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The notarial office...........................................................................................................................3
Notarial Deed..................................................................................................................................11
Provisions of the deeds registries Act............................................................................................18
Power of Attorney...........................................................................................................................20
Functions of commissioner of OATH.................................................................................................22
Change of name..............................................................................................................................29
Constitutions of voluntary associations.........................................................................................33
Ante nuptial
Execution and drafting of wills.........................................................................................................46
Notarial Bonds..................................................................................................................................51
Surety and indemnity Bonds............................................................................................................53
Mining contracts and notarial hypothecations................................................................................56
Bills of exchange and promissory notes...........................................................................................67
A notary is a public officer admitted and authorised by the High Court to draft and attest
contracts and other documents of public acts. Only a practicing practitioner may practice as
such .As per Elliot in South Africa notary practice.
Section 2 of the Deeds registries Act Chapter 20:05 provides ,In this Act— “notary public”
means a person registered as such in terms of the Legal Practitioners Act [Chapter27:07]
and, in relation to any document executed outside Zimbabwe, means a person lawfully
practising as such in the place where the document was executed.
Section 4 of the Legal practitioners ACT, provides for application for registration, (1) Any
person who wishes to be registered, whether as a legal practitioner, a notary public...Shall
make application there for to the High Court in the form and manner prescribed in
regulations.(2) An application for registration as (b) a notary public may be combined with
an application for registration as a conveyancer, and vice versa.
The admission and regulation of notaries in Zimbabwe is one of the functions of the High
court . Section 5 of Lp Act (2) states- Upon application being made to it in terms of section
four for registration as a notary public ..., the High Court may grant the application and
direct the Registrar to register the applicant as a notary public.
A notary has been described as the eye of the judge and in everything he does he must be
thoroughly impartial. Every notarial document is a public instrument ,in which he must not
at all be interested in .He must not benefit himself in a private way by any act which he
performs as a public functionary .As per Buchanan ACJ in Johnson v Estale Le Grange 1908
sc 823.
Given the high respect and esteem granted to a notary there are several common law and
statutory duties that follow .Emphasis is placed on qualities as responsibility, credibility,
impartiality, and professional integrity.
Under Privileges ,restrictions and offence in connection with practice S8 of Lp Act provides
Privileges of registered legal practitioners practicing as notaries,(1) Subject to this Act, a
registered legal practitioner who is in possession of a valid practising certificate issued to
him may practise the profession of law.(2) Without derogation from the generality of
subsection (1), but subject to this Act—b) a registered notary public who is in possession of a
valid practising certificate issued to him may execute, attest and authenticate anything which
is required to be executed, attested or authenticated by a notary public;
Further S9 (3) of Lp Act makes it an offence for persons other than notaries to perform
particular acts; Subject to any other law, no person other than a registered notary public
who is in possession of a valid practising certificate issued to him shall execute, attest or
authenticate anything which is required to be executed, attested or authenticated by a
notary public.The rationale for giving notaries a monopoly over certain acts is generally to
protect the public. The work that is reserved is regarded as so important that only trained
notaries can perform it.
1) Notarial deed of sale
2) Notarial deed of trust
3) Notarial deed of donation
4) Notarial deed of change of name
6) Notarial deed of servitude
7) Notarial deed in terms of Section 27 of the deeds registries Act
8) Notarial bonds (over movable property)
9) Ante nuptial contracts
Because all notaries are legal practitioners, they are part of and regulated by the Zimbabwe
Law society, who conduct annual accounting audits of notarial offices, establish and regulate
professional and ethical standards, and can censure or temporarily suspend notaries. The
Law Society is primarily responsible for maintaining the standards of the legal profession,
and for instituting disciplinary proceedings against errant members of the profession.
Among its objects are: Sec 53(c) of the L P Act provides;
“to define and enforce correct and uniform practice and discipline among legal
Currently there is no specific and exclusive code to guide Notaries Public in Zimbabwe when
statutes, regulations and official directives fall short. A paper addressing the importance of the
need to have a separate code of conduct for the office of the notary in the United States of
America, read in part;
“While many occupations pose professional and ethical norms for their practitioners, the
need for guidelines is particularly acute with persons holding the office of Notary because of
their unusual status as both public and private functionaries. In few offices is the practitioner
more subject to conflicting pressures.
Notaries have primary ethical duties towards:
The court
The Notary shall, as a government officer and public servant, serve all of the public in an
honest, fair and unbiased manner. He has a duty not to misdirect the court; the Notary
shall not execute a false or incomplete certificate, nor be involved with any document or
transaction that the Notary believes is false, deceptive or fraudulent
Their clients and other legal practitioners
Notaries are independent and disinterested; a notary does not represent or act in the
interest of any one party. Instead, under the Dutch legal system, notaries are required to act
impartially on behalf of all parties to a contract or transaction. For example, when real
property is conveyed, notaries act for both the seller and buyer. They are subject to legal
professional privilege and are therefore duty-bound not to betray client confidentiality,
Duty to act with reasonable diligence
Notaries must apply due diligence to the conduct of their clients’ affairs. They must
acknowledge instructions received, reply promptly to letters and keep their clients and
correspondents informed as to the progress of events.
Inordinate delay in performing work, with resultant actual or potential prejudice to the
client, amounts to professional misconduct.
Conflict of Interest
A notary public is not prohibited from notarizing for relatives or others, unless doing so
would provide a direct financial or beneficial interest to the notary public. However care
should be exercised if notarizing for a spouse or a domestic partner.
The following situations provide guidelines for when a notary public would have a direct
financial or beneficial interest to a transaction are;
• If a notary public is named, individually, as a principal to a financial transaction.
• If a notary public is named, individually, as any of the following to a real property
transaction: beneficiary, grantor, grantee, mortgagor, mortgagee, trustor, trustee, vendor,
vendee, lessor, or lessee.
A notary public would not have a direct financial or beneficial interest in a transaction if a
notary public is acting in the capacity of an agent, employee, insurer, attorney, escrow
holder, or lender for a person having a direct financial or beneficial interest in the
Because a notary is a legal practitioner the same duties of care and competence expected
from an ordinary attorney are of equal application to the former.
In Honey & Blanckenberg v Law 1965 RLR 685 (G) at 691 (1966 (2) SA 43 (R) at 46), Goldin J
“An attorney’s liability arises out of contract and his exact duty towards his client depends on
what he is employed to do … In the performance of his duty or mandate, an attorney holds
himself out to his clients as possessing adequate skill, knowledge and learning for the
purpose of conducting all business that he undertakes. If, therefore, he causes loss or
damage to his client owing to a want of such knowledge as he ought to possess, or the want
of such care as he ought to exercise, he is guilty of negligence giving rise to an action for
damages by his client … Where an action is brought by the client against his attorney for
negligence, the [client] must prove that
As highlighted above the general common law ethical standards expected from an ordinary
lawyer apply mutatis mutandis to the specialised notary public. Legal practitioners must be
truthful, honest, candid and fair in all their dealings. This is an all-embracing and inflexible
When considering applications for the registration of notaries, the High Court must consider
whether the applicant is a fit and proper person to be registered. This means that an
applicant must be a person of honesty and reliability. In Hayes v the Bar Council 1981 ZLR
183 (A) at 199–200 Fieldsend CJ said:
“So far as possible the court must be satisfied that an applicant will be able with honesty
and balance to perform the duties of an advocate to the advantage of those he is called
upon to represent. … In addition, the profession of advocate and attorney requires the
utmost good faith from practitioners and from all aspirant practitioners … An advocate,
whose main duty it will be to represent his clients before the courts, must be a person in
whose reliability and integrity the court must be able to place complete trust, it always
being remembered that an advocate owes a duty at least as much to the court as to his
client. And the court must be satisfied that he will not be his behaviour do anything to
bring the courts or the profession into disrepute.”
This goes further than legal practitioner-client privilege. Anything that would be protected
by legal practitioner and client privilege under the law of evidence must be kept confidential,
but even communications which are not privileged must be kept confidential unless the
client consents to their being disclosed. Confidentiality extends to any information gained
while acting for one’s client.
Even information that has become an open secret (e.g. a sale of immovable property whose
details are documented in the Deeds Registry) must not be divulged without the client’s
consent. Gossiping about matters in hand, even if the client is not named, is unethical.
Even if a legal practitioner has withdrawn from a matter, information divulged to him by his
former client is confidential, even so far as the client’s new legal practitioner is concerned.
The client’s death does not terminate the need for confidentiality, except in regard to
matters concerning the administration of the client’s estate.
A change of legal practitioners does not terminate the need for confidentiality either.
Without the former client’s consent, the old legal practitioner may not disclose confidential
information without the client’s consent, even for the purpose of putting the new legal
practitioner in the picture regarding the client’s affairs.
Section 23 of Lp Act Cap 27:07 sets out various forms of unprofessional, dishonourable or
unworthy conduct on the part of legal practitioners. A practitioner must not:
Tout or advertise.
Contravene the Act or any regulations, rules or by-laws made under it.
Withhold any payment of trust money without lawful cause.
Enter into a champertous transaction, except as permitted by the Act.
Permit anyone who is not a legal practitioner to receive any fee or income
in respect of work restricted to a legal practitioner.
Open or maintain an office which is not under continuous personal
supervision of a legal practitioner.
Keep books of account for his practice jointly with an unregistered person.
Remunerate anyone who is not a legal practitioner by way of a share in the profits.
Tender in response to an advertisement to perform legal work. 1
Help an unregistered person recover charges for services by including
those charges in his own bill of costs, without disclosing that fact.
Allow his name to appear in an advertisement or letter-head in conjunction
with an unregistered person’s name, giving the impression that he is associated with
that other person in the practice of the profession of law.
Place himself under the control of an unregistered person so as to
compromise his professional independence.
Levy fees that are lower than the prescribed minimum.
Note that the list is not exhaustive: sec 23(2) allows the Council of the
Society or the Disciplinary Tribunal or a court to determine that other types of
conduct constitute unprofessional, dishonourable or unworthy conduct
Touting and advertising
Legal practitioners may not tout (i.e. solicit for business or pester customers) Law Society v
Cape v Berrangé 2005 (5) SA 160 (C), a practitioner was held guilty of touting where he
entered into “marketing agreements” with estate agents whereby he rewarded them for
referring conveyancing work to his firm .The argument in Berrange case is equally applicable
for notaries. Nor may they advertise the Law Society in its guidelines, published in 2000 .
provides for exceptions. These may be summarised:
1. Legal practitioners must conduct themselves in a manner consistent with the good
reputation of the profession. Any publicity must be in good taste with regard to
both content and usage and must not be misleading. Advertising must not
compromise or impair:
the practitioner’s independence or integrity or duty towards his client;
the client’s freedom to instruct a legal practitioner of his choice;
the legal practitioner’s duty to act in the best interests of the client;
the good repute of the practitioner or the profession;
the proper standard of the practitioner’s work.
2. A firm’s name and address may appear in bold type in a telephone directory and
also in the yellow pages under the title “legal practitioners”.
3. Business cards can be given only to people who reasonably need to have a record of
the information contained in them.
4. No advertisement may name the firm’s clients, and a practitioner may refer to a
client’s name in the public media only with the client’s written consent.
5. No advertisement may compare the services of the firm with those given by any
other legal practitioners, nor may it refer to a legal practitioner’s success rate.
No advertisement may compare the legal practitioner’s charges with those of
7. No advertisement or publicity may state that a practitioner will undertake specific
kinds of work for a specific charge.
8. An advertisement may state that the legal practitioner undertakes a particular class
of work only if he is able and qualified to do that work competently.
9. An advertisement may state that a firm is a specialist in a particular branch of the
law only if it has the requisite expertise in that branch.
10. A legal practitioner may give interviews to the press and take part in radio or
television broadcasts, and may state his name and the name of his firm. But he
must not refer to the name of a client without the client’s written permission
Fees and Costs
General principle: making a profit should not be the primary goal of a legal practitioner.
Only reasonable fees are permitted. The Law Society regularly issues a tariff of fees which
should be charged in the absence of the client’s written consent. The tariff fees can be
varied according to:
1. The complexity of the matter or the difficulty or novelty of the questions involved.
2. The specialised knowledge, skill or responsibility required of the practitioner.
3. The place where or circumstances in which the business is transacted.
4. The amount or value of the money or property involved.
5. The importance of the matter to the client.
In many cases, the fees vary according to the practitioner’s seniority
This means the extracting of unconscionable, excessive or extortionate fees by a legal
practitioner, through taking undue advantage of a client.2 Deliberate over-charging amounts
to misconduct and the legal practitioner must avoid manifestly excessive charging,
particularly if the client is ignorant. Exceeding the Law Society’s current tariff of fees is
unprofessional conduct, and the Society is likely to regard any of more than 30 per cent
above the recommended rate as “materially different”.
On the other hand, as was said in Cape Law Society v Luyt 1929 CPD 281:
“[I]f the prospective client is a free agent, if there is no overreaching, no fraud or duress,
no taking advantage of him, then if the client chooses voluntarily to agree to an
extravagant fee, I cannot say that there would be misconduct.”
Overreaching extends to people other than clients. A legal practitioner must not assist a
client to recover from a debtor more than is lawfully due, and thus to overreach the debtor.
For example, collection charges must not be included in an amount demanded from a
debtor when they are not claimable.
More generally, a legal practitioner should not assist a client to act dishonourably, e.g. by
negotiating an unfair contract on his behalf.
This is also unprofessional conduct, because it is regarded as a form of touting for custom.
The Law Society’s tariff of recommended fees is in fact a tariff of minimum fees .
A legal practitioner must charge adequately and properly for his professional services unless
he or she is acting pro Deo or pro amico.
This is something that must be borne in mind by corporate lawyers. In Law Society of
Zimbabwe v Lake 1988 (1) ZLR 168 (S), a corporate lawyer sought permission to undertake
conveyancing work on behalf of his employer. Conveyancing is work reserved for
conveyancers (then legal practitioners). The court held that he could not do so. The
performance of any “reserved work” (i.e. appearance in court and the preparatory work that
precedes such appearance; notarising documents; and conveyancing) must be done by
independent practitioners, not by employees on behalf of their employers.
“I think it is a fair proposition that any non-registered person who takes into his employ a
registered legal practitioner in order that he may practise the profession of law on his
behalf poses a potential threat to the professional independence of the practitioner. The
mere fact that the practitioner subordinates himself as a servant puts his independence in
the practice of his profession in jeopardy.” (p. 180D)
This does not apply to legal practitioners in the employment of the State (p. 177E-F)
A notarial deed is defined as meaning a deed attested by a notary public, but does not
(a) a document with a signature which is merely authenticated by a notary public ;or
(b) a copy of a document which has been certified as correct by a notary public; see S2 of
Deeds registry Act.
Notarial acts have a high degree of authority and are considered probative instruments,
received as firsthand and primary evidence in court, and thereby accorded high evidentiary
value and executory force, and deemed to be proof of their contents. A notarial instrument
also fixes the date at which its parties are bound without prior delivery and acceptance (as
opposed to a deed or contract under common law) and the data
(1)Notary public is an authorized executive that is capable of acting as a consistent,
unprejudiced witness for the signing of significant documents. Moreover, a notary public
also acts as a fair-minded third party for parties intending to enter into a legally binding
(2) Presumption of regularity; A notary public renders his official duties by marking documents
with his signatures and a distinctive personalized stamp or inked seal. Further a document
that has been witnessed by a notary public has been notarized. Such document is thereafter
considered as authentic and can be used worldwide as proof of the original. - By certifying
the authenticity of the signing parties, a notary public offers organizations and individuals to
enter into contracts as well as carry out businesses with a reassurance that the notarized and
commissioned documents will be recognized in court, by virtue of being an official act, a
presumption of regularity attaches to the instrument, meaning all prescribed formalities
have been carried out, including the reading over of the instrument.
