

 

 

2.5.1 Advertisement of positions

 

The first issue and mandatory duty57 of the JSC is the requirement to advertise the position. Clearly, this is a positive development that may enhance transparency and also shows the application of and adherence to internationally accepted standards.58   Advertising has been hailed as vital in that it opens the door to a wider group of potentially qualified people59   and competition might improve the chances of selecting the best candidates. In compliance with this constitutional duty, in 2014, the JSC issued an advertisement calling for nominations to three positions each for Judges of the Supreme and High Courts. The advert was widely circulated and flighted in the media to invite members of the public to nominate suitably qualified persons to fill the positions for which nomination forms from the offices of the JSC in Harare, or the offices of Provincial Magistrates in the Provinces and also online from the JSC website (www.jsc.co.zw) were available. This was a positive transparent public relations exercise by the JSC.

 

 

2.5.2 Nominations by the President and the public

The second issue for consideration is the requirement that the JSC should invite the President and the public to make nominations.60 This means the President and the public are all required to make nominations, yet the President is responsible for appointing the judges. Chiduza, rightly in our view, termed this provision alarming.61 In general, the fact that the President also nominates and at the same time appoints judges puts to the test the whole concept of judicial independence. The question that arises is whether the nominations by the public will have any effect since the President is also required to submit nominations.62 Magaisa aptly stated that the situation creates a moral hazard, which he called the risk that the appointing authority is more likely to prefer his/ her own nominees for appointment over those by the public.63   Magaisa went on to recommend

57 A. Magaisa op cit note 47.

58 Principle II of Annex of the Commonwealth (Latimer House) Principles on the Three Branches of Government (2003) calls for advertisement of judicial positions; see also Principle 12.3 of the Measures for the Effective Implementation of the Bangalore Principles of Judicial Conduct (2010)

59 Democratic Governance and Rights Unit (DGRU) op cit note 46 at 26

60 Section 180(2)(b)

61 L. Chiduza op cit note 26 at 382

62 A. Magaisa op cit note 47

63 A. Magaisa op cit note 47

 

 

 

 

 

that the JSC should develop safeguards such as being fair, impartial and give equal opportunity to all candidates regardless of the source of their nomination, ensure a merit based approach, disclose the source of nomination ─ whether it was the President or the public ─ and disclose all information about the candidates including their personal background, qualifications and track records. The submissions by Magaisa are very valid; judicial independence will be compromised if the President is to appoint his own nominees.

 

 

In practice, the JSC invited the public to make nominations when it issued the advert for positions of judges at the Supreme and High Courts in 2014. It is assumed that the public indeed made nominations, although it is not clear which section of the public did so. One can only speculate that it is most likely the legal fraternity. It is also not clear how the President was invited to nominate and whether he indeed made nominations as the JSC does not disclose detailed information about the whole process. These are some of the reasons why the assertion and call by Magaisa for disclosure of the source of nominations for candidates remains valid.

 

 

2.5.3 Short listing for public interviews

The requirement that the JSC should conduct public interviews is also a progressive approach to judicial appointments. On this point, Magaisa stated that after calling for nominations the JSC is required to consider and shortlist them if necessary, (although it is unclear whether Magaisa was referring to any Constitutional section when he stated this or whether he was simply referring to standard practice) and then the JSC should carry out public interviews of the prospective candidates.64 There is nowhere in s 180 where it is stated that the JSC will consider and shortlist candidates. The only reference to a list is the list prepared by JSC that will be submitted to the President for appointment after the interviews or a second list, in the event that the President rejects the first list. Therefore, what is not clear from the Constitution is the process the JSC will go through in vetting, selecting, screening or shortlisting candidates. It is also not clear within the text of the Constitution if the screening, vetting or shortlisting is done by a special committee within the JSC. This is an important

 

64 Magaisa op cit note 47

 

 

 

 

 

 

process that goes to the core of judicial independence in that during shortlisting, if the JSC is not independent as well, it might tinker with the process by selecting persons who may not be fit and proper, but who represent executive interests.65

 

 

For interest sake, the Regulations outline some of the General principles applicable to recruitment of members used by the JSC such as merit, knowledge, experience, qualifications and potential for training.66 They also provide that the JSC shall complete to its satisfaction all the checks necessary to confirm that the candidate is eligible for appointment.67   The point here is that what is in the Constitution is not adequate in terms of procedures that are followed by JSC in selecting, screening or shortlisting candidates who would have been nominated by the public or the President so that they attend public interviews for the position of a judge. This point is made, despite the fact that the JSC might have some policy guidance document it uses to screen, evaluate or shortlist nominees. This leaves room for manipulation of the system and paints an unclear picture on the process.

 

 

However, the above analysis is contrary to the view of Manyatera and Fombad who stated that one inescapable conclusion from an analysis of the new judicial selection procedures is that they are intended to ensure greater transparency and accountability in the selection of judges.68   This general conclusion is only acceptable if this new process is compared to the unknown system under the Lancaster House Constitution. However, it is submitted that the level of transparency is not sufficient under the current system where the vetting, screening, evaluation process and short-listing procedures of candidates to attend public interviews are not clearly stated.

 

In practice, the JSC has managed to organise the first batch of public interviews for the positions that were advertised in 2014. The public interviews elicited much public interest and excitement. However, what emphasises the need to come up with a strong and publicly known screening,

 

65 On a “fit and proper person” see Section 177(2), 178(2) and 179(2)

66 Section 3

67 Section 5(5)

68 Manyatera and Fombad op cit note 6 at 20

 

 

 

 

 

evaluating, selecting or shortlisting process is the fact that some of the candidates who attended the public interviews performed dismally and this was noted even by ordinary members of the public. Some of the candidates did not have adequate knowledge of the law and procedures. The question is then whether these persons were properly passed through the screening or vetting process. If they did, questions remain on the nature and manner of the secret vetting and process itself.

 

 

2.5.6 List of qualified persons, appointment or rejection

 

The other function of JSC is to submit a list of three qualified persons as nominees to the President,69 whereupon the President must appoint one of the nominees to office. However, the President holds an ace card. He may reject the list of three nominees that has been submitted by the JSC using s

180(3). The JSC will then be required to submit a second list from which the President must choose one nominee.70 This may sound like a buffer for ensuring that a “suitable” candidate” is chosen although it may be a point for further discussion as to whether the phrase “fit and proper person”71   to hold office as a judge and the phrase “suitable for appointment”72   are referring to the same qualities or not. However, it is inevitable that there is a degree of pressure on the JSC when the President rejects the first list, and there is need for a second list to be submitted to him.

 

Manyatera and Fombad stated that the fact that executive discretion is limited to the list submitted by the commission goes a long way in guaranteeing the separation of powers and independence of the commission at the appointment stages.73   This point is contested and contradicted by Chiduza, however, who argues that the President might refuse to make an appointment if his preferred candidates are not included on the first list submitted by the JSC.74   This is a vital point, and we associate with Chiduza as there is no safeguard in the Constitution against this eventuality. Magaisa, alive to the dangers of Presidential nominations, suggests that the only safeguard to curb this is the disclosure of

 

69 Section 180(2)(d) and (e)

70 A. Magaisa op cit note 47

71 Sections 177(2), 178(2) and 179(2)

72 Section 180 (3)

73 Manyatera and Fombad op cit note 6 at 21

74 L.Chiduza op cit note 26 at 382.

 

 

 

 

 

 

the sources of the nominees from the President and the public.75 This may help to curb the possible abuse of the powers by the President to reject the first list submitted by the JSC since it will put the whole process under the public spotlight.

 

 

2.5.7 Appointment of Magistrates and role of JSC

 

The appointment of magistrates is now the responsibility of the JSC in terms of s 182 which states that an Act of Parliament must provide for the appointment of magistrates and other judicial officers, but magistrates must be appointed by the JSC. It also states that such appointment must be made transparently and without fear, favour, prejudice or bias. Previously magistrates were appointed by the Public Service Commission (PSC) under the ministry of Public Service and this made them less independent from the executive. The Judicial Service Regulations regulates the appointment of members of the judiciary by setting out some general JSC principles, such as suitability with regard to task knowledge, relevant experience, qualifications and qualities and potential for training and development.76 In some cases entry examinations may be set.77

 

 

In theory, the transfer of the appointment of magistrates from the PSC to the JSC is a welcome development. However, it might be argued that magisterial appointments have not been treated with as much weight as judicial appointments. The motivation for this is practical, since it would be difficult and costly to advertise, invite public and presidential nominations, and hold public interviews for appointment of magistrates given the high number of magistrates required at various stations in the country.

 

It may be stated that although magistrates belong to lower courts, the concepts of judicial independence, impartiality, rule of law and democracy should not be sacrificed because of the court hierarchy system. It is also important to note that while the appointment of magistrates does not enjoy extensive

 

 

75 See generally Magaisa, op cit note 47, and also Democratic Governance and Rights Unit op cit note 46.

76 Section 3

77 Section 4

 

 

 

 

 

constitutional recognition like that of judges, this may pose a threat to judicial independence because magisterial courts are the courts of first instance78 for the appearance of litigants and for some it is their only contact with the justice delivery system of Zimbabwe.79 Many problems related to judicial independence, impartiality, lack of competence and corruptions among others occur at the lower courts.

 

 

The Magistrate Courts are also a fertile ground for political interference and court packing if the appointment processes by the JSC are not watertight in practice. Many people are convicted and may not appeal, or their cases are not reviewed. This is despite the fact that the appeal or review process is supposed to act as a way of ensuring that people who face injustice at the lower courts at least find justice in the upper courts. In the case of Van Rooyen and Others v The State and Others, Chief Justice Chaskalson (as he then was) stated that;

“…magistrates’ courts are courts of first instance and their judgments are subject to appeal and review. Thus higher courts have the ability to protect the lower courts against interference with their independence, but also to supervise the manner in which they discharge their functions.”80

 

 

In practice therefore, judicial independence should not be restricted to judges of the superior courts; it should begin at the lower courts where external influence and pressure is easy to exert on adjudicating personnel.

 

 

2.5.8 Financial independence

Section 164 (2) (b) provides that the state must assist and protect the court to ensure their independence. This provision entails that the state must also provide all resources including financial resources for the courts to effectively carry out their mandate. Regarding financial independence, s 188 (3) of the Constitution states that the salaries, allowances and other benefits of members of the judiciary are a charge on the Consolidated Revenue Fund. Section 20 of the Judicial Service Act

 

 

78 Magistrates Court Act [Chapter 7:10]; Section 5 states that the Magistrate Court shall be a court of record.

79 Judicial Service Commission, www.jsc.co.zw, accessed 10 November 2015

80 Van Rooyen and Others v The State and Others (2002) ZACC 8; 2002 5 SA 246

 

 

 

 

 

 

states that the funds of the Judicial Service shall consist of moneys appropriated by Act of Parliament for the salaries and allowances payable to and in respect of members of the Judicial Service and the recurrent administrative expenses of the Judicial Service. Funds of the JSC also include any donations, grants, bequest made to the Judicial Service and accepted by the Commission with the approval of the Minister. These provisions raise the question on whether the courts will be independent if the JSC and the courts rely on the state for financial resources. However, it is important to point out that the JSC has a duty to approach the state for adequate funding for salaries and administration costs.

 

 

  1. General challenges faced by the Judicial Service Commission

 

The JSC is now an established constitutional body, having existed since 1987. As with many other Commissions and constitutional bodies aimed at safeguarding democracy and the rule of law, it continues to face many challenges ranging from the limitations of financial resources and human resources, among others.

 

 

3.1 Financial resources

The lack of adequate financial resources for the JSC has affected the effective and efficient administration of justice. Most administrative issues which the JSC deals with require funding and these include construction of courts, stationery, recording equipment, libraries, transcribers, computers, transport and furniture. Many of the Magistrates Courts in Zimbabwe, except the regional magistrates, lack basic modern technology such as desktop computers. This affects their research capacity given the current worldwide reliance on internet and online sources of legal data. Further, case management has also been a major problem at both the High Court and Magistrates Courts where court records have been known to occasionally disappear.81 Generally, if the state is failing to provide adequate funds to the JSC it means that it is failing to fulfill its duty in terms of Section 164(2)(b) which requires the state to assist and protect the courts to ensure their independence, impartiality, dignity, accessibility and

 

81 This was again confirmed by Chief Magistrate Guvamombe who stated that “because of manual filing we sometimes lose records or take time to locate them, thus delaying court proceedings; see Zimbabwe jobs freeze puts pressure on country’s judiciary, The Independent, March 21, 2014. http://www.theindependent.co.zw/2014/03/21/zimbabwe-jobs-freeze-puts- pressure-countrys-judiciary/

 

 

 

 

effectiveness.

 

 

 

 

3.2 Human resources

 

The main challenge related to human resources is the shortage of magistrates country-wide as well as the paucity of magistrates’ court buildings. Reports indicate that the shortage of magistrates was caused by the fact that JSC had frozen recruitment of magistrates due to budgetary constraints.82

This has reportedly resulted in magistrates working longer hours which may compromise the quality of judgments.83   Although there is a shortage of magistrates it has been reported that there is no backlog at the magistrate’s courts. This is commendable due to the efforts of JSC. However, it is understood that the High Court has a huge backlog which it is battling to clear and this means that many litigants will not have access to justice.84 This will be contrary to the constitutional requirement that justice must not be delayed.85

 

 

3.3 Training

The closure of the Judicial College in 2008, due to financial challenges, has also affected training programmes for magistrates in Zimbabwe. However, acknowledging the role played by the Judicial College, the JSC is making efforts to reopen it for purposes of offering refresher courses to magistrates,86 with the objective of improving the quality of judicial service.87   Training of judges and magistrates is very important as it may help to ensure that members of the judiciary are aware of new legal developments, trends and approaches. It is in this light that even the Judicial Service Regulations acknowledge the need for such a college of continual education.88

 

 

 

 

 

 

 

 

 

82 The Independent, op cit note 79

83 The Independent, op cit 79

84 It must be highlighted that the introduction of digital records in the High Court has helped solve this problem.

85 Section 165(1)(b)

86 The Herald ‘JSC resuscitates Judicial College’ (July 30, 2015)

87 The Herald op cit note 83

88 Section 42

 

 

 

 

 

 

  1. Addressing the challenges

 

 

 

 

4.1 Funding

 

The delivery of justice and its administration has cost implications. Poor funding is detrimental to justice delivery, and jeopardizes the work of judicial officers and various other stakeholders in the justice delivery system. Thus, the fact that government continually faces financial challenges and competing budgetary commitments does not justify underfunding or under-resourcing the judiciary. It is important that the state give priority funding to the judiciary as this guarantees judicial integrity and the quality of judicial services. The state has a duty to ensure that the judiciary’s mandate is both facilitated and enhanced. It has been suggested that to avoid political influence, the budget for the judiciary should be set or fixed as a percentage to be charged on the national budget every year.89 However, it is also important for the JSC to ensure that it properly manages and accounts for all funds received in line with the Public Financial Management Act and the Audit Office Act.

 

 

Further, to ensure effective and efficient administration of justice, JSC should also find ways of getting additional funding from different sources so that it is able to recruit more magistrates and facilitate the appointment of High Court judges. The conditions of service (salaries) for judicial officers should also be improved to curb corrupt activities.

 

 

4.2 Independent judicial monitoring

Another important suggestion is for the JSC to work closely with NGOs that can assist in monitoring the performance of the courts. These groups can also assist the JSC by compiling information and carrying out background checks, on a voluntary basis, on any nominees for judicial appointment for purposes of screening. This system is being used by the Democratic Governance and Rights Unit in South Africa.90

 

 

 

89 See generally L. Chiduza op cit note 26 at 395

90 Information available at http://www.dgru.uct.ac.za/ accessed on 20 November 2015.

 

 

 

 

 

4.3 Screening, vetting and selection of nominees

 

On the process of appointing judges, the JSC should improve its screening and selection of nominees invited for public interviews based on well-defined and detailed criteria. If the JSC has already adopted some guidelines then these should be published on the JSC website to build public confidence in the judicial appointment process. Further, as suggested by Magaisa, a set of safeguards to protect public confidence in the judicial appointment process should be adopted that includes disclosure of the source of nomination as to whether it was the President or the public, and sufficient disclosure of all information about the candidates including their personal background, qualifications and track records.

 

 

  1. Conclusion

 

There is little doubt that an independent judicial service and a proactive Judicial Service Commission are both critical in the realisation and promotion of rule of law and constitutionalism in Zimbabwe. The Constitution generally enhances the role and purpose and integrity of the judicial system in Zimbabwe, and clearly departs from the system established under the 1980 Lancaster House Constitution. The relevant provisions, as has been demonstrated throughout the article, go a long way towards promoting judicial independence, integrity, transparency and accountability. However, the system is not perfect, with practical as well as legal loopholes that need to be addressed going forward. It is however clear that there is an attempt in the Constitution to balance the interests of various stakeholders in establishing the mandate, scope of powers, the nature of appointment and the constitution of the JSC. This attempt is inevitable in view of the fact that, as an institution that protects and safeguards democracy, the JSC operates within the confines of the larger political environment. What is inescapable is the fact that this constitutional institution greatly contributes to judicial independence, which in turn is critical for the attainment of the rule of law and constitutionalism in Zimbabwe.

 

 

LANGUAGE RIGHTS IN SECTION 6 OF THE ZIMBABWEAN CONSTITUTION:

 

LINGUISTIC DIVERSITY AFFIRMED AND ACCOMMODATED?

 

 

 

 

Innocent Maja1

 

 

 

 

Abstract

 

This article examines the extent to which the language rights regime in s 6 of the Zimbabwean Constitution affirms and accommodates linguistic diversity in Zimbabwe. The study further suggests ways in which Zimbabwe could practically implement the language rights norms in s 6 of the Constitution.

 

 

Introduction

 

Section 6 of the Zimbabwean Constitution (“the Constitution”)2 is an embodiment of the constitutional regime for the protection of language rights in Zimbabwe. It provides for three crucial concepts that help protect language rights, namely: a) official language status; b) use of official languages; and c) promotion of use and development of all languages in Zimbabwe.

 

 

Perhaps the relevant question is why study the constitutional protection of language rights in

 

Zimbabwe? Four reasons come to mind.

 

 

 

 

First, the intrinsic value of language affirms the need to protect language rights. Language is a mirror

 

of one’s cultural identity,3 a vehicle of culture,4 a medium of expression,5 a means of transfer of

 

1 LLBS (Hons) (University of Zimbabwe); LLM (Human Rights and Democratisation in Africa) & LLD (University of Pretoria);

mrmaja@hotmail.com; Lecturer in Law, University of Zimbabwe.

2 Constitution of Zimbabwe (Amendment Act 20) of 2013

3 Webb and Kembo-Sure (eds) African voices (2000) 5 contend that in Africa, ‘people are often identified culturally

primarily (and even solely) on the basis of the language they speak.’

4 Kwesi Kwaa Prah, in his 2006 report commissioned by Foundation for Human Rights in South Africa ‘Challenges to the promotion of indigenous languages in South Africa’ 3-4, argues that language is a central feature used to transmit, interpret and configure culture.

5 In Malawi African Association and Others v Mauritania (2000) AHRLR 149 (ACHPR 2000) para 136, the African Commission on Human and Peoples’ Rights established that ‘[l]anguage is an integral part of the structure of culture; it in fact constitutes its pillar and means of expression par excellence. Its usage enriches the individual and enables him

 

 

 

 

 

knowledge6 and a source of power, social mobility and opportunities.7 The constitutional protection

 

of language rights recognises, affirms and accommodates linguistic diversity.

 

 

 

 

Second, the legal protection of language rights help address the problem of discrimination of linguistic minorities based on language that has been prevalent in the history of most African states including Zimbabwe. According to Skutnabb-Kangas, the promotion and protection of linguistic human rights is an attempt to apply the concept of human equality so as to cover the use of language and, hence, make any linguistic discrimination visible and problematic, and abolish such discrimination.8

 

Africa’s pre-colonial and post-colonial history shows how political power relations9 introduced inequality in terms of language use to African languages that otherwise had the same linguistic value.10 Again, the post- colonial drive towards national unity, social integration and construction of a national identity in most African countries led to language policies that favoured the use of one official lingua franca for purposes of administrative efficiency to the exclusion of other languages.11 According to Bamgbose, most African countries adopted the language as-a-problem orientation that favoured one language and

 

 

 

 

 

to take an active part in the community and its activities. To deprive a man of such participation amounts to depriving him of his identity.’

6 KL Dooley & LB Maruska ‘Language rights as civil rights: Linguistic protection in the post- colonial democratic development of Canada and South Africa,’ (2010) 3 Journal of global change and governance 1 2 argue that “Language is the means by which knowledge is transferred between individuals, between individuals and the state (and vice versa), and between individuals and subsequent generations through educational practices and various forms of culture left as nationalistic directives for each new generation to carry on the traditional ‘mother tongue’ of their particular national group.”

7 S Makoni & B Trudell ‘Complementary and conflicting discourses of linguistic diversity: Implications for language planning’

(2006) 22(2): 14-28 Per Linguam 21.

8 T Skutnabb-Kangas ‘Linguistic human rights, past and present,’ in T Skutnabb-Kangas & R Phillipson (eds) Linguistic Human Rights: Overcoming Linguistic Discrimination (1994) 98-99 summarised linguistic human rights as follows: a. Every social group has the right to identify positively with one or more languages and to have such an identification accepted and respected by others. b. Every child has the right to learn fully the language(s) of his/her group. c. Every person has the right to use language(s) of his/her group in any official situation. d. Every person has the right to learn fully at least one of the official languages in the country where s/he is a resident, according to her/his own choice.

9 T Skutnabb-Kangas, ‘Multilingualism and the Education of Minority Children’ in T Skutnabb-Kangas & J Cummins (eds),

Minority Education: From Shame to Struggle (1988) 12.

10 K Henrard Devising an adequate system of minority protection: Individual human rights, minority rights and the right to self-determination (2000) 244.

11 See M Beloff, ‘Minority Languages and the Law’ (1987) Current Legal Problems 140.

 

 

 

 

 

 

restricted other minority languages.12 Such language policies invariably led to linguistic assimilation,13

 

linguistic loss and discrimination against linguistic minorities.14

 

 

 

 

Third, most linguistic minorities are numerically inferior, politically non- dominant, poor and socially vulnerable. They require the assistance of the law to protect their rights in a functioning ethnolinguistic democracy. S v Makwanyane and Another established that democracy demands that the law protects vulnerable (linguistic) minorities who are unable to protect themselves due to their numerical inferiority.15

In a continent awash with states that claim to be democratic16 and have numerous linguistic minority groups,17 (for example, over 250 in Nigeria,18 over 200 each in Sudan19 Chad20 and Cameroon,21

more than 100 in Tanzania,22 over 20 in Zimbabwe23 and over 15 in South Africa),24 all clamouring

 

 

12 It is interesting to note that A Bamgbose Language and the nation: The language question in Sub Saharan Africa (1991) identifies two approaches to minority language rights. The first is the language-as-a-problem orientation and it favours a single language and attempts to restrict (and sometimes annihilate) the role of minority languages. The second is the language- as-a-resource orientation that sees all languages as useful cultural and identity resources that need to be accommodated to foster strong, representative and sustainable unity. This thesis supports the latter orientation.

13 S May ‘Uncommon languages: The challenges and possibilities of minority language rights’ (2000) 21(5) Journal of Multilingual and Multicultural Development 366 369 describes the process of linguistic assimilation as that involving a. introduction of majority language replaces the functions of a minority language, b. linguistic minorities shifting to speak the majority language. This shift has three processes that include i) pressure to speak a majority language in the formal domain, ii) lesser use of minority language and ii) the replacement of a minority language with a majority over two or three generations.

14 See J Blommaert ‘Language policy and national identity’ in T Ricento (ed) An introduction to language policy: Theory and method (2006) 10; N Dorian ‘Western language ideologies and small-language prospects’ in L Grenoble & L Whaley (eds) Endangered languages: Language loss and community response (1998) 3–21. The concept of discrimination is explored in the definition section of this Chapter.

15 State v T Makwanyane and M Mchunu 1995 3 SA 391 (CC) argues that “[t]he very reason for…. vesting the power of judicial review of all legislation in the courts was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalized people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.”

16 See S Dersso & F Palermo Minority rights in M Tushnet et al (eds) Routledge Handbook of Constitutional Law (2013)

162.

17 A Lodhi ‘The language situation in Africa today’ (1993) 2(1) Nordic Journal of African Studies 79 81 argues that Africa has at least 2 000 languages spoken in its 54 countries.

18 J Maxted & A Zegeye ‘North and Central Africa’ World directory of minorities (1997) 405- 408.

19 See RK Hitchcock ‘Human rights and indigenous peoples in Africa and Asia’ in DP Forsythe & PC McMahon (eds) Human rights and diversity (2003) 209.

20 Maxted & Zegeye (n 18 above).

21 Dammers & Sogge ‘Central and Southern Africa’ in World directory of minorities (1997) 479.

22 See RE Howard Human rights in Common Wealth Africa (1986) 97.

23 Section 6 of the Constitution recognizes 16 languages.

24 Section 6 of the Constitution recognizes 11 languages and also lists the San and Koi languages.

 

 

 

 

 

for protection, a study of the legal protection of minority languages and linguistic minorities presents

 

African states with useful criteria they can use to balance different linguistic interests in their territories.

 

 

 

 

Fourth, the legal protection of language rights contributes towards the preservation of the identity of language speakers. In Africa, identity is linked to language. Webb and Kembo-Sure argue that in Africa, “people are often identified culturally primarily (and even solely) on the basis of the language they speak.”25 Examples include the Tonga, Ndebele and Shona in Zimbabwe. Constitutional recognition of language rights therefore aids the preservation of the identity of linguistic minorities. This is especially significant in view of Henrard’s contention that the right to identity26 has been regarded as part of the “peremptory norms of general international law”27 used to protect minorities.28

 

 

The preceding discussion therefore indicates that there is merit in studying about the legal protection of language rights in Zimbabwe.

 

Because Zimbabwe has not yet developed language rights jurisprudence, the paper uses international and foreign comparative law jurisprudence in its analysis. The analysis also takes into account constitutional values in order to preserve the Constitution’s normative unity or value coherence.29 The constitutional values include the principles of accommodation of diversity, multilingualism, fundamental human rights30

 

25 V Webb & Kembo-Sure (eds) op cite note 3 at 5.

26 The right to identity is impliedly provided for in article 27 of the ICCPR and explicitly enshrined in article 1 of the 1992

Declaration on Minorities and article 1 of the UNESCO Declaration on Race and Racial Prejudice.

27 Henrard (n 10 above) who argues that the Badinter Arbitration Commission, established in 1991 by the European union in the wake of the break-up of Yugoslavia (Council of Ministers, EU, Joint Declaration on Yugoslavia, 27 August 1991. Opinion no 2, 20 November 1991) explicitly recognised that the right to identity of minorities is part of the ‘peremptory norms of general international law.’

28 P Thornberry, “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic

Minorities: Background, Analysis, Observations and an Update” in A. Phillips & A Rosas (eds), Universal Minority Rights (1995)

392 argues that the right to identity is sometimes regarded as constituting the whole of “minority rights.”

29 See Executive Council of the Western Cape Legislature v President of the RSA 1995 4 SA 877 (CC) para 204 &S v Mhlungu

1995 3 SA 867 (CC) paras 45, 105. SA Constitutional Court jurisprudence in MEC for Education, KwaZulu-Natal v Pillay 2008

1 SA 474 (CC) paras 63-64 & De Reuck v Director of Public Prosecutions, Witwatersrand Local Division 2004 1 SA 406 (CC) para 55 has established that constitutional values are mutually interdependent and that collectively they form a unified, coherent whole.

30 Section 44 of the constitution places an obligation on the state to respect, protect, promote and fulfil rights enshrined in

the constitution. It provides that ‘The State and every person, including juristic persons, and every institution and agency at

 

 

 

 

 

 

and freedom, equality of all human beings, peace, justice, tolerance, fairness and the rule of law.31

 

 

 

 

The paper is divided into six parts. The first part analyses the legal and practical implications of official language status. The second section explores the concept of the use of official languages. The third part highlights the legal implications of promotion of use of all languages. The fourth section identifies the implementation gap created by s 6. The fifth part investigates whether s 6 language rights can be limited. The final segment concludes the discourse.

 

 

  1. Official language status

 

Section 6(1) of the Constitution officially recognises 16 languages namely, Chewa, Chibarwe, English, Kalanga, Koisan, Nambya, Ndau, Ndebele, Shangani, Shona, sign language, Sotho, Tonga, Tswana, Venda and Xhosa. Interestingly, s 6 neither defines an official language nor explains the legal implications of affording official language status to a language. There is no language rights jurisprudence from the Constitutional Court to help clarify these aspects. International law helps clarify the legal implications of declaring a language official.

 

 

  1. What is an official language?

Even though international law does not define an official language, De Varennes convincingly defines an official language as “a form of legal recognition of an elevated status for a language in a state or other jurisdiction.”32 A UNESCO report defines an official language as “a language used in the business of government – legislative, executive and judicial.”33

 

 

 

 

every level must respect, protect, promote and fulfil the rights and freedoms set out in this Chapter.’

31 See the Preamble and sections 3 and 6 of the Constitution.

32 F de Varennes ‘Draft report on international and comparative perspectives in the use of official languages: models and

approaches for South Africa’ (October 2012) 4. In the same vein, a decision of the Spanish Constitutional Court 82/1986 of

26 June, which decided on the unconstitutionality appeal against the Basic Law on the Normalisation of Basque Language Use, second legal fundament stated that ‘… a language is official when it is recognised by public authorities as the normal means of communication within and between themselves and in their relations with private individuals, with full validity and legal effects.’

33 UNESCO Report entitled ‘The use of vernacular languages in education,’ (1953) 46.

 

 

 

 

 

 

 

 

  1. b. What factors should be taken into account when a state decides to confer official language status on a language?

International law and foreign comparative law highlights that the declaration of official language status is a political process left to the discretion and prerogative of each state. For instance, in Podkolzina v Latvia,34 the European Court of Human Rights held that35

“… the Court is not required to adopt a position on the choice of a national parliament‘s working language. That decision, which is determined by historical and political considerations specific to each country, is in principle one which the State alone has the power to make.”

 

 

International law and foreign comparative law does not quite clearly define the factors that need to be taken into consideration when a state is considering affording official status to a language. For instance, in Diergaardt v Namibia,36 the United Nations Human Rights Committee (UNHRC) did not spell out the criteria used to afford official status to a language. Instead, the UNHRC took the view that whatever official languages a state freely chooses; it cannot use such a choice in a way which would violate international human rights law such as freedom of expression.

 

However, reference to foreign comparative law help reveal some of the criteria a state can use in considering to grant a language official status. For example, Podkolzina v Latvia establishes that the sovereign state can take into account historical and political considerations. The UN also took the view that the determination of an official language or languages is a historical, social and political process.37

 

34 Podkolzina v Latvia 2002 ECHR 34.

35 See Birk-Levy v France, application no. 39426/06, published on 6 October 2010.

36 Communication 760/1997, J.G.A. Diergaardt (late Captain of the Rehoboth Baster Community) et al. v. Namibia, UNHR Committee (6 September 2000) U.N. Doc. CCPR/C/69/D/760/1997 (2000). See also Communications 359/89 & 385/89, John Ballantyne and Elizabeth Davidson, and Gordon Mcintyre v Canada, UNHR Committee (31 March 1993) UN Doc. U.N. Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993)

37 Study of the problem of discrimination against indigenous peoples, UN Doc. E/CN.4/Sub.2/476/Add.6 states that “During the process of nation building, a language, usually that of the segment of the population which gains supremacy and imposes itself socially, politically and militarily on other segments in various regions and whose language dominates the other languages or dialects in the country, becomes, because of these extra-linguistic factors, the language of highest standing and, ultimately, the official language. Official recognition is of great importance to this and the other languages spoken in the country because, whether or not it is provided for in the Constitution or other basic law, such a selection means that this

 

 

 

 

 

 

Caportorti contends that these factors include the numerical importance of a linguistic community, their political and economic position within the state and the stage of development of a language.38

Vieytez summarises these social, historical and political considerations as a) the sociolinguistic situation of the country; b) the linguistic dynamics of the country and its context; c) the pre-existing legal situation and d) the political organisation of the state.39

 

 

The above analysis shows that whenever a state is considering affording official language status, it should take into account a) the number of people that speak the language, b) the level of development of the language, c) the extent of use of the language, d) the language’s history of discrimination, e) the functional load of the language in government business and f) the areas where the language is dominantly used.

 

 

  1. The levels of official language status

International law does not clearly stipulate whether or not the granting of official language status to at least two languages in a state implies that the languages enjoy the same status. However, useful guidelines could be obtained from Vieytez’s study40 that came up with four levels of official languages status that he calls officialities. The first level is what he calls ‘full officiality and dominant language.’ In this case, official language status shows all the possible effects and the language involved is considered an element of the state’s linguistic identity. The official language is fully used in government business. Examples of full officiality and dominant language include French in France or Monaco, Swedish in Sweden or Russian in the Russian Federation.

 

 

 

privileged linguistic instrument will be used in the various activities of the State… At the end of the colonial dependence… the people of many countries… faced the problem of having to decide which language would henceforth be the official language of their new State. During this process, what became the official language – either the single official or one of them – was often the language introduced by the colonizers; in a few cases, a national language was chosen.”

38 F Capotorti ‘Study on the rights of persons belonging to ethnic, religious, and linguistic minorities’ (1979) UN Docs. E/

CN.4/Sub.2/384/Rev.1, Sales No E78XIV1 75-76.

39 EJR Vieytez ‘Official languages and minority languages: Issues about their legal status through comparative law’ (2004)

II Mercator International Symposium: Europe: A new framework for all languages? 15.

40 EJR Vieytez (n 39 above) 24-25.

 

 

 

 

 

The second level of official language status is what Vieytez calls ‘full officiality and non-dominant language.’ In this case, a language is afforded full official language status but it is not dominant because of social limitations. The language is still an identity element of the state although it evokes a colonial past (Malta) and it is an element of a more symbolic nature generally based on historical or geographical explanations. Examples include Irish Gaelic in Ireland, Swedish in Finland, English in Malta, Russian in Belarus or French in Luxembourg.

 

 

The third level of official language status is what Vieytez calls ‘partial or limited officiality and dominant language.’ This level comes with two variations. The first variation is called ‘exclusive officiality’ where the territorial principle is strictly adopted and different languages are given official language status in the areas where they are dominantly spoken. This is the case of French or German in Switzerland or Belgium and the Swedish of the Aaland Islands. The second variation is called ‘shared officiality’ where official language status is shared by two or more languages within a territory, municipality, province or region. These are the cases of Feroese in the Feroe Islands, Greenlandish in Greenland, German in the South Tyrol, Russian in Transnistria or Crimea, Albanian in Kosovo or Catalan in Catalonia or the Balearic Islands.

 

 

The fourth and final level of official language status is what Vieytez calls ‘partial or limited officiality and non-dominant language.’ Again, this has two variations. The first variation is called ‘officiality in the institutional sphere of political autonomy.’ This refers to cases where a language, although giving way socially to the state language with which it shares officiality, benefits from some symbolic institutional presence in a sub state organised sphere. The second variation is called ‘officiality in the local institutional sphere without its own political power.’ In this case, official language status is largely limited in the institutional, geographical or population spheres. Examples include Slovenian in Italy, Serbian languages in Germany, Hungarian in Slovenia or Sami in Norway.

 

 

Vieytez’s observations and classification of official language status therefore reveal a need to clarify

 

 

 

 

 

 

the content of official language status granted to the 16 languages in s 6 of the Constitution and how

 

language rights provided for in s 6 can be practically implemented across Zimbabwe.

 

 

 

 

There are a number of practical ways that Zimbabwe can approach the challenge of implementing s

 

  1. The first approach may entail Zimbabwe adopting the Ethiopian model. The Ethiopian model has one language (Amharic) as the official language of the whole country through the medium of which federal services are provided and regional governments are given the discretion to confer official language status to the one or more languages spoken in that region.41

 

 

Using the Ethiopian model, Zimbabwe could use English as its official language of record (as is currently obtaining) and have other languages used concurrently with English at a provincial level taking into account the number of the speakers of that language in each particular province and other practicality considerations. For example, Shona can be the official language for Harare, Manicaland province and all the Mashonaland provinces. Ndebele can be an official language for Bulawayo and all the Matabeleland provinces. This approach will be reasonable and practical given the demographic and political structure established by the Constitution. Section 264 allows for devolution of powers and responsibilities to provincial councils. Given that most linguistic minorities are concentrated in specific areas across Zimbabwe, it would be easy for provincial councils to use an official language that is mainly spoken in that province or town.

 

The challenge with this approach though is that out of the 16 official languages, only English, Shona and Ndebele will be afforded official language status and would be used for government business in Zimbabwe’s 10 provinces. Such an approach would be in violation of s 6(1) in that it would reduce the other 13 official minority languages to symbolic official languages. Speakers of the other 13 languages could claim that they are being discriminated against on the basis of language.

 

 

 

41 Section 5 of the Ethiopian constitution. See also Fessha ‘A tale of two federations: Comparing language rights regime in

South Africa and Ethiopia’ (2009) African Journal of Human Rights 501.

 

 

 

 

 

A different approach might be needed in order for Zimbabwe to accommodate the other 13 official minority languages in a way that complies with s 6(1). This different approach may include the use of the other 13 languages in the cities and or towns where they are predominantly spoken. This territorial approach to minority language rights minimises the cost of implementing s 6(1) and reasonably protects minority languages and linguistic minorities in areas where they are concentrated.

 

 

Another approach may be for Zimbabwe to adopt the Belgian model where official language status is afforded to different languages spoken in different regions.42 Using this model, Shona can be the official language for Harare, Manicaland province and all the Mashonaland provinces. Ndebele can be an official language for Bulawayo and all the Matabeleland provinces. As argued above, other official languages would be excluded.

 

 

A third approach may be to combine national official language status with regional and municipal (or metropolitan) official language status.43 In this approach, all 16 languages will be official languages as prescribed by s 6(1) but they will be mainly used where the majority of the speakers are concentrated. This approach is reasonable, practical and or rational given Zimbabwe’s language demography.

 

According to Hachipola,44 the following languages are spoken in specified areas in Zimbabwe: Barwe (Nyamaropa, Nyakombu districts in Nyanga and the Muzezuru and Mukosa areas of Mudzi); Chewa/ Nyanja (mines and farms like Alaska, Trojan, Wankie, Shamva, Madziba, Mazoe, Acturus, Antelope, Mangura mines, Triangle, Hippo Valley sugar plantations, Mufakose, Mabvuku, Tafara, Matshobana, Makokoba, Njube, Tshabalala and Luveve); Chikunda (Lower Guruve (Kanyemba and Chikafa) and Muzarabani districts); Doma (Chiramba, Koranzi, Chiyambo, Mugoranapanja and Kuhwe areas of the Guruve District); Fingo/Xhosa (Mbembesi area near Bulawayo, Fort Rixon, Goromonzi (in

 

 

42 K Malan K Malan ‘The discretionary nature of the official language clause of the Constitution’ (2011) 26 SA Public Law

381-403.

43 More along the lines of Canada. See K Malan K Malan note 42 381, 400-403.

44 See SJ Hachipola ‘A survey of the minority languages of Zimbabwe’ 1998 25 and I Mumpande ‘Silent voices: Indigenous languages in Zimbabwe’ (2006) 7-9.

 

 

 

 

 

 

Chief Rusike’s area), Msengezi, Marirangwe, and Gwatemba); Hwesa (Northern part of the Nyanga District); Kalanga (Bulilima and Mangwe Districts, Nyamandhlovu District, Kezi, Tsholotsho and Matobo Districts); Nambya (Hwange, Tsholotsho, Western Lupane and around Hwange National Park); Shangani (Chiredzi District, Beitbridge (Chikwalakwala), Mwenezi (in Chief Chitanga’s area), Zaka (in Chiefs Tshovani and Mutshipisi areas), Mberengwa and Chipinge (in Gonarezhou); Sotho (Gwanda South (around Manama), Gwanda North (in Chief Nhlamba’s area), Bililimamangwe (Plumtree), Beitbridge, Shashe, Machuchuta, Masera, Siyoka, Kezi and Masema (in the Masvingo District); Tonga (Binga District, west and north-west parts of Lupane District, Hwange, Chirundu (Kariba, Nyaminyami and Omay Districts), Gokwe North (Simchembu and Nenyunga), Mount Darwin and Mudzi (Goronga, Mukota and Dendera); Tswana (Bulilimamangwe District and Mpoengs (between Ramaguabane and Simukwe rivers that flow along the Botswana-Zimbabwe border); Khoisan (Tsholotsho (Maganwini, Sinkente, Pumula, and DomboMasili) and also Bulilimamangwe’s area of Siwowo); Venda (Beitbridge); Zimbabwe sign language (schools like the Zimbabwe School Sign, Masvingo School Sign and Zimbabwe Community Sign) and Sena (Muzarabani, on plantations like Katiyo Tea Estate and other plantations, commercial farms and mines).

 

 

  1. Language of Record

 

Section 6(2) empowers Parliament to prescribe a language of record in Zimbabwe. A language of record is one that is used in the official records of a country. The main drawback of this clause is that it does not stipulate the criteria that Parliament should use to determine language of record status and thus gives Parliament a wide discretion. It is also not clear how many languages should be prescribed languages of record. There is also no clarity regarding whether languages of record will cover government business throughout Zimbabwe or in certain provinces or municipalities in Zimbabwe.

 

 

There are various approaches that could be taken to determine the language of record. The first approach may be to formally declare English as the language of record throughout the country since English is currently the de facto language of record. The second approach may include having English

 

 

 

 

 

as the language of record throughout the whole country and then have other official languages as languages of record together with English in areas where those official languages are spoken. A third approach could be to have different official languages as languages of record in areas where the speakers are mainly concentrated. For example, Ndebele can be a language of record in Bulawayo, Tonga can be a language of record in Binga, Shona can be a language of record in Harare, etc.

 

 

Section 6(2) does not also reveal whether or not the drafters aspired to have all 16 official languages to be developed to be languages of record. If this is so, there could be need for the envisaged Act of Parliament to provide specific timelines expected to ensure that all 16 official languages become languages of record. A leaf can be borrowed from s 4(5) of the Law Society of Zimbabwe Model Constitution that provides that:

…An Act of Parliament must provide that— (a) within ten years from the commencement of this Constitution, every official language is a language of record, alongside English, where it is predominantly spoken and has been predominantly spoken for the past one hundred years; and (b) within twenty-five years from the commencement of this Constitution, all official languages must be recognised as languages of record alongside English.

 

 

Such a provision would give the state sufficient time to progressively develop all the 16 official

 

languages to be languages of record.

 

 

 

 

  1. Use of Official Languages

 

Section 6(3) obliges the state and its institutions and agencies to use official languages. The Constitution does not mention the scope of use of official languages. Should some or all the official languages be used in education, media, cultural activities, public service and communication with government?

 

 

However, despite this omission, s 6(3) does highlight two main considerations that need to be taken into account when regulating the use of official languages. First, all official languages should be treated equitably. Secondly, the state should take into account the language preferences of people

 

 

 

 

 

 

in regulating use of official languages. The scope of use of official languages is not provided for in s

 

6(3). Neither has the Constitutional Court dealt with any matters relating to s 6(3) and international law and best practices from other states might therefore be useful in giving content to these sections.

 

 

International law does not expressly clarify whether official language status guarantees use of that language.45 The use of official languages in administration, public education, public health, media, courts, business and other government activities depends on the provisions of the individual country’s constitution, legislation, policies and jurisprudence. This ranges from the language being symbolic; to defined limited use of language, to undefined use of language; to unlimited use of an official language.

 

 

Implicitly, there are strong grounds that an official language should be used in government business.46

 

This position accords with the definition of an official language cited above. Mentzen alias Mencina v Latvia47 established that “… A language… cannot be divorced from the way it is actually used by its speakers. Consequently, by making a language its official language, the State undertakes in principle to guarantee its citizens the right to use that language… In other words, implicit in the notion of an official language is the existence of certain subjective rights for the speakers of that language.”

 

 

In the same vein, De Varennes48 convincingly argues that “… there is therefore, in the absence of legislation to the contrary, at least a very strong implication that a government has an obligation to use such a language, and a corresponding individual right for citizens to use that official language.”

 

Official language status should therefore not be symbolic but should guarantee the use of that language. According to Wenner, an official language should be used in a court of law, when communicating with government, in public notices, in government reports, documents, hearings, transcripts and other

 

45 For instance, in Société des Acadiens du Nouveau-Brunswick v Association of Parents for Fairness in Education (1986) 1

S.C.R. 549 (Canada) para 59 the Supreme Court of Canada held that the recognition of the status of official languages for French and English at the federal level under Article 16 of the Canadian Constitution did not guarantee as such a right to any type of service or use in either official language.

46 F de Varennes‘Draft report on international and comparative perspectives’ op cit note 32 at 10.

47 Application no. 71074/01, admissibility decision of 7 December 2004

48 F de Varennes op cit note 32 at 10.

 

 

 

 

 

official publications as well as in legislation and in the proceedings and records of the legislature.49 In countries where more than one official language must be used, their use as a general rule is provided for through constitutional provisions, legislation, regulations, guidelines and case law.

 

 

One way of interpreting s 6 is to use the values of multiculturalism, inclusive linguistic diversity, equality, human dignity and to take into account international law as required by s 46(1)(c). Such a wide interpretation would place an obligation on Zimbabwe to use all the 16 officially recognised languages. Such an interpretation is in line with s 63(a) of the Constitution that affords everyone the right to use the language of their choice.

 

 

Of course, practicality and financial considerations need to be taken into account to determine which languages are used where. It would be impossible to use all the 16 languages in government business in all the 10 provinces in Zimbabwe. On this score there are a number of practical challenges that could arise in implementing s 6(1) of the Constitution, if this is the objective. First, some of the 16 languages (like Koisan, Nambya, Sign Language, Chibarwe, etc) are not developed enough for them to be used for government purposes. Further, there is a huge financial cost associated with using all the 16 recognised languages as the languages of record in all the 10 provinces. The cost lies in the development of the languages and translation of all official records into the 16 languages. The state would need to progressively develop some of the undeveloped official languages before they can be effectively used in government business.

 

Suffice to mention that s 6(3) does not provide for equal treatment of official languages in terms of use but for equitable treatment. According to Currie, equitable treatment is treating all official languages in a just and fair manner in the circumstances.50 Applied in the Zimbabwean context, these circumstances will include “language preferences of people affected by governmental measures or communication.”

 

 

49 MW Wenner ‘The politics of equality among European linguistic minorities’ in RP Claude (ed) Comparative human rights

(1976) 184 193.

50 I Currie & J de Waal The Bill of Rights Handbook 6th Edition (2014).

 

 

 

 

 

 

 

 

This has two implications. The first implication is what Malan meant when he said “[e]quitability may mean precisely that English, being one language that is understood by all or at least most citizens and inhabitants, be used as the anchor language.”51 The second implication is that the section acknowledges that not all the officially recognised languages can be used equally and practical steps should therefore be taken to avoid a scenario where one language dominates and others are diminished.

