BILL WATCH 34/2022
The Judicial Laws Amendment Bill : A Virtual Problem
The Judicial Laws Amendment Bill [link] was gazetted on the 29th April and passed its first reading in the National Assembly on the 21st June 2022, and then was referred to the Parliamentary Legal Committee.
The memorandum to the Bill explains that the Bill’s purpose is twofold:
· to provide for virtual court sittings in criminal and civil proceedings, and
· to bring provisions of the following seven statutes into line with the Constitution:
o the Constitutional Court Act,
o the Supreme Court Act,
o the High Court Act,
o the Administrative Court Act,
o the Labour Act,
o the Magistrates Court Act, and
o the Criminal Procedure & Evidence Act.
In addition to aligning the seven Acts with the Constitution, the Bill will amend them in other important ways, as we shall explain later in this Bill Watch.
We shall deal first with the provisions for virtual court sittings (which are the same for all seven statutes) and then with the other amendments the Bill will make.
Virtual Court Sittings
In 2017 the High Court and Magistrates Court Acts were amended to permit rules of court to be made allowing the courts to conduct civil cases virtually, i.e. by electronic means which allow the judges and magistrates and all the parties to see and hear each other at the same time even though they are not physically in the same place. According to the 2017 amendment, these virtual hearings may be held only if all the parties to the proceedings have agreed, and they cannot be held in criminal cases.
Pursuant to the 2017 amendments, the High Court Rules published last year provide in rule 56(28) that parties to a civil action may consent to their action being conducted by way of virtual sitting, and in that event the judge may allow the use of any electronic or other means of communication for presentation of evidence or argument. [Oddly, the rules apply only to civil actions, not to the hearing of civil applications].
The amendments proposed in the Bill will allow all courts except traditional courts to hold virtual hearings if their rules so permit, and will allow criminal proceedings as well as civil proceedings to be held virtually. The Bill will retain the proviso that was contained in the 2017 amendments: virtual hearings will be held only if all the parties agree.
Comments: Conducting court proceedings virtually, by a video conferencing platform akin to Zoom or Skype, may speed up the proceedings and will probably reduce their cost. On the other hand, there are problems:
The first is constitutional. Section 69 of the Constitution guarantees accused persons the right to a public trial, and guarantees civil litigants the right to a public hearing. Criminal and civil trials, in other words, must as a rule be held in public, though there are recognised exceptions such as where children are involved or where the parties have a legitimate right to privacy. It is important to realise that the constitutional right to public hearings belongs not just to the parties but to the public as well. Members of the public have a very real interest in ensuring that legal proceedings are held in public:
“the searching light of public opinion provides the most effective safeguard against the danger of an arbitrary and despotic judiciary.”
Hence the press and the public must have access to court proceedings (apart from those involving children or those in which the parties have a legitimate reason for privacy) to ensure that the courts are maintaining time-honoured standards of independence, integrity, impartiality and fairness.
As a result, rules of court that provide for virtual hearings must ensure that, with only a few exceptions, the press and members of the public have access to the hearings [It should be noted that rule 56 of the High Court Rules, which we mentioned earlier, makes no provision for public access to virtual hearings].
The second problem with virtual hearings is practical. Most people in this country do not have access to computers and are unfamiliar with their use, so they will not be able to participate in virtual hearings. Most accused persons fall into this category, so most criminal proceedings will have to be conducted as they are today, in person and in court.
The next problem is also practical: anyone who has participated in virtual meetings using Zoom or Skype will know that the systems are prone to interruptions, blackouts, loss of sound and other technical troubles. It will be difficult, to say the least, to conduct court proceedings virtually unless the existing systems are greatly improved.
Furthermore, even if technical troubles are overcome, lawyers may find it hard to conduct trials virtually. Cross-examining a disembodied head on a computer screen will lack the immediacy of person-to-person confrontation.
The final problem relates to the way the amendments are drafted:
o The amendments to the Constitutional Court Act, the Supreme Court Act, the High Court Act and the Magistrates Court Act all state that rules of court for virtual sittings “shall” – i.e. must – apply to both criminal and civil proceedings, which means that the same rules must apply to both types of case. In fact separate rules are almost always made for civil and criminal cases so, in that respect, the new rules for virtual sittings will be anomalous.
o The amendments to the other Acts (which apply to courts which have no jurisdiction to deal with criminal cases) all contain a provision stating that “Rules of court for virtual sittings shall apply”, which is completely unintelligible.