(3)Notary public is a great way to protect against fraud because it is a requirement that the
signatory of a legal document has to establish his or her identity
4) The appearer always walks away with an instrument that is self-executing, that is, it
requires no further implementing action to be effective and enforceable, just like a court
5) Notarial instruments cannot be altered or overridden by pre-existing or subsequent
private instruments (instruments under hand, deeds, contracts). In other words, for
example, a notarial will could not be amended or superseded by a non-notarial codicil or
will. They also estop (preclude) the appearer(s) from raising most defenses for setting aside
the instrument, including: (1) non es factum, (2) the contents of the instrument do not
correctly express the appearer's intentions, or (3) that there are reasons why the instrument
should not take effect (ultra vires, improper execution, etc.).
In short notarised documents have the following status at law. Notarial instruments, if prima
facie duly executed, are:
Presumed valid and regular;
self-executing; and
have a fixed, unalterable effective date (data).
It is the original document executed before a Notary Public and which must be signed by
him, the parties to the transaction and the witness.
All minutes must be recorded by the Notary Public in his protocol register and must be
preserved in his protocol.
It consists of the original documents which were executed before a Notary Public. It is a
place in which all notarial documents are kept in their order of execution. Only documents
which comply with the definition of a notarial deed and are registrable in the Deeds Registry
must be recorded and kept in the protocol
Protocol Register
It is a book which contains particulars of all documents which are filed in the Notary Public’s
protocol. These particulars are put in alphabetical order.
A Notary Public is obliged to keep all notarial documents in order. This was stated in
Incorporated Law Society v Van Eyk 1910 CPD 254 at pg261 wherein Maasdorp JP said:
“carelessness in the custody and preservation of deeds is one of the greatest faults a notary
can be guilty of and unless it is rigorously dealt with it would render the office of a notary
wholly worthless.”
It is a copy of a minute. It is a re-typed copy of the original document but it does not
provide spaces for the appearers and witnesses to append their signatures. It is signed by a
notary public and ends as follows:
“Signed by the parties and the witnesses in my presence
Authentication and Certification of a document?
Authentication of documents is the process by which a notary public certify the identity of
the signatory of the document by affixing a certificate to the document which verifies the
authenticity of the signature of the person who signed it whereas certification of a
document is where a notary public or commissioner of oaths confirms that a document is a
true copy or a duplication of the original document.
The main difference is that authentication verifies the truthfulness of the signature on the
document and the identity of the person who signed it whilst on the other hand certification
only confirms that the document is a true copy of the original. When authenticating a
document a notary public also verifies the capacity of the person who signed the document.
On the other hand certification only confirms that the contents of the duplicate are the
same as those on the original document. This means that the contents of an authenticated
document can be a legally acceptable as true while those of a certified document cannot.
When authenticating a document a notary public issues a notarial certificate of
authentication this means that a seal will be placed on the document whereas when
certifying a document he simply stamps and signs.
Certification of documents can be done by both a notary public and a commissioner of oaths
while authentication can only be done by a notary public, as will be shown later.
Moreover, for authenticated documents the notary public would be required to keep an
original in his protocol which is known as a minute whereas for certification the
commissioner of oaths is not obliged to keep a copy of the original document
According to the Hague Convention (Abolishing the Requirement for legalization of
documents 1961), authenticated documents are legally acceptable to be used in foreign
jurisdictions whereas commissioned documents are principally used within the jurisdiction
of certification3, hence the purpose and function of the documents varies.
Under what circumstances can the Hague Convention be utilized for the
authentication of documents?
The Hague Convention (Abolishing the requirements of legalization of foreign public
documents) specifically provides guidelines as to the procedures for authentication of
documents for foreign use; hence it abolished the traditional requirement of legalization of
documents. Therefore as the convention becomes binding on states upon acceptance by the
respective state, the answer will seek to provide requirements to be met first for the
convention to apply with equal force for authentication purposes
When can the Convention be utilized?
It is worth to note that the applicability of the document depends greatly on the respective
state being a signatory to the Convention. Such a prerequisite is emphasized by the
preamble of the Convention which notes that, “The states signatory to the present
Convention…” therefore the Convention would automatically not apply if a state is not a
signatory to the Convention. Moreover, other states require domestication of International
Conventions thus such a requirement would also be complimentary on the signatory
prerequisite s 11B of the Constitution. In a nutshell the convention would only apply and be
recognized if the state seeking to utilize it is a signatory.
In addition, the recipient foreign State ought also to be a contracting State and signatory to
the Hague Convention in order for the Convention to apply thus abolishing the traditional
requirement of legalization. This is aptly outlined in the Preamble, and mainly Article 2
which notes that,
“Each Contracting State shall exempt from legalisation documents to which the present
Convention applies and which have to be produced in its territory. For the purposes of the
present Convention, legalisation means only the formality by which the diplomatic or
consular agents of the country in which the document has to be produced certify the
authenticity of the signature, the capacity in which the person signing the document has
acted and, where appropriate, the identity of the seal or stamp which it bears.”
Therefore, the states ought to be reciprocally signatory to the Convention lest the
Convention falls away and the traditional legalization procedure applies. In a nutshell, both
States must be signatory to the convention.
Furthermore, the Hague Convention only applies to a specific group of public documents as
postulated by Article 1 of the Convention. Therefore, the convention does not apply to
documents4 not outlined in Article 1 and thus to Article 1 provides that,
“The present Convention shall apply to public documents which have been executed in the
territory of one Contracting State and which have to be produced in the territory of another
Contracting State.
For the purposes of the present Convention, the following are deemed to be public
a) documents emanating from an authority or an official connected with the courts or
tribunals of the State, including those emanating from a public prosecutor, a clerk of a court
or a process-server ("huissier de justice");
b) administrative documents;
c) notarial acts;
d) official certificates which are placed on documents signed by persons in their private
capacity, such as official certificates recording the registration of a document
or the fact that it was in existence on a certain date and official and notarial authentications
of signatures.
However, the present Convention shall not apply:
a) to documents executed by diplomatic or consular agents;
b) to administrative documents dealing directly with commercial or customs operations.
In addition, the purpose of the document would also play a significant part in determining
applicability of the Convention. Hence, only public documents to be used in foreign
jurisdictions for administrative purposes like courts, registrations (legally admissible) would
fall under the purview of the Convention. Moreover, the purpose of the documents ought to
totally tally with the objectives of the Convention as stipulated in various Articles within the
It is also prudent to appreciate that those only authenticated documents by persons
satisfying Article 6 and 7 respectively would be legally accurate under the Convention.
Therefore, in order for the convention to be utilized, member states as noted in Para 1
should have appointed agents recognized to authenticate documents and also able to legally
attach “Apostille” and “allonges”. This was also noted in the Conclusions and
Recommendations of the Special Commission on the practical operation of the Hague
Apostille, Evidence and Service Conventions (28 October-4 Nov 2003)
Conclusively, the Hague Convention requires antecedent requirements like the above
mentioned to be satisfied in order for its operation as far as authentication of documents is
procedure followed to administer an Oath in respect of an affidavit.
Before a Commissioner of Oaths administers to any person an oath or affirmation in respect
of an affidavit, he shall ask the deponent:
Whether he knows and understands the contents of the declaration,
Whether he has any objections to taking the prescribed oath, and
Whether he considers the prescribed oath to be binding on his conscience
If the deponent acknowledges that he knows and understands the contents of the
declaration and informs the Commissioner of Oaths that he does not have any objection to
taking the oath and that he considers it to be binding on his conscience, the Commissioner
shall administer the oath by causing the deponent to utter the words, “I swear that the
contents of this declaration are true, so help me God”.
Where the deponent acknowledges that he knows and understands the contents of the
declaration but informs the Commissioner of Oaths that he objects to taking the oath or that
he does not consider it to be binding on his conscience, the Commissioner administers an
affirmation by causing the deponent to utter the words, “I truly affirm that the contents of
this declaration are true”.
The deponent then signs the declaration in the presence of the Commissioner of Oaths.
Where the deponent cannot write, he shall, in the presence of the Commissioner of Oaths,
affix his mark at the foot of the declaration.
Where the Commissioner of Oaths has any doubt as to the deponent’s inability to write he
shall require the inability to be certified at the foot of the declaration by some other
trustworthy person.
The Commissioner of Oaths then certifies that the deponent has acknowledged that he
knows and understands the contents of the declaration below the deponent’s signature or
He shall also state the manner, place and date of taking the declaration.
The Commissioner of Oaths shall then sign the declaration and print his full name and
address of business below his signature, stating his designation as well.
Deeds Registries Regulations SI 249/1977
1. Alterations and Interlineations
Regulation 4 provides that such interlineations and Alterations shall be initiated by the
person executing the document and by the attesting witnesses; if there are any. And if the
alteration or interlineations in a document has been attested by a person who was not the
original attestor of the document, the document should be signed by persons attesting the
alteration or interlineations.
Section 10(2) of the Deeds Registries Regulations provides that a Legal Practitioner shall
initial any alternation, addition or interlineations in any document prepared by him
especially those provided for in section 13.
Section 53 states that the Registrar shall refuse to accept for registration any document
other than a notarial deed if such document is not endorsed or initialled as required by
these regulations.
S3(4) states that in any document, any space which has not been used shall be ruled
2.Documents in Foreign Language
Regulation 5, the Registrar is empowered to accept for registration documents in foreign
language provided a translation by a competent translator is lodged therewith. But
generally all documents must be in English language.
3.Date and Place of Execution
Section 7 provides that a document tendered for registration or record purposes shall
disclose the place and date of execution unless the Registrar orders otherwise. The Registrar
may dispense with the requirements of this section if in his opinion the nature of the
document makes it unnecessary to comply with such requirements.
4.Photographic and Carbon Copies
Regulation 3(3)(a) and (b) states that the Registrar has the discretion to accept a
photographic copy of any document for record purposes only and shall not accept carbonic
copies of any document for registration and filing.
Regulation 3(1)(b) documents should be written in legible characters using permanent black
or blue ink, is the general position of which section 3(3)(a) and (b) are exceptions.
5.Description of areas of land
Regulation II provides that any area of land described in a document shall be shown in
figures viz in hectares or square metres. There is need to lodge the document with the
relevant diagram endorsed and certified by the Surveyor General.
. The Registrar of deeds may refuse to register a document that has one or
more physical defects in terms of the Deeds Registries Regulations RGN No
249 of 1977.Below are some examples;
If the document is not written in the English language and not upon strong white paper of
the international standard paper size A4 (297mm x 210mm) and without a clear margin of at
least 35mm on the left side thereof or if it is written on both sides, on the right hand side
also in terms of section 3 (1) (a)
If it is not written in legible characters and not written using permanent black or blue black
ink or if copying ink is used in terms of section 3 (1) (b).
If the upper half of the first page is not left blank for the purposes of office endorsements as
required by section 3 (2).
If any space which has not been used in the document has not been ruled through as
required by section 3 (4).
Where the document consists of more than one page, if the necessary catchword has not
been written at the bottom of each page. Section 3 (5).
Where a document is expressed in foreign language, if the translation thereof has not been
certified by a person accepted by the registrar as a competent translator. Section 5
If the writing in the document has been rendered illegible due to faintness or the folding of
the document. Section 6
If the document does not specify the identity of any person mentioned therein in
accordance with the provisions of section 51. Section 8 (1)
If a document adds aliases or assumed names to any name. Section 8 (2)
Where a document refers to a document filed in the deeds registry, if it does not quote the
number and date necessary to identify the filed document. Section 9
Where a document is in favour of a corporate body, if the relevant extract from the
constitution of the body has not been filed of record to show that the transaction concerned
is within the powers which may lawfully be exercised by the body concerned. Section 12 (1)
A Notary public is an agent of a principal; therefore we make use of a power of attorney.
Definition; this is a document in which authority is given to another to act on behalf of a
person for example to create a notarial deed for a servitude ,to sign documents ,to accept a
donation etc.
Not only may a notary draw a power of attorney. However a power of attorney drawn by a
notary enjoys a particular status. The grantor of a power of attorney is competent to prepare
a power of attorney on his own .Such a power of attorney is referred to as an underhand or
private power of attorney and is adequate for ordinary everyday purposes .A power of
attorney to pass transfer must however be passed by an attorney, Conveyancer or a notary.
There are two types of powers of attorney, special power of attorney and general power of
attorney. With special power of attorney specific authority is given, for example to create a
collateral notarial bond.
General power of attorney gives general or wider powers to act on behalf of another.
Note however if you are to use the general power of attorney, the original must be filed
together with a copy, one copy will be returned to the agent.
(1)The Heading
(2)Grantor;Person giving the authority, she or he is the owner of the property.
Note if its a Corporate body there must be proof for example
‘I....duly authorised thereto by resolution of the meeting of board of directors of Sunshine
Limited dated the 27 of November 2013.’
(3)Grantee; Person in whose favour the power of attorney is passed
4Execution clause; Grantor then signs the power of attorney. It depends on where it has
been signed. The following provisions of the Deeds Registry Act apply;
S78 Attestation of powers of attorney
Powers of attorney to pass deeds or to do any act in connection with a deeds registry shall—
(a) if executed within Zimbabwe, be accepted if witnessed by two competent witnesses or
by a justice of the peace or commissioner of oaths and the signature of each such witness,
the justice of the peace or commissioner of oaths, as the case may be, has been affixed
thereto in the presence of the person executing It ;
(b) if executed outside Zimbabwe ,be accepted if authenticated—
(i) by a legal practitioner, mayor or person holding judicial office ;or
(ii) in the case of a country or territory in which Zimbabwe has its own diplomatic or
consular representative, by the head of a Zimbabwean diplomatic mission, the deputy or
acting head of such mission or a counsellor, first, second or third secretary, consul-general,
consul or vice consul.
A power of attorney terminates
1)On execution of the mandate
2)On completion of the period for which the power of attorney was originally granted
3)On the death of the representative
4)On impossibility of execution
5)When the principle is legally in cable of having his own will for example mentally incapacitated
6)On cancellation of mandate by representative
7)On revocation of the power of attorney by the principal
Ex Officio Commissioners of Oaths: Designation Notice SI 648/1983:Justices of the Peace
and Commissioners of Oaths (General) Regulations RGN 1205/75
A Commissioner of Oaths is someone who has been given the power to administer and
witness oaths. In order to be valid, an oath must be taken before a Commissioner of Oaths
or a court. An oath is a solemn declaration that a statement is true, and is often needed
notary public. The Commissioner ensures that the oath is properly administered in
accordance with the law.
The person taking the oath is called the deponent or the declarant. Validity of the document
is the deponent's responsibility, not the Commissioner's, as the Commissioner can only
verify that the oath has been administered correctly.
In Zimbabwe the appointment of Commissioners is by the Minister of Justice and Legal
Affairs see S6 of the said Act. By virtue of their office, legal practitioners (Notaries) and all
judicial officers like magistrates are automatic commissioners of oath, ex officio S7, who do
not need to be appointed and, as such, entitled to administer oaths.
Although in the past it was considered unethical for a legal practitioner to charge for acting as
a commissioner of oaths,S10 (2) of the Justices of the Peace and Commissioners of Oath
Act reads:
“Any justice of the peace or commissioner of oath who charges or demands any fee or reward
for doing anything in his capacity as a justice of the peace or commissioner of oath, as the
case may be, shall be guilty of an offence and liable to a fine not exceeding level seven or to
imprisonment for a period not exceeding one year or both such fine and such imprisonment.”
