The Administrative Court

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The Administrative Court was set up in 1979. The Act governing this court is the Administrative Court Act [Chapter 7:01].

 

 

Presidents of the Administrative Court

 

The Presiding Officer in the Administrative Court is called the President of the court. In terms of s 92(1) of the Constitution the State President in consultation with the Judicial Service Commission appoints Presidents of this court. To be qualified for appointment as a President of this court the person must be–

  • qualified for appointment as a judge of the High Court or Supreme Court; or
  • have been a magistrate in Zimbabwe for not less than seven years; or
  • a former judge of the High Court or Supreme Court.

 

Assessors

 

The President may sit with assessors. There are provisions relating to assessors in the Administrative Court Act and each enactment which confers powers on the Administrative Court will specify how many assessors must sit and what qualifications these assessors must have.

 

The Administrative Court Presidents prepare a list of not less than ten assessors in respect of each enactment with which the court deals. The persons appointed as assessors have wide experience and expertise in the areas for which they are appointed. For instance, when the court dealt with an application for the right to use public water for mining purposes, the two assessors who sat were a government water engineer and a mining commissioner or a mining engineer.

 

The decisions of the court are taken on the basis of a majority. Assessors do not take part in decisions on questions of law.

 

Jurisdiction of Court

 

The Administrative Court deals with cases of an administrative nature. It mostly deals with appeals against decisions made by various public authorities but in some cases it exercises original jurisdiction and in some cases it has review jurisdiction. Presidents also sit as Chairperson of various statutory bodies.

 

See Archipelago (Pvt) Ltd v Liquor Licensing Board 1986 (1) ZLR 146 (H); 1986 (4) SA 397 (ZH).

 

The Administrative Court does not have any jurisdiction in criminal matters.

 

Review even where appeal to Court

 

Even where there is a right of appeal in terms of legislation to the Administrative Court against the decision of the original administrative body, the High Court can still exercise its powers of review. See Archipelago (Pvt) Ltd v Liquor Licensing Board 1986 (1) ZLR 146 (H).

 

The following are some of the enactments with which the Administrative Court deals–

 

Access to Information and Protection of Privacy Act [Chapter 10:27]

The court has jurisdiction to hear appeals against decisions of the Media Information to refuse registration to a mass media service. [s 69(3)] However, s 90A(4) provides that if the Administrative Court upholds the appeal, the mass media service is not entitled to be registered but instead the Court must remit the matter to the Commission for re-determination.

 

There is apparently no right of appeal to the Administrative Court by a journalist who has been refused accreditation in terms of s 79 of the Act.

 

Atmospheric Pollution Prevention Act [Chapter 20:03]

The court has jurisdiction to hear appeals against certain decisions of the Chief Health Officer in terms of this Act. [s 22]

 

Co-operative Societies Act [Chapter 24:05]

The court has jurisdiction to hear appeals by persons aggrieved by a decision made by the Minister in terms of this Act. [s 116(2)]

 

Disabled Persons Act [Chapter 17:01]

The court has jurisdiction to hear appeals in respect of adjustment orders made by the National Disabilities Board [s 1(5)]

 

Environmental Management Act [Chapter 20:27]

The court has jurisdiction to hear appeals against decisions made on appeal to the Minister under the Act. [s 130(4)]

 

Estate Agents Act [Chapter 27:05]

The court has jurisdiction to hear appeals by persons aggrieved by certain decisions, directions, orders or actions of the Council. [s 31] See also the Estate Agents (Appeals) Regulations 1987.

 

Hazardous Substances and Articles Act [Chapter 15:05]

The court has jurisdiction to hear appeals by persons aggrieved by decisions of the Board in relation to licence applications and cancellation or variations of licences. [s 27]

 

Housing and Building Act [Chapter 22:07]

In the regulations under this legislation, the court exercises appellate jurisdiction. The relevant regulations are the Rent Regulations 1982 (SI 626 of 1982). The court also has review jurisdiction under the Act. The court exercises appellate jurisdiction under the Commercial Premises (Lease Control) Act [Chapter 14:04].

 

Interception of Communications Act [Chapter 11:20]

Persons aggrieved by the issuing of a warrant, directive or order in terms of this Act has a right of appeal to the Administrative Court. The appeal must be lodged within one month of being notified or becoming aware of the measure. [s 19].

 

Land Acquisition Act [Chapter 20:10]

The Administrative Court used to deal with applications by the acquiring authority for orders authorizing or confirming acquisition where acquisitions are contested. However, Constitutional Amendment No 17 now precludes persons with a right or interest in land from challenging the legality of the acquisition. It provides that a person “shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge.” However, this provision still provides that a person with a right or interest in land–

may, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.

 

The Administrative Court will thus still continue to deal with appeals against the amount of compensation payable for compulsorily acquired land. Section 29D provides that if a claimant for compensation or an acquiring authority considers that the Compensation Committee, in assessing the compensation payable in respect of the acquisition of any agricultural land required for resettlement purposes, has not observed any of the prescribed principles, he may appeal to the Administrative Court. It is further provided in that section that in such an appeal “neither the Administrative Court nor any other court shall set aside an assessment unless the court is satisfied that the Compensation Committee, in making the assessment, did not observe any of the principles prescribed.”