 

 

Equitable treatment therefore affords the state and government institutions and agencies a broad discretion on the content of the considerations to be made when deciding how to treat official languages. The reality, though, is that English has taken a prominent role in the business of government with some official languages not used at all. This makes the official language status afforded to the other

15 languages merely symbolic.

 

 

 

 

  1. Language use in government activities and public service

 

Currie argues that government activities are divided into legislation and administration. Currie52 contends further that legislation should be published in the principal languages of the state and provincial legislation should be published in the official languages of the province. In administration however, Currie contends that there is greater flexibility where government should consider factors like demography, language preference of the population in the province, usage, etc.

 

Varennes interestingly suggests the use of a ‘sliding-scale’ approach53 to assess which official language should be used in particular government activity. This approach urges local authorities where language speakers are concentrated to increase level services in non-official minority languages as the number of language speakers increase beginning from the lower end of the sliding-scale and moving

 

 

 

51 K Malan K Malan ‘The discretionary nature of the official language clause of the Constitution’ (2011) 26 SA Public Law

381392.

52 I Currie & J de Waal The Bill of Rights Handbook (2005).

53 F de Varennes, Language, minorities and human rights (1996) 177-178.

 

 

 

 

 

progressively to the higher end.54 The services to be provided would include availing widely used official documents in minority languages, accepting oral or written applications in minority languages and use of minority languages as an internal and daily language of work within public authorities. Tailored to suit the concrete linguistic circumstances of each state, the sliding-scale approach can be an effective weapon to accommodate linguistic diversity. In any case, the sliding-scale approach clearly acknowledges that it is impractical to provide every government service in all the 16 official languages in all ten provinces in Zimbabwe.

 

 

As regards use of languages in the public service, international law does not oblige states to provide all public services in every language that members of the public might speak given the multiplicity of languages spoken in most multilingual states worldwide. States are expected to provide public services and communication in official languages in places where their speakers are found in significant numbers, the public services in question are of a very important nature, and the resources required to provide the public services can be made available without unduly compromising the distribution of resources in other areas of public demand as well.55 Zimbabwe could use the ‘sliding-scale approach’ to determine from the size of a linguistic population, their territorial concentration, the capacity of the state, and the nature of the service to determine which minority languages should be used in public service. Such an approach is practical in Zimbabwe where language groups are usually territorially concentrated and most social and economic affairs are conducted at local levels in the regional or local vernacular.

 

 

  1. Language use in education

Section 75(1) of the Constitution affords everyone a right to state funded basic and progressively state funded further education. In international law, three key issues deal with the right to education, namely, mother tongue education, curricular content and establishment of private educational institutions.

 

 

 

54 F de Varennes, ibid at 177.

55 F de Varennes, ibid at 177-178.

 

 

 

 

 

 

  1. Mother tongue education

 

The right to education in UN treaties was not initially intended to include the right to mother tongue education.56 However, a later realisation concluded that the right to education cannot be fully enjoyed without involvement of the mother tongue.57 Education involves the transfer of information which is most effective when the recipient understands the language used in transmitting education.58 Mother tongue education is also important for the preservation of the language and traditions of the culture conveyed through it to future generations;59 and impacts the emotional, cognitive and socio-cultural development of students.60

 

 

In any event, substantive equality and equality of opportunity demands that education is offered in the mother tongue to facilitate equal access to education by marginalised, disadvantaged and vulnerable linguistic minorities to avoid later repercussions on access to jobs and political power. That is the reason why mother tongue education is a concept widely acceptable under international, regional and foreign comparative law. For instance, the right of migrant workers’ children61 and indigenous people to be educated in their mother tongue are vividly recognised under the International Labour Organisation Conventions No. 10762 and 169.63 Policies like additive bilingualism have been developed to ensure that learning a second language should not be to the detriment of the mother tongue.64

 

Article 18 of the Cultural Charter for Africa affords states the discretion to choose one or more African languages to introduce at all levels of education. This choice could be guided by the ‘sliding-scale

 

 

56 See article 26 of the Universal Declaration, the travaux preparatoires of the Universal Declaration and the Belgian Linguistic

Case 1 EHRR 252 (1965)

57 See G Sieminsky, Working paper on the education rights of minorities: The Hague Recommendation UN Doc. E/CN.4/ Sub.2/AC.5/1997/ WP.3, 5 May 1997, 2.

58 T Skutnabb-Kangas ‘Language policy and political issues in education’ in S May & N Hornberger (eds – 2nd ed) Encyclopedia of Language and Education (2008) 107-119.

59 K Henrard op cit 10 at 257-258.

60 T Skutnabb-Kangas, Bilinguialism or not: The education of minorities, Clevedon: Multilingual Matters (1981) 118-119.

61 Arts 45(3) and (4) of the CMW.

62 Art 23.

63 Art 28(1).

64 D Young, “The role and the status of the First Language in Education in a multilingual society” in K Heugh et al (eds) Multilingual education for South Africa, (1995) Johannesburg: Heinemann 63 68 argues that the mother tongue should continue to be used throughout various levels of education even when a second language is introduced.

 

 

 

 

 

approach’65 taking into account the number of minority students seeking education in their language and the extent of the burden this puts on public resources.66 The right to education in s 75 of the Constitution arguably includes the right to be educated in the mother tongue.

 

 

Another key provision in respect to language rights in education is s 62 of the Education Act.67 It presents a number of interesting insights. For instance, S 62 (1) of the Education Act provides that68 “… Subject to this section, all the three main languages of Zimbabwe, namely Shona, Ndebele

and English, shall be taught on an equal-time basis in all schools up to form two level.”

 

 

 

 

For Shona and Ndebele language speakers, this provision means mother tongue education up to form two level although there is no guarantee of mother tongue education for Shona and Ndebele speakers beyond form two. Only English is the dominant language taught up to tertiary level.69 Again, this provision elevates English, Shona and Ndebele above all other official languages and forces other language speakers to learn in English, Shona or Ndebele.

 

 

However, in practice English Language is given more learning time as compared to Shona and Ndebele.70 Literature in English is taught as a separate subject while Shona/Ndebele language and literature are regarded as one subject and allocated far lesser teaching time notwithstanding that there is sufficient Shona and Ndebele material to teach. This creates the impression that indigenous languages are not as significant.

 

 

Section 62(1) of the Education Act arguably discriminates against other official language speakers

 

on the basis of language as envisaged by the constitutional provisions of ss 56(3) and 6 and are not

 

 

65 K Henrard op cit 10 at 260-261.

66 F de Varennes Language, Minorities & Human Rights (1996) 33.

67 Education Act, [Chapter 25:05]

68 [Chapter 25:05] Clause 1.1 of the Cultural policy of Zimbabwe obliges government to ‘… accord protection of mother

tongue through usage during the first two years of formal schools.’

69 SJ Hachipola A survey of the minority languages of Zimbabwe 1998.

70 Op cit note 69.

 

 

 

 

 

 

afforded the equal protection of the law as stipulated in s 56(1). To remedy this discrimination, the State could introduce affirmative action measures in the form of remedial or restitutive measures71 as provided for in s 56(6) to ensure that all the 15 languages are used in education. The remedial dimension of substantive equality (affirmative action) should be used to elevate the status of and advance the development and use of historically diminished languages.72

 

 

It can be argued that forcing other official language speakers to learn in English, Shona or Ndebele may be regarded as inhuman, degrading and derogatory contrary to the provisions of s 53 of the Constitution. This is especially so considering that, in Africa, language is viewed as a form of identity and as a vehicle of culture.73 By learning in the three majority languages, minority language speakers lose their identity and culture. Accordingly, s 62 of the Education Act could be amended to ensure that there is equitable treatment of languages.

 

 

Section 62(2) of the Education Act provides that

 

“… In areas where indigenous languages other than those mentioned in subsection (1) are spoken, the Minister may authorise the teaching of such languages in schools in addition to those specified in subsection (1).”

 

This subsection potentially opens room for mother tongue education in minority languages in areas where that language is spoken at the discretion of the Minister of Education.74 It does not specify the

 

71 National Coalition for Gay and Lesbian Equality v Minister of Justice 1999 1 SA 6 (CC) paras 60-61; Minister of Finance v

Van Heerden 2004 6 SA 121 (CC) para 30.

72 Minister of Finance v Van Heerden 2004 6 SA 121 (CC) para 23. See also para 31 states that only by means of a positive commitment “progressively to eradicate socially constructed barriers to equality and to root out systematic or institutionalised under- privilege” can the constitutional promise of equality before the law and its equal protection and benefit be realised.

 

73 Webb & Kembo-Sure op cit note 3 argue that in Africa “people are often identified culturally primarily (and even solely)

on the basis of the language they speak.”

74 The other sections that give the minister of Education a wide discretion are sections 62(3) and (4) of the Education Act. Section 62(3) of the Education Act states that “…The Minister may authorise the teaching of foreign languages in schools.’ In practice, French, Portuguese, Chinese, Arabic has been taught in schools. Similarly, s 62(4) makes it clear that ‘… Prior to form 1, any one of the languages referred to in subsection (1) and (2) may be used as the medium of instruction, depending upon which language is more commonly spoken and better understood by the pupils.”

 

 

 

 

 

criteria that the minister uses to authorize mother tongue education in indigenous languages which allows a wide discretion in choice of which language should be taught.75

 

 

According to Hachipola, nine trends have emerged in practice. First, Barwe, Chikunda, Doma, Sena and Tshwawo have neither been committed to writing nor taught in Zimbabwean schools even during the colonial era. Second, Venda is taught in primary and secondary schools.76 However, there is scarcity of teaching materials and shortage of Venda teachers. Third, Tswana has never been taught in Zimbabwe. Fourth, Tonga is currently being taught in Primary and Secondary schools particularly in Binga.77

 

 

Fifth, Sotho was taught in schools as early as the 1920s and, by the 1960s, Sotho was taught up to standard 6 in the Gwanda and Beitbridge Districts. It would appear though that no material was substantially developed and Sotho is no longer being taught in schools.78 However, Sotho is taught in Lesotho and materials can be bought from Lesotho for this language to begin to be taught in schools from primary school to tertiary level.

 

 

Sixth, Shangani is taught in elementary education alongside English in the Chiredzi District. Seventh, Nambya is taught in primary schools in the Hwange District. The major challenge though is the shortage of materials and teachers. Eighth, the Fingo language has never been taught in schools in Zimbabwe. Finally, Chewa was taught as a language during the colonial era although it is not being currently taught in schools. The materials for teaching Chewa even up to tertiary level are available in Malawi.

 

S 62(2) of the Education Act should be amended to achieve two purposes. The first would be to provide for the equitable teaching of all the 16 official languages with two limitations. First, the 16

 

75 Section 62(5) limits the minister’s discretion when it makes it peremptory for sign language to be taught as a medium of instruction for the deaf. It provides that “…Sign language shall be the priority medium of instruction for the deaf and hard of hearing.”

76 SJ Hachipola (n 44 above) 32-33.

77 SJ Hachipola op cit note 44 at 41.

78 SJ Hachipola op cit note 44 18-19.

 

 

 

 

 

 

official languages need to be developed (in terms of curriculum, course books and teachers) in order for them to be used at different levels of education. Since most of the 16 official language speakers are factually in an economic and political non-dominant position, government financial assistance plays a crucial ole in making mother tongue education a reality. Alternatively, teaching materials can be sourced from South Africa, Zambia, Mozambique, Botswana and Malawi where most of our minority languages are major languages that have developed teaching materials. Practically, the sliding scale approach could play a crucial role in determining which official languages should be developed and taught in which areas.79 The state would be expected to provide education in a certain official language if the linguistic group is of a certain size and are concentrated in a certain area.80

 

 

Second, mother tongue education can be denied if the limitation is reasonable and justifiable.81 The proportionality requirement discussed above would apply.

 

 

The second purpose of amending section 62(2) of the Education Act is to qualify the minister’s discretion when authorizing the teaching in indigenous languages. The minister should consider the number of speakers of the language, the extent to which the language has been developed, the availability of textbooks and reading material, the availability of resource, the availability of teachers and examiners, etc.

 

 

  1. Curriculum content

International law enjoins states to adopt a multicultural approach82 where the education curricula should objectively reflect, among others, the culture and language of historically disadvantaged language groups.83 Ideally, the text materials to be used should also be representative of the perspectives of members of different sections of society.84 This aspect is not reflected in the Education Act.

 

79 K Henrard op cit note 10 260-261.

80 F de Varennes op cit note 66 at 189.

81 Belgian Linguistic Case 1 EHRR 252 (1965) 284-254 held that the denial of mother- tongue education may not be for

arbitrary reasons but must have an objective and reasonable justification.

82 See Article 4 of the 1992 UN Declaration on the Rights of Minorities and Article 12 of the Framework Convention.

83 K Henrard op cit note 10 262-265.

84 It is interesting to note that arts 18 and 19 of the African Cultural Renaissance provide that “African states recognize

 

 

 

 

 

 

 

 

iii. Establishment of independent language institutions

 

Mother tongue education could easily be effected where language groups are able to establish their own educational institutions at their cost, subject to national standards of quality education. International human rights law does not oblige the state to establish educational institutions for all language groups (majority or minority) nor to financially support private educational institutions.85 The State’s obligation is to ensure that public education is accessible to all language speakers. However, the state obligation to fund such institution may arise where a language group lacks sufficient financial resources and public schools are not sufficiently pluralistic to give satisfaction to mother-tongue education. Article

5(1)(c) UNESCO Convention86 provides that private education should depend “on the educational policy of each state.”87

 

 

  1. Language use in media

 

Section 61 of the Constitution provides for freedom of expression and freedom of the media. In international law, freedom of expression includes the right to linguistic expression.88   Language is a means of expression par excellence and people best express themselves in a language they speak. This argument found favour in the Canadian case of Ford v Quebec (Attorney General)89 where the court held that:

Language is so intimately linked to the form and content of expression that there can be no real

 

the need to develop African languages in order to ensure their cultural advancement, and acceleration of their economic and social development. To this end, they should endeavor to formulate and implement appropriate language policies… African states should prepare and implement reforms for the introduction of African languages into the education curriculum. To this end, each state should extend the use of African languages taking into consideration the requirements of social cohesion and technological progress, as well as regional and African integration.” This provision is likely going to promote minority language rights in curriculum development if the Charter comes into force.

85 See K Henrad op cit note 10. At 266, Henrard argues that if a state gives financial aid to one private school, an equivalent amount should be granted to another private school as well, unless the differential treatment is reasonable and objectively justifiable. At 267, Henrard further argues that “states would be obliged to finance private schools for minorities if state schools are not sufficiently pluralistic, because of their obligation under international law to respect the ideological and philosophical convictions of parents in educational matters.”

86 See art 5(1)(c) of the UNESCO Convention on the Elimination of Discrimination in Education.

87 K Henrard op cit note 10 at 266.

88 F de Varennes ‘The existing rights of minorities in international law’ in Kontra et al (eds) Language: A right and a resource: Approaching linguistic human rights (1999) 121.

89 [1988] 2 S.C.R. 712.

 

 

 

 

 

 

freedom linguistic expression if one is forbidden to use the language of one’s choice.

 

 

 

 

This argument finds support in Ballantyne, Davidson & McIntyre v. Canada where the UNHRC established that freedom of expression entails use of one’s language as envisaged in article 27 of the International Covenant on Civil and Political Rights (ICCPR).90

 

 

Interestingly, international law is silent on whether or not freedom of expression guarantees access to media91 by language speakers in view of the fact that media is one of the important means of linguistic and cultural maintenance and propagation.92

 

 

However, international law obliges states to ensure that language groups have access to media by allocating them frequencies.93   Zimbabwe could use the ‘sliding-scale approach’ to determine which frequencies to give to linguistic minorities. If the state grants one or several language groups a frequency and or an amount of airtime on radio or television, the same state should also allocate an equivalent grant to the other remaining language groups unless there is reasonable and objective justification for differential treatment.94

 

 

International law does not place an obligation on the states to support private media institutions.95

It has been argued that article 27 of the ICCPR can (on the basis of equality, non-discrimination and the right to identity) be interpreted as guaranteeing the right for members of linguistic minorities to establish their own media.96 The state should not interfere with this right except to merely regulate the registration and licencing of media.

 

 

 

90 Communications 359/89 & 385/89, John Ballantyne and Elizabeth Davidson, and Gordon Mcintyre v Canada, UNHR Committee (31 March 1993) UN Doc. U.N. Doc. CCPR/C/47/D/359/1989 and 385/1989/Rev.1 (1993) paras 11.3 and 11.4.

91 Media in this context includes written press, radio and television.

92 See D Gomien, “Pluralism and minority access to media” in A Rosas et al (eds) The strength of diversity: Human rights and pluralist democracy, Dordrecht: Nijhoff (1992) 49.

93 F de Varennes op cit note 66 at 223.

94 K Henrard op cit note 10 268-269.

95 See F de Varennes op cit note 66 at 217-225.

96 See K Henrard op cit note 10 at 268.

 

 

 

 

 

  1. Language use in criminal proceedings

 

Section 70(1)(j) of the Constitution affords every accused person the right to have trial proceedings interpreted into a language that they understand and is substantially similar to article 14(3) of the ICCPR.97

 

 

S 70(1)(j) of the Constitution does not however confer a right to be tried in a language of choice or language of the accused or the accused’s first language or the language that they speak but merely to be tried in a language that the accused person understands. A language that one understands is different from the language that one speaks. If for instance, a person that primarily speaks Sena and also understands English has proceedings conducted English, the court would have complied with s 70(1)(j) of the Constitution.

 

International law supports this reasoning and interpretation. Clause 5.3 of the UNHRC General Comment 23 makes it clear that ‘[a]rticle 14(3)(f) of the ICCPR does not, in any other circumstances, confer on accused persons the right to use or speak the language of their choice in court proceedings.’ In Guesdon v France,98 the UNHRC established that the notion of fair trial does not imply that the accused be afforded the possibility to express himself in the language which he normally speaks or speaks with a maximum of ease. If a court is certain that the accused is sufficiently proficient in the court’s language, it is not required to find out if he would prefer to use another language. In Harward v Norway99 the UNHRC held that an essential element of the concept of a fair trial under Article 1 is to have adequate time and facilities to prepare a defence. However, this does not entail that an accused who does not understand the language used in court, has the right to be furnished with translations of all relevant documents in a criminal investigation, provided that the relevant documents are made available to his counsel.

 

97 It provides that ‘‘In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him… f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court…”

98 Communication 219/1986 Guesdon v France UNHR Committee (23 August 1990), UN Doc CCPR/C/39/D/219/(1986).

99 Com m unication 451/1991 Harw ard v Norw ay UNHR Com m ittee (16 August 1994), UN Doc CCPR/C/51/D/451/(1991).

 

 

 

 

 

 

Section 70(1)(j) of the Constitution therefore imposes on the state the duty to provide an interpreter at its expense in criminal proceedings where a person cannot understand the language of the court. The state cannot refuse to provide it even for economic or any other justifications. In Zimbabwe’s adversarial legal system, the rationale for affording language rights in criminal proceeding is to facilitate the participation of an accused person in the trial. If language rights are not afforded to an accused person, then justice is denied.

 

 

Section 5 of the Magistrates Court Act,100 s 49 of the High Court Act101 and S 31 of the Supreme Court Act102 make it peremptory for proceedings in the Magistrates, High and Supreme Courts to be in the English language which creates difficulties for other language speakers to participate in legal proceedings. With poor interpretation of official languages, other language speakers may fail to adequately access justice in Zimbabwean courts.

 

 

  1. Language use in cultural activities

 

Section 63 of the Constitution affords every person a right to participate in the cultural life of their choice and implies cultural identity. Language is the soul of culture103 and a vehicle of cultural expression.104

In Africa ‘people are often identified culturally primarily (and even solely) on the basis of the language

 

they speak.’105 Examples include the Tonga, Ndebele and Shona.106

 

 

 

100 [Chapter 7:10].

101 [Chapter 7:13].

102 [Chapter 7:13].

103 N wa Thiongo Decolonizing the mind, the politics of language in African literature (1986). S Wright, Language policy and language planning: From nationalism to globalization (2004) 2 argues that ‘[c]ommunities exist because they have the linguistic means to do so. In other words, language is the means by which we conduct our social lives and is foremost among the factors that allow us to construct human communities.’ KL Dooley and LB Maruska ‘Language rights as civil rights: Linguistic protection in the post- colonial democratic development of Canada and South Africa,’ (2010) 3 Journal of global change and governance, 1 at 2 argue that “[l]anguage, in essence, serves as the building bloc of cultural recognition, and it provides communities with the necessary tools to define themselves as particular entities, noticeably set apart from other communities.”

104 S Makoni & B Trudell ‘Complementary and conflicting discourses of linguistic diversity: Implications for language planning’

(2006) 22(2): 14-28 Per Linguam 21.

105 V Webb & Kembo-Sure op cit note 3 at 5

106 I Mumpande ‘Silent voices’ op cit note 44. He further argues that ‘a community without a language is like a person without a soul.’

 

 

 

 

 

Section 63 of the Constitution protects the use of languages in cultural activities and, essentially, protects linguistic identity.107 Again, ‘the sliding scale approach’ could be used to determine which language is used for which cultural expression.

 

 

  1. Promotion of Use and Development of All Languages In Zimbabwe

 

Section 6(4) of the Constitution provides for the promotion of use of all languages (official and non-official) spoken in Zimbabwe and, in the process, obliges the state to create conditions for the development of all these languages. The promotion of language use is yet to be defined and given meaning by the Constitutional Court. Section 6(4) essentially obliges the state to promote the use of all languages but not to actually use all the languages.

 

 

There is a vast difference between promotion of use of language and actual use of language. According to De Varennes,108 there are five distinctions between promotion of the use of an official language and the actual use of an official language. The first distinction is that in the promotion of the use of an official language, the state may or may not use the language concerned whereas use of an official language obliges authorities to actually use the language as prescribed.

 

 

Second, with promotion of the use of an official language, the actual use is decided by Administrative or Political Branches of State Apparatus. What is sufficient in terms of promotion is largely permissive (with the usual exception of public education) and determined politically. On the other hand, use of an official language is mandatory and it is usually required by the constitution or legislation.

 

 

Third, for the promotion of the use of an official language, the remedies are usually political or

 

107 Such an approach is consistent with Clause 1.0 of the Cultural Policy of Zimbabwe which provides that ‘People, unlike other living life on earth, have an identity and the main characteristic of this identity is language, which is a God given fit to mankind. Zimbabweans speak a variety of indigenous languages and to add to these languages they also use English. All these languages are important as a means of communication. The languages are a strong instrument of identity be it culturally or otherwise. With language, one has a powerful tool to communicate joy, love, fear, praise and other values. With language we are able to describe cultural issues, effect praise, values and norms. With language you can thwart conflicts, engage in fruitful discourse and foster growth on the spiritual, physical and social state of a being.’

108 F de Varennes ‘Draft report on international and comparative perspectives’ op cit note 32 at 55.

 

 

 

 

 

 

administrative whilst use of an official language attracts legal, political and administrative remedies. Fourth, with the promotion of the use of an official language individuals cannot generally claim a breach before a court of law since they have no right to use an official language. Use of an official language empowers individuals to claim a breach of a right to use an official language before a court of law.109

 

 

Finally, with promotion of the use of an official language, the extent of obligations sufficient to promote the use of an official language is left to the discretion at the political level, as in Language Schemes approved by a Minister or a parliamentary-approved Commissioner. Conversely, with use of an official language, the extent of obligations involved in the use of an official language is largely determined by legislation and regulations. It is therefore clear that the promotion of use of language is weaker than the use of an official language in terms of the protection afforded to the language and its speakers.

 

 

Turning to s 6(4) of the Constitution, it is noteworthy that the obligation to promote the use of all languages is mandatory as shown by the use of the word ‘must’ and the obligation lies with the state – executive, legislature and judiciary. Two deficiencies are glaring in s 6(4). First, there is no clarity regarding the nature of measures that the state should take to promote the use of all languages. These measures could include affirmative action. Second, s 6(4) does not specify the nature of conditions that the state should create for the development of all languages.

 

 

  1. Lacuna in s 6 of the Constitution

One of the major weaknesses of s 6 of the Constitution is that there is no implementation mechanism in place for the fulfilment of the language rights protected in that section. This makes it very difficult for the language rights norms provided for in the Constitution to be effectively implemented.

 

 

109 See for example English Medium Students Parents v. State of Karnataka, 1994 AIR 1702, 1994 SCC (1) 550, State of Kerala v. Mother Provisional, 1970 AIR SCC 2079, and more generally L.M. Wakhare v. The State of Madhya Pradesh, AIR 1959 MP 208.

 

 

 

 

 

 

 

 

De Varennes110 argues that there are three basic mechanisms that should be put in place for the effective implementation of language rights.

 

 

The first refers to legal mechanisms111 where constitutional provisions on the use of two or more official languages by authorities are elaborated upon through legislation, regulations, directives and guidelines.112 Courts also play a significant role in clarifying these provisions through interpretation. Language legislation should eliminate discrimination based on language, enable minority language speakers to conserve their linguistic characteristics, and allow peaceful interaction with the majority. Language legislation must give members of the minority group the opportunity to deal with the majority in a way that conserves their linguistic distinction.

 

 

The current absence of such legislation in Zimbabwe deprives content to the exact scope of official language status and deprives speakers of official languages of practical measures for the implementation of their rights.

 

The second refers to administrative mechanisms where government sets up institutions to guide, co-ordinate and oversee the implementation of the use of official and non-official languages. Zimbabwe needs administrative institutions to help oversee the implementation of use of official and non-official languages in government and the development of all languages. Such institutions can be built along the lines of the PAN South African Language Board or a specific language commission or a generic Arts and Culture Commission suggested by s 142 of the National Constitutional Assembly Draft Constitution.113

 

 

110 F de Varennes ‘Draft report on international and comparative perspectives’ op cit note 32 at 47.

111 G Turi ‘Typology of language legislation’ in TS Kangas et al (1994) Linguistic human rights: overcoming linguistic discrimination 111-120 argues that “… the fundamental goal of all legislation about language is to resolve the linguistic problems which stem from…language conflicts and inequalities by legally establishing and determining the status and use of the concerned languages.”

112 The need for language specific detailed legislation is even more necessary in Zimbabwe where there is currently no case

that has been decided on language rights in the new constitution.

113 Section 142 of the NCA Draft Constitution provides that “An Act of parliament must provide for the establishment, powers and functions of an Arts and Cultural Commission.”

 

 

 

 

 

 

The third relates to political mechanisms where language policy is formulated and mechanisms are put in place to monitor such policy through provision of conduits for consultation, communication, and responses involving parliament, parliamentary committees, a department within a ministry, a specific ministry devoted to this issue, the government and other political entities. There can also be mechanisms for resolving official and non-official language disputes by an institution answerable to Parliament, such as an official languages commissioner, language board, ombudsman/public protector or the human rights commission.114 Such political mechanisms are required if language rights provided for in the Constitution are to be promoted, protected and fulfilled.

 

 

  1. Limitation of Language Rights in s 6

 

One crucial issue for discussion is whether s 6 is subject to the general limitation clause in s 86 and there are two possible approaches to this. The first approach is restrictive and strictly interprets s 6 as a provision falling outside the Bill of Rights and therefore not subject to the limitation clause that limits rights in the Bill of Rights.115

 

 

The second approach is a generous one that purposively interprets s 6 in the context of the constitutional values and other rights116 in the Bill of Rights that are inevitably used when implementing s 6. This approach sees the application of the limitation clause in s 86 to s 6.117

 

The limitation of rights in s 86 is essentially two-fold. First, a law of general application should limit fundamental human rights. The law of general application refers to the rule of law118 that includes

 

 

 

 

114 Unpublished: R Dunbar, ‘Minority language legislation and rights regimes: A typology of enforcement mechanisms’

unpublished paper presented at World congress on language policies, Barcelona 16-20 April 2002 3.

115 This approach was followed in the SA case of Van Rooyen v S (General Council of the Bar of South Africa Intervening)

2002 5 SA 246 (CC) [35] where the Constitutional Court held that judicial independence was outside the Bill of rights and was therefore not subject to the general limitation in section 36(1).

116 Examples include equality, non-discrimination, dignity and freedom of expression that require the application of the

limitation clause.

117 See JL Pretorius ‘The Use of Official Languages Act: Diversity affirmed?’ 2013 (16)1PER /PELJ 281 282295.

118 President of the Republic of South Africa v Hugo 1997 4 SA 1 (CC).

 

 

 

 

 

legislation,119 common law120 and customary law121 that is impersonal,122 applies equally to all and is not arbitrary in its application.

 

 

Second, the law of general application should be fair, reasonable, necessary and justifiable123 in an open and democratic society that is based on openness, justice, human dignity,124 equality and freedom. This requirement introduces the proportionality principle which is considered as central to a constitutional democracy.125

 

 

Section 86(2) of the Constitution lists six factors that are used to determine proportionality. The first is the nature of the right or freedom. Here, courts should balance the importance of the language right against the justification of its infringement. Use of a language in government business is arguably very important to the preservation of linguistic identity and access to public service than any justification of its limitation. Courts are likely going to apply a high threshold before accepting any limitation to this right.

 

 

The second factor is the purpose of the limitation. Section 86(2)(b) indicates that the limitation should be ‘…necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest.’ The Constitutional Court is yet to be seized with matters that will see it formulating jurisprudence in this regard.

 

 

The third factor is the nature and extent of the limitation. Zimbabwean Courts have not yet decided

 

 

119 It includes Acts of Parliament and delegated legislation. See Larbi-Odam v MEC for Education (North West Province) 1998

1 SA 745 (CC) 27.

120 Policy, practice and contractual provisions do not qualify as law of general application. See Hoffmann v South African

Airways 2001 1 SA (CC) 41 and Barkhuizen v Napier 2007 5 SA 323 (CC) 26.

121 Du Plessis v De Klerk 1996 3 SA 850 (CC) 44 & 136.

122 Islamic Unity Convention v Independent Broadcasting Authority 2002 4 SA 294 (CC).

123 GE Devenish The South African Constitution (2005) 181 says the limitation should be reasonable and proportional.

124 Section 86(3)(b) of the Constitution makes it clear that human dignity is one of the rights that cannot be limited.

125 DM Beatty Ultimate Rule of Law (2005) 163 argues that “[t]he fact is that proportionality is an integral, indispensible part of every constitution that subordinates the system of government it creates to the rule of law. It is constitutive of their structure, an integral part of every constitution by virtue of their status as the supreme law within the nation state.”

 

 

 

 

 

 

on this aspect. However, South African Courts have established that this factor looks at the effects of the limitation on the right concerned and not on the right holder.126 In the context of this paper, what is the effect of the limitation on the right to use an official language? The law that limits the right should not do more damage to the right than is reasonable for achieving its purpose.127

 

 

The fourth factor is the relationship between the limitation and its purpose. Section 86(2)(b) qualifies this factor to assess whether the limitation “… imposes greater restrictions on the right or freedom concerned than are necessary to achieve its purpose.”

 

 

The fifth factor concerns the availability of less restrictive means to achieve the stated purpose. South African Courts have established that the limitation is not be proportional if there are less restrictive (but equally effective) means that can be employed to achieve the same purpose of the limitation.128

 

 

The sixth factor is the need to ensure that the enjoyment of rights and freedoms by any person does

 

not prejudice the rights and freedoms of others.

 

 

 

Clearly, s 86 incorporates the principle of proportionality. Pretorius’129 argues that the application of proportionality to s 6 demands in general that the principle of inclusive linguistic diversity expressed in the official language clause must be related to other competing values, principles or considerations in a way which is non-reductionist130 and non-hierarchical.131

 

 

 

 

 

 

126 S v Meaker 1998 8 BCLR 1038 (W).

127 S v Manamela 2000 3 SA 1 (CC) 34.

128 S v Makwanyane 1995 3 SA 391 [123] and [128].

129 JL Pretorius‘The Use of Official Languages Act: Diversity affirmed?’ 2013(16)1 PER / PELJ 281 282 299.

130 Non-reductionism requires that competing constitutional goods should be related to one another in a way which preserves their plurality without reducing one into another and without lumping all of them together into some common space (like utility) that denies their plurality.

131 Non-hierarchical relatedness means that constitutional goods must not be pitched against each other in terms of an arbitrary abstract rank order.

 

 

 

 

 

  1. Conclusion

 

Even though s 6 of the Constitution potentially affirms linguistic diversity, there is need for language legislation to clarify the scope of official language status, the extent of use of official languages; the obligation to promote the use and development of all languages and provide for the implementation mechanisms if the language rights are to be protected, promoted and fulfilled.

 

 

 

THE PROTECTION OF THE RIGHT TO EMPLOYMENT OF PERSONS WITH DISABILITIES IN AFRICA: LESSONS FROM ZIMBABWE

 

 

Serges Djoyou Kamga1

 

 

 

 

Introduction

 

Over the past few years, Zimbabwe has been portrayed as a lawless country, a place “characterised by institutional failures” where the rule of law simply does not exist2 and therefore a hopeless country especially for the most vulnerable such as persons with disabilities (PWDs). However, on

1 March 2016, the High Court of Bulawayo rendered an important judgement in the Zimbabwe National League of the Blind v Zimbabwe National Statistics Agency (ZIMSTAT) and Ors3 case. This judgement dealt with the right of employment of persons who are visually impaired and is important for it sets a direction on the protection of the right to employment for PWDs.

 

 

The aim of this paper is to unpack this decision and examine how the right to employment of PWDs should be protected under international human rights law. To this end, the article will deconstruct the concept of equality, non-discrimination, and reasonable accommodation, which are keys in securing the inclusion of PWDs in society in general and at the work place in particular. In understanding the implications of this decision, the article relies on local and foreign jurisprudence on equality, non-discrimination and reasonable accommodation and their significance in securing the right to employment for PWDs.

 

 

The article is divided into five parts including this introduction. The second part will present the

 

international and African regional regimes of the right to employment of PWDs. The third part

 

1 Thabo Mbeki African Leadership Institute, UNISA email: dkamgsa@unisa.ac.za

2 Arthur Gwagwa “Zimbabwe, Human Rights, Rule of Law & Democracy 2013”, Report of the Zimbabwe Human Rights

Forum, 2013, page omitted.

3 Zimbabwe National League of the Blind v Zimbabwe National Statistics Agency (ZIMSTAT) and Others, High Court of

Zimbabwe, Case no 1326/15.

 

 

 

 

 

presents the facts and decision of the Court; the fourth part of the article will analyse this decision in line with international human rights standards related to the rights of persons with disabilities and the final part will provide concluding remarks.

 

 

The international regime of the right to employment of persons with disabilities: An

 

Overview

 

This section will be divided into three parts: the first will discuss the normative standards of the right to employment of PWDS under general international law; the second will focus on this same right under the Convention on the Rights of Persons with Disabilities4 (CRPD) and the third part will focus on this right in the African human rights system.

 

 

2.1 The normative standards of the right to employment of PWDs under general international law

Under the Universal Declaration of Human Rights (UDHR), “Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment”.5 In this provision, ‘everyone’ comprises everybody including PWDs, even though it is advisable to mention the ground of exclusion as to ensure its visibility.

 

Similarly, the International Covenant on Economic Social and Cultural Rights (ICESCR) guarantees the right to work in article 6 and the right to favourable working conditions in Article 7. These rights are guaranteed to all persons, including those with disabilities. Importantly, Article 7 (c) is unequivocal in providing for “Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence”. This means that everyone has the right to take up the job that he or she accepts and no one should be discriminated against on the ground of disability.

 

 

 

4 Adopted in 2006 and entered into force on and ratified by Zimbabwe under CRPD on 23 September 2013.

5 Adopted on 10 December 1948, Art 23.

 

 

 

 

 

 

The right to work for PWDs is also highlighted by the Committee on Economic, Social and Cultural Rights6 which promotes the employment of PWDs in mainstream employment and not “reserved” shelter.7

 

 

In addition, numerous ILO Conventions8 provide for the right to employment and fair labour practice for persons with disabilities. In essence, these conventions aim to ensure that state parties adopt national policies for the promotion of the rights of PWDs to access employment; and to be afforded equal opportunity and treatment as far as occupation and employment are concerned. Put differently, at the centre of these Conventions is the need to ensure that PWDs are provided with equal opportunities in the work place; provided with adequate adjustment and reasonable accommodation. This entails the adaptation of the job content, working time and work organization, and the adjustment of the work environment to ensure the recruitment of PWDs. It may also include the modifications in work schedules, sequences of work and in breaking down work tasks to accommodate PWDs.9

 

 

2.2 The right to employment for persons with disabilities under the CRPD

 

Article 5(2) and (3) of the CRPD provides that:

 

“States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.”

 

 

Besides the general prohibition of discrimination against PWDs, the substantive provision on the right to employment of PWDs is contained in Article 27 of the CRPD. Accordingly, member states commit to secure the right of PWDs

“to work, on an equal basis with others; this includes the right to the opportunity to gain a living

 

6 General Comments, N05 of 1994, paragraphs 20 to 27.

7 Ibid, para 21.

8 ILO Vocational Rehabilitation (Disabled) Recommendation (No 99, 1955); ILO Convention No 111 concerning Discrimination in Respect of Employment and Occupation; ILO Convention (No 159, 1983) on the promotion of equal opportunities and equal treatment for men and women with disabilities; ILO Recommendation No 168 Vocational Rehabilitation and Employment (Disabled Persons) Recommendation, 1983 (No 168).

9 Leticia De Campos ‘Reasonable accommodation: The new concept from an inclusive Constitutional perspective’ Sur

International Journal on Human Rights, vol 8, no14, Juin 2011, p 85-112.

 

 

 

 

 

by work freely chosen or accepted in a labour market and work environment that is open, inclusive and accessible to persons with disabilities”10

 

 

In addition, state parties are obliged to forbid all disability-based discriminations related to employment, especially in matters concerning “conditions of recruitment, hiring and employment, continuance of employment, career advancement and safe and healthy working conditions”.11 It could be argued that Article 27 of the CRPD provides the guideline of what should be done by the state to ensure equality for PWDs at the work place.

 

 

The significance of the right to work for PWDs was further highlighted by the Committee on the Rights of Persons with Disabilities (CRPD Committee) through various Concluding Observations on state reports. For instance, in its Concluding Observations on Hungary (2012),12 the CRPD Committee expressed its concern at the low level of employment of PWDs and called for the development of “programmes to integrate persons with disabilities into the open labour market and the education and professional training systems”.13 Similarly, in the case of Argentina, while the CRPD Committee was happy for the adoption of the labour law which allocates a minimum quota of 4 per cent for the employment of PWDs in the public sector,14 and numerous programmes adopted for the inclusion of PWDS at the work place, it expressed concern on the cultural barriers and prejudices that close access to the labour market to PWDs.

 

Moreover, in a CRPD Committee decision – Gröninger v Germany,15 the Committee observed that the CRPD in Article 27 enshrines the rights of PWDs to benefit from appropriate measures of promotion of employment opportunities such as real access to general placement services as well as support or help in finding and obtaining employment. This is to say that the CRPD Committee is useful in providing

 

10 CRPD, Art 27, para 1.

11 CRPD, Art 27 1(a)

12 Concluding Observations on Hungary (2012), para 43.

13 Ibid, para 44

14 Public Sector [Act 25].689.

15 Liliane Gröninger v. Germany (Communication No. 2/2010)

 

 

 

 

 

 

guidance on how states should ensure the inclusion of PWDs at the work place.

 

 

 

 

2.3 Normative standards under the African regional Human rights system

 

It is important to note that the African human rights system includes all human rights instruments which aim to promote and protect human rights in Africa.16 It comprises: The African Charter on Human and People’s Rights (ACHPR); Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa; the African Youth Charter; and the 2014 Draft African Disability Protocol.

 

 

In line with Article 2 of the ACHPR, all these instruments prohibit discrimination on numerous grounds, including disabilities. This also suggests a prohibition of discrimination in the employment sector. In addition, the ACHPR provides for the right to work for everyone. Accordingly, “Every individual shall have the right to work under equitable and satisfactory conditions, and shall receive equal pay for equal work”.17 Furthermore, in its Article 18(4), the ACHPR, also protects the rights of PWDs and stresses the need to ensure “the right to special measures of protection in keeping with their physical or moral needs”. This provision urges the states to ensure the inclusion of PWDs with consideration of their needs.

 

 

As for the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa, it protects women with disabilities and obliges states to “take specific measures commensurate with their physical, economic and social needs to facilitate their access to employment, professional and vocational training as well as their participation in decision-making”.18 This provision is unequivocal in ensuring the right to employment and fair labour practice to women with disabilities.

 

As far as the African Youth Charter is concerned, it prohibits discrimination under the theme “every young person, young people [including those with disabilities]” have the right to employment.19

 

16 See generally, Frans Viljoen International Human Rights Law in Africa, Oxford University Press, 2012.

17 Art 15.

18 Art 23(a)

19 Art 5.

 

 

 

 

 

Although this approach in which PWDs are not expressly mentioned shall not be encouraged, it could be argued that it is quite inclusive of PWDs, under Article 24 of the Youth Charter which specifically compels states to recognise

“… the right of mentally and physically challenged youth to special care and shall ensure that they have equal and effective access to education, training, health care services, employment, sport, physical education and cultural and recreational activities”.

 

 

In sum, the African human rights system is unequivocal in its protection of the right to PWDs for employment. The next session of this paper will examine how the global and regional framework for the PWDs’ right to employment was given effect by the Zimbabwean court.

 

 

The right to employment of visually impaired persons in Zimbabwe

 

The Zimbabwe National League of the Blind v Zimbabwe National Statistics Agency (ZIMSTAT) and others.

 

 

3.1 Facts and decisions

 

The applicant was the Zimbabwe National League of the Blind, a registered Non- Governmental Organization whose membership includes visually impaired persons and the respondents were ZIMSTAT, the Minister of Finance cited in his capacity as the Minister responsible for the administration of the Census and Statistics Act, and the Minister of Public Service, Labour and Social welfare cited in her official capacity as the Minister responsible for fair labour standards, disability and social issues. The applicant brought an application before the High Court of Bulawayo challenging the systemic discrimination of visually impaired persons in the process of recruiting extra personnel by ZIMSTAT.

 

 

Mandated by the Minister of Finance to conduct the 2012 population censuses, ZIMSTAT had embarked on a recruitment of extra personal to discharge its mandate. In doing so, it decided to recruit personnel from amongst the ranks of civil servants. To give effect to this decision, ZIMSTAT issued a circular titled

 

 

 

 

 

 

‘Recruitment of Level I- IV personnel for the 2012 Population Census (reference number POPC/2/3/A)

 

which provided for four levels of the officers as follows: (i) Level 1 – Provincial Supervisors

(ii) Level 2 – District Level supervisors

 

(iii) Level 3 – Enumeration Area Level Supervisors

 

(iv) Level 4 – Enumerators

 

 

 

 

Nevertheless, the circular also set conditions to select the appointees who should be: (i) Physically and mentally fit. The work is field based and involves a lot of

(ii) Able to work under pressure in a highly technical environment (iii) In possession of, at least, a tertiary level qualification (degree/diploma/certificate from a tertiary institution)

(iv) Senior enough to be able to supervise and discipline personnel in levels below theirs

 

(v)Able to work in a team20

 

 

 

 

As a result of the first condition above, which is, legally, a disability-based discrimination or imposed by law, Thulani Tavashavira, Simangele Ndlovu and Msoni Mlilo, all blind civil servants at the time and members of the applicant, were simply dismissed or not recruited for being “physically unfit” to the job. In fact, they faced barriers erected by the Directive on the assumption that their visual impairment could be equated with inability to work. This was a case of discrimination on the ground of a disability and was in violation of Article 56 of the Constitution which expressly outlaws discrimination on the ground of disabilities.

 

 

The applicant sought a declaratory order to the effect that the exclusion of the members of the National

 

League of the Blind and other visually impaired civil servants from being enlisted as personnel in the

 

2012 population census was discriminatory.

 

 

 

 

20 National League of the Blind case, op cit note 3 p 3.

 

 

 

 

 

It also sought an order compelling ZIMSTAT and the Minister of Finance to “immediately facilitate the full participation of persons with disabilities on an equal basis with others in future population censuses or any other such exercise”. In addition to ensuring compliance with the order, the applicants also requested that the order be provided in the form of a “structural interdict that allows the Applicant to monitor the steps taken by the Respondents and allow the applicants to approach court for a decision whether the steps taken are adequate”.

 

 

The court found that

 

the exclusion of visually impaired persons from recruitment as enumerators and supervisors to which other persons were recruited for the purpose of conducting population census exercises was discriminatory and was a violation of the Constitution” and made an order to that effect.21

 

 

The High Court ordered ZIMSTAT and the Minister of Finance

 

“to put in place mechanism and facilities within a reasonable time that will enable the full participation of persons with disabilities, particularly those with visual impairment, as enumerators and supervisors in the conduct of population censuses or any other such exercise”.22

 

 

  1. An Evaluation of the Decision

 

This section evaluates the significance of the decision. In doing so, first, it shows how the declaratory order by the court fosters substantive equality and secondly, that ordering reasonable accommodation measures is also important in strengthening substantive equality.

 

 

4.1 Fostering Substantive Equality through the Declaratory Order

The Zimbabwe Constitution23 recognizes the inherent dignity and worth of each human being as one of its founding principles.24 In other words, this is the affirmation of the right to equality to all.

 

21 Para 1 of the order.

22 Para 2 of the order.

23 Act No. 20 of 2013

24 Section 3 (1)(e) of the Constitution

 

 

 

 

 

 

Importantly, the Constitution is also explicit in providing for the right of PWDs to treatment with respect and dignity.25 To secure this equality, the Constitution prohibits discrimination on various grounds including on the basis of disabilities.26 It reads:

A person is treated in a discriminatory manner for the purpose of subsection (3) if

 

  1. they are subjected directly or indirectly to a condition, restriction or disability to which other people are not subjected; or
  2. other people are accorded directly or indirectly a privilege or advantage which they are not accorded.”27

 

 

Although this provision is significant in guaranteeing the dignity and equality of PWDs, it is weakened by s 83 which submits the achievement of disability rights to the availability of resource test. As correctly argued by Manatsa, this is problematic as the government can rely on this provision to refrain from investing in disability rights.28 In fact, this is how formal or textual equality works. Formal equality is linked with Aristotelian equal treatment idea, which posits that likes must be treated alike.29

Accordingly, there is no need to adopt special measures for the benefit of the marginalized to address systemic inequality. As correctly underlined by Ngwena, formal equality “requires that all persons be evaluated by neutral rules regardless of any disparities on certain individuals or groups.30

 

In a formal equality context, the law provides equality and prohibits discrimination but there are various legal loopholes that hinder substantial or real equality. In this perspective, the application of equality does not consider structural elements which hinder substantial equality, but reflects the apparent similarity between persons. In this vein, while Zimbabwe has been credited for the adoption of The Disabled Persons Act (DPA)31 which, amongst other provisions, prohibits discrimination against

25 Section 3 (1)(e) of the Constitution

26 Sec 56(3).

27 Section 56(4)

28 Proceed Manatsa ‘Are disability laws in Zimbabwe compatible with the provisions of the United Nations Convention on the

Rights of Persons with Disabilities (CRPD)?” in International Journal of Humanities and Social Science Invention pp. 25-34 at 32.

