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HIGH COURT RULES REVIEW EXERCISE

INPUT FROM THE LAW SOCIETY OF ZIMBABWE

MAY 2017

High Court Rules Review Workshop

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Executive Summary.......................................................................2

Section 1.0: Workshop Overview....................................................41.1 Background, Objectives & Principles......................................4

Section 2.0: Workshop Discussions.................................................62.1 Thematic Group 1 – Criminal procedure, bail, appeals, constitutional applications and referrals - Rule 84 – 106...............72.2 Thematic Group 2 – Execution of judgments - general issues on civil procedure, authentication - Rules 69 – 74............................102.3 Thematic Group 3 – Matrimonial causes...............................132.4 Thematic Group 4 - Applications, Interpleaders and set down procedure – Rules 58 – 66..........................................................132.5 Thematic Group 5 - General, Miscellaneous issues before trials; setting down of civil trials and civil trials - Rules 1 - 21; 55 - 57 162.6 Thematic Group 6 – Judgments, interlocutory applications and ancillary. Rules 22 – 54..............................................................18

Section 3.0: Latin terms...............................................................19

Section 4.0: Workshop Evaluations, Lessons Learned, and Conclusion..................................................................................21

Appendix A: Draft High Court rules with workshop comments and tracked amendments...................................................................22

Appendix B: Workshop Programme...............................................22

Appendix C: Participant List.........................................................22

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Executive Summary

The Law Society of Zimbabwe hosted the High Court Rules Review Workshop on 11 – 12 May 2017 at the Crowne Plaza Monomotapa Hotel in Harare. The purpose of this workshop was to provide lawyers in private practice with an opportunity to add value to the amended draft rules. Judges through the Judicial Services Commission (JSC) have formulated these amended draft rules. Participants comprised lawyers in private practice from across the major cities of Zimbabwe. The participants were able to go through the entire text but it was generally noted that insufficient time had been allocated to the process and this compromised the sum total contribution of the lawyers.

This report contains the principles upon which the discussions were based on, the changes that were recommended for the actual text, comments received from others lawyers vis email, areas where there was no consensus, weaknesses in the current system and an annexure of the draft rules as amended (with tracked changes and comments).The workshop agreed that for purposes of the debate on the substance the proposed rules would be used , however the workshop came out strongly against repealing the existing rules but rather to amend the rules.

The rational for this being that 1) it was not necessary to do so seeing that the proposed rules are substantially the same as the current rules in content but more importantly 2) repealing the current rules will destroy years of precedents in case law. It will result in an unnecessary nightmare for litigants, judges and librarians as they reconcile and marry the old rules,new rules and precedent.

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As to form, the workshop resolved to remove all Latin terms in the rules, as is the case with new constitution. In a number of instances, the language used was seen to be circular and difficult to understand. In such instances there was rephrasing. Gender inclusive terms were placed in instances where this was not done.

As to substances, there are wide ranging changes that were debated and only those agreed upon are captured in this report. For instance, the workshop strongly opposed the registrar issuing default judgments. The need for speedier justice was noted but it was agreed upon that this speed was sacrificial combatting corruption. In addition, the law did not allow a registrar to grant court orders, as this was the domain of a judge or courtThe workshop was divided into groups and the following table summarizes the thematic groups and the rules that they were assigned to review:

Group Number

Thematic group Rules

1Criminal procedure, bail, appeals, constitutional applications and referrals -

Rule 84 – 106

2Execution of judgments - general issues on civil procedure, authentication

Rules 69 – 83

3

Matrimonial matters and ancillary issues

Rules 66-68

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4Setting down of matters/application procedure –

Rules 58 – 66

5General, Miscellaneous issues before trials; setting down of civil trials and civil trials

Rules 1 - 21; 55 - 57

6Judgments, interlocutory applications and ancillary

22 - 54

This report must be read together with the Amended Draft Rules that are attached to this report as an annexure. The latter document contains in “tacked changes” format, the changes that are proposed to the actual text. In some instances, there are not actual changes made as such changes were so substantive, they would be need for a number of changes to be made. For this reason the suggestion is made with the hope that he drafter would adopt it and then make the actual necessary changes to the text.

It is, therefore, important to read this report together with the amended draft rules if one intends to fully understand the changes suggested and the rationale for the proposal.

