- Version
- Download 38
- File Size 334 KB
- File Count 1
- Create Date March 4, 2017
- Last Updated November 18, 2021
NATIONAL ASSEMBLY HANSARD 04 March 2017 43-52
PARLIAMENT OF ZIMBABWE
Tuesday, 4th April, 2017
The National Assembly met at a Quarter-past Two o’clock p. m.
PRAYERS
(THE HON. DEPUTY SPEAKER in the Chair)
FIRST READING
ESTATE ADMINISTRATORS AMENDMENT BILL [H.B.8, 2016]
THE MINISTER OF INDUSTRY AND COMMERCE (HON.
BIMHA) on behalf of THE VICE PRESIDENT AND MINISTER
OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.
MNANGAGWA) presented the Estate Administrators Amendment Bill (H.B. 8, 2016).
Bill read the first time.
Bill referred to the Parliamentary Legal Committee.
COMMITTEE STAGE
NATIONAL COMPETITIVENESS COMMISSION BILL [H.B. 6,
2016]
First Order read: Committee Stage: National Competitiveness Bill [H.B. 6, 2016.].
House in Committee.
Clauses 1 to 22 put and agreed to.
First Schedule Section 4 (4) put and agreed to.
Second Schedule Section 6 (2) put and agreed to.
House resumed.
Bill reported without amendments.
Third Reading: With leave, forthwith.
THIRD READING
NATIONAL COMPETITIVENESS COMMISSION BILL [H. B. 6,
2016]
THE MINISTER OF INDUSTRY AND COMMERCE (HON.
BIMHA): I move that the Bill be now read the third time.
Motion put and agreed to.
Bill read the third time.
ANNOUNCEMENT BY THE HON. DEPUTY SPEAKER
NON-ADVERSE REPORTS RECEIVED FROM THE
PARLIAMENTARY LEGAL COMMITTEE THE HON. DEPUTY SPEAKER: I have to inform the House
that I have received Non-Adverse Reports on the following Bills:
- i) Movable Property Security Interest Bill [H. B. 7, 2016] ii) National Peace and Reconciliation Bill [H. B. 2, 2017] iii) All Statutory Instruments published in the Government Gazette in the month of February 2017.
SECOND READING
DEEDS REGISTRIES AMENDMENT BILL [H.B. 3, 2016]
Second Order read: Adjourned debate on motion on the Second
Reading of the Deeds Registries Amendment Bill [H.B. 3, 2016].
Question again proposed.
SECOND READING
DEEDS REGISTRIES AMENDMENT BILL [H.B. 3, 2016]
Second Order read: Adjourned debate on motion on the Second
Reading of the Deeds Registries Amendment Bill [H.B. 3, 2016].
Question again proposed.
HON ZIYAMBI: Thank you Madam Speaker, I have a report on the Public Hearings on the Deeds Registries Amendment Bill that was conducted by the Portfolio Committee on Justice, Legal and
Parliamentary Affairs. – [HON. MEMBERS: Inaudible interjections.] -
THE HON. DEPUTY SPEAKER: Order, order in the House so
that we listen to the Hon. Member who is debating.
HON. ZIYAMBI:
1.0 Introduction
The Deeds Registries Amendment Bill seeks to amend the Deeds Registries Act (Chapter 20:05) by restricting the execution of powers of attorney only to those witnessed and signed by a legal practitioner, notary public or justice of the peace in the presence of the person executing the power of attorney. The Bill also seeks to allow for the digitisation of the deeds registry and the establishment of an electronic deeds registry which will supplement the paper based one.
2.0 Methodology
2.1 This report is a product of public consultations conducted from 20 to 25 March 2017 in Bulawayo, Gweru, Masvingo, Mutare, Kadoma and Harare. The consultations were in compliance with Section 141(2) of the Constitution of Zimbabwe, which requires that Parliament ensures that interested parties are consulted about Bills being considered by
Parliament. The Committee’s report was also informed by written submissions from interested stakeholders and an analysis of the Bill by the Committee.
3.0 SUBMISSIONS BY PARTICIPANTS
3.1 Amendment of Section 78 of Cap. 20:05
Two dominant views emerged regarding this amendment. The first one commended this amendment for seeking to increase security by limiting attestation power only to legal practitioners, notary publics and justices of the peace. Those who were consulted believed that by limiting those who can attest ensures security to the people who are transferring their properties. The alternative view was that access to justice would be limited if general Commissioners of Oaths are removed from attesting to documents for the Deeds Registry purposes.
3.2 Clause 3 section 89.
Participants generally noted that this was an interpretation section which was consistent with modern legal drafting practice.
3.3 Establishment of Electronic Registry
Various stakeholders applauded the introduction of an electronic registry system. They indicated that the introduction of an electronic registry system would expedite the processing of documents at the Deeds Registries Office.
3.4 Use of electronic data generally as evidence: Clause 3
Section 91(1)
Generally as evidenced, some participants raised concern on why the paper version is considered as the authentic version in the event of discrepancies between the two.
3.5 Clauses 3 Section 92: User agreements.
Participants raised a concern that user agreements were only limited to those involved in conveyancing and notarial practice and to those involved in research and information gathering purposes. Other users such as estate agents queried why they were excluded - [HON.
MEMBERS: Inaudible interjections.] -
THE HON. DEPUTY SPEAKER: Order, order why is it that Hon. Members are so excited? - [HON. MEMBERS: Inaudible interjections.] - No, no, may we please concentrate with the business of this House and lower your whispers. I know you are whispering to each other but please lower your whispers.
HON. ZIYAMBI: Thank you Madam Speaker. Other users such
as estate agents queried why they were excluded yet they conduct due diligence exercises when selling a property which requires access to the Deeds Registry.
3.7 Clause 3 Section 93: Registration of users and suspension or cancellation of registration.
Concern was raised on the issue that the Bill was silent on the definition of a regular user.
3.8 Clause 3 Section 94: Digital signatures and passwords
No issues raised.
