COURT WATCH 1/2011

[November 2011]

Court Watch

Veritas is launching a new e-bulletin – Court Watch.  It will include summaries of key constitutional and human rights cases as well as information on the functioning of the judicial system.

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The Supreme Court

The Supreme Court is the highest court in the land and Zimbabwe’s final court of appeal.  The Supreme Court Act puts it this way in section 26(1): “There shall be no appeal from any judgment or order of the Supreme Court.”  [Before Independence there was a final appeal to the Judicial Committee of the Privy Council in London.]

The Supreme Court is established by section 80 of the Constitution, which forms part of Chapter VIII of the Constitution which deals with “The Judiciary”.  

The court’s jurisdiction – its powers and functions – is set out in the Constitution, in the Supreme Court Act and in other Acts of Parliament.  In exercising this jurisdiction the court may find itself dealing with a wide variety of cases – whether civil or criminal, and including cases raising issues of constitutional law, common law, statute law, customary law, labour law, water law and administrative law.

The Supreme Court is Primarily a Court of Appeal – Not a Trial Court

With one important exception, the Supreme Court is not a “court of first instance” – i.e., not a court in which cases are started.  It is primarily a court of appeal, whose responsibility is to hear appeals from lower courts, which means that it hears cases that have already been decided by lower courts and that it must decide whether the decisions of the lower courts should be confirmed, changed or reversed.  So the typical Supreme Court case is one in which the party who failed in the lower court tries to persuade the Supreme Court to reverse or alter what has been decided in the lower court.  In a criminal appeal the person appealing may be either the person convicted by the lower court or the Attorney-General for the State where the accused person was acquitted.  The only cases which can be initiated in the Supreme Court are those in which the applicant feels that the Declaration of Rights has been, is being, or is likely to be contravened [see below].

Appeals to the Supreme Court

Appeals reach the Supreme Court direct from the High Court and other courts such as the Labour Court , the Administrative Court and other specialist courts such as the Special Court for Income Tax Appeals.  At present appeals from the Labour Court make up more than half the Supreme Court’s caseload.  Appeals from magistrates courts do not go direct to the Supreme Court.  They must be taken first to the High Court.  But a further appeal to from the High Court to the Supreme Court is possible, so a case starting in the magistrates court may eventually reach the Supreme Court.  

[Note:  if a constitutional point is raised by the defendant’s lawyer in any court, including a magistrates court, he or she can ask for that point to be referred to the Supreme Court – see more details below – and for the case to be adjourned while this is being done.]

Appeals from customary law courts do not go direct to the Supreme Court; but they can get there via intermediate appeals at magistrates court and High Court levels.

How an Appeal is Dealt with by the Supreme Court

When hearing appeals the Supreme Court does not ordinarily conduct the sort of court hearing in which witnesses are called to give evidence and cross-examined.  The judges who will hear the appeal are provided with the written record of the evidence given in the lower court, and the lower court’s reasons for its decision and also with written “heads of argument” [summaries of the arguments in point form and in logical order, and listing any legal precedents that will be invoked] from the lawyers representing the parties – the appellant [the person appealing against the decision of the lower court] and the respondent [the person[s] wanting the decision of the lower court to stand].

At the hearing itself the parties are usually represented by legal practitioners, although in civil appeals appellants are entitled to argue their appeals in person if they wish.  In a criminal appeal, on the other hand, the appellant does not have a right to appear before the court in person unless he or she has been granted leave to do so by a judge of the Supreme Court.  [The reason is that if criminal appellants were allowed to appear before the court in person, convicted prisoners might be tempted to file frivolous appeals simply to get out of prison and enjoy their day in court.  South African law used to be the same as ours in this respect – but in 1996 their Constitutional Court ruled that it was unconstitutional because their constitution specifically gives a right of appeal in criminal cases.]

At the hearing the judges listen to the arguments of the parties for and against changing or confirming the lower court’s decision.  Both sides will present their arguments, and the judges will put questions needed to clarify points being made.  Occasionally the court’s decision will be announced on the spot at the end of the hearing with full reasons given orally in the form of an ex tempore judgment; sometimes the court will announce its decision and say that its written reasons will be given later.  It is more usual, however, for judgment to be “reserved”, in which case both the decision and the court’s reasons for the decision will be handed down at a later stage in the form of a written judgment.  [The question of delays in handing down written Judgments and the implications of these delays will be dealt with in a later Court Watch.]

The Supreme Court Sets Legal Precedents for All Other Courts

Zimbabwe follows the doctrine of precedent, under which a court must decide a case in accordance with the law as decided by a higher court in an earlier case in which the facts were not materially different – and should usually follow legal rulings of courts of equal standing.  As the highest court in Zimbabwe the Supreme Court’s decisions are binding on the High Court and all other courts – but not necessarily on the Supreme Court itself.  So while the Supreme Court reserves the right to say that an earlier Supreme Court decision was wrong and should not be followed in future, the High Court and all other courts are bound to follow Supreme Court decisions until the Supreme Court sees fit to change them.  

