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Martin Tarusenga Business Correspondent
Some media reports have suggested that insurance companies and related service providers have routinely used weaknesses in the justice system to defer, indefinitely, determinations on full rightful benefits due to pensioners, and other types of subscribers to pension and insurance services in Zimbabwe.
Pensioners and other of these subscribers have for a long time registered total dissatisfaction with benefits entitled by insurance companies, and the manner in which their complaints in this regard have been handled.

While more direct evidence of insurance company activities and tactics (including outright fraud) abounds showing that insurance companies may not have been acting in good faith, such covert tactics using any deficiencies they can find in the system had not been apparent as part of their arsenal.

A key weakness that the insurance companies have so used to delay justice to pensioners and other subscribers is the incapacity of the only two High Courts in Zimbabwe, and the only Supreme in Court in Zimbabwe to process, timely, all appeals from inferior courts, such as to afford justice to the ordinary often vulnerable subscribers of these services.

While there is no split between pension/insurance appeal cases, and other case categories, the Court Watch1 /2013 and that of 3 /2014 reports significant increases in litigation in the High Court – 18 000 new civil cases lodged in 2012 compared to 12 759 civil cases in 2011.

Considering that data from pensioner organisations show High Court appeals made by insurance companies against court Magistrate court rulings in favour of payment of full rightful benefits to pensioners, dating back to the beginning of this century, it is expected that the 18 000 and 12 000 appeal cases of 2013 and 2014 (respectively), indeed any other years, include significant numbers of insurance company appeal cases against pensioners, where these appeals are meant to deter, indefinitely, a determination of full rightful benefits. In stark contrast, the High Court however has permanent seats only at Harare and at Bulawayo, and “sits three times in a year as a circuit court at Gweru, Masvingo, Mutare and Hwange.”

Taking into account the huge number of pension and insurance appeal cases, and other appeal case types flowing into the High Court, and the very small number of High Courts (just two), it is unlikely that pensioners, other subscribers and other such vulnerable Zimbabweans will ever get justice – even if the High Court could do one case per day.

This failure of the application of justice is just what the insurance companies are after.

The Government has cited financial constraints as holding up the expansion of the High Court so as to improve access to justice by having resident judges in urban centres other than Harare and Bulawayo.

Nevertheless, Government acknowledges that its citizens are being denied justices. We have here not even touched on the incapacities characteristic of the Supreme Court.

For purposes of comparison however, the various courts of South Africa in order of superiority are as follows: (a) the Constitutional Court; (b) the Supreme Court of Appeal; (c) the High Courts, including any High Court of Appeal which may be established by an Act of Parliament to hear appeals from High Courts; (d) the Magistrates’ Courts; (e) any other court established or recognised in terms of an Act of Parliament, including any court that has a status similar to that of the High Court or the Magistrates’ Courts (see Jurisdiction of South Africa: Courts and Tribunals – A Guide for the Legal Practitioner 2011).

The Constitutional Court has its seat in Johannesburg and is the final court of appeal in respect of all constitutional matters.

The Supreme Court of Appeal is purely a court of appeal and not a court of first instance, for all issues other than constitutional issues.

The High Court is a court of first instance, meaning that a matter can be commenced in the High Court, but it also operates as a court of appeal for the Magistrate’s Court within its area of jurisdiction.

The High Court has permanent seats in 13 areas including the main urban areas such as Johannesburg, Cape Town, etc.

Magistrates’ Courts exist at the District Courts level, and at the Regional Courts level, there being almost 500 District Courts in South Africa, each exercising jurisdiction over a specific geographical area.

Granted, South Africa is a much larger country, but a mapping of the courts and tribunals jurisdiction of South Africa into Zimbabwe would point to significantly higher requirements for permanent seats of the High Court (at least) in various parts of the country, in order to access justice to the 18 000 and 12 759 cases lodged in 2012 and 2011 respectively – and more.

The Government has for many years acknowledged this urgent need to expand the justice infrastructure and avail justice to its citizens, thereby bringing accountability of insurance companies and of other such institutions.

There is no question that insurance companies and any other such institutions engaging such appeal tactics may have something to hide – recall the gaping evidence of insurance companies flouting all best practices that they are supposed to comply with.

To let them go scot free however, by ignoring the call to expand the justice infrastructure is firstly to be insensitive to the justice needs of pensioners and Zimbabweans in general, and secondly, is to defeat the objectives of kick-starting the economy, which critically demand a pension and insurance service provider, insurance companies in particular, operating in good faith – and for all to see, including foreign investors.

In tandem with efforts to set up the Commission of Inquiry to establish the correctness of benefits entitled to pensioners and other subscribers, over the years, it is advisable for the Finance Minister to agitate for the review of the justice infrastructure.

• Martin Tarusenga is General Manager of Zimbabwe Pensions & Insurance Rights, email, [email protected]; telephone; +263 (0)4 883057; Mobile; +263 (0)772 889 716. Opinions expressed herein are those of the author and do not represent those of the organisations that he works for.