3.9 Clause 3 section 95: Production and retention of documents
No issues raised.
3.10 Clause 3 Section 96: Sending and receipt of electronic communications.
No issues raised.
3.11 Clause 3 Section 97: Obligations, indemnities and presumptions with respect to digital signatures and passwords.
The Committee was informed that Government should ensure that the system is encrypted and foolproof against electronic emulators who can emulate electronic information.
3.12 Clause 3 Section 98: Alternatives to electronic communication in certain cases.
No issues raised.
3.13 Clause 3 Section 99: Unlawful uses of computer systems
No issues raised.
3.14 Clause 3 Section 100: Restrictions on disclosure of information.
The only concern raised here was that the proposed amendment unintentionally impinges on the access to information right enshrined in
Section 62 of the Constitution.
4.0 COMMITTEE FINDINGS AND
RECOMMENDATIONS
Having analysed the Bill and considered the contributions made by the public, the Committee made the following findings and recommendations:
4.1 The Committee analysed the Bill and considered the contributions by the public and noted that generally, members of the public were very happy that this Bill has been brought to the august House as it will expedite the Deeds Registries system.
4.2 The Committee viewed the limitation of power of attestation to powers of attorney as a progressive provision aimed at curtailing fraudulent activities.
4.2 Regarding the preference of the paper version of the deeds in the event of a discrepancy between the paper version and the electronic version, the Committee noted that where two versions of the same document exist, it is standard practice that there must be a version that must be specified either by the enabling Act or the regulations to take precedence. In casu, the paper version is the one already in use and it is only logical that it takes precedence since it is tried and tested.
4.3 On user agreements, the Committee noted the legitimate concerns by estate agents, that the Bill should be broadened to include other players who depend on the Deeds Registry to carry out their work like estate agents should be included.
4.4 Consistent with current practice, regular use should be interpreted to mean renewal of practicing certificates for conveyancers, legal practitioners, notaries and estate agents. For researchers, this should be as and when the need arises upon payment of a prescribed fee.
4.5 Consistent with the submissions made, the Government must ensure that the system is encrypted and foolproof against electronic emulators who can emulate electronic information.
5.0 Conclusion
There was general consensus that the proposed amendments are progressive and Government’s intentions to utilise technology in the delivery of legal services are commendable. I thank you.
HON. MAJOME: Madam Speaker, I rise to also join the
Committee in commending the step to amend the Deeds Registry Amendment Act because indeed, registration of title to land is possibly the most valuable asset any human being can have in terms of the property that they might have. A deed of title is an instrument to hold against the whole world, to demonstrate real rights that a person has to land, against the whole world. Indeed, there may very well be other valuable items of property that a person can hold such as jewelry or diamonds but such kind of title or such evidence of ownership is not as secure at all as title to land.
So, I believe it is fitting that we do amend our Deeds Registries Act to move in tandem with the times, to use technology and indeed, to make the Deeds Registries more user friendly. Madam Speaker, having said that, instead of amending the Deeds Registries Act, only to this extent, I believe if we want to increase ease of doing business, in my respectful view, we need to go further. Going further, it is commendable that we establish a Deeds Registry that is electronically accessible. However, as the report pointed out, there were members of the public who were concerned about the limited scope of the access to the Deeds Registry in terms of electronic users. Many of the members of the public wondered why this august House does not go as far as allowing even any other person who is not a registered user, whom the Registrar of Deeds would have recognised, to have access to the Deeds Registry in keeping with the provisions of access to information in the Constitution.
If for example, a person such as your good self, Madam Speaker, who is not a conveyancer, not necessarily a dealer in real estate or not a property developer, might want to find out about a certain person that they may want to trade with or somebody who wants to sell you their stand; there appears to be no logical reason under the sun why you would not be able to, subject to the necessary payment being made, access the Deeds Registries itself electronically without being registered as a registered user.
Already, the practice is that if any member of the public wishes to go and peruse the Registry of Deeds, that is here in Harare or in
Bulawayo, all you need to do is, in Harare you walk up to Century House, appear at the counter of the Registrar of Deeds, pay a nominal inspection fee and be able to check whether maybe John or James or so and so is indeed the holder of a certain land or property without enjoying maybe a specialised status where you are recorded by the Registrar of Deeds. It should be open to every Tom, Jack, Mary and Paidamoyo to be able to also access electronic Deeds Registry in the same way so that it is not the privilege of a secured few.
Madam Speaker, I also echo the sentiments of the Committee that was also echoed by members of the public, that the criteria for registering as a user for the Registrar of Deeds to use those deeds is also very curiously limited. In the Bill, there is a proposal to delete from the
Registrar that if one person is fortunate enough or maybe is able to appear to be selected by the Registrar of Deeds to be on the list of registered users, they may be struck off if in terms of the Bill, it is found that they are not using it frequently enough. Madam Speaker, I would indeed also venture to say that such provisions need to be looked at. I hope that the Hon. Minister will re-look at that provision again because terms like that are not defined properly. They are not in keeping with the dictates of practice and even the current state of the economy. Our Deeds Registry is not as busy as it used to be. The changing of money for the purchase of real rights is not as frequent as it used to be.
If you were to ask many a legal practitioner who also practices as a conveyancer in this town, it is common to find that they are not registering transfers of title, maybe on a weekly, monthly or even a yearly basis. Instructions of conveyance to effect of registered title are not things that happen every day. So, it is very well possible that a whole lot of users maybe bona fide users who are required to be registered, might indeed find themselves being struck off because the frequency of the use is not possible to know how often a conveyancer
for example, might be required to register property. So, definition and provisions like that need indeed to be given further attention and to maybe even be removed altogether so that once one is a registered user, they are registered as far as they can be.
However, my main point in that remains that usage of registration must be amended so that it is similar to the one that users come in off the streets and inspect the Deeds Registry without enjoying that particular
title.
