This is the second and final instalment in which the writer comments on the practice of striking off matters from the court roll on account of procedural technicalities. This was a speech he delivered during winter school for lawyers on July 17.
The Hatingh v Pienaar judgment, which he cited and which has been used as justification for the new jurisprudence, did not adopt that approach either. The approach was in the submissions by Van der Spuy.
The submissions cited a number of provincial judgments. It was rejected by the court. In other words, the court did not accept that the defective notice of appeal could not be condoned or amended. It in fact postponed sine die the notice of motion in order to deal with the prejudice allegedly suffered by the respondent.
Furthermore, it dealt with the prejudice by ordering the appellants to pay the cost occasioned by the postponement.
The De Jager judgment, in which the appeal was struck off the roll, makes it clear that:
There was prejudice suffered by the respondent because the notice of appeal was vague and embarrassing. It was not clear as to which of the claims were being challenged on appeal.
The appellant did not apply for an amendment. The court made it clear that steps could have been taken to cure the defect. They were not taken.
It was in that situation that the court struck out the appeal.
The new jurisprudence is most unfortunate particularly in that:
As was pointed out by Justice Hancox in Githere v Kimungu 1976-1985 EA 101: “The relation of rules of practice to the administration of justice is intended to be that of a handmaiden rather than a mistress and that the court should not be too far bound and tied by the rules which are intended as general rules of procedure, as to be compelled to do that which will cause injustice in a particular case.”
The new jurisprudence is not consistent with specific provisions of the rules, particularly in that:
Rule 4C of the Rules of the High Court provides that: “4C. The court or a judge may, in relation to any particular case before it or him, as the case may be (a) direct, authorise or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice
The Rules of the Supreme Court provide, in Rule No 4 that: “4. Subject to the provisions of Subsection (3) of Section 19 of the Act, a judge or the court may direct a departure from these rules in any way, where this is required in the interests of justice and, additionally or alternatively, may give such directions in matters of practice or procedure as may appear to him or it to be just and expedient.”
Rule No. 5 of the Rules of the Constitutional Court provides that: “5. (1) The court or a judge may, in relation to any particular case before it or him or her, as the case may be: (a) direct, authorise or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he or she, as the case may be, is satisfied that the departure is required in the interests of justice”; and (b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him or her, as the case may be, to be just and expedient.
(2) The court or the chief justice or a judge may: (a) of its, his or her own accord or on application and on sufficient cause shown, extend or reduce any time period prescribed in these rules and may condone non-compliance with these rules;
(b) give such directions in relation to matters of practice or procedure or the disposal of any appeal, application or other matter as the court or the chief justice or judge may consider just and expedient.”
The proviso in Section 19(3) of the Supreme Court Act (Chapter 7:13) simply provides that no extension of time shall be granted after a death sentence will have been confirmed by the president. In other words, in all other cases, the court can depart from the provisions of the rules.
The new jurisprudence is inconsistent with the Oxygen Principle wildly popularised in developed jurisdictions by amendments to civil procedure introduced in England by Lord Woolf’s commission. The reforms were introduced in England in 1998. The problem then was discussed in Biguzzi v Bank Leisure PLC (1999) 1 WLR 1926.
In that matter, Lord Woolf observed that the overriding objective should be to enable the courts to deal with cases justly.
He described the remedy of striking out proceedings as “draconian” pointing out that before the introduction of the Oxygen Principle, “often the court had to take draconian steps such as striking out the proceedings”.
Another problem with the new jurisprudence was observed in the Biguzzi case. It was that, invariably, the appellant would seek leave to file a fresh appeal. This led to an increase in the cost of litigation as well as waste of judicial time and resources. For example, the following happens in Zimbabwe when an appeal is struck out:
The appellant pays for the judgment striking out the appeal.
The record is returned to the High Court and the appeal number is closed.
An application for leave to file an appeal out of time is filed and dealt with before a judge in chambers.
If it is granted, the appellant purchases the court order granting the application and files a notice of appeal within the period provided for in the court order. He pays the appeal fee for the second time.
The Registrar of the High Court calls upon the appellant to pay for the record for the second time.
The Registrar of the Supreme Court calls upon the appellant to pay for the cost of serving a notice of hearing for the second time.
The duplication is not inconsiderable. In the process, the overriding objective of dealing with matters in a just, expeditious, proportionate, efficient and affordable manner which ensures the resolution of real disputes between the parties becomes lost in technicalities.