The Law Society Council has recently ruled that a commissioner of oaths may charge for
certifying copies on the following basis. To administer the oath/affirmation $10,00
,Certification per page $ 4,00
Under S 8 of the Act, commissioners of oaths may not administer oaths in any case in which
regulations prohibit them from doing so or if the commissioner has reason to believe that
the person concerned is unwilling to take an oath. A Commissioner of oath must ensure that
he does not have any interest (material or moral) which is adverse to his client’s interest .
Section 2(1) of the Justices of the Peace and Commissioners of Oaths (General)
Regulations, 1998 (SI 183 of 1998):
“No justice of the peace of commissioner of oaths shall attest any affidavit relating to a
matter in which he has any interest.” If he has any interest in the matter to which the
affidavit relates [section 2(1) of Justices of the Peace and Commissioners of Oaths
(General) Regulations RGN 1205/75]. Thus, a legal practitioner may not swear an
affidavit in respect of any matter in which his firm is involved. In the recent case of
Phillips in re Post and Telecommunications Corp & Ors HB-109-93 Manyarara AJ held
that an opposing affidavit in an application was to be disregarded because it was attested
to by a partner of the firm representing the party and was therefore invalid. There was no
opposition to the claim which was granted on the merits.
However, a legal practitioner may attest an affidavit in matters in which he is
involved in the following circumstances.
-1. for a record in the Deeds registry relating to a date of birth, nationality,
matrimonial status, amendment of names or lost deeds or documents.
-2 for a record in any office of the State or a city, municipality, town or rural
council, local board or regional authority.
-3. for the Registrar of the High Court or the Clerk of an inferior court for
placing on record any extracts from the Government Gazette or certificates
of appraisement of sworn appraisers. [Section 1 of the Schedule to Justices
of the Peace and Commissioners of Oaths (General) Regulations RGN 1205/
-4. If he has reason to believe that the deponent is unwilling to make an oath [section
8(b) of the Act].
Duties of a commissioner of oaths
When swearing an affidavit the commissioner of oaths must authenticate the affidavit
by fixing his seal or stamp to it. If he has no stamp or seal he must certify the affidavit
accordingly [section 8(2) of the Act].
A commissioner of oaths may never attest a document which he knows is false.
A commissioner of oaths may never change a document after it has been sworn unless
the deponent swears to the change and any alteration is signed by both the deponent
and the commissioner of oaths.
A commissioner should not authenticate a signature where he has not seen the signatory sign , see S
v Hurle and others 1998 (2) ZLR 42 (H) at 50, and he should not sign or procure the signature of
blank documents, e.g. powers of attorney
Certifying copies of documents
Legal practitioners are frequently asked to certify copies of documents. Strictly
speaking they should only do so as notaries but it is common practice to certify
documents and such documents are widely accepted. When certifying copies the
commissioner of oaths must have sight of the original document and should endorse
on the copy the following words.
“Certified a true copy of the original.
Dated ....
(Name) .......... Commissioner of oaths”
What is the difference between a Commissioner of Oaths and a notary?
Basically, a notary has more power than a Commissioner of Oaths.A Commissioner of Oaths
cannot verify that a statement is true, simply that the proper procedures have been followed.
Notarization as performed by a notary, is the verification of a document as valid. In addition,
a notary can draw up documents, such as contracts and deeds.
A Notary Public can act as a witness, but a Commissioner cannot notarise anything
A servitude is a limited real right which entitles the holder of such right to use or to the
enjoyment of another person's property or to insist that such other person shall refrain from
exercising certain rights of ownership over his property which he would have if the servitude
did not exist. A servitude cannot impose the performance of a positive duty on the owner of
the property.
LORENTS V MELLE defines a servitude as a right belonging to one person in the property of
another entitling the former either to exercise some right /benefit in the property /to refrain
the later from exercing one or another of his normal rights of ownership...its an example of a
ius in re aliena,it diminishes an owners dominium in a thing.
Generally you can not obtain a servitude on your own pi\ece of land ,however if say you are
a co owner with another, you can acquire a praedial servitude over the servient land see
A praedial servitude has been defined as a limited real right which confers on its holder in
his capacity as owner of land (dominant tenement) certain entitlements of use and
enjoyment over the land (servient tenement) of another .See Brink P.D. Notarial
Practice. Pretoria: University of South Africa, 2007. Pg 146
Personal servitude
A personal servitude is a limited real right which confers on its holder in his personal
capacity certain entitlements of use and enjoyment over the movable or immovable
property of another for a specified period or for the life time of the holder.
No personal servitude of usufruct, usus or habitatio or any transfer or cession thereof
purporting to extend beyond the life time of the person in whose favour it is created shall be
registered. See Section 58 of DR Act.
Grants holder of the servitude in her capacity as owner of land (dominant tenement)certain
entitlements of use and enjoyment over the land(servient tenement)of another. Therefore it
always vests over a piece of land
The definitions show a clear distinction between praedial and personal servitudes.
Firstly it must be pointed out that a praedial servitude vests in a person by reason of his
ownership of certain piece of land whereas the vesting of a personal servitude is not
dependent on ownership of certain piece of land by its holder. For a praedial servitude the
two lands must be adjacent and be in close proximity to each other. It can also be seen that
personal servitudes are not limited to immovables but also apply to movable property.
A praedial servitude relates to two pieces of land. It is constituted in favour of one piece of
land which is called the dominant tenement over another piece of land called the servient
tenement.5 By contrast, a personal servitude is constituted in favour of an individual on
whom it confers the right to use and enjoyment of another person's property. A praedial
servitude confers a benefit on the dominant tenement and imposes a corresponding burden
on the servient tenement. It is important to note that legal relationships exist between
persons and not things and that the right of servitude can only be exercised by a person and
be enforced against another person. Thus a praedial servitude is vested in the owner of the
dominant land who is entitled to enforce it against the owner of the servient tenement.
It follows from the above that a praedial servitude is registered against the title deeds of
both the dominant and the servient tenement whereas a personal servitude is only
registered against the title deeds of the servient tenement. Notice must also be taken of the
fact that the reasoning for having a praedial servitude registered against both title deeds is
premised on the reasoning that praedial servitude binds successors in title of both lands,
and strictly speaking personal servitudes can only be registered if they bind the successors in
title of the servient tenement.
The praedial servitude is exercised by the owner of the dominant tenement and his
successors in title against the owner of the servient tenement and his successors in title.
Neither the benefit nor the burden can be detached from the piece of land on which it is
conferred and imposed respectively. The burden and the benefit 'run with the land'. On the
other hand, a personal servitude vests in the holder personally and so it is not transferrable
by its holder. This was articulated in the case of Willoughby's Consolidated Company Ltd v
Copthall Stores Ltd where the court held that the right conferred by a personal servitude is
inseparably attached to the beneficiary. He cannot transmit it to his beneficiary or alienate it
and when he dies, it perishes with him.
However it seems that some personal rights can by agreement be made perpetual and
transferrable. This mainly relates to mineral rights. It is essential to note that some texts
refer to them as quasi-servitudes or real rights sui generis. The critical point to note is that
some personal servitudes commonly referred to as personal servitudes par excellence, like
usus, habitatio, usufruct, are strictly personal and end with death. This is reinforced by
section 59 of the Deeds Registries Act [Chapter 20:05] which provides that the personal
rights of usus, habitatio and usufruct shall not be registrable.
A praedial servitude is indivisible whereas a personal servitude is divisible. For a praedial
servitude this means that the owner of the dominant tenement cannot acquire a servitude
only in favour of his undivided share. For a personal servitude this means that a personal
servitude may be granted in respect of an undivided share in property which is jointly
Section 58 Requirements for preparation and submission of deed of servitude
(a) contain a full description of any land against or in favour of which the servitude is to be
registered or endorsed, including the numbers and dates of the title deeds, and the full
names of the grantor and, where practicable ,the grantee of the servitude; and
(b) be executed by the owner of the land encumbered by the servitude and the owner of the
land in favour of Which or the person in whose favour the servitude is being created:
Provided that, where the servitude is being created in favour of the public or of all or some
of the owners or occupiers of stands or lots in a township, the registrar may, if in his opinion
it is impracticable for Such persons to execute the deed, dispense with such execution of the
deed; and`
(c) be attested by a notary public: Provided that this paragraph shall not apply to a deed of
servitude such as is referred to in section sixty-three if the signature of each person
executing the deed is witnessed by two competent witnesses or by a commissioner of oaths
and the signature of each witness or the commissioner of oaths, as the case may be, has
been affixed thereto in the presence of that person.
(2) Two signed originals or a signed original and a copy certified by notary public shall be
submitted to the Registrar for registration.
Registration of a servitude
Provision under section 57 apply (3) In registering any servitude which is being created in
terms of subsection (1), a registrar shall—
(a) where the servitude is being created in terms of paragraph (a) of subsection (1), endorse
the title deed of—
(i) the land encumbered thereby; and
(ii) any land in favour of which that servitude is being created; or
(b) where the servitude is being created in terms of paragraph (b) of subsection (1) and the
title deed in which the servitude is being created relates to—
(i) the land in favour of which that servitude is being created, endorse the title deed of the
land encumbered thereby ;or
(ii) the land encumbered thereby, endorse the title deed of any land in favour of which that
servitude is being created.
Cancellation of registration of servitude
Section 60 provides steps to be taken for different situation;
(1) Subject to subsections (2) and (3), cancellation of the registration of a servitude in
pursuance of an agreement between the owner of the land encumbered there by and the
holder of the servitude shall be effected by notarial deed.
(2) If a servitude is mortgaged or the dominant tenement is mortgaged, the consent in
writing of the holder of The bond to the cancellation of the registration of the servitude shall
be produced to the registrar.
(3) Cancellation of the registration of a personal servitude may, subject to the agreement
constituting the servitude, be effected by lodging with the registrar a written consent by the
holder of that servitude for the cancellation of the servitude.
(4) If for any reason a servitude has lapsed, the registrar shall, on written application by the
owner of the land encumbered thereby, accompanied by proof to his satisfaction of the
lapse of the servitude and by all the deeds Affected thereby, note on such deeds that the
servitude has lapsed.
A name change is a legal act recognised in practically all legal systems that allow an
individual to adopt a name different than their birth name. Changing a surname can only be
done by a notary public.
Under common law, prescribed formalities and technical procedures, to the change of one’s
surname, are non-existent. The common law allows a person to freely change his surname
without any impediments. The classic case of Ex parte Halfsland 1917 CPD 529 at530
highlights this proposition. In that case the court stated that the court does not have the
power to authorise a person to change his surname but there is nothing preventing a person
from doing so. A similar decision was reached in M v A and Anor 1981 ZLR 306, wherein
Gubbay J stressed the point that under common law one could change their surname
whenever they thought like it.
A notable example would be in regard to women. Upon marriage the wife may assume her
husband surname. All that is required for her maiden surname to cease and the husband’s
surname to flourish, a woman would begin to call themselves by the surname of their
Basically, for one to successfully change a surname under common law all they have to do is
to use that surname, consistently openly and in a non-fraudulent manner
The test was simply that one had to adopt a surname, to the extent that the public
acknowledges him by the new surname and that such surname should not be injurious to
public interests.
In as much as one enjoys unfettered right to change their surname, the situation is not the
same with children, consent of the father was a necessity. A passage in the English case of
Re I (Otherwis H)(an Infant)(1992) 3 ALL ER 970 at 971 Buckley J said:“a child of a tender age cannot of their own motion change their surname as this involves
a conscious decision which primary right resides with the father as the natural guardian.”
The rationale was that a minor is not competent to comprehend the intricacies and
significance/importance in the change of one’s surname.
Because our society is patriarchal, fathers are viewed as the family head bearing enormous
influence on the question of changing a minor’s surname. The case of Y v Y 1973(2) ALL ER
234 at 235 dealt with a situation whereby the parties had divorced and the wife had been
granted custody, a unilateral decision by the wife to change the surnames of the children to
acquire her second husband’s surname was viewed as an infraction on the residual rights of
the father as the natural guardian. It was held that under common law parties could change
their children’s surname anytime and that such change could only be effected if there was
consensus between the parents.
When a name is registered it cannot be changed without proper procedures being followed.
It is a crime to change the information on a birth certificate. A name which is not spelt
correctly can be changed easily. One goes to the Registry and fills in a BD 22 form and an
affidavit stating why the name was not spelt correctly. If the Registrar is satisfied, he /she w
ublic an inherent right to change a surname with very little legal impediment.
How to change one’s surname:
1)It is done by way of a Notarial Deed of Change of surname drawn by a Notary Public. In the
case of a minor there is need for consent of the guardian S18(3) In case of adoption
Children’s Act requires signature of adopter/guardian S71(1)(b)
2) Registration of Notarial Deed in the Deeds Registry s18(3)(a). The deed is stamped and
returned to the Notary. At this point the deed is examined for compliance with regulations
3) Advertised on the Gazette
A notice is published in the Government gazette showing that a person so changing a
surname it calls for any objections, for example that the change so actuated by malice or
A copy of the notice and the notarial deed are taken to the Registrar with application to
effect change of surname on Birth Certificate s18 (3) (b).
The relevance for requiring compliance with statutory provisions is to give legal recognition
to change of surname and its safeguard against fraud promoted by a malafide change of
surname – Notarial deeds are drawn by a notary public whose office is of great public
respect and regarded as of high esteem. For example notaries public are duty bound to
exercise care and caution in the drafting of notaries deeds.
The term donation refers to an agreement whereby a person gives or promises to give
something to another without receiving, expecting to receive or demanding anything in
consideration. The transaction enriches the done and not the donor in any way. Donations
are normally divided into two: a donation inter vivos and a donation mortis causa.
A donation inter vivos is a contract which takes place by mutual consent of the giver, who
divests himself of the thing given in order to transmit the title of it to the done gratuitously
and the donee who accepts the thing requires a legal title to it. A valid donation inter vivos
requires the intention of the donor immediately with pass title (not necessarily possession
to the done. It also requires delivery of the property to the done, which may be
actual/physical, constructive or symbolic. There has to be acceptance by the done as well
which is normally implied by silence and can only be negated by express rejection. Voet
holds that a donation is inter vivos even where the delivery of the donated res is to take
place after the death of the donor and where the donation is not made in contemplation of
death provided acceptance has to be done well before death.
Importantly, one all requirements are met, a valid gift inter vivos cannot be revoked by the
A donation mortio causa is a gift made by a person in sickness, who apprehending his
dissolution near, delivers or causes to be delivered, to another the possession of any
personal goods and keep as his own in case of the donor’s decease.
The civil law defines it to be a gift under apprehension of death as when anything is given
upon condition that if the donor dies, the done shall possess it absolutely or return it if the
donor should survive or should repent of having made the gift or if the done should die
before the donor. A gift in view of death is one which is made in contemplation, fear or peril
of death and with intention that it shall take effect only in case of the death of the giver.
A valid gift mortis requires:- donative intent, delivery, acceptance and additionally the
donor’s anticipation, at the time of the gift, of imminent death, the donor’s actual death. If
the donor recovers, the gift is automatically revoked. Similarly, if the done dies before the
donor, the gift is revoked. And, unlike a gift inter vivos, the donor may always revoke.
Meyers and Others v Rudolph Executors 1918 AD 70at 80.
The gift before she dies, even after the first four requirements above have been satisfied.