Madam Speaker, I also wish to proceed to my point, that I would want indeed this Deeds Registry amended to not only stop at doing those two things, that is of removing powers of attorney, not allowing Commissioners of Oaths that are not notaries public, non-conveyancers, justice of peace from attesting to powers of attorney to transfer and also to introduce an electronic registry. My hope is that this opportunity to amend the Deeds Registry Act must involve a very thorough fine tooth combing of the entire Deeds Registry Act that we have today so that we not only align it to the Constitution, but also do even more to make sure that it is easier to do business.
Madam Speaker, I want in particular to speak about provisions in the Deeds Registry Act that are archaic and that are a shame to this day and time. Our Deeds Registries Act still contains provisions that belong to the middle age as far as the property rights of women in particular are concerned. I was actually surprised Madam Speaker, when we were going around the country to find that even, of the members of the public who came to give their views; I was hoping that I would also hear even women’s organisations coming to urge the amendment of the Deeds Registries Act to remove such archaic provisions. As I am speaking to you Madam Speaker, I am looking for the precise provisions that are a shame in this particular day and time, that are not in sync with the provisions of Section 17 of the Constitution in particular, that requires that there be gender balance. I believe that it is Section 54 that provides that in the Bill of Rights itself, that provides for equality before the law, equality and lack of discrimination.
Madam Speaker, there are still provisions in our Deeds Registry Act that tend to discriminate against women. Madam Speaker, that requires special provisions, in particular Section 15 of the Deeds Registries Act. It is a shameful provision. It is headed special provisions relating to women. If you allow me, I will just proceed to share what
Section 17 says. I say that because this Deeds Registries Amendment Bill proposes to do only those two changes that I mentioned, it requires the powers of Attorney to effect transfer, be by oath to a Conveyencer, Notary Public as well as the Justices of the Peace and to introduce an electronic registry.
It baffles me to no end that the drafters of this Bill saw nothing amiss in Section 15 of the present Deeds Registries Act, which as I indicated, discriminates against women. It says special provisions relating to women. Subsection (1) provides that a married woman shall be assisted by her husband in executing any deed or document required or permitted to be (a) registered in any Deeds Registry, (b) produced in connection with any deed or document referred to in paragraph (a). If by virtue of her marriage she has no legal capacity to execute such deed or document without the assistance of her husband. This may be referring to marriages in community of property. These are marriages that are not necessarily found in our laws because they have this provision for marital power. This is where a husband is the one who is the person at law and they will be able to exercise those issues.
Our Constitution provides for full equality between men and women. It provides that there shall be no discrimination. There shall be equal citizenship in Zimbabwean law. That would therefore mean that even if there was somebody who wanted to register and get into a marriage in community of property, it would mean that because of the provisions of our Constitution, marital power would now be unconstitutional. Therefore, there will be no occasion for any situation that requires Section 15 of the present Deeds Registries Act to proceed to allow a married woman to be assisted by her husband. This belongs not only in the bin, but maybe in the incinerator.
I am disappointed because this Deeds Registries Amendment Act is a golden opportunity to align the laws of our country with the Constitution. Women are the biggest winners in the constitutional reform process. We cannot in 2017 allow this Deeds Registries
Amendment Act to go through while only making those two changes. Why do we not amend or even repeal this Section 17 so that it removes any relationship to marital power. This is because every woman in Zimbabwe whether married or not, has a right to appear as a full person can appear at the Deeds Registries Office. It is unconstitutional to discriminate on the basis of marriage, marital status and on the basis of sex or gender.
This Section 17 needs attention while we are doing this. There is an opportunity to do so, let us do so now Madam Speaker. That is what I am hoping that the drafters will think about this and truly align the whole Deeds Registries Amendment so that we do not waste time and then bring it back again. We cannot allow shameful provisions to pass through our watch. Generations will ask us, ‘what we were doing when you were allowing Section 15 of the Deeds Registries Act to remain untrammeled?’
Madam Speaker, I want to say I generally commend the spirit in which this Deeds Registries Amendment Bill is being brought, but it can certainly do more. This Parliament is ending in a few months and we must use this time wisely. Let us amend or delete the provisions of Section 15 and add them to this Bill. I want to wholeheartedly support the noble protection there is coming to members of the public who are being protected from charlatans who are masquerading as
Commissioners of Oaths who are unlawfully fraudulently dispossessing property owners of their properties by purporting to execute powers of attorney to effect transfer, when in fact they are not.
I was listening to members of the public and I noticed that with respect to them, some of those are worried about the other
Commissioners of Oaths who are not notaries public, conveyencers or justices of the peace. They were worried that they would be removed from relevant - initially but did not seem to be aware that those Commissioners of Oath can go ahead and do whatever else it is that they do like certifying documents and so on. The power has not been taken away, but for that very drastic power to give somebody to give a
Conveyencer to go and appear on your behalf to be the Registrar of Deeds to remove you from your title deeds and to confer title to somebody else - only those people who hold offices that are indeed known, stable and reputable such as conveyance and notaries public and justices of the peace should be able to do that.
In any event, for those who are indigent, I do not think that there will be any problem at all because in any event, they will need a conveyencer to go and convince their properties. They can be referred to organisations that conduct legal aid like the Legal Resources
Foundation, Zimbabwean Lawyers Association and others. The Legal Aid Directorate itself that was established by this Parliament should also be able to be in a position to have its conveyencers - if they are there and notaries public and justices of the peace and also all those other justices of the peace that occurred to avail their services to attest powers of attorney for the purposes of registering title deeds.
Having said that Madam Speaker, I want to support the Bill but I am praying that the Hon. Minister goes and bring a draft that incorporates either a total deletion and incineration of the provisions of the very sexist provisions of Section 15 of the Deeds Registries Act as well as to also expand access to users of the electronic registry to other people who are not necessarily those people and to remove the restriction of deleting from the register on the basis of non use etc. I thank you.
