INTRODUCTION TO ZIMBABWEAN LAW
1. The nature and origin of law
(a) The nature of law
Law is used in society to reflect social values and norms. It is one of the most
effective instruments used in upholding and safeguarding community values and
aspirations.
Law is an instrument of state power. In ancient societies law was a weapon used by
the ruling elite to consolidate their grip on power. Under the modern concept of state
power, the law can be used for the same purpose.
Certain sanctioned practices are commonly referred to as undemocratic e.g.
suppression of freedom of speech and deprivation of other freedoms. The force of
law is used to make the practices hold. It is thus a convertible tool capable of being
used for good or bad courses by those in position to mobilize it in their favour.
Slavery and apartheid to name just a few had a strong legal backing. Today they
have been eradicated and the eradication largely assumed a legal backing.
The law can be generalized as a set of rules designed to regulate human behaviour.
Law is constantly assuming new outlooks and perspectives that are reflective of the
changes in the society it serves.
(b) Origin of law
The origin of law can be traced back in ancient history to the very days when man
began to be organized into distinct societies. Before that man was highly mobile
hunters and gatherers and there were no fixed societies. As man began to form
themselves into states, the sate assumed the role of maintaining order.
Law was identified as one of the main instruments the state could not only use to
regulate human conduct but also to further its objectives. One of the main objectives
is the maintenance of order and the attainment of fairness in society.
2. Laws and their classification
The law can be classified as follows:
2.1 Public and private law
Public law comprises those laws that regulate rights, relationships and obligations
between the state or its administrative arms on the one hand and its subjects on the
other.
Public law is concerned with the interests of the public at large and the welfare of
the state.
Public law is formed from the following branches of law:
(a) Public international law
This law governs inter-state relationships e.g. immigration laws between Zimbabwe
and other countries.
(b) Constitutional law
This law is concerned with the functions of the organs of the state, namely, the
legislature, the executive and the judiciary, as well as power within the state.
(c) Law of procedure
The law of procedure deals with procedural aspects applicable to both civil and
criminal courts in a given jurisdiction.
2.2 Private law
This branch of law governs the rights and obligations where both parties involved
are private persons. The word person includes companies and other organisations
of a like nature. Examples include law of persons, family law, law of property,
intellectual property law, law of succession, law of contract and insurance law. The
fundamentals of all insurance transactions lie in contract and consequently the law
governing contracts is very important to insurance students.
2.3 National and international law
National laws are laws pertaining to a particular state. Internal law is a body of
rules that regulates the conduct of states towards one another.
2.4 Civil and criminal law
(a) Civil law
A delict is a breach of a general duty imposed by law leading to a civil action at the
instance of the injured person. Civil law governs relationships between private
individuals and is not concerned with the community at large.
In civil proceedings it is up to the injured party to seek redress or waive his rights. In
civil cases the two parties are always cited e.g. Jeki Chani versus Pita Ghost.
The dominant role is to compensate the party injured by breach of legally imposed
duties. Civil law can also be used to prevent a threatened wrong from being
committed e.g. an injunction can be used to prevent a threatened breach of
contract.
(b) Criminal law
A crime is simply a public wrong. Criminal conduct is that conduct which is viewed
as harmful or prejudicial to the society at large despite the fact that the particular act
complained of would have been committed against one person or a small number of
people.
For example, where A steals from B the view taken by the law is that such conduct
is not only harmful to B alone but to the whole community represented by the State.
Consequently all criminal proceedings are usually conducted and sanctioned by the
state.
The state through the Attorney General plays a key role in all criminal proceedings
in contrast with civil proceedings where it is up to the injured party to seek redress
or waive his rights.
All criminal cases cite the state as the main complainant e.g. The state versus Jeki
Chani even though in reality the actual complainant would be a private individual.
Because criminal law deals with public wrongs all those found should be punished.
Punishment takes the form of imprisonment, payment of fines, canning or any other
form of punishment which the court can legally hand out.
(c) Technical distinction between civil and criminal law
The distinction is centered on the degree of proof legally required for a claim to
succeed under the two branches of law. In our law a civil case will succeed if there
is enough evidence on a balance of probabilities to support it.
On the other hand a criminal prosecution will only succeed if the available evidence
proves that the accused person is guilt beyond a reasonable doubt.
A lower standard of proof is used in deciding civil cases while a much high standard
is used for criminal cases. This difference is understandable in view of the fact that
a criminal conviction leads to punishment and one form of punishment often handed
out by courts is deprivation of liberty (i.e. imprisonment). By imposing a higher
burden of proof on criminal cases seeks to eliminate the danger of punishing
innocent citizens.
