Sundaymail Editor
Legal Matters
The structure and operations of Courts in Zimbabwe are important to understand if you are a business leader. You never know maybe one day you may have to approach one of the courts for relief. This week I want to take you through the jurisdiction of the High Court.
In the past I have done specific articles on the concept of “inherent jurisdiction”. I also did another one on the jurisdiction of the High Court in labour matters. The position of the law has been clarified to the advantage of all potential litigants. You can read these articles on The Sunday Mail website in order for you to appreciate what I was talking about.
The High Court is created by the High Court Act [Chapter 7:06] [Hereinafter referred to as the ‘High Court Act’. It has jurisdiction under both common law and statute. We will look at the concept of ‘common law’ in a future article but this is one of the sources of law that you need to thoroughly understand as it affects many aspects of our law today both substantively and procedurally.
In terms of the common law, the High Court has inherent jurisdiction. This means that it can order anything or determine any case which is not prohibited by law. It has the intrinsic authority to exercise such jurisdiction. The concept of inherent jurisdiction is not defined in terms of any statute.
There have been attempts to define the concept of inherent jurisdiction. One of the prominent definitions of the concept is from I H Jacob, The Court’s Inherent Jurisdiction (1970) 23 CLP 23, quoted by Ferreira, ibid, on 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”.
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 [The concept was thoroughly discussed in the case of Zimbabwe Rural District Councils Workers’ Union v Nyanga Rural District Council & Anor HH 118/22 — per Mafusire and Chilimbe JJ]
There are, however, exceptions to the general rule. It is important to note the provisions of S53 of the High Court Act. In terms of that section if a party takes a matter to the High Court which could have been heard in the Magistrates’ Court then if that person is successful they shall not recover any costs in excess of those which would have been recovered if they had instituted the proceedings in the Magistrates’ Court. If unsuccessful, they will be ordered to pay costs on a higher scale of a legal practitioner and client. This is to prevent people from rushing to the High Court on matters that can properly be brought before the Magistrates Court.
Judicial Laws Amendment
Bill — Clause 5
Clause 5 of the Bill seeks to exclude High Court jurisdiction on certain claims. This clause amends section 13 of the High Court Act [Chapter 7:06] to provide that no claim which is ordinarily within the jurisdiction of the Magistrates’ Court or any other inferior court or tribunal shall be lodged with the High Court in the first instance. Many parties were now abusing it by throwing cases which could be properly dealt with by the Magistrates’ Court.
Common Law limitations
There are common law limitations to the jurisdiction of the High Court, and below are some of them.
◆ Fugitives from justice have no audience in the court e.g. a person who ran away from legal obligations.
◆ Subject matter — outside the jurisdiction of Zimbabwean courts e.g. immovable property situated outside Zimbabwe. This means that you have to go to the place where the property is situated. There are a number of times parties in matrimonial proceedings get carried away and omit this fundamental point when they have immovable property outside Zimbabwe.
◆ Revenue law is subject to bilateral agreements, but revenue laws of another country cannot be enforced in Zimbabwe.
Arthur Marara is a corporate law attorney practicing law in Harare, Zimbabwe.
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