i PROCEDURAL ACCESS TO JUSTICE: ENHANCING ACCESS TO THE SUPERIOR COURTS OF ZIMBABWE THROUGH REFORM OF SELECTED RULES OF CIVIL PROCEDURE By RODGERS MATSIKIDZE A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy (PhD) In the School of Law at the University of the Witwatersrand Supervisor Associate Professor Constantine Theophilopoulos School of Law Faculty of Commerce, Law and Management University of the Witwatersrand, Johannesburg ii DECLARATION I, Rodgers Matsikidze, declare that this thesis is my unaided work. It is submitted to fulfil the requirements of the Doctor of Philosophy (PhD) degree in the Faculty of Commerce, Law and Management at the University of the Witwatersrand, Johannesburg. I further declare that this thesis has never been submitted before for any degree or examination in any other university. Signature: Rodgers Matsikidze STUDENT 1353185 28thth August 2023 iii ACKNOWLEDGEMENTS I thank the Almighty God for giving me sufficient grace to complete my PhD studies. I also thank my supervisor, Associate Professor Constantine Theophilopoulos, for taking me through this very difficult journey. Pursuing a PhD is indeed a journey that is tiresome and stressful. I am also indebted to Dr JD McClymont, Dr Ellen Sithole, Prof. Tumai Murombo, Prof. Feltoe and Susan Feltoe for encouraging me and sharing ideas on tackling this wide and very tricky area of law. Also, Sesedzai, Megan, Steadfast, Sharon and Adrian are not to be forgotten. More importantly, I want to thank my wife, Edith, and our children for enduring many nights when I was awake and reading huge piles of articles. iv DEDICATION To you, Mum, I wish you were still alive. You valued education and worked as a farm labourer to make me who I am today. I love you, Mum. To my father, God called you when we were very young. Mum told us that you were a good father. I love you too. I dedicate this piece of work to my wife, Edith. It has been difficult all these years, but God has taken us this far. Thank you for being such a true love. v ABBREVIATIONS AND ACRONYMS ACHPR African Charter on Human and People’s Rights ACHR American Convention on Human Rights, 1978 BSAC British South Africa Company CCPD2/13 Constitutional Court Practice Directive of 2013 CCZ Constitutional Court of Zimbabwe CLLCA Customary Law Local Court Act ECHR European Court of Human Rights ECPHRFF European Convention for the Protection of Human Rights and Fundamental Freedoms, 1953 FRA European Union Agency for Fundamental Rights ICCPR International Convention on Civil and Political Rights MCA Magistrates Court Act SADC Southern Africa Development Community s69 (3) SCCA Small Claims Court Act SI Statutory instrument SROIC The Southern Rhodesia Order-in-Council UDHR Universal Declaration of Human Rights USD United States Dollar ZLR Zimbabwe Law Reports ZWL Zimbabwean Dollar UNDP United Nations Development Programme vi US United States USA United States of America ZLR Zimbabwe Law Reports vii ABSTRACT 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. ix TABLE OF CONTENTS ACKNOWLEDGEMENTS ................................................................................................................................. iii DEDICATION ................................................................................................................................................. iv ABBREVIATIONS AND ACRONYMS ................................................................................................................. v ABSTRACT .................................................................................................................................................... vii CHAPTER ONE ............................................................................................................................................... 1 TOWARDS ENHANCED ACCESS TO THE SUPERIOR COURTS OF ZIMBABWE .................................................... 1 1.1. INTRODUCTION ................................................................................................................................... 1 4.1. PROBLEM STATEMENT ....................................................................................................................... 2 1.2. THE ORIGINALITY OF THE THESIS ........................................................................................................ 6 1.3. RESEARCH QUESTIONS ........................................................................................................................ 8 1.4. OBJECTIVES OF THE THESIS ................................................................................................................. 8 1.5. THE ROLE OF CIVIL PROCEDURE AND ACCESS TO JUSTICE .................................................................. 9 1.6. SELECTED RULES AND PRINCIPLES OF CIVIL PROCEDURE THAT HAVE AN IMPACT ON ACCESS TO JUSTICE….. ....................................................................................................................................................... 12 1.7.1. The rule requiring security costs and its impact on access to justice ........................................... 12 1.7.2. Leave to appeal and its impact on access to justice. .................................................................... 13 1.7.3. Procedure for appeals in the Superior Courts of Zimbabwe and right of access to the court. ..... 14 1.7.4. The referral procedure of constitutional matters to the Constitutional Court and access to justice…… ..................................................................................................................................................... 15 1.7. THE RIGHT OF ACCESS TO JUSTICE .................................................................................................... 16 1.8. RIGHT OF ACCESS TO THE COURT AS A COMPONENT OF ACCESS TO JUSTICE ................................. 20 1.9. THE RIGHT OF ACCESS TO THE COURT UNDER THE INTERNATIONAL CONVENTIONS AND TREATIES….. ..................................................................................................................................................... 21 1.10. THE RECOGNITION OF THE RIGHT OF ACCESS TO THE COURT UNDER CONSTITUTIONS .................. 23 1.11. THE ROLE OF COURTS IN ENHANCING ACCESS TO JUSTICE .............................................................. 24 1.12. THE ROLE OF THE STATE IN ENSURING ACCESS TO JUSTICE ............................................................. 25 1.13. THE ROLE OF JUDICIAL INTERPRETATION OF RULES OF CIVIL PROCEDURE IN ENHANCING ACCESS TO COURT…. ......................................................................................................................................................... 26 x 1.14. METHODOLOGY ................................................................................................................................ 26 1.15. LIMITATIONS ..................................................................................................................................... 27 1.16. THE STRUCTURE OF THE THESIS ....................................................................................................... 28 1.17. CONCLUSION ..................................................................................................................................... 28 CHAPTER TWO ............................................................................................................................................. 29 THE DEVELOPMENT AND RECOGNITION OF THE RIGHT OF ACCESS TO THE COURT AND JUSTICE IN ZIMBABWE .................................................................................................................................................. 29 2.1. INTRODUCTION ................................................................................................................................. 29 2.2. ACCESS TO JUSTICE AND ITS COMPONENTS ..................................................................................... 29 2.3. THE RIGHT OF ACCESS TO THE COURT AS A HUMAN RIGHT ............................................................ 33 2.4. THE RECOGNITION OF THE RIGHT OF ACCESS TO THE COURT ......................................................... 41 2.5. RULES OF CIVIL PROCEDURE AS ENHANCERS IN THE REALISATION OF THE RIGHT OF ACCESS TO THE COURT….. ........................................................................................................................................................ 46 2.6. SUPERIOR COURTS AND PROCEDURAL ACCESSIBILITY ..................................................................... 52 2.7. CONCLUSION ..................................................................................................................................... 54 CHAPTER THREE .......................................................................................................................................... 56 HISTORICAL BACKGROUND OF SELECTED RULES THAT RESTRICT ACCESS TO THE SUPERIOR COURTS OF ZIMBABWE .................................................................................................................................................. 56 3.1. INTRODUCTION ................................................................................................................................. 56 3.2. SYNOPSIS OF PRE-COLONIAL COURT STRUCTURE AND CIVIL PROCEDURE ....................................... 56 3.3. THE DAWN OF A NEW LEGAL AND GOVERNANCE SYSTEM: SOUTHERN RHODESIA ORDER-IN- COUNCIL, 1898 ................................................................................................................................................ 57 3.4. THE EMERGENCE OF A DUAL LEGAL SYSTEM AND THE DEVELOPMENT OF CIVIL PROCEDURE RULES IN ZIMBABWE ................................................................................................................................................. 58 3.5. THE COURT STRUCTURE AND DEVELOPMENT OF SELECTED CIVIL PROCEDURE RULES FROM 1891 TO 1921.. ......................................................................................................................................................... 60 3.6. RULES GOVERNING APPEALS, LEAVE TO APPEAL, SECURITY FOR COSTS AND REFERRAL OF CONSTITUTIONAL MATTERS FROM 1891 TO 1923 ......................................................................................... 64 3.6.1. Appeals and leave to appeal in the High Court and the Supreme Court of Rhodesia: 1891 to 1923…….. ..................................................................................................................................................... 65 xi 3.6.2. Requirement of security for costs and access to the High Court of Rhodesia: 1891 to 1923 ....... 68 3.7. THE DEVELOPMENT OF THE SELECTED RULES UNDER VARIOUS CONSTITUTIONS AND ACCESS TO THE SUPERIOR COURTS: 1923 to 1979 ............................................................................................................ 69 3.7.1. The Courts’ structure under the Constitutional Order: 1923 to 1964 .......................................... 70 3.7.2. The referral of constitutional matters procedure to the Supreme Court of Rhodesia: 1961 to 1964…….. ..................................................................................................................................................... 71 3.7.3. Appeals and leave to appeal and access to the High Court of Rhodesia under Government Notices, No 1932, Order No XXX ................................................................................................................. 