Court Watch 1-2016

COURT WATCH 1/ 2016

[4th February 2016]

The 2016 Judicial Year Opened on 11th January

The judicial year of the “superior courts” – the Constitutional Court, the Supreme Court, the High Court, the Labour Court and the Administrative Court – is divided into three terms.  The 2016 judicial year started on Monday 11th January, the first day of the first of the year’s three court terms [see the official notices listed at the end of this bulletin for the full 2016 court calendars for the various courts].  In accordance with tradition, the occasion was marked by ceremonial court sittings in Harare and Bulawayo.  Chief Justice Chidyausiku presided in Harare, Judge-President Chiweshe in Bulawayo.   This bulletin focuses on aspects of the Chief Justice’s speech dealing with the way forward for Zimbabwe’s justice delivery system.

Decentralization of the High Court to other Provincial Capitals

Currently, the High Court has only two permanent seats, in Harare and Bulawayo.  Circuit courts sit for two weeks, three times a year, in Masvingo, Mutare, Gweru and Hwange.  The Chief Justice noted that police statistics showed that the “number of arrests by the police in the provinces is by far exceeding the rate at which the circuit courts are clearing the cases emanating from the provinces”.  This had prompted a revival of the old debate on transforming the existing circuit courts into permanent High Courts, and he had visited Masvingo to assess the viability of setting up a permanent High Court there.  Financial considerations meant that establishment of new permanent High Courts would have to be in stages, with provincial statistics and availability of infrastructure informing decisions on where to start and the number of judges needed.

Comment:  Decentralizing the High Court by establishing more permanent seats would improve access to justice and justice delivery in the country.  Provincial litigants would be physically closer to “their” High Court, which would hear appeals, criminal trials and civil matters on a continuous basis, with consequential savings in costs. 

Possible Separation of the Profession into Advocates and Attorneys

Speaking on the standard of legal representation in the courts, the Chief Justice said that “…the Constitutional and Supreme Courts have found as a general rule that advocates from the side bar are better prepared and are of much assistance to the court”.  He said that debate had, therefore, been opened with the Law Society over whether or not the profession should remain fused or should be separated into advocates and attorneys.

Note: By “advocates from the side bar” the Chief Justice was referring to those legal practitioners who have chosen to practise in the traditional manner of advocates [the Southern African term for lawyers known elsewhere as barristers] and are generally referred to as such.  By choice, these legal practitioners are not in general legal practice in law firms, and generally take only cases referred to them by law firms for specialised attention – such as drawing up pleadings in civil cases, giving legal opinions, representing clients in civil and criminal trials, appeals and other court proceedings.  This relatively small, but growing, number of legal practitioners practises in much the same fashion as did advocates in the days of the divided profession prior to the Legal Practitioners Act of 1981 – but, unlike the pre-1981 advocates, do not enjoy the protection of an exclusive statutory right of audience in the High Court and Supreme Court. 

Comment:  This could prove a controversial debate.  At Independence in 1980 the fusion of the divided legal profession [advocates on the one hand, attorneys on the other] was high on the new Government’s list of priorities and was soon enacted into law by the Legal Practitioners Act of 1981, which is still the governing Act.  The Act repealed the old Advocates Act and Attorneys, Notaries and Conveyancers Act, and created a fused profession of “legal practitioner”.  Existing “advocates” and “attorneys” automatically became “registered legal practitioners” and new entrants to the legal profession had to be registered as legal practitioners.  All registered legal practitioners were given the right of audience in all courts.    But the new Act did not prevent individual registered legal practitioners from practising as advocates if they so wished; indeed, it was generally anticipated that a “de facto Bar” made up of those individuals would continue to exist and perhaps grow in numbers – and that is what has happened.  The Chief Justice is not the first to suggest that in the result the standard of legal argument in the Supreme Court and Constitutional Court is not always of the standard that judges would prefer.  Whether that sad fact calls for a return to the divided profession is another matter entirely, and will no doubt be thoroughly discussed in the debate between the judiciary and the profession.  Thirty-five years after fusion, and with black Zimbabweans now dominating the legal profession, it should at least be possible for all aspects of the issue to be debated without complaints about racial discrimination complicating the discussion. 

In their Discussion Paper on the Mooted Division (Fission) of the Legal Profession in Zimbabwe [published in 2015], Zimbabwe Lawyers for Human Rights came down firmly against a return to the divided profession; the paper drew attention to other ways of addressing the issue of improving the quality of services provided by the legal profession.