Section 1.0: Workshop Overview

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1.1 Background, Objectives & Principles

1. The absence of any judicial officers in the workshop was noted as a

concern. The presence of some of the drafting judges would have given participants an opportunity to be informed as to what informed the judges when making some of the changes to the Rules. .

2. the Rules were extremely archaic as they had last been properly considered in 1971. The new rules should thus embrace technological changes, which should make the high court process faster, cheaper and more effective.

3. In this respect, there was debate on the approach to be adopted with some suggesting that the workshop should ignore the draft and simply proceed to amend the current existing rules. Eventually, the workshop agreed to work with the amended draft. It was further suggested that principles be adopted which would form the underlying bases for any proposals. This was agreed to and the workshop formulated the following guiding principles:

I. Cost effectiveness – The Rules should strive to reduce costs by making the cost of litigation cheaper

II. Speedy disposition – the time it takes to finalise a case must be reduced by reconsidering statutory times and embracing technologies

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III. Access to Justice – The rules should strive to ensure that people and communities from all walks of life have access to the services of the high court

IV. Simplicity – The rules should be written in plain English and all Latin terms should be translated and removed

V. Gender neutrality (inclusivity) – The text should be such that both male and female genders are included and the notion that one gender means the other should be done away with

VI. Reducing corruption – where there is potential for corruption the rule should be reconsidered to lessen the likelihood of corruption or reasonable perceptions of corruption.

Section 2.0: Workshop Discussions

This section summarizes the recommendations of the thematic groups as approved by the full plenary session.

2.1 Thematic Group 1 – Criminal procedure, bail, appeals, constitutional applications and referrals - Rule 84 – 106

It was noted that the Draft Rules now included the Criminal Rules. This inclusion created a ‘one-stop shop’ for the high court rules rather than having a multiplicity of rules as is currently the case. This development of consolidated rules boded well with the principle of access to justice.

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Rule 85 It was noted that the Draft rules do not having a savings

provision. This may create chaos as to which rules apply to cases that will be pending in the court. It was suggested that a savings provision be inserted.

Court orderlies are police officers, usually constables, who maintain order in the court and will arrest any person in the court when so ordered by the court. The draft rules give these police officers additional powers and duties including discretion. Sub-rule 5)d) directs a registrar to inform the court orderly of witness that are to be subpoenaed. Subrule 9(f) directs the registrar to inform the court orderly when subpoenas of witnesses have not been served. Subrule 11(a) allows the court orderly to excuse witness and to grant such witnesses permission to be away from their given addresses for periods in excess of 24 hours.

It is not clear why these police officers have been given such duties and powers within the rules. 11(a) seems unconstitutional as a witness cannot be placed under house arrest by the Rules because of simply being a witness with permission having to be sought from a police officer, a junior one for that matter, to be released from the house arrest.

Rule 86

86(2) does not provide for an affirmation or “oath” for those that are non-Christian or atheist. This also applies to rule 87(4)(a).

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Rule 88 – Bail

One of the main concerns on bail was whether it was peremptory for a record from the magistrate’s court to be transcribed before a bail application or appeal can be heard. The requirement for transcription had to be balanced with the urgency requirement. It was noted that in some cases the magistrates do not write legibly and it is necessary for such record to be transcribed. Where the magistrates notes were clearly legible, it is important for a court to proceed based on the record itself. It was noted that a number of automatic review matters are disposed of based on the longhand record and there should be no difference when it comes to bail matters. As a result it was resolved to include a clause that allows a judge to proceed to hear a bail application based on a longhand record unless such record is not legible therefore requiring transcription.

Rule 92 – 104 Appeals, etc.

Rule 92(1) requires a notice of appeal to be made orally soon after sentence is passed. It was noted that this should be directory rather than peremptory the reason being that there is often need to properly consider the reasons for judgment and thereafter to file considered grounds of appeal. Where it is possible to provide an oral notice of appeal it can be encouraged but it not should be the exception. It was

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therefore resolved to remove the word “shall” and replace it with “may".

Consequently in 92(2) the phrase “in exceptional circumstances” was deleted.

It was also noted that the draft rules had maintained that a notice of appeal is filed in duplicate. In reality the clerk of court requires at least seven copies. As a result all the parts requiring duplicate have been altered to septuplicate.