It should be noted that some acts have a dual character and thus qualify to be civil
or criminal at the same time. For example e.g. assault which is both a criminal and
a civil act in one. It is possible for the wrongdoer to face proceedings under the two
branches of law at the same time or on separate occasions.
Although criminal proceedings are conducted on behalf of the sate by the Attorney
General, there are circumstances in which he may decline to prosecute the case
brought before him.
When this happens the aggrieved party can arrange for a private prosecution with
the state not playing a key role. In Zimbabwe private prosecutions are very rare
presumably on account of the high costs involved.
3 The purpose and principles of law
3.1 The purpose of law
The fundamental role of law in society is the preservation of order. A society that is
not governed by the rule of law can easily degenerate into anarchy.
Functions of the law are as follows:
(a) The law is one of the key instruments used by the state in the exercise of its
power.
(b) The law is also used in the attainment of justice i.e. fairness.
(c) The law is also used for regulatory purposes e.g. the RTA Act Cap 13:11 which
regulates among other things compulsory motor insurance in respect of third
party liabilities.
The law must be enforced in order to perform the above functions. To this end the
state must have efficient law enforcement agencies and structures namely the
courts, police and prisons.
3.2 Principles of law
The basic principles of law are as follows:
(a) Just application
The law ought to be just and reasonable, both in regard to the subject matter,
directing what is honourable, forbidding what is bad. This means laws that are
despotic, unjust or devoid of reasonableness will not commend themselves to
society and will eventually fall into disuse or will be superceded
Law is essentially an expression of societal values and norms hence a law which
fails to articulate and reflect these values cannot be sustained for long.
(b) Equality
The law should be applied equally to all persons regardless of their condition or
circumstances. Class, race, culture, ethnicity and religious idiosyncrasies should be
irrelevant in this respect e.g. where a poor man kills another using a knife and a rich
man does a similar thing in similar circumstances the two should be treated in the
same way.
However, there are situations where peculiar circumstances pertaining to each case
are regarded e.g it would be unfair to treat a juvenile aged fourteen years who kills
a person in the same manner as a forty year adult who commits the same offence.
(c) Uniformity
Similar to the principle of equality is the principle that law should have a general and
uniform application to all people throughout the country.
If A who is a resident of Harare commits cold blooded murder is fined
Z$1 million and B who is a resident of Gweru commits a similar offence and is
sentenced to death, there will definitely be a public outcry. If the law is to be seen
as just then there must be uniformity in its application.
(d) Authority
The responsibility to make law must be given to the proper authority. In Zimbabwe
the responsibility of making law is largely the prerogative of the legislature i.e. the
Parliament of Zimbabwe.
However, statutory bodies have legislative powers delegated to them by Parliament
itself e.g. making of by-laws regulating activities in the area under the control by a
local authority.
(e) Certainty
The law must be sufficiently certain if it is to be enforceable. If it is ambiguous an
environment of legal uncertainty is created under which people are unaware of what
the law says.
To facilitate legal certainty laws must be declared and made known before they are
applied. The practice in Zimbabwe and many other countries is that the new laws
are promulgated (i.e. made known by publication in the official organ of the state
known as the Government Gazette.
Once this is done no one can successfully argue that they did not know the law.
The principle “ignorantia juris non excusa” (ignorance of the law is no excuse)
then applies. Everyone is then presumed to know the law.
It should be noted that some laws are so well known that there is no need for them
to promulgated. Such laws are part of common law. Laws on murder, theft, rape,
etc fall in the category of common law. These laws are not the result of legislation
but they are created largely by custom of the people and the decision of judges.
3.2 Sources of law
Zimbabwean Roman-Dutch law is derived from four sources, namely, Roman Law,
Custom, Legislation and Judicial Precedent
(a) Roman law
Roman law forms the basis of Roman Dutch Law in Zimbabwe. Rome was
founded in approximately 753 B.C. The earliest Roman law was developed
during the monarchy and the law was a mixture of religious, moral and
customary rules. The monarchy came to an end with the expulsion of the last of
the kings – Tarquinius Superbus (Tarquin the proud). After the monarchy came
the Republic which opened the period 509 B.C. to about 27 B.C.
In the early days of the republic Roman society was divided into two conflicting
groups namely – the Patricians and the Plebeians.
The Patricians as a social grouping were powerful and wealthy. They virtually
owned all the major means of production and thus occupied the upper class
position in society. The Plebeians on the other hand were the lower class who
were severely disadvantaged both politically and economically. It was during the
Republican era in approximately 450 B.C. that the Law of the Twelve Tables
was passed. From 27 B.C. came the Roman Empire.
The term “Roman Dutch Law” was first used by Simon Van Leeuwen, a famous
Dutch jurist living from 1625 to 1682. The term denotes a fusion of Roman law
with Dutch law.
