COURT WATCH 2015
[13th September 2015]
Third Term of 2015 Legal Year Starts on 14th September
The Constitutional Court, Supreme Court, High Court, Administrative Court and Labour Court have been on vacation for a month. The third term of the 2015 Legal Year starts on Monday 14th September. From that date these courts resume regular court sittings to hear appeals, trials and other proceedings in both civil and criminal matters.
The regional magistrates courts and other magistrates courts, which do not have the regular vacations enjoyed by the superior courts, will continue business as usual.
Special Court Sitting on 14th September
There will be a special court sitting at 10 am on Monday 14th September in honour of the late Justice Andrew Mutema. Justice Mutema was senior High Court judge in Bulawayo. He died on 21st August, during the court vacation, and, having served in the armed struggle as a young man, was declared a National Hero and buried at the National Heroes Acre. The special sitting will be at the Constitutional Court/Supreme Court, corner of Samora Machel Avenue and Third Street, Harare.
Judicial activities during vacation
Court vacations are intended to give judges a break from the pressure of routine daily court hearings, but not to relieve them of their other judicial duties – such as reflecting on and writing judgments in cases in which they have “reserved judgment” or in which they have handed down a decision but not issued a written judgement giving reasons for their decision. They will also have been preparing for the coming term’s appeals and trials by reading the papers filed by litigants.
Urgent matters will have been attended to in chambers by duty judges according to a weekly roster, or even where necessary in open court. Taking two high profile examples, Justice Mafusire dealt with a bail application in the Chikumba [CEO of Air Zimbabwe] fraud case and Justice Bhunu has been hearing the Hurungwe West election petition brought by Temba Mliswa – election petitions being inherently urgent and subject to a statutory deadline for final decision. And earlier in the month in the Constitutional Court, Justice Ziyambi dismissed an application for an urgent Constitutional Court hearing of an appeal against the Supreme Court’s decision in the much publicised Zuva Petroleum labour case which led to Labour Act being amended.
Judges’ Other Duties Continue During Court Vacations
Judges have other duties that continue during court vacations. These include a great deal of routine but important work unrelated to court cases they have presided over. Examples of such work for High Court judges are:
reviewing convictions and sentences in magistrates court criminal cases in which the court has imposed a sentence of imprisonment of more than 12 months or a fine of more than level six. Every such case must be promptly submitted to the Registrar of the High Court for review by a High Court judge, and the reviewing judge must consider whether the proceedings were “in accordance with real and substantial justice” – if they were not, the judge has wide powers to take corrective action, including setting aside a conviction, reducing or increasing, sending the case back to the magistrate, or referring the case for a full High Court hearing. Where corrective action is taken, there will either be a High Court judgment explaining why [where the reasons will be of general interest for the guidance of magistrates generally, legal practitioners and the public] or a “white paper” in which the judge gives guidance to the individual magistrate concerned. This “automatic review” work involves much reading and can be extremely time-consuming, and it is an aspect of judicial work not many members of the public know about.
deciding on the further detention of mentally disordered persons – this involves considering whether mentally disordered persons temporarily detained by a magistrate’s order should be indefinitely detained in an institution in terms of the Mental Health Act. The papers in these cases reach the High Court through the Prosecutor-General, who is the statutory official curator ad litem [guardian for court purposes] of persons detained under the Act.
Coming up in the Constitutional Court in the New Term
[What follows is not exhaustive]
The Constitutional Court may hand down some of its reserved judgments, including those listed below [date when arguments were heard and judgment reserved indicated in each item]:
TV/radio listeners licensing system – Majome v Zimbabwe Broadcasting Holdings and Others and other cases heard the same day [12 November 2014] Hon Majome’s protest against compulsory licence fees alleged politically partisan programming by the public broadcaster.
Child marriage Loveness Mudzuru and Ruvimbo Tsopodzi v Minister of Justice, Legal and Parliamentary Affairs and Another [14th January 2015] This case was initiated by Veritas to seek an order outlawing child marriage.
National Prosecuting Authority use of police prosecutors – Zimbabwe Law Officers Association v NPA and Others [14th January 2015]
Insulting the President – section 33, Criminal Law Code – Rusike v The State; Mwonzora v The State [28th January 2015]. In these cases the court’s decision and judgment is awaited on preliminary questions before the court decides the real issue, namely the constitutionality of section 33.
Right to found a family/freedom of movement/residence –Berry (nee Ncube) v Chief Immigration Officer and Another [18th February 2015]. This case concerns the right of a Zimbabwean woman to have her husband living with her in Zimbabwe.
Reminder: Section 19 of the Code of Ethics applicable to all judges [SI 107/2012] requires judges to use their best efforts to ensure that a reserved judgment is delivered within the next 90 days, and lays down that, except in unusual and exceptional circumstances, no judgment should be delivered later than 180 days from the date when it is reserved.
Note: Written judgments set out the reasons for judges’ decisions, and are essential if we are to develop a body of constitutional jurisprudence. Without written judgments lawyers do not know why judges have reached their decisions, which can lead to their taking cases to decide constitutional and legal issues that in fact have already been decided.
Cases for hearing
Constitutionality of the death sentence under the Constitution Several cases initiated by Veritas on different aspects of this subject may come up for hearing during the term: whether the Constitution impliedly repealed the previous law permitting the death sentence – if it did, all death sentences imposed since 22nd May 2013 have been invalid [a serious and important question on which High Court judges have expressed different views, with some refusing to impose the death sentence in murder cases and others imposing it]; whether holding convicted prisoners on death row for many years amounts to cruel, inhuman and degrading treatment entitling them to a reprieve; whether persons correctly sentenced to death before 22nd May 2013 can lawfully be executed after that date.
Criminal defamation – section 96, Criminal Law Code The court has already decided that section 96 was invalid for inconsistency with the former Constitution. Still to be decided is the validity of section 96 vis-à-vis the present Constitution – a point that arises in several cases awaiting hearing by the court. It is expected that the cases will be grouped together for hearing on the same day.
Electoral reform – MDC v ZEC and 5 Others When this case came before the court on 1st July it was postponed to allow the papers to be served on the Attorney-General. The MDC-T seeks a decision that it would be unconstitutional to conduct any election before the completion of electoral law reform [bringing the electoral law into line with the Constitution, something not yet achieved], and the provision of a reliable voters roll compiled by the Zimbabwe Electoral Commission, not the Registrar-General.
Chief Justice to Stop Sitting as Supreme Court Judge
Under the Constitution the Chief Justice is the head of the judiciary and is in charge of the Constitutional Court and the Supreme Court and a member of not only the Constitutional Court and the Supreme Court, but also the High Court; he is also the chairperson of the Judicial Service Commission. Chief Justice Chidyausiku has not in fact presided over High Court cases during his tenure as Chief Justice, but he has sat as a judge in most, if not all, Constitutional Court cases and in a number of Supreme Court cases. When asked by colleagues during the recent Southern African Chief Justices' Forum how he managed to carry out so many duties, he announced that he had decided to stop sitting in Supreme Court cases but would continue to sit in the Constitutional Court.
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