i) Role of the Administrative Court and the High Court of Zimbabwe in the appeal system in terms of

QUESTION: 1a) Comment and outline on the role of the Administrative Court and the High Court of Zimbabwe in the appeal system in terms of planning law? To what extent can the Constitutional Court be involved in planning appeals?

b) Why is the Administrative Court referred to as the court of first instance in the handling of substantive planning issues?

1a) Planning is an important aspect in the well being of a society. It brings about order. Planning is governed by certain laws, rules and regulations. These rules and regulations are there so as to make sure that every development is in line with what is expected and will not be of any harm to the next human being .If these are not followed one can be taken to court and given a judgement in accordance to the crime or wrong deed that would have been committed. One is allowed to appeal to the next court if they feel justice has not been done to the case. The main aim of this essay is to outline the role of the Administrative Court and the High Court of Zimbabwe in the appeal system in terms of planning law and give the extent to which the Constitutional Court be involved in planning appeals.

Planning law can be defined as the area of law which provides for the creation, implementation and management of a sustainable planning process to regulate land use with a purpose of ensuring health, safety, amenity and welfare of a society as a whole (Juergesmeyer and Roberts 2013).Thus in simple terms planning law provides the parameters of a sustainable planning process having in mind the needs of the society which include safety. Forester (1988) defined planning appeal as a scenario if a planning application is refused, granted subject to conditions or where no decision is made within the specified time limit, the applicant has the right to appeal to court. In its most basic definition a planning appeal refers to a contest made by an individual over a decision made against a placed request (planning issues). Among the cases most often heard in the Administrative Court of Zimbabwe are those relating to enforcement orders and special consent applications (Naldi, 1993).

The appeal system is a mechanism of justice put in place so as to ensure that no one should be disposed without hearing. Greed (1996 p90) puts across what she considered to be the underlying aims of the appeal mechanism which is to bring impartiality, to bear on a contested decision and to encourage debate from the contesting parties and to gain information which helps to reassess the contested decision. The role of appeals, therefore, is to provide checks and balances of decision-making correct wrongs through mitigation or amelioration and to be seen to practice natural justice (Chayeruka 2002).An administrative court is an inferior or lower court in Zimbabwe. Madhuku (2010) asserts that a specialised court only deal with areas that have been deemed by parliament to require a special court, deals with specific issues. The admin court is a specialised type of a court which deals with disputes concerning the exercise of public power. The High Court of Zimbabwe is one of the superior courts of Zimbabwe, deals at first instance with all high value and high importance acts (Madhuku 2010).The decisions of the high court are binding on all inferior courts and tribunals (Reynolds and Russel 1983).

Madhuku (2010) has it that the Administrative Court is set up in terms of the Administrative Court Act (Chapter 7:01).He goes on to say that various pieces of legislation allocate functions for the Administrative Court. These acts include the land acquisition act, water act and the RTCP Act (Chapter 29:12), EMA, Estates Agents Acts, and Mines and Minerals Act. Basing on the information provided by Madhuku the role of the administrative court becomes that of dealing with cases relating to the application of special consent and enforcement

Naldi (1993) asserts that among the cases most often heard in the Administrative Court of Zimbabwe are those relating to enforcement orders and special consent applications .In terms of section 38 of the Regional Town and Country Planning act No 29: 12 a person can appeal to the Administrative Court if they feel the enforcement order they have been served with by a local planning authority is convinced that there is no legal basis for the enforcement order. Thus it can be noted that the role of the administrative court is to serve justice to those who deserve it, as the court will give a ruling of the matter brought forward to it.

Section 274 (1) of the Constitution of Zimbabwe states that there are urban local authorities to represent and manage the affairs of people in urban areas throughout Zimbabwe. This means that the local authorities has power to make laws that govern the wellbeing of people in a community. The role of the administrative court thus becomes that of dealing with appeals that would have been made against laws they would have passed. The gazetted law may not be in favour of the public or will not have the interest of the people in it, the people can take the matter to the Administrative Court.

In accordance to the RTCP act an appeal can be made on the grounds that Local Planning Authority has, taken longer than statutory time period to decide on an application. One can appeal to the Administrative court with his or her case. Basing on the above the role of the admin court becomes that of making sure local authorities deliver services in the manner they are supposed to and also that they follow stipulated rules that govern them. Also the role of the Administrative Court is that of dealing with cases of those aggrieved by any decision made by a local planning authority.

