COURT WATCH 16/2012
[28th August 2012]
Supreme Court Judgements and Decisions Pending
The Supreme Court’s mid-term vacation which started on 4th August will come to an end on 2nd September. The vacation does not mean that Judges have necessarily been idle, but it does mean that they have not been hearing cases in court, and should therefore have had time to ponder difficult decisions and write overdue judgments. This bulletin lists some cases of particular interest in which the court’s decision is still awaited; and also other cases of interest in which the court has handed down its decision in the form of a brief order, but has not yet followed up its decision with its reasons for judgment. Some of these cases have been mentioned in earlier issues of Court Watch. Others feature for the first time.
Cases Already Decided in which Reasons for Judgment Long Overdue
The Jestina Mukoko Case  [See further Court Watch 2/2011]
On 26th September 2009 Mrs Mukoko succeeded in her application to the Supreme Court for an order permanently halting her prosecution. Her argument was that her constitutional rights had been breached by unlawful abduction, incommunicado detention, torture or inhuman and degrading treatment by State agents for several weeks before she was taken to court just before Christmas 2008. A unanimous five-judge court granted her application for a stay of prosecution, saying its reasons for judgment would be given later. Nearly three years later those reasons have still not been provided. This was essentially a test case – Mrs Mukoko was one of more than twenty abductees who were subjected to similar treatment by State agents during the closing months of 2008. So the delay in providing the court’s reasons is stalling progress in other cases – both civil and criminal – in which the legal effect of abduction, torture and mistreatment, and unlawful detention of accused persons by State agents is an issue. [See Court Watch 2/2011]
Nyahondo Farm – a Land Acquisition Case 
In this case the issue was whether a farm covered by an investment protection agreement between Zimbabwe and a foreign State was nevertheless subject to compulsory acquisition under the land reform programme in terms of section 16B of the Constitution [special provisions added by Constitution Amendment No. 17 in 2005] denying landowners the right to contest an acquisition in court and get full compensation]. In late 2008 the Supreme Court ruled that section 16B prevailed over the investment protection agreement. It said its reasons for judgment would be provided later. Nearly four years after the decision the Supreme Court’s reasons for it have still not been given. [Note: In a similar case in 2009 a High Court judge applied the Supreme Court’s Nyahondo ruling, but said he regretted having to do so without knowing the Supreme Court’s reasons; he said he had been inclined to decide the question the other way. This illustrates just one of the problems that can be caused when the highest court delays its reasons for judgment in an important case.]
Case Already Heard but Decision Long Overdue
The Independent Journalists case [Court Watch 4/2011]
This is a freedom of expression/press freedom challenge to the constitutionality of section 31(1) (b) of the Criminal Law Code which penalises, in very wide and general terms, the publication of false news. Counsels’ arguments were heard in court in June 2010, and observers present in court, going by the questions put to counsel by the judges during the hearing, predicted an early decision in favour of the newspaper. But the court’s decision has still not been handed down. A decision in this case, if accompanied by reasons for judgment, would assist the lower courts and the Supreme Court itself in dealing with the many “criminal” cases in which freedom of expression issues have arisen. Several such cases have already been referred to the Supreme Court for guidance, but remain unheard [examples in Court Watch 15/2012].
A Recent Case Decided but Awaiting Reasons for Judgment
The Matabeleland By-Elections Case [Court Watch 14/2012]
On 12th July 2012 the Supreme Court, dismissing an appeal from a High Court decision handed down in Bulawayo, ordered the President to take action by 30th August to call three by-elections that had been pending in Matabeleland since August 2009. When announcing this in open court the Chief Justice said that reasons for judgment would be handed down later. They have not yet been handed down. The deadline for compliance with the court’s order is only a day away.
Other Recent Cases Heard but Awaiting Decision
The Too Many Ministers Case [Court Watch 14/2012]
In April this year High Court Judge-President Justice Chiweshe dismissed an application by civil society activists for a declaration that the President had infringed the Constitution, as amended by Constitution Amendment No. 19, by appointing more than the 31 Ministers stipulated in Schedule 8 to the Constitution, which sets out Article 20 of the GPA. Justice Chiweshe in effect decided that the constitutional provision was sufficiently flexible to permit the laid down maximum of Ministers to be exceeded and that the excess number of Ministers appointed was not outrageous. He supported his conclusion by suggesting that unseating the Ministers might “destabilize the government of national unity and cause unnecessary confusion within the body politic and prejudice the public interest at large”, which, he said, would be contrary to the intention behind Schedule 8 to the Constitution.