Also distinguishing gifts causa mortis is the fact that they must be gifts of personal property,
real property (interests in land, etc) cannot be conveyed by gifts causa mortis.
N.B. The key difference lies in the gift’s revocability.
This is the coming together of professional to form a body that will serve as the watchdog of
the profession. Membership in a voluntary association is by choice and not statutorily
required. In jurisdictions where the profession of notary public has developed, such
organisations have been formed. For example there such as the Notarial Association of the
Republic of Uruguay and the Societies of Notaries of New South Wales Inc. These are
outside bodies such as Law Societies to which all legal practitioners must be members for
them to practice the law. With regard to notarial practice, voluntary associations were formed
to achieve some of the following:
intellectual improvement of notary publics that stimulate the development of
solidarity principles among members.
prepare tariff of fees and Code of Notarial Ethics.
educate notary publics about legal, ethical and technical facets of performing a
notarial act.
serve as an information centre for notary regulating officials, educators and the
public with general inquiries about the location and certain aspects of notarial practice
thereby increasing public awareness and understanding of the notary’s functions in
modern society.
generally uphold and protect the character, status and interests of notaries.
Whilst there are no strict requirements for the formation of a voluntary association.
However it is critical to point out that under the Private Voluntary Organizations Act
[Chapter 17:05] in terms of section 6 a private voluntary organization as defined by the Act
shall be registered by the Registrar of Private Voluntary Organizations.
The governing document for a voluntary association is a Constitution. A constitution for a
voluntary association can be prepared by any of the members and signed by them without
the requirement of the services of a notary public. A constitution includes in its provisions
the main purpose and objectives of the association, its membership, governance structure,
and its rights and duties.
A voluntary association is membership based. It is membership based because people join it
at will to achieve a common object, and there are no paid staff in the voluntary association.
Assignment is a concept borrowed from English law which is commonly used to indicate the
transfer of rights and obligations in a contract. See Gibson SA Company and mercantile Law. It is
said to refer to a cession and delegation of rights and obligations occurring simultaneously.
This concept in our law is commonly found in lease agreements. Elliot states that in leases, it
means the substitution of a new lessee for the original lessee. This amounts to a complete
substitution which includes both rights and obligations. As it involves both the cession of
rights and the delegation of obligations, the original lessee and lessor as well as the third
party must consent to the assignment. This was aptly stated in the case of Farman v
Robertson 1971 (1) SA 115. where Corbett JA said that there is no doubt that generally
speaking, a contractual obligation cannot effectively be transferred from the debtor to a third
person by agreement unless the creditor consents thereto and agrees to accept the third person
as his debtor in substitution for the original debtor. Therefore, assignment cannot occur
without the lessor’s consent. However, where a tenant made an assignment without the
lessor’s consent, it was held in the case of Talas Properties of Rhodesia (Pvt) Ltd v
Abdullah1971 (4) SA 369 that where the lessor conceded that it would not reasonably have
refused consent to assignment, the assignment would not be invalidated on the grounds of
lack of consent of the lessor. A lessor may give his consent tacitly and a clause granting the
premises to a tenant, his heirs, successors or assigns renders the lease freely assignable. It is
important to note that assignment is not applicable to movable property.
Differences between Assignment and cession
There is a small, perhaps not material difference between cession and assignment. Cession
means simply to give up the rights. Assignment means affirmatively to convey to someone
those rights. Assignment and cession have the effect of vesting all or some rights and/or
liabilities under a contract in a third person. The two have been applied mainly in the law of
lease and they both are processes of transfer of rights. They can however be distinguished in
relation to the nature of the passing or transfer of the rights and/or obligations from one
person to another.
Cession is the process by means of which rights are transferred by one party (the cedent) to
another (the cessionary). No formality is required. All that is necessary is an agreement
between cedent and cessionary. According to Wille, “A cession is effected by an agreement
of transfer between the cedent and the cessionary arising out of a justa causa, from which
the intention of the cedent to transfer the right (animus transferandi) and the intention of
the cessionary to become holder of the right (animus acquirendai) appears or can be
inferred. See Willes
An assignment on the other hand is “the complete substitution of a third person (the
assignee) for one of the parties to a contract (the assignor). The assignee steps entirely into
the shoes of the assignor, replacing him both as creditor and debtor under the contract.”
From these definitions, the following dichotomy can be noted between cession and
assignment. When a party to a contract cedes rights acquired by him under the contract to a
third party, he effectively substitutes the third party for himself in his capacity as creditor.
But he remains the debtor in terms of the contract as far as the duties are concerned. With
assignment on the other hand the assignor is replaced both as creditor and debtor under
the contract and the assignor’s duties and rights are extinguished.
Additionally, as a general rule, cession of a right can take place without the consent or even
notice to the person who owes the reciprocal duty. This cannot happen with assignment.
The consent of the other party to the contract is necessary before any party can assign so all
the three parties must agree.
Furthermore, in case of an assignment effectively there is a “novation” that is a new contract
being substituted for the old one, which is extinguished. “This is not so in the case of a
simple cession where the original party remains responsible for contractual duties.” 6 Put
differently, with assignments, the original contract is terminated and replaced by a new one
with the same content but different parties while in a cession the original contract remains
in existence, but the right to receive performance is ceded by the cedent to the cessionary.
An instructive case is that of Rolfes, Nebel and Co. v Zweigenhaft1903 TS 185 where the
court held that by Roman-Dutch law a debtor cannot get rid of his obligations to his creditor
without the consent of the latter and that an assignment includes both a cession of rights
and delegation of obligations.
In view of the above, an assignment and a cession are different given that they operate
under different circumstances and produce different results
A trust is created when its founder “hands over or is bound to hand over the control of an
asset which, or the proceeds of which, is to be administered by another (the trustee or
administrator) in his capacity as such for the benefit of some person (the beneficiary) other
than the trustee or for some impersonal object” [The South African Law of Trusts Honoré
3rd Edition]. In other words there is a separation of ownership, management and
Essential elements of a trust
The essentials of a trust are that the founder intends to create the trust and his intention is
expressed in a form which creates a legal obligation to found the trust. The founder must
also define the trust assets and the trust objects which must be lawful. An obligation must
be placed on the trustee to administer the assets for the benefit of another person or object
and he must be independent and have control over the assets of the trust.
Public nature of a trust
Because the position of a trustee is a public office, the courts have jurisdiction over trusts.
However, courts have very limited powers to vary a trust deed except in the case of necessity
or where the object of the trust has been frustrated. It is for this reason that the trust deed
must be carefully and comprehensively drafted.
Distinction from English law
The law of trusts under English and South African law developed differently. Trusts in English
law were evolved by the Court of Chancery based on equity. The Roman Dutch law of trusts
developed through stipulatio alteri or contracts for the benefit of a third person. Thus,
extreme caution must be exercised in referring to English texts and cases.
Types of trusts
There are many types of trusts and the following list is not exclusive.
1. Statutory trusts such as the Rhodes Trust are established in terms of legislation.
2. Testamentary trusts are those created in a will.
3. Donation trusts are very common in estate planning and when setting up a charitable
institution. They involve the donor in donating assets to be used for the purpose for which
the trust is established.
4. Educational trusts are frequently used to establish a school or to provide scholarships or
5. Debenture trusts are established for the protection of debenture holders where a number
of people lend money to a company and there is a need to control strictly the rights of the
lenders or debenture holders.ETC
Parties to a trust
The parties to a trust are the founder or donor, the trustee and the beneficiary who may be
a natural or a juristic person.
If necessary a court will appoint and may remove a trustee but the Master of the High Court
has no right to appoint or supervise a trustee except in insolvency .
Duties of a trustee
The duties of a trustee under common law are as follows.
1. He must provide security. Many trust deeds dispense with the need to give security.
2. He must take possession of and, where appropriate, acquire ownership of the assets;
3. He must act as a diligens paterfamilias in caring for the trust assets.
4. He must distribute the income and capital of the trust in accordance with its objects.
5. He must act impartially.
6. He must disclose necessary information to the beneficiaries.
7. He must account for his actions.
8.obligation to exercise due care and diligence was discussed in de Villiers v James 1996 (2)
ZLR 597 (S)
If a trustee fails in his duties he may be liable to beneficiaries under the Aquilian action. The
personal right against trustee rebards to property sold to innocent third party — damages —
how to be assessed see case of Jolly v Shannon & Anor 1998 (1) ZLR 78 (H)
Powers of a trustee
A trustee has only those powers granted to him in the trust deed. A court has little right to
interfere except as already discussed.
Variation of a trust
A trust may be varied by the agreement of the founder, trustee and beneficiaries. It may also
be varied by the founder and the trustee before acceptance by the beneficiaries of the
benefit of the trust. In limited circumstances the court may vary a trust. Such circumstances
include necessity, frustration of the trust objects and the need to sell property .
Drafting of trust deeds
A trust deed is a notarial document but it is not necessary to register the trust in the deeds
office. A trust does not have any implied powers. It stands or falls by the trust deed
establishing it. Consequently, trust deeds are usually complex documents and different types
of trusts will have different clauses. The following clauses are common to most trust deeds .
The following clauses are relevant to the trustees.
Appointment of the first trustees.; The power to appoint additional trustees either to fill a
vacancy or to increase the; number of trustees.; Control of meetings of the trustees.;
Dispensing with the need to lodge any security.; Resignation or retirement of trustees.;
Remuneration of trustees including professional services, fees and expenses.;
Indemnification of trustees.; Administration of trust funds, eg payment of capital and
income to beneficiaries.; Disposal of trust assets on termination.
Wide interpretation of powers
Generally, it is provided in a trust deed that there will be a wide interpretation of the powers
given to the trustees.
Simple trust
A testator may want to create a trust in his or her will, for example where the beneficiaries
are minors. An administrator must be appointed for the trust, and the will must give the
administrator adequate powers to allow him to carry out the testator’s intentions.
Where the trust is for the benefit of a minor, the testator must consider the age at which the
beneficiary’s capital can be paid over to him. Any age of 18 can be chosen.
“Should any of my heirs not have attained the age of majority on my death, the
heir’s inheritance shall not vest in him or her but shall devolve upon my
administrator in trust to sell, call in and convert it into money, with power in his
discretion to postpone such sale, calling in or conversion and to invest and
reinvest such moneys in whatever manner and upon whatever security my
administrator in his absolute discretion thinks fit.
My administrator may pay to the guardian of each such heir, or otherwise utilise
the income and, if necessary, the capital of the trust for the maintenance,
education and general advancement in life of the heir until he or she attains the
age of … years.
As each such heir attains the age of … years, my administrator shall pay to him or
her his or her share of the capital and undistributed income, if any, of the trust.
My administrator may borrow for the purpose of the trust such money as he may from time
to time think fit, and my pledge, cede, mortgage or otherwise encumber the assets of the
trust as security for the loan
The advantages of creating a family trust:
The living trust has lots of advantages due to which it has become so very popular. It should
be noted that the benefits which stem from a family trust are social and financial. If it passes
the family control test and makes distribution of the trust income to beneficiaries, then it is
provided with certain tax benefits. Bankruptcy or insolvency and other business misfortunes
can be overcome through protection of personal assets. It is a method to hand over the
family’s assets to future generations. It gives access to favorable tax treatments by ensuring
that all the members can utilize their income tax, it protects the property in trust from
matrimonial disputes and assists in the management of family assets. It has many other
benefits which are procurable only when it is correctly set up. Overally a family trust has
been held advantageous than a standard will, this will be canvassed in greater.
Protects the property from creditors
It has been submitted that when a family trust is established there is transfer of legal
ownership of the property into the name of the trust. This protects the property from being
reclaimed by debt collectors, because if property is a legal property of the trust it cannot be
reclaimed as a personal debt security, unless if it was gifted to the trust during the financial
period to evade the legal sanction. In this context it simply means that such property is even
protected in the event of bankruptcy. In the Australian jurisdiction when assets are placed in
an irrevocable trust they are shielded from creditors and lawsuits. The advantageous aspect
comes on the fact that the settlor who will be the debtor might be using or dwelling on the
property in the case of a house. It makes the property under trust sacred.
Keeps the property separate from matrimonial property
This is another advantage which is attached to family trusts. The property placed under the
trust is ultimately kept separate from matrimonial property. This is a merit on the basis that
in the event of a divorce, the property in the trust is left untouched. Generally matrimonial
disputes mostly result in the property being distributed unevenly amongst parties. In this
regard a family trust secures the property for beneficiaries without it being tampered with.
Coupled to this, in the situation of the beneficiaries, who might be children, the assets will
not form part of their personal property and therefore cannot be subject to claims by their
partners. Aptly this brings a social benefit which is associated with establishing family trusts.
Tax benefits
Family trusts provides protection against various forms of wealth tax which may be
introduced in the future such as death duties or inheritance tax. Most families use family
trusts to minimize the inheritance taxes associated with the transfer of wealth from parents
to children. In the United States, one of the primary tax benefits of a family trust is that
beneficiaries are not required to pay income tax on income that is distributed from the trust.
Income may be distributed in such a way as to enable all beneficiaries to take advantage of
the tax-free income thresholds. The trust must pay income taxes on undistributed income
that remains after the taxable year. Trustees have the authority to distribute the trust's
income to the maximum number of beneficiaries. They must also consider the beneficiary's
ability to maximize the tax advantages of his marginal tax rate. Beneficiaries are responsible
for settling taxes due on all income, including distributions. In the Australian jurisdiction
family trusts reduce the estate tax liability on the beneficiaries. By establishing the trust as
irrevocable, one can remove assets from his estate thereby lowering its value until the assets
are under the limit required for estate tax exemption. Concisely this protects the property
under trust from all frustrations which are associated with tax law.
Generates income
It is submitted that trustees can make investments in the name of the trust. For instance a
trust might use some of the property it holds as a bed and breakfast to create income that
will go towards the upkeep of the property. The trust can provide the beneficiaries with
income and /or capital to meet their legitimate cash requirements as they arise. This can
protect the long term value of family property.
Not easily revocable or altered
Family trusts on this basis are regarded advantageous as compared to standard wills, basing
on their typical simplicity. The powers of the grantor and trustee are normally considered
irrefutable. Generally a standard will is susceptible to contestation due to the fact that it is
public in nature. The probate process can drag on and costs the beneficiaries considerable
money in legal costs. However a family trust allows the bypassing of the probate court,
instead the assets are distributed by a successor trustee as provided for in the trust deed.
Also on the confidential aspect family trusts, unlike standard wills, are not publicly registered
and the details of the family trust arrangement is kept confidential.
An ante nuptial contract is defined as a written contract execute and attested by a notary. In such a
contract two parties who are by law competent to enter into a marriage or a civil union and who
have the intention to enter into a marriage with each other, regulate the matrimonial property
dispensation of the proposed marriage or union, with the main aim of including the community of
property and the community of profits and losses in the proposed marriage or union.
Given the scope of such contracts it is imperative to discuss the types of marriages in Zimbabwe.
Monogamous marriage under the Marriage Act Chapter 5: 11
Potentially polygnous marriage under the Customary Marriages Act Chapter 5: 07
Unregistered customary law union
All Zimbabweans competent to marry under this marriage.
Governed by General Law. Proprietary consequences for Africans used to be
governed by customary law by virtue of section 13 of the Customary marriages act
which has since been repealed by Act 6/97
Marriage can only be between Africans - see definition section
Governed by customary law unless there are compelling reasons to the contrary
Potentially polygynous marriage
Invalid marriage except for certain limited purposes. Meets all requirements of an
African marriage except registration - Section 3 ( 1 ) of the customary marriages act
Valid for the purposes of guardianship, status of children, custody, inheritance under
customary law - Section 3 (5) Customary marriages act. Children born under this
union enjoy the same rights as children born under registered customary law
marriage. For purposes of customary law such children presumed to be legitimate
and falling under the guardianship of their father.