The Romans spent quite a long period in the Netherlands which formed part of
the then Roman Empire. During this period Roman law was absorbed into the
native Dutch law.
Roman Dutch as a system of laws was introduced in the Cape when Jan Van
Reibeck of the Dutch East India Company settled there in 1652. The early
Dutch settlers brought with them the Roman Dutch system of law from their
native country Holland (Netherlands). This system of law was initially practiced
in the Cape and subsequently it spread to Natal, the Transvaal, Orange Free
State and eventually into the then Southern Rhodesia (Zimbabwe).
History has it that in 1806 the British annexed the Cape Province. One of the
conditions that was agreed on for the transfer of the Cape to the British was that
the colonists retained their own legal system. This condition effectively meant
that despite the fact that the Cape was going to be under British administration,
Roman Dutch law was retained as the law of the colony.
When the Pioneer Column arrived in present day Harare in 1890, they brought
with them the Roman Dutch System of law which they had been practicing in
South Africa. Later on 10 June 1891 the then British High Commissioner issued
a proclamation to the effect that Southern Rhodesia (Zimbabwe) was to be
governed for the time being by laws applicable in the Cape colony. This
heralded the official importation of Roman Dutch law into Zimbabwe where it
formed the basis of our common law.
The Lancaster House Constitution of 1979 contained further provisions which
effectively put the final seal on the Roman Dutch law as the legal system of the
country.
Section 89 of this constitution provides:
“Subject to the provisions of any law for the time being in force in Zimbabwe
relating to the application of African customary law, the law to be administered
by the Supreme Court, the High Court and by any courts within Zimbabwe
subordinate to the High Court shall be the law in force in the colony of the Cape
of Good Hope on 10th June 1891 as modified by subsequent legislation having
in Zimbabwe the force of law”
This therefore meant that even the status of Roman Dutch law as the legal
system of this country was confirmed.
However an important consideration worth noting is that by the time Roman
Dutch law came to Zimbabwe it already contained significant English infiltrations.
In the period leading to the annexation by the British and soon thereafter, the
Cape had seen an influx of English trained lawyers who were prone to refer to
the English law with which they were familiar. Additionally in the early days of
Zimbabwe’s colonization, an appeal lay only on the Cape Supreme Court, later
to the Appellate Division of the Supreme Court of South Africa. A final appeal
could be made to the Privy Council – a British court that dealt with colonial
matters.
(b) Custom
A custom is a practice which by long-established usage has come to have the
force of law (Collins Internet Linked Dictionary, 2006).
Custom is a recognized source of law and in this country customary law includes
practices that have been accepted as binding by society and have thus become
legally enforceable.
When the colonial settlers arrived in this country in 1890, Roman Dutch law was
introduced as common law of the country. However, customary law as was
practiced by the people in Zimbabwe was recognized as the law that was to
govern relationships between the indigenous people provided that such customs
were not in conflict with any legislation then in force or was not against the rules
of natural justice.
Similarly those customs that were considered repugnant to good morals as
determined by the colonial administrators were also banned.
For a custom to be recognized as binding and therefore legally enforceable, it
had to be:
1. Reasonable
2. Long-standing
3. Certain
4. Uniformly observed
The above requirements were enunciated in the case of Van Breda v. Jacobs.
This case concerned a fishing dispute between fishermen of the Cape Coast.
There was a custom amongst the fishermen to the effect that once fishermen
had put their lines in a particular place for the purpose of catching fish, no other
fishermen were entitled to set their lines close to those of the first group as this
would have the effect of intercepting the fish which could have been caught by
fishermen who had put in their lines first. The courts decided in this case that
since this custom was long standing, reasonable, certain and uniformly observed
in that area, it was therefore legal and enforceable.
Soon after the colonial settlement in 1890, special courts were introduced to
administer customary law. These included the District Commissioner’s Courts,
Chief’s courts and African Appeals Courts. Most of these courts were presided
over by the colonial administrators who knew very little about African Customs
and Customary Law and hence tended to apply Roman-Dutch law principles that
were common knowledge to them. As a consequence of this drawback in the
application of customary law, the growth and influence of custom in the
development of the law was restricted.
Upon the attainment of independence, customary law was given similar
recognition to Roman-Dutch law. This was done through the creation of primary
courts i.e. village community courts, which did away with the racial discrimination
that was inherent in the application of customary law prior to independence.
Presiding officers who heard matters in these courts were appointed on the
basis of their knowledge and appreciation of customary law.
The extent to which custom is still an important source of law in present day
Zimbabwe society is now a highly debatable issue. Some argue that the pace of
societal development is now so fast that custom cannot keep pace with it. To
this extent custom is fast losing its place as a source of law.
(c) Legislation
Legislation is the promulgation of binding law in a precise and well defined form
by a person or body having the legal power to do so. Legislation is the most
important source of law-making today.
