When Justice Fails Orphaned Children

When Justice Fails Orphaned Children
Nherera inoguta musi unofa mai vayo, is a well known Shona saying. It means that an orphaned child faces a bleak future from the day it loses its mother. This must have been a heart-rending truism for the orphans of Batsirai Children’s Centre. The case I discuss in this article brings home the failure of our legal system to protect vulnerable children from Justice’s notorious delays!
Anyone who lived in Zimbabwe in 2005 will testify to the human suffering that was endured by many victims of what was named ‘Operation Murambatsvina’. If the inhuman operation was hard on families, imagine its impact on orphaned children relying on charity for their survival? The story of the orphaned children who lived at Batsirai Children’s Care in Hatcliffe is painful to read. It is worse that their attempt to vindicate for themselves some legal rights reveals a very sordid story of how the justice system in Zimbabwe works. It is particularly tragic that the High Court, which in law is the avowed ‘upper guardian of minor children’ is in fact guilty of failing them.
Background
In 2005, the Zimbabwe Lawyers for Human Rights approached the High Court on an urgent basis seeking to restore the staff and orphans to Batsirai Children’s Care, which had been destroyed during Operation Murambatsvina. It also sought to have despicable the Operation declared unlawful; stop the police and municipal police from ejecting them from the centre or destroying the property; and allow them to regain possession of the property. While the matter had been submitted on an urgent basis, it was dealt with as an ordinary application because by the time the application reached court, the property had already been destroyed; the children had, according to the judgment, ‘already been catered for at Caledonia farm’. The other reason provided was that the ‘structure which the applicant sought to re-erect is (was) not only illegal in that it was never approved by the...[City of Harare]...,but inhuman in that it is not fit for the intended use as a children’s home or care center (sic).’
The matter was heard by Justice Ben Hlatshwayo. The application was dismissed by the judge. The tragedy of this story is not simply the familiar suffering of victims of this operation. It is that it has taken 6 years for a judge of the High Court to deliver this judgment. This judgment was handed down on 29th September, 2011. The judge provides the reason for the delay in handing down judgment in a footnote as follows:
‘This judgment was completed and enrolled for handing down on June 21, 2006. However, because of the need to scan the photographs forming the last page of the judgment, there were delays as the High Court does not have the facilities. When the scanning was finally done, the record was misfiled and unfortunately forgotten. The follow-up was only made years later.’
This is no apology. Justice Hlatshwayo was a good teacher of tax law and practice. I am sure he would never have taken an excuse of the quality he gives from any of his students. Why should we take it from him?
Firstly, after reading the judgment one fails to understand why it was so vital for the two pictures- one of children eating outside and the other of children standing in front of a wooden cabin in a maize field- to be attached to the judgment. It is rare for court judgments to contain pictorial illustrations. They are usually reserved for cases involving infringements or passing-off of trademarks, where the picture is used to illustrate similarities or differences. Judges have always been content to describe the facts as they emerge from the evidence or their own observation. In fact, the learned judge aptly describes what he sought to illustrate with two colour pictures in these words on page 4 of the 6-paged judgment. He states:
‘The scanned pictures of the so-called children’s centre are attached at the end of this judgment. It consists of an open maize field with crops on two sides and bare ground in the centre and a wooden cabin at one end. The children sit on the dusty ploughed-up field and consume their rations in this most unhygienic environment. If they (sic) is anything to restore to them, it would be this bare, ploughed-up ground and wooden cabin.’
The fact that the learned judge was able to describe the supposed scene at the care centre should have concluded the matter. Yet according to the judge part of the delay in delivering the judgment was caused by the lack of scanning facilities at the High Court. The fact is it was not necessary to have pictorial representations for purposes of the judgment.
Secondly, if the High Court does not have facilities to scan, was it in the circumstances necessary for the judge to insist on providing the two pictures which are virtually of no aid? Strictly speaking, the photos are not even part of the judgment as they do not appear inside the text. They are mere attachments.
Thirdly, assuming for a moment that the pictures were indeed germane to the issues before him, could another solution have been arrived at seeing that the matter involved vulnerable minor children who are orphans? Was scanning the only suitable way of capturing the images even if the High Court did not have scanning facilities?
Fourth, the disappearance of the file remains to be fully explained. But in truth it is unlikely that the mystery goes beyond the judicial chambers. The judge says that ‘the record was misfiled and unfortunately forgotten.’ By whom, surely it has to be asked? Traditionally, a file in which a judge has prepared his judgment and awaits handing down must be kept under wraps. This is so because the judgment must only be publicly available when the judge is ready to hand it down. For the file to disappear with a ‘draft judgment’ is certainly odd and unacceptable. Many will recall the vicious attack that was directed towards the Supreme Court when a draft judgment circulated to fellow judges was reported in the press. The matter concerned the very emotive case of Dr McGowan. In fact, in most jurisdictions, including our own, serious secrecy procedures are followed with regards to draft judgments.
Fifth, as if to spread the blame, the judge states that the ‘follow-up was only made years later.’ It is not clear who made the follow-up. I presume it was one of the parties or their representatives. Unfortunately, this does not wash. A judge cannot say, it is partly your fault that you did not bother me enough! Would this have saved the file from being ‘misfiled’? For the record, several lawyers have complained to the Law Society about unanswered countless letters to judges enquiring about judgments.
Sixth, the child care centre involved has the right of appeal against the High Court judgment. What purpose would be served now by them appealing against this judgment to the Supreme Court some six years later? Have the children affected by this decision been spared the suffering occasioned by the delay? Can their rights be restored? Can the suffering, psychological, emotional and physical, be compensated if the Supreme Court were to decide otherwise?
Conclusion
This bizarrely delayed judgment has just shone some rare light into the dark corner of judicial poor performance and lack of accountability. We may never know how deep and dark the dungeon is. The Supreme Court has also set a poor example, with judgments outstanding for years in some cases. Lawyers are often reluctant to provide details of judgments that have been outstanding for inordinate periods for fear of upsetting our sometimes imperious judges. But complaints enhance rather than stifle judicial accountability, independence and public confidence. Records from the few lawyers who have had the courage to share reflect a shocking level of delays and neglect that would not be tolerated in any other occupation. Some countries have had to take a firm view of judicial indolence by setting strict standards on judgment delivery. In Kenya and Uganda, a maximum of 90 days is allowed. In India, judgment has to be delivered within 30 days and only in unusual and exceptional circumstances, should it go up to a maximum 60 days. In Guyana, a judge can be constitutionally removed from office for persistently not writing decisions or for continuously failing to give decisions and reasons therefor within the time limit set by parliament. In South Africa, no acting judge will be appointed to a substantive position if they have been guilty of delaying judgment delivery. Neither will a sitting judge be promoted if they are guilty of judicial indolence.
The cost to the society of delayed justice is immeasurable. It results in unnecessary suffering of litigants; poor recollection of evidence and issues; witnesses, lawyers and judges die; delay in the appeal process; loss of income in financial matters; loss of value in compensation cases; disappearance of records and files; deletion of transcription tapes; and a huge social and economic cost. Just delayed is justice denied. It is time for serious action in order to arrest this cancer of indolence.
Fiat justitia ruat caelum- let justice be done though the heavens may fall!

Tererai Mafukidze is a lawyer.