This week, South African-based Zimbabwean lawyer Tererai Mafukidze continues to trace the genesis and development of Zimbabwe’s judiciary and legal system from 1890 after the arrival of the British Pioneer Column which colonised the country through the British South Africa Company (BSAC) to the present, focusing on the superior courts and appeals.
FROM 1890 to 1894 there was no High Court as such in Southern Rhodesia. British colonial architect Leander Starr Jameson, as the administrator and also chief magistrate, possessed the jurisdiction of a superior court of record with full power in all cases, both civil and criminal, and was also empowered to hear appeals from magistrates’ courts and to review their proceedings.
He was effectively the highest local court, although not a lawyer but a physician.
Appeals from the High Court of Southern Rhodesia would go to the Cape Supreme Court. In 1910, the Union of South Africa was created and the Appellate Division set up. So appeals from the Southern Rhodesia High Court then went up to the Appellate Division in South Africa.
The Appellate Division became the Court of Appeal for Southern Rhodesian cases, with further appeal, by leave, to the Privy Council. Appellants were entitled to choose between the Appellate Division and the Cape Provincial Division until 1931.
In 1938, the Rhodesia Court of Appeal was created. It heard criminal appeals if the appellant elected not to appeal to the Appellate Division in South Africa. Civil appeals remained the exclusive domain of the Appellate Division until the Federal Supreme Court was created in 1956.
Southern Rhodesia finally got its own final Appellate Division of the High Court of Southern Rhodesia (renamed Rhodesia in 1965) after the break-up of the federation at the end of 1963.
It is the equivalent of the present day Supreme Court. Throughout this period a final appeal lay to the Privy Council in London until it was abolished during the constitutional upheavals in 1968.
Death of all judges
Like the other judges, John Philip Watermeyer was born in Cape Town, South Africa. His father was a judge on the Cape bench for many years. Watermeyer, like Joseph Vintcent, studied law at Cambridge and was called to the English Bar in 1885.
He then went to Cape Town, got admitted and commenced practice as an advocate.
On 30 July 1896, Watermeyer was appointed by the BSAC to be the second high court judge. He was a close friend of the administrator William Milton.
On 7 August 1914, Watermeyer died in Harare. Seven days later, on 14 August 2014, Vintcent died at his home in Bulawayo. Southern Rhodesia lost its two high court judges within a week of each other, leaving the country judgeless.
Like Southern Rhodesia’s first Chief Justice Sir Murray Bisset, the first High Court judge, Vintcent was born in South Africa. His father was a member of the Cape legislature. He went to Cambridge and studied law. He was called to the English Bar in early 1885 and, a month later, was admitted as an advocate in the Cape. He immediately started practising.
On 18 August 2014, the BSAC hurriedly appointed William Musgrave Hopley to be the third judge in Southern Rhodesia and to fill the void left by the double tragedy.
Like Bisset, Watermeyer and Vintcent, Hopley was born in South Africa and had just retired as a South African judge at the time of his appointment to Rhodesia. He had been educated at Cambridge and also called to the English Bar.
He accepted the Southern Rhodesian emergency appointment at the age of 61. It was widely believed that he accepted the appointment due to his old friendship with both Cecil John Rhodes and Jameson.
He had been friends with the two when he practised and prosecuted in Kimberly during the diamond rush. His daughter was married to the Goldfields Mining Company’s chief executive officer. Hopley was appointed senior judge, but he also died on 10 March 1919 while in office. The first three judges all died in office.
Alexander Fraser Russell had been appointed puisne judge when Hopley became the senior judge. Rusell was later to be appointed the second chief justice of Southern Rhodesia.
When Hopley died he was replaced as senior judge by CH Tredgold, who had been for many years Attorney-General of the country. Tredgold was colonial royalty.
He was married to John Smith Moffat’s daughter. John Smith Moffat was the son of prominent missionary Robert Moffat of Kuruman Mission. Robert Moffat became friend of founding Ndebele King Mzilikazi Khumalo and his son King Lobengula.
After leaving his native Zululand in 1821 at the height of the Mfecane wars triggered by Zulu King Shaka Zulu, Mzilikazi in 1829 came into contact with British missionary Moffat, who had settled at Kuruman after arriving in South Africa in 1817, who then visited the king and began a most extraordinary friendship.
Moffat visited Mzilikazi a second time in 1835 and then three more times after the Ndebele moved across the Limpopo into present-day Zimbabwe. The last visit, in 1859, resulted in the establishment of a London Missionary Society mission near Bulawayo.
Tredgold’s son Robert was later to become chief justice. Tredgold retired on 21 September 1925. On 1 January 1926, Bisset was appointed the acting senior judge. –STAFF WRITER
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