*HON. MAKUNDE: Thank you Madam Speaker. As we travelled
conducting public hearings on the Bills, I just wanted to add a few issues that my colleagues did not mention. Firstly, people were asking why the
Government was absent all this time when you can craft such good laws. It was well received. Those who liked the amendments were mostly women because they were saying that the deeds that are in hard copy had challenges because a man would take that copy to their concubines or small houses and they would remain with nothing. So, they were excited over the fact that there is now an electronic one because if a man takes the hard copy, the electronic one is still there.
The second issue is that as the legislature, need to consider the Commissioners of Oaths. I believe when Home Affairs was giving people authority to be Commissioners of Oaths, they were hoping it would be of community service, not for money making venture. When you walk down the streets, you find a Commissioner of Oaths charging. That is not on the books. Those people should render a community service because they were entrusted to do that. Some of them are retired priests and some are retired headmasters and have been given that authority because of their good standing. That is what this august House should also legislate that those Commissioners of Oath who charge should be brought to book. The Ministry of Home Affairs has the ZRP which should arrest such culprits.
As we travelled, we also realised that as Members of Parliament, we are entrusted with authority to become Commissioners of Oath. So, let us assist people in our constituencies so that they are not charged by the Commissioners of Oath. These are the few words that I wanted to add, Madam Speaker, but in conclusion, I want to agree with Hon. Majome to say that this is the opportunity that we have to align everything that is not in line with international best practices and we should join the international community in having laws that are internationally compliant. I thank you Madam Speaker.
HON. NDUNA: Thank you Madam Chair. I see you are in high spirits today – [HON. MEMBERS: Inaudible interjections.] - I have just risen to give an impetus to this Bill on just one point, Madam Chair, that of computerisation. Madam Chair, also because this Bill deals with a plethora of offices that include amongst them the local government, in particular the councils. Where I come from, there is dearth in terms of computerisation and I will at this point call for the computerisation of such entities as councils.
Madam Speaker, this is going to allow for integration of systems.
If the Deeds Office or the Deeds Registry Office is computerised and the councils are also computerised, it is going to alleviate the plight of the multitude of the citizenry that are going to have these offices being user friendly. We already have POSA that disallows access to information and publication of information without due diligence or without the express authority of the originator. There is no reason, Madam Speaker, for there to be duplication of that effort in terms of criminalising journalists that are going to publish information from the Deeds Registry. Let us continue on the progressive path of having public involvement in any processes, in particular, in such processes that call on the public’s involvement in deeds registry. As long as we computerise, we are being techno savvy and we are being ICT related, going away from the BBC era, that speaks to Born Before Computers.
Madam Speaker, we should utilise this Deeds Registry Bill to embrace technology so that we do away with being archaic, moribund and antiquated. I want to say, as I conclude that this is a progressive Bill for as long as it calls for computerisation of where the Deeds Registry Office is going to reside. Furthermore, let us integrate all systems so
that they speak one to another so that we have a shared vision, shared information and flawless system that also speaks to revenue generation, plugging of loopholes of revenue leakages using computerisation and integration of our systems. I thank you.
HON. CHASI: Thank you Madam Speaker. I rise merely to commend the Hon. Vice President…
THE HON. DEPUTY SPEAKER: Order Hon. Members. The Hon. Member who is debating has a small voice, so could you please lower your voices – [HON. MEMBERS: Inaudible interjections.] - Yes, it is for my benefit. I want to hear what he is saying. So please, lower down your whispers.
HON. CHASI: Thank you Madam Speaker. I rise to commend the Hon. Vice President for the wonderful work that is emanating from the Ministry in particular, in this regard - the digitalisation of conveyancing is a very important stride that we are taking as a country. We have witnessed a lot of fraudulent activities regarding conveyancing in this country and it is quite clear, from the digitalisation process that is taking place and which this law applies to, that we are going to plug the very serious holes that have resulted in many members of the public losing a lot of money and I simply want to make that point, Madam Speaker.
The processes that are detailed in this Bill also mean that we are catapulting our country in to the first world in terms of the way that we are going to be registering the buying and selling of property in the country and I simply want to commend the progress that has been made in this regard, I thank you.
HON. MPARIWA: Thank you Hon. Speaker. I will be very brief. Let me begin by thanking the Minister for bringing the Bill to Parliament and also those who have spoken before me. Hon. Speaker, I think you may recall even during the debates in my reports that procurement was one of the problematic areas where we have highlighted the absence of such procedural actions in terms of actually procuring or acquiring assets in Government, even disposal of the assets. As such, I think the Minister has acted in terms of the demands or the recommendations, in terms of the Public Accounts Committee. I want to appreciate and thank him for having brought the amendments.
However, let me also buttress the points that have been raised by Hon. Majome in terms of inclusion of women on having title deeds and the authority also to have access to property, access to be included in the deeds. Hon. Speaker, you may recall that we have held several meetings and workshops in terms of how we can empower our own women in marriages and even those single people because when we balance equality, it is when everyone is equal in terms of action and in terms of benefits. When the law then goes on to actually take away the rights that have been given in the Constitution through another separate Statutory Instrument, then we bemoan as women. I want to appeal to the Minister, because he has just walked in, to say, this is a good move, but however, he should also improve on the section that we have noted through Hon.
Majome’s submission. Hon. Speaker, let me thank the Hon. Minister and actually impress upon him to actually re-look at the sections that
Hon. Majome has bemoaned that affect women, that are taking the rights of women that are given in the Constitution vis-a-vis through this particular Procurement Bill. I want to thank you for the opportunity.
HON. CHAMISA: Thank you very much Madam Speaker. I
want to start by commending Government for this timeous and timely Bill which has been long overdue in the sense that the world over, jurisdictions are moving from the paper platform to an electronic platform. Our introduction of this platform is going to help the country to handshake with other global economies. Not only is it going to enable us to rank very high in terms of easy of doing business which is a very important indicator in terms of our ranking of economies on the world state. This is a very important Bill because it seeks to move the country in the direction of e-government.
