via Year of landmark rulings | The Herald December 22, 2015
Daniel Nemukuyu Senior Court Reporter
The year 2015 can be described as one of landmark rulings. Indeed the nation was educated on many issues as some judgments had decisive impact on people’s ways of life.
The on-going realignment of 400 laws to the National Constitution of Zimbabwe has been made easier as some of the judgments indicated loopholes that required attention.
Lawmakers were forced to come up with urgent amendments to the laws as a corrective measure to the loopholes exposed after the correct interpretation of the law by the judiciary.
Hats off to the judiciary head Chief Justice Godfrey Chidyausiku and his team of judges and magistrates for a year of hard work and well-reasoned judgments that will go a long way in the development of the law in Zimbabwe.
Some celebrated the judgments while others had no kind words for the judiciary as a court judgment cannot put a smile on everyone’s face.
The most unpopular Supreme Court judgment for 2015 was the case of two former Zuva Petroleum managers Don Nyamande and Kingston Donga who lost their bid to nullify the termination of their employment contracts on three months’ notice.
Chief Justice Chidyausiku and four other judges, sitting as a Supreme Court, unanimously agreed that the common law position placing employees and employers on an equal footing was still operational.
As a result of that common law position, employers have the same right to give notice and terminate employment, in as much as a worker can do the same.
Several companies embraced the judgment with speed resulting in thousands of workers losing their jobs.
Labour experts described the ruling as a serious threat to job security in the country, as workers could be asked to leave employment empty-handed at any time, while employers felt the ruling would go a long way in lowering employment costs.
Government realised the devastating effect of the judgment and the Labour Act was immediately amended to ensure that fired workers got a better deal.
There was also a ruling related to prostitution. Gone are the days when police would conduct dragnet arrests in the Avenues area of Harare and other cities for loitering for the purposes of prostitution.
Ladies involved in prostitution threw parties celebrating their victory in a case in which the Constitutional Court barred police from arresting them on the streets.
The court, in a case in which nine Harare women were challenging their arrests, barred the arrest of women on charges of soliciting for intimacy in the absence of male customers confirming they were offered the service for a fee.
Sex workers who ply their business in the Avenues area of Harare were quoted as offering free sex to judges who were interested.
That marked the end of police dragnet operations that at times affected innocent residents of the area.
Bogus cops thronged the area “arresting” women and their men and later demanding bribes.
Legal experts argued prostitution was not an offence in Zimbabwe, but a lifestyle and the recent Constitutional Court ruling simply set parameters to guide police when effecting arrests on suspected solicitors for paid sex.
Advocate Tawanda Zhuwarara who represented the nine women said police were arresting women through profiling without evidence. He said police were imposing an illegal curfew on women.
A person can only be arrested for soliciting for prostitution if there is a suspect and the solicited.
In another landmark judgment on inheritance law, High Court judge Justice Hlekani Mwayera outlawed the practice of discriminating against children born out of wedlock, saying it was in violation of the Constitution.
The judge made the ruling in a case in which a Harare widow Ms Elsie Bhila wanted to bar her late husband’s three children (born out of wedlock) from benefiting from their father’s estate.
Justice Mwayera dismissed as outdated and unconstitutional the view that children born out of wedlock were “bastards”, “devils” and “illegitimate”.
“The common law position of excluding children born out of wedlock violated the constitutional rights to protection of the law and freedom from discrimination,” Justice Mwayera ruled.
“These rights have always been in the Zimbabwean Constitution, the old Act 1979 and have been more pronounced by the wording in the new Act, the Constitution of Zimbabwe Amendment (No.20) Act 2013,” he said.
“A reading of this section (56 (3) of the Constitution) clearly outlaws discrimination on the basis of being born out of wedlock.
“The third to fifth respondents (three children) have a right to equality and non-discrimination,” said Justice Mwayera.
Rape-pregnancy
The Supreme Court judgment in the rape-pregnancy case of Ms Mildred Mapingure marked an important turning point for women’s sexual and reproductive rights in Zimbabwe, in particular the survivors of sexual and gender-based violence.