29 Aristotle The Nicomachean ethics. Oxford: Oxford University Press. (Translated by D Ross)1980 pp. 113a-113b.

30 Charles Ngwena ‘Equality for people with disabilities in the workplace: An overview of the emergence of disability as a

human rights issue’ 2004 in Journal for Juridical Science, Volume 29(2): pp 167-197 at 171.

31 Adopted in 1992 and amended in 2001

 

 

 

 

 

PWDs on access to public premises, services and amenities and employment,32 this legislation has two serious shortcomings which hamper its objectives.

 

 

First, the name of the Act “Disabled Persons” is depreciatory and is likely to do more harm to PWDs. This is a clear representation of the medical model of disability which considers PWDs as being sick and in need of medical assistance. Unlike the social model of disability, the medical model does not recognise societal and environmental barriers as disabling factors. Mandipa writes that the DPA “reflects a medical and diagnostic approach to disability which ignores the imperfections and deficiencies of the surrounding society”.33

 

 

Secondly, unlike Article 27 of the CRPD which unambiguously provides for the right to work for PWDs, the DPA does not expressly provide for the right to work of a person with disabilities, but simply prohibits discrimination in employment34 and, as result, as noted by Tsitsi Choruma, “most people with disabilities in Zimbabwe are not accorded the same access to job opportunities as their able-bodied counterparts”.35

 

 

However, the court through the declaratory Order recognized that the discriminative nature of the recruitment process by ZIMSTAT unfairly excluded visually impaired persons and bridged the gap between formal and substantive equality.

 

The South Africa jurisprudence is informative in achieving substantive equality and securing human dignity for all. In Harksen v. Lane NO and Others,36 the Court articulated the test for unfair discrimination. According to the decision, three questions are essential: Whether there is a rational and legitimate ground for the policy, law or practice that differentiates between people or groups of people such as the

 

 

32 [Chapter 17: 01]

33 Esau Mandipa “Disabled Persons Act defective”, The Standard, January 22, 2012.

34 Proceed Manatsa op cit note 27 pp. 25-34 at 28.

35 Tsitsi Choruma ‘The Forgotten tribe’ persons with disabilities in Zimbabwe 2007, Progression Report, p 17.

36 Harksen v. Lane NO and Others 1998 (1) SA 300 (Constitutional Court) para 53.

 

 

 

 

 

 

differentiation that was included in the circular; whether the differentiation is an unfair discrimination; and in case the differentiation is an unfair discrimination, whether it can be justified under section 36 of the Constitution.37

 

 

At the centre of the second question is the need to secure dignity for all. In this question the court investigates the impact of the discrimination on the plaintiff and the social group(s) to which the plaintiff belongs. In assessing the impact, the following factors are paramount: (a) What is the position of the complainant in society and the extent to which the complainant belongs to a group that has been the victim of disadvantage or exclusion in the past; the nature of the provision or power and the purpose it seeks to achieve, including consideration whether the provision or power is intended to achieve a worthy and important social goal; and (c) the extent to which the provision or power has affected the rights or interests of the complainant and whether it has caused an impairment of the fundamental human dignity of the complainant in a comparably serious manner.38

 

 

In the case under investigation, the second stage enquiry reveals that visually impaired persons are victims of unfair discrimination for they are in a weak position; belong to a group that is generally the victim of exclusion and disadvantage; and the provision or power had affected their rights or interests and violated their fundamental human dignity. Consequently, the court in Zimbabwe was correct in pronouncing the declaratory order condemning the action of ZIMSTATS as discriminatory. This decision was also in line with the Hugo judgment in which the court held:

“The prohibition on unfair discrimination in the interim Constitution seeks not only to avoid discrimination against people who are members of disadvantaged groups. It seeks more than that. At the heart of the prohibition of unfair discrimination lies recognition that the purpose of our new constitutional and democratic order is the establishment of a society in which all human beings

will be accorded equal dignity and respect regardless of their membership of particular groups.

 

37 For more on this case see Charles Ngwena ‘Western Cape Forum for Intellectual Disability v Government of the Republic of

South Africa: A case study of contradictions in inclusive education’ in African Disability Rights Yearbook 2013, pp.139-164.

 

 

38 Harksen v Lane NO and Others paras. 51-53.

 

 

 

 

 

The achievement of such a society in the context of our deeply inegalitarian past will not be easy, but that that is the goal of the Constitution should not be forgotten or overlooked”.39

 

 

In other words, the prevention of discrimination seeks to efficiently secure the right to equality and dignity for all as echoed by both the South African and Zimbabwean Constitutions. Therefore, the Bulawayo High Court was correct in issuing the declaratory order which protected substantive equality and demonstrates that Zimbabwe is not a lawless country.

 

 

4.2 Fostering substantial equality through reasonable accommodation measures

 

According to the CRPD, ‘reasonable accommodation’ means

 

“necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.”40

 

 

In other words, adopting reasonable accommodation measures suggests the adoption of reasonable adjustment measures to secure the inclusion of PWDs. In this context, for the measure to be reasonable, it should not cause undue or disproportionate burden or hardship or unjustified costs.

 

 

Reasonable accommodation is essential to advance substantial equality because as noted by

 

Marumoagae,

“equality for persons with disabilities cannot stop with injunctions to refrain from invidious discrimination, but there must be a practical acknowledgment that persons with disabilities are not fully catered for by existing societal structures and that they have a right to participate fully in society and the labour market in particular”.41

 

39 President of the Republic of South Africa and Another v Hugo 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC)

40 CRPD, Article 2.

41 MC Marumoagae ‘Disability discrimination and the right of disabled persons to access the labour market’ in PER

Volume 15 (1), 2012 pp.345-428 at 347; also Day, Shelagh, and Gwen Brodsky. ‘The Duty to Accommodate: Who Will

 

 

 

 

 

 

 

 

Thus the CRPD provision compels the employer to adjust the work environment to ensure the inclusion of PWDs,42 at the work place for example. Nevertheless, the duty bearer of the right can show that the requested modifications cause undue burden, and will not be bound to provide such accommodation. In the Canadian case of Central Alberta Dairy Pool v Alberta43 the Supreme Court listed criteria for consideration in identifying whether the provision of accommodation would create undue burden. These criteria include:

(a)     Financial costs;

 

(b)     Impact on collective bargaining agreements; (c)  Disruption of service to the public;

(d)     Effects on employee morale;

 

(e)     Interchangeability of workforce and facilities; (f)  Size of the employer’s operations;

(g)     Safety;

 

(h)     Overall economic climate; and

 

(i)      Financial resources required for the accommodation

 

 

 

 

The inviolability of reasonable accommodation was further strengthened through another Canadian case, Eldridge v British Columbia44 where the Supreme Court held that the right to disability non-discrimination (under the Canadian Charter of Fundamental Rights) is not only a negative right but also a positive right that compels the state to take positive measures to ensure that PWDs enjoy rights as all other members of the society. In clarifying its position, the court held as follows:

“The principle that discrimination can accrue from a failure to take positive steps to ensure that

disadvantaged groups benefit equally from services offered to the general public is widely accepted in the human rights field. It is also a cornerstone of human rights jurisprudence that the duty to

 

Benefit?’ Canadian Bar Review Volume 75:433-473.

42 CRPD, Article 2.

43 The Central Alberta Dairy Pool v Alberta [1990] 2 SCR 489.

44 Eldridge v British Columbia (Attorney General) [1997] 3 SCR 624.

 

 

 

 

 

take positive action to ensure that members of disadvantaged groups benefit equally from services

 

offered to the general public is subject to the principle of reasonable accommodation”.45

 

 

 

 

On the employment terrain, reasonable accommodation boils down to “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities’’.46 According to the Americans with Disabilities Act of 1990, there are three types of “reasonable accommodations” at the work place:

“(i) modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or

(ii) modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or

(iii) modifications or adjustments that enable a covered entity’s employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities”.47

 

However, as indicated earlier, ‘reasonable accommodation’ should not cause “undue hardship” to the employer. This was clarified through the US case of Norcross v Sneed 48where the complainant, who was blind, had his application to work as school librarian rejected on the ground that once a year the librarian would have to take learners on a field trip. The court was of the view that possessing a driving license for the position was neither reasonable nor essential. Driving ability was necessary for the job for it was required only once a year. Alternative transport could be arranged by the employer without suffering undue hardship or burden.

 

 

 

 

45 As above, para 79.

46 Title I of the Americans with Disabilities Act of 1990 (the ‘ADA’).

47 Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act available at http://www.eeoc.gov/policy/docs/accommodation.html (accessed on 21 September 2016).

48 Norcross v Sneed 755 F2d 113 (8th Cir 1983)

 

 

 

 

 

 

In Europe, the European Council Directive aiming to provide a general framework for equal treatment in employment and occupation calls for the reasonable accommodation for PWDs in these terms:

“In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided.

This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of the disability policy of the Member State concerned.”49

 

 

The requirement of reasonable accommodation is also part of the South African law under the Promotion of Equality and Prevention of Unfair Discrimination Act,50 which directs all persons and entities to reasonably accommodate PWDs. In addition, the South African Employment Equity Act 55 of 1998 defines ‘reasonable accommodation’ to be “any modification or adjustment to a job or to the working environment that will enable a person from a designated group to have access or to participate or advance in employment”.51 In addition, the recently adopted White Paper on Disability Rights52 also relies on reasonable accommodation to secure the dignity of PWDs. Accordingly, in removing barriers to ensure access and participation for PWDs, amongst others, the White Paper’s Strategy includes the need to focus on reasonable accommodation measures,53 which include adjustments to:

  • Make the physical environment accessible;

 

  • Provide persons with disabilities with access to information and communication;

 

  • Redress stress factors in the environment;

 

  • Accommodate specific sensory requirements such as those relating to light,

 

noise and spatial stimuli;

 

49 Council Directive 2000/78/EC, art 5.

50 Act 4 of 2000.

51 Employment Equity Act section 1.

52 The White Paper on The Rights of Persons with Disabilities adopted on 9 December 2015, Government Gazette, No 39792 of 9 March 2016.

53 Ibid, para 6.1.1.6.

 

 

 

 

 

  • Improve independence and mobility of persons with disabilities;

 

  • Guarantee participation and supported decision-making by persons with disabilities; • Provide access and participation to quality education and work.

In sum, under international law employers are compelled to adopt reasonable accommodation measures to ensure the substantial equality of PWDs. In Zimbabwe, the National Disability Board is mandated to issue adjustment orders needed for the full inclusion of PWDs in the public services; and to formulate and develop measures and policies to secure equal opportunities for PWDs in the education and employment sector.54 Nevertheless, a person served with an adjustment order has thirty days of the service of the order to appeal to the Administrative Court if the order is unreasonable or imposes undue burden on the appellant.55 This is the formulation of reasonable accommodation in Zimbabwe, where failure to comply with the adjustment order is penalised by a fine.56 Manatsa observes that the criminalisation of non-compliance with an adjustment order is “a bold step” in an attempt to ensure full accessibility and services to PWDs.57

 

 

However, the Zimbabwe National League of the Blind case showed how a recruitment Directive was discriminatory of visually impaired persons and the National Disability Board had not intervened. Nonetheless, the court was firm in ordering the respondents to

“put in place mechanisms and facilities within a reasonable time that will enable the full participation of persons with disabilities, particularly those with visual impairments, and enumerators and supervisors in the conduct of future population censuses or any other such exercise”.58

 

This was indeed a call for the adoption of reasonable accommodation measures by the respondents in future recruitments processes. Moreover, the court did not consider whether the adjustment to

 

 

54 Disabled Persons Act, of 2001, section 5.

55 Disabled people Act of 2001, section 6 (5).

56 As above, section 6(8).

57 Proceed Manatsa “Are disability laws in Zimbabwe compatible with the provisions of the United Nations Convention on

the Rights of Persons with Disabilities (CRPD)?” International Journal of Humanities and Social Science Invention Volume 4

Issue 4 (2015) 28.

58 Ibid, para 2.

 

 

 

 

 

 

be effected will create undue burden or not, but simply urged the respondents to take action within reasonable time. This is a positive development which indicates that discrimination against PWDs and those who are visually impaired in particular cannot be tolerated, and that reasonable accommodation measures should be adopted to secure their substantial equality. This decision was in line, with the CRPD Committee’s Concluding Observations on China (2011) in which the Committee expressed its concerns on the practice of reserved employment, which discriminated against PWDs in their vocational training and career. It went on to recommend that China adopt all necessary measures to ensure that PWDs have freedom to choose their careers and vocational training.59

 

 

Although the verdict of the Zimbabwe National League of the Blind calls for celebration, its rationale was not clarified by the court which, besides refusing to grant a structural interdict, simply agreed with plaintiff without indicating reliance on foreign and international law as empowered by the Constitution,60 or any other rationale. In fact under s 326 of the Constitution, not only is customary international law part of the law of Zimbabwe, when it is consistent with the Constitution, or an Act of Parliament,61

‘When interpreting legislation, every court and tribunal must adopt any reasonable interpretation of the legislation that is consistent with customary international law applicable in Zimbabwe, in preference to an alternative interpretation inconsistent with that law’.62

 

 

This provision clearly empowers the court to rely on customary international law in providing reasoning for the judgment. Similarly, under section 327(20) of the Constitution, (2)

‘An international treaty which has been concluded or executed by the President or under the

 

President’s authority—

 

(a) does not bind Zimbabwe until it has been approved by Parliament; and

(b) does not form part of the law of Zimbabwe unless it has been incorporated into the law through an Act of Parliament.’

 

59 Concluding Observations on China (2011), paras 41 and 42.

60 See section 46 (c) and (e) of the 2013 Zimbabwean Constitution.

61 Section 326(1)

62 Section 326(2).

 

 

 

 

 

Put differently, Zimbabwe subscribes to the monist theory of international law which requests parliamentary approval for a ratified treaty and its incorporation into national law by an Act of parliament. It is only when these conditions are met that the international treaty has force of law at the domestic level.

 

 

In Zimbabwe, the court could have relied on the force of law provided by the CRPD through the Disability Act to motivate its decision. This could have been done by the court to clarify its position. Left with no clarity, the reader of the judgment has to guess, read and interpret the decision in line with international law and foreign jurisprudence. Notwithstanding this shortcoming, the Bulawayo High Court has demonstrated that the judiciary in Zimbabwe is inclined to protect disability rights.

 

 

  1. Concluding Remarks

 

The aim of this article was to unpack the implications of the decision of the Bulawayo High Court in the matter between Zimbabwe National League of the Blind v Zimbabwe National Statistics Agency (ZIMSTAT) and Ors on the protection of disability rights in Zimbabwe in particular, and in Africa broadly. The paper began with an exploration of the global and regional standards for protection of the right to employment of PWDs before focusing on the case under discussion. It was found that at all these levels; PWDs enjoy a normative protection of their right to employment and should not be discriminated against on the job market on the ground of disabilities.

 

As for the implication of the National League of the Blind decision on the disability rights discourse, it echoed the fact that the social model of disability has gained dominance over the medical model on the imperative of realising significant or substantial equality. This positive development was illustrated by the declaratory order affirming that “the exclusion of visually impaired persons from recruitment” for positions afforded to other was discriminatory and was unconstitutional,63 and subsequently ordered the adoption of mechanisms or reasonable accommodation measures within

 

 

63 Para 1 of the Order

 

 

 

 

 

 

reasonable time to ensure the inclusion of visually impaired persons in such future recruitments. Notwithstanding the insufficiency of this decision, namely the lack of substantive reasoning of the Court that could have relied on ss 326 and 327 of the Constitution to clarify its decision, the latter itself is a testimony that disability rights are now taken seriously and this positive lesson from Zimbabwe should be emulated by other courts across the African Continent.

 

 

PUBLIC STATEMENTS PREJUDICIAL TO THE STATE

 

 

 

Chilling freedom of expression to the bone with a chilling offence:

 

Case note on Chimakure & Others v Attorney-General 2013 (2) ZLR 466 (S)

 

 

 

 

Geoffrey Feltoe and John Reid-Rowland

 

 

 

 

Overview

 

This case note examines the reasoning of the Supreme Court leading to its conclusion that s 31(a) (iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the “Criminal Law Code”) is unconstitutional and therefore null and void. The note also looks at the implications of this ruling in respect of the rest of s 31 of the Criminal Law Code, as well as other provisions in the Code.

 

 

Background to the Case

 

Some human rights activists and some members of a political party were abducted from different places at different times, following a number of bomb explosions around Harare. The identities of the abductors and places where the abductees were taken were kept secret. No-one knew what had happened to the abductees. These abductions were widely reported in the media and the question of who had kidnapped the people concerned became a matter of public discussion. The law enforcement agencies claimed that they had no knowledge of who the abductors were and what their motive was.

 

 

After 27 days, the victims appeared at various police stations in Harare and were later charged with various security crimes. Indictments, lists of witnesses and summaries of their evidence were served on them. The witnesses were all members of law enforcement agencies.

 

 

The Zimbabwe Independent newspaper then published an article in which it stated that the Attorney-

 

General’s Office “… revealed the names of some members of the Central Intelligence Organisation

 

 

 

 

 

 

[CIO] and the police who were allegedly involved in the abduction of human right and MDC activists last November”, and went on to name the members. The Attorney-General was of the view that the articles contained false statements about the involvement of the law enforcement agencies and its members in the abduction of the human rights activists and members of the political party. He concluded that the articles contained statements which were materially false and prejudicial to the State, and authorised the institution of criminal proceedings against the applicants. On the other hand, the accused consistently denied that anything in the articles in question was false.

 

 

The Zimbabwe Independent’s editor and a senior journalist were arrested and charged, together with a representative of the newspaper company, under s 31 of the Criminal Law Code. Section 31 of creates an offence styled “publishing or communicating false statements prejudicial to the State”, and provides for the imposition of a fine of up to $5000 or imprisonment of up to twenty years, or both, on anyone convicted.

 

 

The alleged prejudice to the State in this case was the undermining of public confidence in the police and the CIO, so the specific charge was contravening s 31(a)(iii), the part of s 31 dealing that particular type of prejudice to the State. Section 31(a)(iii) in effect prohibits the publication or communication to any other person of a wholly or materially false statement with the intention, or realising that there is a real risk or possibility, of undermining public confidence in a law enforcement agency (which would include the police force and the CIO), the Prison Service or the Defence Forces of Zimbabwe.

 

 

The provision did not (it has since been amended by Act 3 of 2016) require proof by the State that the false statement actually undermined public confidence in the security service institution concerned or that the accused had knowledge of the falsity of the statement.

 

 

Referral of case to Supreme Court

 

The magistrate originally presiding over this matter referred it to the Supreme Court to determine

 

 

 

 

 

the constitutionality of s 31(a)(iii) of the Criminal Law Code.

 

 

 

 

Arguments

 

The applicants sought a declaration from the court that the criminal provision in question was void because it was inconsistent with the freedom of expression guarantee in s 20 of the former Constitution (the 1980 Constitution.) They accepted that the right to freedom of expression is not absolute and that, in exercising this right, there is a duty not to infringe the rights of others or the public interests listed in s 20(2). They argued that the restriction imposed by s 31(a)(iii) of the Criminal Law Code on the exercise of freedom of expression exceeded what was reasonable in a democratic society.

 

 

The applicants further argued that, although the restriction was contained in a law passed by Parliament, the provision did not constitute a rule of law because the essential elements of the crime did not define the scope of the prohibited acts in a language which was sufficiently clear and adequately precise.

 

 

The prosecution defended the provision as constitutional, essentially arguing that the provision was reasonably required in a democratic society in the interests of defence, public safety and public order.

 

 

Judgment of Constitutional Court

 

 

 

 

  1. The Applicable Law

 

 

 

 

Vital Importance of freedom of expression

 

Citing United Nations instruments and decided cases from the United States, Canada and India, as well as the leading Zimbabwean Supreme Court decision in Chavunduka & Anor v Minister of Home Affairs & Anor 2000 (1) ZLR 552 (S), the Court (per Malaba DCJ, with whom Chidyausiku CJ, Ziyambi JA, Garwe JA & Cheda AJA concurred) explained in detail the democratic importance of freedom of expression and why it must be constitutionally protected. The State must ensure that people are able

 

 

 

 

 

 

fully to enjoy their right to freedom of expression. What follows is a résumé of the unusually long

 

(53 printed pages) judgment.

 

 

 

 

Does freedom of expression encompass the making of false statements?

 

The Court decided that the protection provided by s 20(1) does not have regard to the truth or falsity of the meaning of the information published or communicated. Truth is not a required condition for the protection of freedom of expression. The content of a statement does not therefore determine whether it falls within s 20(1)’s protection. The Constitution recognises the fact that people tell lies in a variety of social situations for different reasons. Lies are not necessarily without intrinsic social value in fostering individual self-fulfilment and discovery of truth. The only limitation on the “freedom” or “liberty” is the duty not to injure the rights of others or the collective interests listed in s 20(2) (a). It is the rights of others or the public interests and actual or potential harm thereto that help to determine whether a restriction on the expression is valid.

 

 

The fact that a person has told lies to others on any subject matter should not be of concern to the State. The Government is not a monitor of truth. Anyone has a right to impart or receive ideas and information about the activities of security service institutions, regardless of the falsity or truth of the message conveyed, provided no harm or real likelihood of harm to the rights of others or public interest results in breach of law. No exercise of the right to freedom of expression can, without more, be restricted on the ground that the message conveyed is false, offensive or not favourable.

 

 

Permissible restrictions on freedom of expression

 

Freedom of expression is not an absolute right and may be restricted if the objective of its enactment is the protection of a public interest listed in s 20(2)(a), which include the maintenance of public order and protection of public safety. The recognition of the power of Government to limit the exercise of freedom of expression arises from the fact that the constitutional freedom of expression can be abused for the purposes of harming the rights of others or the public interest.

 

 

 

 

 

Restriction on freedom of expression necessary because of demonstrable direct, obvious and serious harm to public interest.

Section 20(2) prescribes strict requirements for any measure in the exercise of State power which has the effect of restricting the exercise of the right to freedom of expression. The restriction may only be imposed if it is reasonably justifiable in a democratic society. The State may interfere with the exercise of freedom of expression only when the activity or expression poses a real danger of causing direct, obvious and serious harm to the rights of others or the public interests listed in s

20(2).The restriction must be narrowly drawn and specifically tailored to achieve the objective so as not to inhibit unduly freedom of expression. Restriction of the exercise of freedom of expression is a measure so stringent that it is inappropriate as a means for averting a relatively trivial harm to society.

 

 

It should be borne in mind that the State has sufficient resources to refute wrong statements and this means can be used by a public institution to effectively protect a public interest against the publication or communication of false statements about its activities without having to curtail freedom of expression.

 

 

Rational connection between restriction and objective

 

There must be a rational connection between the restriction and the objective for imposition the restriction. A restriction which is not rationally connected with the objective pursued is an unreasonable, unnecessary and arbitrary interference with the exercise of freedom of expression.

 

 

Restriction must be proportionate

 

Even if there is a rational connection, the restriction must be proportional to the objective sought to be achieved by it. The court will examine whether there are other less restrictive and intrusive means available which the legislature which would be equally effective to achieve the same objective. It will also examine whether the restrictive measure so severely affects the right to freedom of

 

 

 

 

 

 

expression that the legislative objective sought to be achieved is outweighed by the extent of the restriction. The law should not in its design have the effect of overreaching and restricting expression which is not necessary for the achievement of the objective concerned. Not every case of actual or potential harm to the public interests listed in s 20(2)(a) justifies the imposition of restrictions on the exercise of freedom of expression.

 

 

Restriction must be imposed by law

 

Section 20 of the Constitution requires that any restriction must be “contained in … any law” or “done under the authority of any law”, that is, that the restriction must have all the universally recognised characteristics of a legal norm. A criminal law must define its essential elements and the law must not be unconstitutionally vague. The rationale underlying the principle of unconstitutional vagueness of a statute is that it is essential in a free and democratic society that people should be able, within reasonable certainty, to foresee the consequences of their conduct in order to act lawfully. This is a fundamental element of law and order and therefore peace. If arbitrary and discriminatory enforcement of criminal law is to be preventable laws must provide explicit standards for those who apply them. The discretion of those entrusted with law enforcement should be limited by clear and explicit legislative standards. The standard is one of sufficient clarity. It is not one of absolute clarity. A criminal law imposing restrictions on the exercise of the right to freedom of expression will be unconstitutionally vague if it fails to provide a clear basis for deciding whether a particular conduct violates that law.

 

 

  1. Application of law to offence in question

 

 

 

 

Does the offence in question serve to protect a public interest?

 

The court held that the offence of making a false statement intended to undermine public confidence in a security service clearly restricts freedom of expression and therefore the issue was whether it fell under any of the permissible grounds for imposing restrictions.

The protecting public confidence in a security service institution is a means of ensuring that the

 

 

 

 

 

institution performs efficiently and effectively its constitutionalvmandate to maintain public order and protect public safety. The offence is rationally connected to this objective. Whilst the media are entitled to criticize unlawful activities on the part of security agencies, making of false statements about their lawful activities will impair their ability to carry out their mandate as this may lead to withdrawal of support for law enforcement. Therefore, although the offence does not state this explicitly, its legitimate aim is to protect the interests of public order and public safety and this falls within the scope of permissible restrictions listed in s 20(2) The public interest is in ensuring that the exercise of freedom of expression does not cause direct, serious and proximate harm to lawful performance by the security service institutions of the functions for which they were constitutionally established.

 

 

Alleged unconstitutionality vagueness of provision

 

 

 

 

Real risk or possibility

 

The applicants argued that the phrase “real risk or possibility” referred to anything which could

 

scientifically happen without it necessarily being probable.

 

 

 

 

The Court found that the words “real risk or possibility” in s 31(a)(iii) of the Code denote a test to be used to establish a subjective state of mind accompanying the publication or communication of a false statement relating to the security service institution. The concept of “realisation of a real risk or possibility” of the occurrence of a specific event as a consequence of the proscribed conduct has been used in the definition of crimes for many years to denote a subjective state of mind of crimes to the extent that it has now acquired a special meaning in criminal law jurisprudence. It has a clear meaning.

 

 

Falsity

 

The applicants argued that the word “false” was wide enough in meaning to embrace a statement which was merely incorrect or inaccurate. They maintained it is always difficult to conclusively determine total falsity. The Court found that this word was sufficiently precise in its meaning.

 

 

 

 

 

 

 

 

Undermining public confidence

 

The applicants argued that the concept of “public confidence” was nebulous and was so susceptible to change as to render the offence unconstitutionally vague. They contended that it was almost impossible to measure “public confidence” in a public institution, as it depended on such factors as the political and economic conditions of a country at any given time.

 

 

The Court decided that the words “public confidence” were not so vague as to be incapable of definition by the courts. These words were to be interpreted in the context of the performance by a security service institution of their constitutional functions and, in that context, refers to the trust reposed in the institution by the public. The basis of the trust is a belief that members of a security service institution will be able to execute their duties in accordance with the purposes for which the institution was established.

 

 

The Court therefore decided that the contention that the provision as framed is unconstitutionally vague as to fail the test of legality is clearly unsustainable. The concepts of “false”; “real risk or possibility” and “public confidence” do not in themselves cause insurmountable problems of interpretation. The meaning to be given to each word or phrase as used in the offence is clear. Thus, the restriction is contained “in law” within the meaning of s 20(2) of the Constitution.

With respect, the Court’s decision in regard to the concept of “public confidence” is questionable. As contended by the applicants, it is a very vague and elusive concept. It is difficult to ascertain and measure. How does the court ascertain whether a published statement has in fact weakened public confidence in a law enforcement agency to such an extent that it impedes the agency in fulfilling its duty to maintain public order and preserve public safety? Must the State prove that the statement undermined public confidence and trust in the agency to such an extent that it significantly and demonstrably prevented the agency from carrying out its duties? Must the statement have this effect in the public as a whole or simply a significant portion of the public?

 

 

 

 

 

 

 

 

The restriction imposed by the offence is not necessary and proportionate to the achievement of its legitimate objective

This offence is unconstitutional because it is overbroad and has an unacceptable chilling effect on

 

freedom of expression.

 

 

 

 

Over-broad nature of offence

 

The offence is not narrowly drawn and carefully tailored to achieve the objective pursued. It substantially

 

restricts freedom of expression and it is questionable whether it is effective in achieving its objective.

 

 

 

 

Nature of offence

 

The court held that for the protection of public confidence in a security service institution to have any connection with the legitimate aim of protecting the interests of public order and public safety, the false statement must relate to the performance by the security service institution of its functions. But the offence does not provide that the false statement must relate to an important aspect of the performance of the functions of the security service institution of its functions. There are many activities by security service institutions which are unrelated to their efficient performance of the functions of maintaining public order or preserving public safety. False news that is harmless to the effectiveness of a security service institution in maintaining public order or preserving public safety would be covered by the offence as long as it is accompanied by an intention to undermine public confidence in the security service institution.

 

 

Offence does not require that statement must reach significant number of people

 

The offence does not even require that the statement must reach a significant number of people. It

 

would cover even a conversation between two people in a private home.

 

 

 

 

 

 

Offence covers remote possibilities

 

The offence is committed when the statement is not wholly but only materially false. “Materially false” denotes that the statement does not have to be completely false. The provision has the effect of shielding the public interest from every possibility of harm, even harm which is only remotely possible. A remote possibility of harm to the maintenance of public order or preservation of public safety cannot be a reasonable basis for the legislative imposition of a restriction on the exercise of freedom of expression.

 

 

Offence does not require that conduct poses real danger to public interest

 

The offence does not make reference to the maintenance of public order or protection of public safety. Thus the State has no obligation to prove that the conduct posed any real danger to the public interest concerned. Nothing in the language of the statute limits its applicability to situations where the prohibited acts directly and proximately cause harm to the maintenance of public order or preservation of public safety. An enactment which is capable of being construed and applied to cases where no danger to the listed public interests could arise cannot be held to be constitutional and valid to any extent.

 

 

Criminalising statements made without knowledge of their falsity

 

The offence does not require that the maker of the statement had knowledge of the falsity of the statement that is being made. The State should not penalise people who make false statements in good faith about a matter of public concern where the statement is published without knowledge of its falsity or without reckless disregard as to whether the statement is false or not. A person who, at the time of publication of the statement, sincerely believes that it is true does not have the state of mind justifying the imposition of criminal liability. Liability must be based on the notion of personal responsibility inherent in the concept of the exercise of freedom of expression.

 

 

The provision also covers a person who, at the time he or she publishes or communicates a statement,

 

 

 

 

 

sincerely believes that it is true, although it happens to be false. It is assumed in every case that the accused person had reasonable opportunity to investigate the accuracy of the statement and knowing that it was false, deliberately chose to publish it. This assumption ignores the fact that news media often work in situations in which information changes fast, denying even the most responsible journalist time to verify the accuracy of the information received.

 

 

An accused person may not be in a position to prove at the trial the facts that gave rise to his belief that the statement is true. This could lead to the inference that he knew or “must have known” that the statement was false and intended to use it to undermine public confidence in the security service institution concerned. A person who voices a genuine concern about selective or discriminatory enforcement of the law by the law enforcement agency may find himself charged and convicted of the offence because of the difficulty of proving the truth of the allegation in a court of law. Genuine criticism of the way law is enforced may be suppressed. The suppression may be justified by labelling the statement a false statement published or communicated with intent to undermine public confidence in the law enforcement agency. Information confirmatory of the truth of a statement may in some cases be in the possession of the institution, which may withhold the information, resulting in a situation where the statement is labelled as false. A statement may also be regarded as false because a journalist feels compelled to uphold the principle of confidentiality protecting the sources of his information within the institution from disclosure.

 

 

Draconian penalty for offence

 

The maximum penalty for this offence (a fine of “up to or exceeding [sic] level fourteen or imprisonment for a period not exceeding twenty years or both”) is, the Court said, draconian and disproportionate in relation to the harm to the public interest which the offence seeks to prevent. Every penalty imposable must be proportionate to the legitimate aim pursued and the seriousness of the offence. The only inference is that the punishment is intended to have a chilling effect on the exercise of freedom of expression, as opposed to merely deterring the occurrence of the prohibited acts. Because of the

 

 

 

 

 

 

severity of the punishment applicable it is bound to have a severe inhibiting effect on the exercise of freedom of expression. The level of the maximum penalty of imprisonment the law is not justified by the objective it is intended to serve. Freedom of expression is peculiarly more vulnerable to the “chilling effects” of criminal sanctions than any other fundamental right and the UN Special Rapporteur on freedom of opinion and expression has argued that penal sanctions, particularly imprisonment, should never be applied to offences of publishing false news.

 

 

Final ruling by Supreme Court

 

The Constitutional Court unanimously declared unconstitutional s 31(a)(iii) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It decided that this provision was ultra vires s 20(1) of the 1980 Constitution that was in operation prior to the 2013 Constitution and it was therefore a nullity.

 

 

Pursuant to s 24(5) of the former Constitution, the Court issued a rule nisi, calling on the Minister of Justice to show cause, on the return day, why this provision should not be declared to be ultra vires s 20(1) of the former Constitution and accordingly invalid. The Minister submitted a document criticising the legal reasoning in the court’s judgment, but failed to provide any evidence of factors, not previously brought to the court’s attention, which might have shown that the provision was in fact justifiable in a democratic society. The court was subsequently informed that the Minister no longer opposed an order declaring the provision unconstitutional and void. The court therefore, in Chimakure

& Anor v A-G 2014 (2) ZLR 74 (CC), made a final ruling that the provision was void.

 

 

 

 

Implications of judgment for other offences contained in s 31

 

Section 31 deals with the making of wholly or materially false statements prejudicial to the State.

 

 

 

 

The ruling by the Constitutional Court that the maximum penalty of twenty years is draconian and will have a serious chilling effect of freedom of expression must surely apply to all the types of offence set out in s 31.

 

 

 

 

 

First sub-species

 

The first sub-species is publishing or communicating a false statement to any other person intending or realising that there is real possibility of the prejudicial consequences occurring. This offence is committed whether or not the publication or communication actually results in the prejudicial consequences. The prejudicial consequences to the State intended are:

  • inciting or promoting public disorder or public violence or endangering public safety; or

 

  • adversely affecting the defence or economic interests of Zimbabwe; or

 

  • undermining public confidence in a law enforcement agency, the Prison Service or the Defence

 

Forces of Zimbabwe; or

 

  • interfering with, disrupting or interrupting any essential service.

 

 

 

 

Implications for first sub-species of Constitutional Court ruling

 

There are various grounds for concluding that as currently formulated this sub- species (apart from the provision relating to undermining public confidence in a security service agency) is unconstitutional. The following rulings by the Constitutional Court pertaining to the undermining public confidence provision would appear to apply with equal force to the provisions on the other prejudicial effects.

  1. a) The ruling that this offence must have the requirement that the maker of the statement must know that the statement being made is false.
  2. b) The ruling that the falsity requirement for this offence should be confined to a statement that

 

is wholly false.

 

  1. c) The implied ruling that the offence should only be committed if the statement is published to

 

a significant number of persons, rather than just one other person.

 

 

 

 

Second sub-species

 

The second sub-species is publishing to any other person a wholly or materially false statement knowing that the statement is false or not having reasonable grounds to believe that it is true, if the publication of the false statement actually results in any of the prejudicial consequences. This

 

 

 

 

 

 

offence is committed both when the maker intended and realised that there is a real possibility of the prejudicial consequences occurring and even when he or she had no such intention. The prejudicial consequences that occur are these:

  • promoting public disorder or public violence or endangering public safety; or

 

  • adversely affecting the defence or economic interests of Zimbabwe; or

 

  • undermining public confidence in a law enforcement agency, the Prison Service of the Defence

 

Forces of Zimbabwe; or

 

  • interfering with, disrupting or interrupting any essential service.

 

 

 

 

Implications for second sub-species of Constitutional Court ruling

 

The following rulings by the Constitutional Court pertaining to the undermining public confidence

 

provision would appear to apply with equal force to the provisions on the other prejudicial effects.

 

  1. a) The ruling that the falsity requirement for this offence be confined to a statement

 

that is wholly false.

 

  1. b) The implied ruling that the offence should only be committed if the statement is published to

 

a significant number of persons rather than just one other person.

 

  1. c) This sub-species requires that the maker of the statement must know that

 

the statement is false or not have reasonable grounds to believe that it is true. The ruling of the Constitutional Court requires that the maker of the statement must know that the statement is false. The offence should not be committed if the State proves simply that the maker did not have reasonable grounds to believe that the statement was true.

  1. d) To make the maker of the statement liable even where he or she had no intention

 

to cause the prejudicial consequence is to make the maker strictly liable and cuts across the normal principles that there must be a blameworthy state of mind which for serious crimes must normally be intention; it is not sufficient to prove merely that he or she knew he or she was making a false statement.

 

 

 

 

 

Prejudicial effects of both sub-species

 

The prejudicial effects that both sub-species purport to prevent are almost identical. As pointed out previously, the main differences between the two offences are:

  • The first sub-species does not requires that the maker of the statement should know that the statement is false and the State does not have to prove that the prejudicial consequences ensued, but only that the maker intended them to occur.
  • The second sub-species requires the maker knew that the statement was false or had no reasonable grounds for so thinking and the prejudicial consequence in question must have ensued and will apply whether or not the maker had actual or legal intention to cause the prejudicial consequence.

 

 

The prejudicial consequences for both sub-species are almost identical and they will be dealt with together. In respect of the prejudicial effects other than undermining confidence in a security service agency, the Constitutional Court ruling will require a careful examination of

  • whether the offence is defined with sufficient precision;

 

  • whether the restriction on freedom of expression is rationally connected with one of the permissible constitutional grounds for imposing a restriction, the relevant grounds being the interests of defence, public safety and public order and the economic interests of the State;
  • whether the restriction is strictly necessary to protect against a direct, obvious and serious harm to the public interest;
  • whether the restriction on freedom of expression is disproportionate in respect to the objective

 

and whether the objective can be achieved by less invasive means.

 

 

 

 

Each of the prejudicial consequences to the State will be examined in turn.

 

 

 

 

 

 

Promoting or inciting public disorder or public violence or endangering public safety This ground directly relates to the permissible restriction of freedom of expression in the interests of maintaining public order or protecting public safety. However, the section does not specify that the false statement must cause or must be intended to promote or incite public disorder or public violence on a scale that will significantly threaten public order or endanger public safety. Surely incitement of minor public disorder cannot be prejudicial to the State. The offence of public violence (s 36 of the Criminal Law Code) requires that the accused act in concert with one or more other persons, forcibly and to a serious extent, disturb the peace, security or order of the public. A person who incites public violence could be charged with incitement to commit the offence of public violence. The need for the offence in s 31 of the Criminal Law Code is highly questionable.

 

 

Adversely affecting the defence of Zimbabwe

 

This ground directly relates to the permissible restriction of freedom of expression in the interests of defence. But “defence of Zimbabwe” covers a wide spectrum of matters and the offence does not specify that there must be direct, obvious and serious prejudice to Zimbabwe’s defence interests. Without this limitation the chilling effect on the right to criticise aspects of the defence sector will be considerable.

 

 

Adversely economic interests of Zimbabwe

 

This ground directly relates to the permissible restriction of freedom of expression in the economic interests of the State. Again, “economic interests of Zimbabwe” cover a wide spectrum of matters and the offence does not specify that there must be direct, obvious and serious prejudice to Zimbabwe’s economic interests. Without this the chilling effect on the right to criticise aspects of such matters as the management of the economy will be considerable.

 

 

Interfering with, disrupting or interrupting any essential service.

 

This ground does not specifically fall under any of the permissible grounds for restricting freedom

 

 

 

 

 

of expression. It would have to be argued that interference or disruption of such essential services posed a threat to public safety or could result in public disorder. Additionally, the offence does not specify that the conduct caused serious interference or disruption and not just minor prejudice.

 

 

When deciding on the constitutionality of the first sub-species of this offence it must be borne in mind that this first sub-species does not require that the prejudicial consequences actually occur; all that is required is that the maker of the statement had actual or legal intention to cause these consequences. This in effect is an offence that can be merely an intentional attempt to cause the consequence. For the second sub-species, the prejudicial consequence must have occurred but the State does not have to prove that the maker intended such consequence; all that has to be proven is that the maker knew that the statement was false or did not have reasonable grounds for believing it to be true.

 

 

Section 177 of the Criminal Law Code

 

A similarly vague offence – though admittedly the penalties are appreciable lower – is to be found

 

in s 177, which reads:

 

“Undermining of police authority

 

Any person who

 

(a) in a public place and in the presence of

 

(i) a police officer who is present on duty; or

 

(ii) a police officer who is off duty, knowing that he or she is a police officer or realising that there is a risk or possibility that he or she is a police officer;

makes any statement that is false in a material particular or does any act or thing whatsoever; or (b) in a public place and whether or not in the presence of a police officer referred to in subparagraph (i) or (ii) of paragraph (a), makes any statement that is false in a material particular or does any act or thing whatsoever;

with the intention or realising that there is a risk or possibility of engendering feelings of hostility

 

 

 

 

 

 

towards such officer or the Police Force or exposing such officer or the Police Force to contempt, ridicule or disesteem, shall be guilty of undermining police authority and liable to a fine not exceeding level seven or imprisonment for a period not exceeding 2 years or both.”

 

 

It is submitted that the constitutionality of this provision should also be considered on the basis of whether there is a real possibility of promoting or inciting public disorder or public violence on a scale that will significantly threaten public order or endanger public safety. The statement or act would also have to be made or done in the presence of a significant number of persons. Being abusive to a police officer in a police station would be very unlikely to have that effect: see S v Jekanyika HH-298-14. Here, the appellant and another person entered the complainant’s office. The complainant, who was the Officer Commanding Mutare Police District, greeted the two and offered them seats. Immediately upon taking his seat, the appellant hurled certain accusations against the complainant which included the allegations that the complainant had forced the appellant to give a statement to police. There was also an allegation that the complainant had sent his officers to arrest him instead of protecting him. The applicant is said to have accused the complainant of being a corrupt officer who wined and dined with thieves. He threatened to air his grievances against the complainant with the President. The appellant was drunk at the time. Hungwe J held that there had to be an intention to or realisation of the risk or possibility of engendering feelings of hostility towards such officer or the police force to contempt, ridicule or disesteem. In the circumstances, it could hardly be said that the appellant intended to engender feelings of hostility towards either the complainant or the police force or that he intended to expose the complainant or the police force in general to contempt or ridicule or disesteem.

 

 

The police are not delicate flowers that must be protected against the smallest of slights: they should

 

be able to put up with fairly robust remarks and treat them with indifference.

 

 

 

 

Conclusion

 

The judgment in the Chimakure case goes a long way in upholding the fundamental right to freedom

 

 

 

 

 

of expression. This freedom is vitally important as it is a sine qua non of the enjoyment of many of our other fundamental rights. The judgment exposes how the offence charged devastates the right to express views on security sector institutions. It shows systematically the disproportionate overreach of this offence. The grounds for criticising the specific offence charged apply with equal force to the other offences contained in s 31. As the Court pointed out, the UN Special Rapporteur on Freedom of Opinion and Expression has argued that penal sanctions, particularly imprisonment, should never be applied to offences of publishing false news because of the chilling effect that such provisions have on freedom of speech. There is much merit in this view. The whole of s 31 must be reconsidered and, if a penal provision is to be retained at all, it must not destroy the right to freedom of expression; it must be one which is justifiable in a democratic society where freedom of expression is greatly valued.

 

 

CRIMINAL LAW DEFENCES AND THE RIGHT TO LIFE IN THE NEW CONSTITUTION

 

 

 

 

Geoffrey Feltoe

 

 

 

 

This article explores the status of defences to criminal liability for causing the death of another

 

person in the light of the nature of the right to life guarantee in section 48 of the 2013 Constitution.1

 

 

 

 

Defences in Criminal (Codification and Reform) Act [Chapter 9:13]

 

The Criminal Law (Codification and Reform) Act [Chapter 9:13] (“the Criminal Law Code”) provides that where stringent requirements are met a person has a defence to criminal liability where he or she causes the death of another—

acting in self-defence; [s 253] acting in defence of a third party; acting in defence of property; [s 258]

acting under necessity where he or she has been threatened that he or she will be killed unless he or she kills the other person. [s 264]

acting under lawful superior orders [s 268].

 

 

 

 

Defence in the Criminal Procedure and Evidence Act [Chapter 9:07]

 

42 Resisting arrest

 

(1) If any person who is authorized or required under this Act or any other enactment to arrest or assist in arresting another person attempts to make the arrest and the person whose arrest is attempted—

(a) resists the attempt and cannot be arrested without the use of force; or

(b) flees when it is clear that an attempt to arrest him is being made or resists the attempt and flees; the person attempting the arrest may, in order to effect the arrest, use such force as is reasonably justifiable in the circumstances of the case to overcome the resistance or to prevent the person

1 Constitution of Zimbabwe (Amendment Act 20) of 2013 (“2013 Constitution”)

 

 

 

 

 

concerned from escaping.

 

(2) Where a person whose arrest is attempted is killed as a result of the use of reasonably justifiable force in terms of subsection (1) the killing shall be lawful if the person was to have been arrested on the ground that he was committing or had committed, or was suspected on reasonable grounds of committing or having committed an offence referred to in the First Schedule.

 

 

Implied defence in the Prisons Act [Chapter 7:11]

 

30 Use of weapons by prison officers

 

(1) Subject to this section, a prison officer may use a weapon against—

 

(a) a prisoner who is—

 

(i) escaping or attempting to escape; or

 

(ii) engaged in a combined outbreak or in an attempt to force, break open or scale the outside door, gate, fence or enclosure wall of the prison; or

(iii) using violence to him or another prison officer or other person;

 

(b) a person who—

 

(i) whilst assisting a prisoner to escape, is using violence to him or another prison officer or other

 

person; or

 

(ii) is engaged in a combined break-in or in an attempt to force, break open or scale the outside door, gate, fence or enclosure wall of the prison or an inside door, gate, fence or wall of the prison; or (iii) whilst so engaged, is using violence to him or another prison officer or other person.

(2) Resort shall not be had to the use of a weapon—

 

(a) in terms of subparagraph (i) of paragraph (a) of subsection (1), unless—

 

(i) the prison officer has reasonable grounds to believe that he cannot otherwise prevent the escape;

 

and

 

(ii) the prison officer gives a warning to the prisoner that he is about to use the weapon against

 

him; and

 

(iii) the warning given by the prison officer is unheeded;

 

 

 

 

 

 

(b) in terms of subparagraph (iii) of paragraph (a) or subparagraph (i) or (iii) of paragraph (b) of subsection (1), unless the prison officer has reasonable grounds to believe that he or the other prison officer or other person, as the case may be, is in danger of suffering grievous bodily harm.

(3) No prison officer shall in the presence of a prison officer senior to himself make use of a weapon in terms of subsection (1), except on the orders of the senior prison officer.

(4) The use of weapons in terms of this section shall be, as far as possible, to disable and not to kill.

 

 

 

 

Constitutional provisions on the right to life in pre-2013 Constitution

 

Section 12 of the pre-2013 Constitution explicitly qualified the right to life guarantee by providing that various forms of killing would not be regarded as a violation of the right to life. The full provisions read as follows:

12 Protection of right to life

 

(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. (2) A person shall not be regarded as having been deprived of his life in contravention of subsection (1) if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case—

(a) for the defence of any person from violence or for the defence of property;

 

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

 

(c) for the purpose of suppressing a riot, insurrection or mutiny or of dispersing an unlawful gathering; or

 

(d) in order to prevent the commission by that person of a criminal offence;

 

or if he dies as the result of a lawful act of war.

