MUPAPA V MANDEYA 2014 (2) ZLR 267 (H)

Flynote

Constitutional law — Constitution of Zimbabwe 2013 — national objectives — legal aid (s 31) — meaning of section — does not mean provision of counsel in every case — Declaration of Rights — right to equal protection of the law (s 56) — access to basic legal information and advice — one method of ensuring equal protection of the law — how such access may be achieved

Legal aid — meaning of — limits to State's duty to provide legal aid — basic legal advice and assistance — one method of achieving equal protection of the law — how such advice and assistance may be obtained

Headnote

The appellant, an elderly widow, lost her appeal against an eviction order. She and her late husband purported to buy a portion of an expropriated farm which had been allocated to the respondent. The court, having found that the sale was unlawful (as would have been any lease, in view of the conditions on which the respondent was given an "offer letter" in respect of the farm), considered the question of whether, with proper legal advice, she and her husband would not have entered into the arrangement at all.

Held, that the facts of this case could not escape judicial commentary in so far as they brought to the fore the inadequacies and limitations of thenature of the State's role in the provision of legal assistance to those who most need it. The appellant's problem emanated from a deeper source: the lack of legal information that would protect members of the public from such transactions in the first place. Cases such as this, where an unrepresented litigant would clearly have benefitted from legal assistance in the form of legal information in making a proper decision regarding their matter in the initial instance, are all too evident from appeals.

Held, further, that legal aid is constitutionally mandated as a national objective by s 31 of the Constitution — at least more narrowly in the form of legal representation in civil and criminal matters for the needy. Furthermore, the Legal Aid Act [Chapter 7:16] has over the years served to regulate what exists in terms of legal aid as provided for by the State. However, it is of limited reach population-wise. In addition, the Magistrates Court (Civil) Rules 1980 provide in Order 5 that "any person desiring to sue or defend as a pauper may apply to the court ex parte, either in writing or viva voce for leave to do so". The applicant must lack means and have a prima facie case. This provision, however, seems to be severely underutilised, presumably because few members of the public are even aware of its existence. Even though litigants can save time and money through legal assistance, the reality is that this is an area that remains underfunded and severely restricted in terms of reach to the needy. The clerk of court and magistrates have some duty to promote utilisation of the provision.

Held, further, that the obligation to provide legal aid, if understood in its broader sense, does not mean that counsel should be provided in every case. This would be impractical in our context. In terms of s 56(1) of the Constitution, "all persons are equal before the law and have a right to equal protection and benefit of the law". Equal protection and benefit from the law cannot take place where there is lack of knowledge of most laws. Giving meaning to this provision requires that the State thinks "outside the box" and draws on grounded experiences from our own contextual realities to craft sound approaches to addressing obstacles that stand in the path of achieving the goal of "equal protection and benefit of the law". What compounds the need for legal aid in this broader, rather than a narrower sense, in our case is that the bulk of the people, especially in the rural areas, are unfamiliar with the state laws.

Held, further, that access to legal information and advice centres, as a clearly thought out country-wide initiative, would help to appraise the needy of the legal standing of their cases and would go a considerable way in addressing the right to equal protection before the law through at least the provision of legal information a basic minimum. Organisations that provide knowledge on formal laws through legal information and advice (which include among them NGOs such as the Legal Resources Foundation, which works through advice centres and paralegals in selected parts of the country), lack nationwide geographical reach because of the very limited resources at their disposal.

Held, further, that had legal information and assistance been easily accessible, the appellant's husband in the initial instance would have had an opportunity to fully canvass the legal status of the agreement that he sought to enter into, and its non-legality would have been pointed out and so prevented the fundamental and dire consequences in the form of loss of a home for the widow and her family. If media reports are anything to go by, cases of this nature (subletting of resettlement land and even purported sales) seem to be fairly rampant, despite the legal position relating to resettlement land and the clear content of the conditions that accompany offer letters. Given the significance of agricultural land for rural communities, this could therefore be one of the issues, among a myriad of other critical knowledge areas, where the State can provide input in terms of a nationwide legal information outreach. If the appellant herself had had access to legal advice and legal information on the full import of the offer letter she would have saved herself court battles.