72 3.7.4. The Courts’ structure and right of appeal to the General and Appellate Division of the High of Rhodesia: 1961 to 1979 ............................................................................................................................... 73 3.7.5. The requirements for a valid notice of appeal: 1964 to 1979 ....................................................... 77 3.7.6. Application for leave to appeal to the Superior Courts: 1964 to 1979 ......................................... 81 3.7.7. The referral procedure of constitutional matters to the Supreme Court: 1964 to 1979 .............. 82 3.7.8. Security for costs on appeal to the Appellate Division: 1964 to 1979 .......................................... 84 3.8. CONCLUSION ..................................................................................................................................... 85 CHAPTER 4 .................................................................................................................................................. 87 THE COURTS’ STRUCTURE AND SELECTED RULES OF CIVIL PROCEDURE IN THE SUPERIOR COURTS OF ZIMBABWE .................................................................................................................................................. 87 4.1. INTRODUCTION ................................................................................................................................. 87 4.2. THE COURT’S STRUCTURE IN ZIMBABWE ......................................................................................... 87 4.2.1. The customary law courts’ structure ............................................................................................ 87 4.2.2. The Small Claims Court ................................................................................................................. 89 4.2.3. The Magistrates Court .................................................................................................................. 91 4.2.4. Specialised courts (Labour Court and the Administrative Court) ................................................. 92 4.2.5. The structure of the High Court of Zimbabwe .............................................................................. 94 4.2.6. The Supreme Court of Zimbabwe ................................................................................................. 95 4.2.7. The Constitutional Court of Zimbabwe ......................................................................................... 96 4.3. SELECTED RULES THAT LIMIT ACCESS TO SUPERIOR COURTS IN ZIMBABWE ................................... 97 4.4. THE IMPORTANCE OF ACCESS TO THE SUPERIOR COURTS ON APPEAL ............................................ 98 4.5. LEAVE TO APPEAL AND APPEAL RULES IN THE HIGH COURT ............................................................ 98 4.6. LEAVE TO APPEAL AND APPEAL RULES IN THE SUPREME COURT .................................................. 100 4.7. LEAVE TO APPEAL AND APPEAL RULES IN THE CONSTITUTIONAL COURT ...................................... 107 4.8. PROCEDURAL ACCESSIBILITY OF THE SUPERIOR COURTS ON APPEAL ............................................ 111 xii 4.9. RESTRICTED ACCESS TO THE SUPERIOR COURTS DUE TO THE LEAVE TO APPEAL REQUIREMENTS 112 4.10. REQUIREMENT FOR SECURITY FOR COSTS IN THE HIGH COURT .................................................... 113 4.11. SECURITY FOR COSTS IN THE SUPREME COURT .............................................................................. 115 4.12. SECURITY FOR COSTS IN THE CONSTITUTIONAL COURT ................................................................. 117 4.13. RESTRICTED ACCESS TO THE SUPERIOR COURTS DUE TO THE REQUIREMENT FOR SECURITY FOR COSTS……. ...................................................................................................................................................... 117 4.14. REFERRAL OF CONSTITUTIONAL MATTERS TO THE CONSTITUTIONAL COURT ............................... 118 4.15. RESTRICTED ACCESS TO THE CONSTITUTIONAL COURT DUE TO THE REQUIREMENTS OF THE REFERRAL PROCEDURE ................................................................................................................................. 123 4.16. RESTRICTED JURISDICTION OF THE CONSTITUTIONAL COURT ....................................................... 123 4.17. CONCLUSION ................................................................................................................................... 128 CHAPTER FIVE ............................................................................................................................................ 130 COMPARATIVE OVERVIEW: REFLECTING ON THE EXPERIENCES OF SOUTH AFRICA AND KENYA ................. 130 5.1. INTRODUCTION ............................................................................................................................... 130 5.2. THE COURT STRUCTURE IN SOUTH AFRICA .................................................................................... 130 5.3. THE KENYAN COURT STRUCTURE ................................................................................................... 133 5.4. LEAVE TO APPEAL RULES AND ACCESS TO THE SUPERIOR COURTS OF KENYA, SOUTH AFRICA, AND ZIMBABWE .................................................................................................................................................... 135 5.4.1. Legislating the requirements for leave to appeal in the Statutes and Rules governing leave to appeal in Superior Courts .......................................................................................................................... 136 5.4.2. The general requirement for leave to appeal to access the Zimbabwean Constitutional Court: Lessons from South Africa and Kenyan Supreme Court ............................................................................ 138 5.4.3. Extending the right of automatic appeal to appeals from the Labour Court to the Supreme Court of Zimbabwe. ............................................................................................................................................ 141 5.4.4. The requirement for leave to appeal against interlocutory orders. ........................................... 142 5.4.5. Increasing the number of presiding judges over an application for refusal of leave to appeal and appeal stages against refusal of leave to appeal in Superior Courts ......................................................... 144 5.5. ACCESS TO THE SUPERIOR COURTS OF KENYA, ZIMBABWE, AND SOUTH AFRICA ON APPEAL ...... 147 5.5.1. Expanding the right to appeal to the Constitutional Court to non-constitutional legal issues. .. 148 5.5.2. Expanding the number of judges hearing an appeal in the Superior Courts .............................. 150 5.5.3. The mandatory requirements for a valid notice of appeal in Superior Courts of Zimbabwe, Kenya and South Africa ........................................................................................................................................ 151 xiii 5.6. AUGMENTING ACCESS THROUGH THE APPEAL PROCEDURE TO THE CONSTITUTIONAL COURT BY EXTENDING DIRECT ACCESS TO ALLEGED VIOLATIONS OF BILL OF RIGHTS CASES ....................................... 157 5.7. SIMPLIFYING THE REFERRAL PROCEDURE TO INCREASE ACCESS TO THE ZIMBABWEAN CONSTITUTIONAL COURT: DRAWING LESSONS FROM KENYAN SUPREME COURT AND THE SOUTH AFRICAN CONSTITUTIONAL COURT. ......................................................................................................................... 163 5.8. ENHANCING ACCESS TO THE SUPERIOR COURTS THROUGH REFORM OF SECURITY FOR COSTS RULES BY DRAWING LESSONS FROM SOUTH AFRICA AND KENYA ............................................................... 165 CHAPTER SIX ............................................................................................................................................. 173 REFORMING THE SELECTED RULES OF CIVIL PROCEDURE TO ENHANCE ...................................................... 173 COURT ACCESS .......................................................................................................................................... 173 6.1. INTRODUCTION ............................................................................................................................... 173 6.2. SUMMARY OF INSIGHTS ................................................................................................................. 173 6.3. THE MAIN RECOMMENDATIONS .................................................................................................... 183 6.3.1. Recommendation 1: The Constitutional Court of Zimbabwe’s jurisdiction on appeal must be extended to include hearing non-constitutional matters of general public importance. ......................... 183 6.3.2. Recommendation 2-Augmenting access through the appeal procedure to the Constitutional Court by extending directing access to alleged violations of Bill of Rights ............................................... 185 6.3.3. Recommendation 3: Expanding the right of appeal against refusal of leave to appeal in the High Court and the Labour Court of Zimbabwe ................................................................................................ 185 6.3.4. Recommendation 4: Simplify the referral to the Constitutional Court Rules ............................. 186 6.3.5. Recommendation 5: Rules governing a notice of appeal or appeal must provide for a simple notice of appeal or appeal ........................................................................................................................ 187 6.3.6. Recommendation 6: Reforming the security for costs rules to remove the blanket requirement….. ......................................................................................................................................... 194 6.3.7. Recommendation 7: Extending the right of automatic appeal to appeals from the Labour Court to the Supreme Court of Zimbabwe. ......................................................................................................... 195 6.3.8. Recommendation 8 – Expanding the right of appeal against refusal of leave to appeal in the High Court and the Labour Court in interlocutory matters ............................................................................... 196 6.3.9. Recommendation 9: Legislating the requirements to be considered in granting leave to appeal- the best interests of justice as opposed to the finality of judgment test ................................................. 198 6.3.10. Recommendation 10: Expanding the number of judges hearing an appeal in Superior Courts…………. ............................................................................................................................................ 199 6.3.11. Recommendation 11: Develop a preamble for all Superior Courts Rules that emphasises interpreting rules to enhance access to court and justice ........................................................................ 200 xiv 6.3.12. Recommendation 12: Amend Rules to allow direct appeals from the subordinate courts to the Constitutional Court of Zimbabwe ...................................................................................................... 201 6.4. CONCLUSION ................................................................................................................................... 