I am aware of the fact that other governments have already moved on to other high platforms, not just the e-government platform but the i- government which is the Intelligence Government and the smart government where Government departments are able to interlock, intercommunicate and be able to move forward. In terms of the Bill being a very important national step, we are going to obviously see the reduction in the space that has to be used because we no longer need all those files; now we can lodge them electronically. We also see that we are going to be able to detect fraud, detect any kind of criminal conduct, if there is any conduct in terms of what the Hon. Member has referred
This is a very important Bill; it is also going to be very important because what it does is that it will save time. Where this has been introduced in Denmark, South Africa where they are currently introducing it, we have seen that there has been a saving of time in terms of how governments function, in terms of how business is transacted.
So, it is very important that this Bill is coming at this particular juncture.
It is also very important particularly because we are seeing that the Electronic Deeds Registry is going to run concurrently with the paper one, that also makes sure that if they are running peri-quasi or at the same, if there is a collapse on one system you are able then to have redundancy and a fall back on the other systems. So, it is a very clever way of adopting a transition from the paper based one to an electronic based one, particularly if we are to look at the model that was used through the 2016 Bill in South Africa, very important Bill. I know that there is a lot of debate that went into the South African one and a lot of good practice that we also have to benefit.
Madam Speaker, I was looking at the African continent, almost 71.4% of our deeds registries are on the paper platform and that has militated against the competitiveness of most of our economies and Zimbabwe is included. Paper based systems have their own bureaucracies and also the red tape in terms of delaying and dilatoriness. Once we move on to this platform, we will be able to then cure the kind of mischief that has undermined the attractiveness of our economy. So, it is a very important development in our country and I want to say that I want to comment the most important amendment here wherein the notary publics, conveyancers and also Justice of the Peace are the ones that are not supposed to be doing the authentication and validation as well as attestation. It is very important because what it does is that you are now looking at a specialised area; a specialised area requires specialised minds and specialised hands. You cannot just have generalized approaches to a specialised area. So, once you have conveyancers who are adequately trained, then it enables the issues of security to be dealt with because they are also things that come along with notary public straining. I for one know that there are certain special courses that are given for those who would actually be doing notary public work and also conveyance.
It is very important that it is done in a way and in a manner as to allow certain members who are trained to deal with those matters. I want to say that they are areas that have to be dealt with if we are to have an effective Electronic Deeds Registry in Zimbabwe. The first one is the issue of the way this Bill has been drafted. I see that there has just been an addition from the last section; it should be section 89 or 79, I cannot remember. There has been an addition of sections from that section, the last sections in the current Deeds Registries Act. Now it is going to be problematic because there is a potential of conflict in terms of sections because there are certain sections that have to be amended because automatically, once you place the obligation of an electronic register, you have to amend certain sections for example section 5, wherein you are looking at the duties of the Registrar; he has to have an obligation to keep an electronic register. So, you have to go and amend the other subsequent sections and I think this has to be sorted out in terms of the drafters, if they could actually make sure that we amend section by section so that all those other inconsistencies, contradictions are then eliminated.
I know in South Africa for example, they had a holistic approach. Yes, there has been a holistic approach but it is an electronic one. We have just looked at an addition of certain sections on top of the Bill without necessarily doing a forensic assessment of what has to be done in terms of aligning it with the modern day dictates and what is required of an Electronic Deeds Registry. So that is the first point I make.
The second one I make is that it is going to be very difficult and I was actually discussing with some officials to say how are you going to have unanimity within Government? The Deeds Registry on an electronic platform has to be done in the context of a holistic approach. There has to be an e-government strategy. Now I do not seem to see an e-government strategy that is now being the source of the Electronic Deeds Registry because we have to make sure that the whole
Government is on an electronic platform. We have to make sure that the
City Council is on an electronic platform, we have to make sure that the Home Affairs department is on an electronic platform. It is very clear that in terms of an ICT, e-government strategy which is basically not an issue that has to do with the law but the framework because it is very important and has to be sorted out. It has not been sorted out because what it then does is that you then do not have what is called the etransaction Act, in fact as a Bill, it is not there.
In issues like cryptography, digital signatures are handled and dealt with, that has not been sorted out. So, we still have to make sure that in terms of other areas of legislation, we have a holistic approach rather than an eclectic or a piecemeal approach. It is going to cause serious problems when it comes to implementation, particularly of this platform. We also need to make sure that we deal with other areas that are left behind, I know the ICT Ministry was working on the Digital Signatures Bill, and there is also the Data Protection Bill. All those Bills if there are not there, you are then going to bump into issues of conflict between privacy and security, which one comes first, the security of people’s information and data and also the privacy of individuals in terms of confidentiality. So, we need to arrange those in terms of their constitution so that there is no contradiction when we go then to issues of who is the user in a particular law firm or in a particular setting.
If that is not done, we are then going to end up with problems of security, hacking, and problems of interfering with systems may actually be those we are supposed to deal with. There is also the issue of the ICT readiness. We must be able to make sure that there is an ICT readiness on the part of not just the citizens, but also conveyancers, notary publics and so on. This is because if it is not there, you will end up with a system that is so good, but with no one who is capable or competent to
utilise it.
So, citizens have to be educated in terms of ICT readiness to make sure that they are also on this platform. However, this is a very progressive Bill. It has elements which have to be sorted out. My advice to the Ministry that is in charge of this Bill, is to seek the advice of certain experts in the industry to help in tying up the areas that are not connecting, especially around the sections. We are ready to help where they need our help and other conveyancers who may be available to help in order to make sure that this Bill is the best for our country. I would like to say, as far as I am concerned, this is a Bill to support.
However, it must be supported with the understanding that the
Government is not just taking us into an area that they are not aware of. They also need to be clear in terms of what strategy they are taking us through. It does not make sense for us to copy or follow South Africa,
Nigeria or Kenya without understanding that ours is a unique situation.
We need to understand our circumstances and make sure that our laws are in harmony with each other as we go forward. Once we sort out issues of e-government as a strategy and as a Bill or an Act of
Parliament, then we are able to implement it. This is something that we have to support because the world over, business is moving from a paper platform to an electronic one. This is a very progressive Bill.
