LO3: Hierarchy of Courts in Zimbabwe ⚖️

The court system in Zimbabwe is structured as a hierarchy, meaning that courts are ranked according to their authority. This system allows for the efficient administration of justice, with less serious cases handled by lower courts and more complex cases and appeals heard by higher courts. At the top of the hierarchy are the superior courts, whose decisions are binding on all lower courts.

5. Village Courts

At the very bottom of the judicial hierarchy are Village Courts, also known as Traditional Courts. These courts are not part of the formal court system but are recognized by law to handle certain local disputes. They are presided over by a village head or a headman.

• Jurisdiction: They primarily deal with civil disputes based on customary law, such as marriage disputes, inheritance issues, and minor land disputes within their community. They cannot hear criminal cases or matters involving large sums of money.
• Appeals: A person who is not satisfied with a decision from a village court can appeal to a Magistrate Court.

4. Magistrate Courts

The Magistrate Court is the main lower court in Zimbabwe and handles the majority of the country's civil and criminal cases. They are present in almost all towns and cities and are the first point of call for many legal matters.

• Jurisdiction: They have both civil and criminal jurisdiction.
  • Criminal: They hear all criminal cases, except for the most serious crimes like murder, treason, or armed robbery, which are reserved for the High Court.
  • Civil: They hear civil cases with a limited monetary value. The monetary limit for claims is set by law and can change over time.
• Hierarchy: There are different levels of magistrates, from ordinary magistrates to senior, provincial, and chief magistrates, with their seniority determining the severity of cases they can hear.
• Appeals: They hear appeals from Village Courts. Decisions made in a Magistrate Court can be appealed to the High Court.

3. High Court

The High Court is a superior court of record with nationwide jurisdiction. It has unlimited original jurisdiction, which means it can hear any type of civil or criminal case that has not already been assigned to another court by law.

• Jurisdiction:
  • Criminal: The High Court hears all serious criminal cases, particularly those where a person has been charged with an offense that could lead to a long prison sentence or the death penalty.
  • Civil: It can hear any civil matter, including those involving large sums of money.
  • Appellate: The High Court acts as a court of appeal for decisions from all Magistrate Courts and other lower tribunals.
• Supervisory Role: The High Court also has a supervisory role over all lower courts to ensure they operate correctly.

2. Supreme Court

The Supreme Court is the highest court of appeal in Zimbabwe for all matters except constitutional issues. It is the final level for most civil and criminal cases.

• Jurisdiction: It hears appeals from the High Court and other specialized superior courts. Its primary function is to correct errors made by lower courts on points of law.
• Final Authority: Its decisions are final and binding on all lower courts in the country. There is no further right of appeal once the Supreme Court has made a ruling on a non-constitutional matter.

1. Constitutional and Specialist Courts

• Constitutional Court: The Constitutional Court is the highest court in the land for all constitutional matters. It stands at the top of the judicial hierarchy and has the final say on issues relating to the Constitution of Zimbabwe. It hears appeals from the Supreme Court on constitutional matters and has exclusive original jurisdiction to hear cases concerning violations of the Constitution.
• Specialist Courts: Zimbabwe also has other courts that specialize in specific areas of law to handle cases more efficiently.
  • Labour Court: This court deals with disputes between employers and employees.
  • Administrative Court: This court handles matters of administrative law, such as disputes between a citizen and a government department.
  • Small Claims Court: This court handles minor civil claims for a specific amount of money, providing a faster and cheaper way to settle small disputes.

Litigation vs. Arbitration ⚖️

Defining Litigation

Litigation is the process of resolving a legal dispute between two or more parties by taking it to a formal court of law. It is a structured and public process governed by specific legal rules and procedures. In the context of banking law, litigation might be used to settle disagreements over loans, mortgages, or contracts between a bank and a customer. The outcome is decided by a neutral third party (a judge or magistrate) who has the authority to make a legally binding decision.

The Process of Litigation

The process of litigation can be long and complex, but it generally follows a clear series of steps:

1. The Pre-Trial Stage

This is the phase before the case goes to court. It begins when the party with the complaint (the plaintiff) files a formal document called a summons or statement of claim with the court. This document outlines the details of the dispute and the relief they are seeking. The other party (the defendant) is then served with the summons and must respond, either by admitting the claim or by filing a statement of defence to dispute it.