 

(3) It shall be sufficient justification for the purposes of subsection (2) in any case to which that subsection applies if it is shown that the force used did not exceed that which might lawfully have been used in the circumstances of that case under the law in force immediately before the appointed day.

 

 

Provisions in the 2013 Constitution

 

 

 

 

 

By contrast the 2013 Constitution has no explicit provisions setting out the circumstances in which killing will be regarded as lawful and therefore not in violation of the right to life. This appears to be a serious oversight on the part of the drafters of the Constitution. Section 48 reads as follows—

 

 

48 Right to life

 

(1) Every person has the right to life.

 

(2) A law may permit the death penalty to be imposed only on a person convicted of murder committed in aggravating circumstances, and—

(a) the law must permit the court a discretion whether or not to impose the penalty;

 

(b) the penalty may be carried out only in accordance with a final judgment of a competent court;

 

(c) the penalty must not be imposed on a person—

 

(i) who was less than twenty-one years old when the offence was committed; or

 

(ii) who is more than seventy years old;

 

(d) the penalty must not be imposed or carried out on a woman; and

 

(e) the person sentenced must have a right to seek pardon or commutation of the penalty from the President.

(3) …

 

 

 

 

Under the 2013 Constitution the permissible limitations on rights and freedoms in the Bill of rights are contained in section 86, the relevant portions of which are set out below –

 

 

86 Limitation of rights and freedoms (1)The fundamental rights and freedoms set out in this Chapter

 

must be exercised reasonably and with due regard for the rights and freedoms of other persons.

 

 

(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them—

 

(a) the right to life, except to the extent specified in section 48;

 

 

 

 

 

 

 

The previous Constitution thus explicitly provided for the situations where causing of death will be lawful and will not violate the right to life. It laid down that without violating the right to life provision, the State may by law provide for defences to the causing of death in circumstances where the use of force was reasonably justifiable in the circumstances—

for the defence of any person from violence or for the defence of property;

 

in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

 

for the purpose of suppressing a riot, insurrection or mutiny or of dispersing an unlawful gathering; or

in order to prevent the commission by that person of a criminal offence; or the death results from a lawful act of war.

 

 

Section 48 of the 2013 Constitution has no such provisions. The only circumstance it provides in which the right to life does not apply is if the legislature provides for the imposition of the death penalty for the crime of murder committed in aggravating circumstances.

 

 

The limitation clause, section 86 provides that the right to life may not be limited by law except to the extent allowed for in section 48, that is, for murder in aggravating circumstances. It does, however, also provide that the fundamental rights in the Bill of Rights (which includes the right to life) must be exercised reasonably and with due regard for the rights and freedoms of other persons.

 

 

Implications of sections 48 and 86

 

Significant problems arise from the failure by the drafters of the 2013 Constitution explicitly to exempt from the right to life guarantee situations where the causing of death is reasonably justifiable under one of the defences contained in the Criminal Law Code. The best solution to overcome these problems would be to amend section 48 to incorporate these defences as exceptions to the right to life guarantee. Until this is done, the courts will have to try to find ways of dealing with cases in which the person causing death would otherwise have had a defence under the Criminal Law

 

 

 

 

 

Code. As will be seen below, it is difficult to see how the courts can find a satisfactory way of allowing these defences to operate in the absence of explicit incorporation of these defences into section 48.

 

 

Self-defence

 

Everyone should have the right to use force to defend himself or herself against an attacker who is intending to kill him or her or cause him or her serious injury. Section 52 of the Constitution provides that every person has the right to bodily integrity which includes the right to freedom from all forms of violence. As Burchell points out in Principles of Criminal Law 4th Ed p 117 where the State has failed to provide protection against such an attack “it is the individual’s inherent right accepted by all law, both natural as well as civil’ to resort to private defence.”

 

 

Under section 253 of the Criminal Law Code where X causes the death of Y who is murderously attacking him, X can rely on the defence of self-defence providing that the causing of death was reasonably necessary to defend himself or herself against such an attack. But section 48 of the

2013 Constitution provides that everyone has a right to life except a person convicted of murder in aggravating circumstances. Thus the person under attack has the right to life but, taken at face value, even a person who is unlawfully attacking another also has the right to life. This would mean that the person defending against a murderous assault would not be permitted to deprive the attacker of his constitutionally guaranteed right to life. This, of course, would lead to a completely ridiculous result that the person defending himself could be charged with murder or culpable homicide.

 

 

If, as is often the case, there is a dispute as to whether in fact the person who caused death did so in self-defence the prosecution can’t simply decline to prosecute that person. Even where it is evident that the accused person caused death when he or she was under attack, there may still be doubt as to whether the causing of death was reasonably necessary to ward off the attack. If, however, the accused is charged with culpable homicide the court may be able to find that a reasonable person under attack would have acted no differently from the way in which the accused acted and thus the

 

 

 

 

 

 

accused has not negligently caused death.

 

 

 

 

In a case of self-defence the court could seek to rely upon section 86(1) of the 2013 Constitution which provides that the fundamental rights in Chapter 4, which includes the right to life, must be exercised reasonably and with due regard to the rights of other persons. The problem with this is that the murderous attacker is not exercising his right to life; he is in fact threatening the life to the person he is attacking so it is not a matter of the attacker being obliged to exercise his rights reasonably. Another approach might be for the court to interpret the right to life guarantee as impliedly being subject to a common law doctrine of necessity. Thus it could be ruled that where a person is under murderous attack and the only way that he can save his life is to kill the attacker, he was obliged to act out of necessity. The right to life of the person murderously attacking must surely be subordinate to the life of the attacker. Additionally, section 52 provides that every person has the right to bodily integrity which includes the right to freedom from all forms of violence from public or private sources. This right adheres to a person who is under a murderous attack. The courts would surely adopt a common sense interpretation of the right to life so as to provide that a person is entitled to defend his or her life against a person who is trying to kill him or her. In other words, there is a natural right to act for the purposes of self-preservation against an unlawful attacker.

 

 

The defence of self-defence can also apply where a person uses reasonable means to avert a violent attack which will cause serious injury but not death. Here it might be contended that the right to life of the unlawful attacker outweighs the threat of bodily injury to person attacked but, of course, there is often a thin dividing line between injury and death.

 

 

Killing in Defence of Property

 

The Criminal Law Code also provides in sections 257 and 258 that in extreme circumstances a person has a defence where he kills in defence of property. Some would argue that the law should not allow this defence on the basis that the right to life is more important than the protection of property. Be

 

 

 

 

 

that as it may, it is difficult to see how a court could use the doctrine of necessity to allow some sort

 

of defence to the killing of a person as a last resort to defend property.

 

 

 

 

Killing under Compulsion

 

The problems with some of the other defences, such as compulsion, are even more acute. Under sections 243 and 244 of the Criminal Law Code where all the stringent requirements for the defence are satisfied, X has the defence of compulsion where he kills Z because Y has threatened to kill X unless he kills Z. Even though X was forced to kill the third person to save his own life, the fact remains that the person who dies is an innocent individual who has a constitutionally guaranteed right to life.

 

 

Killing to Arrest

 

The provision in section 42 of the Criminal Procedure and Evidence Act previously laid down that a person authorized to arrest a person may lawfully kill a person who is resisting arrest or is fleeing, provided that the person was being arrested on the ground that he was committing or had committed, or was suspected on reasonable grounds of committing or having committed a First Schedule offence. It was arguable that the use of lethal force to effect an arrest is not justifiable but even if lethal force is justifiable in extreme circumstances, that provision was surely too wide.

 

 

A First Schedule offence is any offence in terms of any enactment in respect of which a punishment of a period of imprisonment exceeding six months is provided and may be imposed without the option of a fine. This would cover relatively trivial offences and killing to prevent escape is not justifiable for such offences. Secondly, it covered killing where there is only a reasonable suspicion that such an offence has been committed. If we are going to have an exception to the right to life on this ground the ambit of lawful killing must be drastically narrowed down.

 

 

However, section 14 of Act 2 of 2016 has replaced this section with a new section 42 that substantially restricts the right to use lethal force to effect an arrest or prevent an escape. The force

 

 

 

 

 

 

used must be reasonably justifiable and proportionate in the circumstances to overcome the resistance to the arrest or to prevent the escape. The person attempting the arrest is only justified in using force if the person being arrested has committed, is committing or was suspected to have committed a First Schedule offence and the person attempting the offence believes on reasonable grounds that—

the force is immediately necessary to protect the person trying to arrest from immediate death or grievous bodily harm; or

 

 

if the arrest is delayed there is a substantial risk that the suspect will cause imminent or future death or grievous bodily; or

 

 

 

 

 

the offence for which the arrest is sought is in progress and is of a forcible and

 

serious nature and involves the use of life-threatening violence or a strong likelihood that it will cause grievous bodily harm.

 

 

Commendable though this provision is restricting the use of lethal force, the problem still exists that section 48 of the Constitution does not explicitly provide for this exception to the right to life.

 

 

Other Constitutional Provision

 

Until there is a constitutional amendment to provide explicitly for these defences the courts could

 

possibly have resort to section 327(6) of the 2013 Constitution which provides as follows:

 

(6) When interpreting legislation, every court and tribunal must adopt any reasonable interpretation of the legislation that is consistent with any international convention, treaty or agreement which is binding on Zimbabwe, in preference to an alternative interpretation inconsistent with that convention, treaty or agreement.

 

 

It is, however, questionable whether this provision can be used to read into the section 48 provisions

 

 

 

 

 

that are absent from that section.

 

 

 

 

Offences Attracting the Death Penalty

 

Finally it should be noted that there are various offences that previously attracted the death penalty that are now inconsistent with section 48 which only allows the imposition of the death penalty for murder committed in aggravating circumstances.

  • Criminal Law Code Treason (Section 20)

 

  • Insurgency, banditry, sabotage or terrorism which results in death (Section 23) (but this could be charged as murder)
  • Defence Act [Chapter 11:02] Mutiny in terms Section 8 First Schedule.

 

 

HOUSE DEMOLITIONS IN ZIMBABWE: A CONSTITUTIONAL AND HUMAN RIGHTS PERSPECTIVE

 

 

 

Tinashe Stephen Chinopfukutwa1

 

 

 

 

‘We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.’2

 

 

Abstract

 

Since 2015 local authorities, particularly in Harare and Chitungwiza have embarked on a spree of house demolitions. The local authorities have contended that the demolished houses were built “illegally” either on land that was reserved for other purposes or without the necessary procedures having been adopted. The Constitution of Zimbabwe3   has a number of provisions against arbitrary eviction, and provision of adequate shelter as well as the standards against which administrative decisions and conduct is to be measured. The following paper will therefore investigate if the ongoing demolitions pass the human rights standards imposed by the Constitution of Zimbabwe as well as international human rights law.

 

 

Introduction

 

It is trite that the Constitution is the supreme law of the land4   and any law, practice, custom or conduct

 

 

1 Part IV law student at the University of Zimbabwe with special interest in Constitutional Law, Human Rights law, International

Law and Labour Law

2 Chaskalson P F in Soobramoney v Minister of Health KwaZulu-Natal 1998(1) SA 765 (CC) at 24H.

3 Amendment No.20 of 2013

4 Section 2 of the Constitution of Zimbabwe

 

 

 

 

 

inconsistent with it is invalid to the extent of the inconsistency. Therefore, as a starting premise this paper will interrogate whether or not the ongoing house demolitions comply with the standards and procedures set out in the constitution. Thereafter, it will investigate whether or not the demolitions pass the muster of international human rights law, particularly rules of customary international law and the various international and regional treaties to which Zimbabwe is party.

 

 

The Constitutional Standard

 

There are numerous constitutional provisions that should be complied with in order to bring the ongoing house demolitions within the scope of the Constitution. More specifically, s 74 provides protection against arbitrary eviction in the following terms;

”No person may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances.”

 

 

Arbitrary eviction may be defined as the

 

“… permanent or temporary forceful removal individuals, families and or communities from their homes or land which they are occupying.”5

 

 

Invariably, arbitrary evictions occur when there is no regard paid to due process and there is no mechanism followed to hear those who will be affected.6   Likewise, in the context of demolitions, a demolition would occur when a part or whole of a dwelling is destroyed against the will of the occupants and without following due process.

 

It is therefore clear that for any home demolition to comply with s 74 there should be a court order sanctioning the demolition of the house which court order should be made after the court has considered all “relevant circumstances”. This provision mandates that substantive requirements should

 

 

 

5 The UN Committee on Economic , Social and Cultural Rights, General Comment No.7 On the Right to Housing (1997 ) para 4

6 See also Zimbabwe Lawyers for Human Rights Fact Sheet No.2 of 2015.

 

 

 

 

 

 

be met through a court order sanctioning the demolition7 before a person’s home is demolished as was confirmed in the case of Mavis Marange v Chitungwiza Municipality and Glory to Glory Housing Co-operative,8 a judgment handed down by the Chitungwiza Magistrates Court.

 

 

Therefore, where homes are demolished without a court order the demolitions will be a direct breach of s 74 and any law that authorises the demolition of houses without a court order contravenes s 74. In this respect, it is common cause that where local authorities have carried out demolitions without court orders, and the municipal bye-laws under which the demolitions are taking place and make no provision for the obtaining of a court order as a pre-requisite, are in direct breach of s 74.

 

 

However, s 74 does not define what exactly the term ‘home’ entails and no judicial interpretation of the provision by the Zimbabwean Courts has been made. The South African Constitution in s 26(3) frames and creates a similar right to the one provided in terms of s 74. In interpreting this section in Despatch Municipality v Sunridge Estate and Development Corporation,9 the South African South East High Court Division held that the term ‘home’ relates to a dwelling that an occupant will be living in or intends to live in either in the short or long term. The Court also extended the term to cover shacks or informal settlements to fall within the purview of structures that may be described as homes.10

 

In this vein it is submitted that the so called ‘illegal’ structures demolished or targeted for demolition fall within the purview of ‘homes’ as envisaged by s 74 of the Constitution and are therefore protected from arbitrary demolition. It is further submitted that in terms of s 74 it is immaterial whether or not the dwelling being used for residential purposes is legal or whether its construction was and is sanctioned by the local authorities. It is this writer’s view that, once the criteria set out in Despatch Municipality v Sunridge Estate and Development Corporation is met, then the dwelling or structure qualifies as a home and therefore qualifies for protection in terms of s 74.

 

7 Justice Mavedzenge and Douglas J.Coltrat, A Constitutional Law Guide Towards Understanding Zimbabwe’s Fundamental

Socio-Economic and Cultural Human Rights ,2014 , page 101

8 Case No 106/2014

9 1997(4) SA 596 (SE)

10 See also J. Mavedzenge and D.J Coltrat, op cit note 7 at p 103

 

 

 

 

 

 

 

 

Further, s 74 imposes a duty on the courts to consider “relevant circumstances” before granting an order of eviction or demolition of a home although the constitution does not provide any indication of what an enquiry into relevant circumstances entails. In this respect, the South African Court jurisprudence would be helpful in ascertaining the relevant circumstances given the similarities between our s 74 and s 26 of the South African Constitution which provides for freedom from arbitrary eviction.

 

 

In City of Johannesburg Metropolitan Municipality v Blue Moonlight Properties Pty (Ltd)11 the South African Constitutional Court held that relevant circumstances included legal status of the occupants; the period of occupation; and whether the eviction or demolition will leave the affected people homeless. It is however of crucial importance to note that the relevant circumstances can vary from case to case and the Court will therefore have to make a value judgment.

 

 

On the same trajectory, the Constitution in its national objectives in s 28 provides that

 

“The State and all institutions and agencies of government at every level must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”

 

It is important to note that the right to housing is not provided in the Declaration of Rights but reference to adequate housing is made only in the national objectives in terms of the aforementioned section. Logically, one cannot seek to enforce a right in terms of s 28 which does not offer substantive justiciable rights. However, in this author’s view, the matter does not end there. The national objectives can still be invoked as an aid in the holistic interpretation of s74 in ascertaining the constitutionality of the ongoing demolitions. The Indian Supreme Court in the case of Francis Coralie Mullin v Administrator, Union Territory of Delhi,12 where the court broadly interpreted the right to life by reading into it the right to health, stated as follows;

 

11 2012 (2) SA 104 (CC)

12 (1981) 2 SCR 516

 

 

 

 

 

 

“The right to life includes the right to live with human dignity and all that goes with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and comingling with fellow human beings. The magnitude and components of this right would depend upon the extent of economic development of the country, but it must, in any view of the matter, include the bare necessities of life and also the right to carry on such functions and activities as constitute the bare minimum expression of the human self”.

 

 

Similarly, the Zimbabwean Supreme Court sitting as a Constitutional Court in the case of Rattigan

 

and Ors v Chief Immigration Officer and Ors Gubbay CJ, observed as follows;

 

“This Court has on several occasions in the past pronounced upon the proper approach to constitutional construction embodying fundamental rights and protections. What is to be avoided is the imparting of a narrow, artificial, rigid and pedantic interpretation; to be preferred is one which serves the interest of the Constitution and best carries out its objects and promotes its purpose…” 13

 

 

Similarly, the South African Constitutional Court in Government of the Republic of South Africa and

 

Others v Grootboom and Others observed as follows;

“Our Constitution entrenches both civil and political rights and social and economic rights. All the rights under the Bill of Rights are inter related and mutually supporting. There can be no doubt that human dignity, freedom and equality, the foundational values of our society, are denied to those who have no food, clothing or shelter. Affording socio-economic rights to all people therefore enables them to enjoy the other rights enshrined under Chapter 2. The realisation of these rights is also key to the advancement of race and gender equality and the evolution of a society in which men and women are equally able to achieve their full potential.”14

 

 

 

13 1994 (2) ZLR 54 (S) at 57 F-H , see also the case of Daniel Madzimbamuto v Registrar General & Ors [2014] ZWCC 5 in which Ziyambi JA followed with approval the passage in Rattigan.

14 Government of the Republic of South Africa & Ors v Grootboom and Others CCT/00,Para 23

 

 

 

 

 

It is submitted that from the foregoing authorities the national objectives, in particular s 28, provide the textual background against which the content and scope of the right of freedom from arbitrary evictions and demolitions is to be understood.15 It is submitted that the expressly stated right from arbitrary eviction should be constructed in conjunction with the constitutional values and objectives in order to give fuller effect to other missing rights. In this spectrum, it is submitted that the national objective to housing enshrined in s 28 implies that the right to freedom from arbitrary eviction should be interpreted broadly and thus greatly restrict demolitions of people’s homes in order to give effect to the national objective to adequate housing.

 

Furthermore, s 68 of the Constitution provides for the right of every person to administrative justice through judicial conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial and both substantively and procedurally fair. It is apparent from the above section that a number of duties are imposed upon the administrative authorities who are obligated constitutionally to perform for their conduct to pass the muster of s 68.16 Further s 3 of the Administrative Justice Act imposes the same obligations on administrative bodies.17 Each of these duties shall be considered below in turn

 

15 See Keshavananda Bharati v. State of Kerala (1973) 4 SCC 225 para. 1714, p. 881

16 See also the preamble to the Adminstrative Justice Act

17 An administrative authority which has the responsibility or power to take any administrative action which may affect the

rights, interests or legitimate expectations of any person shall—

(a) act lawfully, reasonably and in a fair manner; and

(b) act within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being

requested to take the action by the person concerned; and

(c) where it has taken the action, supply written reasons therefore within the relevant period specified by law or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned

2) In order for an administrative action to be taken in a fair manner as required by paragraph (a) of subsection (1), an administrative authority shall give a person referred to in subsection (1)— (a) adequate notice of the nature and purpose of the proposed action; and (b) a reasonable opportunity to make adequate representations; and (c) adequate notice of any right of review or appeal where applicable.

(3) An administrative authority may depart from any of the requirements referred to in subsection (1) or (2) if—

(a) the enactment under which the decision is made expressly provides for any of the matters referred to in those subsections so as to vary or exclude any of their requirements; or

(b) the departure is, under the circumstances, reasonable and justifiable, in which case the administrative authority shall take

into account all relevant matters, including

(i)        the objects of the applicable enactment or rule of common law; (ii)   the likely effect of its action;

(iii)       the urgency of the matter or the urgency of acting thereon:

(iv)       the need to promote efficient administration and good governance;

(v)       the need to promote the public interest

 

 

 

 

 

 

and will be measured against the administrative decisions by local authorities to conduct demolitions.

 

 

 

 

Administrative bodies, local authorities included (my emphasis) have a duty to dispense their administrative duties lawfully. This therefore means that their conduct should be authorised by law and should be done within the confines of the law. The current home demolitions are not in conformity with the law as they do not adhere to the procedure and formalities prescribed by s 74. The local authorities’ administrative conduct therefore fails on this basis and it is submitted that the demolitions are not authorised by any law but are rather carried out in direct breach of the Constitution.

 

 

Section 68 of the Constitution and s3 of the Administrative Justice Act also place an obligation on administrative bodies to act promptly.

 

 

This connotes two elements; first that the administrative body should act within the period specified by law or, if there is no such period, within a reasonable timeframe.18 The first element does not create any problems because if an administrative body is obliged to act within a specific period by statute or any other law and subsequently fails to act within such a period then it will be a clear breach of the statute concerned. However, the duty to act within a reasonable time warrants more attention as this is a value judgment that is exercised on a case by case basis. In N & B Ventures (Pvt) Ltd v Minister of Home Affairs & Anor19 the High Court held that;

“Where in the absence of an adverse reason an administrative authority fails to act, the courts have a duty to interfere in order to safeguard the financial and social interests of the applicant and the public respectively. Where an administrative authority is seized with a duty to perform a

certain act, which act is a condition for another party to act, it cannot be allowed to penalise the

 

 

18 See Section 3(1)(b) of the Administrative Justice Act. See also G. Feltoe, A Guide to Adminstrative Law in Zimbabwe, 2012, page 24

19 The facts of the case were as follows “the applicant ran a hotel for which it held the appropriate liquor licence. It applied timeously for the renewal of the licence but the Liquor Licensing Board did not issue a new licence promptly, in spite of reminders. The licence was finally renewed some 18 months after the application for renewal was made. In the meantime, the applicant paid two admission of guilt fines and the police thereafter obtained a court order to seize the applicant’s stock of liquor. The licence was renewed a few days later.” Cited by G Feltoe ibid

 

 

 

 

 

other party on the basis of non-performance when it has not itself performed its own part. It must

 

first perform its part before it penalises the other party for non-performance.”20

 

 

 

 

In this vein, it is common cause that a significant part of the people affected by on-going demolitions have been living in the so-called ‘illegal’ structures for some considerable time and have even been paying their rates and municipal charges to the authorities. The local authorities are the administrative bodies charged with town planning and design of urban settlements by the Regional Town and Country Planning Act. Local authorities have the power to stop and prohibit the erection of any unplanned structure or the development of such unplanned settlements.

 

 

It is submitted that in the present circumstances, the local authorities have failed to act promptly and within a reasonable time to demolish and stop the erection of unplanned dwellings. It is submitted that waiting for a number of years before determining whether a settlement is planned or not constitutes a breach of the duty of administrative bodies to act promptly and within the reasonable time frame. The homes which have been demolished and are being demolished were built in full view of the local authorities but they did not take any active steps to stop the development of the settlements, and only acted after a considerable amount of time has lapsed. The local authorities had failed to perform their part timeously and thus cannot penalise the residents of the unplanned settlements for their own non-performance. The administrative conduct by the city fathers does not meet the requirement that administrative conduct be prompt as prescribed by s68 of the constitution.

 

Section 68 of the Constitution also provides that every person has a right to administrative conduct that is procedurally and substantively fair. Procedural fairness connotes that the people who will be affected by the administrative conduct should be given an opportunity to make representations before the administrative authority. This is known as the audi partem rule which means to hear the other side.21   The position was aptly captured by Chatukuta J in Mtizira v Epworth Local Board and

 

 

20 2005 (1) ZLR 27 (H) cited by G. Feltoe , ibid at page 25

21 See Section 2 of the Administrative Justice Act , see also G.Feltoe, ibid page 54

 

 

 

 

 

 

Ors22 where the learned judge made the following observation;

 

“The rules of natural justice as embodied in the audi alteram partem rule require that a person be given reasonable notice to make representations where another takes action which adversely affects his/her interests or rights. The rule as espoused in the Administrative Justice Act [Chapter 10:28] (the Act) require that an administrative authority such as the first respondent, with the responsibility to take an administrative action which may adversely affect the rights or interest of any person, to give that person an opportunity to make adequate representations.”23

 

 

Principles of natural justice such as the audi alterum partem principle are meant to ensure that fundamental tenets of fairness are observed in administrative decisions. Professor G. Feltoe summarises the position very well when he observes that;

“The principles of natural justice embody fundamental notions of procedural fairness and justice. As applied to administrative decisions, these principles seek to ensure that such decisions are only taken after fair and equitable procedures have been followed. In essence, natural justice tries to guarantee that the parties who will be affected by the decisions receive a fair and unbiased hearing. By required adherence to standards of procedural fairness, not only is justice seen to be done, but also these principles assist administrative decision-makers to reach substantively correct decisions.”24

 

 

In this respect, it is of paramount importance to note s 68 of the Constitution has shifted the situations in respect of which principles of natural justice apply. It is useful to briefly restate the old position relating to the application of the principles of natural justice which were to be applicable in situations whereby the affected party had a legitimate expectation to be heard. The concept of legitimate expectation was defined by the South African Appellate division in Administrator, Transvaal & Ors v Traub25 in the following terms;

“The legitimate expectation principle, instead of insisting that an individual be affected in his liberty,

 

22 HH 37/2011

23 See U-Tow Trailers (Private) Limited v City of Harare & Anor HH 103/09

24 G Feltoe Ibid.

25 1989 (4) SA 731 (A)

 

 

 

 

 

property or existing rights before he may be heard in his own interest, lays down that an individual who can reasonably expect to acquire or retain some substantive benefit, advantage or privilege must be permitted a hearing before a decision affecting him is taken. The proper question to ask in any given case is therefore whether the person complaining is entitled to expect, in accordance with ordinary standards of fairness, that the rules of natural justice will be applied.”

 

 

Thus, under such circumstances, it will be unfair to proceed and make the administrative decision

 

without hearing the affected party first.26

 

 

 

 

There are two related but distinct points which arise. First, it is clear that hundreds of residents whose houses have been demolished had substantive rights or benefits which stood to be affected by the local authorities’ decision to demolish the houses. Consequently, it is submitted that they had a legitimate expectation to be heard before any decision affecting their rights was to be taken. The city fathers were bound by rules of natural justice to invite the residents whose houses were to be demolished to make representations before the local authorities before proceeding to raze down their houses. It is common cause that no such opportunity was ever accorded to the residents thereby violating the principles of natural justice. In most cases, the residents were merely given twenty-four hour notice to vacate. Accordingly, the house demolitions fail to satisfy the administrative conduct standards set by s 68 of the Constitution and are therefore potential violations of the affected people’s right to administrative justice.

 

Further and in any event in light of the new constitutional dispensation it is submitted that the legitimate expectation principle is no longer a requirement for the applicability of the principles of natural justice. Section 68 states that every person has a right to administrative conduct that is procedurally and substantively fair whether or not they have a legitimate expectation (my emphasis). In this regard, it is put forward that the applications of the principles of natural justice have been entrenched by s 68 of the Constitution. It follows then that any administrative conduct has to fall

26 See also Taylor v Minister of Higher Education & Anor 1996 (2) ZLR 772 (S)

 

 

 

 

 

 

within the scope of s 68 and thus has to observe the principles of natural justice whether or not the administrative authority deems that there is no legitimate expectation. In other words, the application of the principles of natural justice no longer flows from the existence of a legitimate expectation to be heard but arises as a matter of law from the constitution itself. Viewed along these lines, it is all the more apparent that the failure by the local authorities to hear the representations of residents who were to be affected by the demolitions is in clear breach of the principles of natural justice and consequently their right to administrative justice as enshrined in terms of the Constitution.

 

 

In light of the foregoing, it is submitted that the ongoing house demolition exercise in its present format falls foul of s 68 of the Constitution and s 74 of the Constitution. It is in breach of the affected resident’s fundamental rights and freedoms as set out in the abovementioned constitutional provisions.

 

 

The Demolitions vis a vis International Human Rights Law

 

“Public international law would include non-binding as well as binding law. They may both be used under the section as tools of interpretation. International agreements and customary international law accordingly provide a framework within which [the Bill of Rights] can be evaluated and understood” Chaskalson27

 

 

Section 46 provides an interpretive guide on the fundamental rights and freedoms enshrined and entrenched in terms of the Constitution. In particular, S46 (1)(c) provides that when interpreting the Bill of Rights a Court , tribunal, forum or body must take into account international law and all treaties and conventions to which Zimbabwe is a party. This only serves to fortify the position that any investigation into a potential or alleged breach of the Bill of Rights will be incomplete without the guidance of international law norms.

 

 

In this section, the on-going house demolitions vis-a vis the international human rights law standards

 

are examined. The scope of investigation shall, however, be confined to treaties and conventions to

27 In S v Makwanyane 1995 (3) SA 391 (CC) para 35

 

 

 

 

 

which Zimbabwe is a party. This paper therefore examines the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights (ACHPR), and how the provisions have been interpreted by international judicial bodies.

 

 

Article 11 of the ICESR obligates State Parties to progressively realise people’s right to an adequate standard of living for themselves and their families, including adequate housing and the continuous improvement of living conditions. It is therefore discerned that adequate housing is a constituent element of the right to an adequate standard of living and that, conversely, where there is no adequate housing adequate standards of living are unattainable.28

 

 

ECOSOC, the treaty body charged with the implementation of the ICESCR, in its General Comment Number 4 stated that adequate housing envisaged in terms of Article 11(1) of the Covenant had elements including legal security of tenure; availability of services; materials and infrastructure; affordability; habitability; accessibility; location; and cultural adequacy. In the present discussion, reference will be made to the first element listed above, that is, legal security of tenure. In the words of the Committee, security of tenure;

“… takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees against forced eviction.”29

 

In this regard, it is submitted that arbitrary evictions are at face value a violation and breach of State Party`s obligations in terms of the Covenant. In General Comment Number 7, the Committee noted that;

 

28 Article 11 ICESR “The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on

29 See ECOSOC General Comment No.4 para 8

 

 

 

 

 

 

“The State itself must refrain from forced evictions and ensure that the law is enforced against its agents or third parties who carry out forced evictions.”30

 

 

It is clear that no issue of progressive realisation arises despite the right to adequate living standards being a socio-economic right. This is due to the wording of General Comment 7 which suggests that the State should refrain from carrying out forced or arbitrary evictions. In this regard the state has a negative duty to ensure that there are no forced or arbitrary evictions.31

 

 

This position is also supported by Article 17 (1) of the International Covenant on Civil and Political Rights (ICCPR) and complements the right not to be forcefully or arbitrarily evicted. Article 17 (1) of ICCPR provides as follows;

“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation .2. Everyone has the right to the protection of the law against such interference or attacks.”

 

 

In M v Germany, the Human Rights Committee held that the right enshrined in terms of Article 17 of the Covenant, that an interference is only legally justifiable where it cumulatively meets three conditions, that is,

“it must be provided for by law, be in accordance with the provisions, aims and objectives of the

 

Covenant, and be reasonable in the particular circumstances of the case.”32

 

 

 

In our particular context, it is clear that the demolitions are not being done in terms of any law but are actually being done in clear contravention of ss 68 and 74 of the Constitution. Invariably therefore, the demolitions are not being done within the objects, letter, purpose and spirit of the ICCPR. In this respect therefore, it is submitted that the house demolitions amount to breaches of rights guaranteed

 

30 See ECOSOC General Comment No 7 para 9

31 Note that the State’s obligation to ensure respect for that right is not qualified by considerations relating to its available

resources. ECOSOC General Comment 7, para 9

32 M v Germany, Human Rights Committee, Communication No.1482/2006. See also Communication No. 903/1999, Van Hulst v. The Netherlands, Views adopted on 1 November 2004, at para 7.3, para 9

 

 

 

 

 

in terms of the ICESCR and the ICCPR.

 

 

 

 

Furthermore, from a continental perspective, it is conceded that a reading of the ACHPR reveals that it does not have a specific and expressly provided right to housing. Despite this, it is submitted that a right to housing may be read into the ACHPR if the rights protecting the right to the best state of attainable health, right to property, right to protection of the family provided under Article 16, 14 and 18 of the Charter are construed conjunctively and read in pari materia.

 

 

This was in fact the approach adopted by the ACHPR in the case of SERAC v Nigeria33   in which the Commission adopted an innovative interpretation of the Charter provisions and read into it the right to housing despite the fact that it is not expressly provided therein, as stated above. The Commission observed as follows:

“Although the right to housing or shelter is not explicitly provided for under the African Charter, the corollary of the combination of the provisions protecting the right to enjoy the best attainable state of mental and physical health, cited under article 16 above, the right to property, and the protection accorded to the family forbids the wanton destruction of shelter because when housing is destroyed, property, health and family life are adversely affected. It is thus noted that the combined effect of articles 14, 16 and 18(1) reads into the Charter a right to shelter or housing which the Nigerian government has apparently violated.

 

 

The Commission went further and observed thus;

“At a very minimum, the right to shelter obliges the Nigerian government not to destroy the housing of its citizens and not to obstruct efforts by individuals or communities to rebuild lost homes. The state’s obligation to respect housing rights requires it, and thereby all of its organs and agents, to abstain from carrying out, sponsoring or tolerating any practice, policy or legal measure violating the integrity of the individual or infringing upon his or her freedom to use those material or other resources available to him or her in a way he or she finds most appropriate to satisfy individual,

 

33 (2001) AHRLR 60 (ACHPR 200)

 

 

 

 

 

 

family, household or community housing needs. Its obligations by any other individual or non-state actors like landlords, property developers, and landowners, and where such infringements occur, it should act to preclude further deprivations as well as guaranteeing access to protect obliges it to prevent the violation of any individual’s right to housing legal remedies. The right to shelter even goes further than a roof over one’s head. It extends to embody the individual’s right to be left alone and to live in peace whether under a roof or not …..”

 

 

It is clear that in the context of the demolitions, the State has a duty, at a minimum, not to destroy the houses of its citizens whether legal or “illegal” (my emphasis).This duty therefore imposes a duty on the State and its institutions including local authorities not to destroy and demolish people’s homes without following due process. This principle is in fact in tandem with s 44 which obliges the State, every person, state agencies and institutions to respect, protect, promote and fulfill the rights and freedoms set out in the Bill of Rights.34

 

 

Through engaging in unlawful demolitions, local authorities have breached the duty imposed on them by the Constitution to respect fundamental freedoms and rights. Accordingly also, by tolerating and even sanctioning the unlawful conduct of the local authorities, the State has breached its obligations in terms of the ACHPR.

 

 

Conclusion

 

In summation, it is apposite to borrow the words of Justice Mathonsi in the case of Peter Makani v

 

Epworth Local Board in which the learned judge observed that;

“There can be no doubt whatsoever in the minds of all well-informed persons that this country currently faces extremely serious problems relating to poverty, unemployment and more importantly housing… local authorities are now waking up and, by force and power, demolishing the structures

 

34 Section 44 of the Constitution reads as follows “The State and every person, including juristic persons, and every institution and agency of government at every level must respect, protect, promote and fulfill the rights and freedoms set out in this Chapter.” See also national objective of fostering fundamental rights and freedoms in Section 11 of the Constitution. It reads as follows “The State must take all practical measures to protect the fundamental rights and freedoms enshrined in Chapter

4 and to promote their full realization.”

 

 

 

 

 

without regard to law and human dignity.”35

 

 

 

These words summarise the obtaining situation in respect of the spate of demolitions that have occurred in the country. The mere fact that the homes were not constructed in accordance with the Municipal By-laws does not erode the rights and the procedures prescribed by the Constitution.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

35 supra, page 1 of the cyclostyled judgment

 

 

THE NKANDLA JUDGMENT: LESSONS FOR ZIMBABWE

 

 

 

Sekai Saungweme

 

 

 

 

One of the most progressive judgments made in 2016 by the Constitutional Court of South Africa was the ‘Nkandla judgment’ wherein the court dealt definitively with matters important to the evolution and application of constitutional democracy, such as:

  • The separation of powers among the executive, legislature and judiciary.

 

  • The role and tasks of the executive, especially the President of the Republic.

 

  • The role and tasks of the National Assembly.

 

  • The role and tasks of the Judiciary.

 

  • The role and tasks of the public protector.

 

 

 

 

The constitutional court had to decide whether the President of the Republic of South Africa had a constitutional duty to comply with recommendations made by the public protector and whether

─ in failing to do so ─ the President had failed to uphold, defend and respect the constitution. It found in favour of the applicants that the President, indeed, had a duty to uphold, defend and respect the constitution; and that, further, there was a clear duty on the National Assembly to hold under scrutiny the conduct of the executive on behalf of the public.

 

 

This decision not only gave life to the reconciliatory and purposive interpretation of South Africa’s constitution but it also indicates a trend of how the judiciary ─ through constitutional activism when properly applied in a democratic context ─ acts as a legitimate and successful defender of the core fundamental values that constitute a democracy.

 

 

The decision also demonstrates what it means for South Africa to be living as a ‘constitutional democracy’, as opposed to a parliamentary democracy. It reinforced the fact that whilst parliament

 

 

 

 

 

has the duty and obligation to make and debate laws, these laws still have to pass constitutional muster because the constitution is the supreme law.

This paper articulates the relevance of the Nkandla judgment for Zimbabwe and the lessons which, if applied locally, would ensure that Zimbabwe begins to live up to the expectations required of a genuine constitutional democracy.

 

 

Introduction

 

On 31 March 2016, the Constitutional Court of South Africa made legal history when it found that the President of the Republic of South Africa had failed to uphold, defend and respect the Constitution1 by failing to comply with the recommendation for remedial action made by the public protector.2 This case has become known as the ‘Nkandla judgment’ and the ruling was unanimously celebrated by the legal fraternity, civil society and politicians alike in South Africa as being an affirmation of the supremacy of the constitution, the effectiveness of the principles of transparency and accountability, and the enforcement of the rule of law.

 

 

The primary issue brought before the constitutional court was whether the President of the Republic of South Africa had a constitutional duty to comply with recommendations made by the public protector and whether, in failing to do so, the President had failed to uphold, defend and respect the constitution.3

 

The Constitutional Court further had to decide whether the National Assembly, in exonerating the President from complying with the recommendations provided by the public protector, had failed in its constitutional obligations to scrutinise and oversee executive action and to hold the President accountable as a member of the executive.

 

 

1 The Constitution of the Republic of South Africa as adopted on 8 May 1996 and amended on 11 October 1996 by the

Constitutional Assembly.

2 See also s 182 of the Constitution of South Africa which establishes the office of the public protector No. 23 of 1994:

Public Protector Act, 1994.

3 Ibid

 

 

 

 

 

 

The general constitutional principles which influenced the court’s decision had to do with transparency, accountability and the ethical conduct of the executive branch of government. The courts’ opening judgment noted that

“… One of the crucial elements of our constitutional vision is to make a decisive break from the unchecked abuse of State power and resources that was virtually institutionalised during the apartheid era. To achieve this goal, we adopted accountability, the rule of law and the supremacy of the constitution as values of our constitutional democracy. For this reason, public office-bearers ignore their constitutional obligations at their peril. This is so because constitutionalism, accountability and the rule of law constitute the sharp and mighty sword that stands ready to chop the ugly head of impunity off its stiffened neck”.4

 

 

Another key issue expounded in the Nkandla judgment was the role of independent institutions and, in this case, the office of the Public Protector.5 The Nkandla judgment effectively reinforced the constitutional powers of the public protector to investigate any conduct in State affairs and public administration in any sphere of government and to provide remedial action had been undermined by the subsequent actions of both the National Assembly and the President of South Africa after receiving the recommendations of the public protector.

 

The effect of the Nkandla judgment has great constitutional and institutional significance locally as it provides an opportunity to interrogate constitutional democracy especially in respect of accountability and transparency mechanisms provided by the Constitution of Zimbabwe as well as national legislation and institutional frameworks. It provides an opportunity to question the extent to which institutions, meant to be independent, risk or have been compromised due to the political landscape in Zimbabwe. It further provides an opportunity to assess the extent to which the unchecked abuse of State power and resources has been institutionalised in Zimbabwe thus undermining an already fragile constitutional democracy.

 

4 Paragraph 1 of the judgment

5

 

 

 

 

 

 

 

 

This paper juxtaposes the practice of constitutionalism and constitutional democracy prevailing in Zimbabwe against the fundamental active principles of democracy that were brought to light by virtue of the Nkandla ruling. Opportunity to strengthen transparency and accountability systems in light of specific constitutional provisions coupled with brief comparisons concerning the manner in which constitutional principles are executed in other countries are discussed in this paper followed by a conclusion which comprises a summary of the key points made in the Nkandla judgment relevant to Zimbabwe.

 

 

Background and Critique of The Nkandla Judgment

 

As a result of several complaints lodged with the public protector concerning certain “security upgrades” made at President Zuma’s private residence in Nkandla, the public protector in accordance with her constitutional powers6 investigated allegations related to improper conduct or irregular expenditure. The basis of the complaints and subsequent investigation was that the improvements were non-security features and that the State was only under an obligation to provide security features for the President at his private residence. Therefore, it was argued any improvements unrelated to security features amounted to undue benefit or unlawful enrichment.

 

 

The public protector concluded that the President failed to comply with specific constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources and directed that the President, duly assisted by certain State functionaries, should work out and pay a portion fairly proportionate to the undue benefit that had accrued to him.

 

 

The public protector produced a report arguing that the President had acted in breach of his constitutional obligations in terms of section 96 (2) (b) and (c) of the Constitution which refers to the conduct of Cabinet members and Deputy Ministers and states as follows:

“(2) Members of the Cabinet and Deputy Ministers may not;

 

 

6 Section 182 South Africa Constitution

 

 

 

 

 

 

(b) act in any way that is inconsistent with their office, or expose themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or

(c) use their position or any information entrusted to them, to enrich themselves or improperly

 

benefit any other person.”

 

 

 

 

The report was submitted not only to the President, but also to the National Assembly with the intention that the National Assembly would facilitate compliance with the remedial action in line with its constitutional obligations to hold the President accountable.

 

 

The National Assembly responded to the report of the public protector by setting up two ad hoc committees to examine the report as well to examine a further report compiled by the Minister of Police which essentially exonerated the President from any wrong doing. The National Assembly proceeded to endorse the report by the Minister exonerating the President from any liability which led to its resolve to absolve the President of all liability. Consequently, the President did not comply with the remedial action taken by the public protector.

 

 

Dissatisfied with the resolution of the National Assembly, members of Parliament −specifically the Economic Freedom Fighters (EFF) and the Democratic Alliance (DA) −launched an application with the constitutional court to seek direct access to it concerning whether the failure to comply with the remedial action set out in the public protector’s report constituted a breach of the constitutional duties by the National Assembly and the President.

 

 

The public protector also took part in the applications in order to defend her powers and argue on their ambit. The public protector and both applicants sought clarity from the court on the nature and extent of the power to take remedial action that the public protector was granted under s 182 (1) (c) which prescribes the functions and powers of the public protector.

 

 

 

 

 

The applicants submitted that the public protector’s remedial actions were binding and enforceable unless set aside by a court of law and could not be diluted, ignored or circumvented by other organs of State which are constitutionally obliged to ensure the protection of the public protector’s dignity and effectiveness.

 

 

In reaching its findings, the constitutional court had to address preliminary issues relating to the powers of the public protector; the powers and functions of Parliament in holding the executive accountable for its conduct; and the powers of the courts regarding its jurisdiction to preside over such proceedings.

 

 

The Court’s Jurisdiction

 

Using a contextual and purposive interpretation of s 167, the constitutional court affirmed its powers and exclusive jurisdiction to decide that Parliament or the President had failed to fulfil a constitutional obligation7 and further that only the constitutional court could decide whether or not the conduct of the President was constitutional.8 However, the determination of whether or not the President had failed to fulfil a constitutional obligation was dependant on whether there existed an obligation specifically imposed on the President to observe or refrain from a certain conduct.

 

 

The Duty of the President

That there did exist a specific obligation on the President of the Republic of South Africa imposed by the constitution of South Africa was recognised by the constitutional court in its reliance on s 83 (b) which refers to the duty of the President to uphold, defend and respect the constitution. The court then linked the constitutional obligation imposed by s 83 (b) to s 182 (c) which empowers the public protector to take appropriate remedial action in respect of any conduct by government officials or public administrators which is improper or results in any impropriety or prejudice. Even more specific is the fact that the President as an organ of the State is required to promote and protect State institutions

 

 

 

7 Section 167 (4) Constitution of South Africa

8 Section 167 (5)

 

 

 

 

 

 

including that of the public protector to ensure amongst other things its dignity and effectiveness.9

 

 

 

 

Having established that there was such a duty the next question determined by the court was whether

 

there had been any violation by the President of his constitutional obligations.

 

 

 

 

Regarding the office of the President and his executive role the court stated that;

 

“The President is the Head of State and Head of the national executive. His is indeed the highest calling to the highest office in the land. He is the first citizen of this country and occupies a position indispensable for the effective governance of our democratic country. Only upon him has the constitutional obligation to uphold, defend and respect the Constitution as the supreme law of the Republic been expressly imposed. The promotion of national unity and reconciliation falls squarely on his shoulders. As does the maintenance of orderliness, peace, stability and devotion to the well-being of the Republic and all of its people. Whoever and whatever poses a threat to our sovereignty, peace and prosperity he must fight. To him is the executive authority of the entire Republic primarily entrusted. He initiates and gives the final stamp of approval to all national legislation. He is a constitutional being by design, a national pathfinder, the quintessential commander-in-chief of State affairs and the personification of this nation’s constitutional project”.10

 

 

The court added that;

“The President thus failed to uphold, defend and respect the constitution as the supreme law of the land. This failure is manifest from the substantial disregard for the remedial action taken against him by the public protector in terms of her constitutional powers. The second respect in which he failed relates to his shared section 181(3) obligations. He was duty-bound to, but did not, assist and protect the public protector so as to ensure her independence, impartiality, dignity and effectiveness by complying with her remedial action.”11

 

 

9 Section 181 (3)

10 Paragraph 20 of the judgment

11 Paragraph 83

 

 

 

 

 

 

 

 

The court acknowledged that the President might have been following wrong legal advice and therefore acting in good faith, however it still concluded that;

“It does not detract from the illegality of his conduct regard being had to its inconsistency with his constitutional obligations in terms of sections 182(1)(c) and 181(3) read with 83(b).”12

 

 

The court in this instance demonstrated that a breach of a constitutional duty remains a breach whether or not it occurs as a result of a genuine error.

 

 

The National Assembly

 

The constitutional court of South Africa found further that the National Assembly had failed in its constitutional obligation to scrutinise and oversee executive action and to hold the President accountable as a member of the executive.13

 

 

Regarding the role and tasks of the National Assembly, the court emphasised the importance of the oversight role that the National Assembly has over the executive and other State organs and further that this watch dog role meant that the National Assembly was instrumental in ensuring accountability and transparency in respect of the governance of the country.14

 

 

The Public Protector

The constitutional court’s assessment was that the public protector was clearly acting within the powers of her constitutional mandate and further that such powers were legitimately derived from the constitution. She had conducted proper investigations of the allegations brought before her, produced a report and provided remedial actions which the President and the National Assembly saw fit to disregard and that was the constitutional crisis which objectors brought before the court.