It would appear that immovable property rights of spouses married under customary law
would be determined as if no marriage took place. Not competent to enter into an ante
nuptial contract since marriage potentially polygynous.
Up to 1929, proprietary consequences governed by Roman Dutch law principles which
stated that all marriages were automatically in community of property unless parties at the
time of the marriage entered into an ante nuptial contract providing that the marriage was
out of community of property.
Position was reversed in 1929 by the Married Persons property Act of 1929 which provided
that all marriages are automatically out of community of property unless parties enter into
an ante nuptial contract creating community of property.( CONTRAST WITH THE SA POTION
WHICH IS THE OPPOSITE).The South African position presumes all marriages to be in
Arises automatically when the spouses are non Africans and there is no ante nuptial
Seems that now because of the repealing of section 13 of the Customary Marriages
Act, this now applies also to Africans married under general law as far as movable
property is concerned.
Each spouse retains his /her property that they brought into the marriage and the
property they each acquired during the marriage.
Wife is not under the control of her husband. She can enter into contracts, sell her
own property, enter into partnerships and go to court without her husband's help.
At dissolution of marriage by death or divorce, each spouse retains his or her own
property and court has no power to interfere and alter or adjust the property rights
of spouse using the fairness or equity and justice principle
An imprudent spouse is prevented from ruining his/her spouse because there is no
community of debts. In reality however most spouses merge their property and
allocate each other responsibilities in running the household. One spouse may be
allocated the responsibility of buying durable goods for example so that it becomes a
legal fiction at the end of the day for each to walk away with what they brought into
the marriage.
Some wives stay at home and take care of the family. This role is then considered
unimportant in the out of community realm because their domestic contribution is
not taken into account. There is therefore no equity there.
Matrimonial property rights of spouses are governed by the law of the country where
husband is domiciled at the time of marriage except in cases where there is an ante nuptial
The ante nuptial contract has to be registered in the Deeds office to be enforceable against
S 3 No ante nuptial contract valid unless registered and copies filed in Deeds Registry
(1) No ante nuptial contract executed after the 10th June, 1891, shall be valid as against
any creditor of either of the spouses unless the same is registered in the Deeds
Registry in conformity with established law and custom and unless a signed original
of the contract for filing in the Deeds Registry as the registry duplicate together with
two further originals or grosses or copies thereof certified by a notary public are
lodged with the Registrar of Deeds.
For an ante nuptial contract to be valid it must be prepared by a notary public See s6
S6; No contract except notarial contracts to be registered unless executed beyond
(1) No ante nuptial contract executed in Zimbabwe shall be capable of being
registered in Zimbabwe unless it had been executed before a notary public .
Legislation governing; WILLS ACT CHAPTER 6:06
A will is an instrument by which a person makes a disposition of his property to take effect
after his decease and which is in its own nature ambulatory and revocable during his life.
The definition in the wills Act provides;S2 “will” includes an oral will, a codicil and any
testamentary writing but does not include a document evidencing an ante nuptial contract or
other transaction of a contractual nature.
A will only takes effect after the demise of the testator and as such certain formalities have to
be met to ensure the validity of a will. These formalities are aimed at ensuring that the
intention of the testator is met. The issue that has sparked controversy in the legal field is
whether the intentions of the testator rather than the formalities of making a will set out in the
Wills Act should determine the validity of a will. Some scholars are of the view that the
intention should be upheld over the formalities whilst others argue that the formalities should
be the basis of determining the validity of a will despite the intention of the testator
drafting wills
Wills must be drafted particularly carefully because the testator cannot be asked to clarify
his or her intentions when the will becomes operative. Great care must be taken to ensure
that accurate instructions are obtained and that the client understands the implications of
all the provisions of the will. Clients are often discouraged from drafting their own wills,
because of the problems that arise from poor drafting.
Execution of wills
After drafting a will, client is given an adequate opportunity to study it before it is signed.
It is vital to ensure compliance with the Wills Act regarding the signing of a will. Try to
arrange that the will is signed in your office to ensure that it is done properly.
Formalities of making a Will
Formalities of making a Will: S. 9 Wills Act 1837
There are three main formalities in making a will and it is important that these are followed.
If not, then this testamentary document will not be valid and the deceased’s estate might
likely be distributed under Intestacy Laws.
What are these Formalities?
While the formalities appear to be very basic, the will may be invalid if these are not
1 The will must be in writing. S 8 (1) (a) Wills Act (Chapter 6:06
The will must either be written in ink or in pencil although it is advisable that ink be used. It
is advisable to avoid using both ink and pencil because this can lead to the belief that the
testator (person making the will) was still undecided about whether the part written in
pencil should be a permanent part of the document or was just deliberative. This can lead
to complications after the death of the testator.
Interestingly enough, the law also provides for unwritten wills known as Privileged Wills.
Privileged wills are wills made informally by a testator who has privileged status. Privileged
status is granted to soldiers, mariners or seamen who are in “active military service”.
Situations where privileged wills may occur is when a soldier, who is mortally wounded in
combat, makes a statement or oral disposition of his property to another person before he
2 The testator must sign the document. S 8 (1) (b) Wills Act
Any mark made by the testator on the document validates the will provided that he
intended it to be his signature and that this signature is meant to execute the will. So for
example, if the testator is illiterate and uses his thumbprint to as his signature to execute the
will, the will is valid.
Normally, the signature must be at the end of the page of the will. There are instances
however, that the signature is not at the bottom of the page but on the side of the page
because there may not be enough space for the signature. There may also be situations
when the testator only gives a partial signature because she/he is weak to complete the
signature. The will shall still be considered valid as long as the testator intended that the
mark or the signature was meant to attest that this was his last will and testament. Where
the signature is not complete or where questions arise as to the way the will was executed
or made, external evidence (e.g. affidavit of due execution) must be given by the attesting
witnesses or the solicitor/legal executive who attended to the execution of the will. The
testator (or his appointee) and the witnesses must sign each page as near as possible to the
end of the writing
3 There must be two witnesses to attest to the testator’s signature and to the correct
execution of the will. S 8 (1) (c) Wills Act. The signatures of the testator or his appointee
must be made or acknowledged (by the testator) in the presence of two competent
witnesses who are both present at the same time. i.e the witnesses must see the testator
signing or executing the will. If even one of the two witnesses does not see the actual
signing of the will, the will shall be considered invalid. It is, therefore, very important that
the witnesses should be aware of and see the testator signing the document. It is not
necessary for the witnesses to know the contents of the document. After attesting to and
witnessing the signing of the will, the witnesses must attest the will by signing and
acknowledging his signature in the presence of the testator.
In Janda v Janda 1995 (1) ZLR 375 (S) to satisfy compliance with the formalities when it
comes to signature of witnesses their full signatures are required, not merely initials.
4. Beneficiaries should not be witnesses
The chosen witnesses should not be beneficiaries to the will. If any beneficiary witnesses
the signing of the will, that person will lose whatever gifts or bequests she/he is entitled to
under the will (S15 Wills Act 1837). If a beneficiary witnesses the signing of the will, it does
not make the will invalid. The witness must be capable of attesting at the time the will was
executed. A minor can witness a will but not a young child since he/she will not be capable
of understanding the importance of witnessing the will’s execution Anyone over the age of
16 who is competent to be a witness in court, and who can see the testator sign a will, is
competent to be a witness to a will. A blind person will not be an appropriate witness to the
will’s execution. A person who is very drunk or of an unsound mind will also not be capable
of attesting to the will. But remember: a person who benefits under a will cannot be a
witness to that will. If the will is signed by the testator’s appointee it is valid only if, before
the testator’s death, a magistrate, presiding officer, justice of the peace or commissioner of
oaths certifies on the will that he is satisfied as to the testator’s identity and that the will is
the testator’s will. That person must sign each page. Alternatively, a court may state that
the will is valid (though this will require an application to the court).
Documents may be annexed or referred to a will to explain or expand on the provisions of
the will, and such document need not be signed and witnessed as a will (sec 14 of the Act)
Essentials of a will
Effect of marriage
A will generally becomes void upon the subsequent marriage of the testator (sec 16(1) of the
Where the testator’s marriage is annulled or dissolved, any disposition to a former spouse
lapses and any appointment of a former spouse falls away, unless the will clearly indicates
that the testator’s intention was otherwise (sec 17 of the Act). In such a case it is much
better for the testator to make an entirely new will
Revocation clause
This is necessary to make it clear that the testator is revoking any previous wills totally, not
“I revoke all former wills made by me.”
Nomination of executor
Executors are nominated by the testator and appointed by the Master of the High Court.
It is usual to exempt an executor from providing security. The Master may still require him
to provide security, but not to cover all the assets of the estate — only the liabilities and the
value of the legacies.
As indicated in the checklist above, if a professional person is appointed as executor or
administrator it is a good thing to allow him or her to charge professional fees for work done
in addition to that of executor.
Example 1 (nomination of relative):
“I nominate my wife ABC to be the executrix of my estate, with all the power and
authority that is allowed or required by law, in particular the power of
assumption. I exempt her from providing security for the performance of her
Example 2 (nomination of professional person):
“I nominate one of the partners for the time being of the firm of …, Legal
Practitioners, of … to be the executor of my estate, with all the power and
authority that is allowed or required by law, in particular the power of
substitution. I exempt him from providing security for the performance of his
duties, and I authorise him to receive from my estate the normal executor’s
commission and the normal fees for any work which he may do in a professional
Identification of beneficiaries must be clear. Ensuring that their correct names are used and,
if there is likely to be any confusion, identifying them by some distinguishing feature, e.g.
their relationship to the testator or someone else is prudent.
If a bequest is made to a class of person (e.g. the children of a particular person) describing
the class accurately (e.g. “the children of my son A who are alive at my death”).
A beneficiary is entitled to property bequeathed to him free from any liabilities or burdens
on it, unless the will indicates the contrary. So if a will bequeaths a house over which there
exists a bond, the executor must use the residue of the estate to free the house from the
bond. This may not be the testator’s intention
“Thirty-day” clause
This provides for the near-simultaneous death of the testator and the principal beneficiary
(e.g. a testator husband who is killed in the same road accident as his beneficiary wife). It
avoids double death duty. If the clause is not included, where a couple die simultaneously
or within a close time of each other duty is payable on the estate of the first to die and again
on the enhanced estate of the second.
“If my wife, … , survives me for thirty days or more, then I bequeath the whole of
my estate to her.”
Per stirpes clause
This provides that if a beneficiary predeceases the testator, the children of the beneficiary
will take the beneficiary’s share of the estate, the share being divided equally between the
“I bequeath the whole of my estate in equal shares to my children. If a child of
mine has predeceased me leaving surviving issue, the issue shall stand in the
place of that child and take per stirpes the child’s share of my estate.”
A conclusion to a will is often as follows:
“Signed at … on the … day of … , 20…, in the presence of the undersigned
witnesses, who signed in my presence and in the presence of each other, all
being present at the same time.”
A notarial bond is a bond hypothecating movable property of a debtor as security for a debt
and it is registered in the Deeds Registry office by the Registrar of Deeds
Notarial bonds are defined as a bond attested by a notary public hypothecating movable
property generally or specially, S 2 of the Deeds Registry Act. Thus, it can be deduced from
the above definition that there are two types of notarial bonds, a general notarial bond and
a special notarial bond. A general notarial bond governed by the common law, hypothecates
all the movable property of a debtor while a special notarial bond is registered over specific
movable property of the debtor.
Section 2 of the Deeds Registries Act [Chapter 20:05] defines a mortgage bond as a bond
attested by the Registrar of deeds, hypothecating immovable property. The definitions of a
mortgage bond and a notarial bond were both stated in the case of The Land and
Agricultural Bank of Southern Rhodesia v Jameson 1970(1) RLR 146.
From these definitions appears two differences, the first one is that a mortgage bond
hypothecates only immovable property while a notarial bond hypothecates movable
property. The second difference is that whilst a notary public attests to a notarial bond,
mortgage bonds are attested to by the Registrar of Deeds. The Registrar can still register the
notarial deed but such registration is not the act that renders it effective, it becomes
effective after being attested to by a notary public. A mortgage bond however becomes
effective after registration in the deeds registry.
Mortgage bonds confer real security in the sense that the debtor cannot alienate the
property so hypothecated without the consent of the mortgagee. The notarial bond
however does not preclude the debtor from alienating the property even without the
consent of the bondholder.7 Unlike with the registration of mortgage bonds, the registration
on notarial bonds does not necessarily signify notice to a third party that such property is
hypothecated. Thus the creditor cannot vindicate from a bona fide third party who has
acquired the property.
Another difference comes in the particularity levels of the property clause in both
documents. A mortgage bond can only hypothecate a particular immovable property. This
means that the property in the mortgage bond must be specific. On the other hand a
notarial bond can be a general or a special notarial bond. A special bond hypothecates a
specific movable property and a general notarial bond hypothecates all the movable
property of the debtor without particularly describing the property in question.
It must also be noted that the parties to a mortgage bond are called mortgagor and
mortgagee whilst the parties to a notarial bond are called notarial bond holder and drawer.
It is also critical that a mortgage is noted on the hypothecated property’s title deeds in the
deeds registry whereas that is not applicable to notarial deeds.
Bonds are categorised with reference to the nature of the relevant cause of debt of the
principal debt issuing the bond. The following are the most important notarial bonds
-Collateral notarial bond
- Notarial surety bond
-Notarial covering bond
-Notarial indemnity covering bond
The following provisions under section 55 of DR Act apply to registration of notarial bonds;
(1) Every notarial bond executed before, on or after the 31st December, 1971, shall be
registered in a deeds registry within the period of three months after the date of its
execution or within such extended period as the court may on application allow.
(2) A signed original for filing in the registry as the registry duplicate, together with two
further originals or grosses or copies of the bond certified by a notary public shall be
tendered for registration. The registrar who registers such bond shall transmit to the
registrar in charge of the other deeds registry one such original, grosse or copy of the bond
for registration by him.
Priority under a notarial bond to secure the payment of future debts depends on the date of the
registration of the notarial bond, and not on the date upon which the debt comes into existence.
Notarial bond over movables
Movables may be mortgaged by a notarial bond which must be registered in the Deeds
.Office within 2 months of the date on which the cause of action arose. General bonds
mortgage movables generally and usually refer to all movables. Special bonds relate to
specific assets such as stock in trade.
The owner may sell or deal in the movables bonded and the security is only effective on his
insolvency. Thus, if a debtor were to dispose of the bonded movables prior to insolvency, the
creditor would be unable to rely on his security to recover his debt.
A cession of rights, such as rights under an insurance policy, is made by agreement of the
parties and delivery of the document, if any, which records the right.
Notice should be given to the debtor, e.g. the issuer of the policy, so as to ensure that
payment is made direct to the cedent (the creditor).In terms of section 100 of the Insolvency
Act an effective cession of book debts, excluding those listed in the section (such as a
cession on the transfer of a business) must be effected by a notarial deed of cession
registered in the deeds office.
Subsections 98(3) and (4) set out the requirements.
The debtor is entitled to raise against the cessionary any defence to the original debt that he
had against the cedent and thus in many cessions the cessionary requires the cedent to give
some form of indemnity to cater for defences to his claim.
