Life prisoners now eligible for parole

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A landmark judgment handed down yesterday by the Constitutional Court declaring it unconstitutional for inmates to serve life imprisonment without any possibility of parole or release on licence.

Background 

The parole system allows the Minister of Justice, on the advice of a Board, to grant prisoners early release from prison before they have fully served their sentences.  Prisoners can be released on parole on various grounds – for example humanitarian reasons – that they have become too old or ill to be kept in prison, or, that their good behaviour in prison shows that they have reformed and will not return to a life of crime.

Only one class of prisoner was completely debarred from release on parole:  prisoners sentenced to life imprisonment.  Under section 115 of the Prisons Act the Minister was permitted to release any prisoner on licence – i.e. on parole – “other than a prisoner who has been sentenced to death or to imprisonment for life”.  What this meant was that however young a person might have been when sentenced to life imprisonment, he [and they were almost all male] would remain in prison for the rest of his life.

It was this that was challenged in the Constitutional Court, arguing that sentencing someone to prison with no hope of release violated the person’s dignity and amounted to cruel or inhuman punishment in contravention of section 53 of the Constitution.

file footage courtesy of the Herald

file image courtesy of the Herald

The Judgement 

Justice Patel ruled that the current legal system discriminating against inmates serving life imprisonment was a violation of human dignity and subjecting the group of prisoners to cruel, inhuman and degrading punishment.

“It is declared that:

1. “A life sentence imposed on a convicted prisoner without the possibility of parole or release on licence constitutes a violation of human dignity and amounts to cruel, inhuman or degrading treatment or punishment in breach of Sections 51 and 53 of the of the Constitution.

2. “The provisions of Part of the Prisons Act to the extent that they exclude prisoners sentenced to imprisonment for life from parole or release on licence process, contravene the right to equal protection and benefit of the law under Section 56(1) of the Constitution.

3. “Subject to paragraph 4 below, the further incarceration of the applicant amounts to a breach of his right to human dignity, right to protection against cruel, inhuman or degrading treatment or punishment and right to equal protection and benefit of the law under Sections 51, 53 and 56(1) of the Constitution.

4. “Pending the enactment of the legislation amending the provisions of Part of the Prisons Act, so as to conform with the right to equal protection and benefit of the law under Section 56(1) of the Constitution, the respondents shall apply those provisions, mutatis mutandis, to every prisoner sentenced to imprisonment for life, including the applicant.”

Mr Biti our senior partner described the decision as revolutionary judgment.“This is yet another revolutionary judgment. I am just humbled to be part of this historic legal process yet again,” 

http://www.herald.co.zw/breaking-news-concourt-in-landmark-ruling-on-life-imprisonment/

Banda and Ors vs ZISCO 1999 (1) ZLR 340 (S)

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Mr Biti advising W Ncube .The appellants had been employed by ZISCO and engaged in a strike and where subsequently dismissed was found to be res judicata

BITI vs Min of State Security 1999 (1) ZLR 165 (S)

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Mr H M Biti as the appellant Mr L T Biti was advising A P De Bourbon this case is concerning the vicarious liability of an employer, it was held that the employer is not vicariously liable if the employee strays from his duty or is no longer on the prescribed duty.

 

City Centre Hotel (PVT) LTD v Nyamanhindi 1999 (1) ZLR 81 (H)

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Mr Biti for the appellant contract law. A company owned three pieces of land. Purportedly acting on behalf of the company, one of its directors, TGP Nyamanhindi, sold these pieces of land and undertook to give the buyer vacant possession. P Nyamanhindi was occupying these pieces of land and refused to vacate them.

TGP Nyamanhindi and P Nyamanhindi were directors in the company. Each owned 1% in the company the other 98% of the share were owned by the Nyamanhindi family trust. TGP Nyamanhindi claimed that at an extraordinary meeting of the company, at which he was the sole person in attendance, a resolution had been passed giving him the power to sell the properties of the company and to determine at his discretion the purchase price. He had attended this meeting in two different capacities, namely as a director and as the sole representative of the family trust.

