Doctrine of essential features of a constitution

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One step forward, three steps back. A critical analysis of the doctrine of core values of a constitution in Mike Campbell and Another v Minister of Lands and Another

                                                                               By Tazorora TG Musarurwa

Introduction

On 14 January 2008 I entered for the first time the court-room of the Supreme Court of Zimbabwe. On this day I was scheduled to be in Pretoria to begin my LLM studies at the University of Pretoria but I had refused to forego the opportunity of a debut appearance before the highest court in the land. As a young legal practitioner I had decided to utilise every opportunity that came before me which advanced my career. Even though the matter was a pro deo (where the attorney charges no fees) one, the prospect of winning my first Supreme Court case was worth more than any money I could have been paid. As I entered the courtroom I was surprised as it was rather small and fell short of what I had expected as a ‘supreme’ court. Nonetheless, I took my seat by the bar and was informed by the orderly that my case was the second of two cases that were to be heard that day.

Just after 1000hrs we all rose as the court orderly had ordered and the three Supreme Court judges entered the court and took their respective seats. It was my first time to set eyes on the honourable Malaba JA as before I had only read his name from the law reports. It is interesting to be able to put a face to a name as in law we get to know these judges very well but if we are to meet them in the street we will pass them like strangers. Malaba JA took the seat to my left whilst Ziyambi JA (a female judge) took the centre seat with the newly appointed former judge president Garwe JA taking the right seat.

After the first case had been heard I confidently stood up, cognisant of the fact that my time to shine had now come. I had postponed my flight for this moment and was not going to waste it for any reason. Notions of justice that were learnt in law school reflected prominently in my head. I was not being paid for this case yet I had done so much research and here I was with my opponent a prominent lawyer who, unlike me, was being paid so much to be here. I was most certainly a champion of justice, or so I believed.

The case involved a male secretary who had been dismissed from work in 1995 by a local university after it had been alleged that he allowed students to make phone calls and received money for such calls. Appeals to lower courts had been unsuccessful and our firm had been allocated the present appeal, in forma pauperis by the Registrar of the Court. I was going to argue the case on the basis of procedural justice in that the decision to dismiss my client was procedurally incorrect as he had not been given an opportunity to cross-examine any of the witnesses, among other heads. I felt my research had been adequate and my chances of winning the case were high. What I needed now was my opportunity to present my arguments.

I introduced myself to the Court and I was now prepared to start my arguments. Before I proceeded Malaba JA stopped me and started asking me a series of questions regarding the dates when the appeal was filed and when the leave to appeal had been obtained.  The long and short of the story is the matter was struck off the roll with no order as to costs before I had really comprehended that my day of glory was not to be.

The reason was that my client had first filed his appeal at the Supreme Court before going to the Labour Court and obtaining leave to appeal. He in fact should have done it the other way round.  I put forward arguments that this was minor and that the court could use its discretion and even that my client had been an ignorant self actor. I can safely say I made all the arguments any lawyer in my position would make, especially one who did not want to just have ten minutes in the Supreme Court.

According to Malaba JA, the mistake by my client made the appeal a nullity and the appeal was therefore not even before them. It was an incurable defect, he said, and they had no choice but to throw out the case.

So this was my first meeting with Malaba JA, and what did I think of him? I thought he was a bad judge, incompetent, lazy and all the negative things a lawyer who has lost a case can think of a judge. Lawyers who lose cases are not the best of people to criticise the decision in a law journal or any other forums as they have a serious conflict of interest. So even though I still feel that Malaba JA’s decision was wrong as it focused solely on minor procedural defects whilst ignoring the larger substantial matters, I will leave my distaste of that decision for informal social legal discourses.

Fortunately, the case of Mike Campbell (PVT) LTD and Another v Minister of Lands and another (Campbell) has presented itself as a great opportunity to criticize Malaba JA as he was the one who wrote the unanimous court decision. Although conflicts of interest are not good things, I have recently learnt that objectivity is not necessarily an essential ingredient in academic writing. As such, although I may not be the most objective person to be making this analysis, I think I have at least disclosed my conflict of interest if you can even call it that. So even though I may be robust in this analysis I will not be unfair.

I, however, proceed firstly with the statement that the Campbell decision was both bad and wrong in law; and is another setback to Zimbabwe’s rich human rights jurisprudence by the Chidyausiku led Supreme Court bench.    

The Facts

The Zimbabwe government has faced several challenges in implementing its land reform programme. The biggest obstacle, in my view, has been the government itself. The disdain for the rule of law, the passion for rule by law and the need to solve the land ownership disparities overnight has resulted in a plethora of legal challenges by white farmers insisting on not having their farms taken away. Government lawyers have had to leave their routine duties to concentrate on these land issues alone. This litigation has been a thorn in the government’s foot and in 2005 the government devised a strategy to end all such ‘obstructive’ litigation.

On 14 September 2005 Constitutional Amendment No 17 was introduced in to the Zimbabwean Constitution. Section16B would bar any land matters to be adjudicated by any court of law. This provision would have retrospective effect and would in effect remove the courts’ jurisdiction from hearing pending matters and any future matters that may be brought before them concerning the acquisition of land by the government.

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Mr William Michael Campbell has been a ‘notorious’ litigant defending his ‘right’ to have ‘his’ land. In fact it is litigants like Mr Campbell that resulted in the government having to make the above constitutional amendment. In 1997 the government first made its intention in terms of the Land Acquisition Act to acquire Mr Campbell’s farm. He objected to the notice and it was withdrawn. All was well for some time until in June 2001 when a similar notice was served again on Mr Campbell. He objected on the same ground namely that, it was not reasonably necessary for the ...

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