 

Liquor Act [Chapter 14:12]

The court has jurisdiction to hear appeals from persons aggrieved by certain decisions of the Board or by the Minister in terms of the Act. [s 19].

 

Medicines and Allied Substances Control Act [Chapter 15:03]

The court has jurisdiction to hear appeals from persons aggrieved by decisions of the Authority in terms of this Act. [s 62]

 

Mines and Minerals Act [Chapter 21:05]

The court has jurisdiction to hear appeals against certain decisions of the Board. [s 227]

 

National Social Security Authority Act [Chapter 17:04]

The court hears appeals from persons aggrieved by decisions of the Board. [s 37]

 

Plant Breeders Rights Act [Chapter 18:16]

The court hears appeals from decisions of the Registrar under the Act [s 21]

 

Plant Pests and Diseases Act [Chapter 19:08]

The court exercises original and appellate jurisdiction. Under s 25 it can hear appeals against orders of destruction of plants.

 

Procurement Act [Chapter 22:14]

The court hears appeals against decisions of the State Procurement Board. [s 43]

 

Regional, Town and Country Planning Act [Chapter 29:12]

 

The Administrative Court deals with various disputes arising out of the operation of this Act.

 

For instance, the court also determines various issues such as objections when these matters are referred to it [s 16(3)(b)] and determines certain compensation claims [s 53}.

 

The court exercises appellate jurisdiction in respect of appeals by persons aggrieved

  • by what has been done to implement a local plan [s 11];
  • by certain planning decisions and other decisions such as building orders. [s 38]
  • by decisions relating to applications for certain permits. [s 44].

 

Road Motor Transportation Act [Chapter 13:15]

The court has jurisdiction to hear cases appeals by persons aggrieved by decisions, directions, order and actions of the Commissioner in terms of this Act. [s 34]

 

Shop Licences Act [Chapter 14:17]

The court has jurisdiction to hear appeals against decisions of the licensing authority.

[s 39].

 

State Service (Disability Benefits) Act [Chapter 16:05]

A President of the court is ex officio chairman of the Disablement Benefits Appeal Board, which hears appeals under the Act. [s 10(2)(a)]

 

Sports and Recreation Commission Act [Chapter 25:15]

The court has jurisdiction to hear appeals against decisions by the Board or Commission. [s 32(1)]

 

Urban Councils Act [Chapter 29:15]

A President of the court is the President of the Valuation Board. [s 241(3)]. The Valuation Board sits as a court of the first instance. The decision of the Valuation Board is final and unappealable but an application can be made to the Supreme Court on points of law.

 

War Pensions Act [Chapter 11:14]

The court has jurisdiction to hear appeals brought by persons aggrieved by decisions of the Board. [s 7]. If the Administrative Court varies a decision of the Board, the decision of the Administrative Court is deemed to be a decision of the Board and is final and without appeal. [s 8].

 

Water Act [Chapter 20:24]

In 1979 all the functions of the old Water Court were taken over by the Administrative Court.

 

The Administrative Court deals with various disputes relating to the use of public water, the granting of servitudes and amounts of compensation.

 

The Administrative Court has jurisdiction to hear appeals brought by persons aggrieved by decisions, directions, orders or actions of any authority in terms of the Water Act. [s 114(1)]. On appeal, the Court may confirm, vary or set aside the decision, direction, order or action appealed against or give such other decision as in its opinion the authority concerned ought to have given, and make such order as to costs as it thinks fit. [s 114(3)]

 

It can make various orders such as that under section 62(1)(c).

 

Court Procedure

 

The procedures will vary in accordance with whether the court is exercising original jurisdiction, review jurisdiction or appellate jurisdiction. Legal practitioners must therefore ascertain from the relevant provisions of the particular enactment in question what type of jurisdiction the court is exercising in the particular case in question.

 

The procedure in appeal cases is laid down in the Administrative Court (Miscellaneous Appeals) Rules, 1980 (SI 122/1980).

 

The provisions of the rules apply to any appeal to the Court or President that is provided for in any enactment. The rules, however, do not apply to any appeal in relation to which the enactment concerned or rules published under such enactment expressly prescribe the whole procedure to be followed. See, for instance, rule 2(1) & (2) of the Town Planning Court Rules, 1971 (RGN 621 of 1972).

 

In an appeal to which the Administrative Court Appeals Rules apply, it is important to ensure that the rules are read subject to those provisions of the enactment concerned which prescribe aspects of the procedure for the appeal, but the Appeals Rules will be applied to the fullest extent that is consistent with the provisions of the enactment.

 

A notice of appeal should be directed and delivered to the presiding officer of the tribunal or body whose decision is being appealed against and all other parties affected by the decision. The notice of the appeal should also be filed with the Registrar of the Administrative Court.

