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Opening of 2013 Judicial Year; Achievements of 2012 - Court Watch 1/2013
Veritas
January 22, 2013

Supreme Court, High Court, Labour Court Terms Started 14th January

Ceremonies to Mark Start of 2013 Legal Year

The start of the 2013 judicial year on Monday 14th January was marked by the customary ceremonies in the High Court. Chief Justice Godfrey Chidyausiku presided in Harare, Judge-President George Chiweshe in Bulawayo.

Chief Justice’s Speech in Harare High Court

The Chief Justice opened his speech by saying this was his yearly opportunity to address not only the judiciary but also the nation at large. It was also an opportunity to express views which cannot appropriately be expressed in judgments. He said that the year had seen many challenges, principally lack of resources, and the Judicial Service Commission would continue to tackle these during the coming year, but that rather than stressing these problems he proposed surveying the judiciary’s achievements during 2012. [Speech available from veritas@mango.zw. An annexure to the speech gives comparative statistics of court performance for 2011 and 2012.]

Survey of Achievements

Magistrates courts - 2012 had seen a dramatic reduction in the backlog of cases – from a backlog of 45 000 there are now 10 000 [still far too many]. This had been achieved by re-opening all circuit courts and hard work by magistrates, the majority of whom had achieved or exceeded the standard minimum requirement of 60 court hours per month. Efforts to improve court-rooms had started to bear results with pre-fabricated court buildings under construction in Murehwa, Guruve, Mutoko and Tsholotsho. The Law Society had partnered the Judicial Service Commission in providing training and development programmes for magistrates.

Labour Court - Two additional presidents of the Labour Court had been appointed during the year, bringing the total number up to 12. The Chief Justice pointed out that the workload of the Labour Court had reached “unmanageable” proportions because the “one-stop shop” nature of the court’s jurisdiction meant it had to cater for all labour disputes, ranging from cases involving one employee and a small amount of money, to major labour disputes involving millions of dollars and potential repercussions for the national economy. A restructuring of the court that recognised this was necessary. Also needed were more suitable premises for the Labour Court, not only in Harare, but also in the other centres in which it operates.

High Court - Five new High Court judges were appointed during 2012 – Justices Zhou, Mafusire, Mangota, Takuva and Chigumba. This was in recognition of the court’s ever-increasing workload. Cases filed increased from 12 758 in 2011 to 14592 in 2012, but the rate of increase seemed to be slowing down towards year-end, perhaps as a result of September’s substantial increase in the civil jurisdiction of the magistrates courts.

High Court’s new electronic case-tracking system - A major positive development had been the successful development of an electronic case-tracking system in the civil registry of the High Court at Harare. Not only did this allow the Chief Justice and the Judge-President to be kept informed on a regular basis of the number of cases filed in the High Court and movement or lack of it in these cases. It was also “bad news for unethical lawyers and litigants”, who would no longer be able to get registry clerks, for a fee, to backdate pleadings or destroy or mislay key documents.

Murder cases, violence and the death penalty - After referring to the fact that in most of the seemingly mindless murders that the High Court tries day in and day out, the death resulted from a dispute over a trivial issue that could have been resolved otherwise, the Chief Justice commented that the existence of the death penalty on its own appears not to be bringing in the desired result, that of deterring killing. There must, he said, be “a way of making our people respect the sanctity of human life that lies outside the court system.” He called on community leaders to devise methods of minimising the incidence of unnecessary deaths.

Comments on the justice delivery system

Importance of cooperation

Expressing the judiciary’s gratitude to the Law Society of Zimbabwe, the office of the Attorney-General, the Zimbabwe Republic Police and the Zimbabwe Prison Service for their contribution to justice delivery, the Chief Justice observed: “It is through our joint efforts and cooperation that the justice delivery system performs in a way that benefits our people. The judiciary on its own cannot deliver justice to the people of Zimbabwe without your combined efforts.” This meant, he said, that “we must all adopt the attitude that in the system, each office is like in the biblical sense, its brother’s keeper. The faults of the prosecutor can be visited on the magistrate and vice versa. The public expects us all not only to perform as one body but they hold all of us accountable if a case drags on without end or if there is a perception that justice in the matter has been compromised or purchased.”

Corruption - Stakeholders should, the Chief Justice went on, adopt the same approach towards corruption within the justice delivery system. “Members of the Law Society should not point fingers at us, laugh or shake their heads at the judiciary on account of our corrupt officials. Neither should the Police nor the Prison Service. In turn, it does not assist anyone if we in the judiciary were to compare the levels of corruption within the judiciary against those in the Police, Prisons or Attorney-General’s Office and boast that ours is much better. One corrupt official in the justice delivery chain taints the entire system and the result coming out of that system no matter how innocent the other players are. Therefore, individual or territorial efforts by each of our offices to combat corruption are unlikely to yield results. I believe that we must all come together and collectively combat corruption in the justice delivery system if our efforts are to have any impact.”

