Specialist Courts only deal with specialists and special areas, which have been deemed by the lawmaker to require a "special court". In other word, the specialist court only deals with the issue it was set up to deal with. A common example of a specialist court is the Labor Relations Tribunal, which deals with labor disputes only. Other and the important examples of specialist courts are the Income Tax Court and the Administrative Courts and the Electoral Court. The lawmakers have also created two courts, which administer Customary Law in Zimbabwe only, and these are by definition, specialist courts.[1]

Background

Courts in Zimbabwe may be divided into two groups: Ordinary Courts and Specialists Courts. The ordinary courts are fairly well known. They are Magistrates Court of Zimbabwe, High Court and Supreme Court. Specialist courts only deal with specialists and special areas, which have been deemed by the lawmaker to require a ‘special court’.

Advantages of Specialist Courts in Zimbabwe

Ordinary courts deal with all sorts of cases and therefore tend to be overloaded. A person wishing to approach the ordinary court is therefore usually faced with a delay before his/her case is heard. By contrast, no such delay should be faced in a properly functioning system of specialist courts. Since a specialist court deals only with specified issues, it should be less loaded than the ordinary courts; consequently it should be faster to have a case heard in the specialist than the ordinary court.

Ordinary courts invariably adopt procedures which are complicated and confusing, and in most cases are only understood by lawyers. Such procedures work adversely against a person who is not represented by a lawyer. On the other hand, most specialist courts adopt informal procedures, which are flexible and therefore capable of being understood by the non-lawyer.

This flexibility and simplicity is conducive for justice. Ordinary courts may have to rely on conflicting expert evidence; this is avoided in specialist courts, which by definition, should be sensitive to any specific issues and therefore capable of administering justice from an informed perspective. For instance, a tax court should be better able to administer justice between parties to a taxation dispute than the ordinary court.

Disadvantages of Specialist Courts

While the above advantages have led to the establishment of specialist courts, there are however, some disadvantages.

  • The informal nature of proceedings may actually lead to injustice where principles of natural justice are compromised.
  • The jurisdiction of specialist courts is limited. And there is always the fear that proceedings may be aside by the High Courts of lack of jurisdiction.
  • Some specialist courts involve some complex issues such that the ordinary person cannot utilize their services without the aid of specialists. An example would be the Income Tax Court and Patents Tribunal.

Examples of Specialist Courts

The Labour Relations Tribunal Labour Court Act No. 17 OF 2004

The contract of employment is probably one of the most important contracts in the life of any person. The relationship between an employer and a worker is very much tilted against the latter, especially in view of the power of the employer to terminate the contract of employment (that is, the power of the fire the employee).

The Law in Zimbabwe, like that of most other countries, realizes that the power of employers to hire and fire should be restricted. The law which governs employment of workers in Zimbabwe is mainly contained in the Labour Relations Act (chap 28:01). It is this act which creates special courts called the Labour Relations Tribunal, whose main function is to administer justice which is sensitive to the plight of workers. This court deals with labour disputes only. However, the Tribunal only acts as an appeal body and thus a worker cannot approach it directly. There are two main situations in which a worker may have access to the Labour Relations Tribunal.

Firstly, a person with a labour dispute or labour-related matter may refer the matter to the Ministry of Labour, where it will be dealt with by a labour officer and thereafter by a senior labour relations officer. If a worker is not happy with the decision of a senior labour relations officer, an appeal will go to the Labour Relations Tribunal. This is the stage at which the Tribunal gets involved. The second situation in which the Tribunal may be approached arises in companies with registered codes of conduct.

A worker who has been dismissed or otherwise disciplined in terms of the registered code of conduct is allowed to appeal directly to the Labour Relations Tribunal. Workers in companies with registered codes of conduct are generally no longer permitted to refer dispute of dismissals to the Ministry of Public Service, Labour and Social Welfare, and such, the Labour Relations Tribunal plays a key role in these matters.

