This document discusses the relationship between the Constitution of Zimbabwe, the Administrative Justice Act, and common law as sources of administrative law. It argues that the Constitution is the supreme law of Zimbabwe and sets standards for exercising power. It requires lawful, reasonable, and fair administrative action. The Administrative Justice Act gives effect to the rights to administrative justice in the Constitution. Common law remains relevant where legislation is silent. The Constitution, Act, and common law principles like audi alteram partem are interrelated and aim to prevent arbitrary exercises of administrative power.
This document discusses the relationship between the Constitution of Zimbabwe, the Administrative Justice Act, and common law as sources of administrative law. It argues that the Constitution is the supreme law of Zimbabwe and sets standards for exercising power. It requires lawful, reasonable, and fair administrative action. The Administrative Justice Act gives effect to the rights to administrative justice in the Constitution. Common law remains relevant where legislation is silent. The Constitution, Act, and common law principles like audi alteram partem are interrelated and aim to prevent arbitrary exercises of administrative power.
This document discusses the relationship between the Constitution of Zimbabwe, the Administrative Justice Act, and common law as sources of administrative law. It argues that the Constitution is the supreme law of Zimbabwe and sets standards for exercising power. It requires lawful, reasonable, and fair administrative action. The Administrative Justice Act gives effect to the rights to administrative justice in the Constitution. Common law remains relevant where legislation is silent. The Constitution, Act, and common law principles like audi alteram partem are interrelated and aim to prevent arbitrary exercises of administrative power.
This document discusses the relationship between the Constitution of Zimbabwe, the Administrative Justice Act, and common law as sources of administrative law. It argues that the Constitution is the supreme law of Zimbabwe and sets standards for exercising power. It requires lawful, reasonable, and fair administrative action. The Administrative Justice Act gives effect to the rights to administrative justice in the Constitution. Common law remains relevant where legislation is silent. The Constitution, Act, and common law principles like audi alteram partem are interrelated and aim to prevent arbitrary exercises of administrative power.
Critically discuss the relationship between the constitution of Zimbabwe, Administrative Justice Act (chapter 10:28) and the common law as the sources of administrative law.
Administrative law is the law concerning the establishment, powers, functions and procedures of public officials and public administrative authorities.1There are quite a number of sources of administrative law which include legislation, acts of Parliament, common law, international law, customs, authoritative texts as well as the ubuntu. Among all these sources the discussion will focus on the relationship between some of these sources and that include the constitution as a source of administrative law, the administration justice acts as well as common law. Subsidiary sources of administrative law include official written records. Many instructions and policy decisions are made and communicated through circulars, memoranda, letters and minutes. These instructions form part and parcel of the general administrative law. They may also contain terms and conditions of service, revised government policies, procedural matters and codes of conduct. A public officer is always under the duty to comply with such instructions.2
The first relationship to look at is the relationship between the constitution and administrative justice act as sources of administrative law. The constitution of 2013 with its entrenched declaration of rights, is the supreme law of the land of Zimbabwe and that is the most important statutory source of administrative law. Justiciability is a term that is frequently applied to discourses that relate to constitutional rights. The Zimbabwean constitution which was adopted in 2013 contains a progressive and justifiable bill of rights. The bill of rights which can be also referred to as the declaration of rights as well as the fundamental rights chapter. In the Zimbabwean constitution this is found in chapter 4.3 This fundamental chapter enshrines, respects, protects and promotes fundamental human rights. These rights include civil, political, social, economic, cultural rights and group rights. The interpretation of administrative justice is largely understood from the interpretation of the constitution and other statutes and one of the elements of justiciability include the presence of a right in the rights chapter. 4The Administrative Justice Act must be prioritized in terms of aligning it with the constitution.