Forthcoming elections - Noting that the nation may go to the polls this year, the Chief Justice added the judiciary’s voice “to those calling for free and fair elections that are held in a violence-free atmosphere”.

Judge-President’s Speech in Bulawayo High Court

Opening proceedings in Bulawayo, Judge-President Chiweshe referred to several problems.

Unsatisfactory disposal rate for criminal trials in Bulawayo - Many of these did not take off because key witnesses could not be located. Of 74 criminal trials set down in the court only 19 had been completed by year-end, which compared unfavourably with the 54 trials completed at the Gweru and Hwange circuits presided over by Bulawayo judges.

Increase in civil cases - Justice Chiweshe also mentioned the inundation of the High Court by civil cases and the substantial increase in divorce cases. He suggested that a partial solution might be to have an intermediate court between the High Court and the magistracy to take up some of the burden – as the regional magistrates courts had done in criminal cases.

Misuse of criminal and civil appeal process

Justice Chiweshe voiced his concern that in many appeals against criminal convictions and gaol sentences, after bail is granted pending the appeal, the appeals are not then pursued; thus suggesting the appeals were filed for the sole purpose of securing bail and staying out of gaol, rather with any genuine hope of being acquitted or more leniently treated by the appeal court. Similarly in civil cases there were appeals which were not pursued which he said, suggested they were filed purely for purposes of delaying execution of judgment against the appellant. For example of 121 notices of appeal in civil cases all but 36 remained unactioned. He said corrective measures would be put in place “to stop this rot” without elaborating on what these measure could be.

[Comment: These measures would have to be carefully thought out. The right to appeal is one of the cornerstones of the justice system. And, it is in fact for the courts to decide in a criminal case whether or not to grant bail pending hearing of an appeal, and to impose appropriate conditions of bail to ensure that the appellant will serve his or her sentence if the appeal is unsuccessful. Also in a criminal case where an appeal is inexcusably delayed by the appellant, the prosecution has the right to ask the court to strike it off the court roll. Similarly, if a civil appeal is not genuine and merely a delaying tactic, and is not pursued, the other party may apply to have it struck off the court roll and for the appellant to be punished by having to pay wasted legal costs. The point must be made, also, that frequently the reason for delay in pursuing an appeal is the clerk of court’s inability to provide the court record promptly, which cannot be blamed on the appellant, and it is this that the justice system needs to rectify] [Please note: full text of Justice Chiweshe’s speech NOT yet available]

Chief Magistrate’s Speech Reviewing 2012

Chief Magistrate Misrod Guvamombe addressed the annual general meeting of the Magistrates Association in the Bvumba on 30th November. Understandably he started his speech by applauding the magistracy’s success in reducing the national backlog of criminal cases in magistrates courts, now down to 10 000 from over 45 000 in September 2011. [Speech available from veritas@mango.zw]

Other noteworthy aspects of the speech were:

Performance standards for magistrates - Under recently introduced performance management systems each magistrate must sit in court for at least 60 hours per month and must keep down the number of his or her part-heard cases at any one time to 15 in regional magistrates courts and 10 in all other magistrates courts.

Submission of criminal cases for appeal/review/scrutiny - Mr Guvamombe expressed concern over magistrates shirking their responsibility under the rules of court to ensure that, if a decision is appealed, all formalities are observed and the case record promptly submitted to the appeal court.

Also causing concern was the failure by some magistrates, including very senior ones, to observe their statutory obligations to send certain criminal records for automatic scrutiny in the regional court or review by a High Court judge; some magistrates had been dismissed for failure to do this. [Note: Under sections 57 and 58 of the Magistrates Court Act every gaol sentence of more than 12 months or a fine of more than $300 must be “reviewed” by a High Court judge, and every gaol sentence between 3 and 12 months, or a fine between $100 and $300, must be “scrutinised” by a regional magistrate. The purpose of this review or scrutiny is to check whether the proceedings are “in accordance with real and substantial justice”; and if they were not, to allow a judge to take appropriate action, ranging from setting aside a conviction to reducing gaol sentence or fine.]

Misconduct and unacceptable private lives - Although the majority of magistrates had been professional and executed their duties commendably, several magistrates had been charged with misconduct during 2012 and some dismissed, for offences ranging from corruption to dereliction of duty. There had also been cases of both male and female magistrates whose personal relationships had triggered complaints and resulted in misconduct charges. Mr Guvamombe advised magistrates as follows: “The profession that you chose is a conservative profession. Your social relationships must be beyond reproach. As long as your private life is affecting or has the potential to affect your work, it ceases to be private.”

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