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1 The next major development to the sit­ Zimbabwe and its courts uation of the high court came as a result of the dissolution of the Federation of AR Gubbay Rhodesia and Nyasaland at the end of 1963. With the cessation of the Federal Chief Justice of Zimbabwe Supreme Court as a court of appeal from deeisions of the high court, it became nec­ essary to put in place a substitute local of Good Hope. Early history appellate system for the country. The sys­ At the beginning of 1899 the High The area now covered by Zimbabwe was tem devised was to split the high court Court of Matabeleland was reconstituted inhabited by descendants of the great (until then at all times a single-decision as the High Court of Southern Rhodesia southern migration of Bantu people. They court) into two divisions: the Appellate under the Southern Rhodesian Order in occupied most of central and southern Division and the General Division (or trial Council, 1898. The appointment and Africa. By the end of the 19th century there division). The Appellate Division dealt tenure of office of judges were provided were two main tribes in the country, the with the bulk of the appellate work of the for much as before, save that appointments Matabele and the Mashona. Lobengula, the former high court and also heard appeals were now made by the Secretary of State King of the Matabele, asserted sovereignty from the General Division. The General on the nomination of the British South over the whole country. Division dealt with the trial work of the Africa Company, which was required to In 1890 the country was occupied by former high court and also retained some nominate "a fit and proper person". the British South Africa Company operat­ minor appellate and review jurisdiction. ing under a Royal Charter which enabled Between 1923 and 1962 there was no The chief justice could sit in both divisions. alteration of any significance in the com­ the company to exercise powers of gover­ The same structure continued until 28 nance. In 1923 the country became a self­ position, structure or jurisdiction of the April 1981 - a year after independence ­ governing British colony. It finally High Court. It was only in 1933 that it when the High Court Act and Supreme achieved full independence on 18 April became necessary to increase the judicial Court Act became operative. 1980, following upon a fourteen-year establishment from two to three. Since civil war against the unlawful declaration then, of course, the number of judges has The system of appeals of independence by the white minority increased steadily over the years. Prior to 1964 the country was served by a government. Towards the end of 1962, the Con­ number of different courts of appeal. It stitution of Southern Rhodesia 1961 came did not have the system of appeals from a Development of the high into effect. The old high court which had high court decision to a full bench of the court sat both in the capital (then named high court - which would have been For a few years after occupation there was Salisbury) and the second largest city, impossible because for so many years the no high court. The administrator, in his Bulawayo, continued in existence as the high court had had only two judges. capacity as chief magistrate, however, new high court provided for in Chapter V From occupation in 1890 until the possessed the jurisdiction of a superior of the Constitution, and existing judges, unilateral assumption of independence court of record in all cases, both civil and who then numbered six, continued in on 11 November 1965, the Privy Council criminal. He was also empowered to hear office. A feature of the new Constitution was the ultimate court of appeal. During appeals from, and review the proceedings was that more elaborate provision was most of this period appeals lay by special of, magistrates' courts. made for the appointment, qualification leave only. The judicial system of the country was and removal ofjudges. A person would not The first intermediate appeal court put on a proper basis in 1894 when the be qualified for appointment as a judge was the old Cape Supreme Court. An Miltabeleland Order in Council was prom­ unless he or she was or had been a judge appeal to it lay from the high court, ini­ ulgated. Under this Order, the High Court of a superior court in a country in which tially in civil matters and, from 1898, of Matabeleland was established, with full the common law was Roman-Dutch, with against conviction by way of a question jurisdiction over inferior courts. Notwith­ English as the official language; or if he or of law reserved by the high court. standing its title, this court's jurisdiction she had been qualified to practise as an The South Africa Act of 1909, which extended over the entire country. The pro­ advocate in Southern Rhodesia or in a provided for the Union of South Africa, set visions for the appointment of judges were country