1 Andrew. A, Nature of administrative law (2013) 2 Ibid 1 3 Constitution of Zimbabwe, Amendment No. 20 of 2013 4 https://zimbabwe-today.com/right-administrative-justice / The implications of the supremacy of the constitution are twofold. First, as the supreme law of the land, the constitution sets the standards for the exercise of power and thus the actions of every organ of state or functionary or institution in Zimbabwe. This is apparent from section 2(2) of the constitution. Second the constitution promotes and guarantees a culture of human rights. In the administrative context, the constitution insists on justice for the individual by commanding that all requisites for valid administrative action such as lawfulness, reasonableness, and procedural fairness must be met. 5 In this regard, the constitution provides the skeletal infrastructure within which official power of all sorts affecting individuals for example in the case of Telecel Zimbabwe (Pvt) Ltd v POTRAZ,the right on section 68 of the constitution was set out in relation to the administrative justice.6In addition the Zimbabwean constitution of 2013 has the provisions that impact directly on administrative law. Chapter 9 of the constitution contains basic values and principles of public administration and leadership in Zimbabwe. Then followed by chapter 10 which sets out the Civil Service which caters for the administration of Zimbabwe. Also, chapter 14 of the constitution is dedicated to provincial and local governments. Then last but not least, chapter 15 also deals with the institution, status, and the role of traditional leaders in Zimbabwe. This shows the relationship between the constitution of Zimbabwe and the administrative justice act because the administration is embedded within the constitution 7.
The constitution is clear that an Act of Parliament must give effect to the rights in section 68(1) and (2). Therefore, the administrative justice act is the act that gives effect to all substantive and procedural requirements for effective protection of fundamental rights set in section 68 of the Zimbabwean constitution. it is submitted that judicial review of administrative action generally has a legislative basis in that it is based on the rights, duties and remedies provided for in the Administrative Justice Act. this follows the right to just administrative action in the constitution plays an indirect rather than a direct role. 8The constitutional rights exist independently of the administrative justice act that gives effect to them but retreat to a background role. One cannot bypass legislation giving effect to a constitutional right and seek to rely on the constitution. Malaba CJ in the case of Zinyemba v The Minister of Lands and Rural Resettlement and Another
5 Constitution of Zimbabwe, Amendment No. 20 of 2013 6 Telecel Zimbabwe (Pvt) Ltd v POTRAZ 2015(1) ZLR 651(H) 7 Ibid 5 8 Hoexter, C. (2013), Just administrative action in Currie, I & De Waal, J. The Bill of Rights Handbook Cape town, Juta held that the two principles discourage reliance on the constitutional right to administrative justice is that is the doctrine of avoidance and subsidiarity. 9The principle of avoidance dictates that remedies should be found in legislation before resorting to constitutional remedies and the principle of subsidiarity holds that norms of greater specificity should be relied on before resorting to norms of greater abstraction.
The most important conclusion drawn from the Constitution is that the administrative justice prevents the injudicious exercise of administrative discretion, ensures the violation of administrative and constitutional rights and principles are discouraged, deters those vested with administrative powers from acting arbitrarily and unconstitutionally, deters others from committing similar administrative errors, brings a sense of justice to those affected by adverse decisions that are arbitrarily taken against them, upholds the universal tenets of constitutional democracy and constitutionalism which Zimbabwe adheres to and effectively affirms the supremacy of the Constitution.10
The second relationship to look at is the relationship between the constitution and the common law as the sources of administrative law. The constitution is then just defined as the supreme law of the land as set in section 3 of the constitution. One has to define what common law really is. Common law is the unwritten law of Zimbabwe in the sense that it is not written up in legislation. It is made up of Roman-Dutch common law with an English law influence and collection of rules and principles made by judges in previous decisions. Although legislative regulation of the administrative relationship has increased, the common law remains a residual law used by the courts to fill in areas where legislation is vague, unclear, inconsistent or silent.