Ms Mapingure successfully sued the Ministry of Health and Child Care and the Ministry of Home Affairs for failing to prevent her pregnancy after a rape incident.
It was the first time in the country’s legal history that a victim of rape had argued in court for damages arising from failure to prevent pregnancy due to rape.
She claimed $10 000 in damages for failure to prevent and terminate the rape-pregnancy and an additional $41 000 as maintenance for the child and for the pain she endured.
She had sought damages arising from her failure to access the emergency contraception within the prescribed period of 72 hours of rape due to delays caused by the police that failed to provide her with proper advice and a doctor’s inability to distinguish between termination of pregnancy and emergency contraception.
The apex court of appeal, led by Justice Bharat Patel, recently upheld the appeal though partial, and held the State liable for failing to provide Ms Mapingure with emergency contraception and ordered it (State) to pay damages.
However, the High Court awarded her damages to the tune of $6 500.
In another landmark ruling, Justice Chinembiri Bhunu, when he was still in charge of the Electoral Court, ruled that a registered voter could lawfully stand as a candidate in a National Assembly election even if he or she was not registered in the particular constituency.
He also said a past criminal record was not a reason to bar one from contesting in an election.
Justice Bhunu made the landmark decision during a pre-trial conference in a matter in which former Zanu-PF chairman for Mashonaland West Province Mr Temba Mliswa was contesting the victory of Cde Keith Guzah in the Hurungwe West parliamentary by-election.
In his challenge, Mr Mliswa — the immediate-past MP for the constituency — argued Cde Guzah was not eligible to contest in the by-election because he was not a registered voter in Hurungwe West.
Prior to the Electoral Court decision, aspiring candidates like former Reserve Bank of Zimbabwe Governor Dr Gideon Gono had been disqualified by the Zimbabwe Electoral Commission from participating in a by-election because he was not registered in the constituency.
On another front, the Constitutional Court clarified one of the longest drawn disputes on whether a court of law had the power to interfere with a Prosecutor General’s decision to decline prosecution and a refusal to issue certificates for a private prosecution.
It was the court’s finding that the PG should comply with court orders compelling him to issue private prosecution certificates even if he held a different view.
The Constitutional Court expressed its displeasure over the conduct of PG Mr Johannes Tomana by slapping him with a 30-day imprisonment for defying court orders to issue certificates for private prosecution.
Chief Justice Chidyausiku sentenced Mr Tomana to the 30-days in jail wholly-suspended on condition that he complies with the court order within 10 days by issuing the requisite certificates for private prosecution.
Mr Tomana complied with the decision and issued out a number of certificates to the complainants who were seeking private prosecution.
Among the complainants was Telecel Zimbabwe that got permission to institute private prosecution against its former chairperson, Dr Jane Mutasa who was accused of defrauding the mobile phone operator of over $1 million in an airtime scam.
Bikita West legislator Dr Munyaradzi Kereke also now faces private prosecution on charges of raping a minor.
The ruling opened a floodgate of applications for private prosecution which were eventually granted by the PG.
Other landmark judgments loom in other matters of public interest still pending at court like adultery.
High Court judge Justice Hlekani Mwayera is expected rule on whether or not adultery damages should continue being part of our laws.
A nurse at Harare Central Hospital Ms Lorraine Matione contested adultery damages saying suing a third party for adultery was unconstitutional.
She wants adultery damages to be struck off the statutes since the two people who enter into a marriage agreement are solely responsible for honouring it.
Ms Matione is being sued for $25 000 for allegedly having an adulterous affair with Mr Lawrence Muzvondiwa, who was married to Ms Georgina Njodzi, resulting in the marriage breaking down.
A recent judgment by the Supreme Court of South Africa called for the abolition of a law permitting civil litigation for damages for adultery, which generated heated debate among legal experts in Zimbabwe.
The South African court ruled that the law permitting civil damages for adultery was “archaic” and that “the time for its abolition has come”.
The ruling means adultery can no longer be a legal basis for claiming compensation for harm in South Africa.
The Constitutional Court is also set to rule on whether or not children should be caned as a form of judicial punishment.
COMMENTS