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Legal Matters with Arthur Marara
The High Court, as a superior court, does enjoy “inherent jurisdiction”. It has the intrinsic authority to exercise such jurisdiction. However, what the authorities also say is that this jurisdiction is not open-ended, unfettered or limitless. The High Court can hear matters, conduct trials, inquiries, determine matters, uphold or overrule preliminary or interlocutory issues, quash proceedings and orders in reviews and appeals respectively as well as carry out a wide array of other activities in the exercise of inherent jurisdiction.
It must exercise the usual caution in the discharge of its discretionary mandate. This ensures that it stays true to its judicial function and avoids going on “a frolic of its own” (see Mubaiwa v Chiwenga SC 86/20 — quoted with approval by Justice Chilimbe in the decision below).
The Magistrates Court, Labour Court, Administrative Court among other courts do not have inherent jurisdiction. What this means is that their powers are defined in terms of statute, so they cannot go outside what is provided in the statutes that are creating them. The question that immediately arises is what is meant by “inherent jurisdiction”. This is what we are going to look at in this edition of the Legal Brief. This past week I came across a very recent judgment (25th February 2022) by Justices Mafusire, and Chilimbe courtesy of a forward from a respected colleague in the field. The concept was thoroughly discussed in the case of Zimbabwe Rural District Councils Workers’ Union v Nyanga Rural District Council & Anor HH 118/22.
The concept of inherent jurisdiction is a common law concept. There is no statute that defines, “inherent jurisdiction”. Section 176 of the Constitution provides that the Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own processes and to develop the common law, or the customary law, taking into account the interests of justice and the provisions of the Constitution.
However, the constitution does not go ahead to define, what ‘‘inherent power’’ is? The absence of definition of the concept means that recourse will be had to the common law. In one instalment we will simplify and summarize sources of law.
There are two terms that also arise, “inherent powers” and “inherent jurisdiction”. TSANGA J explained the distinction in Machote v Zimbabwe Manpower Development Fund HH 813-15 in the following way:
“Jurisdiction of a court essentially refers to the authority that a court has to hear and determine a dispute that is brought before it. This is in distinction to the court’s “inherent power” to do something as dealt with by s 176 of our Constitution. In terms of this section, the Constitutional Court, the Supreme Court and the High Court all have inherent powers ‘‘to protect and regulate their own process and to develop the common law or customary law taking into account the interests of justice and the provisions of this Constitution.’’
Such inherent powers can thus be inherent procedural powers or inherent substantive powers and are exercised on the premise that the court in question already has jurisdiction in the first place. Thus regulation of process as exhorted by s 176 would be largely an exercise of inherent procedural powers while development of common law and customary law as per s 176 would be largely an exercise of inherent substantive powers. Respondent’s argument was founded on the jurisdictional authority of the High Court in terms of s 171 (a) to hear and determine a civil matter, in this instance a labour dispute.”
There have been attempts to define the concept of inherent jurisdiction. One of the prominent definitions for the concept is from I H Jacob, The Court’s Inherent Jurisdiction (1970) 23 CLP 23, quoted by Ferreira, ibid, at p 108 who states that;
“ . . . [the] residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.”
The Court summarised case law from different jurisdictions on the concept ‘inherent jurisdiction’, or ‘inherent power’, as follows:
Inherent jurisdiction is the residual power drawn upon by a superior court of inherent jurisdiction, in the interests of justice, to provide a solution or a remedy in circumstances where there is none available or readily discernible from statute or the common law. For example, in 1976 England, the birth place of the common law [as opposed to the civil law of Roman origin], came up with what became known as Anthony Piller orders, after the case of Anthon Piller KG v Manufacturing Process Ltd [1976] Ch 55 (CA).
This is an order granted ex parte for the preservation of evidence in civil litigation where a party is authorised to enter his or her opponent’s premises to search and remove property in circumstances where the opponent is likely to destroy such evidence. This procedure was neither prescribed by statute nor formed part of the common law.