 

The notice of appeal should be delivered and filed within thirty days of the making of the decision that is being appealed.

 

Frequently, legal practitioners make the mistake of directing the notice of appeal to the Registrar of the Administrative Court and often do this well out of time without first applying for condonation of the late noting of the appeal.

 

An application for condonation of the late noting of an appeal should be accompanied by an affidavit verifying the facts on which the application is based. These should be served on all affected parties at the time of the service of the notice of appeal.

 

The affected parties may, within fourteen days of the service on them of such application, file a reply supported by an affidavit verifying the facts on which such reply is based. (See rule 6.)

 

In terms of rule 7, a notice of appeal must give all the following information–

  • the tribunal whose decision is appealed against;
  • the date on which the decision was given;
  • the grounds of appeal;
  • the exact nature of the relief sought; and
  • the address of the appellant or his legal representative.

 

Often, legal practitioners fail to provide all the required information, such as the exact nature of the relief sought.

 

Not later than thirty days after the receipt of the notice of appeal, the tribunal whose decision is being appealed must–

  • lodge the formal record of the proceedings with the Registrar if such a formal record was kept; or
  • if no formal record was kept, lodge with the Registrar reasons for the decision, together with all the papers relating to the issue. See rule 8.

 

Heads of argument

 

Each party who is legally represented must prepare heads of argument together with a list of authorities to be cited in support of each head. The appellant must, not later than four days before the date of the hearing of an appeal or application deliver four copies of his heads of argument to the Registrar and one copy to the respondent. The respondent must then as soon as possible after receiving the heads of argument and in any event not later than twenty-four hours before the hearing, prepare and deliver his heads of argument. See rule 10.

 

Departure from Rules

 

In any case not contemplated by the rules, the court, or a President if the court is not sitting, must act in such manner and on such principles as it or he deems best fitted to do substantial justice and to carry out objects and provisions of the enactment concerned, and may for this purpose give instructions on the course to be pursued, which will be binding on the parties to the proceedings. See rule 11.

 

Cannot order execution of judgment despite appeal

 

The case of ANZ (Pvt) Ltd v Minister for Information & Anor2005 (1) ZLR 222 (S) 252decided that the Administrative Court does not have jurisdiction to order the execution of its judgment when an appeal has been noted against its judgment. Only a court of inherent jurisdiction has the discretion to order that its judgment be executed even though an appeal against its judgment is underway. The Administrative Court does not have inherent jurisdiction. Section 19 of the Administrative Court Act does not confer upon the Administrative Court the power to order the execution of its judgment when an appeal against its judgment has been noted.

 

Possible restructuring of Court

 

It would appear that when this court was established it was simply given a miscellany of tasks to perform and little attention was paid to the role this court could play in developing the field of administrative law on a more systematic basis.

 

Consideration should be given as to whether the Administrative Court should be restructured so as to allow it to play a more important and coherent role in the regulation of administrative decision-making.

 

The court could be made responsible for dealing with all cases in which the decisions of administrative authorities are being taken on review. In other words, it could be given exclusive jurisdiction to review such cases and the High Court would no longer exercise such jurisdiction. This would allow the court that specialises in administrative matters to deal with these matters.

 

Another way in which the court could be take on a more systematic role is, rather than giving it appeal jurisdiction in respect of decisions made by certain selected statutory bodies, it could be given jurisdiction to deal with all appeals against administrative decisions made under any legislation. It would thus become the specialist court to deal with all appeals against decisions taken by administrative authorities. See Baxter p 272.

 

List of Regulations passed under Administrative Court Act

 

Administration assigned to Minister of Justice, Legal and Parliamentary Affairs 60/2003

Administrative Court (Land Acquisition) Rules, 1998                                              394/1998

Administrative Court (Land Acquisition) (Amendment) Rules, 2004 (No. 1)          143A/2004

Administrative Court (Land Acquisition) (Amendment) Rules, 2004 (No. 2)          172/2004

Administrative Court (Miscellaneous Appeals) Rules, 1980                                     122/1980

Administration assigned to Minister of Justice, Legal and Parliamentary Affairs    86/2001

Administrative Court (Miscellaneous Appeals) Rules, 1980                                     122/1980

Administrative Court (Land Acquisition) Rules, 1998                                              394/1998

Administrative Court (Land Acquisition) Rules 1998                                               394/1998

Atmospheric Pollution Prevention (Appeal Board) Regulations, 1975                     148/1975

Estate Agents (Appeal) (Amendment) Rules, 1976 (No. 3)                                       232/1976

Estate Agents (Appeal) (Amendment) Rules, 1975 (No. 2)                                       6/1975

Natural Resources Court Rules, 1974                                                                        353/1974

Plant Breeders Rights (Appeal Board) Regulations, 1974                                         907/1974

Estate Agents (Appeal) (Amendment) Rules, 1972 (No. 1)                                       369/1972

Town Planning Court Rules, 1971                                                                             621/1971

Estate Agents (Appeal) Rules, 1971                                                                        36/1971