203 7. BIBLIOGRAPHY ...................................................................................................................................... 204 7.1. BOOKS, MONOGRAPHS & BOOK CHAPTERS ................................................................................... 204 7.2. JOURNAL ARTICLES ......................................................................................................................... 208 7.3. GOVERNMENT PUBLICATIONS ........................................................................................................ 215 7.4. TREATIES, REPORTS AND THESES .................................................................................................... 215 7.5. INTERNET AND MEDIA ARTICLES .................................................................................................... 216 7.6. TABLE OF CASES .............................................................................................................................. 219 7.7. TABLE OF STATUTES ........................................................................................................................ 226 7.7.1. List of International, Regional Conventions ................................................................................ 226 7.7.2. Constitutions ............................................................................................................................... 226 7.7.3. Acts of Parliament and Rules of Courts ....................................................................................... 227 7.7.4. Regulations And Rules ................................................................................................................ 227 1 CHAPTER ONE TOWARDS ENHANCED ACCESS TO THE SUPERIOR COURTS OF ZIMBABWE 1.1.INTRODUCTION This thesis argues firstly that the procedural right of access to the court may be “enhanced or inhibited” by the rules of civil procedure. This, in turn, affects the constitutional right of access to justice. Secondly, this thesis critically examines the nexus between the right of access to the court, particularly the right of access to the High Court of Zimbabwe, the Supreme Court of Zimbabwe and the Constitutional Court of Zimbabwe (herein the “Superior Courts of Zimbabwe”)1 and rules of civil procedure including the specific rules of civil procedure that are the focus of this thesis, which play a critical role in providing a procedural pathway to court. As a mechanism for realising substantive rights, the rules of procedure are central in ensuring access to court and justice. The thesis critically analyses the procedural impact of specific rules of procedure governing security costs, leave to appeal, appeals and referral of constitutional issues in the Superior Courts on the procedural right of access to the court and, ultimately, access to justice. The specific rules of civil procedure that are analysed and assessed in this thesis are referred to as “selected rules” or “selected rules of civil procedure”.2 The need for a critical examination of these selected rules of civil procedure for the Superior Courts of Zimbabwe is further reinforced because the procedural right of access to the courts is constitutionally entrenched in section 69 (3) of the Constitution of Zimbabwe, 2013 (hereinafter referred to as “the Constitution”). Furthermore, since 2013, no reform has been carried out seeking to align the selected rules of civil procedure with the provisions of s63 (3) of the Constitution to enhance access to the Superior Courts. This thesis critically analyses these rules, making a crucial comparison with the same or similar rules in the adversarial justice systems of South Africa and Kenya.3 Kenya and South Africa share a similar colonial legal history with Zimbabwe and the same common law heritage on the rules of civil procedure. The United Kingdom is the erstwhile colonial power for all three countries. This thesis aims to 1 The Superior Courts of Zimbabwe are the High Court of Zimbabwe, the Supreme Court of Zimbabwe and the Constitutional Court of Zimbabwe (CCZ). 2 The selected rules of civil procedure are identified in the problem statement. Further, in Zimbabwe’s civil procedure, rules are referred to as rules of civil procedure. So, in this thesis, the term used throughout is ‘rules of civil procedure’. 3 South Africa, Zimbabwe and Kenya are all former colonies of the United Kingdom. The United Kingdom consists of England, Wales and Scotland. The legal system of England and Wales have some similarities with Zimbabwe, South Africa and Kenya. Scotland has a different system and, as such, is not referred to in this study. 2 identify the procedural rules that inhibit access to the courts, recommend reform of these rules, and provide a new set of draft rules aligned with the Constitution to enhance access to the Superior Courts. In addition, further proposals will be made to amend sections of the relevant statutes containing rules of procedure governing appeals in the Superior Courts of Zimbabwe. This thesis does not focus on the right of access to the court4 in the Magistrates Court5 of Zimbabwe for two reasons. Firstly, in my MPhil studies, I focused on the right of access to the court by examining the structure of the rules of civil procedure in the Magistrates Court.6 Secondly, the selected rules under review are more pronounced in Superior Courts and are the main means used to access the Superior Courts. Further, in most cases, the appeals and leave to appeal rules of civil procedures are used when a litigant appeals from the Magistrates Court to the Superior Courts. Further, the principles of security costs, direct access and referral of constitutional matters are pronounced and found in every rule governing Superior Courts and are further assumed to be the rules inhibiting access to those Superior Courts. In addition, although this thesis focuses on the rules governing the right of access to the Superior Courts, it excludes the rules governing the review and application procedure. The rationale for excluding these two procedures is that they are assumed to be fairly easier to utilise than the selected rules of civil procedure.7 Apart from these reasons, including the application and review procedures in this study would inhibit a thorough critique of issues, generalising the discussion. The two areas (applications and reviews) are bulky and would require a separate thesis. So, this thesis specifically focuses on appeals, leave to appeal, security for costs and referral of Constitutional Court Rules to the Superior Courts of Zimbabwe. 4.1. PROBLEM STATEMENT Although s69 of the Constitution entrenches a constitutional right of access to the courts, a set of rules of civil procedure specifically restricts procedural access to the Superior Courts of Zimbabwe. The first argument advanced in this thesis is that the rule of civil procedure requiring a plaintiff/appellant/applicant to furnish litigation security for costs without 4 Some authors cited in this thesis refer to the concept of the right of access to the court as the “right of access to court”, while others refer to it as the “right of access to the court”. This thesis uses the phrase “right of access to the court” throughout. 5 In this thesis, the “Magistrates Court” is referred to as the “Magistrates Court” as that is the wording set in the various Statutes; for example, the Magistrates Courts Act (7:10). South Africa and Kenya refers to the “Magistrates Court” as the “Magistrate’s Court”. 6 R Matsikidze The civil procedure in the Magistrates Court of Zimbabwe. A denial of right of access to the court to self-actors? Unpublished Thesis, University of Zimbabwe (2014). 7 Ibid. 3 exceptions restricts access to the Superior Courts. The security for costs rule is similarly worded and set out in Rule 75 of the High Court Rules, 2021, Rule 55 of the Supreme Court Rules, 2018, and Rule 42 of the Constitutional Court Rules. This restrictive rule means that where a litigant fails to provide security for costs, the matter is struck off the roll regardless of whether the matter has prospects of success. Therefore, access to the court is denied to a litigant who does not have the resources to pay the security for costs. There are no set exceptions to the rule providing security for costs unless the litigant is a government or municipal authority. Secondly, appeals to the Constitutional Court may only be based on an identified constitutional issue in a particular matter. This procedural rule (see Rule 32 (2) of the Constitutional Court Rules) restricts access to the Constitutional Court. This restrictive approach to appeals is very different to the current approach adopted in other jurisdictions, such as in South Africa, where all matters, including constitutional issues, may be appealed to the Constitutional Court of South Africa provided the issue raised constitutes an arguable point of law of general public importance. Furthermore, several Zimbabwean Supreme Court and Constitutional Court judgments have held that an appeal that does not conform to the mandatory requirements of a correctly formatted “notice of appeal” is defective and thus a legal nullity.8 In Sarah Ndlovu & Comloc (Private) Limited v Moffat Ndlovu & Siphosethu Magonya,9 the Zimbabwean Supreme Court held that a notice of appeal was technically defective because of non-compliance with the mandatory provisions of Rule 29, particularly 8 See the cases of Dabengwa and Anor v ZEC and Others SC-32-16, Fungai Munyorovi v Weston Sakonda HH- 467-21, where Dube J held that a fatally defective pleading is a legal nullity. Also see Matanhire v BP Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR147 (S), again the Supreme Court held that failure to comply with mandatory provisions of the rules renders an appeal a nullity. See also Tamanikwa v Zimbabwe Manpower Development Fund and Anor SC 73/17, in which the court dealt with an appeal that was fatally defective and nullity at law and made it clear that an appeal or a pleading that is fatally defective or a nullity is incurably bad, beyond repair and cannot be condoned, revived or amended. Also, see Florence Sigulu v Minister of Lands and Rural Resettling N.O and 2 Others HH-11-13. Korsah J in Ngani v Mbanje and Another; Mbanje and Another v Ngani 1987 (2) ZLR 111 at 115 relying on the dicta in McFoy v United Africa Company Ltd ALL ER 1169 remarked: ‘If any act is in law a nullity, it is not only bad but incurably bad.’ There is no need for the order of the Court to set it aside. It is automatically null and void without more ado. Though it is sometimes more convenient to do so. And every proceeding founded on it is also bad and incurably bad. It is simply invalid for failure to comply with the rules. The approach by Zimbabwean courts as Dube J in Fungai Munyorovi v Weston Sakonda HH-467-21, on page 7, is that where a pleading is defective and a nullity depends on the non-compliance with the rules, one cannot seek condonation of a nullity and the pleading will be liable to be struck off the roll. The Matanhire case seems to go further to then qualify that nullity arises from non-compliance with peremptory or mandatory rules. The Court in Matanhire dealing with an appeal filed outside the time ruled that ‘As no valid notice of appeal was delivered within fifteen days of the date when the decision of the Labour Court was given, there was no appeal before the Court and to merely insert the relevant date in the defective notice of appeal as suggested by Mr Muskwe, without an application for an extension if the time within which to institute the appeal and for condonation of non-compliance with the Rules of Court would be grossly irregular.’ So the settled position in Zimbabwean Superior Courts is that failure to comply with mandatory rules of appeal or court in general results in an appeal or pleading deemed to be a legal nullity. 9 Sarah Ndlovu & Comloc (Private) Limited v Moffat Ndlovu & Siphosethu Magonya SC 133-02. 4 subrules (c) and (e). Rule 29 (c)-(d) requires the appellant or their legal representative to state (i) whether the whole or only part of the judgment is appealed against and (ii) the exact nature of the relief sought.10 The Supreme Court held that the appellant had failed to state whether the whole or only part of the judgment was being appealed against and also failed to state the exact nature of the relief sought.11 This case follows the precedent set in Jensen v Acavalos, 12 where Korsah JA held that “[ ] ... a notice of appeal which does not comply with the rules is fatally defective and invalid.13 That is to say, it is a nullity. 14 It is not only bad but incurably bad, and unless the Court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”15 Nevertheless, despite the provision for condonation being available in terms of the Rules, in almost all cases, the Supreme Court and the Constitutional Court, instead of condoning non- compliance or allowing amendments, have struck off appeals for failure to comply with the mandatory requirements of the procedures governing appeals.16 Thirdly, this thesis argues that the rule of civil procedure, which requires an appellant to seek leave to appeal, may, in certain circumstances, be restrictive of access to the Superior Courts. These rules are contained in Rule 94 (8) (9) of the High Court Rules, Rule 43 of the Supreme Court Rules, Rule 32 of the Constitutional Court Rules and s4 (3) of the Constitutional Court Act. For a litigant to appeal to the Constitutional Court of Zimbabwe (CCZ), he/she must be granted leave by a Judge of the Supreme Court.17 If the Judge of the Supreme Court denies 10 Ibid. 11 Ibid. 12 Jensen v Acavalos 1993 (1) ZLR 216 (S) at 220 B-D. 13 Ibid. 14 Ibid. 15 Ibid. 16 The position on when condonation for non-compliance with the rules can be granted or not is confirmed by Dube J in Fungai Munyorovi v Weston Sakonda HH-467-21 at page 8 where she ruled that ‘Because Rule 4C and its equivalent in the new rules give the court extensive discretionary powers in the case of non-compliance with the rules, the provision was meant to be used to condone irregular steps stemming from non-compliance with the rules. Rule 4C of the High Court Rules,1971– now in new High Court Rules, 2021 cannot be used to condone fatally defective pleadings in either form or substance which are considered nullities. The court held further that it was never the intention of the legislature that Rule 4C be resorted to for purposes of condoning fatal defects or nullities and reviving the pleadings. So the rules relating to condonation are not applicable to defective pleadings or appeals, particularly those that do not comply with mandatory requirements of rules of court. See De Jager v Diner & Anor 1957 (3) SA 567 (A) at 574 C–D. In Hattingh v Pienaar 1977 (2) SA 182 (O) at 183, Klopper JP held that fatally defective compliance with the rules regarding the filing of appeals could not be condoned or amended. What should be applied is an extension of time within which to comply with the relevant rule. He further ruled, “With this view, I most respectfully agree; for if the notice of appeal is incurably bad, then, to borrow the words of Lord Denning in McFoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC) at 1172, every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 17 Rule 43 Supreme Court Rules, 2018; Rule 32 of Constitutional Court Rules, 2016; s4 of the Constitutional Court Act of Zimbabwe (7:22). 5 a litigant leave to appeal, that is the end of the procedural road, as there is no appeal mechanism against the decision of a single Supreme Court judge.18 This also applies to litigants appealing from the Labour Court to the Supreme Court. In s92F of the Labour Act (Chapter 28:01), a litigant must apply for leave to appeal before a judge of the Labour Court, and if denied, he/she would have to apply for leave to appeal before a judge of the Supreme Court. Further, if the Supreme Court or Constitutional Court judge denies the leave to appeal, the possibility of litigation for such a litigant ends. Fourthly, this thesis argues that the rule regulating the referral of constitutional issues provided in s175 of the Constitution to the CCZ also inhibits the right of access to the CCZ (herein in this thesis, referred to as the “referral procedure”). The referral procedure rule is set out in Rule 108 (1) of the High Court Rules, Rule 71 of the Supreme Court Rules and Rule 24 of the Constitutional Court Rules. A referral can be made to the Constitutional Court in two instances. The first instance is at the discretion of the High Court. The High Court may refer a case to the CCZ where a constitutional issue has been identified, and its resolution will have a bearing on the disposition of the other relevant issues before the High Court. The second instance concerns the mandatory requirement that a decision-maker presiding over a subordinate court must refer a matter to the CCZ, where a party to the proceedings formally requests such a referral of a constitutional issue. In this circumstance, a magistrate or judge is officially obliged to refer the matter to the Constitutional Court. The only ground on which a magistrate or judge may refuse to refer the issue is if they consider the request to be frivolous, vexatious or both. At the heart of the referral of constitutional matters procedure is the requirement that the litigant seeking to refer a constitutional issue, or the presiding judicial officer, must formulate a constitutional question for determination by the Constitutional Court. Failure to formulate a constitutional question and technical non-compliance with the rest of the mandatory referral procedures have resulted in some cases being struck off the roll as improperly referred to the Constitutional Court.19 The principal defect in the referral process is 18 Ibid. 19 In Nyagura v Ncube N.O. and Ors CCZ 7/19, at page 8 it was ruled that, “If a constitutional matter arises in proceedings before a court, a judicial officer presiding over that court may and if so requested by a party to the proceedings must refer the matter to the Constitutional Court unless he or she considers the request is merely frivolous or vexatious.” The test for referral is thus set in s175 (4) of the Constitution of Zimbabwe. However, in practice, the procedures now contained in the rules of the High Court Rules, Supreme Court Rules and Constitutional Court Rules cited under the problem statement have introduced additional procedural restrictions that seemingly were not contemplated by the framers of the Constitution of Zimbabwe. See also Mutero and Anor v Attorney General 2000 (2) ZLR 286 (S), where the Supreme Court ruled that it was incompetent for the court a 6 the unreasonable assumption that a litigant, whether represented or not, is knowledgeable about formulating a question on a constitutional issue. The other shortcoming in the referral process is that even if there is a relevant constitutional issue, but the referral is procedurally defective or improperly drafted, the CCZ has adopted the approach of striking such matters off the roll at the expense of dispensing substantive justice.20 These briefly identified procedural defects illustrate the main thesis argument that certain rules of civil procedure restrict access to the Superior Courts. Consequently, there is an urgent need to critically examine these selected rules in the context of s69 (3) of the Constitution and to redesign these selected rules for a litigant’s procedural benefit, thus removing unreasonable procedural restrictions on access to the court. The intended outcome of this thesis is to (i) identify the procedural requirements of the rules of procedure that restrict access to the courts and (ii) propose specific procedural reforms to the rules of procedure in a manner that enhances access to the court. Currently, no Zimbabwean study has examined these selected rules of civil procedure with a focus on enhancing access to the court. This thesis will fill that gap in Zimbabwean procedural knowledge. It will, therefore, undertake a critical examination of these selected procedural rules by (i) critically analysing and identifying the procedural flaws in these rules and (ii) providing a new set of redesigned draft rules, which in the author’s view, best allows for a litigant’s reasonable and constitutionally valid access to the courts (and by association access to justice). 1.2.THE ORIGINALITY OF THE THESIS This thesis contributes knowledge in an understudied area of the law in Zimbabwe: the impact quo to consider the issue of frivolity or vexatiousness of a request for a referral of a constitutional matter to the court when it had already determined the question on the merits. In that matter, it was further held that once a subordinate court rendered a decision on the constitutional question, the dispute arising from the form could only be resolved by way of appeal. So referral procedure is limited to instances where the court has not issued a judgment on appeal. See the cases of Jabulani v The State CCZ-04-17, also see Fredrick Mutanda v The Prosecutor General Of Zimbabwe and the Anti-Corruption Commission of Zimbabwe and the Reserve Bank of Zimbabwe and the Regional Magistrate Mr N. Mupeyiwa NO CCZ-01-17. Manyara v The State CCZ 3/15, Chihava & Ors v The Provincial Magistrate Francis Mapfumo N.O & Anor CCZ 6/15, Sibanda v The State CCZ 4/17, Mutambara v Attorney-General & Anor CCZ 11/15, Tom Beattie Farms (Private) Limited aka Chigwell Estate and Thomas Beattie v Ignatius Mugova and Attorney General Of Zimbabwe CCZ-07-14, See also Chikumbu v The State CCZ 1/15, Don Nyamande & Kingston Donga v Zuva Petroleum CCZ 8/15, and also Mwonzora & 31 Ors v The State CCZ 9/15 and Prosecutor-General, Zimbabwe v Telecel Zimbabwe (Pvt) Ltd CCZ 10/15. 20 See the following cases: Mwonzora & 31 Ors v The State CCZ 9/15, Taylor-Freeme v The Senior Magistrate, Chinhoyi & Anor CCZ 10/14,Stander v The State CCZ 1/16, Fredrick Mutanda v The Prosecutor General Of Zimbabwe and the Anti-Corruption Commission of Zimbabwe and the Reserve Bank of Zimbabwe and the Regional Magistrate Mr N. Mupeyiwa NO CCZ-01-17, Sibanda v The State CCZ 4/, Katsande & Anor v Infrastructural Development Bank of Zimbabwe CCZ 9/17, Williams & Ors v The State CCZ 14/17, Mataishe v The Honourable Magistrate Mahwe N.O & Anor CCZ 12/14. 