in which the common law was up the Appellate Division of the South very simple. They were to be appointed by Roman-Dutch with English as the official African Supreme Court, at Bloernfontein, the British South Africa Company with the language. Appointments were made by the and made special provision for appeals approval of the Secretary of State and Governor on the advice of the Prime from the High Court of Southern Rhodesia would hold office "during pleasure". Minister, with the latter being obliged to to that court. Civil appeals, except in cer­ Salaries could not be increased or dimin­ consult the Chief Justice and the puisne tain minor matters in which appeals still ished without the approval of the Secretary judges. The retirement age was set at lay to the old Cape Supreme Court (which of State. No qualification for judicial office sixty-five years with an extension to sev­ then became the Cape Provincial Divi­ was prescribed. At first only one judge was enty. Removal from office was by the sion), lay direct to the Appellate Division appointed, but in 1896 a second appoint­ Governor on the recommendation of an of the Supreme Court of South Africa. In ment was made. Both came from the Cape independent judicial tribunal of inquiry. criminal matters appeals still lay to the

Fourth Term 2000 Advocate 25 Forum

Cape Provincial Division, with no further justice who had indicated an unwilling­ Judges are the custodians of the right of appeal from a decision of that ness to serve under a nationalist govern­ Constitution of Zimbabwe. This means court. But in 1931 the Cape Provincial ment represented the judiciary at the that the courts have the power, and the Division ceased entirely to be an appeal granting of independence and swore into duty in the first place to ensure that all the court for Southern Rhodesia. All appeals office Robert Mugabe as prime minister. provisions of the Constitution - which is lay to the Appellate Division of the As part of the process of reconciliation the supreme and overriding law of the Supreme Court of South Africa. In civil the Mugabe government left in office all land - are observed by all the instrumen­ matters an appeal lay where the dispute the members of the judiciary who had talities of government; and secondly to exceeded £100 in value, or with leave of served under the white minority govern­ declare as invalid any excess of power or the high court. In criminal cases there was ment of Ian Smith. However, during May Act of Parliament or presidential or min­ no full appeal on fact, and no appeal 1980 the chief justice and one judge of isterial regulation which contravenes a against sentence as such. appeal retired, having both reached sixty­ provision in the Constitution. Anyone An alternative right of appeal was five years of age. On 8 May 1980 the first who alleges that a fundamental right or granted to persons convicted before the black judge was appointed to the General freedom has been, or is likely to be, vio­ high court under the Rhodesian Court of Division of the High Court. He was lated in relation to himself or herself, may Appeal Act 1938. The Act established a Enoch Dumbutshena. The first chief jus­ apply directly to the supreme court for local court of appeal for Southern Rhodesia tice of Zimbabwe was John Fieldsend determination of the matter. In this respect and what was then Northern Rhodesia (who had left the Bench in 1968 in the supreme court functions as a court of (now Zambia). In 1947 Nyasaland (now protest against the decision of the court to first instance besides exercising appellate Malawi) was added, and from then on the accord judicial recognition to the govern­ jurisdiction. And the high court, and any court was known as the Rhodesia and ment of Ian Smith). inferior court, are required to refer any Nyasaland Court of Appeal. A person con­ During the early years of independ­ such issue to the supreme court if request­ victed by the high court who elected to ence many of the white judges resigned. ed by the parties. Referrals may also be appeal to this court lost his right to appeal By mid-1984 only two remained with made mero motu by the courts. to the appellate division in Bloernfontein. one retiring at the end of 1986. The gov­ The Constitution contains a justiciable The significant feature about the right of ernment was obliged to recruit on con­ Declaration of Rights which specifies a appeal to the Rhodesia and Nyasaland tract four expatriate judges from Ghana number of fundamental human rights and Court of Appeal was its wider scope. For and Tanzania. One of them later took per­ freedoms which are not to be breached. the first time there was a full appeal on fact manent appointment and remained in These rights were effectively entrenched with leave of the court. There was a right office until he retired at the end of 1997. for the initial ten years; the Constitution of appeal from it to the Privy Council with At present the supreme court (the suc­ requiring a 100% vote in the then House special leave of that body. cessor of the Appellate Division of the of Assembly to derogate from them. That High Court) has five judges and the high entrenchment came to an end on 18 April Common law applicable court has nineteen judges; fifteen, includ­ 1990. The provisions of the Declaration In the 17th century Dutch settlers had ing the judge president, are assigned to of Rights may now be amended upon a established a colony in the Cape of Good the high court at Harare, and four at two-thirds majority vote by the members Hope. They applied the law current in the BUlawayo. The composition of both of parliament. Netherlands at the time. That law was courts is non-racial. All the judges are The supreme court is empowered in Roman-Dutch, a fusion of Roman law and citizens of Zimbabwe although this is not terms of the Constitution to "make such the customary law of the Netherlands. a specific requirement for appointment. orders, issue such writs and give such Roman-Dutch law was still the common Under the Constitl}tion of Zimbabwe, directions as it may consider appropriate law of the Cape when Southern Rhodesia the chief justice and other judges of the for the purpose of enforcing or securing was founded. Because of its close geo­ supreme court and the high court are the enforcement of the Declaration of graphical, historical, political and judicial appointed by the president after consulta­ Rights".l It was said of this provision in In association with the Cape, the Roman­ tion with the Judicial Service Commis­ Re Mlambo that "it is difficult to imagine Dutch system became the common law of sion. If any proposed appointment is not language which would give this Court a Southern Rhodesia. It has remained the in accord with the recommendation made wider and less fettered discretion".2 The common law ever since. Its development by the Judicial Service Commission, the Supreme Court utilised this wide discre­ has been influenced strongly by the deci­ president is enjoined to cause parliament tion in Catholic Commission of Justice sions of the South Mrican courts. to be informed of the reasons as soon as is and Peace in Zimbabwe v Attorney­ practicable. This has never happened. The General. 3 In that case, notwithstanding Independence and after Judicial Service Commission has as its that executive clemency had been refused, At independence the General Division of members the chief justice, the judge pres­ the sentence of death passed upon four the High Court consisted of the chief jus­ ident of the high court, the attorney-gen­ condemned prisoners was quashed and tice and nine puisne judges, and one act­ eral, the chairman of the Public Service replaced, in each instance, with imprison­ ing judge. The appellate division consist­ Commission, and two senior and experi­ ment for life. In another matter that fol­ ed of the chief justice, the judge president enced legal practitioners from the private lowed shortly thereafter, the supreme court and one full-time judge of appeal. All the sector. This composition ensures that judi­ again substituted life imprisonment for judges were white. The self-same chief cial office is open to all. sentence of death, even though the exer-

26 Advocate Fourth Term 2000 Forum

cise of executive clemency had yet to be In Minister of Home Affairs v Bickle6 allowed to engage in employment or other considered.4 the supreme court had to decide whether a gainful activity in Zimbabwe. Over the last eighteen years the person whose property had been declared These decisions (and there are many supreme court and the high court have ,forfeit in terms of an order made pursuant more) are proof of the preparedness of developed a strong human rights jurispru­ to the Emergency Powers (Forfeiture of the judges of Zimbabwe to be active in dence. That this has been achieved, either Enemy Property) Regulations, because he asserting an individual's fundamental thtough the striking down of offending appeared to the Minister to be an enemy rights against the might and authority of legislation or by a declaration of invalidity of the state, was in fact an enemy. Section the state. of governmental action, evidences the true 16 of the Declaration of Rights protects But it has not only been in the role of independence of the judiciary. A few the individual against compulsory acqui­ protector and enforcer of the Constitution examples reflect this approach: sition of his property by the state save in that the courts have exercised and One of the most important protections certain prescribed circumstances, one of demonstrated their independence. In the 8 of substantive human rights is that which is specified as "property belonging case of PF-ZAPU v Minister of Justice enshrined in section 15(1) of the to or used by or on behalf of an enemy". the supreme court was seized with the Constitution of Zimbabwe, which reads: At issue was whether the definition of question