This stage also includes a process called discovery, where each side requests and shares relevant evidence, such as documents, contracts, and witness lists. The goal is for both parties to understand the other side's case fully before the trial begins. Many cases are settled at this stage without ever going to trial.

2. The Trial

If the dispute is not settled, it proceeds to trial. This is the formal hearing where both parties present their case before a judge or magistrate. The process typically involves:

• Opening Statements: Both the plaintiff and defendant's lawyers give a brief overview of their arguments.
• Presentation of Evidence: Each side calls witnesses to testify and presents documents and other evidence to support their claims. The opposing lawyer has the opportunity to cross-examine the witnesses.
• Closing Arguments: After all the evidence is presented, each side's lawyer summarizes their case and argues for a favourable outcome.

3. Judgment and Enforcement

Once the trial concludes, the judge or magistrate will review all the evidence and make a final decision, known as the judgment. This judgment is a legally binding order. If the losing party fails to comply with the judgment, the winning party can apply to the court to have the judgment enforced. This could involve court-ordered seizures of property, freezing of bank accounts, or other legal means to ensure the judgment is obeyed.

Advantages and Disadvantages of Litigation ⚖️

Litigation is a powerful tool for resolving disputes, but it has both significant benefits and drawbacks that parties must consider before deciding to go to court.

Advantages of Litigation

1. Enforceability: The biggest advantage is that the outcome is a legally binding court order or judgment. If the losing party does not comply, the court has the power to enforce its decision, for example, by seizing assets or freezing bank accounts.
2. Formal Process: Litigation follows strict rules and procedures, which ensures the process is fair and structured. Both sides have a chance to present their case, and the judge is an impartial third party.
3. Public Record: The proceedings are public, which can be an advantage if a party wants to prove a point or expose wrongdoing. The judgment also becomes a matter of public record, which can be useful for future reference.
4. Creates Precedent: A court's decision in a case can set a legal precedent that can be used to resolve future disputes. This helps to clarify and develop the law for everyone.
5. Finality: Once a case has gone through all levels of appeal, the court's decision is final, bringing an end to the dispute.

Disadvantages of Litigation

1. High Cost: Litigation can be very expensive. The costs include legal fees, court fees, and the expenses of preparing evidence and calling witnesses. This can be a major barrier for individuals and small businesses.
2. Time-Consuming: The process can be very slow, often taking months or even years to reach a conclusion. This can be a burden on the parties involved and can delay business operations.
3. Adversarial Nature: Litigation is confrontational. It pits one party directly against the other, which can destroy business relationships and create a lot of stress.
4. Lack of Control: Once a dispute goes to court, the parties lose control over the outcome. The judge makes the final decision, and the parties have to accept it, even if they are not happy with the result.
5. Publicity: While public record can be an advantage, it can also be a disadvantage. The public nature of court proceedings means that sensitive or confidential business information can be exposed.

Defining Arbitration 🤝

Arbitration is a method of dispute resolution where parties agree to have their disagreement decided by an independent, impartial third party, known as an arbitrator or a tribunal. Unlike litigation, which takes place in a public court, arbitration is a private process. The parties choose the arbitrator and agree on the rules and procedures. The arbitrator then hears the evidence and makes a decision, called an award, which is legally binding on both parties.

Arbitration is a common method of resolving disputes in the banking sector, particularly for commercial disagreements between banks and their clients, because it is often faster and more confidential than litigation.

The Process of Arbitration

The process of arbitration is designed to be more flexible and less formal than litigation, but it still follows a structured path.

1. The Pre-Arbitration Stage

The process begins when a dispute arises. The parties must have an existing agreement to arbitrate, usually through a clause in their original contract (such as a loan agreement or service contract). One party initiates the process by sending a Notice of Arbitration to the other party, outlining the nature of the dispute. The parties then agree on the number of arbitrators and select them. They might choose a single arbitrator or a panel of three.

2. The Hearing

Once the arbitrator(s) have been appointed, a hearing is scheduled. This is where both parties present their arguments and evidence. The hearing is private and can be conducted in a location agreed upon by the parties.

• Submission of Evidence: The parties submit written statements, documents, and other evidence to the arbitrator(s).
• Witness Testimony: Witnesses may be called to testify, and they can be cross-examined by the opposing party's legal counsel.
• Argument: Legal counsel for both parties present their arguments and respond to the evidence.

The arbitrator controls the process, and it can be much less formal than a court trial. They may allow for more flexible rules of evidence and can set their own timelines.

