SOURCES OF LAW.
Common law
Common law refers to law which is not derived from legislation and has been defined by the courts
from case to case. Section 89 of the constitution of the republic of Zimbabwe stipulates that the law
to be applied in Zimbabwe shall be the law in existence at the Cape of Good Hope on the 10th of June
1891 as modified by subsequent legislation. It further provides that this system of law shall co-exist
with African customary law
The constitution is the supreme law, all other laws must never contradict the constitution as they
become ultra vires meaning falling outside the limits of authority.
The reference to the law in existence at the Cape on the 10th of June 1891 means that the general
law (common law) position in Zimbabwe is Roman-Dutch law because it was the system of law at the
Cape. Our common law therefore is what the courts say are the legal principles of Roman-Dutch law.
This system of law was brought by Jan Van Reinbeck an employee of the Dutch East India Company
when he arrived at the cape he brought the law in Holland ( Rooms Hollands Recht) which was the
law applied in the courts of justice ( Raad Van Justitia) in the Cape. The Raad did not have much
impact as it was composed and manned by laymen with no special skills or knowledge of law. In
1806 the British colonised the cape and maintained the system of law which was Dutch in origin.
The British had difficulty in interpreting and applying Roman-Dutch law and remodelled it along
British lines by constantly referring to English law where they had difficulty. In 1828 the Criminal
Procedure was remodelled along English lines and the English Law of Evidence was adopted formally
by the judiciary in 1836. With time laws of Insolvency, Company Law were adopted in toto
furthermore most judges were trained in England and often resorted to English law where RomanDutch law was unclear to them. By 1890 the law at the cape was a mixture or synthesis of RomanDutch and English law. It was this law that was brought by the pioneer column to Zimbabwe in 1890.
As a result Zimbabwean law is influenced by SA and English laws especially court decisions. Thus in
practice our common law position is a synthesis of Roman-Dutch and English law.
It should be noted that decisions prior to 10 June 1891 later found to be erroneous interpretation
of the law are not binding but only persuasive. This was made clear by C.J Clayden in 1956 in the
Case of Central Africa Airwaves v Vickers Armstrong:
“...a practice later shown to be erroneous cannot be regarded as the law in force in 1891, the true
law must be looked into”
Custom as a source of law
Customs are habits or usual practices of behaviour observed by individuals of a society. They are
unwritten codes of behaviour. It is a legal custom however that is binding and authoritative. A legal
custom are duties that must be observed and enforced by society through a proper authority. Thus a
legal custom is a custom that has assumed the force of law either by legislation or acceptance by the
courts. For a custom to be recognised and accepted as a source of law it must be:
1.
Reasonable
2.
3.
4.
Certain, clear and consistent with statute law
Uniformly observed
Long established
These requirements were laid down in the famous case Van Breda v Jacobs (1921): there was a
custom among fishermen at the Cape Point, in terms of the custom once a party of fishermen had
commenced, netting a shoal f fish between the Cape and Fishoek no other group of fishermen could
target the same shoal. The custom was known as “first come first pull”. A group of fishermen
(Jacobs) broke the custom and the matter ended up before the courts. The courts had decide
whether the custom had become law (legally binding) the court proceeded to lay down the
requirements which must be met before a custom can become law as follows:
i.
ii.
iii.
iv.
The custom must be reasonable in this case it was found to be since it prevented disputes
The custom must be long established, in this case it was practiced for 45 years and it was
accepted
It must be uniformly observed, known by all fisher man in the cape
It must be clear and consistent with statute law of which this custom was
The plaintiff showed all these elements to be present in the “first come first pull” custom
The court came to the conclusion that the custom had become law and the defendant was found
liable and ordered to pay the value of the catch they had intercepted in violation of the custom.
Case law/judicial precedent
This is also known as judge made law. A precedent is a previous judicial decision which serves as a
rule or guide for similar cases to be heard in future i.e. once a court has given a ruling concerning the
legal position applicable in a particular set of circumstances this ruling becomes the law for the
future. Other courts will thereafter apply the law as stated in the original case
Key concepts of case law
1.
2.
3.
4.
Doctrine of stare decisis
Ratio decidendi
Obita dicta
Hierarchy of courts
Doctrine of stare decisis
This is known in full as the doctrine of stare decisis et non quita movere which means stand by the
decision and do not disturb settled points. Once a court reaches a decision or gives a ruling that
court and those inferior/subordinate to it are to give the same decision on similar cases with similar
facts to be heard in future. The doctrine is in keeping with the hierarchy of courts. Under this, the
decisions of the supreme court and High court are binding on all other court but not themselves.
The Supreme court is not bound by its decision. The doctrine is of benefit in that it ensures
uniformity, certainty, and is predictable, saves time and keeps the weak judge in line. The doctrine
may however perpetuate bad law and is often criticised for failing to cope with changes in time and
sentiments.
Ratio decidendi
It means reasons for the decision or material facts of the case plus the decision thereon. Under the
doctrine of stare decisis a court is obliged to follow the decision of a superior court, here it is the
actual principles of the decision. In arriving at a decision a court takes into account a number of
aspects e.g. credibility of witness etc in addition to the material facts. The sum total of the material
used in reaching a decision is what is called ratio decidendi.
In Collet v Priest Lord Devilliers remarked that:
“...whatever the reasons for the decision maybe, it is the legal principle to be extracted from the
case which is binding and not necessarily the reasons given for it.”