It was also noted that appeal courts are quick to strike off a matter because of technical errors in the notice of appeal such as not citing the date of conviction. The workshop agreed that the best approach was to not render such errors as being fatal to the appeal as this had dire consequences to accused persons especially those on bail pending appeal who would have taken ages to get an appeal date. The best approach was to give discretion to the court as to how best to proceed in light of the errors. Where corrections can be made, the court should lean in favour of such corrections and deal with the matter on the merits. As a result a clause was added that appeals should not be automatically struck off because of such errors in the notice of appeal.

The cost of the record was also considered. The cost of the record has been costing US$1 per page is extremely exorbitant.

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With regard to civil and other appeals, there may be cases where an appeal needs to be heard on an urgent basis. A draft clause was inserted which allows a litigant to approach the judge president for an appeal to be heard urgently.

2.2 Thematic Group 2 – Execution of judgments - general issues on civil procedure, authentication - Rules 69 – 74

In 69(11)(a) the phrase “movable or” was added so as include both movable and immovable property under this provision.

In 69(13) the phrase “or the judgment creditor” is added so as to give such judgment creditor a right to make the chamber application as well when the sheriff fails to perform his duty for whatever reason

In 70(4)(c) the word “may” is replaced with “shall” to remove the discretion and make it peremptory that no property should be used, let or lent.

There is a scale that is referred to which starts from level 1 to level 12. It is not clear whether this scale is the same as that used in criminal offences. The Rules have no definition for these levels, as the levels are not referring to offences. There must be a definition for the levels that should be subject to amendment from time to time.

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In 70(9)(a) there is no clarity on who initiates the process. The judgment creditor should initiate this process. The provision is therefore accordingly amended.

In 71(1)(a) it was suggested that it should be possible to issue a single writ for both movables and immovable. Where the sheriff does not locate sufficient movables he proceeds to execute upon the immovable utilizing the same writ. There will therefore be no need to issue second writ, saving time and money.

71(6)(b) this clause was rephrased to ensure that the judgment creditor receives the balance of his or her deposit

72(5)(a)(d) courier services is included as an acceptable way of transmitting a notice of taxation

72(10) – the taxing officer must be obliged to file a report when an application is made against his or her decisions. Such report must focus on the aspects that are in contention as contained in the court application.

74(2)(c) – need to provide time limits. Ten days has been factored in as the required time limit.

75 – the applications referred should be made to either a judge or a court. Judge has been included to allow for chamber applications as these are interlocutory matters that can well be decided by a judge in chambers.

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75(6) it is not proper for the registrar to have a final say in any matter. To do so would be unconstitutional. All administrative decisions are subject to review by a court. It was resolved to amend the provision by allowing a judge to review the decision if a party is aggrieved.

82- it was noted that the Draft Rules do not address a very important issue, which is the fees charged by the Sheriff for executions. The workshop was of the view that this should be an issue that is addressed in the rules. The deposit for executions which currently at around US$500 is exorbitant and results in a number of litigants not being able to execute their judgments.

82 - In practice, the sheriff does not conduct auctions but sub-contracts the auctions to private auctioneers. These auctioneers have additional fees that are not regulated by the rules. The fees are exorbitant and prejudice both the judgment creditor and the judgment debtor. It was proposed that the rules contain a specific clause dealing with appointment of private auctioneers and the fees that they would be entitled to. Some were of the view that he and his appointed auctioneers should share the commission that the sheriff charges for collection. In a number of cases the auctioneers have refused to release property unless certain fees have been paid. This has led to cases being instituted against the auctioneers. All this results from a lack of clarity on their status in the execution chain

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2.3 Thematic Group 3 – Matrimonial causes

67 – it was proposed that the heading revert to the current heading rather than “miscellaneous matters”. The current heading as per rule 274 was said to be more instructive than the draft rules. The heading was therefore amended accordingly.

Minor technical changes to form, grammar and style were made to rules 67 and 68. These changes are apparent and self-explanatory from the draft-amended rules that are attached.

2.4 Thematic Group 4 - Applications, Interpleaders and set down procedure – Rules 58 – 66

58(a) - there is an addition of “legal interest” rather than just the word “interest” as the word “interest” is now been used loosely to include those people that may want to be friends of the court.

58(2) - provides for urgent chamber applications. In discussions there was a proposal to replace urgent chamber applications with urgent court applications (that can be dealt with by a duty judge), as is the case in South Africa. The procedure would be the same but the main difference would be that such applications would be held in open court rather than in the secrecy of judge’s chambers. The workshop had no time to draft actual provisions and this suggestion was to be remitted back to those responsible for the drafting.