The Supreme Court as Constitutional Court

The Supreme Court acts as a constitutional court.  Unlike South Africa, Zimbabwe does not have a separate Constitutional Court.  Constitutional cases reach the Supreme Court in three ways:

• by direct application to the Supreme Court by a person alleging a contravention of the Declaration of Rights set out in the Constitution [this is the only type of case that does not reach the court as an appeal from or referral by a lower court]
• in the course of an appeal from a lower court in a civil or criminal case
• if, before concluding a case before it, a lower court refers a possible contravention of the Declaration of Rights to the Supreme Court for its decision [the Constitution states that if a possible contravention of the Declaration of Rights arises in the course of proceedings in lower court, the court may in its own discretion refer the point for decision by the Supreme Court – and must do so if one of the parties so requests, unless the court considers the party's request to be “frivolous or vexatious”.]  There have been a large number of such referral cases in the last two or three years – for example, the celebrated case involving the unlawful abduction and subsequent detention and torture of Jestina Mukoko, and the WOZA case about the misuse of the Public Order and Security Act to interfere with peaceful demonstrations; these cases were referred to the Supreme Court by magistrates hearing criminal proceedings.  Other referred cases are still awaiting hearing.

Composition of the Supreme Court

Minimum number of Supreme Court judges required by the Constitution

Under the Constitution there must be at least four permanent Supreme Court judges – the Chief Justice, the Deputy Chief Justice and at least two other permanent judges of the Supreme Court.  There is no maximum number, and the minimum four may be supplemented by other permanent judges and acting judges.  This allows the number of judges to be increased when the volume of Supreme Court work so requires.  But it is not necessary for all the judges of the Supreme Court to sit in each and every case [see Composition of the Supreme Court for different types of cases below.]   

Present numbers of judges of the Supreme Court

At present there are eight Supreme Court judges:

• Chief Justice Godfrey Chidyausiku
• Deputy Chief Justice Luke Malaba
• four permanent judges [Mr Justice Paddington Garwe, Mrs Justice Elizabeth Gwaunza, Mrs Justice Vernanda Ziyambi and Mrs Justice Rita Makarau]
• two acting judges [Mr Justice Misheck Cheda and High Court judge Mr Justice Yunus Omerjee.  Mr Justice Cheda was recalled from retirement to act for a limited period and will complete his assignment at the end of 2011.  High Court judge Mrs Justice Ann-Mary Gowora will act as a Supreme Court judge with effect from 1st January 2012].

Two of the permanent judges are currently fulfilling other duties outside the Supreme Court – Mrs Justice Gwaunza has been serving as a judge on the International Tribunal for the Former Yugoslavia in the Hague; and Mrs Justice Makarau is acting as full-time chief executive of the Judicial Service Commission, following the Commission’s assumption of overall responsibility for the administration of all courts except customary courts.

Composition of the Supreme Court varies for different types of cases

It is not necessary for all the judges of the Supreme Court to sit in every case coming before the court.  The Supreme Court Act lays down a general rule that the court is properly constituted to hear a case if it consists of three judges, at least one of whom must be a permanent Supreme Court judge; in other words, a Supreme Court bench must never consist of acting judges only.  But the Act goes on to make different provision for different types of case, as follows:  

For constitutional cases – in a case involving a question of the application, enforcement or interpretation, or an infringement, of the Constitution, the Chief Justice or the Minister of Justice and Legal Affairs may direct that the case must be heard by five or more judges, of whom at least three must be permanent Supreme Court judges.  In practice all constitutional cases are heard by five judges.

For appeals from the High Court – these must be heard by at least three judges, i.e., the general rule applies.

For appeals from other courts – appeals from other courts, such as the Labour Court, the Administrative Court, or the Special Court for Income Tax Appeals, may, if the Chief Justice so directs, be heard by two judges, at least one of whom must be a permanent Supreme Court judge.

Cases involving difficult or important questions of law – in such cases the presiding judge may ask the Chief Justice to increase the number of judges originally assigned to the case, for example from three to five.

When Supreme Court Judges May Sit Alone

Supreme Court judges also have judicial functions that do not involving sitting with colleagues in court.  These are functions that are conferred by law on “a judge of the Supreme Court” as opposed to functions conferred on “the Supreme Court”.  In such cases a judge acts singly and does not necessarily sit in open court – instead he or she may sit “in chambers”, meaning in his or her office.  Examples of functions that are conferred on judges of the Supreme Court in this capacity are:

• Hearing appeals from decisions of High Court judges on bail – a recent example of this was when seven persons, charged with murdering a police officer in Glen View in May 2011, appealed against the decision of High Court judge Justice Uchena denying them bail [Deputy Chief Justice Malaba declined to hear the appeal on the procedural ground that the accused persons had not obtained leave to appeal at the High Court level.]
• Granting or refusing the Attorney-General leave to appeal against the discharge of an accused person at the close of the State case – a high-profile example occurred last year, when Chief Justice Chidyausiku heard, and dismissed, the Attorney-General’s application for leave to appeal against the High Court’s discharge of Senator Roy Bennett on serious arms-related charges under the Public Order and Security Act [POSA].

Supreme Court Judges also Constitute the Court Martial Appeal Court

Courts martial are established under the Defence Act to try members of the Defence Forces – the Army and Air Force – for offences in terms of that Act.  They do not form part of the civilian judicial hierarchy topped by the Supreme Court.  But the judges of the highest court martial, the Court Martial Appeal Court, must be Supreme Court judges appointed to the Court Martial Appeal Court by the Chief Justice [Defence Act, section 73, which states the court must have at least two judges].  The Chief Justice is also responsible for making rules of court governing the procedure applicable to the Court Martial Appeal Court.

Veritas makes every effort to ensure reliable information, but cannot take legal responsibility for information supplied.