7 of rules of civil procedure on access to the Superior Courts of Zimbabwe. It also takes an approach beyond stating the content of the rules of procedure and how the courts have interpreted them. The rules which are the focus of the study are analysed to establish whether they are compatible with the constitutional provisions on the right of access to the courts. Specific proposals on how the rules can be amended to enhance access to court are provided. No other Zimbabwean study has undertaken a substantive review of security costs, appeals, leave to appeal and referral of constitutional matters, which also focuses on the impact of these rules on the right of access to the court (and, by association, the right of access to justice). The Law Society of Zimbabwe’s Handbook on Constitutional and Electoral Litigation in Zimbabwe: Context, Legal Framework and Institutions (herein referred to as “the Handbook”) has attempted to provide a clinical guide on direct and indirect access, standing, referrals and appeals to the Constitutional Court.21 The Handbook is primarily a legal practitioner’s guide on litigating constitutional and electoral issues in the Constitutional Court.22 It does not examine the selected rules in the context of the right of access to the court. The Handbook does not cover the other Superior Courts: The High Court and the Supreme Court. The Handbook sets out what a practitioner must watch out for when litigating rather than critically assessing the provisions concerning locus standi or the right of access to the court. Furthermore, no study has been undertaken to investigate the impact of the referral procedure on access to the Superior Courts despite abundant evidence that several cases are being struck off the roll due to the technical requirements of the referral procedure.23 The Handbook has attempted to begin a discussion on the referral of constitutional matters to the CCZ; however, it ends the discussion by pointing out that extensive preparations must be carried out at the referral or subordinate court level.24 The requirements for the referral procedure are provided for in Rule 24 of the Constitutional Court Rules.25 The referral procedure provides for the conditions, which, if not satisfied, will render the referral incompetent before the CCZ.26 The Handbook primarily focuses on the referral procedure’s relevance in constitutional 21 The Law Society of Zimbabwe Handbook on constitutional and electoral litigation in Zimbabwe: Context, legal framework and institutions The Law Society of Zimbabwe (2018). 22 Ibid at 25. 23 Chihava and Ors v The Provincial Magistrate Francis Mapfumo N.O and Anor CCZ 6/15, Cold Chain (Pvt) t/a Sea Harvest v Makoni CCZ-08-2017, see also Chiite & 7 Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC 10/17, Prosecutor -General v Telecel Zimbabwe (Pvt) Ltd CCZ 10/15. 24 The Law Society of Zimbabwe op cite note 21 at 18. 25 Ibid. 26 Ibid. 8 litigation without interrogating whether the referral procedure enhances access to the court. More importantly, there is no other Zimbabwean study has dealt with (i) appeals in the Superior Courts and (ii) the strict requirements for the procedure, while (iii) there has been no analysis of why appeals to the Constitutional Court are to be limited to constitutional matters. This thesis seeks to fill that procedural knowledge gap by arguing that the current set of referral procedures is inflexible and complex, as a result inhibits access to the court.27 This thesis also examines the leave to appeal rules in the Superior Courts. Again, there is no Zimbabwean research in this procedural area. More importantly, these selected rules have not been examined in the context of s69 (3) of the Constitution, which provides for the right of access to the court. This thesis critically examines these selected rules by conducting a comparative study of similar adversarial jurisdictions such as Kenya and South Africa (these jurisdictions have similar provisions). In other words, the principal legal theme of this thesis is to critically analyse the selected procedural rules to propose reforms to these rules and to provide a draft amended and redesigned set of rules and parts of the Acts of Parliament and Constitution of Zimbabwe, No 20 of 2013 with the principal aim of enhancing access to the court. 1.3. RESEARCH QUESTIONS In seeking to fill the gap identified above, the questions that need to be answered in this thesis are: 1. How do procedural rules regulating security for costs, leave to appeal, referral of constitutional matters, and appeal procedures restrict the right of access to the Superior Courts of Zimbabwe? 2. How can the selected rules of procedure be reformed and redrafted to enhance access to court? 1.4. OBJECTIVES OF THE THESIS This thesis examines selected rules of civil procedure, specifically, rules regulating security costs, leave to appeal, referral of constitutional matters and appeal procedure in the Superior Courts viz the right of access to the Superior Courts. It investigates the impact of the selected rules of procedure on the right of access to the court as entrenched in section 69 (3) of the Constitution. It further identifies those aspects of the selected rules that impede access to the Superior Courts, intending to propose a reformed procedural framework to improve reasonable 27 Ibid. 9 court access. The thesis concludes by developing a template or draft for redesigning these rules to enhance court access. The thesis aims to establish a reasonable balance between the overriding objectives of procedural rules (to ensure order, consistency, public confidence, uniformity and the integrity of the courts) on the one hand and open and cost-effective access to the courts on the other.28 The thesis also draws critical lessons on drafting the selected rules of civil procedure from the Superior Courts of other international jurisdictions with similar civil justice systems – particularly South Africa and Kenya. South Africa, Kenya and Zimbabwe are former British colonies with similar constitutions.29 These jurisdictions apply similar civil procedural rules to their respective Superior Courts, which are based on the adversarial principles of the English legal system. The South African experience of procedural reform is thus relevant to any reform of Zimbabwean rules. In addition, the experience of rule reform in Kenya – a Commonwealth jurisdiction with a similar adversarial justice system and a similar hierarchy of courts to that of Zimbabwe – is also relevant to any rule reform undertaken in Zimbabwe. Similarly, drawing some lessons from the Woolf reforms of 1998–1999 in civil procedure, which have enhanced access to the English courts, will enhance this study.30 1.5. THE ROLE OF CIVIL PROCEDURE AND ACCESS TO JUSTICE The civil procedure may be described as the “mechanism to enforce rights, duties and remedies under the substantive law in litigation.”31 In other words, civil procedure law is at the service 28 H Michael Civil litigation and dispute resolution: Vocabulary series Legal English Books Publishers (2013) argues that the purpose of the overriding objective is for the civil litigation and dispute resolution process to be fair, fast and inexpensive. See also Hunker Trading Company Limited v Elf Oil Kenya Limited 2010 eKLR. 29 South Africa and Zimbabwe share the same common law, the Roman-Dutch law, although both countries’ procedural law is primarily English. Note Kenya was a British Protectorate. The territory was administered via the British East Africa Company, like the British South Africa Company that also governed Rhodesia on behalf of the British government until 1963, when it became independent. As a result, the Kenyan legal system borrows heavily from the English legal system, just like Zimbabwe's procedural law. Hence, the English common law is a common denominator for all three African jurisdictions. It’s the source country for the procedural laws applicable presently in South Africa, Zimbabwe and Kenya. This, therefore, makes a comparative aspect meaningful. See T Ojienda & L O Aloo Researching Kenyan Law Global Lex (2006), L Madhuku, Introduction to law in Zimbabwe Weaver Press (2010) and F du Bois ‘Introduction: History, systems and sources’ in Introduction to the law of South Africa (eds C G Van der Merwe & J E. Du Plessis) Kluwer International (2004) 1-54 and also E Halo & H.R. Kahn The South African legal system and its background Juta and Co. (1973) 1-20. 30 Lord Woolf Access to justice: Final Report To The Lord Chancellor on the Civil Procedure System in England and Wales Stationery Office London (1996). 31 C Theophilopoulos, C van Heerden & A Boraine Fundamental principles of civil procedure (4 ed) Lexis Nexis (2020) 1. See also K Clermont, Civil procedure West Academic Publishing’s law School Advisory Board (2009) 1 and compare with L Madhuku op cit note 29. See also A Danilo De Santis, A Cabral, C H Kluge, E Vitorelli, E Oteiza, F D Sedlacek, J A Rojas, M V Mosmann & T T de Lucena, Civil procedure review (2021) 69 and also J W Glannon, Civil procedure, examples and explanations Aspen Publishers (2018) 201. Also, R Choudree ‘Legal aid for the poor-poverty and access to justice routes to transformation’ in Access to Justice Workshop (2002) Available at: http://www.undp.org [Accessed May 20, 2020]. 10 of substantive law to realise it if a case arises, but without being absorbed.32 Civil procedure impacts access to the courts. It can restrict access to the courts or increase the same. For example, Letto-Vanamo argues that: “The mere existence of independent and impartial courts does not alone guarantee individuals’ access to justice. Courts must have the substantive and procedural capacity to handle disputes … It is commonplace for proceedings to last long while only a tiny portion of actions end in a judgment on the case’s merits. The excessive duration of more minor claims makes costs exorbitant. As far as other kinds of disputes are concerned, it has led to movements aimed at promoting alternative dispute prevention and resolution models.” 33 Civil procedure is, therefore, at the heart of accessibility to courts by litigants. The structure and content of rules of civil procedure impact litigants’ accessibility to courts. In other words, the rules of civil procedure must provide for access to a court and should not act as a barrier to accessing a court.34 In general, the rules of civil procedure provide litigants and legal practitioners with (i) the avenue by which litigants institute proceedings; (ii) the choice of an appropriate court; (iii) the nature of proceedings, such as an action or application; (iv) the requisite documentation, especially the appropriate forms of pleadings; (v) matters relating to the notification and joinder of other parties to the litigation such as notices of set down; (vi) the conduct of proceedings including the right to be heard, trials, motions and enforcement of the judgment; (vii) the issuance of writs of execution and other forms of execution methods; and (viii) post-judgment remedies, appeals and reviews.35 However, these procedures may become a procedural obstacle to litigants accessing justice in certain instances. Rules of civil procedure hinder accessing justice where the structure and content of a rule, especially how it is formatted, imposes procedural limitations on accessing the court. Whether represented or not, litigants sometimes face procedural hurdles in interpreting and using these rules. Furthermore, procedural hurdles are not removed simply because a litigant is diligent or represented. Lord Woolf (the author of the major English reforms of 1998–1999) regards the rules of procedure as purposive activities to aid the attainment of justice; therefore, the content 32 W J Habscheid ‘The fundamental principles of the law of civil procedure’ (1984) 4 Comparative and International Law of South Africa 1-31. 33 P Letto-Vanamo ‘Access to justice: A conceptual and practical analysis with implications for justice reforms IDLO’ Voices Of Development Jurists Papers Series, 2 (1) (2005) 19. 34 Sternford Moyo is the current President of the International Bar Association and a senior lawyer in Zimbabwe with over thirty-five years of experience in litigation. During the Law Society of Zimbabwe Winter School on 17 July 2017, in an unpublished paper he presented, he took a hard line on the approach of judges who dismissed cases on technicalities. This discussion was once uploaded to the Law Society of Zimbabwe on 25 July 2017. 