CITY OF HARARE v THOMAS & ANOR 2016 (2) ZLR 300 (H)

Flynote

Court: " judicial officer " duties " deal with matters with reasonable promptness " unexplained delays " parties' right to complain

Court: " judicial officer " duties and role " encourage and support negotiated settlements between parties " desirability and benefits of reaching settlement

Headnote

A consent order had been made between the applicant and the first respondent whereby the applicant undertook to supply water to the first respondent's property for a minimum of two days a week or such lesser period as may be agreed, allowing an application for variation if the applicant maintained that the first respondent was unreasonably refusing to consent to variation. Several years later the applicant applied for variation of the court order to specify that it would supply water as and when it was able to do so. The judge, endeavouring to adopt a dispute resolution approach, sought to seek an agreement between the parties, specifying that if agreement was not reached by a specific date, judgment would be handed down. Agreement was not reached and after a substantial delay occasioned by administrative deficiencies, the file was referred to the judge for judgment.

Held, that courts should endeavour to encourage and give judicial support to negotiated settlements between opposing parties. If parties settle their disputes amicably without the need for adjudication by the court, they basically enter into a compromise arrangement. A compromise puts an end to a law suit and would be on the same footing as a judgment because it renders the dispute re judicata. Compromise agreements invariably promote an orderly and effective system of justice administration. The litigants benefit from avoiding costs which are the hallmark of protracted and often acrimonious trials. The cases which have to be disposed of through trial are reduced, thus reducing the case load on the judicial a system. The court's resources, including the judges, are not clogged and stretched. This allows for a smoother and more efficient justice delivery system. Compromise agreements help the parties to retain an amicable relationship which is likely to last and from a logic point of view, parties are likely to abide by and perform the rights and obligations which they will have created and/or imposed mutually on one another more readily that if the same are forced upon them.

Held, further, that in terms of s 165(1)(b) of the Constitution, justice should not be delayed and the judiciary is required to perform its duties with "reasonable promptness". In terms of s 162, "judicial authority derives from the people of Zimbabwe and is vested in the courts". Unexplained delays in handing down judgments have the potential effect of undermining public confidence in the judicial system, in that the public will perceive courts as institutions which do not bother to expeditiously resolve disputes. The Judicial Service Code of Ethics 2012 was enacted to, among other things, set standards relating to the handing down of reserved judgements. The fact that one of the parties files a complaint should not and had not influenced the court's decision. However, it is desirable, where a party makes follow ups on a reserved judgement or indeed on any matter in which there is another litigant involved, to also copy correspondence, to give the opportunity for openness. It should not appear as though the judge has been influenced or pressured to act by one party without the knowledge of the other.

Held, further, that the variation sought by the applicant was very open ended, effectively leaving the first respondent unable to challenge the applicant's inability to supply water.

Held, further, that the applicant, while pleading that it was beset by very severe financial constraints, that its pumping capacity was hampered by old and inefficient pumps which continually broke down and that the high altitude of the first respondent's property made pumping extremely difficult, had not, however, indicated what remedial measures it was putting in place to surmount its stated challenges.

Held, accordingly, that first respondent had accordingly not been unreasonable in refusing to consent to the variation and the application for variation of the consent order was dismissed.