Adv Goba
Daniel Nemukuyu Senior Court Reporter
SUPERIOR courts in 2017 handed down famous and historic judgments and rulings, which had the effect of changing the law while others were life-changing. The 2017 legal year also saw high profile cases being filed at the High Court, Labour Court, Supreme Court and the Constitutional Court.
Among the earth-shattering court decisions, was the election-related judgment by Justice Nyaradzo Priscila Munangati-Manongwa, which allowed aliens to vote in public elections. The judge ruled that all people born in Zimbabwe and are holders of identity cards endorsed “Alien” with proof that one of their parents was born in Southern Africa, have a right to be registered to vote in public elections.
Justice Munangati-Manongwa made the decision in a case in which a Harare woman Ms Sarah Kachingwe and two political parties were fighting for the rights of people generally referred to as “aliens”.
Ms Kachingwe (58) of Epworth jointly filed the urgent chamber application with MDC-T and the other MDC party led by Professor Welshman Ncube seeking an order compelling the so called “aliens” to be registered as prospective voters ahead of the 2018 harmonised elections. Some had been turned away when they tried to register with the Zimbabwe Electoral Commission in the Biometric Voter Registration.
In another important judgment, Senior President of the Labour Court Justice Gladys Mhuri issued a judgment that put a smile on thousands of workers who were fired on notice following the famous Zuva Petroleum judgment of 2015. Justice Mhuri’s judgment ruled as unlawful, the termination of contracts of employment for the thousands of workers without their consent.
The workers, in terms of the landmark judgment, are entitled to reinstatement or payment of damages. Justice Mhuri ruled that the Labour Amendment Act (Number 5 of 2015) applies in retrospect to cover all those who lost their jobs from July 17, 2015.
The judgment was handed down in a case in which an independent arbitrator Mr Faith Mupangami was seeking confirmation of his decision that ordered the reinstatement of seven workers fired on notice by the National Handling Services (NHS) Private Limited. The amendment in question spells out four grounds on which employment can be terminated. Section 12 (4) (a) of the Act reads:
“No employer shall terminate a contract of employment on notice unless—a)The termination is in terms of an employment code or in the absence of an employment code, in terms of the model code made under Section 101(9) or
b) The employer and employee mutually agree in writing to the termination of the contract; or
c) The employee was engaged for a period of fixed duration or for the performance of some specific service; or
d) Pursuant to retrenchment, in accordance with Section 12 (c) (retrenchment). In terms of that law, for termination on notice to be effected, there has to be consent from the workers and the parties have to agree on a retrenchment package or compensation.
NHS had opposed the workers’ challenge arguing that the company could not have complied with the law that was not yet in existence at the time of termination.
However, Justice Mhuri ruled that Section 18 of the Finance Act clearly brings the law backwards to cover those who were fired before the Labour Amendment Act Number 5 of 2015. The judge ruled that the terminations constituted unlawful dismissal, hence an order for reinstatement or damages in lieu of reinstatement.
The judge held that Section 12 (C) of the Labour Act, which provides for compensation does not apply to those who were unlawfully terminated on notice, hence, payment of damages or retrenchment was the best way to go. High Court judge Justice Priscilla Chigumba ruled that a President does not have power to rescind the appointment of a Prosecutor-General without institution of disciplinary proceedings as outlined in the Constitution of Zimbabwe.
Ruling on an application by the Zimbabwe lawyers for Human Rights to nullify the decision by former President Cde Mugabe to rescind Adv Goba’s appointment, Justice Chigumba said the decision was unconstitutional. Justice Chigumba set aside Government Gazette Extraordinary Notice 642/2017 that rescinded Adv Goba’s appointment.
She interdicted the Judicial Service Commission (JSC) from conducting fresh public interviews to select Adv Goba’s replacement. Justice Chigumba said Adv Goba’s constitutional rights were trampled upon. The judge said the former President had no option, but to swear Adv Goba into office within reasonable time.
Cde Mugabe, the judge said, had already exercised his discretion to appoint Adv Goba and that he was not entitled to a second bite of the cherry. The former President, the judge said, was obliged to furnish Adv Goba with reasons for the rescission of his appointment.
It was also the court’s finding that the former Head of State had no power to issue the General Notice 642/2017 that had the effect of removing Adv Goba from office. Whether Adv Goba was sworn in or not, the court said, he remained a constitutional appointee.
