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Opening of the 2012 legal year - Court Watch 1/2012
January 31, 2012
of the 2012 Legal Year
With the opening
of the new legal year there is a Supreme Court and High Court Calendar
ready for 2012 and also a Labour Court Calendar for 2012, both published
in the Government Gazette. [Both available from firstname.lastname@example.org].
The calendars give the dates of the courts terms and vacations and
also the dates of the High Court Circuits to be held in provincial
opening ceremonies for the new legal year were held on 9th January,
taking the form of special sittings attended by judges and invited
guests, including, in Harare, the Minister of Justice and Legal
Affairs, the President of the Senate and Speaker of the House..
This bulletin summarises key aspects of the speeches, including
quotations of important statements, given at these ceremonies by
Deputy Chief Justice Luke Malaba in Harare, and Judge President
George Chiweshe in Bulawayo. [Complete speeches by Justice Malaba
and Justice Chiweshe available from email@example.com]
[Note: comments on the speeches are given below the summary.]
and Accountable Judiciary
started by telling his audience that to retain public confidence
the judiciary must be a judiciary of its times. “It must take
account of the needs of the changing society within which it holds
office. It must absorb the light from the society it serves whilst
remaining strong, transparent and humble in its operations.”
The opening of the legal year was an opportunity for the judiciary
to “account to the people by giving information on changes
that have taken place in the administration of justice, highlighting
the problems encountered in the past year and suggesting solutions
of Ethics for Judicial Officers
most significant aspect of both speeches was their announcement
of a Code of Ethics for judicial officers. Justice Malaba explained
that in times past formal codes of conduct for judicial officers
had not been considered necessary in Zimbabwe and other countries.
The attitude had been that it was enough that judges had to work
in public and give reasons for their decisions which were subject
to public scrutiny and review by higher courts, and that the judicial
oath was sufficient guarantee of ethical conduct. Since about 1990,
however, judiciaries the world over had begun to accept the advantages
of formal written codes of conduct to guide and regulate judicial
conduct, both for judges themselves and as a means of reassuring
the public that that “decisions are not the result of an individual
judge’s personal preferences and biases. Justice must not
only be blind but also appear to be blind”. In Zimbabwe the
subject had been the subject of long debate, with the judiciary
finally adopting a code of ethics on 2nd December 2011.
Code not inconsistent
with judicial independence Justice Malaba stressed that the code
is “a regulation of the judiciary by the judiciary”,
not imposed from outside. Explaining that the code is not inconsistent
with judicial independence, he made the point that the “premise
underlying the grant and protection of the right to judicial independence
is that it is in the interest of justice. It is also vital that
the independence be vested in persons who will behave in an ethical
manner in their judicial and personal lives. The code of conduct
is therefore intended to promote and not inhibit the independence
of the judicial officers in the discharge of their judicial functions.
To be respected, the independence must be seen as existing to protect
the impartiality of judicial decisions and not the personal interest
of the judicial officers.”
Code not applicable
to magistracy The code will apply only to the judges of the Supreme
Court and the High Court and the presidents of the Labour Court
and Administrative Court.
What will the
Code cover? According to Justice Malaba, the code contains detailed
specific rules of conduct and constitutes “a definitive code
of personal behaviour”, providing guidance to judicial officers
“about what is and is not acceptable conduct”. It also
provides a procedure for receiving, investigating, hearing and determining
complaints from the public about misconduct by judicial officers.
said there had been a marked improvement in the funding of court
operations since the Judicial Service Commission gained control
of the budget for the Judicial Service at the beginning of 2011.
This followed the bringing into force of the Judicial
Service Act the previous year. In Bulawayo Justice Chiweshe
also referred to this improvement, pointing out that when the Ministry
of Justice and Legal Affairs controlled the budget the Ministry’s
priorities did not always coincide with those of the judiciary.
"The control of our budget has enabled us to set our own priorities
in terms of what activities we believe will enhance our operations,
and, ultimately have a positive impact on justice delivery. For
example, the supply of basics such as stationery and office provisions
has dramatically improved. Magisterial circuit courts that had been
abandoned due to unavailability of vehicles have now been resuscitated."
and Backlogs in Justice Delivery
addressed this subject, with Justice Malaba covering the situation
in the Supreme Court and the High Court, Harare, and the Labour
and Administrative Courts, and Justice Chiweshe concentrating on
the High Court, Bulawayo.
Justice Malaba said there had actually been a drop in the number
of appeals and constitutional cases reaching the Supreme Court.
The court had disposed of all the cases set down for hearing. Many
cases lodged had not, however, been set down for hearing, because
they were not yet ready. The court had also decided to speed up
the disposition rate by wherever possible giving its decision and
reasons for judgment at the end of a hearing – “unless
the complexity of the legal questions involved requires that more
time be taken for reflection and collation of reasons for judgment”.
This meant that reserved judgments are now the exception rather
than the norm.