35 Ibid. 11 and structure of rules must be designed to enhance access to the court and justice.36 Some rules, even if complied with, have an outcome that would still be restricted access to the court.37 Rules of procedure must be drafted to attain substantive justice and not hinder access to justice. Therefore, as Lord Woolf states, the overriding objective of the rules of civil procedure is to ensure that the “just, expeditious, proportionate, efficient and affordable resolution of disputes is achieved.”38 However, the content and structure of the rules of a system of civil procedure can easily impose a procedural obstacle to justice.39 The rules of civil procedure must be designed to enhance access to the court.40 The rules of civil procedure are not an end in themselves but should provide an easily accessible procedural pathway to court.41 The provision of certainty in access to the courts via rules of civil procedure is paramount in guaranteeing access to justice.42 There is thus no access to justice without access to the court, and rules of procedure are at the heart of enabling such access.43 Hancox J, in the Kenyan case of Githere v Kimungu, ruled that: “A court cannot conduct its business without a code of procedure. I think that the relation of rules of practice to the work of justice is intended to be that of a handmaid rather than a mistress, and the court ought not to be so far bound and tied by rules, which are, after all, only intended as general rules of procedure, as to be compelled to do what will cause injustice in the case.”44 Thus, from the position settled in the Githere case above, the role of the civil procedure system 36 J W Harris, Legal philosophies (2 ed) Oxford University Press (2004) 30. 37 Texas Rules of Civil Procedure 2021 Rule 1, Objectives of the Rules. Colorado Rules of Civil Procedure 2021 Rule 25. 38 Woolf op cit note 30, and also see H Y Levin Civil procedure: Pleading Langdell Press (2014). 39 Ibid. See also Harris op cit note 36 at 30. 40 See also the cases of Vilikazi v Vilikazi 1959 (1) SA 205 (T), Hendricks v Wilcoks 1962(1) SA 304 (South African cases). 41 Compare with the Zimbabwean case of Llyod Guwa & Hazel Claris Kumire v Willoughbys Investments Private Limited SC 31/09 (Zimbabwean case). 42 See J H Friedenthal, A R Miller, J E Sexton & H Hershkoff, Civil procedure, cases and materials: Compact (11 ed) West Academic Publishing (2013). 43 R A Carp, K L Mannings, L M Homes & R Stidham, Judicial process in America (11 ed) SAGE (2020) 10, 223. 44 Githere v Kimungu 1976 EA 101(Kenyan case). The quote relied on in the case is directly extracted from C E Clark ‘The handmaid of justice’ (1938) 23 (3) Washington University Law Quarterly 297. Also see the case of In re Coles (1907) 1 K.B 1,4. See S J Wanjala Substantive justice over procedural law in Kenya: Gains under The 2010 Constitutional dispensation, Unpublished Dissertation, Strathmore University (2017), also R L Marcus, M H Redish, E F Sherman & J E Pfander, Civil procedure: Modern approach (7 ed), West Academic Publishing, (2018) 2. 12 in enabling litigants to access justice cannot be overemphasised. 1.6. SELECTED RULES AND PRINCIPLES OF CIVIL PROCEDURE THAT HAVE AN IMPACT ON ACCESS TO JUSTICE This thesis focuses on the selected court rules identified above, which may restrict access to justice. These rules concern security costs, leave to appeal, appeals and referral of constitutional matters. Habscheid argues that access to court and the realisation of substantive law depends on procedural law.45 Hence, access to substantive justice thus depends on procedural access to the courts. Thus, the selected rules of procedure must enhance access to the courts and justice. 1.6.1. The rule requiring security costs and its impact on access to justice The requirement for an appellant to furnish security for costs concerns payment to the court of a fixed sum of money that the court considers appropriate to secure the respondent's costs if the appellant’s action fails.46 The rationale is that the respondent must be protected from frivolous and vexatious litigation, particularly where the financial standing of the plaintiff or applicant is questionable, thereby rendering the question of the recoverability of costs in due course a concern for the defendant.47 Clearly, security for cost procedures can obstruct court access if not properly framed.48 Firstly, it can hinder access to court in that a litigant can fail to raise the required amount of security, and thus, he/she cannot proceed with the litigation. Secondly, it means that a rich litigant with resources, even if the litigation is deemed frivolous or vexatious, may still have a right to access the courts as he/she can afford to pay the security for costs. Therefore, access to the courts in certain circumstances is determined by whether a litigant has financial resources. This thesis analyses the principle of security for costs regarding its relevance, particularly when weighed against its function of protecting an innocent party 45 W J Habscheid op cit note 32. See also C Theophilopoulos et al op cit note 31. 46 See also T Bekker ‘Furnishing security for costs by an incola company - at last some legal certainty or more confusion? Boost Sports Africa (Pty) Ltd v South African Breweries (Pty) Ltd (SCA)’ (2017) SALJ 481. Further in Fisheries Development Corporation of SA Ltd v Jorgensen and Another: Fisheries Development Corporation of SA Ltd v AWJ Investments (Pty) Ltd and Others 1979 (3) SA 1331 (W) at 1339 E, the Court ruled that, “In the legal sense vexatious means frivolous, improper: instituted without sufficient ground, to serve solely as an annoyance to the defendant. Vexatious proceedings would also no doubt include proceedings which, although properly instituted, are continued with the sole purpose of annoying the defendant: abuse connote a misuse, an improper use, a mala fide, use for an ulterior motive.” 47 S Colbran, ‘The origin of security for costs’ (1993) 14 The Queensland Lawyer 44. 48 See C Theophilopoulos et al op cit note 31 at 442, 445. https://repository.up.ac.za/handle/2263/66290 https://repository.up.ac.za/handle/2263/66290 13 from vexatious litigation.49 There is a need to redesign the provisions relating to security for costs in light of s69 (3) of the Constitution – “the right of access to the court”.50 In certain circumstances, access to the Superior Courts of Zimbabwe and CCZ is also restricted by requiring a litigant to pay security for costs, even where the appellant and respondent are residents and domiciled within the court’s jurisdiction. The Supreme Court Rules, 2018 make it mandatory for an appellant to furnish security for costs to the respondent,51 and these procedures for security for costs are also set out in the Constitutional Court Rules.52 While, generally, a requirement for security for costs is justified in cases involving peregrines, straw and insolvent litigants, in Zimbabwe, the rules of civil procedure governing such do not provide exceptions as in South Africa and Kenya. In South Africa, procedural amendments have been made to reduce the impact of legal costs on public interest litigation.53 The South African Constitutional Court has had an opportunity to deal with the requirements for an order of security for costs and, where constitutional litigation is concerned, has adopted an approach aimed at minimising the adverse effects on court access costs for prospective litigants. The South African approach contrasts with the Zimbabwean position, where the stringent requirement on security for costs is still a mandatory part of the Superior Courts’ rules.54 1.6.2. Leave to appeal and its impact on access to justice. In Zimbabwe, for litigants to access the Supreme Court and the Constitutional Court, there are certain circumstances when a litigant is required to apply for leave (permission) of the court a quo or the court they seek to appeal to before instituting appeal proceedings. Application for leave to appeal must be lodged with the court and is not automatically granted. The rationale behind this rule is that not every case should find its way to the Superior Courts. There are two reasons for this rule. Firstly, some litigants may appeal merely to harass the successful party by increasing litigation costs. Secondly, there must be a finality to the litigation process; thus, 49 Ibid. 50 I Currie & J De Waal Bill Rights Handbook (7 ed) JUTA 728. See Shepherd v O’Neill 2000 (2) SA 1066 (N) (South African case). 51 Rule 46(1) of the Supreme Court Rules, 1964. 52 Rule 42 of the Constitutional Court Rules, 2016, Statutory instrument (SI) 61 of 2016 as read with paragraph 12 of the Chief Justice’s Practice Directive 1 of 2013, Supreme Court of Zimbabwe. 53 Thusi v Minister of Home Affairs 2011 (2) SA 561 (KZP). See also Shepherd supra note 50, where the court ruled that Rule 49 (13) of the Uniform Rules of Court was unconstitutional. The rule required an appellant to furnish security for the respondent’s costs of appeal unless the respondent had waived their right to demand security (South African case). 54 Rules 37 & 38 of the Supreme Court Rules, 2018. 14 the requirement for leave to appeal embodies the civil procedure finality principle.55 The rule argues that as much as leave to appeal rules are necessary where the rules of procedure are poorly drafted, as, in Zimbabwe, they may restrict access to the courts. Essentially, the purpose of the rule is to distinguish appeal cases utterly devoid of merit from those with reasonable prospects of success on appeal. In Pichanick NO v Paterson56, the High Court ruled that leave to appeal can be granted if there are reasonable prospects of success on appeal. A litigant must demonstrate that his/her case has merit before being granted access to the next Superior Court.57 Furthermore, the decision to grant or refuse leave is at the discretion of the presiding judge who awarded the final judgment. This means there is no procedural mechanism for an aggrieved litigant to obtain a second opinion from other judges when leave is denied. It is, therefore, argued that the rule of procedure requiring an appellant to seek leave to appeal before a single judge can restrict access to the Superior Courts. There is a need to examine this leave to appeal procedure in light of the right of access to the court as enshrined in s69 of the Constitution and the extent of permissible restrictions, compared with similar rules of South Africa and Kenya.58 1.6.3. Procedure for appeals in the Superior Courts of Zimbabwe and right of access to the court. The appeal procedure in the Superior Courts is highly technical, and the approach by the Supreme Court has been to strike off appeals that do not comply with the technical requirements of the appeal procedure.59 The reason is that the appeal procedure rules are drafted in peremptory terms.60 Rules 37 and 38 of the Supreme Court Rules, 201861 stipulate that the notice of appeal must state the grounds of appeal and the relief being sought.62 In addition, the notice of appeal must provide the date on which the court delivered the judgment that is being appealed against, and the appellant must indicate whether the appeal is against part of or the full judgment. In Jensen v Acavalos,63 the Supreme Court held that an appeal that does not 55 C Theophilopoulos et al op cit note 31 at 2. 