Retired Chief Justice Godfrey Chidyausiku

By Alex Magaisa

THE Chawanda case was revolutionary for its time, a great step forward in advancing the cause of African women.
Chief Justice Dumbutshena had set the tone in an earlier case, the famous Katekwe v Muchabaiwa (1984), which confirmed the status of women as majors.
The central question in Chawanda was whether a woman who was in an unregistered customary union was entitled to compensation for loss of support arising from unlawful killing of her partner.
A driver insured by Zimnat had caused the death of the claimant’s partner (husband at customary law).
The claimant sued for compensation.
The case was tricky because an unregistered customary union was not recognised as a valid marriage, which meant the duty of mutual support which emanates from such a contract was not ordinarily recognised at law.
Yet for all intents and purposes, the claimant was regarded as married to her husband under customary law even though the law did not recognise their unions as valid marriages.
Chidyausiku ruled that she was entitled to compensation.
He stated that he was prepared to exercise his judicial law-making function in order to protect women.
He wrote, “ … the case before me is a proper case for the exercise of my judicial law-making function … The proposition that the courts have a law-making function is well settled …” he said before adding, “There is no doubt that to refuse the plaintiff this right of action is inequitable. This approach is, in my view, consistent with the sentiments expressed by Dumbutshena CJ in Katekwe v Muchabaiwa, namely that the courts by their judgments should seek to heal the pangs inflicted on African women by legal disabilities. This is a movement towards the removal of legal disabilities suffered by African women.”
This bold statement of judicial activism early in his career sharply contrasts with the literalist and mechanist approach he adopted in later cases, such as the labour decision which condemned many workers to redundancy in 2015.
It is hard to reconcile this open-minded judge with the judge who denied Tsvangirai the right to be heard in 2002 apparently because he did not have legal standing even though he was a key presidential candidate in that election.
Anyway, the decision in Chawanda case was clearly aimed at improving the position of women and it was widely welcomed by rights groups and upheld by the Supreme Court.
That was Chidyausiku the activist judge standing up for the ordinary person and to use one of his favourite phrases, “common sense”.
Four years after Chawanda, Chidyausiku handled one of the most high profile litigation after independence — the trial of former President Canaan Banana who was accused of sexual offences.
It was a case that attracted enormous media scrutiny, both within and outside Zimbabwe. It was a case in which he also demonstrated an approach for the unconventional and a preparedness to be innovative in service of the ordinary man.
In sentencing the former President, Chidyausiku decided to award compensation to the victims.
One of the victims, Jefta Dube, had killed a man who had allegedly called him “Banana’s wife”.

Chidyausiku ordered the former President to pay a total of ZW$500 000 to Dube and the murdered man’s wife.
Justifying his unique approach, Chidyausiku said: “Given this situation, the approach to sentence in this matter has to be unique to suit the unique facts of this case. The unique facts of this case are that the State completely let down the complainant by its conscious decision not to prosecute or offer the complainant any form of assistance in his predicament. Given this situation, when it comes to sentence, the interests of society or the State has to take the back seat, while the interests of the complainant takes the front seat. The focus in sentencing the accused in this case must focus on doing justice as between the accused and the complainant. Justice for the complainant must mean receipt of some form of compensation for the abuse he received at the hands of the accused, while the State merely looked on, oblivious of its duty to protect the complainant. There is need therefore in this case, for compensation of the complainant and the secondary victim, the person or family of the person killed by Jefta Dube for having called him the ‘wife of Banana’.
“On this approach, I have decided to suspend a large portion of the sentence which the accused should serve on condition that the accused pay a restitution.”
It was certainly a unique approach to sentencing, the bottom line being to award some relief to the victims.
This was important in light of the fact that the civil claims had prescribed and there would have been no compensation.
Here was a judge trying to do right for victims in a criminal trial.
Uneasy relationship with workers
Two judgments encapsulate Chidyausiku’s inconsistency in respect of the rights of employees in their relationship with employers. In one case, Chidyausiku went out of his way to defend workers, but in another he bluntly applied the law in a way that left workers exposed. I will start with the more positive judgment.
The question of bonus
In Zimbabwe Teachers’ Association (ZIMTA) and Ors v Chairman, Public Service Commission and Ors 1996 (1) ZLR 91 (H) when he was still at the High Court, Chidyausiku was called upon to decide whether or not government could unilaterally cancel public servants’ accrued bonus. In early 1995, government had issued regulations providing for the payment of an annual bonus to public servants. However, in September 1995, Mariyawanda Nzuwa, chairman of the Public Service Commission (PSC) announced a cancellation of bonuses for public servants.
A few days later, the PSC amended the regulations confirming the cancellation. Naturally, public servants were aggrieved by this decision.
ZIMTA, an association representing teachers, challenged the legality of the PSC’s decision.
In his judgment, Chidyausiku ruled in favour of ZIMTA that the State was bound by its contracts of employment with public servants. Since it had agreed to pay an annual bonus, it was therefore legally obliged to meet that contractual commitment.
He also ruled that the PSC did not have the power to make retrospective regulations as it had purported to do. Chidyausiku’s judgment was very positive.
“I find myself in agreement with the view that the State is legally obliged to pay a bonus where it has contracted to do so. The view that accepts the contractual liability of the State is more enlightened and in line with the needs and the exigencies of a modern State. A modern State needs to attract into its service people of high calibre and ability. Those people can only be attracted into the service of the State by favourable conditions, including security of tenure and an assurance that their salaries would be paid at the end of the month. It would be a sad day if the legitimate expectations of the civil servant to be paid a salary at the end of the month were to be left to the whims of a Public Service Commission, which by the way it has handled this case, has failed to impress as a model employer. The State should not be seen to be in the practice of deceiving its servants by promising its servants one thing and reneging on such promises at will with impunity.”
Chidyausiku could not have been more positive towards the plight of ordinary workers, although it left them exposed in future, for it meant that the State could cancel bonus before it had accrued. Still, it was better than nothing.
The Zuva disaster
Chidyausiku’s attitude towards workers in this case could not be more different to his attitude two decades later, when in 2015 he presided over the infamous case of Don Nyamande and Anor v Zuva Petroleum. In this case, the employees’ contracts of employment had been terminated on notice in terms of their contracts and they were paid cash in lieu of notice.
On arbitration, the arbitrator decided that the termination was unlawful since it was not in accordance with the relevant code of conduct.
However, the Labour Court upheld the employer’s appeal on the basis that the employer’s right to terminate employment on notice was intact.
The Supreme Court had to decide whether the Labour Court was right in its conclusion that an employer could terminate employment on notice.
Using a narrow, literal interpretation of the Labour Act, the Chidyausiku court held that the employer’s right to terminate employment on notice had not been affected by the statute.
He interpreted the statute to mean that it did not include termination of employment on notice as an unfair labour practice.
He concluded that the employer’s common law right to terminate employment on notice was protected under the law.
The immediate effects of the Zuva judgment were devastating as it literally plunged workers into a world of darkness.
Employers that had hitherto been unsure pounced on the opportunity and began to dismiss employees en masse.
The judgment was a boon for employers, who had been forced to carry a large labour force, often beyond their immediate needs, in light of the tough economic environment.
The expense of pursuing the retrenchment route and the risk of damages for unfair dismissal, if they terminated on notice, deterred them from taking any action.
Therefore, when the Zuva judgment came, it opened the floodgates of terminations. For employees, the Zuva judgment was an ominous sign. There was a huge outcry across the country. The labour movement condemned the Supreme Court, while critics accused the judges of taking a neo-liberal route, which prioritised the interests of capital and condemned labour.
The pressure resulted in government fast-tracking a Labour Amendment Bill, with cross-party support, the purpose of which was literally to reverse the Zuva judgment.
When the Bill became law, it was written so as to have retrospective effect back to July 17, 2015, the date of the Zuva judgment.
In Chidyausiku’s case, for a man who had been hailed by workers of his ZIMTA judgment, the Zuva judgment was on the opposite end of the scale. What had changed?
Perhaps the mentality arising from social circumstances had changed. In 1995, Chidyausiku was an ordinary judge with a sympathetic ear to the plight of the worker. In 2015, as a member of the recently landed class and an employer, he probably had a better understanding of capital.