Harare Justice Malaba described the situation as a “cause
for concern”, with an increase of 33% in the number of cases
filed and a “disappointing” disposition rate. He discussed
in critical terms such problems as a disproportionate number of
cases being postponed without a hearing and cases heard but not
decided, and insufficient and ineffective use of the pre-trial conference
mechanism – and concluded that the solution was to have “all
those concerned in litigation to put more hours in the hearing and
determination of cases”. He accordingly dismissed suggestions
for the appointment additional judges, saying: “Until we can
show that no other group of men and women assembled could put any
better effort to clear the backlog of the cases it would be difficult
to justify the appointment of additional judges whilst maintaining
the low disposition rates revealed by the statistics.” The
situation in Harare compared unfavourably with that in Bulawayo.
Bulawayo Justice Chiweshe described the clearance rate in civil
cases as satisfactory. The disposition of appeals was hampered by
delays in preparing the records of the proceedings in the lower
courts. Major general problems were too few courtrooms [only 3 courtrooms
for 5 judges, making speedy disposition of cases difficult], a disturbing
deficit in support staff and equipment, such as the High Court building
being without a telephone switchboard for five years.
Need to increase
magistrates court civil jurisdiction Justice Chiweshe called for
an urgent upward review of the present jurisdictional ceiling of
$2 000 for magistrates court civil cases, suggesting that some of
the increased High Court workload could be attributed to this factor.
Justice Malaba, too, mentioned the need to balance High Court and
magistrates court civil jurisdiction “to ensure that only
those cases that deservedly fall within the jurisdiction of the
High Court find their way there”.
Justice Chiweshe said this court had an ever-increasing case load
with which the current 12 Presidents could not cope, despite their
being obviously hard-working. There was accordingly justification
for an increase in their number.
Attributed to Litigants/Legal Practitioners
complained that the Supreme Court’s increased number of chamber
applications was partly attributable to failure by legal practitioners
to comply with the time-limits for noting appeals as laid down by
the rules of court. He also said that the High Court statistics
suggested a misuse by legal practitioners of the procedure of urgent
chamber applications. Justice Chiweshe said that only 25% of criminal
appeals from magistrates courts were actually pursued by the appellants,
suggesting that a number of appeals were noted purely for the purpose
of securing bail for the appellant.
to Retired Justice Wilson Sandura
also paid tribute to Justice Sandura, who retired at the end of
July 2011 on attaining the compulsory retirement age of 70 stipulated
in the Constitution.
Code of ethics
not yet available The text of the Code has not been officially released
because it still requires the final approval of the Judicial Service
Commission, which will incorporate the code in a set of regulations
made under sections 18 and 25 of the Judicial Service Act. Section
25 requires the Commission to get the approval of the Minister of
Justice and Legal Affairs before gazetting the regulations in a
statutory instrument that will give the Code binding legal force.
A guide to what to expect in the Code appears in section 18 of the
Judicial Service Act, which envisages a code covering:
requirement of strict impartiality of judicial officers when performing
(b) the requirement
of judicial officers to discharge duties with propriety without
being influenced by-
(i) any partisan
interest, or public clamour or fear;
personal, social, political or other interests;
(c) the requirement
of judicial officers not to make any public comment that may affect
or may reasonably be construed to affect the outcome of any proceedings
or impair their fairness, or make any comment that might compromise
a fair trial or hearing;
(d) the prohibition
or limitation of gifts to judicial officers or to members of their
families residing with them that may influence or reasonably be
construed to influence the execution of the duties of judicial officers;
(e) the definition
of any other corrupt practices or acts of improper behaviour on
the part of judicial officers.”
make the code of ethics for judges available when it is gazetted.
Code of ethics
for magistrates A code for magistrates is also needed and the Judicial
Service Commission have said they are working on this.
of Judicial Service budget Under section 10 of the Judicial Service
Act the Secretary of the Commission is the accounting officer for
the Judicial Service.
between Harare and Bulawayo clearance rates
High Court clearance rate is satisfactory in spite of too few court
rooms, but there have been complaints about long delays in the Harare
High Court. The clear implication of Justice Malaba’s remarks
about the Harare delays is that all concerned, including the judges,
need to work harder.
Some may feel
that Justice Malaba went too easy on the Supreme Court. There was
no mention of important cases in which decisions were given a long
time ago but reasons have not been furnished, of which the Jestina
Mukoko case decided in September 2009, is but one example.]
of court records
be heard without a written record of the proceedings in the lower
court. Delays in transcription hold up the setting down and hearing
of appeals in both the High Court and Supreme Court. This is a serious
problem of many years’ standing.
jurisdiction in civil cases
$2 000 jurisdictional ceiling [i.e. the value of the claim in dispute]
for magistrates court civil cases, as suggested by both judges,
is relatively simple and does not require an Act of Parliament.
It can be implemented by a statutory instrument gazetted by the
Minister of Justice and Legal Affairs in terms of the Magistrates
Justice Malaba’s tribute was an overdue public acknowledgment
of Justice Sandura’s immense contribution to Zimbabwean jurisprudence
during a judicial career spanning 28 years.
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