University of Zimbabwe Law Journal

Legal Information

Legal Information — 2020-07-09

THE CONSTITUTIONAL COURT OF ZIMBABWE’S UNCONSTITUTIONAL APPROACH OF APPLYING RULES OF LOCUS STANDI

JUSTICE ALFRED MAVEDZENGE — 2020-07-02

This paper examines the rationality and legality of the rule of locus standi introduced by the Constitutional Court of Zimbabwe to the effect that no litigant is allowed to act in more than one capacity of locus standi in one matter. This rule was initially suggested in Mudzuru v Minister of Justice and was crystallised in Samuel Sipepa Nkomo v Minister of Local Government. When evaluated against the provisions of section 46 and section 85 of the Constitution, this rule is inconsistent with the liberal approach to determining locus standi and is therefore ultra vires the Constitution. At a conceptual level, this rule is untenable and irrational as it is contradictory to the theoretical foundations upon which the constitutional idea of judicial review is based. It is also inconsistent with the trajectory set by the same Court in its very first case of Jealous Mawarire v Robert Mugabe.

PROTECTION FROM UNFAIR DISMISSAL AND THE REMEDY OF REINSTATEMENT UNDER ZIMBABWEAN LAW

MUNYARADZI GWISAI — 2019-04-30

This article looks at the remedy of reinstatement for unfair and unlawful dismissal and its central significance in the realisation of employees’ right to protection from unfair dismissal. The paper argues that the right to protection from unfair dismissal lies at the cornerstone of modern Zimbabwean labour law as was shown by the massive public outcry in the wake of the Supreme Court decision of Nyamande and Anor v Zuva Petroleum (Pvt) Ltd SC 43-15, which upheld the continued application of the common law “Notice Rule” of termination on notice by the employer. The paper argues that without an effective remedy to unfair dismissal, in the form of reinstatement, the right to protection from unfair dismissal will remain a mirage. The paper makes a survey of the history of reinstatement law starting with the traditional common law position which rejected the remedy outright and the modern common law one wherein the remedy has been recognised as a competent remedy. The paper then discusses the history of the remedy in statutes protection from unfair dismissal and to fair labour standards under the Labour Act (No. 17 of 2002) and Constitution of Zimbabwe Amendment (No. 20) Act, 2013. It discusses the different approaches taken by courts and asserts that only the broad approach is consistent with the underlying principle of right to employment security recognised under the Labour Act and Constitution.

ACCESS TO INFORMATION LAWS, ENVIRONMENTAL RIGHTS AND PUBLIC PARTICIPATION IN THE WILDLIFE SECTOR

LENIN TINASHE CHISAIRA — 2019-04-30

The wildlife sector is strategic in Zimbabwe for its economic, social and ecological purposes and hence the right to access information on wildlife governance and conservation is critical. Zimbabwe has many municipal and international law commitments on environmental information rights, and practitioners can utilise these to facilitate public participation in wildlife governance and conservation. Environmental information rights are fundamental to the prevention
of environmental threats such as wildfire conflicts, corruption and lack of transparency. This essay analyses the law on access to information and especially State obligations at municipal and international law and the extent to which State practice acts to impede or enable the rights of the public to access information critical for transparency and open governance of the wildlife sector. The essay will make a comparative analysis of the environmental information laws in force within the European Union region since they seem more advanced than other regions in the world.

THE RULES OF CIVIL PROCEDURE IN THE MAGISTRATES COURTS OF ZIMBABWE: WHEN RULES OF CIVIL PROCEDURE BECOME AN ENEMY OF JUSTICE TO SELF-ACTORS

RODGERS MATSIKIDZE — 2020-07-01

Access to justice is central to justice delivery in any democratic society. Most initiatives in Zimbabwe on access to justice are focused on the substantive law. Recently an attempt was made to reform rules of civil procedure but it appeared the exercise was more of gap filling than a real reform. There was no specific goal and the method was not inclusive particularly of the most affected litigant-the selfactor. This paper proposes a number of approaches that can be utilised to ensure that access to the court is enhanced. The main approach being advanced is simplification of rules of civil procedure. Once litigants are able to bring their matters to the courts then delivery of justice is enhanced.

RIGHTS INFERENCE: UNDERSTANDING THE MEANING OF SECTION 46 OF THE CONSTITUTION OF ZIMBABWE BEYOND GUBBAY CJ’S DICTUM

JUSTICE ALFRED MAVEDZENGE — 2020-07-02

The Constitution of Zimbabwe guarantees a wide range of fundamental rights. These are set out in Chapter four-the Declaration of Rights. However, the Constitution is silent on a number of fundamental rights which include the right to access adequate housing, the right to development and the right to the protection of family. Thus, the Constitution does not expressly provide for these rights, yet in the preamble it, captures and expresses a vision of a prosperous and just society that is based on human dignity. There is a real risk that this vision will remain a pipe dream if individuals do not enjoy these rights. In this paper, I examine how and the extent to which the interpretive guidelines set out in section 46 of the Constitution, can be applied as a tool to infer or read in rights that are not expressly provided for in the Constitution’s Declaration of Rights. Inevitably I also examine the theoretical underpinnings of the rules provided for in section 46 and argue that, the courts need to engage with those theories in a critical and nuanced fashion in order to develop a meaningful jurisprudence on how fundamental rights should be interpreted in Zimbabwe.