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60(4)(b) – it was suggested to have specific time limits for this to be done and 48 hours was agreed upon.

61 – it was proposed to bring back the rule nisi in urgent ex parte chamber applications. Rule 66(7) mentions the term rule nisi but nowhere is it provided for in the draft rules. Rule nisi’s come with a return date and are more effective than provisional orders that often then have to be set down by the respondents after the applicant shows little care in continuing to litigate the matter. It was suggested that provisional orders should be done away with as they are farcical in most regards and seem not to be properly understood even by judges. This is shown by the insistence by most judges to have an interim relief that is distinct from the final relief yet in a number of cases the interim relief is actually a final relief. It is for this reason why the rule nisi procedure was favoured as interim relief can operate as a final relief for the relevant period before the return date and the procedure also allows for the respondent to anticipate the return date.

The need for certificates of urgency was also questioned. It was noted that what was essential was for the applicant to establish urgency. In South Africa, they have also done away with certificates of urgency. The requirement for a certificate of urgency does not deter litigants and legal practitioners alike to bring urgent applications. It is a farcical filter. The need for certificates of urgency for represented matters and none for unrepresented matters is irrational. There are now conflicting judgments on issues pertaining to certificates of urgency.

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The rules do not specify the time upon which a judge should take to dispose an urgent application. It was noted that there are cases where a matter remains pending on the urgent roll for weeks and months before being disposed.

61(4) provides that in urgent chamber applications the registrar must immediately give the papers to a judge who must deal with the matter forthwith. In practice the applications are given to the judge president who then allocates the matters to judges. If this is the procedure, it must be specifically mentioned. The suggestion is that the matter be allocated to the duty judge handling urgent matters for that week.

64 – The interpleader procedure was bemoaned mainly for its costliness and lack of transparency. Currently, the procees takes about US$600 to initiate. The process involves paying the Sheriff a certain amount and then paying a firm of lawyers that has been appointed by the sheriff to act for it. The workshop was concerned with this high cost, which was clearly exacerbated by having to appoint a legal firm. In the magistrates court the same procedure costs US$100. The workshop did not formulate a provision on how this should be addressed.

65(2) – with the rejection of the registrar granting orders for default judgment, default judgments have to be returned to this list.

65(3) – the workshop was critical about the need to be paying monstrous amounts for set downs. It was noted that when the practice directive was put in place the mischief was that litigants were not

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serving the notices and this resulted in the system being backlogged. However, the Sheriff has not solved the mischief and has in fact created a further burden of costs on litigants. Where the sheriff fails to serve a notice of set-down the court does not make the sheriff pay the wasted costs. It was suggested that where the respondent(s) are legally represented then the applicant (if represented) could serve the notice of set down. In other cases the rule can apply. Where the legal firm has a registered email address, the registrar can also send the notice via email to all the litigants. It was said to be absurd that one pays US$50 to serve a notice of set down on a firm that they share the same building, for example. The practice of funding the JSC through litigation was strongly frowned upon.

2.5 Thematic Group 5 - General, Miscellaneous issues before trials; setting down of civil trials and civil trials - Rules 1 - 21; 55 - 57

3 – in the interpretation clause the definition of ‘Court’ is expanded and a new definition for “friend of the court” is inserted and “additional sheriff is added to the definition of sheriff.

5 – the discretion of the registrar is deleted and the word shall is added. This is because a registrar cannot have discretion when directed by a judge.

6(2) is rephrased to its current form as this is simpler English.

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11 – “amicus curiae” as a term is deleted and renamed “friend of the court”. This is in line with the policy of renaming Latin phrases. Should there be a better alternative, the suggested replacement is not cast in stone.

11(2) – the workshop debated whether amicus curiae applications should be reserved strictly for constitutional issues or it should be opened up to all other matters. The popular view was that this should be opened up to all matters. It was noted that in some matters the courts had actually requested amicus assistance from legal practitioners. The need for amicus was not just a constitutional issue. The phrase “constitutional issue” was thus deleted.

11(2) Further, the workshop was against the idea of an applicant for amicus having to obtain the agreement of the parties. This was unnecessary because an amicus is there to serve the court and it should be the courts discretion whether it needs such assistance or not.