In another case, High Court judge Justice Charles Hungwe handed down a significant judgment that permitted Econet Media Mauritius to distribute its Kwese TV satellite content to the Zimbabwean viewership.
Broadcasting Authority of Zimbabwe was embroiled in a legal wrangle with Econet Media Mauritius’ partner, Dr Dish (Pvt) Ltd, which saw its content distribution licence “cancelled” when thousands of Zimbabweans had already acquired Kwese TV satellite sets. The dispute spilled into the courts with Dr Dish seeking nullification of BAZ’s decision.
Justice Hungwe set aside an earlier decision by BAZ to terminate Dr Dish’s content distribution licence and allowed the media firm to enjoy full rights and benefits of its licence.
The judgment came as a relief to the Zimbabwean masses who were struggling to raise US dollars to pay monthly subscriptions to Multi-choice Zimbabwe, which was enjoying monopoly with its DSTV content.
Multi-choice decided to decline payments through bank card swipe, transfer, EcoCash and bond notes and coins, a hard hitting blow to the masses who could not raise the required currency.
With the liquidity crunch in Zimbabwe, a few people could afford to pay the subscriptions with a sizeable number with relatives in South Africa opting to subscribe from outside the country.
In an important inheritance judgment, High Court judge Justice Hlekani Mwayera ruled that any union that comes after a valid marriage under Marriages Act (Chapter 5:11) is a nullity.
She ruled that women in such illegal affairs are not entitled to inheriting anything from the estate of the late husbands. Justice Mwayera delivered the judgment in a case in which a husband snatcher, who engaged in a customary marriage with another woman’s man in the face of a monogamous civil marriage, was claiming her share from the estate of the man.
Ms Tedreta Ndanga customarily married the late Mr Linus Chirimba Shambare when the man had a subsisting union with Mrs Margaret Shambare in terms of the Civil Marriage Act (Chapter 5:11).
When Mr Shambare died in 2013, a wrangle ensued between the two women as they fought for the surviving spouse status with a view to take over the matrimonial properties in Hatfield and Seke.
Another High Court judge Justice Happias Zhou ruled that co-habiting for decades without any payment of lobola does not upgrade a relationship to a legitimate marriage for purposes of inheritance.
A perception had filtered the country that if a woman stays with a man for years, the lengthy period of stay with the man would qualify her as the surviving spouse in the event of death.
Some lower courts were even swayed into upgrading girlfriends to the status of surviving spouses in estate cases, but High Court judge Justice Happias Zhou, dispelled the claims.
Justice Zhou stripped the surviving spouse’s status off a Harare woman Ms Easter Dzwowa in the estate of the late former Zimbabwe Electoral Commission chief elections officer Mr Lovemore Sekeramayi after evidence of payment of lobola was not produced before the Master of High Court or a magistrate who had dealt with the case.
Ms Dzwowa was staying with Sekeramayi at the time of his death at his Chisipite house, but no proof of lobola payment was produced. However, Sekeramayi’s legitimate wife Faith and her children engaged the services of Harare lawyer Mr Norman Tsarwe of Tadiwa and Associates in the legal battle.
The family contested the decision and the matter spilled into the High Court. Justice Zhou set aside the Master of High Court’s decision recognising Ms Dzwowa as a surviving spouse. The Court also reversed the decision of allocating Ms Dzwowa the Chisipite house in the distribution of the estate of the late Mr Sekeramayi.
Chief Justice Luke Malaba, sitting with eight other judges of the Constitutional Court, threw out a case in which former Higher and Tertiary Education Minister Professor Jonathan Moyo was challenging his arrest and pending prosecution on a litany of charges involving $500 000 siphoned from the Zimbabwe Manpower Development Fund (Zimdef).
In a desperate bid to avoid prosecution, former minister Moyo rushed to the Constitutional Court challenging the lawfulness of his arrest. He argued that a police officer Sergeant Munyaradzi Chacha, who was on secondment to the Zimbabwe Anti-Corruption Commission, had no powers to arrest by virtue of the secondment.
The Constitutional Court ruled that the former minister deserved no preferential treatment and that he should, like anyone else, follow the normal criminal procedure of arrest and appearance before a magistrate.