Electronic Theses and Dissertations (PhDs)

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Browsing Electronic Theses and Dissertations (PhDs) by Keyword "Civil procedure"

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    Procedural access to justice: enhancing access to the superior courts of Zimbabwe through reform of selected rules of civil procedure
    (University of the Witwatersrand, Johannesburg, 2023) Matsikidze, Rodgers; Theophilopoulos, Constantine
    This thesis argues that the rules of civil procedure can enhance or inhibit access to the courts. Secondly, it argues that there is a nexus between the right of access to the court and the rules of civil procedure, in that rules of civil procedure play a critical role in providing a procedural pathway to court. Thus, in providing a mechanism for realising substantive rights, the rules of procedure become central in ensuring access to court and justice. On the other hand, this thesis argues that the rules of civil procedure governing security costs, leave to appeal and appeals, and referral of constitutional matters (herein referred to as selected rules of procedure) restrict access to court and, in turn, access to justice. This thesis argues that blanket security for costs rules restrict access to the court and can result in litigants being required to tender inhibitive security for costs. The thesis further proposes that the requirement for security for costs must be restricted only to frivolous and vexatious civil claims and appeals. In addition, it is also argued that the strict application of the rules governing appeals in the Superior Courts of Zimbabwe, which result in appeals being struck off the roll for being defective, is undesirable, and there is a need to balance the need for compliance with the rules of procedure and emphasis on unduly technical requirements which do not enhance access to justice. Thus, the thesis argues for the robust application of rules of governing appeals to ensure that appeals are largely dispensed on merits. Further, the thesis argues that the requirement for leave to appeal from the Labour Court to the Supreme Court and from the Supreme Court to the Constitutional Court is undesirable as it discriminates in favour of direct appeals from the High Court to the Constitutional Court of Zimbabwe. Moreso, the requirement for leave to appeal from the Supreme Court to the Constitutional Court restricts access to justice as it unnecessarily increases litigation costs. It is, therefore, argued that the reform of leave to appeal rules, particularly removing the requirement of leave to appeal from the Labour Court of Zimbabwe to the Supreme Court of Zimbabwe, increases access to justice and affords a litigant an equal opportunity as a litigant appealing from the High Court to the Supreme Court who does not require leave to appeal. In addition, it advocates for automatic appeals to the Constitutional Court of Zimbabwe. Furthermore, this thesis proposes widening the appeal jurisdiction of the Constitutional Court from only being restricted to hearing constitutional matters to also hearing a matter raising an arguable point of law of general public importance. In addition, this thesis argues for more direct access, particularly on constitutional issues, as an avenue to increase access to justice. Additionally, the thesis identifies the rules governing the referral of constitutional issues from the subordinate courts of the Constitutional Court as unduly viii restrictive. There is, therefore, a need to simplify the referral of constitutional matters procedure to increase access to justice by referring constitutional matters to the Constitutional Court. Thus, this thesis focuses on the impact of the selected rules of civil procedure in the Superior Courts of Zimbabwe on court access by litigants, represented or unrepresented. The Superior Courts of Zimbabwe at the centre of this thesis are the High Court, the Supreme Court and the Constitutional Court. The thesis concludes that in inhibiting access to the Superior Courts of Zimbabwe, the selected rules of procedure contravene section 69(3) of the Constitution of Zimbabwe, which provides for the right of access to the court. It is evident from the comparison made in this thesis that the framing of selected rules of procedure in South Africa and Kenya enhances access to the courts and justice. Thus, the thesis proposes reform of the law and selected rules of procedure to enhance access to the Superior Courts of Zimbabwe. The reform proposal to the selected rules of civil procedure is accompanied by a draft of reformed selected rules of civil procedure and some proposed amendments to enabling Acts of Parliament and the Constitution of Zimbabwe