We turn now to examine the other amendments which the Bill will make to the seven Acts concerned.
Amendments to the High Court Act
Limiting the jurisdiction of the High Court
Clause 5 of the Bill will insert a proviso in section 13 of the High Court Act which will prohibit any case being taken to the High Court which falls within the jurisdiction of the Administrative Court, the Labour Court, a magistrates court or any other court or tribunal. The proviso will prohibit the High Court from hearing such cases except on appeal or review.
Comment: This proposed amendment is both unconstitutional and pernicious.
It is unconstitutional because section 171(a) of the Constitution states quite clearly that:
“The High Court … has original jurisdiction over all civil and criminal matters throughout Zimbabwe.”
This means that the Constitution gives the High Court the power (and the duty) to hear every case brought to it in the first instance, whether or not the case also falls within the jurisdiction of some other court. An Act of Parliament cannot limit the High Court’s constitutional jurisdiction.
It is most undesirable even if the amendment were constitutional, it is most undesirable. If it is enacted it will lead to technical disputes about whether particular cases can be dealt with by the High Court or whether they fall within the jurisdiction of some other court. Take the following example:
An employee of a company leaves his employment but keeps the company car that was issued to him. He maintains he is entitled to keep the car because of his employment contract, but the company disputes this. Company officers go to his house and seize the car forcibly. He applies to the High Court for an order restoring his possession of the car.
In this example, the High Court would first have to decide if it had jurisdiction to deal with the case, and the court’s decision might be taken on appeal to the Supreme Court and even the Constitutional Court. So years might elapse before the High Court could decide who should have the car – the real issue in the case.
Specifying the territorial jurisdiction of specialised divisions
The Bill also seeks to amend section 46A of the High Court Act, which deals with specialised divisions of the High Court. The Bill will insert a new subparagraph allowing the Chief Justice to specify the areas under the jurisdiction of each division.
Comment: It is not clear why the amendment is necessary. According to the Bill’s memorandum it is intended to stop “forum shopping”, i.e. litigants filing cases in branches of the High Court where they believe the judges will give them a sympathetic hearing. If forum shopping is a problem, it applies to the High Court generally rather than to its specialised divisions so it is misplaced in section 46A.
In any event the amendment is probably unconstitutional because according to section 171(3) of the Constitution each specialised division of the High Court must be able to exercise the general jurisdiction of the High Court in all matters brought before it. In other words, each specialised division has jurisdiction throughout Zimbabwe and that jurisdiction cannot be reduced by an Act of Parliament.
Amendments to the Labour Act
Apart from providing for virtual hearings of the Labour Court, the Bill will amend the Labour Act in the following respects:
· To replace section 85 of the Act, which currently prescribes the qualifications of judges of the Labour Court, with a new section referring to section 179 of the Constitution where their qualifications are set out.
· To insert a new section 92BB providing for the appointment of Messengers and Deputy Messengers of the Labour Court to serve court process (i.e. summonses and other court documents) and to enforce decisions of the Court. Police officers will be empowered to serve court process if there is no messenger available to do so.
· In sections 92C and 92F to replace references to President of the Labour Court and replace them with Judge, which is the title given by the Constitution to judicial officers of the Labour Court.
Amendments to the Magistrates Court Act
In addition to extending the existing provision for virtual hearings so that it applies to criminal as well as civil proceedings, the Bill will make the following changes to the Magistrates Court Act:
Clause 15 of the Bill will give magistrates jurisdiction to impose the draconian sentences laid down in section 60A of the Electricity Act and section 38 of the Railways Act – up to 10 years in prison. All magistrates will be given power to impose these sentences.
Comment: It would be better to reserve this special jurisdiction for senior magistrates with greater experience in sentencing.
