malvernmugadzikwaPRESIDENT MNANGAGWA has assented to the Judicial Laws Amendment Bill. By now, many may be aware of the Bill.
The Law Society of Zimbabwe shared this Bill with its members in 2022.
Once gazetted, this law will bring significant changes to the administration of justice.
I have chosen to share a few areas of interest. The law cannot be stagnant in a world that is rapidly changing.
The need for the law to be dynamic and to accommodate change has been stressed in Zimnat Insurance Co Ltd v Chawanda 1990 (3) ZLR 143 (S) at 153E-154F, where Gubbay ACJ (as he then was) stated: “. . . law in a developing country cannot afford to remain static . . . it must adapt itself to fluid economic and social norms and values, and to altering views of justice.”
This dictum has been used a number of times to support the principle of judicial activism, but I am not concerned about that at the moment.
I am concerned about the importance of the law evolving so that it does not lose touch with changes in society. The Judicial Laws Amendment Bill brings a raft of changes to procedures in the courts, as we will discuss below.
Virtual sittings
The purpose of this Bill is twofold: To provide for virtual court sittings in both civil and criminal proceedings, and to align various provisions of judicial laws to the Constitution.
Earlier in 2022, the Judicial Service Commission (JSC) launched the Zimbabwe Integrated Electronic Case Management System.
This is a key milestone in the judicial system, where litigants do not have to travel to court to file process. This will also cut costs significantly as there is no photocopying of paperwork involved.
The General Division of the High Court is going digital in August 2023.
With electronic filing now in place, one thing that ordinarily follows is virtual hearings and sittings.
Why should I leave my office to attend court when I can sit in front of a camera and make my case? This is the future of law.
At the height of Covid-19, courts were affected because there was no way cases could be heard.
Other jurisdictions, however, continued to operate virtually.
The Bill provides for virtual court sittings in both civil and criminal proceedings, subject to consent of the parties involved.
There is need to encourage virtual hearings in all matters. This means anyone anywhere can still have their matter heard without necessarily having to travel to court.
The Labour Court is now conducting its hearings virtually. I once travelled to the Labour Court, only to be advised that we were appearing virtually.
We had to use Wi-Fi at the court for the hearing.
Clause 5: Exclusion of High Court jurisdiction on certain claims
This clause amends Section 13 of the High Court Act (Chapter 7:06) to ensure no claim that 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.
The High Court is a creature of universal jurisdiction. Because of this, many parties were now abusing it by throwing cases that could be properly dealt with by a Magistrates’ Court.
Clause 6: Forum shopping
In the past, we noted that the High Court is a creature of universal jurisdiction. This resulted in some parties abusing the High Court. The High Court in Chinhoyi has jurisdiction over all people in Zimbabwe.
This means I can cause summons to be issued against a defendant in Beitbridge whilst I am in Chinhoyi or Mutare.
The net effect is that you will have to travel to attend court in Mutare or Chinhoyi, yet there is a nearby High Court in Masvingo or Bulawayo.
There are also instances where lawyers gamble. They take cases where they think the judge would be sympathetic to their cause. Consequently, other parties even travel hundreds of kilometres to other cities just to file cases.
Clause 6 amends Section 46A of the High Court Act (Chapter 7:06) by allowing the notice published by the Chief Justice to specify the area under the jurisdiction of the specific division of a specialist court to curb misuse of forum shopping (for instance, where a rich plaintiff makes it more difficult for an indigent defendant to defend a case by initiating action in a court far away from where that defendant resides).
Clause 11: Messenger of the Labour Court
The Labour Court will finally have its own messenger of court. One of the headaches litigants used to have was on how to enforce judgments and orders of the Labour Court.
In terms of the present regime, a party with a judgment of the Labour Court would have to apply to either the High Court or Magistrates’ Court, depending on the monetary jurisdiction.
The sheriff for the High Court or messenger of court would then have to enforce the now-registered judgment or order.
This circumlocutory approach would prove to be very costly to a litigant, who often is the employee.
This clause inserts a new section — 92BB to the Labour Act (Chapter 28:01) — which provides for the establishment of the office of the Messenger of the Labour Court.
The Labour Court presently does not have its own mechanism for enforcing judgments, and litigants are forced to register their judgments with an appropriate High Court or Magistrates’ Court for enforcement purposes.
The proposed amendment will also create need for the Rules of the Labour Court to be amended in order to cater for this development, which I think is highly welcome and was long overdue.
LEGAL DISCLAIMER: The material contained in this article 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 article. 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 practising law in Harare. He is also a notary public and conveyancer. He is passionate about labour law, commercial law and family law, as well as 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]
Online Reporter