MDC -T leader Morgan Tsvangirai

Legacy of dirty hands
Few cases capture the legacy of the Chidyausiku court’s restrictive approach to human rights as the Daily News’ case, which ushered the Dirty Hands doctrine into Zimbabwe’s human rights jurisprudence. The formal name of the case is Associated Newspapers of Zimbabwe (ANZ) (Pvt) Ltd v Minister for Information and Publicity in the President’s Office and Others 2004 (2) SA 602 (ZS). The central party to this case was the Daily News, the biggest and most vibrant private newspaper operating at the time.
The government had just introduced the Access to Information and Protection of Privacy Act (AIPPA), a notorious piece of legislation widely condemned for alleged restrictions on media freedom. ANZ, the publishers of the Daily News did not register with the Media and Information Commission, the public regulator set up under AIPPA to register media houses and journalists.
ANZ then approached the Supreme Court challenging the constitutionality of provisions of AIPPA.
The Chidyausiku court refused to give audience to ANZ on the ground that having not complied with AIPPA, it had dirty hands, hence the Dirty Hands doctrine. Chidyausiku wrote: “This court is a court of law and, as such, cannot connive at or condone the applicant’s open defiance of the law. Citizens are obliged to obey the law of the land and argue afterwards.”
The implication of this was that a litigant wishing to challenge the constitutionality of legislation had to comply first in order to come to court with clean hands. This did not make sense where compliance would make the constitutional challenge academic. It was the first time that the Supreme Court brought the Dirty Hands doctrine, a doctrine of equity into the arena of human rights with the sole purpose of denying an applicant the right to be heard. The court was more concerned with procedural niceties as opposed to the real substance of the issue, namely, whether or not AIPPA was constitutional.
This decision ultimately led to the closure of the Daily News. A few days after the judgment, ANZ submitted an application for registration, but it was turned down by the MIC. There were subsequent legal wrangles, which eventually brought the challenge back to the Supreme Court.
Although some provisions were found to be unconstitutional, key provisions were upheld. The Daily News only returned to the streets six years later after the Government of National Unity was established and media freedoms were relaxed.
Government had achieved its purpose of banning its most critical voice and the Chidyausiku court had played its part.
Even through Chidyausiku tried to defend his decision, most observers saw the treatment of ANZ as political punishment for the Daily News.
Chidyausiku argued in the second case that ANZ had not been barred from approaching the court, but that it was required to submit itself to the law first.
His view was that ANZ had acted in disdain of the law when it did not register and that this was unacceptable.
He denied that the applicant was being punished for its editorial inclination.
“The applicant’s contention that it is being victimised because of its editorial inclination is totally without foundation,” he wrote.
“The issue is not the contents or slant of the applicant’s newspapers. There are several mass media service providers that are as critical of government and the establishment as the applicant’s newspapers. They registered and are operational. The issue, as far as this court is concerned, is one of compliance with the law. Nothing more and nothing less. Nobody is above the law and that includes the applicant.”

[email protected]
I wish to acknowledge my two friends, Charles and Tererai, who helped me in my research. They bear no responsibility however for the content of this article, all of which rests upon my shoulders.