The High Court reviews the proceedings or inferior courts and statutory tribunals (Madhuku 2010). This means to say that if a person is not satisfied by a decision made an inferior court he or he can choose to appeal with the matter to the High Court. For example if a case is taken to the Admin court and the appellant feels justice has not been served, the court can be taken to the hg court. Since the High Court has the power to review the proceeding of inferior court, the court will have the power or jurisdiction to confirm, vary amend or set aside the judgment appealed against (High Court Act 7:09 Section 30(1) ).This is referred to as appellate jurisdiction. The above mentioned facts then mean that the role of the High Court of Zimbabwe in the appeal system becomes that of reviewing judgments assed by the Administrative Court concerning planning matters.

Section 171 (1) (d) of the Constitution of Zimbabwe gives the High Court power to supervise magistrates courts and their subordinate courts to review their decisions. This role gives the High Court to review decisions or laws passed by the Administrative Court in the appeal system in terms of planning law.

According to Madhuku (2010) Section 13 of the High Court Act states that the High Court ‘shall have full original civil jurisdiction over all persons and over all matters within Zimbabwe’. This means that the jurisdiction of the High court has no limit and it can hear any claims brought to it be civil or criminal. This also means that the High Court has jurisdiction that is inherent unless any law prohibits it from exercising power. From this point of view the role of the High Court is the appeal system becomes that of handling matters pertaining to planning appeals which the lower courts in this case the Administrative Court would have failed to handle. This is so because planning cases can be classified as civil cases off which the High court has original jurisdiction over civil cases.

The next part of the essay is going to give the extent to which the Constitutional Court be involved in planning appeals .Constitutional court is one of the superior courts in Zimbabwe that is to say its decision is binding on all the other lower courts. It is headed by the chief justice and also has judges of the constitutional court and deputy chief justice in its composition, this is according to the Constitution of Zimbabwe Section 166(1). The Constitutional Court is an independent and autonomous state authority which carries out constitutional review, it is the highest body of the judiciary for the protection of human rights and fundamental (Stein 1981).

The Constitutional Court is the motherboard of law .It gives guidance and vision of the country. Constitutional law s law that is between criminal and civil law. To a greater extent the Constitutional court can be involved in planning appeals. This is so because the Constitutional Court is the highest court and has jurisdiction over all courts. Its decisions are binding on other courts. Section 167 (1) of the Constitution of Zimbabwe states that the Constitutional Court is the highest court in all constitutional matters, and its decisions on those matters bind all other courts. This means the Constitutional court can be involved in planning appeals since planning appeals are handled in the Administrative Court which is a lower court than the Constitutional Court.

Since the Constitutional Court is the highest court it has jurisdiction on all matters. This means that it can handle all matters be it civil or criminal. Planning appeals fall under civil cases thus the Constitutional Court has original jurisdiction over planning appeals. Section 167 of the Constitution of Zimbabwe gives the court the right to make final decisions whether a matter is constitutional or whether is an issue is connected with a decision on a constitutional matter.

However it should be noted that it is not all times that the Constitutional Court gets to handle planning appeals. This is so because it is governed by procedural law which states that a case shall not be taken to a higher court before it has gone through the lower courts. Thus prohibiting planning appeals from being heard in the Constitutional Court before going to the Administrative Court.

1b) A court is a judicial assembly established for the administration of justice. There are different types of courts for example special courts and courts of first instance. The main aim of this essay is to give reasons pertaining to why the Administrative Court is referred to as the court of first instance in handling of substantive planning issues. Definition of key terms will be given so as to help in answering the question at hand.

The Administrative Court is a specialist court which means that it was set up so that it deal with specific issues. According to Madhuku (2010) the Administrative Court was set up in terms of the Administrative Court Act Chapter 7:01.Madhuku goes on to say that various pieces of legislation allocate functions to the Administrative Court. These include the Land Acquisition Act (Chapter 20:10), which gives the court in Section 7 the power to authorize or confirm acquisition of land to which there has been an objection by the owner; and the Regional, Town and Country Planning Act (Chapter 29:12), which gives the court various functions to resolve disputes between local planning authorities and any persons aggrieved by the former’s proposed use of land or refusal to grant permits for development of land for certain purposes(Madhuku 2010).