Suretyship is a contract in terms of which one person (the surety) agrees with the creditor of
another (the principal debtor) to perform the obligations due to such creditor by the
principal debtor if and in so far as such principal debtor fails to do so. The surety doesn’t
replace the principal debtor and doesn’t join him as co-debtor but that such surety’s
obligation arises only in the event of the principal debtor’s failure to perform. The debtor
remains bound to the creditor for the principal obligation.
Suretyship is not an independent obligation but is always accessory to a principal valid
obligation; the surety’s obligation is accessory to the obligation of the principal debtor. A
surety contract can only exist when the principal obligation is in existence. Though many
suretyship contracts are concluded almost simultaneously with the creation of a principal
obligation, a suretyship contract maybe concluded for an already existing obligation as well
as future obligations yet to be incurred, provided the obligation doesn’t arise until the
principal obligation has come into existence.
In many security documents, the signatory is called upon to renounce various legal benefits
and he is usually required to state that he understands them. Many lawyers themselves do
not know what they mean: the following is a guide.
When the principal debt is due the creditor can approach either the debtor or the surety – it
is not necessary to claim from the debtor before approaching the surety. The surety has
defences available to him should this occur:
Benefit of excussion (beneficium ordinis seu excussionis) – the surety may demand that the
creditor proceed first with the debtor to obtain the payment, if necessary by execution upon
his assets before turning to the surety for payment of the debt or that portion thereof as
remains unpaid.
Benefit of division (beneficium divisionis) – a co surety who is liable in solidum(for the full
amount) has the right to demand from the creditor that the debt be divided among all the
co-sureties in order that he be held liable for his pro rata share only.
Benefit of cession (beneficium cedendarum actionum) – where there are two or more
sureties in respect of one obligation. A co-surety who has paid the principal debt in full may
demand that the creditor cede to him all the rights and securities which such creditor has
against the principal debtor and other sureties.
Exceptio non causa debiti
This is translated as “no cause for the debt”. The renunciation relieves the lender from
having to prove that there was a just cause for the debt.
Exceptio de errore calculi and revision of accounts
These two exceptions mean much the same thing. They are usually renounced when the
obligation relates to any matter involving calculations. The debtor should satisfy himself that
the amount has been correctly calculated.
Exceptio non numeratae pecuniae
A lender is entitled to repayment of a loan only where it has been received by the borrower.
Where the exception is renounced, the onus is on the borrower to show that he did not
receive the money.
Recourse against the principal debtor - an ex lege obligation is imposed upon the principal
debtor to reimburse the surety to the amount of debt he has paid plus loss suffered or
expenses reasonably incurred
Recourse against co-sureties – a surety who has paid the principal debt is ex lege entitled to
claim proportionately from each co surety his share of the debt
Debentures are acknowledgments of debt issued by companies in respect of loans and give
no security in themselves. They are records of the loan. They may be distinguished from
shares in that the company need not earn a profit before payment of interest is made to a
debenture holder. In addition, they do not give debenture holders any voting rights.
Debentures may be issued to individual debenture holders or, where there is a large loan
made by many lenders, in terms of a debenture trust deed. The lenders who have
participated in the loan hold certificates evidencing the amount lent by each, issued in terms
of the debenture trust deed and their rights are protected by the terms of the deed.
Deeds Registries Act [Chapter 20:05] Mines And Minerals Act[Chapter
Elliot, in his book South African Notary defines a mining contract as a notarial deed whereby
the holder of a mining title over base metals, precious metals or natural oil grants rights to
another party over that title.
The Mines and Minerals Act defines a mineral as “any substance occurring naturally in or on
the earth, which has been formed by or subject to a geological process”. Mining is the
process of extracting of those substances from the earth. A mining contract is thus at first
glance an agreement entered into by parties in relation to the extraction of substances
naturally in or on the earth that have been formed by or subject to geological processes.
There is however an important distinction between mining contracts and ordinary
commercial contracts which is of great significance to the notary public. This difference is
that most mining contracts are required to be prepared by a notary public, as appears from
Elliot’s definition above.
In Zimbabwe, the issue of the agreement being notarially executed is a statutory
requirement for the registration of a mining contract by the Mining Commissioner in terms
of the Mines and Minerals Act. A good example of this requirement is found in S275 of the
Act which states that for any application for registration of transfer of a mining location by
the Mining Commissioner must be accompanied by “a duplicate original, grosse or notarially
certified copy of any and every existing agreement affecting or bearing upon the sale,
alienation, exchange or transfer”S275(6) c. The absence of these notarially executed
documents is fatal to any application for the registration of a right over a mining location or
the subsequent transfer in full or in part of those rights. Contracts not notarially executed
would fall into the category of underhand documents and only create personal rights
between the parties.
Mining contracts are concerned with rights over mining locations, which are defined in the
Mines and Minerals Act as “a defined area of ground in respect to which mining rights or
rights in connection with mining have been acquired under this Act or were acquired under
any previous law relating to mines and minerals” S5. Various types of mining contracts exist,
the most common being prospecting contracts, mining leases, options and tribute
An option is an offer to sell which remains open during a stipulated period and if it accepted
at any time before the expiration of that period a binding contract comes into existence
between the parties see VanPlasten V Henning 1913AD 82 at 98. This case and subsequent
case law have established the position that an option is a separate contract between the
option grantor and the option holder to keep the option contract open for a particular time
interval in which it must be accepted. . In Hersch v Nel1947(3)SA 695 , the court stated that an
option is an agreement between the giver and the holder of the option by which the giver has bound
himself to sell a certain thing to the holder at the option if the holder should require him to do so
within the time fixed by the option. The giver grants and the holder acquires the right to buy.
In the realm of mining, options are most prevalent in prospecting contracts. Prospecting refers to the
searching of an area for mineral deposits which are then analysed to determine whether sufficient
quantities are present to warrant mining operations and the most appropriate method of extraction.
A prospecting contract would thus be a contract whereby one party grants another the right to
search for and analyse mineral samples in an area over which the former has mining title.
In these prospecting contracts, the options that can be included are those stated in Badenhorst
Mining and Minerals:
An option to purchase the land including any of the mineral rights;
An option to acquire the minerals;
An option to obtain lease of the mineral rights
As a mining option is a mining contract, the requirement of registration that applies to mining
contracts generally is applicable. Notarially executed options are registerable with the Registrar of
Deeds in terms of s56 of the Deeds Registries Act. Prospecting contracts in which option contracts
are present can also be registered. This is in terms of s278 of the Mines and Minerals Act. Where an
option has been registered in relation to a mining location, such registration precludes any transfer
or abandonment of the mining location as a whole or part thereof,see S279 Mines and minerals
Aside from this, the general rules of contract governing option contracts apply. It must be clear in its
language and be a complete contract in itself.
Tribute Agreements
The Mines And Minerals Act defines a tribute agreement as “any agreement or arrangement entered
into after the 1st July, 1947, whereunder any person has given a tribute, licence, concession, authority
or other right to mine a mining location to a tributor, and includes any such agreement or
arrangement which was entered into before the 1 st July, 1947, and which is renewed after such date,
and any agreement to alter the terms of a tribute agreement which has been approved by the
Board(Mining Affairs Board) and any agreement to alter the terms of a tribute agreement which has
been approved by the Board and any renewal of a tribute which has been approved by the Board. S
283 Mines and Minerals Act”
This is in addition to what is provided for in s280 which describes a tribute agreement as an
agreement where a “holder of a registered mining location has agreed in writing to grant a tribute or
any other limited right to work such mining location to any other person”.S280 Mines and minerals
What this means is that a tribute agreement is a contract whereby the owner of land over which
certain mineral rights are vested grants another person the right to enter upon his land to prospect,
mine and remove minerals from the land for his own benefit. This right is granted for a limited period
in return for a consideration to the owner of the rights. This consideration can be in the form of a
lump sum or periodical payments or commission based on output www.chamberofmines
In Durma (Private) Limited v Siziba1996 (2) ZLR 636 Ebrahim J noted that the statutory definition of
a tribute agreement does little to elucidate the nature of a tribute agreement and it becomes
necessary to look at common law. The court in this case made a number of findings on the nature of
a tribute agreement:
In a tribute agreement mineral rights are let by one party (the grantor) to another (the tributor);
It is not a lease of land or minerals, but of the incorporeal right to win minerals from the ground;
A condition is attached to the agreement that the tributor pays a certain proportion of proceeds to
the mine owner.
Tribute agreements are contracts sui generis, not being contracts of sale or contracts of hire (leases)
at common law, though the principles applied in relation to them are not very different from those
applied in more traditional contracts.
The tributor is given the right to mine the land and win from it as much of the minerals sought as he
can during the period of the tribute and to dispose of the minerals so won for his own profit.
Tribute agreements do not have to be notarially executed unless they are to be registered. This
requirement of notarial execution is found in s280 of the Mines and Minerals Act which deals with
registration of tribute agreements.
Mining hypothecations
Mining hypothecations are mortgage bonds over mining claims and are registered in terms
of section 259 of the Mines and Minerals Act. They are effected by applying to the Mining
Commissioner for hypothecation of an interest in a mining location. The application must be
accompanied by Notarially certified copies of the agreement giving rise to the
The Secretary for Mines is obliged to keep a register of hypothecations setting out details of
the parties, the mining location, the amount due and any interest payable. The effect of a
hypothecation is that it is a bar to transfer or abandonment of the mining location. However,
it is not a bar to execution or to transfer of the mining location on insolvency .
Regional Town and Country Planning Act [Chapter 29:12] :Rent Regulations SI 626/82
:Rural Land Act [Chapter 20:18] :Stamp Duties Act [Chapter 23:09]
Essentials of a valid lease
In order to create a valid lease there must be two parties. It is not possible for an owner of
property to lease the property to himself. The subject matter of the lease must be certain
and the lessor must agree to part with possession of the property to the lessee.
The rent must be fixed or ascertainable by independent means and must be paid in money
or fruits.
Registration of leases
Section 65 of the D R Act provides for registration of leases
(1) Save where provision to the contrary is made in any enactment, any lease or sub-lease of
land and any
cession of such a lease or sub-lease intended or required to be registered in a deeds registry
shall be executed by notarial deed by the lessor and the lessee or by the lessee and the sublessee or by the cedent and the cessionary, as the case may be.
(2) If the land leased or sub-leased is mortgaged or subject to the rights of any other person,
it shall be necessary for the purposes of registration of the lease or sub-lease or any cession
thereof to produce the consent of the Legal holder thereof.
The parties’ common law obligations
A sound knowledge of the parties’ common law obligations is essential to the drawing of
good leases. The lessor’s common law obligations are as follows.
Lessor’s common law obligations
The lessor must deliver the property to the lessee and guarantee that the lessee will have
quiet enjoyment. If the lessee’s occupation is disturbed, whether due to the lessor’s default
or some external cause, the lessee is entitled to a remission of the rent.
The lessor must maintain the property and guarantee it against defects. Usually a lease
provides that the lessor will be responsible for structural maintenance but that the lessee
will be responsible for all other maintenance. To this end the lessee usually acknowledges at
the commencement of a lease that the property is in good order. Any damage on
termination of the lease can thus be attributed to the actions of the lessee.
The lessor must pay rates and taxes and other similar outgoings on the property. It is usual in
leases to provide that the lessee will be responsible for electricity, water and telephone
Lessee’s common law obligations
The lessee’s must pay the rent and take proper care of the property. He must use the
property for the purposes let and return it to the lessor in a proper state of repair. The
breach of any of these obligations would entitle the lessor to cancel the lease and to claim
Additional important clauses
There are a number of important other clauses which should be considered when drawing
Under common law the parties may agree that the lease continues for a fixed period or is
periodic. This means that it continues from period to period such as month to month until
terminated by reasonable notice. If there is no agreement as to the period, the lease is a
periodic one, the period being determined by the dates on which rent is due.
Renewal of the lease is usually provided by way of an option to renew.
Leases frequently provide for the payment of a deposit. The purpose of this is to protect the
lessor if the lessee should leave the property in a poor state of repair. The lessor may use the
deposit to pay the cost of making good the property. The lessor must return the deposit to
the tenant if no damage has been caused. In times of high interest rates, it should be
expressly stated that no interest will be paid on the deposit.
Use of the premises
It is usual to restrict the use of the premises. The reason is that the lessor wishes to avoid
possible damage being caused by an inappropriate use. In residential leases it is sometimes
provided that the number of persons who may live on the property is limited.
Alteration of the premises
It is extremely important to a lessor that the lessee does not alter the premises. In
residential leases any alterations are generally prohibited. They may be allowed in rural or
commercial leases but provision for removal on termination should be made.
It may also be necessary to deal with the payment of compensation if the alteration is not
Inspection of the premises
Leases usually provide that a lessor may inspect the premises to satisfy himself that the
lessee is caring for it properly.
A lease is terminated in the following circumstances.
1. by effluxion of time.
2. by notice.
Under this point see Parkview Properties (Pvt) Ltd v Chimbwanda 1998 (1) ZLR 408 (H)
court decided on notice terminating contract of lease — time within which notice must be
received — eviction of tenant — “good and sufficient grounds for” — held that court
required to exercise value judgment — dominant purpose not to let to persons other than
present tenant — eviction lawful
3. by complete destruction of the property.
4. by mutual agreement of the parties.
5. by repudiation by either party of the lease.
In Omarshah v Karasa 1996 (1) ZLR 584 (H) the court discussed whether landlord may
terminate lease because he requires premises for his own use.
It is essential to include a comprehensive termination clause in any lease agreement.
In Lincoln Court (Pvt) Ltd v Zimbabwe Distance Correspondence Education College (Pvt) Ltd
1990 (1) ZLR 158 (HC) court dealt with ejectment of statutory tenant, particularly what
constituted good and sufficient cause — interests of lessee relevant to date ejectment
Damages for holding over and costs
In order to avoid disputes on termination due to the lessee’s breach it is usual to provide
that after cancellation of the lease any amount paid will be treated as damages for holding
The lessee may also be made liable for the lessor’s legal costs incurred as a result of the
breach including sales tax on services, legal practitioner/client costs and collection
Long leases
Any lease of 10 years or for periods including renewal which total 10 years is a long lease. In
order to be effective against the world a long lease must be notarially executed and
recorded in the deeds office.
If a long lease is for a period of 25 years, transfer duty is payable on the value of the lease.
[See Part V section 19 of the Stamp Duties Act [Chapter 23:09].]
Huur gaat voor koop
The huur gaat voor koop rule provides that if a lessee is in occupation and the property is
sold, the new owner is bound by the terms of the lease. Even if the lessee is not in
occupation, an owner who knows of the lease is bound by it
Sub-letting and assignment
Sub-letting is a grant by a lessee of the whole or a portion of his rights under the lease to
another person (the sub-lessee) for rent. A new contract is created between the lessee and
the sub-lessee but at the same time the contract between the lessor and the lessee
An assignment is a transfer by the lessee to a third person of all his rights and obligations
under the lease so that the third person takes his place in the original agreement between
the lessor and the lessee. The consent of the lessor is thus necessary.
A lessor is anxious not to allow sub-letting and assignment and this is usually prohibited in a
lease agreement.
Landlord’s hypothec
As soon as the rent is in arrears the lessor obtains a lien or tacit hypothec over the property
of the lessee, any sub-lessee or goods of third persons who knowingly brought them onto
the leased premises. The lien is for the rent owed to the lessor.
Residential lease agreements may be for houses or flats and the details of the lease will
depend on which type of property is being leased.
Rent Regulations SI 626/82
In drawing leases for residential properties, it is essential to have a good knowledge of the
Rent Regulations. The regulations apply to most leases of dwellings except where the
property is owned by the State or a statutory authority or for a lease of not more than 6
months during the absence of the lessor.