This is also a very positive thing and we are encouraging Government to make sure that even as we go to elections, let us also move from the paper platform to an electronic platform. This is a good and progressive gesture from Government. I want to thank you Hon.
Speaker.
HON. ZINDI: Thank you Madam Speaker. I will be very brief in my contribution. I would like to emphasise on the point of computerisation of the Deeds and Registry Office as I make my observations on the Deeds, Registries Amendment Bill (H.B. 3, 2016). On the issue of computerisation, that will quicken the process of one having to register his/her title deeds as compared with what is currently obtaining. For instance, if one is to buy a property today, it is most likely to take you close to two or three years in order for you to register the property and obtain the title deeds. That is a situation that is totally unacceptable, given the world that we are living in today.
If you take the Zimbabwean situation, where we are going with the policy of the ease of doing business, we need to create an investment environment that is user-friendly and attractive to investors. Therefore, this process of computerisation, will quicken the process and make the environment user-friendly and attractive to the investor. I therefore emphasise the point that computerisation is very important with regards to the policy of the ease of doing business which was adopted by the
Government. That will create an enabling environment because the Government is there to create that environment.
Further to that Madam Speaker, we have witnessed quite a number of fraud cases taking place because these estate agents which have mushroomed – one have to buy a property and the same property is resold to more than 10 people. People are losing their money. Now with the computerisation process, that will deal or perhaps lessen the issue of fraud in terms of accessing one’s title deeds or registering false title deeds.
For instance, what is currently obtaining today, if you go to the Registrar’s Office, files are strewn all over and sometimes you are told that you cannot even access that file. There is a very chaotic situation in that office. Hence, the fraudsters take advantage of such a situation. Now, with e-governance and e-searching, once it is computerised, this will deal with the issue of fraud. With such remarks and observations in the process of amending, I think if the Government takes that into consideration, it will create an enabling environment, which should be the cornerstone of Government. I thank you Madam Speaker.
HON. MLISWA: Thank you Madam Speaker. My contribution is
in support of the Bill in that it will attract a lot of investment, especially with our people in the diaspora. I think if they want to invest, they will be able to search and see whether the property they want to buy has been bonded or not. The aspect of fraud will be equally minimised in that respect. I think it is important that even from an investor’s point of view, people who are outside Zimbabwe will be able to access that.
The aspect of fraud, which has been happening for a long time – I totally agree with Hon. Chamisa’s contribution that, this is where the world is going and Zimbabwe cannot be left behind. I know we can talk about the shortage of resources, but that is not to say that the Ministry responsible must not continue with its mandate at the end of the day. We have been in this for a very long time and we cannot afford to complain but we must ensure that the Ministries do what they have to do. It is also equally important for the line Ministries to also complement in terms of this becoming a total package at the end of the day.
He mentioned the fact that, there could be some missing dots here and there, but I think it needs every line Ministry involved to ensure that it is happening. We do not want a situation where, for example, the education curriculum which is there; Hon. Minister Dokora is able to come up with something which this country certainly needs in terms of a new curriculum, but there is an aspect of resources which are not available. The Minister responsible for implementation of the curriculum is not responsible for the availability of resources, instead, the Minister of Finance and Economic Development is responsible. In terms of training teachers, it is the Minister of Higher and Tertiary Education, Science and Technology Development who has the responsibility to support what the other Ministry would have initiated.
It is pretty important for the line ministries to come on board to ensure that whatever is missing is tackled. However, I really appreciate and support this Bill because we are certainly moving forward and we are in the right direction. His Excellency has been on record speaking about zero-tolerance on corruption. The more things are handled electronically, the less corruption there is. This is because people’s hands are pretty fun at times; people do things that they do not want their hands to do. However, a computer is able to examine that, if your hands go wrong, it is able to double check and tell you that your hands pressed the wrong button. If we are used to the manual way of doing things, we will certainly not be where we want to be. So, I support the Bill and the Ministry responsible because Zimbabwe has got to be up there with what it takes. The aspect of resources is something else. Those who went to the struggle never had guns but while they were in the struggle, they got the support. I think we will eventually get there, thank you.
THE VICE PRESIDENT AND MINISTER OF
JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.
MNANGAGWA): I thank the Portfolio Committee on Justice, Legal and Parliamentary Affairs on its first report on the Deeds and Registry Amendment Bill [H. B. 3, 2016] and also other Hon. Members here who have made contributions. I am most appreciative of the conclusion of the Portfolio Committee report which says that, in conclusion there was general consensus that the proposed amendments are progressive and
Government’s intention to utilise technology in the delivery of legal services are commendable. However, I wish to make comments in relation to contributions by Hon. Members. I thank all Hon. Members especially those involved in public consultations for their support of the Bill. Let me respond to some pertinent points raised by those who have spoken.
Firstly, I take note that the scope of those who may use the electronic Deeds Registry as registered users should be expanded to those who are self actors, that is to say, to those members of the public who may want to register deeds for their own benefit, I will certainly look into that issue when we do the Committee Stage.
Secondly, I appreciate that regular use of the electronic registry should not be based on actual transactions executed through the registry but simply on whether the regular use pays the annual fee for registration.
Finally, I take note that there are some discriminatory provisions affecting women who use the Deeds Registry. I wish to inform this
House that provisions like these are being dealt with by an omnibus
Gender Bill which will soon be introduced into the House by the
Minister responsible for women’s affairs.
On the point raised by Hon. Chamisa, we have a law reviser whose work is to do the needed alignment of sections you mentioned. May I also assure Hon. Chamisa that when the e-Governance Bill is introduced by the Minister of Information Communication Technology and Courier Services, you will see the holistic approach the Hon. Member is speaking of. I therefore thank the contributions by Hon. Members and I am well disposed to taking on board the useful suggestions by Hon.
Members. I move that the Bill be now read a second time.
Motion put and agreed to.
Bill read a second time.
Committee Stage: Wednesday, 5th April, 2017.