A court’s power to exercise inherent jurisdiction is not unlimited. The power is exercised in the most exceptional circumstances. Sometimes it is best for a court, after identifying the lacuna in the law, to leave it to Parliament to promulgate relevant laws to fill the gap. Thus, in the English case of Al Rawi v The Security Service [2011] UKSC 34; [2012] 1 AC 531, the United Kingdom Supreme Court refrained from exercising its inherent jurisdiction to resort to what is called a “closed material procedure”. In terms of this procedure a court would, in the public interest, permit limited discovery by one party to a civil suit of certain privileged evidence by making discovery only to the court and to what are termed “special advocates.
“Special advocates” are counsel cleared by the government to examine such evidence on behalf of the opposing party who himself or herself is not permitted access to it. Whilst such a procedure was permitted by statute in certain criminal proceedings for the purposes of preventing the disclosure of sensitive information that could undermine national security, it was not provided for in civil proceedings. Accepting that a court’s jurisdiction is not unlimited, and believing that such a procedure would violate certain fundamental common law rights of a litigant, the House of Lords left it to Parliament to craft the relevant law. Parliament obliged, albeit two years later, see: Ferrere, ibid, at p 117.
Inherent jurisdiction is primarily a procedural concept which the courts should not invoke to make changes in substantive law. Changes to substantive law is the duty of the Legislature: see W H Charles, Inherent Jurisdiction and its Application by Nova Scotia Courts: Metaphysical, Historical or Pragmatic? (2010) 33 Dalhousie LJ 63, 64.
A judge does not have an unfettered power to do what he or she thinks to be fair as between the parties. A court’s resort to its inherent jurisdiction must be employed within a framework of principles relevant to the matters at issue: W H Charles, ibid. Ferrere, at p 121, refers to a Canadian case of Gillespie v Manitoba (Attorney-General) (2000) 185 DLR (4th) 214 in which the court, refusing to extend the exercise of inherent jurisdiction in certain situations, said in the course of its judgment:
“ . . . the inherent jurisdiction is not a kind of ‘ubiquitous judicial prerogative.’ Indeed, it is not a prerogative at all. The Divine Right of Kings is dead; it has not passed to judges. In a democracy such as ours, judges have a distinct function which enables them to command others, but the power to do so must be exercised within the Constitution and the law.”
The ultimate aim of the exercise of inherent jurisdiction is to ensure that justice is done. On the one hand its exercise cannot contravene legislative intent. But on the other, only explicit legislative intention will suffice to ousting it: Derdale Investments (Pvt) Ltd v Econet Wireless (Pvt) Ltd & Ors 2014 (2) ZLR 662 (H).
There are several other definitions, but obviously they cannot all be exhausted. Inherent jurisdiction very broadly, and put differently, according to Justice Mafusire is the ability of a court to craft solutions to particular problems out of necessity in certain situations. Such a power stems from a realisation that the Legislature cannot codify all the solutions to human problems in advance of their occurrence.
It is not within human powers to foresee the manifold sets of facts which may arise: see Seaford Court Estates Ltd v Asher [1949] 2 All ER 155 (CA) at 164. But even if it were, no Act of parliament is drafted with divine prescience and perfect clarity as to cover all situations or to completely eliminate ambiguity.
Therefore, the right of a court to draw on its inherent jurisdiction and the power thrust upon it by the Constitution to, among other things, develop the common law, enable it to provide solutions in certain situations where not do so would lead to an injustice.
This is done within certain limits. Among other things, where there is a possible solution or remedy available, the court will not always resort to the exercise of inherent jurisdiction. Inherent jurisdiction is not an excuse for a court to assume despotic power and clothes itself with legislative capability to craft new laws. It is in the light of these principles that the present applications are considered.
LEGAL DISCLAIMER: The material contained in this post is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the post. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe. He is also a notary public and conveyancer. He is also passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected].
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