Friends of the court

The Chief Justice also extended the judges’ gratitude to legal practitioners who, at the request of the court, had appeared as amici curiae [friends of the court] in various public interest cases during 2015. 

Note: Recent examples of assistance to the Constitutional Court by amici curiae include the case of The State v A Juvenile CCZ 29/15 about the constitutionality of sentencing male juveniles to corporal punishment, and In Re Prosecutor General CCZ 8/15 about the extent of the Prosecutor-General’s constitutional independence and freedom from external direction and control.  At least one of these amici was not an advocate in the sense mentioned above.

Constitutional Court and Supreme Court Overload

Supreme Court

The Chief Justice reported that the Supreme Court had experienced a steady increase in the number of appeals filed,  There had been a 38% rise in the number of cases filed during 2015 compared to 2014.  The Court, though inundated with cases, had nevertheless completed 610 cases during the year, an increase of 83% in overall output. 

Fewer written judgments  This achievement, however, had meant that the Court had only been able deliver 81 detailed written judgments in 2015.  The other cases had been disposed of by court orders or extempore judgments.  The Chief Justice acknowledged concern in the legal profession over the relatively few written judgments and the disposal of most cases by court orders.  He explained that the court had found it more expeditious to dispose of cases where the law is already settled by simply issuing court orders or extempore judgments, and investing its scarce time in issuing written judgments only in cases where absolutely necessary.  Issuing more written judgments would have meant disposing of fewer cases. The court had endeavoured to carefully select those instances where a written judgment was imperative.

Note:  During court terms, the Supreme Court sits on three or four days a week, usually with three judges on the bench.  The Constitutional Court [made up of nine Supreme Court judges] uses the same court room on Wednesdays. 

Constitutional Court

The Chief Justice said that in the Constitutional Court the number of applications filed had also continued to increase – with 101 applications filed in 2015, compared to the 79 filed in 2014.  The court had managed to clear 78 cases.  It starts 2016 with a backlog of 146 cases, some of them going back to 2013. 

Note: Thirteen written Constitutional Court judgments count as judgments of 2015 [nine handed down by the Constitutional Court during 2015, and four – Judgments numbered CCZ 10 to 13/2015 – handed down at the court’s first sitting of the year, on 11th January this year]. 

Physical Separation of Constitutional Court and Supreme Court?

It was against this background of two overworked courts, sharing not only judges but also a single courtroom, that the Chief Justice raised the need “for the physical separation of the Constitutional Court from the Supreme Court” so that Constitutional Court judges could devote their time to constitutional matters only. 

Note: The present unsatisfactory arrangement, under which nine judges of the Supreme Court double as judges of the Constitutional Court, is only transitional.  It will expire on 21st May 2020 [Constitution, Sixth Schedule, paragraph 18(2)].  After that date the transitional provisions will automatically fall away and there will be a truly separate Constitutional Court, with its own seven [not nine] judges, as envisaged by the permanent constitutional provision, which is section 166.  Only an amendment to the Constitution could bring the permanent provision into force earlier than 2020.

As the Chief Justice did not mention any need for a constitutional amendment, he must be thinking of increasing the number of Supreme Court judges to enable nine of them to concentrate exclusively on constitutional cases.  As there is only one court room in the existing Supreme Court/Constitutional Court building, that expedient would, indeed, require the provision of at least one other suitable court room and chambers for the extra judges, resulting in a physical separation of the two courts ahead of 2020. 

Preparations for a Stand-Alone Commercial Law Court

The Chief Justice revealed that the judiciary, in support of the Government’s efforts to ease the doing of business in Zimbabwe, is working on the modalities of establishing a commercial division in the High Court.  A Commercial Division or Commercial Court with judges wholly dedicated to the resolution of commercial disputes would be able to deal with such matters speedily and would mark the beginning of specialisation as a means of improving overall efficiency. 

Development of Rules of Court to address Dormant and Semi-dormant matters

In a report to the Chief Justice, the Registrar of the High Court cited “ more than forty-thousand records that have been dormant for three or more years” – some of them filed more than ten years ago and were never followed up  and nearly half of them summonses never served on the defendants or respondents.  In order to address the issue of cases that are incomplete and that are not being pursued.  The Chief Justice invited members of the profession and litigating public to assist in the development of “rules of court that will lapse such processes automatically if they are not prosecuted within a reasonable period after filing with the court.”  

 

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