of whether the courts could enquire into an act of state and executive "No person shall be subject to tor­ "enemy" as contained in the Regulations, prerogatives in areas in which executive ture or to inhuman or degrading namely a person "who is or has been act­ prerogatives oust the jurisdiction of the punishment or other such treat­ ing as the agent of, or on behalf of, or in courts. PF-ZAPU felt that its members ment." the interests of, any foreign country or for­ had been deprived of their legal right to eign organisation, and in a manner preju­ The impact of this provision was consid­ contest a general election fairly because dicial to the public safety of Zimbabwe or ered by the supreme court in relation to the date fixed by the president for the sit­ which is subversive to the authority and the constitutionality of a judicial whipping ting of the nomination court afforded the lawfully established Government of upon male adults and juveniles.s Both them insufficient opportunity to peruse Zimbabwe", was in accordance with the forms of whipping (they differed only in the voters' rolls and to study the newly proper meaning to be ascribed to the word respect to the length and thickness of the defined constituencies. The question "enemy" in section 16. In confirming the cane used) had been in force under the before the high court was whether it decision of the high court, the supreme Criminal Procedure and Evidence Act for could redress PF-ZAPU's grievances or court held that it was not and that, accord­ well in excess of half a century. The pun­ whether its hands were tied by the doc­ ingly, the forfeiture order was unconstitu­ ishments were struck down on the ground trine of an act of state or executive pre­ tional. The ratio was that the word that, having regard to the sensitivities rogative. At issue was the court's power "enemy" in section 16 means an enemy of which emerge as civilisation advances, to review a decision of the President fix­ the state with whom Zimbabwe is at war, they were inhuman and degrading. 10 the ing the date of the sitting of the nomina­ course of the judgment it was remarked: either because of a declaration of war or tion court. The high court held that it had because of armed conflict between that no power to review the president's pre­ "We must never be content to keep state and Zimbabwe of such a scale as to rogative. The supreme court disagreed. It upon our Criminal Code provi­ amount to a state of war. was said: 9 sions for punishment having their In the latter half of 1994 the supreme origins in the Dark Ages." court was concerned with the mobility " ... the arbitrary exercise by the Executive of a prerogative, regard­ In the Catholic Commission case3 the rights of a woman citizen married to an less of its effects on those who may supreme court considered that delays of alien'? Immigration authorities were be deprived of their rights or inter­ fifty-two months and seventy-two refusing to grant permanent residence to ests or who have legitimate expec­ months from the date of imposition of foreign husbands and were deporting tations, is nowadays subject to judi­ se~tence of death to the proposed date of them. Consequently, the wives were com­ cial review. The reason for review­ execution, fell foul of the condemned pelled to decide whether to accompany ing such Executive action is that it prisoners' rights under section 15(1). It is their husbands from the country in order would be unfair to deprive a citizen important to note that the supreme court to secure and maintain the marital rela­ of his rights, interests or legitimate was not seeking to disturb its earlier tionship, or to remain in Zimbabwe, living expectations, without hearing what judgments in which the appeals of the apart in potential destruction of it. The he has to say, or to deny him the condemned prisoners were dismissed. effect of this situation was held to under­ opportunity to find out whether the Rather, it was functioning as a constitu­ mine and devalue the exercise of the fun­ decision emanating from the exer­ tional court and so was obliged to deter­ damental and unqualified right of the citi­ cise of an Executive prerogative is mine whether, even though the death sen­ zen wife to remain living in Zimbabwe as legal or not or, for that matter, irra­ tence was the only fit and proper punish­ guaranteed by section 22( 1) of the tional or unfair." ment to have been imposed, supervening Constitution. As a member of a family events, namely the "death row phenome­ unit she was entitled to have her husband This was not, of course, the court taking non", was so adverse that the execution living with her and to look to him for par­ sides between political parties, but rather of the sentences on the appointed dates tial or total support. Hence he was to be striving to ensure fair play whatever the would constitute inhuman treatment. accorded permanent residence and be political opinions of those involved.