SECOND READING
JUDICIAL LAWS AMENDMENT (EASE OF SETTLING
COMMERCIAL AND OTHER DISPUTES) BILL [H.B. 4, 2016]
Third Order read: Adjourned debate on motion on the Second Reading of the Judicial Laws Amendment (Ease of Settling Commercial and Other Disputes) Bill [H. B. 4, 2016].
Question again proposed.
HON. ZIYAMBI: I rise to give a report of the Portfolio Committee on Justice, Legal and Parliamentary Affairs regarding the public submissions on the Judicial Laws Amendment (Ease of Settling
Commercial and Other Disputes) Bill [H. B. 4, 2016] gazetted on the
26th August 2016. This Bill seeks to amend the High Court Act,
Magistrates’ Court Act and Small Claims Courts Act with the objective of speeding up and otherwise facilitate the settlement of certain suits or actions, especially those of a commercial nature.
2.0 METHODOLOGY
This report is a product of public consultations conducted from 20 to 25 March 2017 in Bulawayo, Gweru, Masvingo, Mutare, Kadoma and finally Harare. The consultations were in compliance with Section 141(2) of the Constitution of Zimbabwe, which requires that Parliament ensures that interested parties are consulted about Bills being considered by Parliament. The Committee’s report was also informed by written submissions from interested stakeholders and an analysis of the Bill by the Committee.
3.0 SUBMISSIONS BY PARTICIPANTS
The Committee received the following submissions on the Judicial Laws Amendment Bill.
It was noted by the participants that there is no amendment of the High Court Act to include new definitions established by the amendment.
3.1 Clause 2: Specialized Divisions of the High Court
Regarding the proposed Section 46 (a) of the High Court Act, which gives provision for the establishment of specialised divisions, participants commended the proposed amendment as progressive.
3.2 Clause 3: Virtual Sittings: Amendment of section 47 of Cap
7:06
Regarding the proposed amendment to Section 47 of the High Court Act, which makes provision for the establishment of virtual court sittings, concerns were raised on the lack of a clear definition in the Act of what constitutes ‘virtual sittings’ of the High Court. By and large, participants agreed unanimously that this amendment was progressive as it is in line with international best practice.
3.3 Clause 4: Amendment of section 56 of cap 7:06
The Committee also gathered that there was need for a clear definition of what “service of process by electronic means” entails, since this has a direct bearing on the current rules of service of court processes.
3.4 Clause 5: Savings
There were no issues regarding this section
3.5 Clause 6: Amendment of Section 2 of Cap 7:10
No issues arose regarding this amendment. Participants generally endorsed the amendment as proposed.
3.6 Clause 7: Amendment of Section 11 of Cap 7:10
No issues arose regarding this amendment. Participants generally endorsed the amendment as proposed.
3.7 Clause 8: New Section inserted in Cap 7:06
No issues arose regarding this amendment. Participants generally endorsed the amendment as proposed.
3.8 Clause 9: Amendment of Section 73 of Cap 7:06
No issues arose regarding this amendment. Participants generally endorsed the amendment as proposed.
3.9 Clause 10: New Section substituted for section 3 of Cap
7:12
No issues arose regarding this amendment. Participants generally endorsed the amendment as proposed.
3.10 Clause 11: New Section substituted for section 6 of Cap
7:12
Participants applauded the constitutional provision allowing legal representation at any fora, but however raised concern on legal fees and affordability. This is in regards with small claims courts and in line with the constitutional provision that now says everyone has a right to legal representation at any forum or any court. So, this is in line with that provision.
3.11 Clause 12: Amendment of Section 22 of Cap 7:12
This proposed amendment was hailed as being very progressive as it expedites dispute resolution. This amendment seeks to reduce the time which documents can be lodged from 14 days to seven days within the small claims courts.
4.0 COMMITTEE FINDINGS AND
RECOMMENDATIONS
4.1 Having analysed and considered the contributions by the public, the Committee found that the proposed amendment of the High Court Act does not amend the interpretation section of the High Court Act to include new terms introduced by this amendment. Of concern was the need to have clear definitions of what is entailed by ‘virtual court sittings’ and ‘electronic service of documents’. The Committee recommends inclusion of a definitions section within the High Court Amendment Act.
4.2 As regards the issue of affordability of legal services at the small claims court, the Committee found that there is need for the Act to provide for stringent regulations for charges against litigants at the small claims courts.
5.0 CONCLUSION
Participants were generally pleased by the proposed amendment because if passed, it will expedite the resolution of disputes and thus address the issue of backlogs bedeviling the justice delivery system.
Also in terms of access to justice and the right to legal representation, participants welcomed this amendment in that it affords litigants the right of representation even at small claims courts, which effectively realigned the Small Claims Court Act to the Constitution. However, due regard should be made to ensure affordability of services rendered by legal practitioners. I thank you Madam Speaker.
HON. ADV. CHAMISA: I am actually surprised but positively surprised Madam Speaker, that Government seems to be taking the right steps in the right direction. – [HON. MEMBERS: Inaudible interjections.] – Very unusual, but we must appreciate it all the same. This is a progressive amendment again of our laws, particularly to deal with the advent of commercial disputes.
I have seen in the courts that our court roll is clogged with a lot of commercial disputes arising out of winding up of companies, shareholder disagreements because of the economic situation in our country. So, this is a very positive development which merits the support of Hon. Members of Parliament because what we are going to then see is an expediting of resolution of commercial disputes and commercial disputes seem to be many. You would find that it then introduces some kind of a specialised approach to commercial disputes just like we have done with the tax and labour issues. Now this, in as much as it is amending the High Court Act, particularly Section 46 (a) and Section 47 by having virtual sittings, you are then going to be able to transact business with people who are even outside the country.
