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5. The Structure of the Courts
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61 THE STRUCTURE OF THE COURTS The Division between Criminal Courts & Civil Courts Courts are classified into two broad categories, namely, criminal courts and civil courts. Civil courts in turn are divided into two groups: ordinary civil courts and specialized courts. In examining each court, two questions arise, namely, what is its composition? and what is its jurisdiction? To answer both, reference must be made to the Constitution of Zimbabwe and the relevant Act of Parliament regulating the operations of the court in question. In Zimbabwe, there is specific legislation that prescribes the composition and jurisdiction of each court. The composition of a court refers to its judicial officers, i.e., whether a judge or a magistrate presides; the number of presiding judicial officers required to constitute the court; the qualifications the presiding officers must have; whether there is provision for assessors; and if so, the manner in which they are selected. The jurisdiction of the court refers to its powers and the matters over which it has competence and also determines its position in the structure of the courts, particularly how it relates to other courts. Criminal Courts There are three main criminal courts in Zimbabwe, namely, the Magistrates Court, the High Court and the Supreme Court. Five other ‘courts’ exercise specialized criminal jurisdiction. These are Children’s Courts, 5 The Structure of the Courts 62 THE STRUCTURE OF THE COURTS Courts-Martial, Police Boards of Officers, Prison Boards of Officers and Parliament sitting as a court in matters involving breach of parliamentary privileges. Magistrates Court This is the lowest criminal court in Zimbabwe. Two pieces of legislation govern its operations. These are the Magistrates Court Act (Chapter 7:10) and the Criminal Procedure and Evidence Act (Chapter 9:07). Composition A Magistrates Court is presided over by a magistrate.1 In criminal matters, magistrates can be divided into four classes: ordinary magistrates, senior magistrates, provincial magistrates and regional magistrates. A Magistrates Court may be presided over by any of these four. In theory, there is no minimum qualification for a person to be appointed as an ordinary magistrate – any ‘fit and proper person’ may be so appointed. In practice , however, only persons who have undergone some legal training are appointed as magistrates. The Magistrates Court Act itself specifies minimum qualifications for appointment to the other classes of magistrates. Ordinary magistrates who have held office for four years or more, or those who have been qualified to practice as legal practitioners for no less than four years, may be appointed as senior magistrates. Provincial magistrates are appointed from the ranks of senior magistrates. Regional magistrates are normally appointed from the ranks of provincial magistrates. In a criminal trial, a magistrate may either sit alone or preside with the assistance of one or two assessors.2 The circumstances under which an assessor or assessors may be appointed depend on whether the court is being presided over by a regional magistrate or by a lesser magistrate. For a regional magistrate, the decision whether or not to have an assessor lies with him/her but is still subject to the directions of the chief magistrate. It is the regional magistrate who decides whether to have one or two assessors . However, he/she must choose the assessor or assessors from persons who are qualified in terms of Section 6 of the High Court Act (Chapter 7:06) to act as assessors in the High Court. For any other magistrate, the decision whether or not to sit with an assessor or assessors requires the approval of the Minister of Justice.3 The Minister must also approve the choices of assessors, who in this case, need not be qualified to act as [54.242.22.247] Project MUSE (2024-03-29 14:37 GMT) 63 THE STRUCTURE OF THE COURTS assessors in the High Court but merely be persons who have ‘experience in the administration of justice or skill in any matter which may have to be considered at the trial’.4 The role of assessors is limited to matters of fact. Any matter of law arising for decision at the trial is decided by the magistrate and assessors have no say over such a decision. In matters of fact and where there are two assessors, each has an equal voice with the magistrate and the finding of the court is that reached by the majority. Where there is one assessor...