AN INTERROGATION OF THE LAW RELATING TO COHABITATION IN ZIMBABWE AND THE NEED FOR LAW REFORM

BEVERLEY CASMILLA MADZIKATIRE — 2020-07-02

This article specifically interrogates the extent to which the continued lack of recognition of cohabitation relationships under Zimbabwean law has resulted in disproportionate gendered impacts on women involved in such relationships. Yet in all fairness and to a large extent, a cohabitation relationship performs the same function as that of a legally recognised marriage. It argues that the non-recognition is discriminatory and violates section 56(1) of the Constitution of
Zimbabwe. The article builds a case on the need for law reform of marriage laws in Zimbabwe that takes into account international best practice.

COLLUSION! IN DEFENCE OF FREE SPEECH IN SPORTS AND THE UNACCOUNTABILITY OF GLOBAL SPORTS ADMINISTRATION BODIES

LYNDON TUYANI NKOMO — 2020-07-02

Global Sports Administrative Bodies are powerful and influential institutions. Sovereign States in their individual capacities struggle to deal with some of their rules and decisions. They also have direct jurisdictional authority over individual athletes. At the centre of their jurisdictional authority is their power to admit, suspend or expel both individual nations and athletes from participating in global sporting competitions. Athletes have to be careful about what and how to express themselves on and off the field because of restrictive rules on speech. Freedom of Speech in sports is, therefore, under serious threat because of multi-million dollar commercial interests in the form of sports sponsorships benefiting Global Sports Administrative bodies. Consequently, within the context of global sports administration some domestic constitutional freedoms such as freedom of expression rank below international rules set by these Global Sports Administrative institutions. Such conflict is not easy to resolve and it requires political rather than legal initiatives to resolve. Sovereign nations are unable to protect themselves and their athletes against some unfair decisions of global sports administrative bodies. Concerted efforts by groupings of nation states at continental or regional levels are an imperative in dealing with what appears to be administrative excesses of Global Sports Administrative Bodies.

REFLECTING ON THE APPLICABILITY OF FREEDOM, SANCTITY AND PRIVITY OF CONTRACT IN ZIMBABWEAN LAW OF CONTRACT

INNOCENT MAJA — 2020-07-06

This paper examines the applicability of the long established contractual doctrines of freedom of contract, sanctity of contract and privity of contract in modern day Zimbabwean law of contract. It argues that even though the three doctrines are still applicable, there are instances where they have not be strictly adhered to and in some cases redefined.

SENTENCING OF SEXUAL OFFENDERS

GEOFF FELTOE — 2020-07-06

This paper examines the complex issue of sentencing of sexual offenders against the backdrop of the recent calls for mandatory minimum sentences in cases of sexual crimes. Some countries have introduced mandatory minimum sentences but the paper points out some of the problems in deciding upon appropriate minimum sentences for the different sexual crimes. It demonstrates inconsistencies in the sentencing patterns in Zimbabwe for sexual offences and explores the alternative of setting of sentencing guidelines to achieve more consistency in sentencing levels.

LABOUR RIGHTS UNDER ZIMBABWE’S NEW CONSTITUTION: THE RIGHT TO BE PAID A FAIR AND REASONABLE WAGE

MUNYARADZI GWISAI — 2020-07-09

The Struggle Over State Power in Zimbabwe Law And Politics Since 1950 by G.H. Karekwaivanane (Cambridge University Press 2017)

GEOFFREY FELTOE — 2020-07-09

This excellent and important book opens by relating what happened at the trial in 1968 of four liberation fighters charged by the Rhodesian regime of possession of arms of war, an offence that carried the death penalty. The fighters refused legal representation, called no witnesses and openly admitted they had brought arms into the country. They proclaimed that they had committed no crime as they had legitimately taken up arms to depose an illegitimate and highly repressive colonial regime. They maintained that the court itself was illegitimate and had no right to try them. Their court “performance” allowed them to assert their political convictions and put on trial the colonial regime.

PER STIRPES PRINCIPLE VERSUS THE PER CAPITA PRINCIPLE IN INTESTATE SUCCESSION: A BRIEF OVERVIEW

ELIZABETH RUTSATE — 2020-07-09

A TIMELY AND WELCOME DECISION ON EMPLOYER LIABILITY FOR PENSION ARREARS UNDER SECTION 13 (1) LABOUR ACT [CHAPTER 28:01]

MUNYARADZI GWISAI — 2020-07-09

ACTIONS AGAINST THE POLICE: UNREASONABLE OBSTACLES TO OBTAINING REDRESS

GEOFF FELTOE — 2020-07-09