In both cases, an appeal to the Tribunal should be made within 14 days of the decision appealed against. The appeal requires the days of the decision appealed against. The appeal requires the appellant to fill an appropriate form, which may be obtained from the Tribunal itself or from a senior labour relation’s officer (if the appeal is against the latter’s decision). The form is easy to fill out and need not to be completed by a legal practitioner. The form may also be completed on behalf of a worker by a trade union official.

The Labour Relations Tribunal consists of a chairman who is a person qualified to be a High Court judge, deputy chairman (who should be registered legal practitioner) and up to four other members, who may be either a legal practitioner or persons by one member sitting alone or two or more members. It is required by law to be informal in its proceedings so that it is not bound by the rigid rules of evidence, which may apply in ordinary courts. A worker, besides the represented herself/himself, may be represented by a member of the worker’s committee or trade union.

There are two problems with the Labour Relations Tribunal, which have made it largely ineffective. First, it is understaffed and has therefore been unable to hear cases as quickly as desirable. There is a huge backlog of cases, which makes it difficult to have speedy justice. A worker may have to wait for up to a year or even two years before his/her case is heard.

Secondly, the Labour Relations Tribunal is not decentralized and only has offices in Harare. Persons outside Harare wishing to utilize its services have huge problems in accessing the labour relation tribunal. Both problems can easily be rectified if government allocates more resources to the Labour Relations Tribunal.

Decisions of the Labour Relations Tribunal can be appealed to the Supreme Court on matters of law only; otherwise they are final and binding on the parties.

The Administrative Court

The Administrative Court is an all purposes specialist court which deals with a number of issues allocated to it by various pieces of legislation. It is set up in term of Administrative Court Act (Chapter 7:01) and consists of a president of the courts (who is either a former judge of the high court or supreme court or is a person qualified for appointment as such or is a person who has been a magistrate for at least seven years) and assessors.

Various pieces of legislation allocated functions to the administrative court, such as, the, Lord Acquisition Act (Chapter 20:10) which gives the court in section 7 the power to authorize or confirm acquisition of land to which there has been an objection by the owner and the Regional, Town and Country Planning Act (Chapter 29:12) which gives the court various functions to resolve disputes between local planning authorities and any persons aggrieved by the farmer’s proposed use of land or refusal to grant permits for development of land for certain purposes (see for instance sections 11, 38 and 41). The most common function of the administrative court, is however, being the water court for purposes of the Water Act (Chapter 20:22). This requires some more detailed explanation.

While a person appearing before the administrative court may be represented by a legal practitioner, he/she may also appear in person and may also be represented by any other, as long as that person has been appointed in writing by the party with the case before the court. Thus, a party may be represented by a friend or any other person who is not legally qualified. Such a situation is not permissible in ordinary courts.

Appeals from the administrative court go to the supreme court of Zimbabwe.

Special Court For Income Tax Appeals

Taxation issues raise complicated problems. A taxpayer may be unhappy with an assessment made upon him and feel he/she has been asked to pay more tax than is legally due from him/her or may be aggrieved by the decision of the commissioner of taxes. The Income Tax Act (chapter 23:06) creates a special court to hear appeals from taxpayers unhappy with assessments made upon them, or who are dissatisfied with a decision of the commissioner.

The special court for income tax appeals is presided over by a president of the court, who is either a former judge of the high court or Supreme Court, or is a person qualified to be appointed a judge of the high court or Supreme Court. The president of the court sits with assessors whose role is purely advisory, with the decision of the court lying exclusively with the presiding judge.

The most common grounds for appeals is when the assessment to taxation is being queried on the basis of being excessive or where the tax payer is arguing that no liability to tax arises at all. In such cases, it is legitimate to appeal to the special court for income tax appeals. It is important to note, however, that a taxpayer is entitled to appeal to the special court for income tax appeals. The advantage of choosing to appeal to the special court for income tax appeals is that a tax payer is entitled, before that court, to be represented by a person who is not a legal practitioner as long as the person has been appointed in writing. This enables a taxpayer to be represented by a tax expert who is not a lawyer.