A court of first instance is a trial court of original or primary jurisdiction (Rosenburg 1970). It is also a court in which legal proceedings are begun or first heard. In other words it is the court in which matters are firstly addressed. The cases can be later taken to a higher court if the need arises. In the court of first instance judgments concerning cases or matters are given. The court could be a specialised court or general court. Substantive planning is defined as the subject matter of planning or the object of planning (Camhis 1979).This means to say that substantive planning deals with what to plan for that is the substance matter of planning. It is concerned with the matter or object of planning .In simple substantive planning can be described as the theories of planning. Thus substantive planning issues can be defined as issues to do with to plan for or they are issues that arise when planning is being done that is issues to do with the subject matter of planning.

One of the reasons why the Administrative Court is referred to as the court of first instance in the handling of substantive planning issues is because Zimbabwe adopted the British way of town planning, which had the Administrative Court as the court to first handle town planning matters or as the court of first instance in handling substantive planning issues. As society evolved and human populations grew rapidly, the socio-economic and political conditions changed (Chayeruka 2002). With the ushering in of industrialisation around AD1800 and the preceding agrarian revolution sanitation became an issue. This lead to competition for different land uses. The resulting environmental problems needed to be solved or they needed solutions, prompting to the need for town and country planning. Town planning was pushed forward as a solution to the problems of organically (naturally or randomly) generated land uses (Harverfield, 1913), leading to a body of law in most countries that adopted the British planning system titled Town and Country Planning. This then gives the reason why the administrative Court is referred to as the court of first instance in handling substantive planning matters.

As a result of colonization, Zimbabwe has the Administrative Court being referred to as the court of first instance in handing of substantive planning issues. Different schools of thought have it that planning law in Zimbabwe was influenced by the South African law. Chayeruka (2010) has it that however, for Zimbabwe planning law was also influenced by South African law, which in turn had been influenced by the Roman Dutch law. Also Madhuku (2010) gives the Roman Dutch law as a source of law, this type of law has the Administrative Court as the court of first instance in handing substantive planning matters. This influence came as a result of colonization. This then gives a clear understanding of why Zimbabwe has the Administrative Court as the court of first instance in the handling of substantive planning issues.

To add on the Administrative Court is referred to as the court of first instance in handling of substantive planning issues because it is a specialist court. A specialist court is a court which deals with specific matters within its jurisdiction. Basing on that explanation of a specialist court, the Administrative Court becomes the court of first instance in handling substantive planning issues. This is so because it has the power to handle planning issues as a result all the substantive planning issues are first heard in the Administrative court before they are taken to another court, thus the Administrative Court becomes the first port of call for all substantive planning issues, and hence it is referred to as the court of first instance.

The Administrative Court is referred to as the court of first instance in handling of substantive planning issues in handling of substantive planning issues because it is the court which first handles town planning issues. The RTCP act has in it that all matters to do with town planning hall be handled or addressed by the Administrative Court first before been taken to a higher court, that is the need arises. As a result the Administrative Court would then been referred to as the court of first in handling of substantive planning issues.

The definition of court of instance given referred to as the court of instance as a trial court. Trial Court is popularly referred to as a court of first instance. This means that it is that court that which listens or hears a case between parties for the first time. The judgment of cases or lawsuits between parties typically begins in a trial court. From a legal perspective, trial courts have original jurisdiction in that evidence and witness testimony are introduced, taken into consideration and accepted for the first time (Rosenburg 1970). Thus if a court hears or tries a case for the first time ,it becomes the court of first instance as a result it leads to the reference of the Administrative Court as the court of the first instance in handling of substantive planning issues.

A court of first instance has the original jurisdiction or primary jurisdiction over cases .In other words it has the primary authority over cases that it deals with. Something that is in the primary state means it is in the first state. Thus in this case the Administrative Court is being referred to as the court of first instance in handling of substantive planning issues because it has primary jurisdiction over the matters or original jurisdiction. Original jurisdiction is exercised first before any other court handles the case thus becoming the court of first instance.

In conclusion it can be noted that courts of first instance are the courts which try cases for the first time before handing them over to a higher court that if the need to arises. From the above essay it can be noted that the Administrative Court is referred to as the court of first instance in handling substantive planning issues because of the adoption of planning law from Britain which had the Administrative Court as the court of first instance for planning matters, colonization and the adoption of the Roman Dutch law.

REFERENCES

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