Two further amendments to the Public Health Lock-down Order have been published in the past few days. The first, in SI 11/2021 of 5th January 2021 [link], declared courts to be an essential service for the purpose of the Order; the second, in SI 13/2021 of 8th January 2021 [link], declared legal practitioners to be performing an essential service when representing their clients in court.
Though the SIs are clearly interrelated, we shall discuss them separately in this Bill Watch.
SI 11 of 2021 on Courts
This SI amends the definition of “essential service” in section 2 of the Lock-down Order so as to declare:
“all criminal courts and, to the extent directed by the Chief Justice by a Practice Direction, other courts, together with their support staff (but not the Sheriff of the High Court or messengers of court, except to the extent permitted by the afore-said Practice Direction)”
to be an essential service for the purpose of the Lock-down Order.
It is important to note the wording. A distinction is drawn between “criminal courts” and “other courts”.
Criminal courts are declared to be an essential service absolutely, without restriction
Other courts are an essential service only to the extent that the Chief Justice may direct them to be such in a Practice Direction.
Zimbabwe does not have any exclusively criminal courts because the Supreme Court, the High Court and magistrates courts – which are the only courts that can hear criminal cases – all deal with civil (i.e. non-criminal) cases as well. That remains true even though there are judges and magistrates who in practice only hear criminal cases. In the context of the Lock-down order, therefore, the reference to criminal courts must mean courts which are actually hearing criminal cases.
The Amendment and Practice Direction 1 of 2021
The amendment is obviously linked to Practice Direction 1 of 2021 which the Chief Justice issued on the 4th January and which was set out in Court Watch 1/2021 of 5th January 2021 [link]. In that Direction the Chief Justice:
· suspended for the duration of the lock-down, i.e. until 3rd February, the filing of documents in civil cases [Note: the Direction did not specify civil cases, but in the context the suspension does not apply to criminal cases]
· stated that during the lock-down, courts would deal only with urgent processes and applications [in civil cases] and initial remands and bail applications [in criminal cases]
· stated that court registries would be open between 8 a.m. and 3 p.m. on business days during the lock-down
· limited entry into courtrooms to litigants [i.e. parties to civil cases and, presumably, accused persons in criminal cases], their lawyers, witnesses and – crucially – journalists
· suspended the time-limits for filing or serving court papers
· postponed all pending civil cases until the end of the lock-down
· rolled over all pending criminal cases until specified dates in February and March, after the lock-down has been lifted
· dealt with the performance of sentences of community service at institutions that are closed during the lock-down.
Comments on SI 11 of 2021
Legality of the Practice Direction is questionable
The Chief Justice, like everyone else, is bound to follow the law and he cannot issue practice directions unless the law permits him to do so. It is not clear what that law is, however. Chief Justices have been issuing practice directions for a great many years but their authority for issuing them, if it was ever clear, has been lost in the mists of time. Practice directions are not mentioned in the Supreme Court Act, the High Court Act or the Magistrates Court Act, or in rules of court. Perhaps the authority is to be found in section 176 of the Constitution, which says:
“The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process …”
That inherent power could presumably be exercised by the Chief Justice as head of the judiciary in terms of section 163(2) of the Constitution. And one way to exercise the power would be by practice directions.
If the Chief Justice’s authority to issue practice directions is founded on section 176 of the Constitution, however, it can only apply to the three courts mentioned in that section, namely the Constitutional Court, the Supreme Court and the High Court. It cannot apply to magistrates courts or to the Administrative Court or the Labour Court.
What is clear is that the Chief Justice’s authority cannot be found in the Lock-down Order as amended by SI 11/2021. The Minister of Health has no power, even under the Public Health Act, to issue practice directions regulating the courts, and if he himself has no such power then he cannot delegate it the Chief Justice. In any event, as we have already pointed out, the amended Lock-down Order purports to give the Chief Justice power to issue practice directions only in relation to “other courts”, not criminal courts; it does not authorise him to regulate the way in which courts deal with criminal cases.