Held that P Nyamanhindi had not been given notice of the the extraordinary meeting and this invalidated the proceedings at that meeting.

held, further that even if the resolution at the extraordinary meeting was validly passed, the resolution was described in the minute as a resolution of the shareholders. selling company assets may be recommended by the shareholders but disposing of the company assets is an executive act which can only be done through the directors. The resolution of the shareholders the needed to be sent to a meeting of the Board of Directors and no such meeting was held

Held further, that the purchaser could not claim that TGP Nyamanhindi had ostensible authority such that the sale should be enforced on the basis of the rule the the TURQUAND case. TGP Nyamanhindi was only a director and not a managing director and a buyer of company property cannot assume that a single director who is not a managing director has power to enter into the contract.

held, therefore that the purported sale was null and void

Munyoro v founders building society & ors 1999 (1) ZLR 344 (H)

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Mr Biti for the second respondent A house had been sold in execution because the debtor had defaulted in his obligations to make payments to a building society. The buyer purchased the house at the sale in execution. After the sale in execution, but just before the sale was confirmed , the debtor managed to settle his debt to the building society. The building society advised the sheriff to set aside the sale in execution. The sheriff responded to the building society that he could not cancel the sale as he had already accepted the applicants bid for the property. He advised the debtor to apply to court to have the sale cancelled.

The debtor then applied for a provisional order setting aside the sale. This order was granted and the Sheriff was ordered not to confirm the sale in execution pending the court hearing However the same day and before the provisional order was served on him — if indeed it was served at all — the sheriff confirmed the sale. In confirming the sale,the sheriff acted in terms of r 360 of the high court rules, which lays down that the sheriff must confirm the sale if he does not receive any objection within seven days of the sale. No objection had been received from the debtor within that period. For a long time after the provisional order was issued , the debtor did not apply for set down for hearing the matter of the confirmation of the provisional order. Eventually after some two years and nine months had elapsed from the date of the sale in execution the buyer of the house applied for the matter to be set down for hearing. During this time the debtor had continued to live in the house. The buyer, who had paid the full pricer the house , had not made any meaningful attempt to obtain transfer of the property and to obtain occupation of the property. This indicated he must have obtained the property as an investment.held, that in the present case there was no irregularity in the sale in execution and the house not been sold for an unreasonably low amount.

Held, that a judicial sale can not be lightly set aside based purely on the fact that the debtor had made a “bad bargain”

Jiah & ors v Public Service commission & anor 1999 (1) ZLR 17 (S)

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labour issue Mr LT Biti for the appellants, The appellants were junior doctors and nurses, employed in the public service. they had, in common with most other public servants throughout the country, taken part in a general work stoppage in August 1996, and again in October f that year. All striking doctors and nursers were sent a letter from he Acting Minister of the Public Service, stating that they had been summarily dismissed from their employment. The letter said that they could written representations within a month. The appellants all applied for reinstatement. Force received letter rejecting their applications, the others were told they would be reinstated, but not paid for the time between their dismissal and reinstatement. The appellants sought an order from the High Court reinstating them. They alleged that they had not been given an opportunity to make representations before they were dismissed and that no investigation of their respective positions was ever made. The respondents claimed that there had been newspaper announcements warning of serious consequences if the stringing public servants did not return to work within a very short time. The high court (ADAM J) had dismissed the applications on the grounds that notification had been given to the appellants of the consequences of failing to return to work, that there was an emergency and that therefore ex parte action was lawful. The high court had also held that the exclusion of a prior hearing and representations had been mitigated by the regulations which entitled a dismissed public servant to make subsequent written representations. On appeal:

held, that even if there had been such press announcements, these could not be taken to be certificates of service on the appellants. The crucial point was whether the appellants had been given an opportunity to be heard. In this case, there was never any application of judicious mind before decisions were made.

held further that the tenor of legislation dealing with the public service could not be said to exclude the audi alteram partem principle, either directly or by implication. The respondents hold have given the appellants an opportunity to be heard.

held, further that the hearings and submissions that were held were not sufficiently fair to have the effect of curing the lack of an earlier hearing.held, further that the appellants where not reemployed because having lead the nurses and doctors in negotiations they were seen as having lead the strike.

Mandizvidza v Chaduka No & ORS 1999 (2) ZLR 375 (H)

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Constitutional law, MR L T Biti for the applicant. The applicant, a woman, enrolled for a 3 year teacher training course at a college run by a church. Before entering, she signed a contract in which it was agreed that she would be withdrawn from the course if she became pregnant. After she had been on the course nearly 2 years, she married a man according to customary law, and shorty afterwards became pregnant. The respondent, the principal of the college, required the applicant to withdraw from the college but recommended that the rejoin the next year’s course.