 

12 ibid

13 Economic Freedom Fighters v Speaker of the National Assembly and Ors; Democratic Alliance v Speaker of the National

Assembly and Ors (2016) ZACC 11.

14 Paragraph 22

 

 

 

 

 

 

 

 

In her findings, the public protector relied on the provisions of s 96 which is the main constitutional provision that seeks to curb corrupt conduct of members of the executive branch of government by explicitly prohibiting them from behaving in a certain manner or engaging in conduct which is likely to bring its office into disrepute. The provision further seeks to curb abuse of power in recognition of the positions of influence and power that members of the executive obviously hold by virtue of their offices.

 

 

Executive powers and their sphere of influence if left unabated poses a threat to constitutional democracy, hence the need to ensure transparency and accountability through independent institutions and systems that can provide the necessary checks and balances.

 

 

For this reason, the constitutional court observed that;

 

“The rule of law requires that no power be exercised unless it is sanctioned by law and no decision or step sanctioned by law may be ignored based purely on a contrary view we hold. It is not open to any of us to pick and choose which of the otherwise effectual consequences of the exercise of constitutional or statutory power will be disregarded and which given heed to. Our foundational value of the rule of law demands of us, as a law-abiding people, to obey decisions made by those clothed with the legal authority to make them or else approach courts of law to set them aside, so we may validly escape their binding force”.15

 

 

The court in its ruling acknowledged that the work of the public protector was sanctioned by law and that the executive did not have discretion as to whether or not to comply with the decisions made by those “clothed with the legal authority to make them…”16

 

 

The Declaratory Order

 

15 Paragraph 75 of the judgment

16 ibid

 

 

 

 

 

The relief granted by the constitutional court was wide ranging; it was declaratory, mandatory and supervisory in nature.

 

 

Regarding the President the court found that

 

“… consistent with this constitutional injunction, an order will thus be made that the President’s failure to comply with the remedial action taken against him by the public protector is inconsistent with his obligations to uphold, defend and respect the Constitution as the supreme law of the Republic; to comply with the remedial action taken by the public protector; and the duty to assist and protect the office of the public protector to ensure its independence, impartiality, dignity and effectiveness”.17

 

 

Regarding the National Assembly the court found that

 

“… the failure by the National Assembly to hold the President accountable by ensuring that he complies with the remedial action taken against him, is inconsistent with its obligations to scrutinise and oversee executive action and to maintain oversight of the exercise of executive powers by the President. And in particular, to give urgent attention to or intervene by facilitating his compliance with the remedial action”.18

 

 

The order made by the court was definitive and effective because it had the following legal consequences;

 

  • It affirmed that the public protector’s remedial powers were legally binding.

 

  • It affirmed the constitutional courts mandate to declare conduct inconsistent with the constitution

 

unlawful.

 

  • The supervisory powers of the constitutional court were invoked to ensure that the President pay back what he owed.
  • A structural interdict was imposed requiring that i) the national treasury report back to the court

 

within 60 days with the amount to be repaid and ii) within 45 days thereafter the President must

 

17 Paragraph 103

18 Paragraph 104

 

 

 

 

 

 

repay.

 

 

 

 

The court noted that declaring law or conduct inconsistent with the constitution and invalid was plainly an obligatory power vested in the court as borne out by the word “must”. Unlike the discretionary power to make a declaratory order in terms of s 38 of the constitution, the court had no choice in this particular matter but to make a declaratory order where s 172(1) (a) applied.

 

 

Transparency and Accountability

 

The standard set by the Constitution of Zimbabwe

 

Although it remains far from being a perfect system, the practice of constitutional democracy in South Africa has enjoyed far greater success than Zimbabwe in holding members of the executive to account for alleged violations of the constitution which they are duty bound to uphold. This, in spite the fact that the constitutional and institutional frameworks prevailing in both countries are similar to the extent that both advocate for the democratic principles of transparency, accountability and the existence of independent institutions that ought to facilitate the advancement of such democratic principles.

 

 

However, the question posed in this section is whether these frameworks in the case of Zimbabwe are adequately designed to ensure that members of the executive are subject to the principles of transparency and accountability enshrined in the constitution.

 

 

Accountability of the President and Cabinet Members

 

Similar to the South Africa context, the Constitution of Zimbabwe places a specific obligation on the President of Zimbabwe to “uphold, defend, obey and respect this Constitution…..” and so serious an obligation is it that the President may be removed from office for failure to uphold the same.19

 

 

Section 97 as an accountability mechanism

 

19 See s 90(1) as well as s 97(d) Inability to perform the functions of the office because of physical or mental incapacity is

the fourth ground of removal.

 

 

 

 

 

Section 97 of the constitution of Zimbabwe prescribes the legal standard and procedural requirements for removal of the President and in so doing it provides means by which the President may be held accountable; three of which are:

  1. a) Serious misconduct

 

  1. b) Failure to obey, uphold or defend this constitution c) Wilful violation of this constitution

 

 

The fact that there exist grounds of removal for the President in the constitution reinforces the principle highlighted in the Nkandla judgment that the President is a subject and creature of the constitution; indeed it is the constitution which dictates how the President may come into office, how the President may or must leave office, and the conduct of the President during the tenure in office as President.

 

 

The constitutional court in the case of the President of the Republic of South Africa v Hugo described the President as follows;

“Ultimately, the President as the supreme upholder and protector of the constitution is its servant. Like all other organs of State, the President is obliged to obey each and every one of its commands”.20

 

 

However, the grounds for removal regarding the reference to “serious misconduct” of the President (s 97) is, at best, open-ended and provides little clarity as to what those particular grounds actually constitute.

 

Does it refer to specific criminal acts, neglect of official duties, or generally conduct which undermines the integrity of the office of the President? At the same time it may also be argued that defining the grounds of removal is not necessary because allegations of constitutional violations will generally be based on the circumstances and that it is the courts which will then make its finding after assessing the circumstances of the particular violation alleged to have been committed. Is s 97 in itself sufficiently embodied to hold the president of Zimbabwe accountable in the same manner that the South African

 

20 [1997] ZACC 4; 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC) at para 65

 

 

 

 

 

 

constitution holds the president of South Africa accountable?

 

 

 

 

Section 106 as a means of ensuring accountability

 

Similar to the constitution of South Africa, the constitution of Zimbabwe contains provisions found under section 106 that can be described as negative obligations on senior public officials such as Ministers requiring that they refrain from certain types of conduct. The section prohibits vice presidents, ministers and deputy ministers from;

  1. Directly or indirectly holding any other public office or undertaking any other paid work.

 

  1. b. Acting in any way that is inconsistent with their office or exposing themselves to any situation involving the risk of conflict between their official responsibilities and private interests; or
  2. Using their position or any information entrusted to them, to enrich themselves or improperly

 

benefit any other person.

 

 

 

 

Section 106 also contains elements of the criminal offence of corruption which may be defined as acts

 

involving the misuse of entrusted power for personal or sectional gain.21

 

 

 

 

The absence of the office of the President from s 106 is alarmingly conspicuous, especially when one considers the very critical public interest a properly functioning constitutional democracy would have in ensuring that constitutional mechanisms to curb corruption and abuse of powers by the executive should apply just as much to the Head of State as they would to other members of the executive. Corrupt practices in government undermine democracy, because they distort normal decision-making processes and subvert the policy objectives of legitimate democratic government and the President of any nation should be playing a leading role at both a policy and individual level in fighting conduct by public officials which is contrary to public interest and constitutional values.

 

 

Another point of observation relevant to s 106 and as also highlighted in the Nkandla judgment is

 

 

21 See UNCAC definition of corruption. And also Towards a national integrity strategy for Namibia : A national discussion

paper, Technical Committee on the Promotion of Ethics and the Combating of Corruption, Windhoek, 1998, p 7

 

 

 

 

 

that when alleging a breach of a constitutional obligation it must surely relate to an obligation which

 

is specifically imposed on the President or Parliament. In contrast to the silent approach of s 106, s

 

96 of the Constitution of South Africa places a specific constitutional obligation on the President to refrain from certain conduct. The provision is clearly designed to curb corrupt practices, abuse of power and unethical conduct not only by the executive but by the President as well. Section 96 accordingly prohibits members of the cabinet22 (which includes the President) and deputy ministers from;

  1. b. acting in any way that is inconsistent with their office, or exposing themselves to any situation involving the risk of a conflict between their official responsibilities and private interests; or
  2. b. using their position or any information entrusted to them, to enrich themselves or improperly

 

benefit any other person.

 

 

 

 

The relevance of s 96 5 to the Nkandla judgment is that it formed the basis of the public protectors finding that the South African President had failed to comply with specific “constitutional and ethical obligations by knowingly deriving undue benefit from the irregular deployment of State resources”. The public protector was propelled to investigate alleged corrupt practices on the basis that the constitution of South Africa prohibited the President from unjust enrichment and improperly benefiting from State resources and this was enabled by specific constitutional provisions which prohibit the President from engaging in certain kinds of conduct.

 

The effect of the omission of the President from s 106 of the constitution of Zimbabwe is that there is no clear and specific obligation on the President to avoid conflict of interest situations but this invariably creates an obvious and specific problem when addressing transparency and accountability measures for the highest public office. The standard set by the constitution of Zimbabwe to ensure that President can be refrains from conflict of interest activities (whether real or perceived) is at a lower bar than that set by the constitution of South Africa.

 

 

 

22 Section 91 of the Constitution of South Africa states that The Cabinet consists of the President, as head of the Cabinet, a Deputy President and Ministers.

 

 

 

 

 

 

Transparency and accountability as a regional necessity

 

The Nkandla judgment is relevant not just for Zimbabwe23 but has a far-reaching effect on other African countries including Zambia and Kenya whose constitutions and democratic practices espouse the democratic principles of ensuring accountability at the highest level of government.

 

 

These two examples demonstrate that measures to provide for transparent and accountable conduct which seeks to deter elements of corrupt practices and abuse of office by members of the executive (including the President) is not an unusual constitutional provision; in fact it is a necessary constitutional safeguard found in most progressive democracies.

 

 

The constitution of Kenya,24 for example, prescribes the conduct of a State officer, and specifically prohibits any conflict between personal interests and public or official duties including a prohibition on receiving certain gifts.25 The constitution goes on to define State office to include the office of the President which means that the President of Kenya has a specific obligation to avoid conflict of interest because there is no exemption from the requirements of s 75.

 

 

The constitution of Zambia26 provides for the impeachment of the President under the following circumstances;

(a)     a violation of a provision of this constitution or other law; (b)         a crime under international law; or

(c)     gross misconduct.

The constitution of Zambia recognises that the President can violate not only the constitution but also any other ‘law’. Such a provision effectively creates a broader context of prohibited conduct and widens the circumstances under which a President can be removed from office.

 

 

 

23 See s 46 (1) (e) where the constitution of Zimbabwe clearly expresses the need to have regard to foreign law

24 Constitution of Kenya 2010 s 75

25 Section 76 “State officer” means a person holding a State office

26 Section 108

 

 

 

 

 

Zambia’s constitution does not define the term ‘law’; however, the Zimbabwe constitution defines

 

law to mean;

 

  1. a) Any provision of the constitution or an Act of Parliament b) Any provision of a statutory instrument
  2. c) Any unwritten law in force in Zimbabwe including customary law.

 

 

 

 

Section 266 of the definitions section found under the constitution of Zambia proceeds to define gross

 

misconduct to mean;

 

(a)     Behaviour which brings a public office into disrepute, ridicule or contempt;

 

(b)     Behaviour that is prejudicial or inimical to the economy or the security of the State; (c)   An act of corruption; or

(d)     Using or lending the prestige of an office to advance the private interests of that person,

 

members of that person’s family or another person;

 

 

 

 

The definition of offences which constitute serious misconduct provides for a clearer process for the

 

removal of the President of Zambia which differs distinctly from the state of the Zimbabwean constitution.

 

 

 

 

Zambia has also demonstrated an impressive institutional and constitutional capacity to enforce the principles pertaining to the rule of law, separation of powers, and transparency and accountability through its most recent ruling.

 

In the case of a petition brought before the constitutional court of Zambia by Steven Katuka, Law Association of Zambia against the Attorney-General, Ngosa Simbyakula and sixty three others27 the second and the third petitioners challenged the continued stay in office of the Cabinet and Provincial Ministers. The issue was whether the Vice-President and Cabinet Ministers of the Government of the Republic of Zambia could continue holding their ministerial positions and continue to enjoy benefits

 

27 Selected Judgment NO. 29 OF 2016 P.957 in the constitutional court of Zambia held at Lusaka (Constitutional Jurisdiction)

2016/CC/0010/ 2016/CC/0011

 

 

 

 

 

 

associated with their portfolios and draw salaries and allowances when Parliament was dissolved.

 

 

 

 

The second petitioner averred that the Vice President and Cabinet Ministers held their Cabinet portfolios by virtue of being Members of Parliament and that they could not be a Vice-President or Cabinet Minister without first being elected or nominated as Member of Parliament. It was argued further that the failure by the President of the Republic of Zambia to dissolve his Cabinet following the dissolution of Parliament was a deliberate infringement of the Constitution and that, in so doing, the President had failed in his duties to, among others, respect, uphold and safeguard the Constitution and the sovereignty of the Republic and to promote democracy and enhance the unity of the nation and to uphold the rule of law.

 

 

The petitioners submitted that upon dissolution of Parliament on the 11 May 2016 all Members of Parliament ceased to hold their positions by operation of law.28 Counsel for the petitioners argued that Article 81(8) of the Constitution only allowed for the President to continue in office until the President-elect assumes office. For that reason, it was only the President, the Speaker and the First Deputy Speaker who could survive the dissolution of Parliament and that the constitution did not provide for the Vice-President and Cabinet Ministers to continue in office upon the dissolution of Parliament.

 

The constitutional court ruled that the Ministers and their Deputies were in office illegally following the dissolution of Parliament and they were therefore ordered to pay back all the salaries and other allowances which they had illegally accrued and vacate office with immediate effect. In its land mark ruling, the constitutional court added that President Edgar Lungu was wrong to maintain

 

 

28 Article 72(1) of the Constitution of Zambia provides that with the exception of the Speaker and the First Deputy Speaker, a Member of Parliament shall vacate the seat in the National Assembly upon the dissolution of Parliament. And that, while by definition, Parliament includes the President and the National Assembly, the dissolution of Parlia- ment only affects Members of Parliament as specified in Article 68(2) with the exception of the Speaker and the First Deputy Speaker.

 

 

 

 

 

the Ministers in office after the dissolution of Parliament.

 

 

 

 

Similar to the Nkandla judgment, this case demonstrates the intervening role the court plays in respect of interpreting the law without fear, favour or prejudice because the democratic principles of separation of powers and the twin principles of transparency and accountability were in operation.

 

 

Available Legal Remedies

 

One of the key principles derived from the Nkandla judgment is that where a person, irrespective of status, commits an alleged offence the full course of the law must be allowed to take place because no one is above the law. This principle was also recognised by the Supreme Court in Chavunduka

& Anor v Commissioner of Police29 when the full bench of the Supreme Court stated that:

 

“The entitlement of every person to the protection of the law, which is proclaimed in s 18(1) of the constitution30, embraces the right to require the police to perform their public duty in respect of law enforcement. This includes the investigation of an alleged crime, the arrest of the perpetrator provided the investigation so warrants and the bringing him or her for trial before a court of competent jurisdiction”.

 

The laws of Zimbabwe do provide constitutional, legislative and institutional frameworks which have been established to ensure that, amongst other situations, the executive are held to account for any conduct in breach of their constitutional and legislative obligations as high ranking public officials although not at the same success rate as South Africa. The poor success rate is attributable to the fact that the executive have often refused to comply with certain court orders that they deem to be unfavourable to the State or particular political interests.31

 

29 2000 (1) ZLR 418 (S) at pages 421-422 B

30 Constitution of Zimbabwe as amended at 30 November 2007

31 The Executive has not enforced Court orders in the following cases inter alia, Mark Chavunduka and Ray Choto v Ministry of Defence (1999 case); Andrew Meldrum v The Chief Immigration Officer and Ors (May 2003); Associated Newspapers Of Zimbabwe v Chief Superintendent Madzingo & The Commissioner Of Police HC8191/2003; Dorothy Kumunda & 7 others v District Administrator Chikomba District & Anor HC9481/03; Charles De Kock v Mike Madiro and 4 Ors HH 217/03, Cuthbert Chivhunze & Ors v John Chitozho & Ors Mutare Court Case No.416/02; Commercial Farmers Union v Minister Of Lands & Ors 2000 (2) ZLR 469; see also article by Arnold Tsunga ‘The legal profession and the judiciary as human rights

 

 

 

 

 

 

 

 

In respect of the constitutionality of the conduct of the President or Parliament, it is only the constitutional court32 which can make a final decision in regards thereof.

 

 

Recourse Against the President

 

As a general rule, the President enjoys immunity meaning that whilst in office the President cannot be sued for civil or criminal proceedings for any act of a personal nature. Although, if relating to acts done in an official capacity there lies no privilege of immunity.

 

 

Outside of this right to immunity there are two courses aggrieved parties may take against the President. The first recourse is to approach the courts for an order declaring that the President has failed to fulfil a constitutional obligation, as was the case in the Nkandla judgment. According to the constitutional court rules33 of Zimbabwe an application can be made to the constitutional court by way of a court application supported by an affidavit which details the constitutional obligation in question which the President has failed to uphold.

 

 

The other resource remains a preserve for the political arena as it relates to the prerogative of Parliament under s 97 to institute the prescribed procedure for the removal of the President from office. It is in essence an impeachment process designed to investigate any alleged violations of the constitution listed in s 97. This entails the passing of a joint resolution by the Senate and the National Assembly passed by at least one-half of their total membership. The political aspect of this process stems from the fact that the participants are elected officials who serve as representatives of specific constituencies and not as representatives of the court.

 

 

However, it should be pointed out that the mere fact (as in the case of the Nkandla judgment) that

 

 

defenders in Zimbabwe in 2003: separation or consolidation of powers on the part of the state?’

32 Section 167 (3)

33 Statutory Instrument 61 of 2016 section 27

 

 

 

 

 

the constitutional court makes an adverse finding against the President does not necessarily mean that the President will be impeached and, even if that were the case, there is no guarantee that the motion to impeach will be successful due to the reality of majority politics. As was discovered to the bitter disappointment of the DA party of South Africa, when it tried to impeach the president just days after the Nkandla judgment, the motion failed as they required 160 votes to pass, but lost by 243-133.

 

 

The vote may have been political, and the ANC’s numerical advantage effectively doomed it but that doesn’t make it illegal. Although the Constitution provides that the National Assembly may remove the president if he commits a “serious violation of the Constitution,” it is the National Assembly which decides whether or not to do so; indeed similar to the Zimbabwe context.

 

 

Recourse Against a Cabinet Minister

 

Section 106 of the Constitution of Zimbabwe provides for a constitutional standard in respect of what Ministers are prohibited from doing; however, it does not in itself create offences. The section merely provides that Ministers are, for example, prohibited from enriching themselves or improperly benefiting other persons. Section 106 contains elements of criminal conduct and is aimed at curbing corruption, abuse of power and abuse of State resources.

 

 

In the event of such constitutional violations by Ministers, recourse may be found through the ordinary courts of law either using the criminal justice system or the civil courts.

The criminal justice system specifically provides for recourse to be taken against a public officer under the Criminal Law (Codification and Reform) Act.34

 

 

The Criminal Law (Codification and Reform) Act35

 

Section 174 of the Act deals with criminal abuse of duty by public officers and

 

states as follows;

 

 

34 [Chapter 9:23] of Act 23 of 2004

35 Section 174

 

 

 

 

 

 

(1) If a public officer, in the exercise of his or her functions as such, intentionally

 

(a) does anything that is contrary to or inconsistent with his or her duty as a public officer;

 

or

 

(b) omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.

(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.

(3) For the avoidance of doubt it is declared that the crime of criminal abuse of duty as a public officer is not committed by a public officer who does or omits to do anything in the exercise of his or her functions as such for the purpose of favouring any person on the grounds of race or gender, if the act or omission arises from the implementation by the public officer of any Government policy aimed at the advancement of persons who have been historically disadvantaged by discriminatory laws or practices.

 

 

Unfortunately, s 174 only deals with conduct which amounts to “showing favour or disfavour to any person” and does not comprehensively address all aspects of corruption related activities and abuse of office those public officials should be held liable for when in violation of such laws.

 

 

Institutional Mechanisms as a Means for Redress

 

There are several institutional mechanisms existing in Zimbabwe with the constitutional mandate to promote the rule of law and hold those responsible for criminal conduct and conduct in violation of the constitution to account.

 

 

 

 

 

 

 

 

The Zimbabwe Anti-Corruption Commission (ZACC)36 is constituted under s 255 and is primarily empowered to investigate and expose cases of corruption in the public and private sectors. Therefore, an infringement of s 174 of the Criminal Law (Codification and Reform) Act may be brought to the ZACC because its powers of investigation are criminal in nature.

 

 

The National Prosecuting Authority (NPA) was established under s 258 and is empowered to institute criminal prosecutions on behalf of the State. Similar to ZACC, it is constituted as an independent body for the purposes of ensuring that it exercises its duties impartially, without fear or favour.

 

 

The Auditor General is a public and independent office established under s 309. It plays a pivotal role in the detection of crime including corruption-related offences as one of its core functions is to audit the accounts, financial systems and financial management of all departments, institutions and agencies of government, all provincial and metropolitan councils and all local authorities.

 

 

The Zimbabwe Human Rights Commission (ZHRC) was also established under s 242 and has powers to investigate all human rights abuses as well as act as a guardian for the public by protecting the public against abuse of power and maladministration by State and public institutions.

 

The ZHRC took over the functions of the public protector37 an office which existed in terms of the old constitution. The functions of the public protector under the old constitution were to investigate administrative action taken by any officer, person or authority who was a member of any government ministry or department. Formerly, a complainant could allege that they had suffered injustice but there was no remedy reasonably available by way of court proceedings.

 

 

 

 

 

36 See also the Anti Corruption Commission Act: [Chapter 9:22] section 12-13 which describes the functions and powers of the Commission.

37 Section 107.

 

 

 

 

 

 

The functions of the public protector under the old constitution demonstrated that there existed a public office solely mandated to investigate and hold to account abusive conduct by those in public office but under the new constitution this is no longer the case. The role of the public defender and human rights defender has become blurred and indistinguishable; yet there is a distinction. Human Rights are universal legal guarantees protecting individuals and groups against actions which interfere with fundamental freedoms and human dignity.38

 

 

The public protector as a missing link?

 

Unlike the constitution of South Africa, the constitution of Zimbabwe no longer recognises the office of the public protector as an independent office.

 

 

The public protector of South Africa played a critical role in the investigation of allegations of misuse of power by the President of South Africa: she acted in the public interest and her functions as a key player strengthening constitutional democracy was clearly recognised and applauded by the courts in the Nkandla judgment.

 

 

The constitutional court in its judgment described the powers, functions and purpose of the public

 

protector and specifically addressed the office of the public protector as being;

 

“One of the most invaluable constitutional gifts to our nation in the fight against corruption, unlawful

 

enrichment, prejudice and impropriety in State affairs and for the betterment of good governance.”39

 

 

 

 

It noted that:

“The tentacles of poverty run far, wide and deep in our nation. Litigation is prohibitively expensive and therefore not an easily exercisable constitutional option for an average citizen. For this reason, the fathers and mothers of our Constitution conceived of a way to give even to the poor and

 

 

38 See the Universal Declaration of Human rights (UDHR) adopted by the 56 members of the United Nations on 10 December

1948

39 Paragraph 52

 

 

 

 

 

marginalised a voice, and teeth that would bite corruption and abuse excruciatingly. And that is the public protector”.

 

 

The court added further that

 

“The purpose of the office of the public protector is therefore to help uproot prejudice, impropriety, abuse of power and corruption in State affairs, all spheres of government and State-controlled institutions. The public protector is a critical and indeed indispensable factor in the facilitation of good governance and keeping our constitutional democracy strong and vibrant.”

 

 

Zimbabwe does not have an independent office of the public protector because it was repealed by the 2013 Constitution. Its functions have been incorporated into the ZHRC. This means that there is a gap in respect of a public office which is solely designed for the purposes of investigating allegations of corruption or abuse of powers by public officials on behalf of the public.

 

 

Relevance of The Nkandla Judgment for Zimbabwe

 

The Nkandla judgment draws many political, institutional and legislative parallels for Zimbabwe in respect of how to hold to account members of the executive for conduct that the constitution of Zimbabwe expressly prohibits them from doing.

 

 

For example, the action taken by the National Assembly of South Africa to undermine the public protector’s recommendations also signifies a similar problem in Zimbabwe pertaining to majority politics where decisions are made to protect political and party interests rather than to ensure the adherence to the rule of law and the principles of transparency and accountability.40

 

 

Additionally, a point to consider is that whilst both countries appear to have similar constitutional

 

40 For example, the Local Government Bill which was pushed through both houses of Parliament in July 2016 and sent for presidential assents to become an Act of Parliament within twenty one days. Zanu-PF took advantage of the vulnerable MDC-T as Deputy Ministers, Ministers and the two Vice Presidents are the only ones who have constitutional powers to bring in bills which require support from treasury.

 

 

 

 

 

 

and institutional frameworks, only South Africa has effectively used its mandated authority to hold

 

the executive accountable for alleged violations of its constitution and public office duties.

 

 

 

 

Analogous to South Africa’s constitution, the constitution of Zimbabwe is the supreme law of the land which accordingly states under s 2 that;

(1)This constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2)The obligations imposed by this constitution are binding on every person, natural or juristic, including the State and all executive, legislative and judicial institutions and agencies of government at every level and must be fulfilled by them.

 

 

Subsection 2 reinforces the fact that no person, law, practice or conduct is exempt from constitutional

 

scrutiny and section 2 effectively makes every person accountable and answerable to the constitution.

 

 

 

 

This demonstrates that Zimbabwe is as a nation subject to a constitutional democracy and the practice of constitutional democracy presupposes the recognition of the Constitution as the supreme law of the land.

 

 

As reiterated earlier, there are several legal principles emanating from the Nkandla judgment which Zimbabwe must learn from especially considering that the judgment was a strong endorsement of the rule of law, the principle of separation of powers, and transparency and accountability as well as the supremacy of the constitution over every act of the executive and legislative arm of Government.

 

 

First, all persons including the President and members of his cabinet (the executive) are subject to the constitution. Secondly, not only are they subject to the constitution but the President in particular is the primary defender of the Constitution as is seen in s 90 which confers on the President the responsibility “to uphold, defend, obey and respect this constitution..”.

 

 

 

 

 

Thirdly, constitutionally, the President can be held accountable for any conduct where he fails to uphold, defend, obey and respect the constitution, and for any wilful violation or serious misconduct.

 

 

Fourthly, the judgment demonstrated that whether or not the President and Parliament had acted in bad or good faith was irrelevant because the courts’ enquiry into whether any constitutional obligations had been breached was an objective assessment which was not dependant on the motive of any of the actors.

 

 

Finally, the rule of law requires that the different constitutional arms of government − especially the executive, legislative and judiciary − function in accordance with the principle of separation of powers which must be observed and respected. When this rule of law is functional it protects, ensures and enforces the constitutional values of transparency and accountability of government officials including the executive.

 

 

The principle of upholding the rule of law and separation of powers was alluded to in the matter between Commissioner of Police v Commercial Farmers’ Union41 relating to a court order obtained by the Respondent which had been issued by consent and which, among other things, declared the land invasions of 2000 to be unlawful and required the police within seventy two hours of the issue of the order to inform the invaders that the invasions were unlawful and to remove them if they did not leave the farms. The order also required the police to disregard any executive instructions to the contrary. However, six days after the order was issued, the applicant applied to the court to delete the paragraphs of the court order requiring the police to disregard contrary instructions from the executive and requiring the police to evict the invaders.

 

The court held that a court order must be obeyed until it is set aside and that the rule of law meant that everyone must be “subject to a shared set of rules that are applied universally and which deal

 

 

41 2000 (1) ZLR 503 (HC) 2000 (1) ZLR p503

 

 

 

 

 

 

on an even-handed basis with people and which treat like cases alike”.

 

 

 

 

In its judgment the court noted further that

 

“… under a constitutional democracy such as Zimbabwe there is recognition that society’s power is dangerous to its members if it is exercised by one group of individuals. It is recognised therefore that there must be a separation of powers to perform the three jobs which have to be done – that of making the law (by Parliament) that of applying the law to particular cases (by the judiciary) and that of enforcing the laws and decisions of the courts (by the executive)”.

 

 

Similar to the Nkandla judgment, the court in this case concisely drew imperative distinctions necessary for a true democracy and also cautioned against the danger of majority politics as representing a threat to democratic and constitutional principles.

 

 

Conclusion

 

The constitutional principles of separation of powers, rule of law, transparency and accountability which were defended in the Nkandla judgment serve as examples of how the rule of law ought to apply in Zimbabwe. The measure by which a nation esteems and values its constitution is not found in the mere existence of a constitution. It achieves that quality or status of a constitutional democracy only when the constitution acquires a practical significance, in other words, when the principles and rights enshrined in it can be translated into practice. The South African courts including the constitutional court have demonstrated repeatedly that separation of powers is not mere rhetoric but a lived reality; that the rule of law is not an unattainable concept but can be practically applied for the benefit of all; and that transparency and accountability apply as much to the political elite as they do to the majority of ordinary South Africans and the Nkandla judgement reaffirmed these principles.

 

 

However, this is not the case in Zimbabwe for a number of reasons; constitutional democracy

 

 

 

 

 

becomes much more difficult to achieve if the constitutional safeguards in terms of clear provisions that support the underlying values and principles of the constitution, corresponding legislation and institutional frameworks are lacking. In respect of Zimbabwe, there is a process of not only constitutional alignment but also constitutional amendments which must take place in order to have the legal and democratic fundamentals which justified the Nkandla judgment delivered by the Constitutional Court of South Africa.

 

 

This process also needs to be enabled by a change in the political culture of the nation which must begin to interact with the President and all executive powers and representatives as constitutional beings, subject to the constitution, bound by the constitution and the democratic systems that it introduces. The lines have never been drawn more clearly as to the duties and responsibilities of the three branches of government as what unfolded in the unanimous Nkandla ruling and Zimbabwe can, and must, learn from those lessons and should hasten to follow regional trends of democracy in practice seen through the examples of other countries such as Zambia and Kenya.

 

CASES DECIDED JULY – DECEMBER 2015

Download: Case Summaries July – December 2015 Download

Latest update: 30 May 2016 (4th edition)

Cases added since the last update are indicated by a vertical line in the left margin.

 

 

Administrative law – audi alteram partem rule – embodied in Administrative Justice Act [Chapter 10:28] – effect of rule – requirement to give notice of proposed action and to allow affected person to make representations – allegations made against person but not clearly refuted – not necessarily admission of such allegations

 

A-G v Mudisi & Ors S-48-15 (Patel JA, Malaba DCJ & Garwe JA concurring) (Judgment delivered 28 July 2015)

 

See below, under LEGAL PRACTITIONER (Prosecutor-General – control over prosecutors).

 

Agency – agent – who is – distinction between employee, agent and independent contractor

 

Masango & Ors v Kenneth & Anor S-41-15 (Gwaunza JA, Gowora & Patel JJA concurring) (Judgment delivered 20 July 2015)

 

See below, under EMPLOYMENT (Employee – who is).

 

 

Appeal – Constitutional Court – appeal to – from decision of Supreme Court – no right of appeal existing unless Supreme Court has made decision on a constitutional matter

 

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15 (Ziyambi JCC) (Judgment delivered 1 August 2015)

 

See below, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).

 

 

Appeal – criminal matter – from High Court to Supreme Court – High Court making ruling in relation to application for review of proceedings in magistrates court – no appeal lying against such ruling

 

Nyambo v Mahwe NO & Anor HH-736-15 (Bhunu J) (Judgment delivered 16 September 2015)

 

The applicant, who was on trial at the magistrates court, applied for discharge at the close of the State case. The magistrate refused the application, so the applicant brought the matter on review before the High Court, which dismissed the application. The applicant then sought leave to appeal to the Supreme Court, in terms of s 44(5)(a) of the High Court Act [Chapter 7:06]. This section allows a dissatisfied party (the accused or the Prosecutor-General) to appeal against an interlocutory order or judgment in relation to any criminal proceedings before the High Court. Leave must be obtained for such appeal.

Held: the ruling dismissing the application for review was not an interlocutory ruling, but a final one. In any event, the ruling did not relate to proceedings in the High Court, but to proceedings in the magistrates court. The applicant had no right of appeal at this stage, though the right of appeal to the High Court remained, once the proceedings in the magistrates court were complete.

 

 

Appeal – Labour Court – appeal to – grounds – raising of new grounds on appeal – when appeal court should allow point to be raised

Appeal – labour matter – observance of procedural requirements – stringency required in other civil matters not necessarily ousted because matter is a labour dispute

 

Gazi v NRZ S-60-15 (Gwaunza JA, Ziyambi & Mavangira JJA concurring) (Judgment delivered 19 October 2015)

 

The appellant was employed by the respondent. He was dismissed for absenteeism. He did not attend the disciplinary hearing, although he had been advised of the date, time and venue. The decision of the disciplinary committee was, in effect, a default one. The appellant nonetheless appealed to the General Manager of the respondent, who disregarded the fact that the appellant had been in default, and heard the matter on the grounds raised by the appellant. He upheld the dismissal. The appellant then appealed to the Labour Court, but on new grounds which related to the reasons for his absence from duty. In effect, the enjoined the Labour Court to determine matters which had not been placed before the General Manager and which the respondent had not had the opportunity to respond to. He argued that new points of law can be raised at any time. The respondent argued that to consider these new points would seriously prejudice the respondent in particular, and employers in general, in that employees would bring flimsy grounds before internal hearings and then bring “real” grounds and evidence before an appellate court.

Held: (1) In principle a court of appeal is disinclined to allow a point to be raised for the first time before it. Generally it will decline to do so unless (a) the point is covered by the pleadings; (b) there would be no unfairness to the other party; (c) the facts are common cause or well-nigh inconvertible; and (d) there is no ground for thinking that other or further evidence would have been produced that could have affected the point. Here, (i) the point of law was not covered in the pleadings; (ii) it was unfair to the respondent to raise the point of law in question for the first time on appeal, in that the respondent argued its case on the basis that the appellant was absent from duty without reasonable excuse and the General Manager was not confronted with the argument that the bedrock of its case was being challenged; (iii) the facts of the matter were not common cause; and (iv) the appellant, if he had chosen to appear before the disciplinary committee, could have led evidence on the points he relied on.

(2) As to the appellant’s argument that, this being a labour matter, a less strict approach should be followed, labour matters are civil in nature and, while the same standards of procedural stringency as are required in ordinary civil matters may not always apply, those standards are not necessarily ousted merely because the matter is a labour dispute. This is particularly so where serious legal principles are at issue and where, as in casu, a party who belatedly clamours for such procedural relaxation is the author of the very predicament that he finds himself in. But for his own default, the appellant could have properly raised the new legal point he sought to raise on appeal, and adduced evidence on it, during the disciplinary proceedings. Parties in labour disputes should remember that it is important to show respect for laid down formalities in the adjudication of disputes that concern them. Showing disdain for such formalities and later expecting the court to turn a blind eye to such conduct smacks of double standards and a lack of seriousness on the part of the litigant concerned.

 

 

Appeal – Labour Court – appeal to – from decision of arbitrator – appeal only lying on point of law – appeal relating to facts – what must alleged in grounds of appeal – not essential to allege that misdirection on facts is so unreasonable that no sensible person could have reached impugned conclusion – necessary that grounds of appeal are disclosed in clear and concise manner

 

Zvokusekwa v Bikita RDC S-44-15 (Garwe JA, Ziyambi & Hlatshwayo JJA concurring) (judgment delivered 22 July 2015)

 

An appeal to the Labour Court from the decision of an arbitrator, like an appeal to the Supreme Court from the Labour Court, must be based on a point of law. What constitutes a point of law has been stated and restated in a number of decisions of the Supreme Court. If an appeal is to be related to the facts, there must usually be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented. However, to constitute a point of law, in all cases where findings of fact are attacked, it is not essential that there be an allegation that there was a misdirection on the facts which was so unreasonable that no sensible person properly applying his mind would have arrived at such a decision. The court should look at the substance of the grounds of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What is important is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner. If it is clear that an appellant is criticising a finding by an inferior court on the basis that such finding was contrary to the evidence led or was not supported by such evidence, such a ground cannot be said to be improper merely because the words “there has been a misdirection on the facts which is so unreasonable that no sensible person would have arrived at such a decision” have not been added thereto. If it is evident that the gravamen is that an inferior court mistook the facts and consequently reached a wrong conclusion, such an attack would clearly raise an issue of law and the failure to include the words referred to above would not render such an appeal defective.

 

 

Appeal – leave – when required – interlocutory rulings – leave generally required – grant or refusal of interdict – leave not required – provisional stay of execution – whether a form of interdict – distinction between normal interdict and stay of execution – requirements for each

 

Gold Reef Mining (Pvt) Ltd & Anor v Mnjiya Consulting Engineers (Pty) Ltd & Anor HH-631-15 (Mafusire J) (Judgment delivered 20 July 2015)

 

The first respondent obtained a default judgment against the applicants. It went on to issue a writ of execution. The applicants’ property was attached. The applicants applied for rescission of the default judgment and simultaneously applied, on an urgent basis, for a stay of execution pending the determination of their application for rescission. The judge reserved judgment but directed that the status quo ante would subsist until she had given her ruling. Despite that directive, the respondent sought to execute. The applicants’ lawyers sought clarification from the judge, who responded that she had indeed issued a directive during the hearing to the effect that the respondent would stay execution pending her determination. In due course the judge issued a provisional stay of execution of the default judgment, pending the determination.

A few weeks later the respondent noted an appeal to the Supreme Court against the provisional order. The notice of appeal claimed that leave to appeal was not required. Soon after the noting of the appeal, the respondent instructed the sheriff to proceed with execution. The applicants, within a few days, applied on an urgent basis for a stay of execution. This was opposed in limine on the grounds that the matter was not urgent and that the applicants were aware, when the appeal was noted, that the operation of the provisional order was suspended and that the respondent would proceed to execution. The second ground was that the court was functus officio as the present application was essentially the same as the earlier one. On the right to appeal without leave, the respondent argued that this was permissible in terms of s 43(2)(d)(ii) of the High Court Act [Chapter 7:06], as this was a matter where an interdict had been granted or refused.

The applicants argued that the appeal was a nullity, being in respect of an interlocutory ruling which was not appealable without leave.

Held: (1) The first point in limine had no merit. The purpose of the appeal was not, and could not have been, to enable the respondent to proceed with execution. The purpose of the appeal to the higher court must have, or ought to have been, a genuine desire to correct a perceived wrong by the High Court. An appeal noted solely or essentially to allow execution to proceed, when the reason for the stay was still there, would have been brazenly contemptuous and mala fide. The applicants acted as soon as they became aware that the respondent was proceeding to execution.

(2) On the functus officio argument, the matter dealt with by the first judge was an application for stay pending resolution, by the High Court, of the application for rescission of judgment. The present matter was an application for stay pending the determination, by the Supreme Court, of the respondent’s appeal. It was a new matter, which had not been the issue before the first judge.

(3) The principle is now settled as to where to draw the line between decisions which are purely interlocutory and therefore not appealable without leave, and those which are final and having a definitive sentence and therefore appealable as of right. The term “interlocutory” refers to all orders pronounced by the court, upon matters incidental to the main dispute, preparatory to, or during the progress of, the litigation. Orders of this kind fall in two classes: (i) those which have a final and definitive effect on the main action; and (ii) those that are simple, purely and properly interlocutory. A simple interlocutory order, i.e. a preparatory or procedural order, is not appealable without leave. The provisional order was classically interlocutory because it did not decide the issue or dispute between the parties. The main dispute was the claim by the respondent against the applicants; in respect of that, the application for rescission of judgment was itself an interlocutory matter. The application for stay was even more removed from the main dispute. It was an application within another application. In no way would it decide the application for rescission, let alone the dispute pending in the main action.

(4) It is every litigant’s right to appeal to the highest court in the land, but that right in certain situations is removed or restricted. Section 43 of the High Court Act begins, in subs (1), by granting a blanket right of appeal to the Supreme Court in all civil cases from any judgment of the High Court, but subject to what the rest of the section says. The rest of the section, in subs (2)(a) to (c), takes away altogether the right of appeal in the situations specified therein. For example, no appeal lies from an order of the High Court given by consent of the parties; or from an order refusing summary judgment. Then in subs (2)(c)(ii) and (d) the right of appeal is restricted. Leave is required in the situations specified therein. An interlocutory order or judgment given by a judge is not appealable without leave. In respect of the grant or refusal of an interdict no leave is required to appeal.

(5) In a broad sense, to grant or refuse a stay of execution is to grant or refuse an interdict, an interdict being a remedy by a court, either prohibiting somebody from doing something (prohibitory interdict), or ordering him to do or carry out a certain act (mandatory interdict). But the focus of s 43(2)(d)(ii) is not about applications for stay of execution as a species of an interdict. Otherwise every order of court, for instance, one directing someone to pay another a sum of money, would always be an interdict. The distinction between ordinary interdicts and stays of execution in particular is more apparent when one considers the separate requirements for each remedy. With an interdict, the applicant must show a clear right in his favour, or, in the case of an interim interdict, a prima facie right having been infringed, or about to be infringed; an apprehension of an irreparable harm if the interdict was not granted; a balance of convenience favouring the granting of the interdict, and the absence of any other satisfactory remedy. On the other hand, in an application for a stay of execution the requirements are real and substantial justice. Where injustice would otherwise be caused, the court has the power to, and would, generally speaking, grant relief. The requirements for an application for a stay of execution, admittedly a species of an interdict, are less onerous than those for an ordinary interdict.

(6) The sole object of the provisional order was to preserve the status quo ante so as to allow for the determination of the application for rescission of the default judgment. The judge obviously considered that real and substantial justice would be achieved by granting a stay of execution. To allow that order to be suspended and execution to take place would render any judgment in favour of the applicants in the application for rescission a brutum fulmen. In addition, the object of the provisional order would be rendered nugatory. That would be manifestly intolerable. Execution would be stayed.

 

 

Arbitration – award – labour matter – registration – procedure to be followed – courses open to party seeking to register award

ANZ Ltd v Nyarota HH-591-15 (Muremba J) (Judgment delivered 1 July 2015)

 

The applicant was formerly employed by the respondent. Following his dismissal, he obtained an arbitral award which was subsequently quantified. He applied in terms of s 98(14) of the Labour Act [Chapter 28:01] to register the award and did so as a chamber application. The respondent objected, pointing out that both s 98(14) of the Labour Act and art 35 of the Model Law contained in the Second Schedule to the Arbitration Act [Chapter 7:15] refer to an application for registration being made to the High Court as opposed to a judge in chambers.

Held: as this award arose from a labour dispute, the Labour Act applied. Section 98(14) does not say that an application must be made to register an arbitral award; it says that a party may “submit for registration” the copy of the award submitted by the arbitrator to the party. To submit something is to present it; and presenting can be effected in various ways. The word “court” in s 98(14) refers to the institution. The subsection does not stipulate the procedure to be used; a party seeking registration of an arbitral award in terms of s 98(14) can simply hand over the award to the registrar of the High Court for registration, or may make either a chamber application to a judge or a court application. It is entirely up to the party seeking registration to elect the procedure to adopt. In any event, in terms of r 229(c) of the High Court Rules (which deals with the adoption of incorrect form of application) the use of an incorrect form of application shall not in itself be a ground for dismissing the application unless the judge or court considers that an interested party has been prejudiced by the wrong form of application and that such prejudice cannot be remedied by directions for the service of the application on that party, with or without an appropriate order for costs. Here, there was no prejudice because the application was made on notice.

 

 

Arbitration – award – registration of – supply of original or certified copy of award – when must be supplied – award partially sounding in money, with part not quantified – quantified potions not severable – need for award as a whole to be registered

 

Matthews v Craster Intl (Pvt) Ltd HH-707-15 (Mafusire J) (Judgment delivered 19 August 2015)|

 

An application for the registration of an arbitral award is largely an administrative process. Whilst in such an application the court is not really being called upon to rubber stamp the decision of an arbitrator, nonetheless, it is largely giving that decision the badge of authority to enable it to be enforceable. If the court is satisfied that the award is regular on the face of it, and that it is not deficient in any of the ways contemplated by articles 34 and 36 of the First Schedule to the Arbitration Act [Chapter 7:15], then the court will register it.

Article 35 of the First Schedule is clear: a party wishing to register an arbitral award with the High Court does so through an application. The application procedure is governed by the High Court Rules, which say in Order 32, among other things, that an application must consist of the written document signed by the party; an affidavit filed together with that application and to which may be attached documents verifying the facts or averments set out in the affidavit. The Rules say nothing about the nature of the documents to be attached to the affidavit, i.e. whether or not they should be originals, certified copies or otherwise. Article 35 says an authenticated original or certified copy of the award is what must be “supplied”. As to when these may be “supplied” is not specified. It would be sufficient compliance with the law for the applicant to have attached to his application a copy of the arbitration award that had been filed with the registrar, and to have tendered the original in court.

Section 98(14) of the Labour Act [Chapter 28:01] and art 35 of the First Schedule to the Arbitration Act are in pari materia. On the face of it, both provisions facilitate the registration of arbitral awards with the conventional courts for the purpose of enforcement.

If an award is one that must sound in money and it does not, then it is incapable of registration. It is incomplete. Here, the parties went for arbitration to determine the nature and quantum of the terminal package due to the applicant, but they came out of that arbitration with only two-thirds of the award having been quantified. The arbitral award did not specify the period of leave due to the applicant. It did not specify the number of those leave days. It did not specify the quantum. It did not state what the respondent’s leave policies were. An order that an employer must pay his ex-employee cash-in-lieu of the leave due to him and not taken for the period in question is not complete.

As to whether the quantified portions of the award could be registered, the governing legislation does not provide for divisibility of awards made elsewhere when they are submitted for registration with the High Court. To split the award in that manner would amount to transforming the arbitral award of the arbitrator. The applicant would have to come back to court later for the registration of the rest of the award, if it were eventually quantified. The arbitration award as a whole was therefore not capable of registration.

 

 

Arbitration – award – setting aside of – failure by arbitrator to give adequate reasons for award – not a ground to set aside award – dissatisfied party should seek court order compelling arbitrator to furnish reasons

 

Soft Drinks Mfg Employers’ Assn v Soft Drinks Mfg Workers’ Union & Ors HH-744-15 (Matanda-Moyo J) (Judgment delivered 23 September 2015)

 

In an industrial arbitration over wage claims, the two arbitrators made an award which they intended should give the employees a raise while at the same time not overburdening the employer with increases that could not be met. The employees’ association applied to have the award set aside on the grounds, inter alia, that the arbitrators failed to give reasons for their award. It was argued that the arbitrators engaged in a mediation exercise and did not adjudicate. They did not explain how the figure for the pay rise was arrived at.