Fourth Term 2000 Advocate 27 Forum

Nor have our courts simply been on the "It sometimes happens that the be so, because the alternative is the ghast­ "defensive" in the exercise of their duties. goal of social and economic change ly dictatorships or rule by decree that the Whenever the opportunity has presented is reached more quickly through world has seen where the executive or any itself, judges have seized it to develop the legal development by the judiciary other organ takes complete control such as common law in accord with current trends than by the legislature. This is Hitler and Mussolini in modem Europe, and opinions. This approach is illustrative because judges have a certain Idi Amin in Uganda and Mobutu Sese of the courts exercising their independence, amount of freedom or latitude in Seko in Zaire. Sustaining and maintaining yet nevertheless exercising it within judi­ the process of interpretation and the balance of power as our Constitution cial restraints. Courts cannot, of course, application of the law. It is now requires is in the interests of us all. make new laws - that falls within the acknowledged that judges do not domain of the legislature - but they can, in merely discover the law, but they keeping with public policy, extend the law also make law. They take part in the Endnotes to situations perhaps not covered by the process of creation. Law-making is 1. This paper, as presently abbreviated, strict letter of the statutory enactment. an inherent and inevitable part of formed an address deli vered at the A good example of this is to be found the judicial process. Supreme and Federal Courts Judges' in the case of Zimnat Insurance v "The opportunity to play a Conference, held at Sydney in January lO 1999. Chiwanda where it was ruled that a meaningful and constructive role in 2. 1991 (2) ZLR 339 (SC) at 355C; 1992 wife of a customary union was entitled to developing and moulding the law to (4) SA 144 (ZSC) at 155J. claim compensation when her husband make it accord with the interests of 3. 1993 (1) ZLR 242 (SC); 1993 (4) SA had been killed through the negligence of the country may present itself where 239 (ZSC). another. The supreme court adopted a a judge is concerned with the appli­ 4. Nkomo v Attorney-General 1993 (2) progressive approach to the prevailing cation of the common law, even ZLR 442 (SC); 1994 (1) SA 34 (ZSC). 5. S v Ncube 1987 (2) ZLR 246 (SC); common law and extended strict legal though there is a spate of judicial 1988 (2) SA 702 (ZSC), and S v A principles to areas where public policy, precedents which obstructs the tak­ Juvenile 1989 (2) ZLR 61 (SC); 1990 justice and fairness demanded it be ing of such a course. If judges hold (4) SA 151 (ZSC). extended. This is what was said: 11 to their precedents too closely, they 6. 1983 (2) ZLR 400 (SC); 1984 (2) SA may well sacrifice the fundamental 439 (ZSC). "Today the expectations amongst principles of justice and fairness for 7. Rattigan v Chief Immigration Officer people all over the world, and par­ which they stand." 1994 (2) ZLR 54 (SC); 1995 (1) BCLR ticularly in developing countries, 78 (ZSC). are rising, and the judicial process Zimbabwe maintains a system in which 8. 1985 (1) ZLR 305 (SC); 1986 (1) SA has a vital role to play in moulding the courts can and do uphold the rule of 532 (ZSC). 9. Ibid at 318 B-C (ZLR) and 542 G-H and developing the process of social law. When the courts have declared the (SA). change. The Judiciary can and must law, the other organs of the State almost 10. 1990 (2) ZLR 143 (SC); 1991 (2) SA operate the law so as to fulfil the invariably have abided by the decision 825 (ZSC). necessary role of effecting such however unpalatable it may be considered 11. Ibid at 154 C-E (ZLR) and 832H-833A development. to be. It is very important that this should (SA). DJ

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28 Advocate Fourth Term 2000