The applicant sought a declaration that the policy of expelling or suspending pregnant students was unconstitutional, in that it contravened s23(1) of the constitution and that she should be allowed to sit her examinations. The respondents argued that the college was a private institution, not a public authority, that the relationship between the parties was contractual and should be regarded asa a matter of personal law, and that the colleges right of freedom of association entitled it to exclude those persons who did not conform with its requirements.

held, that the college had sufficient “public” features to bring it within the definition of a public office of public authority. These features were that education is a public concern ain which the government plays a controlling and regulatory role; that the ministry of higher education regulated the colleges academic activities that the lecturers received their salaries from the state; and that the students enrolled at the college were sponsored by the state.

held, further that the conduct of the college was patently discriminatory. It was not saved by the requirement that a male student who caused the pregnancy of a female student should also withdraw from the college. A married male student would not be affected if his wife became pregnant, while a married female student who became pregnant would have to withdraw from the college. In addition, the reality was that it was mostly if not only pregnant female students who were visited with the penalty. The condition of pregnancy was a certain fat, while all that faced a male student was at best an allegation that he was responsible for a pregnancy an allegation he could deny

held further that the lack of child car facilities could not be used to justify the requirement for pregnant students to withdraw; rather, the lack of facilities was itself a form of discrimination

held further, that the principle of freedom of contract was outweighed by the principle of fairness. In any event, students did not in reality contract freely. they had no choice but to accept the terms of the contract. The contract did not preclude students from engaging in sexual activities and pregnancy could occur even if the most rigorous of contraceptive methods were used. It was unfair to punish the consequence of sexual activities and not the conduct that leads to it. The clause also did not distinguish between married and unmarried women, which was unfair and discriminatory even by religious standards.

  • held, furthe4r that the enforcement of the discriminatory clause would be contrary to public policy in a count where concerted effort have been and continue to be made to eliminate discrimination on the grounds of sex or gender. Pregnancy in itself would not frustrate the primary purpose f the college which is to train teachers.

Mutare City Council v Mudzime & Ors 1999 (2) ZLR 140 (S)

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Labour law – Mr L T Biti for the appellant, The respondents were all former employees of the appellant council. They had been suspended and dismissed at various times in 1996. A labour relations officer instructed that they be reinstated, but the council did not do s. The respondents brought the matter on review in the High court, which ordered their reinstatement. The council appealed, arguing that as the application had been brought well after the 8 week period stipulated in the hight court rules, and as there had been no application for condonation, the application for review should have been dismissed. It also argued that an urban council was not obliged to seek ministerial approval to dismiss its employees if it followed the provisions of the Urban Councils Act [Chapter 29:15}.

held, that the application for review was lodged sellout of time and there was no application for condonation. the application was therefore not properly before the court and should have been dismissed.

held, further that although he respondents were ordinary employees of the council, s141 of the urban councilsAct, which allowed dismissal on notice, prevailed over the labour regulations requiring the approval of the minister of labour, both because an act would prevail over regulations and because the act, being later in the time the regulations impliedly repealed the regulations

Wazara v Principal, Belvedere technical teachers college and anor

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Mr Biti for the applicant. The rules of a teacher training college provided that a student who is pregnant during her course would be required to withdraw from the course. The applicant a married woman, had become pregnant during the the last year of her course.She had given birth about a month before she was due to write her final examinations. Five days before she was due to write her examinations she was expelled because of her pregnancy. She applied to the court to have her expulsion set aside and to be allowed to write her final examinations.

held , that at that time the expulsion had occurred s 23 of the constitution did not prohibit discrimination on the grounds of sex or gender and therefore the explosion of the applicant could not be impinged on the basis that was ultra vires the constitution. However s 23 was subsequently amended to incorporate a prohibition against discrimination on the grounds of gender.

held however that the rule upon which the college based its expulsion required that a student must be pregnant when she was withdrawn from the course. By the time that the college decided to act in this matter the applicant had already given birth and was no longer pregnant. the purported expulsion was therefore invalid and the applicant was entitled to be given the chance to write the examinations that she had been prevented from writing due to her expulsion.

Muwenga v PTC 1997 (2) ZLR 483 (S)

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Mr Biti for the appellant Administrative law,  The appellant had been the acting telephone supervisor at an exchange for a long period and had given good service during his time. When the substantive position was filled, however the appellant was not appointed to the post, which went to someone else. The Labour Relations Tribunal found that the failure to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

On appeal held, that the minister of public service, labour and social welfare is empowered to prescribe by statutory instrument, the acts of omissions which constitute unfair labour practices. Regulations have been passed spelling out what are unfair labour practices. The situation surrounding the failure to promote the appellant is not one of the specified unfair labour practices

Held further, that in the circumstances the employer had not created a situation which cause the appellant to legitimately to expect that he would be promoted into the post in which he was a citing. Most importantly, although the appellant had experience in the post, he lacked required academic qualifications for it. The decision to appoint a person with the required qualifications had not been unfairly arrived at. There is need for the courts to avoid undue interference int he administration of public authorities. Indeed, it could be contended with some persuasion that the promotion of an employee is a privilege, left to the discretion of the employer. It is not a right an employee is entitled to claim, unless his contract of employment so provides.