Held: article 31(2) of the Model Law requires that an arbitral tribunal shall state the reasons upon which the award is based, unless the parties have agreed that no reasons are to be given, but does not provide for the setting aside of an award for inadequate reasons. Where the arbitrator has legal training, the scope of an arbitrator’s obligation to give reasons is logically the same as that of a judge. Where an arbitrator is chosen due to his expertise in a particular trade or calling and has no legal training, all that is expected is nothing more than basic identification of issues and reasoning from the evidence to the facts and the facts to the conclusion. Reasons of a judicial standard are not required. An award simply requires a statement of factual findings and other reasons which led the arbitrator to make such finding. Where the award does not comply with art 21(2), the appropriate remedy is to approach the court for an order to require the arbitrator to give detailed reasons. Failure to give reasons should not result in a nullification of the process.

 

 

Associations – co-operative society – proof of existence – what is required – such proof not required in order for society to institute legal proceedings – legal proceedings – locus standi to represent members – must show a direct and substantial interest in outcome of litigation

 

Tirivepano Housing Co-op v TSL Ltd & Ors HH-756-15 (Dube J) (Judgment delivered 23 September 2015)

 

The applicant, a co-operative society, brought an application to restore it and its members (who were not named in the writ) to a piece of land from which the members were evicted following a declaratory order obtained by the first and second respondents. The order, which was granted in default, declared that the first respondent was the registered owner of the land. The respondents raised two preliminary points: (a) the applicant, being a co-operative society, should have furnished proof of its registration as such, as well as its articles or constitution; (b) the applicant had no locus standi, as it had no direct and substantial interest in the right which was the subject matter of the litigation and in the outcome of the litigation. The respondent also submitted that the applicant has failed to show that its members resolved that it represented them and brought the application on their behalf. The applicant could only bring the application in respect of its own direct harm; it could not bring it on behalf of people not before the court and who had not authorised it to do so.

Held: (1) Section 19 of the Co-operative Societies Act [Chapter 24:05] provides that a cooperative register and certificate shall be proof of registration. In other words, any party wishing to prove the existence of a co-operative can do so by producing the cooperative’s register and certificate of registration to prove such fact. The purpose of the section is merely to underline what suffices as proof of registration of a cooperative. The section does not dictate that proof of registration of a co-operative is a requisite which ought to be met by a co-operative instituting proceedings in order to establish the co-operative’s status and powers, nor did it preclude cooperatives who fail to produce a certificate of registration, its constitution or articles of association at the commencement of proceedings to be precluded from bringing any proceedings. It is not peremptory for every co-operative bringing litigation to produce proof of registration.

(2) There is no legal requirement for a party instituting proceedings to file proof of authority to bring proceedings on behalf of another at the commencement of every proceeding. It is only in instances where a party’s authority has been challenged that it may be required to produce such proof. The respondent did not in its opposing affidavit challenge the applicant’s authority to bring this application on behalf of its members. Had it done so, this could have alerted the applicant of the requirement.

(3) The applicant had not filed any proof to support the assertion that that it was mandated by members of its co-operative to bring these proceedings. A litigant can only bring proceedings where it is able to show that it has a direct and substantial interest in the subject matter and outcome of the proceedings. It is not sufficient simply to establish a financial interest in the right sought to be addressed. A financial interest amounts to an indirect interest in the proceedings. Where a party seeks to represent the interest of its members, it is incumbent upon such litigant to outline in its application, its affairs or business which justify its participation in the proceedings in order to vindicate the rights of its members. It had not been shown how the issue regarding whether its members should remain in occupation of the land in issue was of interest to the applicant and it would be adversely affected by a judgment of the court.

 

Aviation – Air Zimbabwe Holdings (Pvt) Ltd – successor company to Air Zimbabwe Corporation – a private company even though shares owned by the Government – employees not in service of the State

 

S v Chikumba HH-724-15 (Mafusire J) (Judgment delivered 9 September 2015)

 

See below, under CRIMINAL LAW (Offences under Criminal Law Code – criminal abuse of public office)

 

 

Company – judicial management – purpose of – principles – company seeking judicial management in order to prevent execution against property which had been mortgaged as security for a debt – not an acceptable ground for placing company under judicial management – application an abuse of court process

 

In re Stand Five Four Nought (Pvt) Ltd HH-767-15 (Mathonsi J) (Judgment delivered 30 September 2015)

The applicant company, through one of its directors, sought an order placing it under judicial management. The reasons for so doing were that the company registered a mortgage bond over its sole immoveable property as security for a loan extended to an affiliate company, in which the director held a 20 percent shareholding. The affiliate company had been placed under provisional judicial management through inability to pay its debts, including the loan in question. When the creditor failed to obtain satisfaction, it turned to the applicant, which was the surety and co-principal debtor for the debt. The applicant claimed that it would be just and equitable for it to be placed under provisional judicial management as this would prevent execution against its property and its inevitable liquidation. The creditor opposed confirmation of the provisional order for judicial management, which order had been obtained without notice to the creditor. The creditor argued that to grant such relief would be contrary to all notions of security for a debt and the principles of freedom and sanctity of contract. In addition, the application constituted an abuse of court process in order to frustrate and/or delay a just claim while not laying out a proper case for the grant of a judicial management order.

Held: in terms of s 300 of the Companies Act [Chapter 24:03], a provisional judicial management order may be granted if it appears to the court that (a) by reason of mismanagement or for any other cause the company is unable to pay its debts or is probably unable to pay its debts and has not become or is prevented from becoming a successful concern; and (b) there is a reasonable probability that if the company is placed under judicial management it will be enabled to pay its debts or meet its obligations and become a successful concern; and (c) it would be just and equitable to do so.

In terms of s 305, the court may grant a final judicial management order if it appears to the court that there is a reasonable probability that the company concerned, if placed under judicial management, will be enabled to became a successful concern and that it is just and equitable to grant such an order. Here, the main reasons for seeking judicial management were to obtain a moratorium to prevent execution against the mortgaged property of the applicant. This had nothing to do with the acceptable grounds provided for in the Act. It had nothing to do with enabling the applicant to become a successful concern. It had not even been shown that the applicant was not a successful concern or that whatever problems it faced were a result of mismanagement to be cured by the involvement of a judicial manager. All that the applicant relied on was the “just and equitable” provision. The reality was that the applicant simply did not want to pay a debt which has benefited its shareholders, who appeared to have taken a loan in the name of one company in which they had beneficial interest, secured it by virtue of a property of another company in which they had beneficial interest. When the time came to pay, they did not do so, but rushed to shelter under judicial management both for the principal debtor and the surety. It was an abuse to use court process for the purpose for which it was never meant. The provisional order would be discharged.

 

 

Company – liquidation – creditor – secured creditor – who is – holder of mortgage bond issued as security for loan – bond issued by one company as security for loan to another company – both companies effectively a single economic unit — intention of parties – bond valid – holder of bond a secured creditor

 

CBZ Bank Ltd v Ndlovu NO & Anor HB-137-15 (Makonese J) (Judgment delivered 9 July 2015)

 

The first respondent was the liquidator for two companies, A and L, which had the same shareholders and the same executive structure. Before both companies were placed under liquidation, the applicant bank advanced certain sums of money to company A in terms of a banking facility. Under that facility, the company was required to register a mortgage bond to secure applicant’s exposure. The managing director of A forwarded title deeds to a stand in Bulawayo, and a mortgage bond was registered, but against company L. The respondent refused to treat the bank as a secured creditor against A, saying that the loan had not been made to the L and that the bank should have registered a security bond against A.

The applicant argued that the mortgage bond was valid and that the applicant ought to be regarded as a secured creditor, at least in relation to L. It argued that the manner in which A and L had been operating and the manner in which they dealt with the question of security in this matter justified a rejection of the façade of separate personality. The two companies were in essence a single economic entity.

Held: (1) L handed the title deed for the registration of the mortgage bond in the first instance. There was nothing to show that L did this erroneously. At all materials times, L was well aware that its property was being used as security and that monies were indeed advanced to A by the applicant on that understanding.

(2) A mortgage bond evidences a debtor and creditor relationship. The principles applicable in the construction of a contract also apply to a mortgage bond. In the generation of the mortgage bond in this matter, the parties were involved in a commercial transaction. Where parties intend to conclude a contract, think they have concluded a contract, and proceed to act as if the contract were binding and complete, the court ought rather to try to help the parties towards what they both intended rather than obstruct them by legal subtleties and assist one of the parties to escape the consequences of all that he has done and all that he has intended. There could be no doubt that, on this approach, the parties intended the validity of the mortgage bond as providing real security for the debt.

(3) The natural and intended consequences of the events was the provision of real security by A. L provided its title deed in full knowledge that a bond would be registered in favour of the applicant for the facilities extended to A. The fact that the intentions of the parties were probably not adequately set out was irrelevant and the placing of reliance on the perceived defects bordered on dishonesty. If there was a defect, it would be a defect of the debtor’s own making.

(4) The clear intention of the parties was that a bond be registered against the title deed. The fact that the principal obligation had not been properly expressed did not detract from the validity of the bond. The court had power to order rectification of the bond to indicate its real nature, a security bond. That was what L intended to achieve. The applicant held real security to the extent that it was a secured creditor.

 

Company – liquidation – legal proceedings brought by liquidator of company in liquidation – liquidation occurring after proceedings have been initiated – leave of court required to continue action

 

Zimbabwe Allied Bank Ltd v Dengu & Anor HH-583-13 (Muremba J) (Judgment delivered 1 July 2015)

 

The plaintiff bank issued summons against the defendants, who had signed as sureties and co-principal debtors in respect of a loan advanced by the bank to a company. The proceedings had past the pre-trial conference stage, but before the matter could be set down for trial the bank was placed in liquidation in terms of a court order. The court order provided that the liquidator would have the powers set out in s 221(2)(a) to (h) of the Companies Act [Chapter 24:03]. The bank’s legal practitioners filed a notice of change of status in terms of r 85A of the High Court Rules, to include the words “in liquidation” after the bank’s name. The matter was set down for trial, but the defendants’ legal practitioners stated that the matter could not proceed to trial without the liquidator having obtained the leave of the court. In saying so, they relied on s 213 of the Act. The plaintiff’s legal practitioners argued that that section only applies to an action brought against a company on liquidation, not to one brought by such a company.

The defendants also argued that since the liquidator did not obtain the court’s leave to continue with the proceedings in terms of s 221(2), the plaintiff, which was a company under liquidation, had no locus standi to litigate. It was also argued that the notice of change of status was invalid, in that r 85A only relates to natural persons.

The plaintiff argued that in terms of s 221(2) of the Act the liquidator only requires the leave of the court in a situation where he intends to commence proceedings on behalf of the company. Where proceedings commenced before placement in liquidation, as happened here, the liquidator does not require the leave of the court to continue with the proceedings.

Held: (1) s 213 only applies to actions brought against a company in liquidation, not to those brought by the company. The purpose of seeking leave to proceed against a company in liquidation is to ensure that when a company goes into liquidation, the assets of the company are administered in a dignified and orderly fashion for the benefit of all the creditors. No creditor should be able to obtain an advantage over other creditors by bringing proceedings against the company.

(2) Rule 85A that states that if a party to the proceedings has a change of status, a notice of change of status may be filed with the Registrar and served on all other parties to the proceedings. Nothing in the rule says that the rule is only confined to natural persons. At law the definition of a “person” includes both natural and juristic persons.

(3) The effect of a winding up order is to freeze the company’s affairs in a number of respects and this includes legal proceedings, attachments and executions (s 213(a) and (b) of the Act). Dispositions of property and share transfers of the company may only be made with the leave or permission of the court (s 213(c)). The purpose of seeking the leave of the court is to preserve the assets of the company for the benefit of the creditors. The powers of the directors cease (s 253). A liquidator is appointed to run the affairs of the company instead. In terms of s 221, which sets out the powers of the liquidator, there are powers that the liquidator exercises without further authority. There are some powers that he exercises with the authority of a joint meeting of creditors and contributories. There are some powers which require him to exercise with the leave of the court. In every case where a liquidator intends to initiate legal proceedings which have not commenced at all on behalf of the company, be they of a civil or criminal nature, he cannot do so without seeking the leave of the court.

(4) As to whether leave is required to continue an action that has already started, if he wants to bring any legal proceedings to court on behalf of the company, be they fresh legal proceedings or proceedings which commenced before liquidation, he has to seek the leave of the court. When an application for leave to bring an action is made by the liquidator, the court will exercise its judicial discretion on whether or not to grant it. It will consider various factors such as the amount and seriousness of the claim; the degree and complexity of the legal and factual issues involved; the stage to which the proceedings may have progressed; whether the claim has arguable merit; and whether the proceedings will result in prejudice to the creditors among other factors.

 

Editor’s note: in terms of s 221(1) of the Companies Act, the liquidator has the power, either –

  • with the leave of the court or
  • with the authority of a resolution of creditors and contributories, duly passed at a joint meeting thereof, or
  • when authorised by the Master in terms of s 218(4)(a)

to bring or defend in the name and on behalf of the company any action or other legal proceeding of a civil nature.

The Master may also, in terms of the proviso to s 221(2)(a), authorise upon such terms as he thinks fit legal proceedings for the recovery of any outstanding accounts, the collection of which appears to him to be urgent.

The judgment does not disclose whether the liquidator was authorised in either of those ways. It seems implicit that he was not so authorised.

 

Constitutional law – Constitution of Zimbabwe 1980 – Declaration of Rights – s 24(2) – application for matter to be referred by lower court to Supreme Court – requirement by applicant in criminal matter to give notice to prosecutor – need for applicant to give evidence in support of application – duty of lower court to consider whether a constitutional issue has been raised and whether application is frivolous or vexatious

 

S v Mwonzora & Ors CC-9-15 (Garwe JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi, Gwaunza, Gowora, Hlatshwayo, Mavangira & Guvava JJCC concurring) (Order given 11 June 2014; reasons made available 15 October 2015)

 

The applicants had been charged in the magistrates court with public violence. A number of complaints were raised by them about the manner of their arrest and subsequent treatment. The matter was postponed on a number of occasions to enable the court to deal with the matters raised. The applicants then, without giving notice to the prosecution, applied to the magistrate for the matter to be referred to the Supreme Court in terms of s 24(2) of the 1980 Constitution, which was then still in force. They tendered a written application in which they chronicled various violations of their constitutional rights at the instance of the State and other persons. No evidence was led in support of these allegations. Although the prosecutor opposed the application, the magistrate held that the issues raised deserved the attention of the Supreme Court, which court, he said, would need to make a proper enquiry.

Held: the matter was not properly before the Supreme Court. A judicial officer faced with an application for referral has no option but to refer, unless, in his opinion, the raising of the question is frivolous and vexatious. The magistrate did not, as he should have, ask himself whether the issues raised were not frivolous and vexatious; he made no finding that the application was not frivolous or vexatious.

Before permitting an accused person to raise the question whether his constitutional rights have been violated, it is a requirement that ample written notice of such an application should be given to the State. The prosecution is entitled to be afforded the time and opportunity to investigate the complaint and to be ready to adduce evidence, if necessary.

It is insufficient to make a statement from the bar. The applicants should have been called to testify under oath in order to substantiate their complaints that their rights had been violated. Had that happened, the prosecutor would then have had the opportunity to cross-examine the applicants and, thereafter, to adduce such evidence as he may have considered necessary to contradict the allegations made by the applicants. Only after hearing evidence from both sides would the magistrate have been in a position to make findings of fact, which findings he would have been bound to take into account in deciding whether or not to refer the issues raised to the Supreme Court. It is the responsibility of the court referring a matter to resolve any disputes of fact before making such a referral. The absence of oral evidence can be fatal to an application of this nature because it completely disables findings to be made on the complaints raised. It is on the basis of those findings that the Supreme Court is called upon to deal with the allegations raised and, where necessary, afford appropriate relief.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Constitutional Court – appeal to – from decision of Supreme Court – when party has right of appeal to Constitutional Court against such decision – need for Supreme Court to have made decision on constitutional matter

 

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15 (Ziyambi JCC) (Judgment delivered 1 August 2015)

 

The applicants sought leave to set down an appeal from the Supreme Court on an urgent basis. It was argued that they had such a right of appeal, in view of the wording of s 167(5)(b) as read with s 169(1) of the Constitution. The applicants submitted that s 167(5)(b) granted a right of appeal in a case where the alleged violation, by the Supreme Court, of the applicants’ constitutional right only became apparent after the judgment was handed down. They argued that it was not necessary to have requested the Supreme Court to refer the matter to the Constitutional Court in terms of s 175(4).

The respondent argued that an appeal invites a superior court to determine the correctness of the lower court’s decision on issues which were placed before it. There were no constitutional issues placed before the Supreme Court for determination, or determined by the Supreme Court. There could, therefore, be no right of appeal since no decision was made by that court on constitutional matters. The proper recourse available to the applicants was to bring an application in terms of s 85 of the Constitution if it was felt that a breach of their fundamental rights had occurred.

Held: the applicants had not established any right to approach the Constitutional Court by way of appeal. Section 167(5) relates to rules of procedure regulating the manner of approach to the Constitutional Court on appeal from lower courts. It does not confer a right to appeal on a litigant who has no right of appeal. For this right, the litigant must look elsewhere in the Constitution. Such a right may be read into s 175(3), which applies where an order of constitutional invalidity of any law has been made by a court. Failing that, a right of appeal could only arise where the Supreme Court makes a decision on a constitutional matter.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Constitutional Court – reference of cases to – ways in which matters may be brought before Constitutional Court – appeal from lower court – only permissible where lower court has ruled on a constitutional issue – direct application in terms of s 85(1) – may only be made in respect of alleged breach of Declaration of Rights

 

Prosecutor-General v Telecel Zimbabwe (Pvt) Ltd CC-10-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Gowora, Mavangira & Guvava JJCC, Chiweshe, Makoni & Bhunnu AJJCC concurring) (Judgment delivered 8 October 2015)

 

The applicant had been ordered by the Supreme Court to issue a certificate of nolle prosequi to the respondent in terms of s 16 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant had argued before the Supreme Court that he had a discretion as to whether or not to do so. He did not raise with the Supreme Court the issue of whether the requirement to issue a certificate interfered with the independence of his office, as guaranteed by s 260 of the Constitution*. Dissatisfied with the Supreme Court’s decision, he purported to bring the matter before the Constitutional Court on the issue of whether the requirement to issue the certificate interfered with the independence of his office. His application was purportedly in terms of s 167(1)(a) as read with s 176 of the Constitution. At the hearing, the applicant’s counsel conceded that he had no basis for bringing the matter before the court, and sought to withdraw the application. The respondent sought an order for costs on the higher scale.

Held: (1) All that s 167(1) does is state that the Constitutional Court is the highest (and final) court in all constitutional matters, and that it decides such matters only. The reference in the subsection to “all constitutional matters” refers to matters properly brought before the Constitutional Court in accordance with the Constitution. The subsection does not elaborate as to how or on what conditions a party may approach the court for it to exercise the jurisdiction conferred upon it by that provision. These details are to be found in other provisions of the constitution. Apart from references and applications under s 131(8)(b) and para 9(2) of the Fifth Schedule (which were not applicable here), the subsection does not confer on anyone the right to approach the Constitutional Court directly, even if they have, or perceive themselves to have, a constitutional matter needing the court’s determination. Section 167(1) must be read in conjunction with the various provisions that do confer a right to approach the constitutional court directly or indirectly through another process. Section 176 is not one of such provisions.

(2) Direct applications to the Constitutional Court are to be made only in terms of the provisions referred to above, as well as in terms of and as provided for in s 85(1). The relief sought and to be granted by the court in terms of s 85(1) must relate to fundamental rights and freedoms enshrined in the relevant Chapter, and nothing else. Such relief may include a declaration of the rights said to have been or about to be violated. The applicant did not allege that the right he alleges was violated by the Supreme Court was an enshrined fundamental right.

(3) Section 176 gives the Constitutional Court inherent powers inherent power to protect and regulate its own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of the Constitution, but does not vest the court with the power to arrogate to itself jurisdictional authority that reaches outside and beyond the limits imposed in the Constitution.

(4) The present application was neither a referral by the Supreme Court in terms of s 175(4), nor an appeal, as no constitutional issue was raised or determined in the Supreme Court. This matter was really an appeal brought under the guise of an application.

(5) The application was indeed not brought properly before the court, and further, it purported to be an application when in reality it was meant to be an appeal against a final order of the Supreme Court. The applicant engaged counsel and must have instructed him on the nature of the application to place before the court. The respondent was put to the unnecessary cost of preparing opposing papers to the application, and appearing before the court for the hearing. In the light of this, an order of costs on the higher scale was justified.

 

*See Telecel Zimbabwe (Pvt) Ltd v A-G S-1-14 (reported in 2014 (1) ZLR 47 (S)) – Editor.

 

Constitutional law – Constitution of Zimbabwe 2013 – Constitutional Court – reference of matter to – constitutional question arising in lower court – question may only be referred to Constitutional Court by lower court – grounds on which lower court may refuse to refer question – not open to party to bring matter directly to Constitutional Court except in limited circumstances

 

Chihava & Anor v Mapfumo NO & Anor CC-6-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi, Garwe, Gowora, Hlatshwayo & Guvava JJCC & Chiweshe AJCC concurring) (Judgment delivered 15 July 2015)

 

The applicants were the subject of criminal proceedings in the magistrates court. They complained that certain of their rights under s 70(1) of the Constitution (which sets out the rights of accused persons) had been breached and sought an order that the proceedings be quashed and a trial de novo ordered. The matter was placed before the Constitutional Court directly, the applicants taking advantage of a postponement, granted by consent in the magistrates court, to do so. The respondents took the point in limine that the applicants were not properly before the court, and that they should have approached the court through a referral of the matter to it by the lower court in terms of s 175(4) of the Constitution. The applicants argued that under s 85(1) any person acting in his own interest is entitled to approach “a court” alleging that a fundamental right enshrined in the Constitution had been breached. The Constitutional Court being “a court”, there was no restriction on approaching that court directly.

Under s 24(1) of the old Constitution, a person alleging a breach of his constitutional rights could approach the Supreme Court directly for redress. However, under s 24(2) and (3), if a constitutional issue arose in a lower court, it had to be referred to the Supreme Court by the lower court, and not directly. The only grounds on which the lower court could refuse to refer the matter was if it considered the raising of the constitutional question to be frivolous and vexatious. While a litigant could approach the Supreme Court directly if the lower court denied the application on other grounds, initially an application for referral had to be made to the lower court. Section 175(4) of the present Constitution is an exact replica of s 24(2) of the old Constitution, but there is no equivalent in the present Constitution to s 24(1) or 24(3) of the old Constitution.

Held: (1) it was possible to interpret the new Constitution as evincing an intention by the legislature to remove any bar that an applicant under s 24(1) might have confronted, arising from the fact that the issue arose in proceedings in a lower court, and that the options for redress that were open to an applicant envisaged in the old ss 24(2) (now s 175 (4)) and 24(3) had been widened. Whether this was correct could only answered on a proper consideration of relevant rules governing the interpretation of statutes generally and of the constitution in particular. In this respect, it is pertinent to note that a constitution is itself a statute of Parliament. Therefore, any rules of interpretation that are regarded as having particular relevance in relation to constitutional interpretation, can only be additional to the general rules governing the interpretation of statutes.

(2) The general rules could be summarized thus: (a) the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment; (b) therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but also to their practical effect. (c) In this respect, (i) the words in question must be capable of an interpretation that is “consistent” with the rest of the instrument in which the words appear; (ii) the state of the law in place before the enactment in question is a useful aid in ascertaining the legislative purpose and intention, and (iii) where an earlier and a later enactment (or provision) deal with the same subject matter, then, in the case of uncertainty, the two should be interpreted in such a way that there is mutual consistency. In addition, in interpreting the rights provisions in a constitution, the interpreter should follow the submitted triple synthesis of literalism, intentionalism and purposiveness principle, as is done in the interpretation of any other statute. The court should give a generous and purposive construction to the constitution’s provisions, particularly the entrenched fundamental rights and freedoms. In this process, the purpose of the provision in question is to be given particular attention.

(3) Applying these principles to the present situation, there was no gainsaying the fact that a literal and grammatical meaning ascribed to s 85(1) would be inconsistent with s 175(4). Such meaning would give room to litigants in proceedings under way in a lower court to abandon such proceedings midstream and without any ceremony, in order to approach the Constitutional Court directly in terms of that section. Such a meaning would thus introduce an absurdity and possible chaos to a process that, in terms of the more expansive s 24 of the old Constitution, was free of such anomalies. The purpose of the old s 24 was to inject order and certainty into the process by which constitutional issues arising during proceedings before the lower courts were referred to the Supreme Court: “order” in the sense that the lower court had the opportunity to call and hear evidence on, and consider, the issue so as to determine whether or not it was frivolous or vexatious. Only if it was not did the court refer the issue to the Supreme Court. Through this process, the Supreme Court was shielded from a situation where frivolous and undeserving cases might have been directly brought to it. The effect of the referral would be a formal deferment of the proceedings in the lower court, pending determination of the constitutional issues referred to it. More importantly, the risk of parallel proceedings being pursued in the constitutional and the lower courts, on different aspects of the same case but based on the same facts, was obviated.

(4) The present case was an example of the absurdity that could arise through a literal construction of s 85(1). There was nothing to show that the lower court was made aware of the approach to the Constitutional Court. Evidence should have been led in the lower court to enable the magistrate to determine whether to refer the matter, evidence that might enable the Constitutional Court to properly determine the matter. There could be no doubt that the certainty and order referred to above would be completely eroded were the courts to operate on the basis of a literal and grammatical interpretation of s 85(1). This circumstance is not only highly undesirable, but it would also constitute an affront to the time honoured common law principle that a superior court should be slow to intervene in ongoing proceedings in an inferior court, except in exceptional circumstances. It was not the intention of the legislature to oust a procedural regime that ensured order and certainty in the administration of justice in the courts, and to introduce, in its place, one that would result in absurdity, disorder and ambiguity. Clearly, the anomalies that would flow from a literal meaning of s 85(1) (a) could not have been intended by the legislature.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – enforcement of rights – may be subject to time limitations

 

Ngoni v Min of Home Affairs & Ors HH-658-15 (Tsanga J) (Judgment delivered 29 July 2015)

 

See below, under POLICE (Actions against).

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to equal protection of the law (s 56) – right to fair, speedy and public hearing (s 69(2)) – right to fair trial (s 86(3)(e)) – such rights not breached by provisional sentence procedure

Constitutional law – Constitution of Zimbabwe 2013 – determination of constitutional issue – High Court having right to determine any constitutional issue other than those reserved for determination by Constitutional Court – no requirement for High Court to consider whether raising of issue is frivolous or vexatious – entitled to determine matter on merits

Tetrad Invstm Bank Ltd v Largedata Entprs (Pvt) Ltd HH-730-15 (Chigumba J) (Judgment delivered 17 September 2015)

 

The High Court has its own constitutional jurisdiction, which it exercises subject to confirmation by the Constitutional Court of any declaration of constitutional invalidity of an Act of Parliament. Litigants should be cognizant of the fact that the High Court has its own jurisdiction to declare a statutory provision to be ultra vires the Constitution. It is not every case of alleged constitutional invalidity of a statute which must be referred to the Constitutional Court for determination. Section 167(2) of the Constitution sets out clearly those issues that only the Constitutional Court has exclusive jurisdiction over.

It is not necessary for the High Court to consider whether a constitutional question that has arisen before it is frivolous or vexatious before dealing with the question on its merits. It is only in contemplation of referral of a constitutional matter to the Constitutional Court that it becomes mandatory that there be a consideration, by the court in which the question will have arisen, of the frivolity or vexatiousness of the question that will have arisen.

The parties in this case agreed to the matter being disposed of as a stated case, the issue being whether the provisional sentence procedure provided for in Order 4 of the High Court Rules 1971 breached the defendant’s right under s 69(2) of the Constitution to a fair, speedy and public hearing within a reasonable time before an independent and impartial court, tribunal or other forum established by law, as well as the right under s 86(3)(e) to a fair trial.

Held: provisional sentence is a special procedure which is designed to give a plaintiff with a liquid document and prima facie proof of its claim a speedy judgment without the expense and delay that an ordinary trial action entails. The essence of the procedure is that it provides a creditor, who is armed with sufficient documentary proof, with a quick remedy for the recovery of money due to him without resorting to the expensive, cumbersome and often dilatory machinery of an illiquid action. The key elements of this constitutional provision are that one must be afforded a hearing, which is fair, and quick. Rule 21 provides that a debtor be allowed to appear on the set down date in order to acknowledge or deny the signature to the liquid document or the validity of the claim. Rule 25(1) provides that a defendant may file a notice of opposition together with supporting affidavits, prior to the date of the hearing. On the date of the hearing, the plaintiff bears the onus, which must be discharged on a balance of probabilities, to prove that an authentic liquid document exists. The defendant bears the onus of convincing the court that the balance of probabilities does not support the plaintiff’s claim. This is the very cornerstone of the constitutionally guaranteed right to a fair hearing, with the emphasis being on fairness, which implies a strict adherence to the audi alterem partem rule, the right to be heard. The defendant has two opportunities to be heard in terms of the provisional sentence procedure: (a) on the date of the hearing of the application for provisional sentence, where it may appear in person to confirm or deny its signature on the liquid document; and (b) he may enter appearance to defend within one month after any attachment pursuant to a writ issued as a result of provisional sentence, or, where there is no attachment, within one month of having satisfied the judgment.

Order 4 of the Rules provides the debtor with the right to file opposing papers, the right to appear in court even without having filed papers, the right to file heads of argument and the right to argue the matter. The defendant’s right to a fair trial within a reasonable time is not abrogated by the summary nature of provisional sentence because there is a right to enter appearance to defend and to have the matter determined on the merits. The reasonableness of the time is related to the nature of the issues to be determined. If a litigant owes and has no defence it would contravene the rights of the plaintiff to go through a protracted trial process which may be concluded after a lengthy period. The provisional sentence procedure also allows the defendant the right to insist that the plaintiff give security de restituendo, against payment by the defendant.

The respondent’s contention that the provisional sentence procedure also violates s 56(1) of the Constitution (the right to equal protection of the law) was entirely devoid of merit, for some of the reasons already stated in relation to the right to a fair trial. The law protects both debtors and creditors, as it should, because that is the essence of equality before the law.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to equal protection of the law (s 56(1)) – right to fair trial within reasonable time (s 69(1)) – accused person charged with multiple offences, including murder – State proceeding against accused on lesser charges before indicting him on murder charge – State having valid reasons for proceedings as it did – accused always aware that he faced murder charge – rights not breached – no entitlement to stay of prosecution on grounds of abuse of process

 

S v Mashayamombe HH-596-15 (Zhou J) (Judgment delivered 2 July 2015)

 

The applicant had been placed on remand on charges of escaping from lawful custody, unlawful entry, theft of a motor vehicle, rape and murder. He had been in custody, from which he escaped. He gained unlawful entry into the premises of the deceased. He raped the deceased, and then, it was alleged, murdered her. After murdering the deceased, the accused stole the deceased’s motor vehicle which he drove from the deceased’s premises.

He was tried before a provincial magistrate on the first two charges; he pleaded guilty and was sentenced to a term of imprisonment. Two months later he was tried before a regional magistrate on the charges of theft of a motor vehicle and rape. Again, he pleaded guilty and was sentenced to lengthy periods of imprisonment.

He was then indicted for trial before the High Court on the murder charge. His counsel applied for a permanent stay of proceedings on the grounds that the manner in which the charges against him were instituted contravened his rights as enshrined in s 56(1) and s 69(1) of the Constitution of Zimbabwe 2013. These provisions respectively give the right to equal protection and benefit of the law and the right to a fair and public trial within a reasonable time before an independent and impartial court. It was argued that that a single transaction underpinned all the charges, yet the State started by prosecuting him on the least serious of the charges, and had now indicted him for the most serious of them, murder. That approach was immoral and calculated to, and did, prejudice the applicant and so rendered the proceedings before the High Court unfair.

Held: (1) a stay of criminal proceedings could be granted where there is an unreasonable delay in the prosecution of a matter or where, in the circumstances of a case, it is not possible for an accused to be guaranteed a fair trial by reason of some other factors, such as abuse of criminal procedure, where criminal proceedings are instituted to achieve a purpose other than that which they are by law designed to achieve. An abuse of process application should only be granted on an exceptional basis. It is a measure of last resort, to be adopted where all other possible measures have been exhausted. The abuse of process doctrine is ordinarily concerned with serious prosecutorial misconduct or with serious breaches of the rights of an accused by state authorities. It is undesirable to join in the same indictment a murder count and other offences, except where it is convenient because the facts arise out of one course of conduct. In this instant case the facts did not arise out of one course of conduct. While the offences were committed by one person, each offence was distinct with its own elements separate from the others.

(2) The equality provision enshrined in s 56(1) should be given broad, substantive content in order to ensure that substantive rather than merely formal equality is realised. To that end, equality before the law should entail entitling everyone to equal treatment by courts of law or equality in the legal process. The section protects against arbitrary and irrational State action. The impact of the State action must be considered in the assessment of whether the equality provision was contravened, but if the State has a defensible purpose, together with reasons for its actions that bear some relationship to the stated purpose, then the action cannot be irrational.

(3) As regards the right to a fair trial protected in s 69(1), the fairness of the trial must be judged by reference to the specific instances of fairness given in s 70(1) to (5), as well as other notions of fairness and justice which are not necessarily listed in that section. Those other notions of fairness and justice must reflect the normative value system upon which our constitutional order is founded. In this case the accused was aware from his initial remand that he was facing allegations of murder in addition to the other offences which he has been convicted of. It is not as if he was misled into thinking that the murder allegations would not be proceeded with once the other charges had been completed. It would be a subversion of justice for him to escape prosecution on the basis that he had already been convicted of lesser charges. The offences were totally different from each other and did not arise from one “transaction”. There was no duplication of charges.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of Rights – right to fair trial (s 69(1)) – criminal trial – trial judge descending into arena – extent to which he did so violating accused’s right to fair trial

 

S v Konson CC-7-15 (Gowora JCC, Chidyausiku CJ, Malaba DCJ, Gwaunza JCC, Garwe JCC, Hlatswayo JCC,

Patel JCC, Guvava JCC & Mavangira AJCC concurring) (Judgment delivered 22 July 2015)

 

The applicant was convicted of murder in the High court and sentenced to death. In his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial, as guaranteed under s 69(1) of the Constitution, by the extent to which the trial judge had descended into the arena. It was alleged that the record of proceedings showed that the court was not impartial. It is argued the questioning of the applicant by the trial judge was such that, because of its frequency, length, timing, form, tone, content, it was apparent that the trial judge was hostile to the applicant. The trial judge asked more questions of the applicant during cross-examination and re-examination than did the prosecutor.

Held: The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one, as his task is to see that justice is not only done, but that it is seen to be done. In this exercise he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person but such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a predisposition on the part of the judge. The judge should neither lead nor cross-examine a witness. He should so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused.

In this case, the inescapable conclusion that emerged from the record is that the judge descended into the arena and as a consequence he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had prejudged the issues of the trial that was before him. In view of the stance assumed by the trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial. His right to a fair hearing was clearly violated. The proceedings would be set aside and a trial de novo before another judge would be ordered.

 

Editor’s note: at the re-trial, the applicant was convicted and sentenced to 25 years’ imprisonment. See S v Konson HB-18-16.

 

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of rights – rights of accused persons – right of appeal against conviction (s 70(5)) – allows police officer to appeal from ruling of Commissioner-General to the High Court

 

Sadengu v Board President & Anor HH-712-15 (Dube J) (judgment delivered 26 August 2015)

 

See below, under POLICE (Discipline – trial of member by single officer).

 

Constitutional law – Constitution of Zimbabwe 2013 – Declaration of rights – rights of accused persons – right of appeal against conviction (s 70(5)) – does not confer right of appeal where an Act of Parliament does not provide for it

 

Tamanikwa v Board President & Anor HH-676-15 (Mathonsi J) (Judgment delivered August 5 2015)

 

See below, under POLICE (Discipline – trial of member by single officer).

 

 

Constitutional law — interpretation of Constitution – general rules relating to interpretation of statutes applicable – additional considerations in interpreting rights provisions in Constitution

 

Chihava & Anor v Mapfumo NO & Anor CC-6-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi, Garwe, Gowora, Hlatshwayo & Guvava JJCC & Chiweshe AJCC concurring) (Judgment delivered 15 July 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).

 

 

Contract – formation – quasi-mutual consent – what must be shown – failure by one party to respond to proposal by other to alter terms of existing suretyship agreement – not an indication of assent to proposal

 

KHM Société Anonyme v G Mobile (Pvt) Ltd & Ors HH-785-15 HH-785-16 (Mathonsi J) (Judgment delivered 7 October 2016)

 

The third defendant entered into a deed of suretyship in respect of a loan granted by the plaintiff to the first defendant. He was at the time a director and shareholder of the first defendant though later he resigned as director and relinquished his shareholding. Another director was appointed in his place. In the deed, he renounced all the usual benefits and exceptions and specifically agreed that he could only be released by a written release signed by the plaintiff. When the first defendant failed to service the loan, the defendants were sued. A deed of settlement was reached between the plaintiff and the first and second defendants, which reduced the debt slightly, but the first and second defendants thereafter defaulted and action was brought against the third defendant. He claimed that the plaintiff did not have a cause of action against him because he had signed the deed of suretyship in his capacity as a director of the first defendant. He had since retired from that position, as a result of which the suretyship had expired. He also submitted further that, upon retiring, he had made a proposal to the plaintiff that the person who was taking over directorship from him be substituted as surety in his place. A notice to that effect was given to the plaintiff, which was asked in correspondence to sign a deed of cancellation. The plaintiff did not respond to such correspondence. By its silence, the third defendant argued, the plaintiff acquiesced to the release of the third defendant as surety. It was argued that this was a case of quasi-mutual assent.

Held: reliance on that doctrine was misplaced. Quasi-mutual assent would not set in simply because the parties did not enter into a new agreement. A creditor holding on to the security of a suretyship does not lose that security merely because the surety, in a bid to be released, sends a proposal, complete with a deed of cancellation of the suretyship demanding his release and the substitution of a third party not approved by the creditor, which the creditor does not respond to. The liability of the third defendant as surety and co-principal debtor was premised, not on his position as director of the first defendant, but upon the deed of suretyship that he signed. It was that written document which became the true memorial of the relationship between the parties and not some other issues, imagined or real, not recorded therein.

 

 

Contract – breach – remedies – specific performance – discretion vesting in court – compliance with order for specific performance not possible – such order should not be issued

 

Contract – validity – agreement to contract in the future – not enforceable – cannot be treated as substantive contract – contract in breach of statutory provision – such contract void

 

Hativagone & Anor v CAG Farms (Pvt) Ltd & Anor S-42-15 (Gowora JA, Garwe & Patel JJA concurring) (Judgment delivered 16 July 2015)

 

The appellants were owners of a farm. The first respondent had made a written “final offer” to the appellants for the acquisition of the farm. The appellants accepted the offer and the parties then drew up an “irrevocable memorandum of understanding” (MOU) in relation to the farm. The MOU specifically provided that its purpose was to set out the basis upon which the transaction should be concluded and to set out the rights and obligations upon each party leading to the signing of a sale agreement between the parties.

In view of the statutory legal requirement attendant upon the sale of rural land, the appellants immediately made an application to the Ministry of Lands for the issuance of a “certificate of no present interest”. The application was acknowledged and the certificate was issued some time in the same month. In the meantime, in anticipation of the issuance of the certificate, the respondent had prepared a written agreement of sale. However, the agreement was not signed due to alleged unwillingness to co-operate on the part of the appellants. A few months later, the respondent became aware that the farm was being advertised for sale as subdivided plots. Being of the view that a valid sale agreement had been concluded between itself and the appellants, it approached the High Court seeking an order declaring that a valid agreement of sale of the farm had been concluded between the parties and, consequent thereto, an order for specific performance of the sale agreement in its favour. The court a quo found that an agreement of sale had been entered into and it ordered specific performance in favour of the respondent.

The appellant argued that (a) the respondent was not entitled to an order for specific performance because the property had already been subdivided by the time the matter came to court and because there was no valid and binding agreement between the parties; (b) the MOU did not constitute a valid and binding agreement; (c) the offer and acceptance and the MOU were both void ab initio having been entered into before the issue of a certificate of no interest by the Ministry; and (d) the dies induciae of the offer and acceptance and the MOU had lapsed before the parties could sign, so there was no valid and binding agreement between them.

Held: (1) there were two contracts envisaged after the offer for the purchase of the farm was accepted. The first was the MOU itself, which would lay the basis for the conclusion of the agreement of sale of the land, the second was the contract of sale itself. The MOU was a vehicle through which the agreement of sale would be concluded. The MOU specifically provided that a contract would be concluded upon the obtaining of a certificate of no present interest. The sale agreement was to be effected at a later date, subject to the terms and conditions set out in the MOU and, subject also to further negotiations by the parties. The wording of the MOU itself lent support to an interpretation which was only consonant with a finding that the MOU was not the agreement of sale in itself. The sale of the farm had not been concluded by the signing of the MOU.

(2) Agreements akin to the one in casu are not enforceable primarily due to the uncertainty which accompanies such contracts. In agreements to agree in the future, the parties thereto retain a discretion as to whether or not to agree or disagree in the future. The court a quo prematurely found that an agreement of sale had been entered into when both parties agreed that the agreement of sale had not yet been concluded and would only be executed at a later stage.

(3) By the time the application was brought to the High Court, the MOU had expired and there were no rights arising from the MOU which could be enforced by any of the parties. The respondent had no cause of action.

(4) In terms of s 3 of the Land Acquisition (Disposal of Rural Land) Regulations (SI 287 of 1999) a holder of rural land cannot sell such land to any other person without having approached the State to exercise its statutory right of first refusal. If the State is not interested in the land, the relevant Minister will issue a certificate of no present interest and only then may a party proceed to enter into an agreement of sale with any other party. A seller has no discretion and must comply with the statutory condition. Where a contract is proscribed by statute, it is invalid and non-compliance with the condition invalidates the whole contract. The “agreement” which the court a quo found to exist between the parties was illegal. A sale of rural land before the relevant Minister has expressed his disinclination to buy the same is prohibited. It is, in addition, an established principle of the law of contract that an agreement of sale that is subject to the fulfilment of a condition precedent that has not been fulfilled is not a valid sale.

(4) A whole piece of land is a different entity to subdivided portions of the same. The subdivision of land is not a matter of form, it is one of substance. Once the appellants obtained a subdivision permit in respect of the farm, the merx as it originally stood and offered to the respondent had ceased to exist. The grant of an order of specific performance is discretionary. The principle lex non cogit ad impossibilia states that specific performance should never be ordered if compliance with the order would be impossible, as it would be here.

 

Editor’s note: decision of Dube J in CAG Farms (Pvt) Ltd v Hativagone & Ors HH-157-14 (delivered 2 April 2014) reversed. See the summaries for 2014(1) for a summary of that judgment.

 

 

Costs – de bonis propriis – against legal practitioner – making application knowing it was inappropriate and obtaining judgment by misrepresentation

 

Mashingaidze v Chipunza & Ors HH-688-15 (Chitakunye J) (Judgment delivered 6 August 2015)

 

See below, under PRACTICE AND PROCEDURE (Default judgment – rescission)

 

 

Costs – higher scale – misconceived litigation – constitutional appeal brought in guise of an application – respondent put to unnecessary expense – costs on higher scale justified

 

Prosecutor-General v Telecel Zimbabwe (Pvt) Ltd CC-10-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Gowora, Mavangira & Guvava JJCC, Chiweshe, Makoni & Bhunnu AJJCC concurring) (Judgment delivered 8 October 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court – reference of cases to).

 

 

Court – Constitutional Court – appeal to – from decision of Supreme Court – no right of appeal existing unless Supreme Court has made decision on a constitutional matter

 

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (2) CC-8-15 (Ziyambi JCC) (Judgment delivered 1 August 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).

 

 

Court – High Court – jurisdiction – appellate jurisdiction from inferior tribunals – decision of Commissioner-General of Police dismissing appeal of member of police force convicted by a single officer – appeal lying to High Court against such decision

 

Sadengu v Board President & Anor HH-712-15 (Dube J) (judgment delivered 26 August 2015)

 

See below, under POLICE (Discipline – trial of member by single officer).

 

 

Court – High Court – jurisdiction – appellate jurisdiction from inferior tribunals – decision of Commissioner-General of Police dismissing appeal of member of police force convicted by a single officer – no appeal lying to High Court against such decision

 

Tamanikwa v OIC ZRP Beatrice & Ors HH-616-15 (Tagu J) (Judgment delivered 15 July 2015)

 

See below, under POLICE (Discipline).

 

 

Court – High Court – jurisdiction – constitutional – High Court’s jurisdiction to determine any constitutional issue other than those reserved for Constitutional Court

Tetrad Invstm Bank Ltd v Largedata Entprs (Pvt) Ltd HH-730-15 (Chigumba J) (Judgment delivered 17 September 2015)

 

See above, under CONSTITUTIONAL LAW (Constitutional of Zimbabwe 2013 – Declaration of Rights – right to fair trial).

 

Court – High Court – jurisdiction – extraterritorial – rape committed outside Zimbabwe – has harmful effects in Zimbabwe – court has jurisdiction

 

S v Matunga HH-706-15 (Tagu J) (Judgment delivered 19 August 2015)

 

An application for bail pending appeal was instituted by a man who had been convicted of rape and sentenced to 18 years by the regional court. The rape had taken place in South Africa, but had only been reported to the police in Zimbabwe, where the perpetrator was arrested, tried and convicted. His application for bail pending appeal did not raise the issue of lack of jurisdiction by the Zimbabwean court. The court stated that it was not an issue to be determined by the appeal court, but then proceeded to address it in assessing whether the bail application was likely to succeed.

The court cited s 5 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and concluded that a Zimbabwean court can have jurisdiction over a crime committed wholly outside the country which has produced harmful effect in Zimbabwe; a rape can have harmful effect even if it is committed outside Zimbabwe. There is no justification for rigid adherence to the principles of basing jurisdiction upon the place of impact or intended impact in a global village. The appeal court would not conclude there was lack of jurisdiction. (MN)

 

Editor’s note: On where the “harmful effects” of a crime are felt, see S v Nkomo 2007 (1) ZLR 357 (S) and the cases there cited. Whether “harmful effects” would include, for example, ongoing psychological trauma arising out a rape is yet to be decided by the Supreme Court.

 

 

Court – judicial officer – conduct of trial – manner in which judicial officer should conduct trial – extent to which may question accused person in criminal trial

 

S v Konson CC-7-15 (Gowora JCC, Chidyausiku CJ, Malaba DCJ, Gwaunza JCC, Garwe JCC, Hlatswayo JCC,

Patel JCC, Guvava JCC & Mavangira AJCC concurring) (Judgment delivered 22 July 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right to a fair trial).

 

 

Court – judicial officer – duties – to create environment conducive to fairness and to be seen to uphold rights of accused person – duty to guard against excesses of power and abuse of judicial authority

 

Mukwemu v Sanyatwe NO & Anor HH-765-15 (Mathonsi J) (Judgment delivered 23 September 2015; reasons furnished 30 September)

 

The applicant urgently sought a stay of the criminal proceedings brought against him in the magistrates court. He had enlisted the services of a legal practitioner to represent him, but the practitioner could not appear on the date on which the trial had been set down and sent an associate to appear and apply for a postponement. The magistrate would have none of it. Although the associate had been recalled from leave to do make the application and had no prior knowledge of the case, the magistrate dismissed the application for a postponement and directed that the trial commence immediately. He would not hear of a referral of the matter to the Constitutional Court on the ground that the applicant’s right to a fair trial and to be represented by a legal practitioner of his choice was being violated. The trial began and at the end of the day it was remanded to until a week later for continuation of trial, a date unilaterally set by the magistrate. The lead counsel could not appear on that date either and sent his associate back to the court. There he made another bid to have the matter referred to the Constitutional Court on the same grounds as before. He also made an application for the magistrate to recuse himself on suspicion of bias. The magistrate not only dismissed the application, but also ordered the practitioner’s immediate arrest for contempt of court even as the legal practitioner was busy addressing the court. The practitioner was handcuffed by a prison officer and detained until his release at lunch time. The applicant launched an application for review, which application was still pending. He requested the magistrate to defer the trial until the review application had been determined. The magistrate nonetheless set a date for resumption, so the applicant launched the present application.

Held: (1) A judicial officer must create an environment in his court which is not only conducive to fairness, a fair trial and justice, but also be seen to be upholding the rights of accused persons. In his court, justice must not only be done, it must also be seen to be done. Where legal practitioners performing their duties of representing accused persons in court, no matter how tenacious they are in the pursuit of their client’s rights, are arrested while sheltering under court privilege, then all pretensions at fairness are thrown out through the window. In fact, the whole process of the administration of justice is turned into a mockery and in its place is substituted the law of the jungle, that only might prevails. A judicial officer must always guard against the excesses of power, against the abuse of judicial authority to settle personal scores.

(2) We live in a tolerant society that recognises the constitutional right of accused persons to be represented by counsel of their choice in defence of criminal charges. There should never come a time when the business of representing others becomes a hazardous exercise because a legal practitioner may be dragged away from the bar at the whim of a judicial officer while conducting a defence. We must be able to draw the line somewhere and say: this cannot be done.

(3) The dispassionate manner in which a judicial officer is supposed to conduct proceedings was missing in this matter. In fact, the magistrate appeared determined to try the applicant without further ado and would pull out all the stops to achieve that, as if an accused person has no rights at all and as if life itself depends on the trial proceeding. There had been no delay whatsoever and as such one wonders what informs the decision of the judicial officer to proceed with the trial with indecent haste at the expense of justice and fairness. A stay would be granted pending the determination of the review proceedings.

 

 

 

Court – judicial officer – functus officio – matter previously disposed of – requirements – need for cause of action and relief sought to be the same

 

Golden Reef Mining (Pvt) Ltd & Anor v Mnyiya Consulting Engrs (Pty) Ltd & Ors HH-722-15 (Mangota J) (Judgment delivered 7 September 2015)

 

See below, under PRACTICE AND PROCEDURE (Execution – stay of).

 

 

Court – judicial officer – impartiality – duty of – meaning of impartiality – recusal – apprehension of bias – must be based on reasonable grounds – circumstances must be such that a reasonable person would apprehend bias

 

Zhou v Katiyo NO & Anor HH-774-15 (Hungwe J) (Judgment delivered 22 September 2015)

 

When faced with an application for recusal, a judicial officer must consider and weigh up two important obligations; namely the duty to hear every case that comes before him or her and the duty to apply the law impartially, without fear, favour or prejudice. Impartiality does not require the magistrate to be neutral; rather, it is a state of mind in which the magistrate is disinterested in the result and is open to persuasions by the evidence and submissions. It is that quality of open-minded readiness to persuasion – without unfitting adherence to either party or to the judge’s own predictions, preconceptions and personal views – that is the keystone of a civilised system of adjudication. In contrast, bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to the issues. The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or would not bring an impartial mind to bear upon the adjudication of the case, that is, a mind open to persuasion by the evidence and submissions of counsel. The perception of bias must be reasonable in two respects: (a) the perception must be reasonable: it must be based on reasonable grounds and there must be a reasonable apprehension that the judicial officer will be biased; an apprehension that the judicial officer may be biased is not sufficient. (b) In addition, the person apprehending the bias must be a reasonable and objective person in the position of the litigant who is informed of the facts.

 

 

Court – jurisdiction – peregrinus – how jurisdiction may be established – options open to court

 

Bulgargeomin Ltd v Govt of Bulgaria & Ors HH-732-15 (Chigumba J) (Judgment delivered 17 September 2015)

 

See below, under PROPERTY AND REAL RIGHTS (Ownership – acquisition).

 

 

Court – jurisdiction – peregrinus – need for defendant to be present or have property within the jurisdiction – not necessary to arrest such person or attach property – jurisdiction may be founded by issuance of process

 

Gwisai v Shamuyedova & Ors HH-623-15 (Uchena J) (Judgment delivered 15 July 2015)

 

Under s 15 of the High Court Act [Chapter 7:06], the court may exercise jurisdiction over a peregrinus (a) founded on or confirmed by the arrest of any person or attachment of any property; (b) who is or which is in Zimbabwe, and (c) can permit or direct the issue of process, for service in or outside Zimbabwe (d) without ordering such arrest or attachment. This means that if the property or person is outside the country it or he cannot be attached or arrested. The absence of a person who can be arrested or property which can be attached to found or confirm jurisdiction is a critical consideration in deciding whether or not the court has jurisdiction and can issue process. The absence of a person who can be arrested or property that can be attached has the effect of defeating the principle of effectiveness, which is central to the issue of whether or not a court has jurisdiction. However, if the court believes that there is a person to be arrested or property to be attached to found or confirm jurisdiction within Zimbabwe, it can grant an application for edictal citation. The issuance of that process will, because of the presence of a person or property to be arrested or attached to found or confirm jurisdiction, itself found or confirm the court’s jurisdiction.

 

Editor’s note: see also Fairdrop (Pvt) Ltd v Capital Bank Corp Ltd & Ors HH-305-14 (a judgment of Mathonsi J, delivered 18 June 2014, contained in the summaries for 2014(1)).

 

 

Court – recusal – grounds for recusal – bias – reasonable grounds for apprehension of bias sufficient – need for a real likelihood of bias to appear – onus on person alleging bias

 

S v Nhire & Anor HH-619-15 (Hungwe J) (Judgment delivered 15 July 2015)

 

The trial magistrate requested a judicial review of a part-heard trial, after the complainant in the matter alleged that the accused person was a friend of or related to the magistrate and that magistrate should recuse himself. Although the magistrate denied the allegation, he nonetheless considered that at the heart of the test for recusal lies the principle that justice should not only be done but be seen to be done; on this basis, justice would not be seen by the complainant to be done if the trial magistrate were not to recuse himself.

Held: All too often judicial officers are faced with allegations of bias, some justified, but most not borne out by the facts. It is important that judicial officers handle this criticism with utmost sensitivity as the perception of bias might, unfortunately, crystalize into fact. Various tests have been proposed, which are to the effect that in considering whether there is a real likelihood of bias, the court does not look at the mind of the judicial officer himself. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit, and if he does sit, his decision cannot stand. Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough; there must be circumstances from which a reasonable man would think it likely or probable that the judicial officer would, or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. The principle enshrined in the authorities is that no reasonable man should, by reason of the situation or action of a judicial officer, have grounds for suspecting that justice will not be administered in an impartial and unbiased manner. A judicial officer should therefore so conduct the trial that his open-mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused.

Two considerations are built in. The first is that in considering the application for recusal, the court as a starting point presumes that judicial officers are impartial in adjudicating disputes. This in-built aspect entails two further consequences. On the one hand, it is the applicant for recusal who bears the onus of rebutting the presumption of judicial impartiality. On the other, the presumption is not easily dislodged. It requires “cogent” or “convincing” evidence to be rebutted. The second in-built aspect of the test is that “absolute neutrality” is something of a chimera in the judicial context. This is because judges are human. They are unavoidably the product of their own life experiences, and the perspective thus derived inevitably and distinctively informs each judge’s performance of his or her judicial duties. But colourless neutrality stands in contrast to judicial impartiality. Impartiality is that quality of open-minded readiness to persuasion – without unfitting adherence to either party, or to the judge’s own predilections, preconceptions and personal views – that is the keystone of a civilised system of adjudication. Impartiality requires, in short, “a mind open to persuasion by the evidence and the submissions of counsel”; and, in contrast to neutrality, this is an absolute requirement in every judicial proceeding.

Courts considering recusal applications asserting a reasonable apprehension of bias must accordingly give consideration to two contending factors. On the one hand, it is vital to the integrity of our courts and the independence of judges and magistrates that ill-founded and misdirected challenges to the composition of a bench be discouraged. On the other, the courts’ very vulnerability serves to underscore the pre-eminent value to be placed on public confidence in impartial adjudication. In striking the correct balance, it is as wrong to yield to a tenuous or frivolous objection as it is to ignore an objection of substance.

 

 

Criminal law – offences under Criminal Law Code – criminal abuse of public office (s 174(1)) – public officer – who is – employee of private company wholly owned by Government – not an employee of the State

 

S v Chikumba HH-724-15 (Mafusire J) (Judgment delivered 9 September 2015)

 

The applicant sought bail pending appeal. This was his second application, the first having been refused. He was the former chief executive officer of Air Zimbabwe, employed by Air Zimbabwe Holdings (Pvt) Ltd. He and another former employee had been convicted of criminal abuse of duty as a public officer, in contravention of s 174(1)(a) of the Criminal Law Code [Chapter 9:23], arising out of insurance contracts which they sought without going through the proper procedures.

The appeal was against conviction and sentence. In respect of the former, the grounds of appeal were essentially factual.

This being a second application, it was necessary, in terms of s 123 of the Criminal Procedure and Evidence Act [Chapter 9:07], to show that there were facts which were not placed before the judge who determined the previous application and which had arisen or been discovered after the determination. The facts relied on were that it was only when counsel had been briefed to give advice on the way forward that it was discovered that the applicant was wrongly convicted, as Air Zimbabwe was not one of the entities envisaged by the Code and that he was not a public officer as defined in s 169, not being a person holding or acting in a paid office in the service of the State, a statutory body or a local authority. This aspect had been completely overlooked by both the prosecution and the defence. It was overlooked in the first bail application. The applicant sought to amend his grounds of appeal by adding these averments to the grounds previously filed.

The State argued that the fact that the applicant’s counsel “discovered” that he was not a public officer was not a discovery. This was a fact that was always in existence right from the beginning. It had never been an issue.

Held: (1) It may be that mere remissness or negligence or lack of diligence in failing to place all relevant facts before the court would not ordinarily amount to new facts, or changed circumstances, where a person, or somebody on his behalf, eventually becomes aware of those facts. If, with the exercise of due diligence, such facts would have been made available, the court should not too readily accept them as new facts amounting to changed circumstances. The test whether in a subsequent bail application there are changed circumstances or not, may be compared to an application for leave to introduce fresh evidence on appeal. The factors to consider should include whether or not the fresh evidence could reasonably lead to a different verdict, and whether there is a reasonable explanation why such facts were not placed before the court. In exceptional cases, relief may be granted if the court is satisfied that a reasonable probability exists that a conviction would not stand if the further evidence were accepted. The court should only decline to receive further evidence where it would not be in the interests of justice to do so. The ultimate determinant therefore is the interests of justice.

(2) If the applicant had been bringing a new bail application purely and solely on the same set of facts as those considered previously, that would have been irregular and in violation of s 123 of the Criminal Procedure and Evidence Act. But he was bringing the second bail application on the basis of a new point which was both a point of fact and a point of law. This point was fundamental to the prospects of success of the applicant’s appeal and was so profound as to strike at the root of the very conviction in respect of which the applicant was serving time.

(3) In an application for bail pending appeal, it is not the function of the judicial officer to satisfy himself beyond any measure of doubt whether or not the grounds of appeal are doomed to fail. If the applicant has some fighting chance on appeal, then, all the other relevant factors being neutral, the applicant must be entitled to relief. The question, then, is not whether the appeal will succeed. The standard is much lower. It is whether the appeal is free from predictable failure.

(4) Air Zimbabwe Holdings and Air Zimbabwe (Private) Limited were private companies formed by shares and registered in terms of the Companies Act [Chapter 24:03]. Air Zimbabwe (Pvt) Ltd was designated as the successor company to the defunct Air Zimbabwe Corporation, which was a statutory body. The Corporation was dissolved. The fact that the Government was a shareholder in the airline did not make it the employer and did not make the applicant a public officer.

 

 

Criminal law – offences under Criminal Law Code – theft of trust property – what constitutes trust property – money paid is deposit on purchase price – not trust property – debtor-creditor relationship only established

S v Mugandani HH-635-15 (Hungwe J) (Judgment delivered 29 July 2015)

Only property held under a deed of trust; or by agreement; or under any enactment; or on terms requiring the holder to hold the property on behalf of another or account for it to another; or hand over the property to a specific person; or deal with it in a particular way, constitutes trust property for the purposes of s 112 of the Criminal Law Code [Chapter 9:23]. Money handed over as a deposit for the purchase of goods is not trust property. In that situation, a debtor-creditor relationship is created. The money paid is a fungible which may be used by the recipient as his own, as long as he acknowledges his debt to the depositor.

 

 

Criminal procedure – bail – pending appeal – principles – should be positive grounds for granting bail – not necessary that exceptional grounds should exist – prospects of success – approach to be taken to – should be arguable or have substance

 

S v Pfumbidzayi HH-726-15 (Zhou J) (Judgment delivered 10 September 2015)

 

Where bail after conviction is sought, the onus is on the applicant to show why justice requires that he should be granted bail. The proper approach is not that bail will be granted in the absence of positive grounds for refusal but that in the absence of positive grounds for granting bail it will be refused. First and foremost, the applicant must show that there is a reasonable prospect of success on appeal. Even where there is a reasonable prospect of success, bail may be refused in serious cases, notwithstanding that there is little danger of the applicant absconding. The court must balance the liberty of the individual and the proper administration of justice and where the applicant has already been tried and sentenced it is for him to tip the balance in his favour. It is also necessary to balance the likelihood of the applicant absconding as against the prospects of success, these two factors being      interconnected because the less likelihood are the prospects of success the more inducement there is to abscond. Where the prospect of success on appeal is weak, the length of the sentence imposed is a factor that weighs against the granting of bail. Conversely, where the likely delay before the appeal can be heard is considerable, the right to liberty favours the granting of bail.

It is not a requirement that “exceptional circumstances” should exist to justify release on bail. What are required are positive grounds to show that bail must be granted.

Where the High Court is faced with an appeal against refusal to grant bail pending appeal, the court will consider whether the magistrates court misdirected itself, having regard to the above principles. The court does not deal with the matter as if it is the court of first instance in an application for bail.

In relation to prospects of success, the High Court is not sitting as the appellate court to consider the appropriateness or otherwise of the conviction and sentence. The approach in assessing the prospects of success is not to ask whether the appeal will or should succeed but whether it is arguable or has substance, in the sense of it not being manifestly doomed to failure. If the appeal is not a predictable failure or the inquiry as to whether it has prospects of success is reached only after what approximates a hearing of the appeal itself then the court must be inclined to conclude that the appeal has prospects of success.

 

 

Criminal procedure – bail – pending appeal – second application – need to show facts which have arisen or been discovered since last application – realisation of point of law striking at root of conviction – may be considered in decision as to whether to grant bail not necessary for judicial officer to consider appeal doomed to failure – appeal must be free from predictable failure

 

S v Chikumba HH-724-15 (Mafusire J) (Judgment delivered 9 September 2015)

 

See above, under CRIMINAL LAW (Offences under Criminal Law Code – criminal abuse of public office)

 

 

 

Criminal procedure – prosecution – stay of – grounds – abuse of process – accused person charged with multiple offences, including murder – State proceeding against accused on lesser charges before indicting him on murder charge – State having valid reasons for proceedings as it did – accused always aware that he faced murder charge – constitutional rights not breached – no entitlement to stay of prosecution on grounds of abuse of process

 

S v Mashayamombe HH-596-15 (Zhou J) (Judgment delivered 2 July 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right to equal protection of the law).

 

 

Criminal procedure – trial – conduct of – role of judicial officer – extent to which judicial officer may question accused person – if fairness of trial undermined, accused’s constitutional right to fair trial may be violated

 

S v Konson CC-7-15 (Gowora JCC, Chidyausiku CJ, Malaba DCJ, Gwaunza JCC, Garwe JCC, Hlatswayo JCC,

Patel JCC, Guvava JCC & Mavangira AJCC concurring) (Judgment delivered 22 July 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Declaration of Rights – right to a fair trial).

 

 

Criminal procedure (sentence) – transfer of case to High Court for sentence – referral of matter to Prosecutor-General by magistrate – need for Prosecutor-General to make his own decision as to what sentence would be appropriate and not rubber-stamp magistrate’s opinion

 

Criminal procedure (sentence) – offences under Criminal Law Code – kidnapping – matters which should be considered – normal factors should be taken into account

 

S v Makunike HH-770-15 (Chigumba J) (Judgment delivered 16 September 2015)

 

The accused was convicted of kidnapping by a senior magistrate. She had pleaded guilty. She admitted to abducting a small boy aged 3-4 years from his parents and taking him to Botswana where he was kept for at least 3 years. Her reason for doing so was that she was barren. Desperate to save her marriage, she stole the minor and presented him to her husband as his biological child borne by her. The magistrate considered that the offence was committed in aggravating circumstances and that a sentence well above his sentencing jurisdiction was appropriate. He referred the record to the Prosecutor-General in terms of s 225 of the Criminal Procedure and Evidence Act [Chapter 9:07]. The Prosecutor-General ordered that the matter be transferred to the High Court for sentence.

Held: (1) before transferring a matter for sentence, the Prosecutor-General has a duty to carefully consider any request by a trial magistrate to have a matter referred to the High Court for a higher penalty. He should consider (a) the relevant provisions of the law in terms of which the accused was charged and convicted; (b) the aggravatory and mitigatory factors; and (c) relevant case law and determine whether if in fact the trial magistrate is correct that a stiffer penalty is appropriate. The Prosecutor-General must decide for himself what the appropriate sentence would be in the circumstances instead of rubber stamping the opinion of the trial magistrate. It is not every case in which a trial magistrate forms the opinion that a stiffer penalty would be more appropriate which must be referred to the High Court for sentencing unless the circumstances of the case, and the law, support such an opinion. A careful analysis of the issues to be taken into consideration in assessing sentence should be undertaken by the Prosecutor-General.

(2) The nature and seriousness of the crime ought to take precedence in awarding punishment. Kidnapping is always a serious offence, since it involves deprivation of liberty, particularly freedom of movement, freedom to be where one wants to be, and so on. Kidnapping for the purpose of rape or ransom has generally attracted stiffer penalties, whereas offenders who have altruistic or other non-violent motives have been treated with leniency. Kidnapping is a serious offence which occasions emotional trauma on the victim and on those left behind who assume the worst and fear that they will never see their loved one again. It is important, however, that the process of sentencing be a rational and objective one and trial magistrates must strive to balance the interests of society and the need to deter other would be offenders. The court must have regard to the rights of the accused to be punished in accordance with the circumstances of the case, and the need to rehabilitate the victim, while appeasing the anger and despair of the victim’s loved ones. Magistrates should not allow their emotions to cloud their judgment as to which sentence is appropriate in the circumstances. Without evidence in the record on the point, it was a misdirection by the magistrate to allude to the current prevalence of kidnappings for ritual purposes. The appropriate sentence here was 4 years’ imprisonment, of which one year would be suspended.

 

 

Criminal procedure (sentence) – suspended sentence – failure by accused to comply with conditions of suspension – actions which court may take – once court has acted, may not revisit decision, even of circumstances have changed

 

S v Chinyemba HH-629-15 (Musakwa J) (Judgment delivered 17 July 2015)

 

In terms of s 358(2) of the Criminal Procedure and Evidence Act [Chapter 9:07] a court may pass sentence in respect of any offence other than in respect of an offence specified in the Eighth Schedule and order the suspension of the operation of the whole or any part of the sentence for any period not exceeding five years on conditions the court may specify in the order. The condition may relate to compensation for pecuniary loss. If, in terms of s 358(4), the accused fulfils the conditions of suspension the suspended sentence shall not be enforced.

In terms of s 358(5), if a magistrate has reason to believe that a condition of any postponement or suspension made in terms of subs (2) has been contravened, he may, whether before or after the expiration of the period of postponement or suspension, order the offender to be brought before the court. The court may commit him to undergo the sentence which may then be or has been lawfully passed or, in its discretion, the reasons for which must be recorded, on good cause shown by the offender, grant a further postponement or suspension, subject to such conditions as might have been imposed at the time of the original postponement or suspension.

Once a magistrate decides to commit an accused person to serve a suspended sentence or to grant a further postponement, he becomes functus officio. He cannot revisit his decision other than in terms of s 201(1), which allows a wrong judgment or sentence to be amended. The correction of a decision cannot be premised on changed circumstances.

 

 

Employment – arbitration – award – registration in magistrates court – notice to other party not required

 

Josam Enterprises (Pvt) Ltd v Svenhe & Anor   HH-714-15 (Dube J) (Judgment delivered 26 August 2015)

 

The respondent was the former employee of the applicant. Following arbitration of a labour dispute, the respondent registered the award made with the magistrates court in 2014. In 2015 the applicant’s property was attached. In June 2015 the applicant secured a rule nisi for a stay of execution, but confirmation was refused in July. The applicant then filed this application with the High Court for a stay of execution and simultaneously filed an application for review. Its argument was based on the fact that the award should not have been registered without an application for notice to the other party, thus giving an opportunity for a challenge to be made. The issuing of the writ of execution was irregular since the registration was irregular. The respondent argued that the award was registered under the Labour Act [Chapter 28:01], not the Arbitration Act [Chapter 7:15], and hence notice to the other party was not required for registration.

Held: s 98(14) of the Labour Act makes it clear that an arbitral award can be registered in the magistrates court without giving notice to the other party; no procedure is outlined as registration is a purely administrative process. Article 35 of the First Schedule to the Arbitration Act, which provides for a notice to the other party on registration, covers registration in the High Court only and Articles 34 and 36 of the Act do not apply to labour disputes. Hence no review would find any irregularity. The balance of convenience favoured the respondent and the application to stay execution was denied. (MN)

 

Employment – collective bargaining agreement – interpretation of – need to read agreement as a whole – salary increases to be “based on” inflation rate – other factors not to be considered – inflation rate not merely a starting point for wage negotiations

 

Banking Employers’ Assn of Zimbabwe v Zimbabwe Bank & Allied Workers’ Union S-34-15 (Guvava JA, Ziyambi & Garwe JJA concurring) (Judgment delivered 9 July 2015)

 

The appellant was the employers’ association for the banking industry, while the respondent was the union which represented the workers for that industry. Following protracted negotiations, they signed an agreement which was later reduced into a Collective Bargaining Agreement (published as SI 150 of 2013). It was agreed that the CBA resolved the dispute over salaries then pending in the Labour Court and that the parties withdrew all pending disputes relating to salary reviews. The clause dealing with salary reviews stated that the parties had agreed to “base salary reviews on year-on-year inflation figures prevailing at the relevant time”, and stipulated the source of such figures. A later clause (clause 9) provided that “the issue of actual(s) will be dealt with by individual institutions”.

A disagreement about how to interpret the Agreement led to the matter being referred to arbitration. The appellant’s stand was that any salary increment which would be in line with the inflation figures for that year (4.9%) in order to stop any further disputes, while the respondent was of the view that the inflation figure would form the starting point of any future negotiations that they would have with the employer. The union’s demand was for 23.5%. The arbitrator awarded a 10% increase, and this was upheld by the Labour Court, which held that the inflation figure was a starting point, not the end point and that the arbitrator was not bound by it.

Held: In order to give a proper interpretation to the intention of the parties, it was incumbent upon the lower court to examine the whole agreement and not just to rely on a single word. The decision to award a 10% salary increase completely defeated the intention of the parties in coming up with a formula to implement future salary increments. If the parties had intended to introduce other factors in determining future salary reviews, they would have said so in no uncertain terms. The fact that they agreed on a unitary yardstick to determine future salary reviews meant that they had no intention of introducing other factors, which would introduce uncertainty in the determination of their salary reviews. Having regard to the wording of the CBA, an interpretation which would include other factors, such as cost of living, the prevailing wage and the take home pay, would be doing violence to the ordinary grammatical meaning of the word “base” and would be clearly out of context with the other provisions of the agreement. There was no basis for the figure of 10%, which was a “thumb suck”. A proper reading of clause 9 was that individual institutions which were performing better than the others financially and were in a position to pay a salary increment higher than the one agreed to by the appellant and the respondent could do so. Workers who had evidence that their institution were performing better than the others could then negotiate with their employers for a salary increment which was higher than the basic inflation rate.

 

 

Employment – collective bargaining agreements – who may be parties thereto – what may be included in such agreements – benefits not included in agreement cannot be imposed by arbitrator or court – dispute relating to interest only – arbitrator’s role merely conciliatory

 

NRZ v Zimbabwe Rlys Artisans Union & Ors S-46-15 (Ziyambi JA, Gwaunza & Guvava JJA concurring) (Judgment delivered 27 July 2015)

 

Collective bargaining agreements are governed by Part X of the Labour Act [Chapter 28:01. They are to be negotiated by the parties mentioned therein: registered trade unions, employers and employers’ organizations or federations thereof. They may relate to any conditions of employment which are of mutual interest to the parties thereto, including any or all of the items listed in s 74(3) of the Act. Among these items are benefits for employees and housing and transport facilities or, in their absence, an allowance for the same. The statute does not confer a right on any of the parties, without agreement of the others, to have included in their collective bargaining agreement any of the subjects on the list, because a collective bargaining agreement is a contract between the parties to it and only they can set the terms by which they will be bound. It follows that any benefits to be included in the collective bargaining agreement must be agreed by the parties. They cannot be imposed by an arbitrator, or indeed any court, in the same way that a court cannot write a contract for the parties.

Allowances, not having been negotiated by the parties and therefore not forming part of their collective bargaining agreement, are not a right or entitlement available for appropriation by the employees. This would be a matter for the parties to bargain and reach agreement on. It is not a matter where a court could intervene. A court can only intervene to enforce any agreement the parties have concluded.

Under s 93(1) of the Act, a labour officer to whom a dispute or unfair labour practice has been referred, or to whose attention it has come, is required to attempt to settle it through conciliation or, if agreed by the parties, by reference to arbitration. However, where there is no legal right which is being sought to be enforced, the dispute being one of interest only, the arbitrator’s role in such circumstances would merely be a conciliatory one.

 

 

Employment – dismissal – constructive – what must be shown – requirement for employee to act promptly – failure to do so indicating election to continue in employment – employee – transfer of to another town – employer’s right to transfer employees – need for employee to show good cause why should not be transferred

 

Rainbow Tourism Group v Nkomo S-47-15 (Ziyambi JA, Garwe & Hlatshwayo JJA concurring) (Judgment delivered 27 July 2015)

 

The respondent was “head hunted” by the appellant and appointed as general manager of the appellant’s leading hotel in Harare. He was initially appointed, at the beginning of 2011, for a three month probationary period; the letter of appointment stated that he would then be on a 5 year “executive employment” contract, which was to be negotiated. In the event, this contract was never negotiated and the respondent became an employee on a contract without limit of time. Within the first year of his employment, an audit team reported violations of the respondent’s motor vehicle loan scheme and other irregularities. When tasked with these, the respondent did not reply directly, but complained about his conditions of services. Nonetheless, he continued in service, but in August 2012 the appellant expressed its dissatisfaction with the respondent’s performance, as the hotel was running at a loss instead of the expected profit.

Despite the concerns expressed, the situation did not change, and the appellant told the respondent in late November 2012 that it proposed to transfer him to a hotel at Victoria Falls, at the same salary and remuneration, to expose him to the operation of a resort hotel. The following day, the respondent’s legal practitioners wrote to the appellant, saying that the respondent had been specifically appointed as general manager of the hotel in Harare and that no provision was made therein for transfer within the group. In addition the appellant, it was alleged, was aware that the respondent’s wife required specialist medical care and facilities which were not available in Victoria Falls. Accordingly, the respondent could not accept the transfer. The appellant replied that its assessment of the business was such that there was need for the transfer and that the respondent would be required to transfer on 1 January 2013. Reference was made to the respondent’s conditions of employment which it was said were contained in a booklet referred to the respondent’s letter of appointment.

The respondent lodged a claim of constructive dismissal with a labour officer and the matter was referred to arbitration. He did not report for duty on 1 January 2013 and the appellant notified the respondent of a disciplinary hearing for being absent without leave for 5 days or more. His legal practitioners said that he had ceased to be an employee because he was constructively dismissed, and the respondent did not attend the hearing. At the hearing, the respondent was found guilty of misconduct and invited to tender submissions in mitigation. The arbitration hearing took place subsequently, and the arbitrator ordered the respondent’s reinstatement. The Labour Court upheld the arbitrator’s award.

The main issue on appeal to the Supreme Court was whether the respondent was constructively dismissed in terms of s 12B(3) of the Labour Act [Chapter28:01], on the basis that the appellant deliberately made continued employment intolerable for the respondent. The appellant took the stance that the respondent had remained in employment and had drawn a salary up to the end of January 2013, and that like all other executive employees, was bound by the transferability clause in the code of conduct governing the appellant and its employees. The respondent contended that because he was not given the booklet referred to in the letter of appointment, he was not bound by its terms and was not transferable.

Held: (1) the letter of transfer stated in clear terms why the respondent was being transferred. In view of the respondent’s failings, the appellant might have been justified in terminating the employment contract on notice, but chose transfer instead. There being no reduction of benefits, there was nothing to make the respondent’s continued employment intolerable. Since the respondent’s employment contract had become one without limit of time, he was bound by the general rules of transferability in the organization. Since no further contract was negotiated, there could not be read into that contract an appointment to a specific post, for a specific period and at a specific place only.

(2) The right to transfer an employee from one place to another is the prerogative of the employer. It is the employer who knows better where the services of an employee are required. The employer’s discretion in determining which employee should be transferred and to which point of the employer’s operations is not to be readily interfered with except for good cause shown.

(3) The respondent was the general manager of the Harare hotel and it was childish to submit that he was ignorant of the code because it was not given to him. In his position, he would have been responsible for drawing the attention of subordinate employees to the code of conduct. It would be an affront to intelligence to say that he remained, and was content to remain, blissfully unaware of its contents throughout the period of his employment with the appellant which spanned two years. The same would apply to any code applicable to executives if that were applicable to the respondent.

(4) There was nothing in the record, either of the respondent’s recruitment or in his employment with the appellant, to suggest that the respondent’s wife was an invalid and, still less, that the appellant was aware of it. In any event, unless his contract specifically provided (which it did not) for his employment in Harare and nowhere else, because of his wife’s medical condition, that condition could not restrict the appellant in the exercise of its right to transfer the respondent as it deemed fit. The respondent, as an employee, was bound by the transferability clause in the appellant’s code of conduct. Any difficulties which he had with the transfer should have been discussed with the appellant when he was given an opportunity to do so. Instead, when asked for his views, he chose to correspond through legal practitioners. The respondent had not discharged the onus of showing that the appellant’s conduct was such that it made his employment with the appellant intolerable.

(5) Where an employer commits a breach which goes to the root of the employment contract the employee is entitled to treat himself as discharged from further performance. He is constructively dismissed. However, he must act promptly. If he continues for any length of time without leaving, he will lose his right to treat himself as discharged. He will be regarded as having elected to affirm the contract. The respondent did not leave at the instant nor did he give notice and say he would be leaving at the end of the notice. He continued to attend at work and to do as he was instructed in the letter of transfer. He continued to receive his salary and benefits right up to the end of January 2013. His was not the conduct of one constructively dismissed. He was properly dismissed for absenteeism. The appeal would be allowed.

 

Employment – dismissal – grounds for – breach of conduct of conduct – disclosure by employee of confidential company information without authority – employee a member of workers’ committee and disclosing such information during reconciliation proceedings – employee’s first duty is to employer – status as member of workers’ committee not exempting him from duty to comply with code of conduct

 

Chidembo v Bindura Nickel Corp Ltd S-35-15 (Gwaunza JA, Hlatshwayo JA & Mavangira AJA concurring) (Judgment delivered 2 July 2015)

 

The appellant was employed by the respondent and was chairman of a workers’ committee. He was dismissed from employment for disclosing confidential information during conciliation proceedings. The code of conduct provided that “Information with respect to any confidential product, plan or business transaction of the group, or personal information regarding employees, including their salaries, or any business information must not be disclosed by any employee unless and until proper authorisation for such disclosure has been obtained”. In the course of the conciliation proceedings, which were attended by both employer and employee representatives, a request was made to the appellant who was present as the workers’ committee chairman, for a list, if he had it, of employees affected by alleged salary anomalies. The appellant duly submitted the list, except that it showed employees’ salaries, in addition to their names. His defence was that the information was disclosed during a lawful conciliation hearing and in the appellant’s capacity as a worker representative, not as an employee. This was done as a bona fide step to prove the workers’ case. It was not an act done in the normal course and scope of the contract of employment of the appellant. Since the disclosure of the list was clearly done in the pursuit of the employees’ interest, it was lawful.

Held: The distinction between confidential information required by an individual worker and that required by a workers’ representative is a useful and indeed critical one, but it was questionable whether divulging of such information would nevertheless be lawful, even if it is done in blatant violation of an express provision of the code of conduct. In spite of his position as chairman of the workers’ committee, the appellant was an employee of the respondent, to whom at all times he bore the duty of trust and loyalty. His conduct in relation to the respondent was regulated and governed by the code of conduct. An act of misconduct committed by a worker outside the workplace and in his (also work related) capacity as a workers’ committee member would be unlawful as long as it impacted directly on the employer’s private interests and, in addition, constituted a violation of the employer’s code of conduct. A worker’s status as a workers’ committee member would not clothe him with a cloak of immunity against misconduct charges. The appellant’s status as a workers’ committee chairman did not turn what was unlawful into a lawful act. His conduct became unlawful the moment he disclosed the information without the authority of the respondent.

 

 

Employment – dismissal – grounds for – conduct inconsistent with the fulfilment of the express or implied conditions of his employment – penalty – employer’s general discretion as to whether to dismiss employee guilty of such conduct – when appeal court may interfere – conduct causing no real prejudice – dismissal unreasonable – appeal court entitled to interfere

 

Celsys Ltd v Ndeleziwa S-49-15 (Gwaunza JA, Hlatshwayo & Patel JJA concurring) (Judgment delivered 29 July 2015)

 

The respondent was employed by the appellant as a stores foreman. He ordered some sheet board for the appellant, but the supplier sent board of a smaller size. The respondent altered the copy of the receipt voucher to reflect the size actually received. This was contrary to the appellant’s standard operating procedures, which required that defective goods be returned to the supplier. The respondent did not tell the relevant machine operator about the incorrect size of board; the operator reported the matter to the respondent’s superiors, who took the view that the respondent had, by altering the voucher, been trying to conceal his defective work or inefficiency. He was charged with an act or omission inconsistent with the fulfilment of the express or implied conditions of his employment, found guilty and dismissed. A domestic appeal failed, but the national employment council for the industry ruled that dismissal was too harsh and ordered his reinstatement, coupled with a monetary penalty. The Labour Court upheld the NEC’s finding.

The respondent did not deny the charge but argued that the penalty was too harsh. He said that the reason for acting as he did was to clarify the real position for accounting purposes, so that the appellant would not pay more than it needed to.

The issues on appeal were whether the appellant exercised its discretion reasonably in dismissing the respondent, and whether the Labour Court was correct in interfering with that discretion.

Held: (1) it is well established that the court will not interfere with the discretion of an employer to dismiss an employee found guilty of misconduct, provided that the alleged misconduct goes to the root of the employment contract, unless there has been misdirection or unreasonableness on the part of the employer. In the absence of a misdirection or unreasonableness on the part of the employer in arriving at the decision to dismiss an employee, an appeal court will generally not interfere with the exercise of the employer’s discretion.

(2) The standard operating procedures required the respondent to act in a certain way when a wrong order was delivered. To that extent and notwithstanding what the respondent considered, on his own, to be the best way to rectify the error, he clearly acted contrary to the express or implied conditions of his contract of employment. Such conduct is generally regarded as going to the root of the employment contract. Where an employer takes a serious view of an employee’s misconduct, it has a clear discretion as to what penalty to impose after finding such employee guilty of the misconduct in question.

(3) Here, though, the misconduct in question, having been committed for the reasons given by the respondent, and not having caused the appellant any real prejudice, financial or otherwise, was so trivial, so inadvertent, so aberrant or otherwise so excusable, that the remedy of summary dismissal was not warranted. The appellant acted unreasonably in dismissing the respondent from employment, and therefore misdirected itself, so entitling the NEC and the Labour Court to interfere.

 

 

Employment – dismissal – unfair – fixed term contract – dismissal at conclusion of contract – dismissal not in terms of employment code – only unfair if employee had legitimate expectation of re-engagement and another person was engaged instead – damages in lieu of reinstatement – time within which dismissed employee could reasonably expect to find employment – evidence essential

 

Diamond Mining Corp v Tafa & Ors S-70-15 (Ziyambi JA, Gowora & Bhunu JJA concurring) (Judgment delivered 16 October 2015)

 

The respondents had been engaged by the appellant on fixed term contracts. Two weeks before the expiry of their contracts, they were relieved of their duties and paid their terminal benefits, including notice pay, cash in lieu of leave and their salaries for the last month of service. They brought proceedings alleging unfair dismissal and seeking reinstatement without loss of salary or benefits. The matter went to arbitration, and the arbitrator found that the respondents had not been dismissed in terms of a code of conduct. He found their dismissals to be unfair and ordered the payment of various sums of money. The Labour Court, on appeal, held that the dismissals were not in terms of a code of conduct and were ipso facto unfair. It held that the respondents were entitled to damages for a period of twelve months.

Held: (1) the notice given to the respondents was in compliance with the provisions of s 12(4)(d) of the Labour Act [Chapter 28:01]. All that was owed to the respondents at the time of the termination of the contracts was payment for the unexpired portion of their contracts and any benefits which may have accrued to them by virtue of the conditions of their employment.

(2) Not every termination of employment made outside a code of conduct is, in terms of the Act, unfair. Although under s 12B(2), an employee is unfairly dismissed if the employer fails to show that the employee was dismissed in terms of a code of employment, but this is subject to subs (3). In the case of a fixed term contract, the dismissal is unfair only if the employee had a legitimate expectation of being re-engaged and another person was engaged instead of the employee. The respondents, not having alleged or established that the provisions of subs (3) were applicable in their circumstances, consequently failed to establish that they were unfairly dismissed. The Labour Court therefore erred in upholding the arbitrator’s finding that the respondents were unfairly dismissed.

(3) No evidence was led by the respondents before the arbitrator of the details of their claims for overtime and terminal benefits. There were, however, before the arbitrator, the letters of termination signed by the respondents and containing detailed calculations of the terminal benefits awarded to, and accepted by, them. What the respondents did was simply to set out what they believed was owing to them. The arbitrator ought to have heard evidence in support of the claims because the onus lay on the respondents to establish them.

(4) With regard to the award of damages by the Labour Court, since the respondents were not unfairly dismissed they had no claim against the appellant who had already paid them all that they were lawfully entitled to. Secondly, the Labour Court could not, without hearing evidence, arbitrarily decide how long it would reasonably take the respondents to find employment. This was a matter on which the Labour Court was required to hear evidence from both parties, after which it could arrive at a conclusion based on that evidence.

 

 

Employment – dismissal – wrongful – damages in lieu of reinstatement – assessment of – evidence – need for tribunal to have evidence to show when employee could reasonably have expected to find alternative employment

 

Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe JJA concurring) (Judgment delivered 2 July 2015)

 

The respondent was employed by the appellant company and had been suspended from work in 2000 for alleged misconduct. A labour officer found that there were no grounds for the respondent’s dismissal and ordered his reinstatement, alternatively that he be paid an agreed exit package is cash in lieu of reinstatement. A dispute arose over the payment and quantification of the damages. The matter was heard by an arbitrator, who died before it was resolved. In 2011 it was placed before another arbitrator who, in 2012, ordered back pay from the date of suspension until the date of reinstatement. He also ordered 36 months’ salary as damages in lieu of reinstatement. The total amount was denominated in local currency, which was in use at the time of the respondent’s dismissal. The arbitrator then converted the amount to US dollars, at the official rate that prevailed at the time. The Labour Court upheld the arbitrator’s award. On appeal to the Supreme Court, the appellant argued that (1) there was no evidence in the record to support the arbitrator’s award of 36 months’ salary; and (2) the respondent was not entitled to damages and back pay in US dollars, when the lawful currency at the date the order of reinstatement or payment of damages was made (July 2002) was Zimbabwe dollars, and, when the cause of action arose, and the alleged damages were suffered, the Zimbabwe dollar was the currency in use. The appellant did not take issue with the award, per se, of back pay and damages to the respondent. Its main concern was with on the period of 36 months awarded in terms of damages and the conversion of both amounts from Zimbabwe to United States dollars. The arbitrator had held that considering his age, health and qualifications, the respondent could have obtained reasonable alternative employment within 36 months. No evidence was led before the arbitrator was to the respondent’s age, health and qualifications, though the Labour Court assumed that the arbitrator would have received evidence.

Held: (1) the arbitrator erred by awarding the respondent 36 months’ salary as damages in lieu of reinstatement without hearing any evidence as to his age, health and qualifications. The Labour Court, being none the wiser concerning whether or not the arbitrator had direct knowledge of these issues, resorted to speculation. There was no basis for the court to make, much less rely on, this particular speculation. Even assuming that the court’s speculation was correct – that the arbitrator must have had before him the details in question – this did not absolve the court from its obligation to assess the evidence in question and satisfy itself that the decision of the arbitrator was justified on such evidence. The Labour Court, as an appellate court, abdicated its responsibility in this respect.

(2) The arbitrator compounded his error by not, additionally, considering other factors normally taken into account in making assessments of this nature. Specifically, he did not consider whether or not the respondent made any effort to mitigate his loss, nor the economic environment prevailing in 2002 and the prospects, if any, that such environment offered in terms of alternative employment. He should have heard evidence as to how long it would reasonably take a person in the position of the dismissed employee to find alternative employment.

(3) The respondent took no effort to secure alternative employment, but simply decided to settle into a life of subsistence farming. He therefore neglected to discharge the duty, as was incumbent upon him, to mitigate his loss.

(4) The court could take judicial notice of the fact that in 2002 the prospects of obtaining alternative employment were much better than four years later, when the economic meltdown of the country began. The respondent could, if he had wanted, found alternative employment in a much shorter period than the 36 months assessed by the arbitrator. Six months’ salary would have adequately compensated him.

(5) The Labour Court, as a court of equity, is the only court vested with jurisdiction to compute and convert of various Zimbabwe dollar amounts into US dollars. Not being vested with such jurisdiction, the arbitrator fell into an error of law by seeking to convert the back pay, benefits and damages awarded to the respondent from Zimbabwe dollars into US dollars. The arbitrator compounded his error by settling on a conversion rate whose validity was in doubt. Equity would demand that a formula be found to give effect to the employee’s entitlement to payment of, and the employer’s obligation to pay, the debt in question. Failure to award him the damages in a currency that would realistically compensate him for the harm suffered would undermine the Labour Act’s purpose of advancing equity, social justice and democracy at the workplace.

 

Editor’s note: Madhatter Mining Co v Tapfuma S-51-14 is summarised in the summaries for 2014 (2), and will appear in the Law Reports for that period.

 

 

Employment – employee – who is – distinction between employee, agent and independent contractor – tests – control and supervision – liability of employer for delicts of servant but not for those of agent or contractor – contractor not able to bind employer in contract

 

Masango & Ors v Kenneth & Anor S-41-15 (Gwaunza JA, Gowora & Patel JJA concurring) (Judgment delivered 20 July 2015)

 

The difference between an agent and an independent contractor is that an agent is bound to act in the matter of the agency subject to the directions and control of the principal, whereas an independent contractor merely undertakes to perform certain specified work, or produce a certain specified result, the manner and means of performance of production being left to his discretion, except as far as they are specified by the contract. This distinction cannot be ignored, because the contract between master and servant is one of letting and hiring of services (locatio conductio operarum), whereas the contract between the principal and a contractor is the letting and hiring of some definite piece of work (locatio conductio operis). In the former case the relation between the two contracting parties is much more intimate than in the latter, the servant becoming subordinate to the master, whereas in the latter case the contractor remains on a footing of equality with the employer. The crucial difference between these two cases lies in the fact that where a master engages a servant to work for him the master is entitled under the contract to supervise and control the work of the servant. He is entitled at any time to order the servant to desist, and if the matter is sufficiently serious may even dismiss him for disobedience.

“Control” in this context includes the right of an employer to decide what work is to be done by the employee, the manner in which it is to be done by him, the means to be employed by him in doing it, the time when and the place where it is to be done by him. Supervision implies the right of the employer to inspect and direct the work being done by the employee.

An independent contractor is his own master, free of his employer’s control and representing no one else, when performing the obligations he is called to perform under the contract which he has entered into with his employer, such obligations not being those of contracting legal relations with third parties on behalf of his employees.

A principal is liable for the delict of his agent where such agent is a servant, but not where he is a contractor or sub-contractor or their servant. Similarly, an agent has authority to bind his principal in contract whereas the independent contractor has no such power.

Remuneration by commission, although not by itself decisive, is a strong indication against a relationship of master and servant.

The fact that the principal provides a motor vehicle is not in itself proof that the agent is a servant.

 

Judgment of Mafusire J in Masango v Farmers’ Commodity Stock Exchange (Pvt) Ltd & Related Cases 2013 (2) ZLR 163 (H) upheld.

 

 

Employment – Labour Court – appeal to – cannot be changed to review by court without hearing submissions by parties

 

Triangle Ltd v Sigauke S-52-15 (Ziyambi JA, Hlatshwayo JA & Mavangira JA concurring) (Judgment delivered   18 August 2015)

 

The respondent had been found guilty of theft and dismissed by his employer, the appellant, after a disciplinary hearing in terms of the company’s code of conduct. His appeal to the Labour Court was successful and it ordered a new trial within 30 days, failing which he must be reinstated by the employer. The appeal had been grounded on the fact that the disciplinary committee which heard his case was chaired by the departmental manager who had carried out the investigation, constituting an irregularity as he was an interested party. The appellant appealed against the Labour Court’s ruling.

The appellant argued that there had been no irregularity since the hearing by the same person who carried out the investigation was provided for in the code of conduct. Nevertheless the Labour Court found that there was an irregularity and allowed the appeal, ordering the retrial. However, where there is an irregularity the correct procedure is to follow a review process, not an appeal. The Labour Court in effect converted the appeal into a review process, but did so not before or during the hearing, but afterwards, when making its judgment. This did not allow for the parties to make submissions on the change of process. The appellant also raised further objections to the improper content of the Labour Court’s order, and claimed that it erred in not bringing the matter to finality when it had in fact found that on a balance of probabilities the theft had been committed. The respondent claimed that r 12 of the Labour Court Rules in effect allows for informality and setting aside of the rules, hence the Labour Court’s approach was acceptable.

Held: the Labour Court is bound by rr 15 and 16 which provide for appeals and reviews respectively. It has no general power to dispense with its own rules. Rule 26 allows it to dispense with rules before or during a hearing, not after the hearing is concluded. The Labour Court’s conduct in proceeding to convert the appeal into a review, and doing so after the hearing, was not supported by and was therefore ultra vires its powers as set out in the Act and Rules. The failure to allow submissions from the parties before its decision to convert the appeal to a review was an infringement of natural justice. (MN)

 

Employment – Labour Court – appeal to – from decision of arbitrator – appeal only lying on point of law – appeal relating to facts – what must alleged in grounds of appeal – not essential to allege that misdirection on facts is so unreasonable that no sensible person could have reached impugned conclusion – necessary that grounds of appeal are disclosed in clear and concise manner

 

Zvokusekwa v Bikita RDC S-44-15 (Garwe JA, Ziyambi & Hlatshwayo JJA concurring) (judgment delivered 22 July 2015)

 

See above, under APPEAL (Labour Court appeal to – from decision of arbitrator).

 

 

Employment – Labour Court – application of equitable principles – court’s duty to secure equity and social justice – debt owed in currency no longer in use – court having jurisdiction to find formula to give effect to employee’s entitlement

 

Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe JJA concurring) (Judgment delivered 2 July 2015)

 

See above, under EMPLOYMENT (Dismissal – wrongful).

 

 

Employment – termination – on notice – not a breach of Labour Act – common law right to terminate employment on notice not limited or abolished

 

Nyamande & Anor v Zuva Petroleum (Pvt) Ltd (1) S-43-15 (Chidyausiku CJ, Gwaunza, Garwe, Hlatshwayo & Guvava JJA concurring) (Judgment delivered 17 July 2015)

 

The appellants’ employment was terminated on notice, as provided in their contracts of employment, and were paid cash in lieu of notice. An arbitrator considered that the termination was unlawful because it had not been in terms of a code of conduct, but the Labour Court allowed an appeal by the respondent, the employer. It held that neither s 12(4) nor s 12B of the Labour Act [Chapter 28:01] abolished the employer’s right to terminate employment on notice. On appeal to the Supreme Court, it was agreed that at one time both the employer and the employee had a common law right to terminate an employment relationship on notice.

Held: (1) That common law right in respect of both the employer and the employee could only be limited, abolished or regulated by an Act of Parliament or a statutory instrument that is clearly intra vires an Act of Parliament. It is also a well-established principle of statutory interpretation that a statute cannot effect an alteration of the common law without saying so explicitly. Applying the golden rule of statutory interpretation – that words be given their primary meaning – there were no words in s 12B of the Act that either expressly or by necessary implication abolished the employer’s common law right to terminate an employment relationship by way of notice. Section 12B, as the main heading of that section reveals, deals with dismissal and the procedures to be followed in those instances where an employment relationship is to be terminated by way of dismissal following misconduct proceedings. The section also sets out in some detail what constitutes unfair labour practice, which it outlaws. Termination of employment on notice is not among the conduct that s 12B of the Act outlaws as unfair labour practice.

(2) Section 8 of the Act sets out in some detail conduct that is outlawed as unfair labour practice. Termination of employment on notice is not among the conduct outlawed by s 8.

(3) Section 12B deals with the method of termination of employment known as “dismissal”. While dismissal is one method of termination of employment, it is not the only method; it is one of several methods of terminating employment. Another is retrenchment. Where the relationship between the employer and the employee has deteriorated to untenable levels through no fault of either party the relationship can be terminated. Section 12B of the Act does not deal with the general concept of termination of employment. It concerns itself with termination of employment by way of dismissal in terms of a code of conduct. It sets out that which must be followed or done in terms of either an employment code of conduct or a national code of conduct. It does not concern itself with termination of employment by ways other than dismissal.

(4) Section 12(4) deals with the concept of termination of employment on notice in terms of a contract of employment. It regulates the period of notice, setting out the time periods that apply when employment is being terminated on notice. The notice periods do not apply when an employee is dismissed, as in such event no notice is required. Section 12(4) explicitly applies to both the employer and the employee. There was no possible reason why, despite the explicit language of the section, it should apply to the employee only and not to the employer; or why the section should exist to regulate a non-existent right. The subsection could only have meaning if there was a substantive right, in this case the common law right to terminate employment on notice, to which it pertained. This is especially so when one considers that all that s 12(4) does is to facilitate the exercise of an existent common law right.

 

Editor’s note: s 12 of the Act was amended by Act 5 of 2015 (which came into effect on 26 August 2015, but with retrospective effect to 17 July 2015, the date of this judgment) to state that no employer shall terminate a contract of employment on notice except where (a) the termination is in terms of an employment code; or (b) both parties mutually agree; or (c) the contract is for a fixed duration or for the performance of some specific service; or (d) pursuant to retrenchment. An urgent application by the employees to appeal to the Constitutional Court was dismissed on 1 August on the grounds of lack of urgency and because there was no right to appeal from a decision of the Supreme Court, no constitutional issues having been placed before that court.

Other litigation as to the effect and constitutionality of the amendment is pending.

 

 

Employment – wrongful dismissal – damages in lieu of reinstatement – punitive damages – when may be awarded – untenable employment relationship – such untenability arising from unlawful dismissal – quantum of punitive damages – evidential basis must exist for figure awarded – award of punitive damages in addition to damages in lieu of reinstatement – not permissible

 

Mvududu v ARDA S-58-15 (Patel JA, Malaba DCJ & Gwaunza JA concurring) (Judgment delivered 20 October 2015)

 

The appellant was employed by the respondent as its CEO/general manager. A little over a year after his appointment he was sent on special leave and three months after that was notified by the respondent that it had decided to terminate his employment. The matter was then referred to an arbitrator, who found that the appellant had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator for quantification of damages in lieu of reinstatement. He ordered back-pay and benefits to the date of his first award, cash in lieu of leave, 60 months’ salary as damages for loss of employment and 60 months’ salary as punitive damages for failure to reinstate, together with interest. In awarding punitive damages, the arbitrator sought to reinforce the primacy of reinstatement as the most appropriate remedy for unlawful dismissal. He considered that the respondent had not given any cogent reason why reinstatement was not possible. This stance could not be condoned and that was why he decided to award punitive damages over and above damages in lieu of reinstatement, in order to protect the primary remedy of reinstatement from being eroded by errant employers like the respondent.

On the question of reinstatement, correspondence between the parties’ legal practitioners showed that the respondent opted to pay damages in lieu of reinstatement because there was an irretrievable breakdown of the relations between the parties. The appellant’s legal practitioners, in a “without prejudice” letter, did not challenge this assertion and indicated that the issue would be what damages should be paid. Three months later, after other correspondence had been exchanged without reaching an agreement, the appellant reversed his position and disagreed that reinstatement was not a viable option.

The appellant appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary and his entitlement to contractual benefits. The respondent in turn cross-appealed, defending the propriety of its decision not to reinstate the appellant, and challenged the arbitrator’s award of punitive damages and his failure to deduct certain amounts allegedly owed by the appellant to the respondent. The Labour Court dismissed the appeal and partially allowed the cross-appeal. It found, having regard to the relevant correspondence, that the possibility of reinstatement was not part of the arbitrator’s mandate. It also set aside the arbitrator’s award of punitive damages.

On appeal to the Supreme Court, the grounds of appeal were largely identical to those before the Labour Court.

Held: (1) It was clear that the appellant had initially accepted the respondent’s election and taken the position that his reinstatement was not in issue. He was content to proceed with the matter on the basis that his entitlement to the payments due should be quantified, either by agreement or by arbitration. The fact that this position was taken in a letter written without prejudice did not detract from its significance. The ambit of protection from the admissibility of evidence conferred by the “without prejudice” rule is not unqualified. An admission made in “without prejudice” correspondence is admissible where the facts sought to be established thereby do not relate to the substance of the negotiations contained in such correspondence. Here, what was being negotiated “without prejudice” by the parties was not the appellant’s reinstatement but his back-pay and benefits and the quantum of damages payable in lieu of reinstatement. Further, the notice from the arbitrator about the second arbitration was that the hearing would be about the quantification of damages in lieu of reinstatement. Other notices from the arbitrator were to the same effect. The appellant’s legal practitioners did nothing to disabuse the arbitrator or the respondent of the notion that quantification was the sole issue.

(2) Different considerations apply under provisos (ii) and (iii) to s 89(2)(c)(iii) of the Labour Act in determining the untenability of the employment relationship in question. Where the question to be decided is whether to award damages or reinstatement, the onus is on the employer to prove such untenability, taking into account the size of the employer, the preferences of the employee, the situation in the labour market and any other relevant factors. These criteria relate to the practicability of reinstatement and the continuation of the employment relationship as assessed from an objective economic or commercial standpoint. However, once it is decided that reinstatement is no longer feasible by dint of any one or more of the specified factors and that damages should be awarded instead, the sole criterion to be applied is whether the untenable employment relationship arose from the unlawful or wrongful dismissal of the employee by the employer. What is relevant at that stage is the employer’s fault in the manner or circumstances in which he dismissed the employee and the extent of his blameworthiness in causing the irretrievable breakdown of the employment relationship. It is only in this situation that the question of punitive damages comes into play and where the discretion to award such damages may be exercised in order to penalise the employer for his culpable conduct. Provisio (iii) does not envisage the award of double damages, i.e. punitive damages in addition to damages in lieu of reinstatement. Rather, what may be imposed is an award of damages in lieu of reinstatement that is punitive in nature and effect. In other words, what is contemplated is a single award of punitive damages that exceeds what would ordinarily be awarded as damages in lieu of reinstatement, i.e. in the absence of any aggravating circumstance occasioned by the manner in which the employer dismissed the employee.

(3) Finally, there was no evidence produced to computing the punitive damages in the sum equivalent to 60 months’ salary. While damages need not be quantified with mathematical precision, there must be some evidentiary basis for calculating damages, even if they be punitive damages.

 

 

Estate agents – discipline – striking off register for disgraceful conduct – reinstatement – no provision in legislation allowing for reinstatement – power to reinstate could not be read into legislation

 

Stevenson v Estate Agents Council & Anor S-7-16 (Gowora JA, Ziyambi & Mavangira JJA concurring) (Judgment delivered 2 October 2015)

 

The appellant was, in 1993, struck off the register of estate agents after having been found guilty of disgraceful conduct by the first respondent, the Estate Agents Council. Her appeal against that penalty was dismissed and the penalty upheld by the Supreme Court in 1996. In December 2014, the appellant applied to the Council to be reinstated to the register, but the Council refused the application on the grounds that once a member has been deregistered, he or she cannot be reinstated. An appeal to the Administrative Court failed, that court holding that it had no jurisdiction to grant the order sought.

On appeal to the Supreme Court, the appellant’s counsel accepted that the Estate Agents Act [Chapter 27:17], did not not confer power of restoration of an estate agent to the register of estate agents after deregistration, but argued that the court a quo should have read that power into the Act since it was an obvious omission. He submitted that the court should read into the Act a provision which enabled the appellant to be restored onto the register of estate agents. The Act did not prevent reinstatement and, as a consequence, the court had the power to restore the appellant onto the register. He argued further that it could not have been intended that, once an estate agent had been deregistered, such deregistration was for all time. However, he accepted that for a court do so would be tantamount to legislating for Parliament.

Held: whilst the Act provided for deregistration, it did not provide for a situation where an agent in the appellant’s situation could be reinstated. It was not for the court to assume a power where none is provided for in the enabling legislation. It was not within the province of the courts to legislate for Parliament, whose intention is to be deduced from the clear wording of the statute. There was no an ambiguity in the relevant sections providing for disciplinary actions and the sanctions attendant on a finding of guilt. Any suggestion that the court should import provisions from statutes wherein the reinstatement of professionals in similar circumstances as the appellant was provided for would be misplaced. If the legislature had intended to make provision for deregistered estate agents to be reinstated on the register, it would have done so. It chose not to do so and the court could not read into the Act what was not provided for.

 

Editor’s note: for the original Supreme Court judgment, see Mitchell v Estate Agents Council 1996 (1) ZLR 222 (S).

 

 

Evidence – cautionary rule – evidence of a trap – dangers inherent in relying on evidence of a trap – evidence from police traps – temptation for such witnesses to ensure success of trap

 

S v Jecheche HH-781-15 (Hungwe J, Chiweshe JP concurring) (Judgment delivered 7 October 2015)

 

A “trap” has been defined as a person who, with a view to securing a conviction of another, proposes certain criminal conduct to him, and ostensibly takes part therein. In other words, he created the occasion for someone else to commit the offence. The concept of “trap” should not, though, exclude a person who did not propose the criminal conduct but who, after someone else proposed it, participated in the planning and execution of the proposed criminal offence with a view to convicting the offender.

The evidence of traps needs to be approached with caution, and there are dangers inherent in police trap cases. They have every reason to ensure that the trap succeeds and could go to any extent to ensure this at the expense of the truth. This may result in failing to resist the temptation to embellish evidence. The evidence of a police trap should be treated with caution because such persons may have a motive in giving evidence which may outweigh their regard to the truth. In the case of persons who have previously been convicted, trapping has the undesirable feature that it puts temptation in the way of those least able to resist. In any case, such persons might not have offended but for the fact that a trap was used.

 

 

Evidence – judicial notice – matters of which judicial notice may be taken – economic state of country

 

Delta Beverages (Pvt) Ltd v Murandu S-38-15 (Gwaunza JA, Hlatshwayo JA & Chiweshe JJA concurring) (Judgment delivered 2 July 2015)

 

See above, under EMPLOYMENT (Dismissal – wrongful).

 

 

Evidence – privilege – document – written communication endorsed as being “without prejudice” – admission made in such communication – admissible when facts sought to be established thereby do not relate to substance of negotiations contained in such correspondence

 

Mvududu v ARDA S-58-15 (Patel JA, Malaba DCJ & Gwaunza JA concurring) (Judgment delivered 20 October 2015)

 

See above, under EMPLOYMENT (Wrongful dismissal)

 

 

 

Evidence – privilege – document – written communication endorsed as being “without prejudice” – when may regarded as privileged – court’s discretion to admit such communication

 

Kazingizi & Anor v Equity Properties (Pvt) Ltd HH-797-15 Mathonsi J) (Judgment delivered 14 October 2015)

 

The plaintiffs, who were husband and wife, signed a written undertaking to enter into a sale agreement in respect of a piece of land. The undertaking was countersigned by representatives of the defendant, a firm of estate agents. The plaintiffs agreed to, and did, pay a deposit on the property. It was part of the undertaking that the defendants undertook to repay any money paid with delay, if the agreement of sale did not eventuate. When the defendant produced its standard agreement of sale, the plaintiffs did not agree with the terms. They decided not to enter into the sale agreement and demanded a refund of their deposit. In reply, the defendant wrote a “without prejudice” letter agreeing to refund the deposit within 90 days, in instalments. It paid back less than half, in dribs and drabs, but when the plaintiffs brought an action, the defendant entered appearance to defend, prompting the plaintiffs to seek summary judgment. The defendant asserted that it was not obliged to refund the balance (a) because its “without prejudice” offer to refund was not accepted; (b) because the plaintiffs refused to sign a cancellation agreement; and (c) because in the undertaking letter, the plaintiffs gave up any right to negotiate the terms of the sale agreement and as such were bound by the standard agreement even though it was never agreed. No direct claim was made to privilege except what was raised by the defendant’s counsel from the bar.

Held: The expression “without prejudice” is often written across the face of a document or communicated expressly to convey the message that the party communicating the document will not be prejudiced by the subsequent communications which are conducted with a view to the settlement of a dispute. Parties who do not know what they are doing or why they are doing it often inscribe the maxim on correspondence out of fear of being held to account for what they would have communicated, but there would be no reason for a party who accepts liability to refund money and is making a payment plan to then send the payment plan on a “without prejudice” basis. Documents do not necessarily have to be marked “without prejudice” for them to be protected. Conversely, merely labelling a document “without prejudice” does not necessarily confer any privilege on the contents. What is important is whether the communication is considered privileged from an objective point of view.

As a general rule, statements that are made expressly or impliedly on a “without prejudice” basis in the course of bona fide negotiations for the settlement of a dispute will not be allowed in as evidence. The resolution of a dispute with a genuine view to settlement appears to be the main consideration. If the settlement is thereafter reached, the negotiations leading up to it should be available to the court since the whole basis of the non-disclosure would have fallen away. The parties to negotiations may also consent to the admission of “without prejudice” communications. Exceptional circumstances, such as the use of such communications to prove certain things, e.g., that it contains a threat, may permit a departure from the general rule.

It is always in the discretion of the court to determine whether to admit or not to admit without prejudice communications. In exercising its discretion the court may remove the privilege attaching to such communication if it deems that the admissibility of such communication is essential in proving certain things, such as the credibility of a witness, or if it considers that the upholding of the privilege would be contrary to public policy, for instance where the communication contains a threat or an act of insolvency.

There is nothing privileged in a payment plan. This one was a classical case for the removal of the privilege attaching to the letter.

On the merits, the defendant did not even begin to set out any defence which, if established, would entitle it to succeed. Where a person has two courses of action open to him, as the defendant had, to either refuse to refund the money on lawful grounds or refund it, and he unequivocally elects to take one of them, he cannot afterwards take the other course of action. The defendant agreed to repay. It commenced repayments. It must therefore repay and could not be allowed to twist and turn. It simply had no defence to talk about.

 

 

Family law – child – guardianship and custody – when may be taken from biological parent and transferred to another person – child’s best interests primary – parent neglecting children and their welfare – appropriate to transfer guardianship and custody to relative who had taken care of them

 

Mukundu v Chigumadzi & Ors HH-818-15 (Uchena J) (Judgment delivered 15 September 2015)

 

The applicant sought an order granting her guardianship and custody of her late daughter’s two minor children. She did so because she wanted authority to obtain a passport for one of the children, who had been granted a scholarship to attend a college in Ghana.

The first respondent was their biological father, who had separated from their mother some 5 years before her death and was now living abroad. He had remarried and had a child from the second marriage. After her daughter’s death, the applicant looked after the children but had to seek the assistance of a charity to help pay their school fees. The first respondent objected, on the grounds that he wanted the children to continue their education in Zimbabwe and that he could fund it. The evidence was that he had done very little to support the children and paid nothing in the way of maintenance or for education.

Held: (1) The disposition of a litigant is judged from his conduct as demonstrated by what he has done or not done and not by what he promises to do in the future. The first respondent had in the past neglected his children to the extent of their having to drop out of school until the applicant had to seek assistance. He neglected them and their mother to the extent of denying them education, health care services, nutrition and shelter. He left them in that condition until the applicant came to their rescue. He therefore has demonstrated his attitude towards his children.

(2) Any determination which affects the rights of a child should be guided by the child’s best interests. This is demanded by s 81(2) of the Constitution, as well as by international instruments, such as art 3 of the United Nations Convention on the Rights of the Child and art 4 of the African Charter on the Rights of and Welfare of the Child. The court as upper guardian of all minors, had a duty to adequately protect the rights of a child. In appropriate cases the court may have to protect the children from harmful conduct by the child’s own biological parent. The case was therefore not a contest between the applicant’s and the first respondent’s rights over the minor children. It was about the best interests of the children.

(3) Section 81(1)(d) to (f) of the Constitution entitles every child to family or parental care, or to appropriate care when removed from the family environment to be protected from economic and sexual exploitation, from child labour, and from maltreatment, neglect or any form of abuse; and to education, health care services, nutrition and shelter. These rights should be assessed in order to determine whether it would be appropriate to grant custody and guardianship to the applicant. Ordinarily, custody and guardianship should be reserved for a child’s biological parents, but s 81(1)(d) envisages circumstances which may lead to a child being removed from the family environment. Here, the father’s neglect of the children and their welfare justified the removal of the children from the custody and guardianship of the biological parent to that of the maternal grandmother who had consistently been there for them and took care of their best interests.

 

 

Interpretation of statutes – ambiguity or omission – power to read words into legislation where ambiguity or omission exists – no ambiguity – court not entitled to legislate for Parliament by reading in words to cover apparent omission

 

Stevenson v Estate Agents Council & Anor S-7-16 (Gowora JA, Ziyambi & Mavangira JJA concurring) (Judgment delivered 2 October 2015)

 

See above, under ESTATE AGENTS (Discipline).

 

 

Interdict – interim – requirements for – prima facie right – applicant seeking interdict preventing disposal of property – applicant relying on as yet unregistered order of foreign court following divorce – order awarding her property in Zimbabwe – respondent also claiming rights in property – interim interdict granted pending litigation over property

 

Makoni v Makoni & Anor HH-820-15 (Mwayera J) (Judgment delivered 22 October 2015)

 

The applicant and the first respondent were a married couple. They had obtained a divorce in England, and a decree nisi, which was later confirmed by the English Court, was granted. It was essentially for the dissolution of the marriage and the transfer of all the immovable matrimonial assets in England and Zimbabwe to the applicant, the wife. Among other properties, the respondent was to transfer all of his legal estates and beneficial interest in all of a property in Harare. To protect the rights conferred by the decree nisi, the applicant sought an interdict to stop the respondent from disposing of the property, as well as an interdict stopping the respondent from transferring the property unless ordered by a court of competent jurisdiction. She also sought an interdict barring the respondent from removing her belongings from the property without her written permission. At the hearing she sought to amend the relief to reflect that she was not relying on a decree nisi but on a decree absolute since the decree nisi had been confirmed at the time of hearing. She argued that she had a clear right by virtue of the English court order.

The respondent opposed the application on the basis that the applicant failed to establish the requirements for a final interdict. He also argued that no clear right existed or had been established, given that the applicant was relying on an unregistered foreign court order, that order not having registered in Zimbabwe in terms of the Civil Matters (Mutual Assistance) Act [Chapter 8:02]. He, in other proceedings, was seeking a declaratur in respect of the property, to establish his rights over it.

Held: (1) before registration, which is at the discretion of the court concerned, there is no judgment to talk about insofar as enforcement is concerned. However, there was an extant English court order. The facts of the matter did not establish a clear right but a prima facie right, which emanated from the rule nisi which was confirmed by the decree absolute of the English Court. Even in the absence of registration of that order or in absence of the order, the applicant, by virtue of marriage to the respondent, would have a claim to the property in question. A prima facie right, even if open to doubt, would work in favour of establishment of a right entitling the applicant to an interim relief.

(2) Based on the normal requirements for the issue of an interim interdict, the applicant had established a prima facie right to the property. Given the existence of the English court order and the pending litigation, the applicant’s fears, that her rights would be detrimentally affected if an interim interdict were not granted, were well founded. She need not wait for the harm to be occasioned. An interim interdict in the face of pending litigation involving the property in question was the only available remedy which will avert injustice either way. Such relief would preserve the rights of the parties until the rights were fully ventilated.

 

 

Interpretation of statutes – general principles – establishing meanings of words – applicability of general rules to interpretation of constitutions – additional considerations in interpreting rights provisions in a constitution

 

Chihava & Anor v Mapfumo NO & Anor CC-6-15 (Gwaunza JCC, Chidyausiku CJ, Malaba DCJ, Ziyambi, Garwe, Gowora, Hlatshwayo & Guvava JJCC & Chiweshe AJCC concurring) (Judgment delivered 15 July 2015)

 

See above, under CONSTITUTIONAL LAW (Constitution of Zimbabwe 2013 – Constitutional Court).

 

 

Land – acquisition – preliminary notice of acquisition issued – notice not withdrawn in accordance with requirements of legislation although acquiring authority abandoned attempt to confirm acquisition – notice remaining in force – land subsequently included in Schedule 7 of 1980 Constitution – former owner not entitled to order declaring acquisition unlawful – original owner a black Zimbabwean – not a reason why land should not be acquired

 

Naval Phase Farming (Pvt) Ltd & Ors v Min of Lands & Ors HH-768-15 (Chigumba J) (Judgment delivered 30 September 2015)

 

The applicant companies were owned by the third applicant, a black Zimbabwean. He had acquired the companies and the farms that the companies owned. The first respondent, the Minister of Lands, purported to acquire the farms and to allocate them to the remaining respondents. The Minister then applied to the Administrative Court for confirmation of the acquisitions, as was then required by law, but then withdrew the applications. The court held that the effect of the withdrawal was to nullify the notices of acquisition. In spite of this, the farms were later gazetted for acquisition and subsequently listed in Schedule 7 of the former Constitution. Offer letters were thereafter issued to the second to fourth respondents.

The applicants sought an order declaring that the acquisition was invalid and ordering the ejectment of the second to fourth respondents. They contended that; in order for the land reform programme to comply with the provisions of the former and the current Constitution, it must not target the replacement of some indigenous owners or settlers on agricultural land with others. Land reform must not be a tool of patronage or nepotism. Agricultural land already owned or occupied by indigenous Zimbabweans could not be said to be land required for resettlement purposes within the meaning of s 16A of the former Constitution as read with ss 72, 289 and 290 of the current Constitution of Zimbabwe.

Held: (1) section 16B(3) of the former Constitution precluded an aggrieved party from challenging in court the compulsory acquisition of agricultural land. Further, once the land was listed in Schedule 7, its acquisition could not be challenged by reference to the Land Acquisition Act. A litigant cannot challenge the fact of acquisition of agricultural land on the basis of a perceived violation of rights conferred on the litigant by the Declaration of Rights in Chapter III of the former Constitution, such as ss 18 and 23. However, the process of acquisition could be challenged on the grounds that it was not in accordance with s 16B(2) of the 1980 Constitution, and it would be necessary to determine whether the state of facts on the existence of which s 16 B (2) (a) provided that the acquisition of agricultural land must depend, existed, in the circumstances of this case.

(2) For a spoliation order to be granted, it had to be shown that the the first respondent and/or any of the second to fourth respondents deprived the applicants of possession forcibly and wrongfully. There was no admissible evidence to controvert their denials of such wrongdoing. The issue that remained to be determined was whether, the first respondent, by causing the listing of the applicants’ farms in Schedule 7 of the former Constitution, did so wrongfully, such as to constitute dispossession of the applicants of their property, and to entitle them to a spoliation order.

(3) A declaratory order, if issued, would not found a cause of action to evict the respondents. The applicants would first have to show that the second to fourth respondents did not hold valid title which authorized them to occupy the farms. Even then, it is only the Minister, pursuant to Schedule 7 of the former Constitution, who could cancel the fourth to sixth respondents’ offer letters and offer the land to the applicants. If the court were to declare that the acquisition of their farms was contrary to the stipulated procedure, the applicants would have to approach the court again, on notice to the Minister, for an order de-listing their farms from Schedule 7. Such an order would be subject to confirmation by the Constitutional Court, being an order which purportedly alters the former Constitution in its Schedule 7. Having been found to have fallen short of establishing the requirements of spoliation, the applicants were not entitled to restoration of the status quo ante, especially ten years later, as spoliation is by its nature, a remedy which must be granted as a matter of urgency, to discourage litigants from taking the law into their own hands. What remained to be seen is whether the applicants were entitled to the declaratur that they were seeking.

(4) Under s 5(7) of the Land Acquisition Act, a notice of acquisition could be withdrawn by publishing a notice in the Gazette and serving it on the persons on whom the notice had been served. This was not done, and the withdrawal of the application for confirmation did in itself not result in the nullification of the preliminary notice, which remained in force for ten years. The Administrative Court could have ordered the Minister to withdraw the notice, but did not do so. The land remained validly identified in terms of s 5 of the Act and so were duly itemised in Schedule 7.

(5) Neither the former nor the current Constitutions entrenched a policy that agricultural land must not be taken away from a black African Zimbabwean and given to another black African Zimbabwean. It is not correct to say that land that is already owned or occupied by “indigenous” (meaning black) Zimbabweans could not be said to be land required for resettlement purposes within the meaning of s 16B of the former Constitution. The section had no reference at all to race or colour. Whether acquisition and distribution of agricultural land is to continue, from whom land is acquired and to whom it is allocated are questions for the executive and are not justiciable.

(6) The applicants had not produced sufficient or admissible evidence that the any of the respondents forcibly or wrongfully deprived them of their farms, by threats, intimidation or violence or by wrongful application of the law, whether in terms of the Land Acquisition Act or s 16B of the former Constitution. They were not entitled to the declaratur that they sought. They lost all rights in the farms to the first respondent except the right to compensation.

 

 

Legal practitioner – Prosecutor-General – control over prosecutors – authority to prosecute – when may withdraw such authority – need to observe principles of natural justice and provisions of Administrative Justice Act [Chapter 10:28]

Legal practitioner – public prosecutor – status of – delegate of Prosecutor-General – authority to prosecute – when may be withdrawn – requirement for Prosecutor-General to observe principles of natural justice and provisions of Administrative Justice Act [Chapter 10:28]

 

A-G v Mudisi & Ors S-48-15 (Patel JA, Malaba DCJ & Garwe JA concurring) (Judgment delivered 28 July 2015)

 

The respondents were public prosecutors employed as such by the Public Service Commission (now the Civil Service Commission). They were assigned by the Commission to the Attorney-General’s Office (now the Prosecutor-General’s Office). They were all members of the Zimbabwe Law Officers Association (the Association) and were elected as office-bearers of its executive committee in July 2011. In September 2011, acting under the auspices of the Association, the respondents, together with a majority of their colleagues, resolved to embark on a work stoppage in order to redress their salary related grievances. The appellant wrote to the respondents asking them to respond within 7 days to various allegations of unbecoming conduct not befitting a law officer. The respondents, in a letter from the Association, purported to reply to some of the allegations, but subsequently, through a letter from their current lawyers, challenged the legal basis for the appellant’s letter. His reaction was to withdraw their authority to prosecute and, through his deputies, to direct them not to carry out their duties as prosecutors, not to deal with any dockets in their offices, to vacate their respective offices and to hand over their office keys. They complied, under protest, and brought an urgent application in the High Court alleging that the appellant had breached their rights to administrative justice. The High Court held that the Attorney-General had committed a material error of law by withdrawing his authority to prosecute and referring the respondents to the Commission for further processing according to law. The proper procedure was to suspend them pending a full inquiry, leading either to their discharge from the Commission or their full reinstatement. Accordingly, the letter from the appellant to the respondents, as well as all the consequential instructions issued by his deputies, were declared to be null and void and were set aside. The court ordered that the respondents should be restored to their positions without any loss of rights.

On appeal, the appellant argued that the court a quo erred at law in nullifying the appellant’s letter withdrawing the delegated prosecutorial authority given to the respondents. He also argued that the court erred at law in nullifying the decision of his deputies to stop the respondents from carrying out their prosecutorial duties and using their offices.

Held: (1) By virtue of s 11(1) of the Criminal Procedure and Evidence Act [Chapter 9:07], all public prosecutors are charged with the duty of prosecuting in the magistrates courts to which they are attached. Proof of such delegation is ordinarily evidenced by a certificate to prosecute signed and issued by the Attorney-General. This is clearly recognised in s 180(1)(g) of the Act which enables every accused person to challenge the authority of any prosecutor appearing at his trial, by pleading that he has no title to prosecute. It follows that a certificate to prosecute is a legal requirement that extends to all public prosecutors. It constitutes formal evidence of the Attorney-General’s delegated authority to prosecute and its withdrawal or expiry carries the legal effect of terminating that authority. Section 76(5) of the Constitution empowers the Attorney-General to exercise his prosecutorial functions under s 76(4) “through other persons acting in accordance with his general or specific instructions”. This position is replicated in s 11(1) of the Criminal Procedure and Evidence Act which designates public prosecutors as “representatives of the Attorney-General and subject to his instructions”. Public prosecutors thus carry out their prosecutorial duties as delegates of the Attorney-General and in that capacity are subject to his general or specific instructions. To put it differently, the Attorney-General, as the principal repository of prosecutorial authority, is empowered to supervise, direct and instruct every public prosecutor in the performance of his functions and, conversely, the latter is required to obey and comply with every lawful order or instruction given by the former. In the event that a prosecutor fails to carry out his mandate in accordance with any such order or instruction, the Attorney-General is entitled, subject to the dictates of due process, to withdraw the prosecutorial authority delegated to that prosecutor.

(2) This must be so not only as a matter of administrative efficacy but also as a matter of legal principle. In terms of s 114(1a) of the Constitution, every power conferred by the Constitution includes any other powers that are reasonably necessary or incidental to its exercise. Section 24(1) of the Interpretation Act [Chapter 1:01] provides to the same effect in relation to every power to do any act or thing conferred upon any person or authority under any enactment. In addition, there is the time honoured common law principle that the power to do or create a particular thing ipso jure encompasses and carries with it the power to undo or abolish that thing.

(3) A prosecutor who is divested of his prosecutorial functions can no longer be deployed as a prosecutor. While this may be inevitable, it is a matter that falls outside the Attorney-General’s remit and squarely within the purview of the Commission. The latter may opt either to institute disciplinary measures against its officer or redeploy him to such other duties as he may be deemed suitable for and qualified to perform.

(4) One of the fundamental precepts of natural justice, encapsulated in the maxim audi alteram partem, is the right of every person to be heard or afforded an opportunity to make representations before any decision is taken that might impinge upon his rights, interests or legitimate expectations. This precept of the common law forms part of the larger duty imposed upon every administrative authority to act legally, rationally and procedurally and is now codified in s 3(1)(a) of the Administrative Justice Act [Chapter 10:28] as the duty to “act lawfully, reasonably and in a fair manner”. The obligation to act in a fair manner is further expanded in s 3(2) to require the giving of “adequate notice of the nature and purpose of the proposed action” and “a reasonable opportunity to make adequate representations” as well as “adequate notice of any right of review or appeal where applicable”. The Attorney-General was an administrative authority as defined in s 2 of Act and was subject to the requirements of s 3(1)(a) as read with s 3(2). An employer, whether under a contract of employment or under a secondment arrangement, has the common law right to summarily dismiss an employee who is insubordinate or wilfully disobedient to the extent of undermining or destroying the very core and substratum of their relationship. However, the appellant reacted with undue haste by immediately withdrawing the respondents’ prosecutorial mandate. He took a massive leap from the inchoate letters penned by the respondents and their lawyers to the conclusion that they had admitted all the allegations against them. He made no attempt to substantiate the allegations against them or have these allegations investigated by means of disciplinary inquiry, as he could have done by instructing the Director of Public Prosecutions, qua head of department, to institute disciplinary proceedings in terms of the applicable Public Service Regulations.

(5) As for the unquestionably insubordinate conduct of the respondents, the appellant was perfectly entitled to withdraw their prosecuting authority as an appropriate and necessary disciplinary measure. However, he could only do so in accordance with the governing tenets of natural justice embodied in s 3 of the Administrative Justice Act. The respondents were professionals engaged in the business of prosecuting criminal cases on behalf of the State. They had a legitimate expectation of continuing to prosecute in that capacity and could not be deprived of the right to do so without just cause. What the appellant should have done, at the very least, was to write to each of the respondents, identifying with greater particularity the specific allegations levelled against them individually, indicating that their open defiance of his authority justified the withdrawal of their prosecutorial mandate, and warning that he intended to withdraw that mandate unless they were able to persuade him otherwise. The unavoidable conclusion was that the appellant acted precipitately and in breach of the requirements of s 3 of the Administrative Justice Act. A strict standard of compliance with those requirements was expected of him in his dealings with the respondents, particularly in his capacity as the legal supremo of the Government at the relevant time.

 

Editor’s note: the judgment appealed against was Mudisi & Ors v Tomana NO & Ors 2012 (1) ZLR 305 (H), a judgment of Hlatshwayo J (as he then was).

 

 

Police – actions against – time limitations applicable – reasons for such limitations – time limitations not necessarily unconstitutional – action against police officer for delict committed while on duty – action in personal capacity – time limitation still may be applicable

 

Ngoni v Min of Home Affairs & Ors HH-658-15 (Tsanga J) (Judgment delivered 29 July 2015)

 

The plaintiff issued summons claiming damages arising out of an assault upon him by the third defendant, a police officer, and his unlawful detention. The third defendant had gratuitously assaulted him and detained him for 30 minutes after he went to the police station in question to investigate the alleged arrest of members of the party to which he belonged. The assault took place on 24 May 2014. Summons was issued on 17 February 2015 and served on 24 February 2015. It was not clear why there was such a delay in bringing the claim.

Section 70 of the Police Act [Chapter 11:10] requires that any civil proceedings instituted against the State or a member in respect of anything in relation to the Police Act must be commenced within eight months after the cause of action arose. In view of this provision, the plaintiff withdrew his claim against the Minister of Home Affairs and the Commissioner-General of Police, the first and second defendants, but continued with his action against the third defendant, in his personal capacity. He argued that the third defendant was not acting in terms of the Police Act and that the provisions of the State Liabilities Act [Chapter 8:14] and the Police Act should not remove liability from police officers who act outside the ambit of their professional duties. He argued that the third defendant was acting over zealously and abusing his powers and functions as a police officer and had forfeited the protection of the law in that he did not act reasonably or in good faith and without culpable ignorance or negligence. As such, he did not enjoy the protection granted by the Police Act in terms of the necessity for the action to be brought within a specified time period.

The third defendant argued that civil suits arising out of action by public officials acting in their official capacities and within the scope of their employment are claims against the State. He argued that he was acting within the scope of his employment and his action was carried out in terms of the Police Act. He argued the proceeding against him in his personal capacity were equally out of time, as there was a nexus between acts done by members of the police force and the State, even if these acts were contrary to the performance of their duties.

Held: (1) rights guaranteed by the Constitution are not necessarily immune from being time barred, even though the right itself remains otherwise unaffected. Constitutional rights can be subject to time barring in terms of the time frame during which proceedings are to be brought. Thus, the time limit placed by the Police Act was not of necessity in violation of the constitutional right to seek compensation for unlawful arrest and detention effected by another person. The underlying reasons for limiting the time frame within which a remedy is to be sought may still be pertinent where an officer is sued in his personal capacity, given the link to his work in general.

(2) There are three reasons for limiting the time within which to bring an action against the police: (1) to afford the State the opportunity of investigating the incident and considering whether it should meet the claim instead of incurring costs; (2) to allow the State, which can incur vicarious liability on behalf of its employees, to identify the individual responsible for the delict; and (3) the public interest served by the notice and shortened prescription period in that the State is enabled thereby to take prompt action against an employee who might be abusing his authority or wide discretionary powers.

(3) The first and second reasons were not applicable, but the plaintiff’s efforts to pursue the same action against the third defendant in his personal capacity would nonetheless still embroil his employers in the matter outside the time limits. Granted, not all situations where one is a police officer automatically result in vicarious responsibility or the risk of unlawful harm to others. Much depends on the facts. Here, however, when the plaintiff instituted his legal proceedings, his action was against the police officer in question in his official capacity. He regarded the police officer’s employers as vicariously liable for his actions. What changed the plaintiff’s mind about his original standpoint was that he was out of time with his claim. It was solely on this basis that he now purported to proceed against the officer in his personal capacity on the understanding that the time limit would be in terms of the Prescription Act. The third defendant’s plea in bar on the grounds of prescription would be upheld.

 

 

Police – discipline – trial of member by single officer for disciplinary offence in terms of s 34 of Police Act [Chapter 11:10] – appeal to Commissioner-General in terms of s 34(7) of Act – Commissioner-General dismissing such appeal – constitutional right of appeal to High Court against Commissioner-General’s decision

 

Sadengu v Board President & Anor HH-712-15 (Dube J) (judgment delivered 26 August 2015)

 

The applicant, a police constable, was charged under para 35 of the schedule to the Police Act [Chapter 11:10], tried by a single officer and sentenced to 14 days in detention. On appeal to the Commissioner General, the conviction and sentence were confirmed. He then lodged an appeal with the High Court. While the appeal was pending, the ZRP called a suitability board to determine the officer’s fitness to remain in the police service. He then sought a provisional order to stay procedures of the Board until his appeal was heard by the High Court.

The court had to determine whether the applicant had a right of appeal to the High Court, and whether he satisfied the requirements for an interdict. The court noted that s 171(1)(d) of the Constitution provides that the High Court enjoys appellate jurisdiction only when it is provided by an Act of Parliament, and the Police Act does not so provide. However, the appeal had been brought in terms of s 70(5) of the Constitution which confers a general right of appeal to a higher court. The Commissioner-General was not a higher court, thus the applicant’s right of appeal had not yet been exercised. By not providing for an appeal to the High Court, the Police Act was out of alignment with the Constitution and the applicant should not be deprived of his constitutional right simply because the laws have not yet been aligned.

The court also relied on the concept of inherent jurisdiction developed from the common law. The judge adhered to the maxim that it is the duty of a good judge to interpret his jurisdiction liberally (est boni judicis ampliare jurisdictionem) and reached the conclusion that jurisdiction is only ousted when an Act of Parliament specifically provides that it is ousted. Hence the High Court does have jurisdiction to hear appeals arising from trials by a single officer, when they are confirmed by the Commissioner-General.

However, in casu, the applicant was unable to establish the requirements for an interdict, and the interdict was not granted. (MN)

 

Editor’s note: see Tamanikwa v Board President & Anor HH-676-14 (summarised below), where Mathonsi J concluded that s 70(5) does not give a right of appeal unless one is provided by elsewhere.

 

 

Police – discipline – trial of member by single officer for disciplinary offence in terms of s 34 of Police Act [Chapter 11:10] – appeal to Commissioner-General in terms of s 34(7) of Act – Commissioner-General dismissing such appeal – constitutional right of appeal to High Court against Commissioner-General’s decision

 

Tamanikwa v Board President & Anor HH-676-15 (Mathonsi J) (Judgment delivered August 5 2015)

 

The applicant, a police constable, had been convicted and sentenced to 10 days under para 34 of the Schedule to the Police Act [Chapter 11:10]. Both conviction and sentence were confirmed by the Commissioner-General of Police. The constable then lodged an appeal to the High Court under s 70(5) of the Constitution. When the Police called for a suitability board to assess his suitability for continued employment in the ZRP, the applicant then applied to the High Court for an interdict preventing the board from being held until after the appeal could be heard.

The case hinged on the question whether or not the applicant had a clear right of appeal from the Commissioner-General’s ruling. The court examined two recent conflicting judgments on the matter where a similar issue of its appellate jurisdiction was raised: Chatukuta v Nleya NO & Ors HH-705-14, where the court held that a right of appeal existed where no Act specifically excluded it: and Jani v OIC ZRP Mamina & Ors HH-550-15, where the court reached the opposite conclusion, ruling that since there was no provision for an appeal in the Police Act, there was no right to an appeal. In casu, the court preferred to follow the Jani precedent and held that it had no appellate jurisdiction in the matter. Section 70(5) did not confer such jurisdiction. Both the High Court Act [Chapter 7:06] and the Constitution s 171(1)(d) made it clear that the court’s appellate jurisdiction exists only where an Act provides for it. The appellate jurisdiction could not be imposed merely because it is not excluded. (MN)

 

In Mubanga v OIC ZRP Suburban District HQ & Ors HH-815-15 Hungwe J also concluded that since there was no provision for an appeal in the Police Act, there was no right to an appeal. – Editor.

 

 

Police – discipline – trial of member by single officer for disciplinary offence in terms of s 34 of Police Act [Chapter 11:10] – appeal to Commissioner-General in terms of s 34(7) of Act – Commissioner-General dismissing such appeal – no appeal lying to High Court against Commissioner-General’s decision

 

Tamanikwa v OIC ZRP Beatrice & Ors HH-616-15 (Tagu J) (Judgment delivered 15 July 2015)

 

The applicant was a police constable who had been tried on a disciplinary charge before a single officer and sentenced to a short period of imprisonment in the police detention barracks. He appealed to the Commissioner-General of Police in terms of s 34(7) of the Police Act [Chapter 11:10]. His appeal was dismissed and he was ordered to undergo the period of detention. He filed an appeal to the High Court, relying on s 70(5) of the Constitution, which gives the right to “[a]ny person who has been tried and convicted of an offence … subject to reasonable restrictions that may be prescribed by law, to … appeal to a higher court against the conviction and sentence.” He also sought an interdict restraining the respondents from detaining him. The respondents argued that the application was not properly before the court, as the Police Act does not provide for a further appeal to the High Court against the decision of the Commissioner-General. They also argued that the appellate powers of High Court are conferred to it in terms of s 34(1) of the High Court Act [Chapter 7:06].

Held: (1) other than what is provided for in terms of s 34(7) of the Police Act, there is no provision for an appeal to the High Court from a decision of a single officer. A right of appeal to the High Court is given under s 33, which allows a person convicted by a board of officers to appeal to the High Court and sets out the procedure to be followed. If the legislature wanted to allow the decision of the Commissioner General to be appealed to the High Court it would have expressly said so. It followed that once the Commissioner General has dismissed the appeal from the single officer that would be the end of the matter.

(2) Section 171(1)(d) of the Constitution gives the High Court has such appellate jurisdiction as may be conferred on it by an Act of Parliament. The applicable Act here was the Police Act, which did not give such jurisdiction. It only conferred jurisdiction where a member has been tried, convicted and sentenced by a board of officers. In respect of a single officer, the High Court could only be involved where the Commissioner-General has referred the case to it through the Prosecutor-General because of the perceived inadequacy of the sentence.

 

Editor’s note: in Chatukuta v Nleya NO & Ors HH-705-14 (judgment delivered 19 December 2014), Mawadze J reached the opposite conclusion. See also Sadengu v Board President & Anor HH-712-15, above.

 

 

Practice and procedure – application – chamber application – procedure when application is opposed – must be treated like court application – need for applicant to file heads of argument and to apply for set down – failure to do so may result in opposing party applying to dismiss matter for want of prosecution

 

Permanent Secretary, Ministry of Higher & Tertiary Education v College Lecturers’ Assn & Ors HH-628-15 (Mathonsi J) (Judgment delivered 22 July 2015)

 

A chamber application that is opposed is treated like a court application and must be allocated to a judge for set down on the opposed roll. Such an application cannot be disposed of without the parties filing heads of argument and seeking a set down of the matter on the opposed roll. That would infringe the audi alteram partem rule. An applicant must prosecute his application in terms of the rules relating to court applications because it is, for all intents and purposes, a court application. Where the applicant does not file heads of argument when represented by a legal practitioner or bother setting down the matter for hearing, the opposing party can apply to have the matter dismissed for want of prosecution.

 

 

Practice and procedure – application – form in which application must be made – need for application to be in format provided by rules of court – failure to use such format – need for application for condonation – application otherwise a nullity

 

Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH-667-15 (Mafusire J) (Judgment delivered 31 July 2015)

 

In terms of r 341(1) of the High Court Rules, a chamber application must, if served on an interested party, be in Form 29, with appropriate modifications. In other circumstances, it must be in Form 29B. Legal practitioners are frequently using a completely different format. All that is required of litigants is simply to copy and paste either Form 29B or Form 29, the latter with appropriate modifications. Form 29 is for use in ordinary court applications, or those chamber applications that require to be served. One of its most important features is that it sets out a plethora of procedural rights. It alerts the respondent to those rights. For example, in notifying the respondent of the court application, the form also notifies the respondent of his right to oppose the application and warns him of the consequences of failure to file opposing papers timeously. Form 29B, for simple chamber applicatio