The spirit is very good, the direction is very good and the motivation and reasons are very good and must be supported because we are now moving onto an electronic platform even in the justice system. Access to justice is not access to justice if we do not have mechanisms of that access and access is only engendered when we are able exploit modern day technologies to enable representation, access to justice and judgements to be made, and decisions to be arrived at without people necessarily having to transport themselves to the courts. Gone are the days when a court would be defined in the context of brick and mortar to say if there are no walls, there is no judge sitting in a Chamber and litigants in an adversarial or inquisitorial system, ‘then you have a court. No, those are days of the old. Now, a court is basically the existence of a virtual system. The players may be in different geographical locations but they are able to transact this kind of process.
The wish though is to say, let us not limit it to commercial issues and then even move a step further and say, within our country we also have virtual sittings particularly if people are in Bulawayo so that people do not necessarily have to come to Harare for access even to the Constitutional Courts. Let us move a step forward and a step further and make sure that we have virtual settings even at a national level. I know that in terms of the law, that is where we should be going as this is happening in other advanced jurisdictions like Australia, New Zealand and the United States of America. So this is a very positive thing again as it expands and engenders access to justice.
There is also the issue of electronic service of documents and lodgment – this is powerful and perfect. The only rider though is that we must also be very clear in terms of issues of security and how we avoid manipulation of innocent parties. Again, it boils downs to an administrative application and system that has to be adopted but this is very positive. It is going to be good news not just for lawyers, it is good news also for various litigants, it is good news for all the actors in the justice system including the registrar and the whole bureaucratic system that deals with moving of documents. This is very progressive, we must support it. In fact, this one in my view, does not even require a lot of debate because at times there are areas where as a country we should be able to agree.
We belong to the opposition but opposition of good things is retrogressive opposition but when we then support good positions, it must also be acknowledged because that is what democracy is all about. When you are unhappy with a particular view, those in Government must be able to appreciate the logic, cogence and power of the wisdom from the other side. Of course, when there is also good wisdom from Government, those from the other side must be able to appreciate and we appreciate this progressive move but very unusual and very uncharacteristic, all the same, it is appreciated. Thank you very much Hon. Speaker.
HON. NDUNA: Thank you Madam Chair. I was just sarcastically trying to respond to somebody who wanted to assume your Chair. I want to say the General Laws Amendment Bill that came to this House consequentially amended a lot of other Sections in the Constitution, amended about 114. I think it so, consequentially other Acts were amended by just bringing to Parliament the General Laws Amendment Bill. This Bill speaks to, amongst other issues, setting up of ease of settling of commercial disputes. What my point will dwell on, is going to be that we need to couple this Bill with other Acts, we need to expeditiously bring in other Acts in order to amend them, so that we are not still in a back ward mode, in a historic mode where we are trying to settle commercial disputes that are still hinging on the Acts of the Companies which are moribund. The Companies Act is still archaic in this form in that it still speaks about the power of the muiti-nationals, as opposed to speaking to the formally marginalized black majority where there is still no moratorium in terms of the sale of company property, the sale of commercial property, the sale of housing that is accommodation property. So, they should expeditiously be brought to the House - the Acts and Bills that speak to the repealing and amendment of the companies Act that gives also unfettered access to companies of the Judicial manager in particular and other arms that impede upon the progress, one of companies and of individuals in the business sector.
So, my point exactly, which I am trying to ventilate speaks about the bringing in of other Acts that are going to complement and augment this Bill which in my view is very progressive. Also, in the same vein, the Committee on Transport and Infrastructure at some point called for the establishment of a traffic court that is going to deal with traffic offences. So, I want the relevant Minister to also cue from the Minister of Justice that speaks to the ease of doing business that is going to remove from the mainstream courts and mainstream judiciary the issue of traffic offences as we have seen and alluded to this one that deals in particular and specifically just to commercial disputes.
Madam Speaker, I also want to say in that vein, we have spoken about other Acts before and we have seen about other Acts before, in particular the Mines and Minerals Act and the Exploration Act…
THE TEMPORARY CHAIR: Order, order! Hon. Nduna, can
you please speak to the Judicial Laws Amendment Bill.
HON. NDUNA: I understand your anxiety for me to conclude but I want to say this Bill should be coupled with other Acts that have come to this House and have just vanished into thin air. They should expeditiously come to this House, be debated in the same vein with this one because the same disputes that we are talking about of a commercial nature resides in those Acts that have not come here, in particular the Mines and Minerals Act and the Exploration Act.
Madam Speaker, given that little time that I have had to debate, I want to thank you for your time. This is a progressive Bill, it should in the same vein, call for the expeditious tabling of other Acts and Bills in this House in order that it can efficiently be carried out and efficiently have its mandate reside in all other Acts that have a commercial nature.
THE HON. VICE PRESIDENT AND MINISTER OF
JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.
MNANGAGWA): Madam Speaker, I thank the Parliamentary Portfolio Committee on Justice, Legal and Parliamentary Affairs for their very positive report on Judicial Laws Amendment Bill, ease of settling commercial and other disputes. I also thank the Hon. Members who have contributed to this debate.
Let me address the most relevant questions raised. The issue of definitions - like virtual sittings and electronic service of process will be included in the rules of the High Court and the Magistrate Courts. These rules are presently being revised by the Judiciary who has submitted a first draft to the AG’s office for scrutiny. As to the all important issue of legal costs, I myself share the concerns of the public about the high level of legal costs. However, please take not that I, as Minister can fix a lower level of costs for cases that are heard in the small claims courts. I refer you to Clause 2, of the Bill.
With regards to comments by the last Hon. Member, the issues he raised will be attended to when we deal with those specific Acts he has referred to.
Madam Speaker, I move that the Bill be read a second time.
Motion put and agreed to.
Bill read as second time.
Committee Stage: Wednesday, 5th April 2017.
MOTION
BUSINESS OF THE HOUSE
THE HON. VICE PRESIDENT AND MINISTER OF
JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.
MNANGAGWA: I further move that Orders of the Day, Number 4 to the end, on today’s Order Paper, be stood over until the Hon. Minister of Environment, Water and Climate gives her notices of motions.
On the motion of THE VICE PRESIDENT AND MINISTER
OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS (HON.
MNANGAGWA), the House adjourned at Seven Minutes past Four o’clock p.m.