Common law refers to law which is not derived from legislation and has been defined by the courts from case to case. Section 89 of the Lancaster House Constitution says that the law which was applicable in Zimbabwe is the law that was applicable at the Cape of Good Hope 11 and that became our common law in Zimbabwe and that shows the relationship between the common law and the constitution as the sources of Administrative Law because the common law was included in the Lancaster House Constitution up to now in section 192 of the 2013 Constitution as the
9 Zinyemba v The Minister of Lands and Rural Resettlement and Another 10 The Herald, 7 June 2017 11 Lancaster House Constitution source of which is supposed to be recognized in Zimbabwe.12 The constitution as the supreme law of the land, all other laws must never contradict the constitution as they become ultra vires meaning falling outside the limits of authority. The reference to the law in existence at the Cape of Good Hope on the 10th of June 1891 means the general law that is the common law position in Zimbabwe.
Furthermore, there is also a relationship between the common law principles and the Administrative Justice Act. The two principles include the audi alteram partem principle and the nemo judex. The audi alteram partem principle outlines that the party or parties involved in the matter should be given the proper opportunity to present their cases before the administrative decision maker decides the case. It simply means that hear the other side or hear both sides. 13The Administrative Justice Act (chapter 10:28) was promulgated in 2004 and had effect on the natural justice principles that are common law principles.
The Act compels public authorities who are about to take administrative action that effect the right of a person to act fairly, within the stipulated by law and give reasons, otherwise the aggrieved person has the right to approach the High Court for remedies. 14The promulgation of the Administrative Justice Act laid the legal frameworks for the right to administrative justice. This position was captured by Makarau JP when she remarked in light with the Administrative Justice Act when she said that the promulgation of this Act brings a new era in administrative law in this jurisdiction and can not be disputed. She went on to say that it can no longer be business as usual for all administrative authorities, as there had been a seismic shift in this branch of the law.15
The remarks by Makarau J resonate with the remarks by Patel J in the case of Zindoga & Ors v Minister of Public Service, Labour and Social Welfare & Anor.16 In this case he said that “it is axiomatic that any party who has a right or interest that is likely to be affected by an administrative decision or which is susceptible to being prejudiced thereby must be heard before that decision is taken. This is dictated by the by the time-honored precept of common law
12 Ibid 5 13 https://zimbabwe-today.com/right-administrative-justice / 14 Hanzi, Administrative law. 2011 15 Ibid 12 16 Zindoga & Ors v Minister of Public Service, Labour and Social Welfare & Anor 2006(2) ZLR10(H) embodied in the audi partem rule and now codified in the Administrative Justice Act [chapter 10:28]”17
In conclusion, there is a cordial relationship between the Constitution of Zimbabwe, the
Administrative Justice Act [chapter 10:28] and the common law as sources of administrative law. In terms of section 2 of the Administrative Justice Act empowering provision means a written law or rule of common law, or agreement, instrument or other document in terms of which administrative action is taken, then section 2(2) went on to say that the provisions of AJA shall be construed as being in addition to, and not as limiting, any other right to appeal against, bring on review or apply for any other form of relief in respect of any administrative action to which this act applies.18 In section 3 it said outlined that the administrative action must be conducted in a fair manner. 19These go in line with the common law principles which advocates for fairness and also section 68(1) of the constitution which says every person has a right to administrative conduct that is lawful, prompt, efficient, reasonable, impartial and both substantively and procedurally fair.20
17 Ibid 12 18 See section 2 of the Administrative Justice Act [chapter 10:28] 19 See section 3 of the Administrative Justice Act [chapter 10:28]
20 See section 68(1) of the Zimbabwean Constitution BIBLIOGRAPHY
BOOKS
Hanzi, Administrative law. 2011
Hoexter, C. (2013), Just administrative action in Currie, I & De Waal, J. The Bill of Rights Handbook Cape town, Juta
ARTICLES Andrew. A, Nature of administrative law (2013)
LEGISLATION
Administrative Justice Act [chapter 10:28]
Constitution of Zimbabwe, Amendment No. 20 of 2013
Lancaster House Constitution
CASE LAWS
Telecel Zimbabwe (Pvt) Ltd v POTRAZ 2015(1) ZLR 651(H)
Zindoga & Ors v Minister of Public Service, Labour and Social Welfare & Anor 2006(2) ZLR10(H) Zinyemba v The Minister of Lands and Rural Resettlement and Another