The regulations provide for the control of rent and the various rent boards are given the
power to determine a fair rental. Reference should be made to Part II of the regulations.
In terms of the regulations, the maximum deposit which may be taken from a lessee is an
amount equal to one month’s rent [section 27(1) (b)].
The regulations also provide for restrictions on the eviction of tenants. No order for eviction
may be obtained where the lessee is paying rent within 7 days of due date and complies
with the terms of the lease unless:
1. the lessee is doing or is likely to do material damage to the dwelling or his behaviour
will cause substantial inconvenience to neighbours; or
2. The lessor has given two month’s written notice that the dwelling is required for his
occupation or that of his parent, child or employee; or
3. The lessor has given two month’s written notice that the dwelling is required for
reconstruction or rebuilding.
It is not permissible to refuse to lease a dwelling on the grounds that a child may reside in it
[section 34].
Rent books or cards must be issued to lessees and included in them shall be the information
listed in the First Schedule, e.g. address of dwelling and parties, rent, etc.
In addition to the general comments on leases which have already been made, rural leases
are also affected by the provisions of a number of Acts.
Rural Land Act [Chapter 20:18]
Section 8 of the Rural Land Act provides that rural land may be leased to a single individual
or to a corporate body but not to two or more individuals jointly without the written
consent of the Minister to which authority has been delegated.
Section 9 of the Act provides that no owner or occupier of rural land may permit any person
other than an employee to cultivate any portion of the land unless the portion has been
clearly demarcated by permanent cairns, pegs, etc. In addition, the owner or occupier must
keep a register of any such permits and also a register of permits relating to stock belonging
to another person and which he permits to graze on his land.
Regional Town and Country Planning Act [Chapter 29:12]
Section 39 of the Regional Town and Country Planning Act provides that no person may
enter into an agreement for the lease of any portion of any rural property for a period of 10
years or for the lifetime of the lessee without obtaining a permit as provided in section 40 of
the Act.
Land Acquisition Act [Chapter 20:10]
In terms of section 14 of the Land Acquisition Act the owner of any designated land may not
lease his land except with the prior written consent of the Minister of Lands, Agriculture and
Water Development.
The period of the lease in a rural lease is likely to be for at least one growing season and
usually longer. When acting for lessees it is essential to remember that any crops which are
growing at the end of the lease accrue to the owner.
Latimer Manley & Associates (Pvt) Ltd v Laverna Investments (Pvt) Ltd 1990 (1) ZLR 200
(HC) dealt with Commercial Premises (Rent) Regulations 1983 s 3 in the interpretation of
“commercial premises”.
Many types of commercial property may be leased. Examples include shops, offices,
factories, warehouses and so on
Commercial Premises (Rent) Regulations SI 676/83
The Commercial Premises (Rent) Regulations apply to the letting of all commercial premises
save those leased by the State or municipalities.
Part II of the regulations provides that parties may apply to the appropriate rent board for a
determination of a fair rent and this is usually done where the parties are unable to agree on
the rent.
Section 22 limits the power of a lessor to evict a tenant where the lease has expired, either
by the effluxion of time or as a result of notice when the lessee pays the rent and complies
with other conditions of the lease.
However, if the court is satisfied that the lessor has good grounds for an order of eviction
other than that the lessee does not wish to pay a higher rent or the lessor wishes to lease
the premises to some other person it may grant an eviction order [section 22(2)].
Increases in rent
Commercial leases frequently provide for annual increases in rent. The amount of the
increase may be stated or the previous year’s rent may be increased by a percentage.
Fire insurance and damage by fire
The lessor usually undertakes to insure the building against damage by fire and the lessee
undertakes not to do anything to increase the risk.
If the building is damaged by fire, it is usually provided that the lease will terminate if there
is total destruction but that in the case of partial destruction there will be an abatement of
the rent while the building is being repaired.
Fixtures and fittings
As the leased premises are to be used for commercial purposes, the lessee is usually
permitted to install fixtures and fittings though he must remove them on termination of the
lease and make good any damage.
Additional clauses
Butterworths’ Encyclopaedia of Forms and Precedents on letting and hiring have good
examples of various types of leases.
1. Where lift services or air conditioning is suspended there is usually a provision that there
will be no reduction of the rent or claim for loss by the lessee.
2. Particularly in multi-story buildings, there is frequently a provision that no heavy articles
will be permitted on the premises. The reason is to limit possible damage to the building.
3. There may be provisions relating to the supply of water and electricity. In times of
shortages, these become more important.
4. Sometimes, it is expressly stated that the lessee will be responsible for the payment of
telephone charges.
5. Where the lessor wishes to ensure that the appearance of the building is of a high
standard, he may impose conditions relating to the display of the lessee’s name and the
need to keep the premises open during normal business hours. He may also prescribe
minimum standards to be maintained relating to the cleanliness of the premises.ETC
In the case of Delco (Pvt) Ltd v Old Mutual Properties (Pvt) Ltd & Anor 1998 (2) ZLR 130
(S) eviction provisions under Commercial Premises (Rent) Regulations 1983 — s 22(2) —
held lessor to have “good and sufficient” for seeking recovery of premises — meaning of
Types of Instruments
Constituted from the Bills of Exchange Act Chapter 14. 02
Promissory Note
Promissory note – This is defined by section 89 as “ an unconditional promise in writing
made by one person to another, signed by the maker, engaging to pay on demand or at a fixed
or determinable future time a sum certain in money to or to the order of a specified person or
to bearer.”
An instrument that fails to comply with this definition will not be a promissory note and not
be negotiable free of equities – it may however be seen as evidence of a contract.
In terms of S 89(2) of the Act, a valid note must be indorsed by the maker.
A promissory note remains incomplete until delivery to the payee \ bearer is effected-S 90
Basic Characteristics of a Promissory Note
An unconditional promise
The promise must be unconditional. A distinction must be drawn between a
promise to pay that is conditional upon the performance of an act by the
promise, which is given in consideration of the performance of such an act
In writing
It is in writing. Important because at the time the promissory note was made
there must have been words spoken between the parties no evidence can be
given to those words where there is a promise in writing
Signature made by the make
It must be signed by the maker, will be equally binding if its done by his agent
Intention to pay money
It must be a promise to pay a sum certain in money. The sum payable will be
regarded as sufficiently certain although it is required to be paid with interest or
by stated instalments with or without a provision that upon default in payment of
any instalment the whole shall become due. Where the sum payable is in words
and figures the words prevail in the event of a discrepancy. The inclusion in a
note a pledge, collateral or security with the authority to sell it is permissible
There should be demand
It must be payable on demand or a determinable future time
Promise made to a specified person \ bearer.
It must be made by one person to another. If there is more than one maker liability
must not be expressed as being alternative or in succession otherwise the
instrument isn’t a note. Reason is that the promise to pay is conditional upon non
payment the other maker or makers. Payment may be promised to more than one
payee. Payee is described as the bearer, this must be done with clarity.
Whenever a Promissory Note is payable on demand and has been endorsed, it must
be presented for payment within a reasonable time of endorsement otherwise the
endorser is discharged (see – sec 90)
NB – Section 90(2) – Test for Reasonable time
- .In terms of sec – 94 the maker of a Promissory note is liable in two respects.
(a) He engages that he will pay it according to its tenor.
(b) The maker is precluded from denying to a holder in due course the existence
of the payee and his then capacity to endorse.
Application for rectification of a promissory note
Rosenfeld v Teakland Sawmills (Pvt) Ltd 1962 R & N 456
Bill of Exchange
Sec 3 (1) a bill of exchange is defined as an unconditional order in writing addressed by one
person to another, signed by the person giving it, requiring the person to whom its addressed
to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to
the order of a specified person or to the bearer.
It differs from a promissory note in that it is not a promise but an order. An imperative order
is required and same essentials as promissory notes. The requirement that the order must be
addressed by one person to another doesn’t prevent the drawer from being the payee to pay
himself but if the drawer and drawee are the same person the holder may treat it either as a
promissory note or a bill of exchange. The main difference between the two is mainly due to
the position of the drawer and drawee of a bill of exchange.
A bill is not invalid by reason.
(a) that it is not dated
(b) that it doesn’t specify the value given. See – sec 3(4)
A good example of a bill of exchange is a cheque According to Section 72 a cheque is
defined as a bill of exchange drawn on a banker payable on demand. It is necessary to
distinguish a cheque from the other bills of exchange because it gives special recognition to
the banker who makes it his business to deal in bills, which are to be paid on demand. A
chequebook is issued to a holder of a current account, who deposits money into the bank
and the bank holds the money on behalf of the customer and pays bills on presentation of
cheques. The duty of the banker is to pay his customer’s cheques but not those that drawn
irregularly. The banker is expected to know the signatures of the customers and bankers who
in good faith and in the ordinary course of business honours a cheque which unknown to
him was forged is regarded as having paid it in due course. Look at sec 75.
Differences between bills of exchange and promissory notes are:
1. It is a promise to pay.
It is an order to pay.
2. There are only two parties, the There are three parties, the drawer,
drawer and the payee.
the drawee and the payee.
3. There is no necessity for It must be accepted.
4. The maker is primarily liable.
The drawer is not primarily liable.
5. It is never drawn in sets.
A bill of exchange can be drawn in
sets eg Foreign bills are specially
drawn in sets.
6. Protesting is not necessary after A foreign bill must be protested after
7. Noting
not Notice necessary.
8. A promissory note cannot be A bill of exchange can be so drawn
made payable to bearer.
provided it is not payable to bearer
on demand.
9. In a promissory note the maker In a bill of exchange the drawer and
cannot pay to himself.
the payee may be one person.
Bills and notes are commercial paper and play an important role and, in some respects,
essential role in commercial transactions. They are instruments of payment, credit and
Noting is whereby the holder of an instrument upon its dishonour by non acceptance or non
payment can cause such dishonour to be noted or recorded by a notary public on the face of
the instrument or on a noting slip (a paper attached to the bill for such purpose). The notary
public does this by making a note on the noting slip of his initials, date and place for noting,
his charges and the reasons for the noting. For the procedure to be valid, notice of dishonour
must be given to the drawer or endorser because if it is not done liability on the instrument
would be discharged. In other words, noting is the making of a minute of the circumstances
of dishonour within the prescribed time limit. The holder after dishonour would take the
instrument to a notary public who would also present it for acceptance or payment to the
drawee or endorser. Where the instrument is again dishonoured, the notary public would the
make a noting on it.
On the other hand, protesting is a formal statement in writing made by a notary public under
his hand and official seal at the place of dishonour stating that the referred instrument was
presented to the drawer or endorser but was dishonoured by either non acceptance or non
payment. Tenant’s Notary Manual defines a protest as a formal declaration in writing made
by a notary public at the request of the holder that the instrument has been refused acceptance
or payment and that the holder intends to recover all expenses to which he may be put in
consequence thereof. A protest is a certificate made by the notary public after being presented
with a dishonoured instrument which provides formal proof of the fact and circumstances of
The procedures of noting and protesting are a result of dishonour of a negotiable instrument.
An instrument is dishonoured by non acceptance or non payment upon presentment to the
drawee or endorser. Presentment is a pre condition to the liability of a drawee or endorser
which then leads to noting and protest. An instrument is said to be dishonoured by non
payment when it is duly presented for payment and such payment is refused or non
obtainable whereas non acceptance is whereby the drawee or endorser refuses to accept or
acknowledge the instrument. When this happens, the holder then acquires the right of
recourse against the drawer or endorser. To render this right effective, the holder is required
to perform certain statutory duties which are noting and protesting. These are procedures by
which a notary public provides formal evidence of the dishonour of a negotiable instrument.
There are basically two reasons for the noting procedure to be done. Firstly, it is to secure
liability of the drawer or endorser on the instrument. It is a condition stated in s47 of the Bills
of Exchange Act [Chapter 14:02] that failure to give notice of dishonour would discharge the
drawer or endorser from liability on the on the instrument. Secondly, it is to alert prior parties
to the instrument so that they can take necessary steps pursuant to their rights of recourse
against parties prior to them. Noting must be done within a reasonable time after the
dishonour but it must not be noted not later than the next succeeding business day 8. For the
notice to be valid, it must satisfy the requirements laid down in s48 of the Act. Notice may be
dispensed with where there is waiver or where it is reasonable impossible for it to be given
See S49(2) of the Act
A protest must be effected at the place of dishonour not later than the next business day after
the day on which it was dishonoured. It is a procedure which is done to prevent the release
from liability of the drawer or endorser. All the other requirements for validity applicable to
the notice apply mutatis mutandis to a protest. Thus it was held in the case of Factory
Investments (Pty) Ltd v Record Industries Ltd 9 that waiver of notice of dishonour not only
dispenses with the necessity for such notice to bind the endorser but also to dispenses with
the necessity for protest to bind such endorser. When bringing an action upon a dishonoured
instrument, proof of noting and protest will be sufficient evidence against the drawer or
endorser. Usually, it is mandatory for foreign bills to be protested but it is not considered
absolutely necessary for inland bills to be protested in order to sustain an action.
THAT on this day of
in the year of our Lord, Two thousand and
Thirteen (2013) before me, NYASHA CHIKOWORE, a duly registered Legal
Practitioner, Notary Public, residing and practising at Harare, Zimbabwe
and in the presence of the subscribing witnesses, personally came and
I.D. NO. 08-145317E35
(Born on 23 July 1956)
(hereinafter referred to as “the Donor”)
I.D. NO. 08-010860 B 56
(Born on 14 March 1980)
herein referred to as “the Donee”
AND WHEREAS, the said Donor for and in consideration of the natural
love and affection he has for the said Donee, PATRICK DUBE,
declared to give her as her sole and exclusive property, certain property,
presently held by the donor, being commercial Stand Number 29 Lupane
BEING: Certain piece of land in the District of Plumtree measuring
30 metres x 6 m being Stand 29 Plumtree Township
of Bulawayo Township Lands.
The Appearers hereunder sets their hands at Bulawayo on the day, month and
year aforewritten in the presence of the subscribing witnesses and before
me Notary Public aforewritten.
THUS DONE AND EXECUTED on the day, month and year aforewritten in the presence of the
undersigned witnesses and of me the notary public.
As witnesses: 1…………………………
As witnesses: 1…………………………
that on this
four (2007)
day of
in the year of our Lord, Two thousand and
before me
duly registered Legal Practitioner, Notary Public, residing and practising at
Bulawayo, Zimbabwe
and in the presence of the subscribing witnesses, personally came and
(Born on 3 April 1962)
(herein referred to as “the Appearer”)
1. He is a Citizen of Zimbabwe by birth and domiciled in Zimbabwe.
2. And Whereas, when he obtained his birth certificate his names were
recorded as PATRICK DUBE.
3. And to rectify matters, the appearer wishes formally to abandon the
aforementioned name PATRICK and in lieu thereof to assume and adopt
the name MARTIN.
It is recorded that the Appearer hereby formally and absolutely renounces
and abandons the use of the name PATRICK and in lieu thereof assumes
and adopts the name MARTIN.
For the purpose of evidencing his determination the Appearer declared that
at all times hereafter he shall in all records, deeds, writings and in all
proceedings dealing and transactions whether public or private upon all
times whatsoever use and sign the names MARTIN DUBE instead of
The Appearer hereunder sets his hand at Harare on the day, month and
year aforewritten in the presence of the subscribing witnesses and before me
Notary Public aforewritten.
more commonly known as
1. …………………………………
2. …………………………………
I, the undersigned
Patrick Dube
(Born on the 16 of June 1972)
do hereby appoint NYASHA CHIKOWORE with power of substitution, to be my
Attorney and Agent in my name, to appear before the Registrar of Deeds of
Zimbabwe, and as my act and deed to execute a notarial deed of servitude as
per annexure hereto duly initialed by me for identification purposes.