56 Pichanick NO v Paterson 1993 (2) ZLR 163(H). 57 CSD Enterprises (Pvt) Ltd v S & T Import and Export (Pvt) Ltd And Others 1980 ZLR 238 (Waddington J) at 243. 58 Compare with C Theophilopoulos et al op cit note 31 at 438-39, 441, 444. 59 Scheckem Barrister Ngazimbi v Murowa Diamons Private Limited SC-27-2013. 60 Jensen supra note 12. 61 See the discussion of several Superior Courts of Zimbabwe judgments in note 4. Further the Supreme Court Rules, 2018 replaced the Supreme Court Rules, 1964 during writing of this thesis but no material changed in terms of the content and form of the Rules. 62 S43 of the High Court Act. 63 See Jensen supra note 12. 15 comply with the mandatory requirements of the appeal procedure is a nullity.64 Several cases over time have been lost because of non-compliance with the provisions of the rules relating to appeals.65 Hence in certain circumstances, the appeal procedure restricts the right of access to the court. Furthermore, in Don Nyamande & Kingston Donga v Zuva Petroleum,66 Ziyambi JCC restrictively interpreted access to the Constitutional Court in appeal matters.67 The judge ruled that the applicants had failed to establish any right to approach the CCZ directly through the appeal procedure.68 The Court reasoned that the right of appeal to the Constitutional Court must exist first for a litigant to make such an appeal.69 The ruling means that only litigants making appeals that raise constitutional issues have the right to appeal to the Constitutional Court. Therefore, in Zimbabwe, any matter not relating to a constitutional issue ends up in the Supreme Court, while in South Africa, any constitutional case and matters raising an arguable point of general public importance may end up before the Constitutional Court of South Africa.70 1.6.4. The referral procedure of constitutional matters to the Constitutional Court and access to justice The CCZ is the final appellate court in constitutional matters.71 However, in certain circumstances, a litigant may approach the CCZ not as a direct appellant but through the referral procedure. Hence the referral procedure is also available for a litigant to access the Constitutional Court. The referral procedure is provided for in section 175 (4) of the Constitution, which states: “If a constitutional matter arises in any proceedings before a court, the person presiding over that court may and, if so requested by any party to the proceedings, refer the matter 64 Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S). See Church of the Province of Central Africa v Kunonga and Anor 2008 (1) ZLR 413 (S). 65 See note 4. 66 Don Nyamande & Kingston Donga v Zuva Petroleum CCZ 8/15. This was an urgent application for a set down of appeal to the CCZ against a decision by the Superior Courts of Zimbabwe that saw over 30 000 workers being fired on notice. This was after the Supreme Court ruled that the right to terminate on notice was still part of Zimbabwean Labour Law. See Daniel Nemukuyu's “shock ruling on job termination… judgment a threat to job security, says labour expert” from the Herald Zimbabwe on 18 July 2015. 67 Ibid. 68 Ibid. 69 Ibid 70 Rule 32 (2) of the Constitutional Court Rules. 71 Constitution of Zimbabwe, 2013, s167 (1) provides that “the Constitutional Court is the highest court in all constitutional matters, and its decisions on those matters bind all other courts”. 16 to the Constitutional Court unless they consider the request is merely frivolous or vexatious.” The details of the referral procedure are provided in Rule 108 (1) of the High Court Rules, Rule 71 of the Supreme Court Rules, and Rule 24 of the Constitutional Court Rules. These specific rules offer a complex set of procedural requirements that have vexed lawyers, magistrates and judges.72 This thesis argues that the complexity of the referral procedure to the CCZ regarding constitutional matters hinders access to the court. Case history indicates that several litigants who have tried to use the referral procedure in criminal and civil matters have failed to clear the requirement obstacles in the rules and have, for purely technical or administrative reasons, failed to be heard on the merits.73 For example, in Loverage Makoto v T.K Mahwe N.O and the Prosecutor General,74 the applicant unsuccessfully applied for direct access to the Constitutional Court, alleging that the refusal by the first respondent to refer a constitutional question to the CCZ amounted to an infringement of the right to equal protection of the law.75 Therefore, the referral procedures require substantive reform or redesign to enhance access to the CCZ. 1.7. THE RIGHT OF ACCESS TO JUSTICE Access to justice has been defined as comprising “three distinct but yet interdependent components”.76 The first component of substantive justice is determining rights claims for those who want a remedy.77 The second component is the procedural aspect, which focuses on the prospects and obstacles to getting a litigant’s claim into court.78 The third component is the 72 The Chief Justice, Honourable Mr Justice L Malaba, The Procedure of referral of constitutional matters from a subordinate court to the Constitutional Court in terms of s175 (4) of the Constitution of Zimbabwe, A presentation at the end of the first Term 2019 Judges Symposium, Troutbeck Inn Resort, Nyanga, Zimbabwe Available at: www.jsc.org.zw. See Nyagura v Ncube N.O and Ors CCZ 7/19, S v Tau 1997 (1) ZLR 93(H) 99F. 73 See for example Tomana and Anor v Judicial Service Commission and Anor HH 281/16, Mwonzora and 31 Others v State CCZ 9/15. Compare with Director of Public Prosecutions Transvaal v Minister of Justice and Constitutional Development and Others 2009 (4) SA 222 at 244B-C. 74 Lovemore Makoto v T.K Mahwe and the Prosecutor General CCZ 03/20. 75 Ibid. 76 R Bahdi Background paper on women's access to justice in the Middle East North Africa region International Development Research Centre (2007) 3. See C R Albiston and R Sandefur ‘Expanding the empirical study of access to justice’ (2013) Wisconsin Law Review 102-103. 77 R Bahdi op cit note 76 at 3, and D L Rhode ‘Access to justice’ (2001) 69 (5) Fordham Law Review 1785-1819; E R Sunderland ‘The reform of civil procedure’ (1923) Law and Justice 386 and L Hammergren Access to justice: reflections on the concept, theory and its application to Latin American’s judicial reforms Royal Institute Elcano (2004); P McAuslan ‘Making law work. Restructuring land relations in Africa’ (2002) 29 Development and Change. 78 C Loots ‘Access to the courts and justiciability’ (1998) 3 Revision Service 8-1 and 8-3; J Thornton ‘Will the Jackson Review deliver access to justice in environmental cases (2010) Pluto Journals 28-31; A Allot The limits of the law, Butterworths (1980); A H Crawley Helping pro se litigants to help themselves (1996). 17 symbolic element of access to justice, which steps outside of doctrinal law and examines to what extent a specific legal regime upholds citizens’ rights and empowerment.79 The definition of access to justice is best understood in the historical context of the development of access to justice debate. The access to justice debate became more pronounced in the 1960s and more robust around the 1980s80 and was influenced by the rise of the welfare state and a growing human rights movement.81 Cappelletti argues, “..the access to justice perspective for several decades has been the manifestation of a new approach to legal scholarship and legal reform in several countries”.82 The access to justice approach has formed a new vision repudiating the formalistic approach, which has long prevailed in most Western countries, especially Europe.83 This formalistic approach identifies the law within the systems of norms formed by the State. However, according to Cappelletti, in theory, the access to justice movement is rooted in a fundamental criticism of legal formalisation and dogmatism and calls for better recognition of the complexity of human society.84 However, the access to justice debate initially focused on procedural access instead of substantive justice.85 The access to justice discussion during its initial phase focused on three ‘waves’ of reform: (i) legal aid and advice to the poor, (ii) class actions and (iii) public interest litigation.86 As a result, legal aid, class actions and public interest litigation were touted as potentially transformative enhancers of access to justice.87 However, even in many European countries and the United States of America, even in recent times, legal aid, class action and public interest litigation are partial and not a comprehensive remedy.88 Buttressing the inadequacy of legal aid, class action and public interest litigation, Rhode argues that even89 America has one of the least effective 79 R Bahdi op cit note 76 at 3. See Administrators (COSCA). T.P. and L.C. of the C. of S.C: Position paper on self-representing. In USA: COSCA. (2000) 1-2. See also P Murinda, Access to legal aid for indigent women: an analysis of the services offered by the legal aid directorate in Harare. Unpublished Thesis, University of Zimbabwe (2008) 8. 80 M Cappelletti (Ed) ‘Access to justice and the welfare State’ (1983) 81(4) Michigan Law Review 1006. 81 See M Cappelletti ‘Alternative dispute resolution process within the framework of the worldwide access-to- justice movement’ (1993) 56 The Modern Law Review 282. 82 M Cappelletti op cit note 80 at 283. See A Reppy ‘Book review’ 1953 (2) The American Journal of Comparative Law 568. 83 Ibid and compare with R Angler ‘Justice for all including the unrepresented poor: revisiting the role of the judges, mediators, and clerks’ (1987) Fordham Law Review 67. 84 M Cappelletti op cit note 81 at 282. 85Ibid at 282-283. See K A Lash, P Gee & L Zelon ‘Equal access to civil justice: pursuing solutions beyond the legal profession’ (1998) 17 Yale Law Review 489-501. 86 M Cappelletti op cit note 80 at 1007. 87 See J P George ‘Access to justice, costs and legal aid’ (2006) 54 The American Journal of Comparative Law 293-315. 88 D L Rhode Access to justice Oxford University Press, (2004) at 3-4 89 Ibid at 3-4; M R Anderson Access to justice and legal process: making legal institutions responsive to poor people in LCDs Institute of Developmental Studies (2003). 18 systems for legal assistance.90 She further argues that American courts have failed to recognise the right to appoint counsel in civil cases, except in minimal circumstances. Hence, the argument is advanced in this thesis: that while other aspects discussed above enhance access to justice, focus on reforming selected rules of procedure increases access to justice. Thus, this thesis focuses on analysing the selected rules of civil procedure with a view to providing litigants with effective procedural access to a court. The term “effective access” emphasises the procedural ability of a litigant to obtain a remedy rather than merely bringing proceedings before a court.91 Thus, at the heart of procedural access to a court is the concept of effective access, which involves the entire court process up to the remedy. It is, therefore, argued that the analysis and reform of the selected rules of civil procedure are best informed by access to justice literature. However, not every component of access to justice is relevant and appropriate to this thesis.92 The relevant literature is that which analyses and critiques procedural principles to improve procedural access to the Superior Courts of Zimbabwe. In the case of Zimbabwe, procedural law has never been emphasised to enhance access to the court. No attempt has been made by the judiciary or the legislature to critically analyse the development or propose reform of the selected procedural rules considering Zimbabwe’s socio- economic environment. This omission of analysing the development of the selected rules of procedure can be attributed to the general overlooking of the impact and simplification of reality experienced by litigants navigating the selected rules of civil procedure. Hence Cappelletti asserts that “in over-simplification of reality, the law and the legal systems are seen exclusively in their formal aspect, while their real-world components, subjects, institutions, processes and, more generally, their social context are neglected”.93 It is accepted in legal scholarship that a system of civil procedure exists in a defined social context and is largely a product of social change, among other factors, and hence the need to study the historical development of the rules of civil procedure in Zimbabwe before prescribing the reforms.94 90 D L Rhode op cit note 77 at 1786-8 and compare with C Nyamu-Musembi The urban poor. Problems of access to human rights: Traditional justice institutions - can they be more effective (2002) 43. 