a tripartite report - Unctad

194 VOLUNTARY PEER REVIEW OF CLP: A TRIPARTITE REPORT ON THE UNITED REPUBLIC OF TANZANIA – ZAMBIA – ZIMBABWE
3.6 Role of the Courts
Section 33 provides for enforcement of the orders
of the Commission by the High Court or Magistrates’
Courts; it also provides for the procedure
on how the transfer of orders of the Commission
to the respective Courts for enforcement should
be done.
Section 33 provides that “The Commission or any
der
has been made may lodge a copy of the order,
the Director, with:
(a) the Registrar of the High Court; or
(b) the clerk of any magistrates court which would
have had jurisdiction to make the order had
the matter been determined by it; and the
Registrar or clerk shall forthwith record the
order as a judgment of the High Court or the
magistrates court, as the case may be.
An order that has been recorded under the subsection
shall, for the purposes of enforcement,
have the effect of a civil judgment of the High
Court or the magistrates court concerned, as the
case may be”.
ZCA also acknowledge the judicial review powers
of the High Court as provided in Section 33 (3) (a)
of the ZCA that if an order that has been recorded
is varied or set aside by the High Court on review
… the Registrar of the High Court or clerk of the
magistrates court concerned, as the case may be,
shall make the appropriate adjustment in his records.
The Administrative Court where appeals against
decisions of the CTC lie is also part of the Courts in
the Zimbabwean jurisdiction.
The existence of parallel appeals to the High Court
and the Administrative Court opens up a potential
dicial
review use different standards as compared
to Administrative Court hence diverging verdicts.
There has been some case emanating from decisions
of the CTC that has been lodged at the High
Court by way of judicial review. The CTC has been
challenged on the Blanket Mine, Total Zimbabwe/
Mobil Oil merger, the Cimas Dialysis cases. Recently,
CTC was challenged in the Zimbabwe Electricity
Supply Authority (ZESA) case which was eventually
appealed against to the Supreme Court. The case
was however not heard on merits but rather technicalities.
It was about abuse of monopoly.
According to the President of the Administrative
Court, there are two cases lodged that emanate
from CTC decisions; previously there was also one
case that was dealt with by the Administrative
Court. So far, there has not been any case that
has been heard on merits of competition issues
in both the High Court and the Administrative
of the Courts with reference to handling of competition
matters. That not withstanding, looking at
the jurisdiction of the Administrative Court, it is far
from being a specialized body that can preserve
the competition expertise presumed to have been
embedded in the CTC decisions.
According to the President, the jurisdiction covers
issues related to land, town planning, liquor etc.
Furthermore, currently there is only one President
who admitted to have not gained any competition
related training in his career. The constitution
of the Administrative Court (Section 41 of the
ZCA) allows for sitting of two assessors (as judges
of facts) who assist the President in determining
competition cases; the decision remains the preserve
of the President.
Given the nascence of competition culture, lack of
formal competition training in curricula and limited
jurisprudence in Zimbabwe; one can conclude
assist the President in decision making, especially
considering that the laws do not provide for foreign
expertise in the context of assessors in so
far as the Administrative Court is concerned. The
same is for the High Court and Supreme Court;
there is no training on competition done to neither
judges nor technical staff in the judiciary. The
ideal situation would be to establish a specialized
tribunal to handle competition and related issues
as is the case in the United Republic of Tanzania
and recently introduced in Zambia. So as to pro-
emanating from the regulated sector authorities
decisions should also be appealable at the tribu-
support for a standalone competition tribunal and
defeat the argument that there is a low number
tribunal should be manned by a full time secre-