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Report of the Parliamentary Legal Committee on the Labour Amendment Bill, 2005 [H.B.1, 2005]
Parliament of Zimbabwe
August 23, 2005

1. INTRODUCTION
Mr. Speaker Sir, the Parliamentary Legal Committee considered the Labour Amendment Bill 2005, [H.B.1, 2005] within the framework of its mandate and regrets to report that it found the provisions of clause 29 (3) to be in contravention of section 18 (9) of the Constitution.

2. CLAUSE 29 (3) OF THE BILL
Clause 29 (3) seeks to introduce section 90A to the Labour Act. The proposed section 90A will provide for the procedure and evidence in the Labour Court. Section 90A (3) in particular provides as follows:

"The parties or their representatives to any proceedings in the labour court shall be entitled to question or cross examine each other or any witness, but the presiding officer may terminate any such questioning or cross-examination if he or she considers it to be unfair, oppressive, unduly prolonged or unnecessary.

3. SECTION 18 OF THE CONSTITUTION:

3.1 Section 18 of the Constitution guarantees all Zimbabweans the right to protection of the law. It, among other things, provides for the minimum standards of what constitutes a fair trial in both criminal and civil proceedings.

3.2 Section 18 (9) provides:

"Subject to the provisions of this Constitution, every person is entitled to be afforded a fair hearing within a reasonable time by an independent and impartial court or other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations."

3.3 The question of what exactly constitutes a "fair hearing" in the context of section 18 (9) was considered in the case of Holland and others v Minister of Public Service, Labour and Social Welfare 1997 (1) ZLR 186 (5). In that case, it was established that a hearing would be fair if it complies with the rules of natural justice. One of the principles of the rules of natural justice is that there should not be either bias or an appearance of bias on the part of the adjudicating authority.

3.4 Mr Speaker Sir, the wording of section 18 (9) of the Constitution makes it clear that independence and impartiality on the part of a presiding officer is a sine qua non for a fair hearing. It is now an accepted principle of natural justice that not only must courts be independent and impartial, they must be seen to be so. In other words, the litigation system must be such that the presiding officer maintains an absolutely neutral position with very little room for him/her to exercise discretionary powers which may, in turn, be influenced by subjective factors.

3.5 To maintain the neutrality of presiding officers, elaborate rules of procedure and evidence have evolved over time through case law. Every presiding officer is bound by these rules. One such rule is that the presiding officer must, at all times maintain the absolutely neutral position of a referee in an adversarial litigation system. He is not supposed to make subjective judgments on how the parties decide to conduct their cases. As long as the parties adhere to the rules of procedure and evidence, it should not be for the presiding officer to decide whether or not cross examination or questioning by any of the parties has become unduly prolonged.

3.6 To allow a presiding officer to terminate proceedings for such a reason would open the way for subjective considerations to creep into our justice system thereby compromising the impartiality of the courts. This would be particularly so since the Bill does not address the question of what factors are to be taken into account when determining whether cross examination has become unduly prolonged. What would stop a presiding officer from making such a determination simply because he is bored with the case and would like to get it over and done with; or he/she may have a short concentration span on that given day.

4. CONCLUSION

4.1 It is therefore our conclusion that to the extent that the proposed section 90A (3) empowers a presiding officer to terminate questioning or cross examination on the grounds that the same has become unduly prolonged, without providing an objective criteria for the making of such a determination, it violates the right to a fair trial by an independent and impartial court protected by section 18 (9) of the Constitution.

PROF. W. NCUBE
CHAIRMAN - PARLIAMENTARY LEGAL COMMITTEE

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