91 F Francioni Access to justice as a human right Oxford University Press (2007) 1. 92 It is important to note that this thesis does not seek to deal with all facets of access to justice and justice. Justice may also among other aspects include equity and fairness, which may, at times, dictate that a case either by an indigent person or even a rich person be thrown out even before it is heard. 93 M Cappelletti op cit note 81 at 282 and Anon ‘Human rights defined’ Available at: http://www.humanrights.com/what-are-human-rights.html (2012) [Accessed March 21, 2021] and J O’Hanlon, H Sanders & A Teixeira Access to justice or access undone (2010). 94 Ibid at 282. 19 The evolution of the Zimbabwe legal system has been primarily shaped by historical events, particularly the colonisation process.95 There were changes in socio-economic and political structures throughout the colonisation period.96 Colonisation introduced new social norms, values and political developments that shaped the Zimbabwean legal system.97 Zimbabwean civil procedure was also materially influenced by these colonial social norms, values and political developments.98 As Cappelletti points out, the socio-economic and political factors have an impact on justice institutions, processes and access to justice. Further, Cappelletti argues that the principal elements of a system of civil procedure are the ‘people’ within a particular jurisdiction (inclusive of their cultural, economic and social peculiarities), the ‘institutions’ within a state, and the ‘procedures’, whether criminal or civil.99 He also highlights the importance of the institutions and processes from which the law originates.100 The independence and effectiveness of these institutions materially shaped the form and content of the rules of law and procedural rules. Cappelletti argues that “the legal system is not seen as a separate, autonomous, autopoietic system but as an inseparable and integrative part of the more complex social system, a part that cannot be artificially isolated from economics, ethics and politics”.101 Cappelletti’s contextualisation of access to justice applies to Zimbabwe in keeping with its historical, political, cultural, economic and social peculiarities. Therefore, the right of access to the court in Zimbabwe must be examined within Cappelletti’s tri-dimensional conceptualisation of law.102 The first dimension relates to how the law reflects societal problems that then prompt the establishment of legal institutions.103 The second dimension encompasses the legal response – mainly reflecting the norms, legal institutions and court processes that deal with societal demands.104 The third dimension is the outcome of the legal response to societal needs. More so, as Cappelletti argues, the field of law is not only about the practice and application of legal principles to determine litigants’ disputes (clearly significant in themselves) “but is also concerned with the underlying challenges and 95 E Sithole, Access to justice for the poor. A law reform proposal, Unpublished Thesis, York University (1990) 1-23. 96 E Sithole Civil procedure-Zimbabwe IEL Civil Procedure (2022) 13-18. 97 Ibid. 98 Ibid. 99 M Cappelletti op cit note 81 at 283. 100 Ibid. 101 Ibid at 282. 102 Ibid; B Rob ‘Ethics issues regarding the concept of unbundled legal services’ (1999) Available at: http://www.unbundledlaw.org. [Accessed August 25, 2016]. 103 M Cappelletti op cit note 81 at 283. 104 Ibid http://www.unbundledlaw.org/ 20 fundamental issues about the nature of legal rights and obligations”.105 Thus, there is a need for a holistic approach which, in addition to substantive law reform, also focuses on procedural law reform to increase access to justice. In addition, as Chan argues, there is a need to resolve the underlying challenges in fulfilling those rights and obligations, and among those challenges are the procedural hurdles encountered when parties bring their matters before the court.106 Similarly, Cappelletti says that the societal problem is the failure to realise the civil rights and liberties of the ordinary person owing to economic, organisational and procedural obstacles. Therefore, it is vital that the investigation and examination of selected rules of civil procedure are focused on enhancing access to court and, in turn, access to justice. After all, access to justice is acknowledged “as a cornerstone of human rights and a human right in itself, and access to the court is an important ancillary component of this right”.107 1.8. RIGHT OF ACCESS TO THE COURT AS A COMPONENT OF ACCESS TO JUSTICE There is no access to justice without access to the courts, tribunals or other fora for resolving disputes.108 The right of access to the court “consists of a ‘Hohfeldian liberty’109 and a right to a fair hearing”.110 The right to a fair hearing guarantees access to an impartial and independent tribunal or court to redress a dispute.111 Budlender strengthens this argument by referring to the ECHR court case of Airey v Ireland, where it was held that the right of access to the courts incorporates the right to present one’s case effectively before a court.112 Therefore, access to court is more than instituting a suit before a court of law; it includes the capacity to prosecute 105 Ibid and compare with J M. Greacen ‘Self-represented litigants and court and legal services responses to their needs: what we know’ California Administrative Office of the Courts (2002). Available at: http://www.lri.lsc.gov. [Accessed January 10, 2019]. Also K Makamure, I Shivji & J Stewart Report of Committee of Enquiry into the Legal Aid Clinic of the Faculty of Law Zimbabwe (1988). 106 G K Y Chan ‘The right to access to justice, judicial discourse in Singapore and Malaysia’ (2007) 2 (1) Asian Journal of Comparative Law; M Mark ‘The strange triumph of human rights-1933-1950’ (2004) The Historical Journal 379-398. 107 Francioni op cit note 91. Compare with Currie & de Waal op cite note 50. 108 V Lima & M Gomez Access to justice: Promoting the legal system as a human right, in peace, justice and strong institutions Springer International Publishing (2019) 1-10 defines access to justice as a fundamental principle of the rule of law. It is a fundamental right that allows individuals to use legal tools and mechanisms to protect their rights. 109 The term ‘Hohfeldian liberty’ was coined after an American Jurist, Wesley Newcomb Hohfeld. In Hohfeldian's theory, liberty is defined by an absence of both a duty and a right. See Budlender op cit note 108 at 339. 110 Geoff Budlender ‘Access to courts’ (2004) 121 The Southern African Law Journal 339. 111 Ibid at 340. 112 Airey v Ireland 1979 2 EHRR 305 (English case). http://www.lri.lsc.gov/ 21 the case and obtain a remedy.113 Budlender includes, as components of effective access to the court, the litigant’s knowledge of which court to approach, an understanding of the procedural aspect and the ability to present a matter before the court.114 This thesis argues that the selected rules of civil procedure for the Superior Courts in their current form do not provide effective access to the courts. 1.9. THE RIGHT OF ACCESS TO THE COURT UNDER THE INTERNATIONAL CONVENTIONS AND TREATIES The right of access to the court is an international right. Article 8 of the United Nations Universal Declaration of Human Rights,1948 (UNTS No 217a (iii) hereinafter referred to as the UDHR) provides that every person has the right to effective relief by a competent national court or tribunal against infringement of the fundamental rights provided by a constitution or by law. The UDHR provisions are similar in content to those of the European Convention of Human Rights in art 6(1) and also provide for a right to a fair and public hearing within a reasonable period in civil matters by an independent and impartial dispute resolution platform.115 Thus, art 6(1) of the European Court of Human Rights (ECHR) provides the right to effective court access, meaning that the procedural system must allow litigants to institute and execute their cases before the courts. The rules of civil procedure are, therefore, not intended to be an end in themselves but rather a mechanism that facilitates access to justice in an orderly, expeditious and effective manner. Both the United Nations International Convention on Civil and Political Rights (ICCPR)116 and the ACHR117 have made bold pronouncements on the centrality of access to court in realising substantive law. Article 14 of the ICCPR provides that “everyone is equal before the law and has a right to a fair hearing”. At the same time, the American Convention on Human Rights (ACHR) art 24 also provides for a right “to simple and prompt recourse or any other effective recourse for protection against acts that violate their fundamental rights recognised by the constitution or laws of the state or by these conventions, even though, such violation may have been committed by persons acting 113 Budlender op cit note 110 at 341. 114 Ibid at 341. 115 European Convention of Human Rights, 1950 was opened for signature in Rome on 4 November 1950 and came into force on 3 September 1953. Also see the Law Society of Upper Canada Access to justice report of the Law Society of Upper Canada (2008). 116 United Nations International Convention on Civil and Political Rights, 1976 was adopted by the United Nations General Assembly on December 19, 1966, and came into force on March 23, 1976. 117 American Convention on Human Rights known also as the Pact of San Jose was adopted in San Jose, Costa Rica on 22 November 1969 and came into effect on 18 July 1978. 22 in the course of their official duties”. The African Charter on Human and People’s Rights (ACHPR),118 in particular, emphasises the importance of court access to provide an effective remedy. The ACHPR in art 7 provides the right to a litigant to appeal to a competent national organ against any acts violating fundamental freedoms recognised and guaranteed by conventions, laws, regulations and customs in force. In interpreting the ACHPR, in Antoine Bissangou v Republic of Congo119 (the Bissangou case), the African Commission on Human Rights and People’s Rights ruled that it would be inconceivable for art 7(b) to provide for an appeal before the national courts for an act that violates fundamental rights without providing for the execution of judicial rulings. The African Com