13 – There was serious debate on the action procedure with concerns raised about the time it takes for a matter to be adjudicated upon. Some called for a total overhaul of the procedure and an adoption of the arbitration-like procedure where a judge is seized with the matter from the outset and not when the matter is eventually set down. It was suggested that this would drive proceedings faster. There was unfortunately insufficient time for the proponents of this procedure to draft provisions that reflected this contention. As a result, the workshop proceeded to suggest ways within the current set up to speed up the process.

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13(10) – the address for service was increased from 5km to 10km. mainly practitioners from Harare complained about the 5km distance as being in need of review in light of the move away from the CBD by a number of practitioners. The 5km distance could be retained for Bulawayo and Masvingo, with Harare having the 10 km distance.

The issue of territorial jurisdiction of the high courts was considered. At present there is one high court with divisions. All the divisions have concurrent territorial jurisdiction such that one can issue summons in Harare for a cause of action that occurred in Masvingo with the defendants residing in Bulawayo. The issue of territorial jurisdiction was said to be one which should involve the Act and not the Rules

2.6 Thematic Group 6 – Judgments, interlocutory applications and ancillary. Rules 22 – 54.

The heading “Part III - Judgment” is removed from the top of Rule 21 – Appearance to Defend and is placed on the top of Rule 22 _Judgment by consent”. This is where it is supposed to be.

23 – there was very clear and unanimous rejection of the delegated powers to the registrar. Having registrars entering default judgment and discretion on whether the judgment should be entered wholly or in part was strongly rejected. Primarily, this was said to be ultra vires the High Court Act, which only empowers a judge or court to enter judgment. This kind of delegation was ultra vires the Act. It was also

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noted that this would increase corruption or the perception of corruption. In the magistrate’s court where clerks are able to enter default judgments, the magistrates are now doing it by themselves because of the complaints that existed within the system. The workshop was unequivocal on this point - registrars should not have the power to grant or dismiss judgments.

43(6) & (7) the workshop was satisfied with the reforms made to the exception/special pea procedure. However, rule 43(7) was said to be unnecessary as it punished an excipient for the failure of the registrar to set down a matter. This rule should be deleted. It would be noted that the procedure in 43(6) makes it clear that it is the registrar that must set down an exception after the excipient files the exception together with the heads of argument. It will also be preferable that the matter be given a set down date at the time of filing as is done in the magistrates’ court. It is highly unlikely that the registrar will be able to pick up a record and have it set down automatically once the respondent has filed its heads of argument. What is most likely is that the excipient will have to return to the registrar’s office and chase up a date because the registrar will not have given one. If the registrar has not given this date after one month, the respondent will invoke rule 43(7), yet the failure will be the registrar’s and not the excipients. Rule 43(6)(c) must be deleted and replaced with a clause that mandates the excipient to serve the exception, heads of argument and the notice of set down on the respondent. The Respondent must file heads not later than four days before the date of hearing.

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48 – discovery. The workshop was of the view that the 24-day period to effect discovery was too much. On the need for speedy justice, it was recommended to reduce these days to just ten days.

Section 3.0: Latin terms

The following Latin terms were deleted and replaced with corresponding English term:

Amicus Curiae Friend of the CourtBona fide Genuine and sincereDomicillum citandi Address for legal purposesDies induciae Prescribed timeIn camera In private or out of the public viewInforma pauperis To sue or defend as a pauperPendente lite Pending litigationMero motu On its own initiativeMutatis mutandis With the necessary changesPro rata At a proportional rateSubpoena ad testificandum Subpoena to testify in courtSubpoena duces tecum Subpoena for the production of

evidence

These translations are simply proposed and may be improved.

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Section 4.0: Workshop Evaluations, Lessons Learned, and Conclusion

Unfortunately, participants were not asked to fill out evaluation forms at the end of the workshop. The main concern by the participants was the lack of adequate time to fully explore all the issues. There was also concern raised initially that there was no one from the committee of judges who could explain to participants the justification for some of the changes that they have proposed.

The current set of rules has been used for almost half a century and it is important that the Rules be met with adequate consultation before being finalized. It may be appropriate for a further workshop that includes technocratic representatives of all the major stakeholders in one room.

On the other hand, as will be seen from this report, there are wide-ranging recommendations that came from participants and the recommendations are justified by the principles that were formulated at the beginning of the workshop.

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Appendix A: Draft High Court rules with workshop comments and tracked amendments

Appendix B: Workshop Programme

Appendix C: Participant List

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