Hence whatever the source of the Chief Justice’s power, he cannot issue practice directions restricting the types of criminal cases that magistrates courts may hear or the way in which they may hear those cases, because:
· magistrates courts are not mentioned in section 176 of the Constitution, and
· the amended Lock-down Order does not authorise the Chief Justice to issue practice directions regarding criminal cases.
This means that those paragraphs of Practice Direction 1 of 2021 which state that during the lock-down courts will deal only with initial remands and bail applications, and those paragraphs which postpone pending criminal cases, are void at least in so far as they apply to magistrates courts.
Magistrates courts should therefore continue to hear all criminal matters during the lock-down period, so long as reasonable precautions are taken against the spread of COVID-19 – social distancing, wearing of face masks, sanitising of courtrooms, etc.
Importance of allowing journalists into courtrooms
The Practice Direction states that “identified members of the press” can be allowed to enter courtrooms. This is commendable because it recognises the importance of publicity to the proper functioning of our court system. Court proceedings should be held in public wherever possible to prevent corruption and the suspicion of corruption. If it is not possible for the public to attend court proceedings, as is the case during the lock-down, then journalists must be allowed to witness the proceedings and report them to the public.
Remands and bail hearings
The Practice Direction, as we have seen, states that during the lock-down courts are to hear only “initial remands” and “bail applications”. Initial remands take place when arrested persons are brought before a court – usually a magistrates court – for the first time and the court decides whether there is enough evidence to warrant putting them on trial. If the magistrate considers there is enough evidence, then he or she will “remand” the person, i.e. will order the person to come back to court on a specified date to be tried or to be further remanded to a later date until a trial date is fixed. A person may be subjected to successive remands for many months before finally being brought to trial.
The system of remands ensures that people who are awaiting trial are brought before a court regularly, giving them regular opportunities to complain about their treatment, and enabling the court to monitor the progress of their case and ensure that their trials are not unduly delayed. Any limitation on the courts’ power to remand people deprives the courts of their power to ensure fair treatment of those on remand.
In regard to bail proceedings, the Practice Direction limits courts to hearing “bail applications”. This prevents the Supreme Court and the High Court from hearing bail appeals, i.e. appeals against refusals of bail. Prisoners who have been refused bail will not have their appeals heard until after the lock-down has ended. If they were refused bail unjustly, therefore, they will have to remain in prison until the end of the lock-down before the injustice is remedied.
The remand system and the right to bail [conferred by section 50(1)(d) of the Constitution] are vitally important in protecting the rights of accused persons. The attempt by the Practice Direction to limit those rights, even if it is valid, is to be deprecated.
SI 13 of 2021 on Lawyers
This SI amends the definition of “essential service” in section 2 of the Lock-down Order to state that the work of legal practitioners is an essential service, in so far as it entails:
“attendance at any court to the extent permitted under paragraph (m) above [i.e. to the extent that courts are permitted to function during the lock-down], and of travelling to or from any other place for purposes preparatory to or in connection with such attendance”.
The effect of the amendment is clear. It will allow lawyers to leave their homes to attend court for the purpose of representing their clients in civil and criminal cases. It will also allow them to engage in work related to court appearances, for example preparing documents and interviewing clients and witnesses. They will not however be allowed to engage in other work, for example conveyancing work, drawing up contracts and advising clients on matters unconnected with court appearances. Also, rather importantly, they will not be allowed to keep their offices open so that members of the public who are not already their clients can engage their services and seek advice on issues relating to court proceedings.
The amendment should be amended at the earliest opportunity to widen it to cover all work carried out by lawyers in private practice.
Comments on SI 13 of 2021
The amendment is a necessary corollary of the declaration of courts as an essential service: courts cannot function without lawyers so lawyers must be able to carry out their work during the lock-down.
One wonders though whether there are not others whose work should be declared an essential service. Insurance companies and their staff, for example, to renew motor insurance policies that are due to expire on the 31st January, before the lock-down ends.
A consolidated version of the Lock-down Order, incorporating the latest amendments can be accessed on the Veritas website [link].