An appeal against this decision was noted and the Supreme Court sat to hear the appeal on 19th July. After hearing argument from counsel on both sides, the court reserved judgment.
Detention in unhygienic police cells – a WOZA case
In April 2012 four WOZA leaders were arrested while taking part in a street protest against high electricity bills and erratic power supplies. They then spent six days in Harare Central Police Station’s notoriously filthy and unhygienic holding cells, complete with overflowing toilets. On 20th April they applied to the Supreme Court for an order compelling the government to ensure that the holding cells meet basic hygiene conditions, complaining that detention in the cells as they experienced it constituted inhuman and degrading treatment contrary to the Constitution. On 14th June, after an inspection of the cells and hearing argument from both sides, the Supreme Court reserved judgment. It is important that this judgement becomes available as quickly as possible as it may lead to the improvement of conditions in police cells [now generally considered disgraceful] for everybody.
Why is it Important for Courts to Give Reasons for their Decisions?
Making reasons for judgment publicly and promptly available is particularly important for decisions of the Supreme Court, which is the highest court in the country, and whose decisions on points of law must accordingly be followed as precedents by all other courts, e.g., the Mukoko case cited above, on which other court cases are depending. Also, for cases such as the Mukoko case a judgment would assist in determining a case for civil damages.
Judgements being made available from all courts also serves an important function in maintaining the rule of law, by demonstrating the independence, impartiality and accountability of the courts and maintaining public confidence in the administration of justice. A party to a court case, whether it be an appeal to the Supreme Court or a trial in the High Court or a magistrates court, should not, when the case is over, be left speculating as to why his or her argument failed – or succeeded. If, say, an appeal or a claim is curtly dismissed – or upheld – in a brief formal court order, not backed up by reasons for judgment, there will inevitably be speculation as to why court decided the case in the way it did. And that can lead to accusations of bias and partiality, or even bribery and corruption, no matter how unjustified such accusations may in fact be. If there is also undue delay in providing the reasons, that will tend to increase suspicion and dissatisfaction and undermine public confidence.
A rational statement of why and how a decision was reached also serves the objectives of predictability and consistency in the law. This is because in our legal system a court generally follows precedents set in earlier cases where the reasoning is applicable to the factual situation in the case before it. Having reasons for judgment in a case made publicly available means that lawyers advising clients will be better able to predict how cases with similar facts are likely to be decided, and advise clients accordingly.
The legal year for both the Supreme Court and the High Court is broken up into terms and vacations. [2012 Court Calendar available from firstname.lastname@example.org] The Labour Court and the Administrative Court have the same terms and vacations as the High Court. [But, the magistrates courts do not break for vacations. They sit continuously throughout the year.] During a court vacation the courts do not sit to hear appeals, criminal or civil trials or opposed applications except in special circumstances. This does not mean that the court systems shut down completely. Paperwork for cases is lodged and processed as usual. And, although the courts may not be sitting daily, there is always a duty judge available to deal with urgent matters.
Nor does a court vacation mean that the judges can abandon their judicial duties until the next court term. Those who have been granted leave by the Chief Justice or the Judge-President may go away on holiday. Otherwise, judges are expected to use this break from court routine to continue dealing with the many out-of-court aspects of their work, such as writing judgments in cases where they have reserved judgment, preparing for cases set down for the next term and generally keeping up to date with legal developments, such as new legislation and case-law. This out-of-court side of a judge’s work is necessary to ensure effective use is made of court time during term.
A chance to write judgments It is to be hoped that the present court vacation will have given judges the opportunity to finish overdue reserved judgments with a view to handing them down early in the new term. There are some Supreme Court cases in which decisions or reasons for judgment are, embarrassingly, long overdue [examples above]. What is “long” in this context? The Code of Ethics for Judicial Officers published earlier this year [SI 107/2012] provides guidance: it says reserved judgments should normally be handed down within 90 days and, if that is impossible, in any event within 180 days. [SI 107/2012 available from email@example.com]
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