3. The Award

After the hearing concludes, the arbitrator or tribunal deliberates and makes a final decision. This decision is called an arbitral award. The award is a written document that explains the reasons for the decision and specifies the remedy, such as the payment of money or the fulfillment of a contract term. The award is final and binding on both parties. It can be enforced by a court of law, similar to a court judgment, which gives it legal power.

Advantages and Disadvantages of Arbitration 🤝

Arbitration is a popular alternative to litigation, offering several benefits but also having a few key drawbacks. It's important to understand these before choosing it as a method for dispute resolution.

Advantages of Arbitration

1. Flexibility and Speed: Arbitration is often much faster than litigation. The parties can agree on a convenient schedule for hearings and can move through the process more quickly than waiting for a court's congested calendar.
2. Confidentiality: The process is private and not open to the public. This is a major advantage for banks and businesses that want to keep sensitive financial or commercial details out of the public eye.
3. Expertise: Parties can choose an arbitrator who is an expert in the specific field of the dispute, such as banking or finance. This ensures that the person making the decision has a deep understanding of the technical issues involved, which may not be the case with a judge.
4. Cost-Effective: While arbitration is not free, it can often be more cost-effective than litigation, as the process is shorter and less formal, reducing legal fees.
5. Finality: The arbitrator's decision, known as an award, is generally final and legally binding. It has the same legal force as a court judgment and can be enforced in court.

Disadvantages of Arbitration

1. Limited Appeal: The right to appeal an arbitral award is very limited. This means that if the arbitrator makes a mistake, it can be very difficult or impossible to have the decision reviewed or overturned by a higher court.
2. Lack of Precedent: Because arbitration is a private process, the decisions are not published. This means that an arbitration award cannot be used as a legal precedent to guide future cases, unlike a court judgment.
3. Cost: While it can be cheaper than litigation, arbitration is still an expensive process. The parties must pay the arbitrator's fees, which can be high, in addition to their own legal costs.
4. No Jury: Arbitration does not involve a jury. While this can speed up the process, it removes the opportunity for a group of peers to hear the case, which some parties may prefer.
5. Difficulty of Enforcing an Award: While a court can enforce an award, the process of enforcing it in a foreign country can be difficult and complicated. The winning party may need to go through additional legal processes to get their money.

Differentiating Between Litigation and Arbitration ⚖️🤝

The key differences between litigation and arbitration lie in their process, formality, cost, and the nature of their outcome. While both are methods of dispute resolution, they operate in fundamentally different ways.

1. Process and Forum

• Litigation takes place in a public court of law. It is a formal, government-run process. The dispute is heard by a judge or magistrate who is part of the state's legal system. The rules of evidence and procedure are strict and determined by law.
• Arbitration is a private, out-of-court process. It is a form of dispute resolution where the parties agree to resolve their dispute outside of court. The proceedings are held in a private setting, often in a lawyer's office, and are not open to the public.

2. Choice of Decision-Maker

• In litigation, the parties do not get to choose their decision-maker. The judge or magistrate is assigned to the case by the court.
• In arbitration, the parties have the power to select their arbitrator or arbitrators. They can choose someone who has specialized knowledge or expertise in the specific area of their dispute, such as banking law or finance. This is a significant advantage in complex commercial cases.

3. Privacy and Confidentiality

• Litigation is a matter of public record. All court proceedings, including evidence and judgments, are public information. This can be a disadvantage for businesses that want to keep sensitive financial or commercial information private.
• Arbitration is confidential. The entire process, from the initial hearing to the final award, is private. This makes it a popular choice for businesses that want to protect their reputation and trade secrets.

4. Cost and Speed

• Litigation is generally more expensive and time-consuming. The process can take months or years to resolve due to crowded court dockets, and the legal fees can be very high.
• Arbitration is often faster and can be more cost-effective. The parties can set their own timeline, and the process is less formal. While the parties must pay the arbitrator's fees, the overall cost can be lower due to the reduced time and complexity.

5. Finality and Appeal

• In litigation, there are multiple levels of appeal. If a party is unhappy with a decision from a lower court, they can appeal to a higher court to have the decision reviewed.
• In arbitration, the right to appeal is very limited. The arbitrator's decision (the award) is generally considered final and binding. This provides certainty but makes it very difficult to overturn a decision, even if there was a mistake.