AND for these purposes, to do or cause to be done, whatsoever shall be requisite
as effectually as I might or could do if personally present and acting herein,
hereby ratifying and confirming all and whatsoever my said Attorney and Agent
shall lawfully cause to be done in terms hereof.
SIGNED at Harare on this 14th day of June 2013, in the presence of the
undersigned witnesses.
of ......................
(the customer)
X has agreed to lease the equipment listed below to the customer on the annexed standard
1. Period of lease
2. Equipment leased
3. Rent
4. Place at which equipment will be kept It is agreed that this agreement is subject to the
annexed standard conditions. ............................. ...........................
Signed on behalf of the Customer Signed on behalf of X
Date: Date:
of ....
(the Cedent)
of ....
(the Cessionary)
A The Cessionary has agreed to lend to the Cedent the sum of $... (the loan).
B The Cedent has agreed to cede and make over to the Cessionary all the book debts
and future of the Cedent as security for the indebtedness of the Cedent to the Cessionary
arising out of the loan.
1. Cession
The Cedent cedes and transfers to the Cessionary all his right, title and interest in all his
book debts both present and future as security for any indebtedness of the Cedent to the
Cessionary arising out of the loan.
2. Duration
The cession shall continue until the Cedent has paid to the Cessionary all amounts due in
terms of the loan.
3. Undertakings by the Cedent
While the cession remains in effect the Cedent agrees:
3.1. to deliver to the Cessionary at monthly intervals a list reflecting all debtors of the
Cedent with their names and addresses, the nature and amounts of their indebtedness,
particulars of any acknowledgements of debt, bills of exchange, promissory notes, cheques,
agreements and other documents held in respect of such indebtedness and a statement
showing whether the indebtedness is on open account or on credit and in the latter event,
the terms of such credit;
3.2. upon demand to deliver to the Cessionary all acknowledgements of debt, bills of
exchange, promissory notes, cheques, agreements and other documents referred to in
Clause 3.1 as may be demanded, duly endorsed, ceded, transferred or negotiated in such
form as to render the Cessionary the owner of them and to enable him to enforce payment
of them in his own name.
3.3. to refund to the Cessionary all costs which he may incur in recovering any amount due
by any of the Cedent’s debtors including collection commission and the costs of proving any
claim in insolvency or liquidation and the Cedent agrees that all such costs shall be secured
by this cession
The Cessionary accepts the cession subject to the terms and conditions of this agreement.
DATED … etc
(the Landlord)
(the Tenant)
1. Lease of Premises
The Landlord leases to the Tenant the premises called … (the premises) in … (the
2. Period
The lease shall commence on … and shall continue for a period of … terminating on …
3. Rent
The rent of the premises shall be: $… per month for the period from …;
4. Deposit
Upon signature of this lease, the Tenant shall deposit with the Landlord the sum of
$… as security for the due performance by the Tenant of its obligations in terms of
this lease. At the conclusion of the lease, the Landlord shall have the right of appropriating the
whole or a portion of the deposit towards payment of rent, key replacements,
renovations or any other liability for which the Tenant is responsible.
5.Use of Premises
The premises shall be used by the Tenant as a … and for no other purpose without the prior written
consent of the Landlord.
6.Tenant’s undertakings
The Tenant undertakes: to keep the interior of the premises in good order, fair wear and tear
If: any rent is seven (7) days in arrear; or the Tenant commits any breach or fails to observe or
perform any of the terms and conditions of this agreement and remains in default for a period of
fourteen (14) days after the giving of notice in writing by the Landlord drawing attention to the
breach or omission and requiring it to be remedied; then the Landlord may forthwith cancel this
lease, and re-enter upon and take possession
of the premises without prejudice to any claim for damages which the Landlord may have against the
Tenant for any breach of the lease by the Tenant.
DATED at … this … day of … 20…
1. ...........................
2. ........................... Landlord
DATED at … this … day of … 19…
1. ...........................
2. ........................... Tenant
of ....
(the Cedent)
of ....
(the Cessionary)
A The Cessionary has agreed to lend to the Cedent the sum of $... (the loan). B The Cedent has
agreed to cede and make over to the Cessionary all the book debts present and future of the Cedent
as security for the indebtedness of the Cedent to the Cessionary arising out of the loan.
1. Cession
The Cedent cedes and transfers to the Cessionary all his right, title and interest in all his book debts
both present and future as security for any indebtedness of the Cedent to the Cessionary arising out
of the loan.
2. Duration
The cession shall continue until the Cedent has paid to the Cessionary all amounts due in terms of
the loan
3. Undertakings by the Cedent
While the cession remains in effect the Cedent agrees:
3.1. to deliver to the Cessionary at monthly intervals a list reflecting all debtors of the Cedent with
their names and addresses, the nature and amounts of their indebtedness, particulars of any
acknowledgements of debt, bills of exchange, promissory notes, cheques, agreements and other
documents held in respect of such indebtedness and a statement showing whether the indebtedness
is on open account or on credit and in the latter event, the terms of such credit;
3.2. upon demand to deliver to the Cessionary all acknowledgements of debt, bills of exchange,
promissory notes, cheques, agreements and other documents referred to in
Clause 3.1 as may be demanded, duly endorsed, ceded, transferred or negotiated in such form as to
render the Cessionary the owner of them and to enable him to enforce payment of them in his own
3.3. to refund to the Cessionary all costs which he may incur in recovering any amount due by any of
the Cedent’s debtors including collection commission and the costs of proving any claim in insolvency
or liquidation and the Cedent agrees that all such costs shall be secured by this cession.
That on the…..day of……..in
Thousand and Seven (2007)
Ye a r
Lo rd
Tw o
B e f o re m e ,
O f B u l a w a y o , Z i m b a b w e , a Le g a l P r a c t i t i o n e r a n d N o t a r y
Pu b l i c b y l a w f u l a u t h o r i t y d u l y a d m i t t e d a n d s w o r n , i n t h e
p re s e n c e o f t h e u n d e r s i g n e d w i t n e s s e s , p e r s o n a l l y c a m e
a n d a p p e a re d , fi r s t l y ;
( B O R N O N 9 J U LY 1 9 7 0 )
( B O R N O N 0 1 J A N UA RY 1 9 7 7 )
A N D T H E A P P E A R E R S D E C L A R E D T H AT :
W H E R E A S t h e Fo u n d e r s a re d e s i r o u s o f e s t a b l i s h i n g a Tr u s t
f o r t h e d e v e l o p m e n t o f c a n c e r re s e a rc h i n Z i m b a b w e
N O W T H E R E F O R E T H E S E P R E S E N T W I T N E SS :
T h e n a m e o f t h e Tr u s t h e re b y e s t a b l i s h e d s h a l l b e
known as
T h e Fo u n d e r s g i v e , s e t t l e a n d d o n a t e , a s s i g n , c e d e a n d
o v e r , u n t o a n d u p o n t h e s a i d Tr u s t e e s i n t r u s t f o r d u e
t e rm s
h e re i n a ft e r s e t f o r t h , t h e s u m o f $ 1 0 0 0 0 0 0 . 0 0 .
T h e a i m s a n d o b j e c t s f o r w h i c h t h e Tr u s t i s e s t a b l i s h e d a re
To e s t a b l i s h t h e H E L P Z I M C A N C E R C E N T R E
To s e t u p a re s e a rc h i n s t i t u t e t o c a r r y o u t c a n c e r
T h e s a i d s e t t l e m e n t a n d d o n a t i o n s h a l l t a ke e ff e c t o n t h e
o f e xe c u t i o n o f t h i s Tr u s t D e e d .
T h e Tr u s t s h a l l b e a d m i n i s t e re d a n d m a n a g e d b y a b o a rd o f
l e s s t h a n t h re e ( 3 ) Tr u s t e e s w h o s h a l l b e Tr u s t e e s w h o a re
p a r t i e s t o t h i s D e e d a n d a n y a d d i t i o n a l Tr u s t e e o r Tr u s t e e s
m a y b e a p p o i n t e d a s s u c h f r o m t i m e t o t i m e b y t h e Tr u s t e e s
o ffi c e .
T h e Tr u s t e e s a re h e re b y a p p o i n t e d
f o l l o w i n g t e rm s a n d c o n d i t i o n s :
N o re m u n e r a t i o n w h a t s o e v e r , o t h e r t h a n n e c e s s a r y
out of
p o c ke t e x p e n s e s , s h a l l b e p a y a b l e t o t h e Tr u s t e e s f o r
s e r v i c e s i n t e rm s h e re o f w h i c h s e r v i c e s s h a l l b e
re g a r d e d a s
c h a r i t a b l e s e r v i c e s o n t h e p a r t o f t h e Tr u s t e e s .
7 . 1 . t o c o n s u l t a n d a p p o i n t a n d a t p l e a s u re t o re m o v e Le g a l
Pr a c t i t i o n e r s , Ac c o u n t a n t s a n d / o r a g e n t s ;
7.2. to institute
p ro c e e d i n g s
t o t h e fi n a l e n d a n d d e t e rm i n a t i o n t h e re o f ;
7 . 3 t o d o a l l s u c h t h i n g s a n d t o a s s i g n , e xe c u t e a n d t o
all such deeds, documents and papers as may be
re q u i s i t e
i n t h e p re m i s e s o r a s m a y b e n e c e s s a r y o r i n c i d e n t a l t o
d u e a d m i n i s t r a t i o n a n d c o n t r o l o f t h e Tr u s t Fu n d ;
8 . 1 A n y o n e o f t h e Tr u s t e e s s h a l l i p s o f a c t o v a c a t e o ffi c e
i f:
he is adjudged insolvent or compounds with his
c re d i t o r s ;
h e i s c o n v i c t e d a n y w h e re t o t h e ft , f r a u d , f o r g e r y ,
a n d i s s e n t e n c e d t h e re f o re t o i m p r i s o n m e n t
t h e o p t i o n o f a fi n e o r t o a fi n e o f a n y a m o u n t ;
9 . 1 I n t h e e v e n t t h a t t h e Tr u s t e e s a re u n a b l e f o r a n y
re a s o n
t o re a c h a g re e m e n t b e t w e e n t h e m o n t h e e xe rc i s e o f
t h e i r p o w e r s , t h e n s u c h a g re e m e n t s h a l l b e re f e rr e d
f o r a r b i t r a t i o n w h o s e d e c i s i o n s h a l l b e fi n a l .
1 0 D U R AT I O N O F T R U S T
T h e Tr u s t s h a l l
anytime be
wound up or
majority, at
ex istence
Re s o l u t i o n
a meeting of which special notice shall be given.
t w o - t h i rd s
O F … … 2 0 0 7 i n t h e p re s e n c e o f t h e s u b s c r i b i n g w i t n e s s e s
a n d o f m e t h e s a i d N o t a r y Pu b l i c .
As witnesses :
As witnesses :
Protocol Number………
In Terms Of Section 27 Of The Deeds Registry Act, (Chapter 20; 05) as amended.
THAT, on this … day of ……… in the year of our Lord two thousand and twelve (2012) before me,
Of Harare, Zimbabwe, Notary Public and Legal Practitioner by lawful authority duly sworn and
admitted and in the presence of the subscribing witnesses personally came and appeared
(born the 3rd May, 1942)
in his personal capacity as the lawful and rightful owner thereof
he is the registered owner of
two (2) pieces of land situate in the district of Hartley;
2/ Being……….
Being -
as such Reminder One Thousand Three Hundred and
(1318) Square Metres;
Three Hundred and Ninety Seven (397) Square Metres;
Deed of Transfer Number 4928/82 dated 15 th of September
(hereinafter referred to as “the property” together with all buildings and erections
thereon or to be built or erected comprising houses , blocks of flats and other
improvements (hereinafter referred to as a “unit” or “units”)
The Company wishes to transfer to such persons as may purchase , four (4 ) undivided
shares in the property , each of which shall be coupled with an exclusive right of
occupation of a unit.
1. THAT four (4) undivided shares in the property are hereby created and are numbered
consecutively and identified as numbers one to four (1-4) and each share shall have the exclusive
right of occupation hereinafter referred to.
2. THAT the extant or percentage of each of the undivided shares hereby created is as follows;
3. THAT each undivided share shall, subject to the provisions hereafter contained , confer the
registered owner thereof and his successors in title;
a) An exclusive right of occupation of a unit on the property bearing the number which
corresponds with the number of units of the undivided shares morefully depicted in the
plans of such units hereunto annexed marked Annexure “B” Sheets 1-4
b) An undivided share in the land between beacons ABCDEA as depicted and described in
the diagrams prepared by the Land Surveyor ………………….. in ………….. 2012, S.G. Nos
………/2012 hereto annexed marked “A” in the percentages set out in 2 hereof.
4. THAT notwithstanding what is set out above, save for the units, the property shall be deemed to
be common property, notwithstanding the transfers to be passed pursuant to this Deed, and the
rights of the owners and their invitees pertaining to the common property and the units shall be
regulated in terms of the Constitution annexed hereto marked Annexure “C” and any rules made
in terms thereof.
5. THAT the right of occupation hereby granted shall be subject to a right in favour of each other coowner to enjoy the use of the common so that each other co-owner shall be entitled to use part
of the property over which the exclusive right will be granted for the passage or provision of
water, sewage, drainage, electricity, garbage and other common services including telephone,
wireless and television services through or by means of pipes , cables or ducts existing in or
under the land or in the buildings to the extend to which such pipes , wireless , cables or ducts
are capable of being so used. Such right in favour of each other co-owner shall include the right
to have reasonable access to the point of the property over which the exclusive right is granted
and to extent necessary to maintain, repair or renew any part of the building s or any pipe, wires,
cables, or ducts therein.
6. THAT the Company shall have the unfettered right, subject to the provisions and stipulations
contained or referred to in this Deed, to transfer an undivided share of the property coupled with
an exclusive right of occupation of a unit, but such transferee shall have no right to use and enjoy
any unit relating thereto other than that which is the subject to his exclusive right of occupation.
7. THAT each unit shall be used solely for the purpose approved by the Company and the
appropriate planning authority and for no other purpose unless agreed to in terms of the
conditions hereinafter referred to.
8. That the reciprocal rights and obligations of the registered owners of the undivided shares
hereby created shall be set out in the Constitution Of The Victorina House Owners Association
and annexed hereto marked Annexure “C” which shall be deemed to be incorporated as part of
this Deed. The administration, maintenance and use of the property and improvements thereon
and all matters related thereto shall be governed by the provisions of the aforesaid Annexure
9. THAT so long as a transferee remains the registered owner of an undivided share, he shall ensure
that any invitee or person to whom he may grant the right or privilege of entry to or occupation
of such unit shall observe and comply with all the relevant provisions of this agreement and its
10. THAT the provisions of this Deed may be varies or amended only in accordance with the
provisions of Clause 26 of Annexure “C”
THUS DONE AND EXECUTED at Harare aforesaid on the day, month and year aforewritten in the
presence of me, Notary Public/Legal Practitioner and the subscribing witnesses.
1. …………………………………………………………
2. …………………………………………………………
Quod Attestor
Notary Public / Legal Practitioner
3 x Notarial Deed of Change of Name
Mothers Consent
Proof of Advertising in the Gazette and Herald
Registration Fees
Prepared by: