Court Watch 1/2012

COURT WATCH 1/2012

[January 2012]

Opening of the 2012 Legal Year

With the opening of the new legal year there is a Supreme Court and High Court Calendar ready for 2012 and also a Labour Court Calendar for 2012, both published in the Government Gazette. [Both available from [email protected]]. The calendars give the dates of the courts terms and vacations and also the dates of the High Court Circuits to be held in provincial centres.

The customary opening ceremonies for the new legal year were held on 9th January, taking the form of special sittings attended by judges and invited guests, including, in Harare, the Minister of Justice and Legal Affairs, the President of the Senate and Speaker of the House.. This bulletin summarises key aspects of the speeches, including quotations of important statements, given at these ceremonies by Deputy Chief Justice Luke Malaba in Harare, and Judge President George Chiweshe in Bulawayo. [Complete speeches by Justice Malaba and Justice Chiweshe available from [email protected]] [Note:  comments on the speeches are given below the summary.]

A Responsive and Accountable Judiciary

Justice Malaba started by telling his audience that to retain public confidence the judiciary must be a judiciary of its times. “It must take account of the needs of the changing society within which it holds office. It must absorb the light from the society it serves whilst remaining strong, transparent and humble in its operations.” The opening of the legal year was an opportunity for the judiciary to “account to the people by giving information on changes that have taken place in the administration of justice, highlighting the problems encountered in the past year and suggesting solutions for them.”

Code of Ethics for Judicial Officers

Perhaps the most significant aspect of both speeches was their announcement of a Code of Ethics for judicial officers.  Justice Malaba explained that in times past formal codes of conduct for judicial officers had not been considered necessary in Zimbabwe and other countries.  The attitude had been that it was enough that judges had to work in public and give reasons for their decisions which were subject to public scrutiny and review by higher courts, and that the judicial oath was sufficient guarantee of ethical conduct.  Since about 1990, however, judiciaries the world over had begun to accept the advantages of formal written codes of conduct to guide and regulate judicial conduct, both for judges themselves and as a means of reassuring the public that that “decisions are not the result of an individual judge’s personal preferences and biases.  Justice must not only be blind but also appear to be blind”. In Zimbabwe the subject had been the subject of long debate, with the judiciary finally adopting a code of ethics on 2nd December 2011.

Code not inconsistent with judicial independence Justice Malaba stressed that the code is “a regulation of the judiciary by the judiciary”, not imposed from outside. Explaining that the code is not inconsistent with judicial independence, he made the point that the “premise underlying the grant and protection of the right to judicial independence is that it is in the interest of justice.  It is also vital that the independence be vested in persons who will behave in an ethical manner in their judicial and personal lives.  The code of conduct is therefore intended to promote and not inhibit the independence of the judicial officers in the discharge of their judicial functions.  To be respected, the independence must be seen as existing to protect the impartiality of judicial decisions and not the personal interest of the judicial officers.”

Code not applicable to magistracy The code will apply only to the judges of the Supreme Court and the High Court and the presidents of the Labour Court and Administrative Court.

What will the Code cover? According to Justice Malaba, the code contains detailed specific rules of conduct and constitutes “a definitive code of personal behaviour”, providing guidance to judicial officers “about what is and is not acceptable conduct”. It also provides a procedure for receiving, investigating, hearing and determining complaints from the public about misconduct by judicial officers.

Judicial Service Budget

Justice Malaba said there had been a marked improvement in the funding of court operations since the Judicial Service Commission gained control of the budget for the Judicial Service at the beginning of 2011.  This followed the bringing into force of the Judicial Service Act [available from [email protected]] the previous year.  In Bulawayo Justice Chiweshe also referred to this improvement, pointing out that when the Ministry of Justice and Legal Affairs controlled the budget the Ministry’s priorities did not always coincide with those of the judiciary. “The control of our budget has enabled us to set our own priorities in terms of what activities we believe will enhance our operations, and, ultimately have a positive impact on justice delivery.  For example, the supply of basics such as stationery and office provisions has dramatically improved. Magisterial circuit courts that had been abandoned due to unavailability of vehicles have now been resuscitated.”

Delays and Backlogs in Justice Delivery

Both judges addressed this subject, with Justice Malaba covering the situation in the Supreme Court and the High Court, Harare, and the Labour and Administrative Courts, and Justice Chiweshe concentrating on the High Court, Bulawayo.

Supreme Court Justice Malaba said there had actually been a drop in the number of appeals and constitutional cases reaching the Supreme Court.  The court had disposed of all the cases set down for hearing.  Many cases lodged had not, however, been set down for hearing, because they were not yet ready.  The court had also decided to speed up the disposition rate by wherever possible giving its decision and reasons for judgment at the end of a hearing – “unless the complexity of the legal questions involved requires that more time be taken for reflection and collation of reasons for judgment”. This meant that reserved judgments are now the exception rather than the norm.

High Court, Harare Justice Malaba described the situation as a “cause for concern”, with an increase of 33% in the number of cases filed and a “disappointing” disposition rate.  He discussed in critical terms such problems as a disproportionate number of cases being postponed without a hearing and cases heard but not decided, and insufficient and ineffective use of the pre-trial conference mechanism – and concluded that the solution was to have “all those concerned in litigation to put more hours in the hearing and determination of cases”. He accordingly dismissed suggestions for the appointment additional judges, saying: “Until we can show that no other group of men and women assembled could put any better effort to clear the backlog of the cases it would be difficult to justify the appointment of additional judges whilst maintaining the low disposition rates revealed by the statistics.” The situation in Harare compared unfavourably with that in Bulawayo.

High Court, Bulawayo Justice Chiweshe described the clearance rate in civil cases as satisfactory.  The disposition of appeals was hampered by delays in preparing the records of the proceedings in the lower courts.  Major general problems were too few courtrooms [only 3 courtrooms for 5 judges, making speedy disposition of cases difficult], a disturbing deficit in support staff and equipment, such as the High Court building being without a telephone switchboard for five years.

Need to increase magistrates court civil jurisdiction Justice Chiweshe called for an urgent upward review of the present jurisdictional ceiling of $2 000 for magistrates court civil cases, suggesting that some of the increased High Court workload could be attributed to this factor. Justice Malaba, too, mentioned the need to balance High Court and magistrates court civil jurisdiction “to ensure that only those cases that deservedly fall within the jurisdiction of the High Court find their way there”. 

Labour Court Justice Chiweshe said this court had an ever-increasing case load with which the current 12 Presidents could not cope, despite their being obviously hard-working.  There was accordingly justification for an increase in their number.

Problems Attributed to Litigants/Legal Practitioners

Justice Malaba complained that the Supreme Court’s increased number of chamber applications was partly attributable to failure by legal practitioners to comply with the time-limits for noting appeals as laid down by the rules of court.  He also said that the High Court statistics suggested a misuse by legal practitioners of the procedure of urgent chamber applications.  Justice Chiweshe said that only 25% of criminal appeals from magistrates courts were actually pursued by the appellants, suggesting that a number of appeals were noted purely for the purpose of securing bail for the appellant.

Tribute to Retired Justice Wilson Sandura

Justice Malaba also paid tribute to Justice Sandura, who retired at the end of July 2011 on attaining the compulsory retirement age of 70 stipulated in the Constitution.

Veritas Comments

Code of ethics not yet available The text of the Code has not been officially released because it still requires the final approval of the Judicial Service Commission, which will incorporate the code in a set of regulations made under sections 18 and 25 of the Judicial Service Act.  Section 25 requires the Commission to get the approval of the Minister of Justice and Legal Affairs before gazetting the regulations in a statutory instrument that will give the Code binding legal force. A guide to what to expect in the Code appears in section 18 of the Judicial Service Act, which envisages a code covering:

“(a)  the requirement of strict impartiality of judicial officers when performing their duties;

(b)  the requirement of judicial officers to discharge duties with propriety without being influenced by‑

(i)  any partisan interest, or public clamour or fear;

(ii)  family, personal, social, political or other interests;

(c)  the requirement of judicial officers not to make any public comment that may affect or may reasonably be construed to affect the outcome of any proceedings or impair their fairness, or make any comment that might compromise a fair trial or hearing;

(d)  the prohibition or limitation of gifts to judicial officers or to members of their families residing with them that may influence or reasonably be construed to influence the execution of the duties of judicial officers;

(e)  the definition of any other corrupt practices or acts of improper behaviour on the part of judicial officers.”

Veritas will make the code of ethics for judges available when it is gazetted.

Code of ethics for magistrates A code for magistrates is also needed and the Judicial Service Commission have said they are working on this.

Administration of Judicial Service budget Under section 10 of the Judicial Service Act the Secretary of the Commission is the accounting officer for the Judicial Service.

Comparison between Harare and Bulawayo clearance rates The Bulawayo High Court clearance rate is satisfactory in spite of too few court rooms, but there have been complaints about long delays in the Harare High Court.  The clear implication of Justice Malaba’s remarks about the Harare delays is that all concerned, including the judges, need to work harder.

Supreme Court delays Some may feel that Justice Malaba went too easy on the Supreme Court.  There was no mention of important cases in which decisions were given a long time ago but reasons have not been furnished, of which the Jestina Mukoko case decided in September 2009, is but one example.]

Transcription of court records Appeals cannot be heard without a written record of the proceedings in the lower court.  Delays in transcription hold up the setting down and hearing of appeals in both the High Court and Supreme Court.  This is a serious problem of many years’ standing.

Magistrates’ jurisdiction in civil cases Raising the $2 000 jurisdictional ceiling [i.e. the value of the claim in dispute] for magistrates court civil cases, as suggested by both judges, is relatively simple and does not require an Act of Parliament.  It can be implemented by a statutory instrument gazetted by the Minister of Justice and Legal Affairs in terms of the Magistrates Court Act.

Justice Sandura Justice Malaba’s tribute was an overdue public acknowledgment of Justice Sandura’s immense contribution to Zimbabwean jurisprudence during a judicial career spanning 28 years.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.