Clauses 16 and 17 of the Bill propose to alter the sentencing levels for scrutiny and review. At present, if a magistrate sentences a person to a fine of between levels 4 and 6 (currently Z$10 000 and Z$30 000 respectively) or to a prison sentence of between three and 12 months, the record of the case is sent to a regional magistrate who scrutinises it to ensure that the case was conducted in accordance with real and substantial justice. If a magistrate sentences a person to a higher sentence – a fine of more than level 6 or a prison sentence of more than 12 months – the record of the case is sent for automatic review to a judge of the High Court, who can correct or set aside the proceedings if he or she thinks they were not in accordance with real and substantial justice.
The Bill proposes to change the sentence levels so that cases will be sent to a judge for automatic review only where a magistrate has imposed a fine of more than level 10 (currently Z$70 000) or a prison sentence of longer than two years. Cases where lower sentences have been imposed will be sent to regional magistrates for scrutiny.
Comment: The purpose of the change, according to the Bill’s memorandum, is to relieve judges of a burdensome case load. Whether the right way to solve the problem is to transfer the case load to regional magistrates, is debatable.
Amendments to the Criminal Procedure and Evidence Act
The Bill proposes to make the following amendments to the Criminal Procedure and Evidence Act [the CP&E Act]:
Remand and bail proceedings to be held virtually
Clause 18 of the Bill will insert a new section in the CP&E Act which will require remands (other than initial remands) and bail proceedings to be conducted virtually, by closed-circuit television or similar methods, so long as facilities for virtual hearings are available and so long as accused persons and prosecutors are given the right to question witnesses and observe their reactions (presumably to questions). The following points should be noted:
· There is no requirement that the accused and the prosecutor must consent before proceedings can be held virtually.
· There is also no requirement that the accused person and the prosecutor must be able to see each other, or that they must be able to see the magistrate or judge presiding over the proceedings.
· As with all the other provisions for virtual hearings in the Bill, there is no provision for the public to sit in or observe the proceedings.
This proposed amendment is unconstitutional and undesirable for the following reasons:
Section 50(5)(e) of the Constitution gives detained persons the right to challenge the lawfulness of their detention in person before a court. A person who challenges his or her remand while sitting in prison looking at a computer screen cannot be said to be doing so in person before a court, particularly if he or she cannot see the judge or magistrate or the prosecutor.
· Remand and bail proceedings, though they are pre-trial proceedings, are not mere formalities. They affect the liberty of accused persons.
· Because they affect personal liberty, remand and bail proceedings are of vital importance to the public. Public scrutiny may be the only safeguard preventing accused persons from being kept in detention for months and years on end awaiting trial.
This amendment must either be deleted entirely from the Bill or else altered to require accused persons to consent before their remand and bail proceedings can be held virtually, and to enable the public and press to monitor the proceedings.
Persons with hearing and speech impairments
It is a basic principle of both the Constitution and our common law that accused persons must be able to understand what is going on at their trials so that they can conduct their defence. Hence, if accused persons are so incapacitated by deafness and inability to speak that they cannot defend themselves in court, then under the common law they cannot be tried and should be discharged.
Section 193 of the CP&E Act however, declares that such people should instead be detained in a prison, institution or other place at the pleasure of the President – even though they have not been convicted of any crime.
Clause 19 of the Bill will replace this appalling provision with a new section 193 which will order the State to provide a sign language interpreter where one is needed. If the State fails to do so, the court will be empowered to release the accused person on bail or to remove the person from remand so that he or she can be summonsed once a sign language interpreter becomes available. Although the new section does not say so, the implication is that if a suitable interpreter cannot be provided the accused person will not be tried – which is basically the common-law position.
Comment: The proposed amendment will go some way to ensuring equal protection and benefit of the law for persons with disabilities.
Removal of derogatory terms
Section 246 of the CP&E Act states that persons “afflicted with idiocy … or imbecility of mind” are incompetent to give evidence in criminal cases. Clause 20 of the Bill will replace the section with a new one which has the same meaning but uses terms more in line with the UN Convention on the Rights of Persons with Disabilities of 2008.
The main objective of the Bill seems to be expedite legal proceedings and to reduce legal costs. The amendments it proposes may go some way towards achieving this objective but, as we have pointed out in this Bill Watch, they will do so at the expense of fundamental human rights. The Bill needs extensive amendment to make it comply with the Constitution and with the basic concepts of fairness that lie at the heart of our procedural law. We hope it will receive those amendments.