The constitution at Section 69 requires a substantive determination of rights and obligations in a fair manner, within a reasonable time. It grants the right to access to the courts. Access is meaningless unless it is accompanied by a determination of the substance of the dispute between the person seeking it and the party with whom he is locked in a dispute with. Anything which impedes the determination of the real disputes between the parties, impedes access to justice.
Technicalities are an obstacle to the dispensation of justice. The section provides that: “69. Right to a fair hearing
(1) Every person accused of an offence has the right to a fair and public trial, within a reasonable time, before an independent and impartial court.
(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy and public hearing within a reasonable time, before an independent and impartial court, tribunal or other forum established by law.
(3) Every person has the right to access to the Courts, or to some other tribunal or forum established by law, for the resolution of any dispute.
(4) Every person has a right, at their own expense, to choose and be represented by a legal practitioner before any court, tribunal or forum.
Access to the courts was clearly not meant to enable the parties to debate technicalities and strict rules of procedure, as contrasted with the intent of access and the purpose of substantive law.
I propose the following as the way forward:
The legal profession should commit itself to a general upgrading of standards of performance. Is it not scandalous that litigation lawyers in this country allowed the remarks of counsel in Hattingh and Pienaar to be liberally cited in our jurisdiction as part of the judgment of Justice Klopper?
Furthermore, is it not scandalous that no one correctly captured the ratio of the judgment in De Jager and Diner, also used in our jurisdiction to justify the practice of striking off matters from the roll? Is it not scandalous that, despite claiming to be the most educated nation in Africa, we have no local textbooks and there is not much by way of legal articles and journals written and sponsored by Zimbabweans? Why do lawyers complain about the quality of judgments orally at various gatherings instead of making regular written commentaries in journals?
Clearly, in my respectful submission, we need a new culture. The current culture of poor heads of argument and poor judgments is clearly undesirable. It requires deliberate and strategic effort to get out of.
The legal profession should take advantage of current procedural reforms to ensure that the Oxygen Principle, which dominates the administration of justice in most democratic countries, is entrenched and respected in our jurisdiction.
A comprehensive educational campaign is required to ensure the re-orientation of practitioners who appear in the courts and our judiciary. We need a departure from the era of judgment minimalism or judgment avoidance, to dealing with matters of substantive justice. A leaf should be taken from the European Court of Human Rights where even a letter is sufficient to motivate litigation on important human rights issues.
There is a relationship between technicalities and corruption. A compulsive desire to achieve statistics of matters disposed of, resulted in the striking off of several matters on the roll in one African country at one point. That is a form of corruption. If a corrupt litigant has no case, he simply avoids the merits and pursues a strategy of delay or derail the proceedings using technicalities. Such unscrupulous behaviour is not uncommon.
The legal profession should decisively deal with the scourge of corruption within the legal profession and the judiciary. In Kenya, they subjected all members of the judiciary to an enquiry. In Ghana, an investigative journalist, supported by some lawyers, monitored members of the judiciary over a period of one year and exposed the corruption.
As pointed out above, in the United Kingdom, following an outcry by the legal profession complaining about matters being struck off on the grounds of procedural technicalities and the fact that procedures had become an obstacle to access to justice, a commission of enquiry was appointed and it revolutionised civil practice and procedure. There is no reason why such initiatives should not take place here in Zimbabwe. Even some of our judges have observed the excessive nature of technical objections.
In the case of The Prosecutor-General and Phibeon Busangabanye v Magistrate N Mupeiwa N HH427/15, Justice Nicholas Mathonsi made the following remarks: “In my view, this issue of self-created urgency has now been blown out of proportion. Surely, a delay of 22 days cannot be said to be inordinate as to constitute self-created urgency. Quite often in recent history we are subjected to endless points in limine centred on urgency which should not be made at all
“Courts appreciate that litigants do not eat, move and have their being in filing court process. There are other issues they attend to and where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.”
We need to re-introduce articles of clerkship to strengthen skills at entry level of the profession. We should not continue to expect universities to operate like trade schools. Universities should be centres of academic excellence where new horizons of knowledge are pursued.
Furthermore, we need to intensify professional development programmes for senior lawyers to help them refresh, acquire new skills and deepen their expertise in their areas of expertise. This, if effective, will minimise opportunities for technical objections during litigation.We must all re-dedicate ourselves to ensuring that the administration of justice delivers justice, upholds human rights enshrined in our constitution and is the guardian of democratic values.
Moyo is a senior partner in Scanlen & Holderness law firm.