a tripartite report - Unctad

ZIMBABWE
(ii) to produce any book, record or document
or copy thereof or extract therefrom;
(c) make copies of or take extracts from any book,
record or document referred to in paragraph
(b).
(2) The powers of entry and inspection conferred
by subsection (1) shall not be exercised except
with the consent of the owner or person in
charge of the premises concerned, or where there
are reasonable grounds for believing that it is necessary
to exercise them for the prevention, investigation
or detection of an offence, other than an
offence in terms of subsection (2) of section forty-
such an offence.
(3) Any person who, without lawful excuse –
from exercising any power under subsection
(1); or
(b) fails or refuses to comply with any requirement
(1); or
(c) upon being required under subsection (1)
to disclose any information, fails or refuses
to do so or provides information that is false
or which he does not believe on reasonable
grounds to be true;
exceeding level six or to imprisonment for a period
such imprisonment.”
A close scrutiny of the provisions of section 47(2)
of the ZCA as quoted above shows that even
though section 47(2) of the Act has provisions that
the “powers of entry and inspection should not be
exercised except with the consent of the owner or
person in charge of the premises”, the Commission
may still exercise the powers of entry and inspection
without the consent of the owner or person in
charge of the premises “where there are reasonable
grounds for believing that it is necessary to
exercise them for the prevention, investigation or
detection of an offence” or “for the obtaining of
evidence relating to such an offence”.
The Commission therefore does have powers under
the Act to conduct effective dawn raids, even though
those powers have still not been used. It is, however,
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observed that the ZCA does not provide for leniency
programme for which cartelists would voluntarily
provide information to the CTC regarding collusive/
concerted and other anticompetitive behaviours in
the markets. These shortcomings are a potential for
substantial lessening of CTC’s ability to effectively investigate
complex anticompetitive behaviours that
Section 29 (1) of the ZCA gives the Commission
wide powers to stay restrictive practices or mergers,
pending the completion of its investigation.
The section makes it a criminal offence to contravene
or fail to comply with the provisions of a notice
made in terms of Section 29 (1). Such contra-
3.4 Separation of Investigative and
Adjudicative Powers
The genesis of this controversy is the fact that the
CTC is vested with powers to investigate, prosecute
and determine matters that fall with its jurisdiction.
In the Zimbabwean justice system which is
based on Commonwealth practice these functions
are supposed to be separated so as to conform to
principles of natural justice.
The CTC has been in existence for over ten years,
during which there haven’t been neither legal
challenge nor complaint leveled against CTC in the
course of carrying out its functions in the manner
prescribed above. As such none of the interviewed
stakeholders raised the issue, but it is of concern to
the staff and Commissioners of the CTC that it may
only be a matter of time before it is challenged in
Courts of law.
In addressing the issue of separation of powers,
two systems are compared so as to appreciate the
diversity in ways and means of dispensation of justice
as applied in different jurisdictions.
3.4.1 Adversarial System
It is a system whereby, the parties to a controversy
develop and present their arguments, gather and
submit evidence, call and question witnesses, and,
remains neutral and passive throughout the proceeding.
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