A taxpayer making an appeal to the special court should do so by lodging a notice of appeal in writing to the special court within 21 days of receiving a notice from the commissioner confirming an assessment or decision, as the case may be. The 21 days may be extended by the special court on good causer shown. Within 60 days after giving notice of appeal, the taxpayer is required to state in detail his grounds of appeal. The commissioner is required within 60 days of receiving the taxpayer’s grounds of appeal, to state his/her case and transmit it to the special court.

The parties may call witnesses and lead such evidence as they may deem relevant before the Supreme Court makes its decision. Special leave (permission) is required if the appeal is based on facts of a mixture of law and facts.

Fiscal Appeal Court

For the sake of completeness, mention should be made of the fiscal appeal court, another specialist tax court. This court hears appeals from decision of the commissioner of taxes in relation to sale tax and form decisions of the director of customs and excise in terms of the customs and excise act (chapter 23: 02). Thus the special court for income tax appeals hears appeals in respect of income tax issues only, while the fiscal appeals court hears appeals in respect of sales tax and customs duty only.

The fiscal appeal court is established in terms of the Fiscal Appeal Court Act (chapter 23:05). in practice, it deals more with complaints over duty assessment than the sales tax disputes. Like with other special courts, a party may be represented either by a legal practitioner or by some other a person who has been appointed in writing. Proceedings before the fiscal appeal are required to be as informal as possible. Appeals from this court go to the supreme court of Zimbabwe.

Local Courts on Customary Law

Customary Law in Zimbabwe disputes may be referred to specially set courts which have been established to preserve the application of customary law in civil disputes. There are two types of local courts, namely (i) a primary court which is presided over by a headman or other person appointed by the minister of Justice and (ii) a community court, which is presided over by chief or other person appointed by minister of justice. Both courts are established in terms of the customary law and local court act (chapter 7:05).

The main reason for the existence of these customary law courts is to provide a justice system to ordinary people in rural areas which is consistent with African custom and values. It is realized that most ordinary Zimbabwean regulate their lives in accordance with customary law to the extent that the legal ideas and institutions inherited from the system has preserved the authority of traditional leaders to adjudicate in civil disputes by customary law.

Small Claims Court

A person who has a small claim to make against another is saved the inconveniency and delay of approaching the ordinary courts by the advice of the small claim courts. These courts are established in terms of the small claim courts act (Chapter 7:2). The power to establish a small claim court in any province is given to the Minister of Justice, Legal and Parliamentary Affairs.

The Electoral Court and the Zimbabwe Electoral Commission

The Electoral court is set up in terms of the Electoral Act (Chapter 2:01) to solve and to deal with disputes arising out of elections, or to deal with election petitions. The conception of the Electoral Court commenced simultaneously with the conception of the Zimbabwe Electoral Commission in 2004 when the President opened Parliament in July 2004. The Zimbabwe Electoral Commission is supposed to be an independent electoral authority. The proposed Zimbabwe Electoral Commission Act (18, 2004) was conceived prior to the adoption of the SADC Electoral Charter (SADC Principles and Guidelines on Free and Fair Elections) in August 2004. The Zimbabwe Electoral Commission Act subsequently created the Electoral Court to deal with any matters arising from any election.

Maintenance Court

The Maintenance Court is a specialist Court established in terms of the Maintenance Act (Chapter 5:09). In actual fact it is the Magistrates Court Sitting as a Maintenance Court. A magistrate is designated to hear and settle matters strictly related to Maintenance issues. The Act deals with the granting of Maintenance and the issuing of Maintenance Orders by the presiding Officer at Maintenance Court. In other words the Maintenance Act guides the procedure to be adopted by maintenance Courts in dealing with maintenance issues.

Children’s Court

The Children’s Court was formerly called the Juvenile Court. It is set up as under the magistrate’s court to deal specifically with matters pertaining to Children. The Children’s Act [Chapter 5:06] guides children’s Courts in matters pertaining to Children. Issues such as custody, and guardianship, sexual abuse of minors, minors detained for immoral purposes and the ill treatment of children inter alia are covered by this special court. Issues pertaining to Child Welfare by the state are also dealt with within this act and the fund for such is also set up in terms of this act.

References

  1. [1], Nyu Law, Accessed: 6 October, 2020