The judicial laws amendment bill

31 Jul, 2022 - 00:07 0 Views
The judicial laws amendment bill

The Sunday Mail

Legal Matters with Arthur Marara

I trust that by now you may be aware of the Judicial Laws Amendment Bill. The Law Society for those in our profession shared this Bill to all its membership.

This week, I am going to take you through the key highlights of this Bill and why you should also take time to acquaint yourself.

I will not address everything arising from the Bill. I have just selected some 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 C0 Ltd v Chawanda 1990 (3) ZLR 143 (S) at 153E-154F where Gubbay ACJ (as he then was) stated that, “… law in a developing country cannot afford to remain static… it must adapt itself to fluid economic and social norms as 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.

I am concerned about the importance of the law evolving so that it does not lose touch with the changes in the 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 this year the Judicial Service Commission 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.

With electronic filing now in place, one thing that ordinary 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. During the height of Covid-19 Courts were affected because there was no way that cases could be tried with the surge in the number of Covid-19 cases. Other jurisdictions continued with operations virtually.

The Bill is providing for virtual court sittings in both civil and criminal proceedings subject to the consent of the parties involved. What this means is that where a party does not consent to a virtual hearing, it will not happen.

Clause 5: Exclusion of 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.

The High Court is a creature of universal jurisdiction. Because of this many parties were now abusing it by throwing cases which can be properly dealt with by a Magistrates Court.

Clause 6: Forum shopping

We have discussed that the High Court is 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 was 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 process.

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 the 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 that litigants used to have was on how to enforce the judgments and orders of the Labour Court.

In terms of the present regime, a party with a judgment of the Labour Court, they have to apply to either the High Court or Magistrates Court depending with the monetary jurisdiction.

The Sheriff for the High Court or Messenger of the 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 many of the times 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. At present, the Labour Court does not have its own mechanism for enforcing judgments and litigants are forced to register their judgments with an appropriate High Court or Magistrate 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 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 article/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. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]

 

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