Ratio decidendi is therefore the basis for the court’s decision i.e. the legal principle which led to the
conclusion arrived at.
Obita dicta
These are incidental or by the way statement made in passing to central issues of the case. Such
statements are only persuasive and not necessarily binding. This doctrine was perfectly enunciated
in the cases of Jajbhay v Cassim (1939) and Peterson v Jajbhay (1940).
LEGISLATION
This is law made by parliament or any other competent authority. To this end parliament is
sometimes referred to as the legislature and the laws it makes are called Acts of parliament or
statutes. Statutes override all other laws that may be inconsistent with its provisions. Although it is
the duty of parliament to pass laws, it can delegate part of its authority to other subsidiary bodies
like local authorities ( municipalities) or parastatals the resulting laws are known as delegated
legislation
Group Assignment (February to June 2010)
1. Discuss in detail, the legislative process in Zimbabwe, outlining what happens at each
stage.
[20]
OR
2. (a) Discuss the structure and jurisdiction of Zimbabwe’s courts of first instance
(b) distinguish between authoritative and persuasive sources of law
[15]
[5]
HIERARCHY OF COURTS
The Zimbabwe court structure is in keeping with the doctrine of stare decisis.
Village court.
It is the lowest court in Zimbabwe and relies on customary law. It is established by the Customary
Law & Local Courts Act. It is presided by the Headman. It does not have criminal law jurisdiction only
civil law jurisdiction where customary law is applied and
i.
ii.
iii.
Defendant must be resident in area of jurisdiction
Cause of action arose within that area
The defendant consents to the court’s jurisdiction
Procedures are informal and local language is used, court must keep a record of names of parties,
nature of dispute and the judgement. There is no legal representation and deals with minor
issues/disputes e.g. where one’s livestock stray into the field of a fellow villager.
Chief’s court
It is also created by the customary law & local courts act. It is presided over by the chief. It is a court
of first instance and appeal, it hears appeals from the village court. It applies customary law only,
informal procedures, it is specifically prohibited from handling cases of divorce, child custody and
maintenance. Appeals from this court lie with the magistrate’s court customary law.
Community court
It keeps formal records of proceedings and are presided over by a judicial officer known as a
presiding officer assisted by assessors if he so wishes. These judicial officers are appointed from the
Ministry of Justice with the n qualifications. They have limited criminal jurisdiction, and tries crimes
of theft, assault without causing grievous bodily harm, property damage.
Small claims court
Established by the Small Claims Court Act of 1992. It is currently based in Harare and Bulawayo. It is
presided over by a magistrate, semi formal procedures with no legal representation. The high court
has power to review the court’s decision where allegations of gross irregularities are cited in
proceedings e.g. magistrate had interest in the case. It is designed for speedy settlement of disputes
hence no pleadings
Magistrate’s Court
Magistrate’s Court- Customary Law
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It is a court of appeal and first instance and it applies customary law only.
A magistrate presides over it, it is a court of record and allows legal representation.
It handles cases like divorce, division of property, custody and maintenance
Appeals must be lodged with the district court.
Magistrate’s court – civil law
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In all civil cases, the jurisdiction of all magistrate is the same irrespective of rank
Handle claims of unpaid debts, contractual disputes
Allows legal representation
Court of formal proceedings
Appeals lie with the high court
Magistrate’s court- criminal court
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Jurisdiction depends on rank of magistrate. These magistrates are headed by a chief justice
whose function is mainly administrative, they can try any crime except treason, murder or
those requiring a death sentence
Ordinary magistrate can impose a term of imprisonment up to 1 year
Senior magistrate can impose a term of imprisonment of up to 2 years
Provincial magistrate can impose a term of imprisonment of up to 3 years
Regional magistrate can impose a term of imprisonment of up to 7 years
In rape cases they can impose a maximum of 10 years. In addition all magistrates are granted certain
powers by some acts e.g. Fire Arms Act, Stock Theft Act, to impose a certain minimum years on each
count.
All magistrates can order whipping of juveniles, community services usually for first offenders.
Appeals from the magistrate’s court depend on the nature of the appeal i.e. if it is against sentence
it lies with the high court but if it is against both conviction and sentence it lies with the supreme
court.
High court
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It is a creation of the constitution, it is headed by a judge president. The high court is
permanently based in Harare and Bulawayo but moves in circuit or sits periodically in
Gweru, Hwange, Masvingo and Mutare.
It applies customary, civil and criminal law and has no limits to its jurisdiction
Can pass the death sentence
Both court of appeal and first instance in the case of treason
Highly formal and the majority of litigance are legally represented
Handles divorce where parties are married in terms of the Marriages Act
Supreme Court
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It is the highest court in Zimbabwe and permanently in Harare but periodically sits in
Bulawayo. It is headed by a chief justice who is head of the entire judiciary
It is essentially a court of appeal but of first instance when sitting as a constitutional court
i.e. where a person alleges a violation of his fundamental constitutional right e.g. freedom of
association. When sitting as a constitutional court all 5 chief justices must be present
No appeal against a supreme court decision only the President in the exercise of his
prerogative powers can pardon or grant amnesty to accused or convicted
A pardon can only be considered after appeal process is exhausted. Even if pardon is granted
the person remains convicted but pardoned
NB: Apart from the mainstream courts there are other specialised ones which include the Labour
Court, disciplinary bodies (army) and the administrative court.