In Zimbabwe context the Legislature consists of the President and Parliament.
Currently the Parliament consists of the House of Assembly and the Senate in
which one hundred and fifty members sit. Most of these members are elected
by the various constituencies they represent and the twelve are appointed by
the President in terms of the constitution of the country.
The legislature can make whatever laws it considers necessary or desirable in
the interests of peace, order and good government. By the same token the
legislature can subsequently amend or repeal any such laws. Law made by the
legislature is known as Statute law and each separate law is known as an Act
which means an Act of Parliament.
Currently there at least five hundred Acts in existence and these are constantly
being updated, amended and sometimes repealed. In 1963, 1974 and again in
1996 all Acts in force in the country were revised, consolidated and were
published in separate consecutive volumes. Every Act is referred to by its short
title and the chapter number allocated to it e.g. the Act regulating the use of
motor vehicles on public roads is referred to as the Road Traffic Act (Chapter
24:03).
Sometimes an Act will generally set out the broad principles pertaining to a
particular subject only and will authorize some other person or body to issue
other enactments providing for the detailed administration of the Act and the
implementation of the principles involved. Most of the issues covered by
legislation today are so complex and technical that the legislature often
delegates its power to make enactments to responsible bodies that are better
qualified to understand and control the actitivities of such concerns. Such
legislation is called delegated of subsidiary legislation.
The bulk of delegated legislation falls within the following well defined
categories:
1. Statutory instruments
This is generic term used to describe laws passed under an enabling Act
Statute law therefore comprises Acts of Parliament and statutory instruments
passed under the relevant Acts.
2. Local authority orders
These are rules authorized by statute e.g. compulsory designation of
property.
3. Local authority by-laws
Such laws may be formulated by a local authority to apply to a particular
area under its administrative jurisdiction. By-laws are usually confined to a
particular locality to deal with a problem peculiar to that area.
4. By-laws of public corporations
The power to formulate by-laws also extends to public corporations e.g
National Railways of Zimbabwe, Posts and Telecommunications, Zimbabwe
Electricity Supply Authority, etc. have legislative power delegated to them
under the various Acts constituting them.
To safeguard against the abuse of delegated legislative powers, the following
mechanisms are often employed:
(a) All subsidiary legislation must be published in the Government Gazette to
ensure that the attention of the public is drawn to such an instrument.
(b) Most subsidiary legislation is subject to the scrutiny of parliament after its
promulgation.
(c) All delegated are supervised by the courts via the doctrine of ultra vires
to ensure that the responsible does not exceed its delegated powers.
(d) The procedure specified for making such legislation must be followed and
the legislation must not conflict or violate an already existing Act of
Parliament.
Loss of legal validity
1. An Act of Parliament can lose its legal validity through abrogation.
To abrogate is to abolish, cancel or repeal an existing statute law.
Abrogation is normally done through the legislature which passes a new Act
expressly repealing the old one.
2. An Act can also lose its legal validity through implied repeal.
This is an indirect way of repealing legislation. It operates as follows: where
a provision in an Act is inconsistent with a provision in an earlier Act, the
later provision may by implication repeal an earlier one in the absence of
anything to the contrary.
3. An Act made for a specific period will cease to be of any legal force at the
expiry of the period.
(d) Judicial precedent
Courts have developed a habit of following previous decisions within more or
less well defined limits. This called the doctrine of precedent. A precedent is a
previous judicial decision which serves as a rule or guide for similar cases heard
in future. This is a very important source in modern societies.
Such a decision must be made by a competent court and in Zimbabwe it means
only the High Court or the Supreme Court can set precedents. The fundamental
principle involved in the doctrine of precedent is embodied in the Latin maxim
“stare decisis non quita movere” which basically means to stand by previous
decisions and not to disturb settled points.
The decisions of the High Court and Supreme Court are binding on the inferior
courts (community and village courts). The decisions of the Supreme Court are
binding on all other courts including the High Court.
The decisions of the inferior court do not bind any other court, even themselves.
Decisions of courts of other countries are not binding on any court in Zimbabwe.
However, our courts regard them as “persuasive authority”. These include
decisions of the Supreme Court of Appeal of South Africa, the House of Lords,
etc. The term “persuasive authority” means that the local courts will have regard
to these foreign decisions and attach due weight to them but will not regard
them as binding as such.
Advantages of the doctrine
1. It makes a law credible
A series of apparently contradictory decisions may result in the whole legal
system losing its credibility in the eyes of the public.
2. It makes the law in general more predictable.
3. It enhances reliability in the law.
4. It promotes equality and uniformity in the way the law operates.
Disadvantages of the doctrine
1. It allows the law to degenerate into a forest of erroneous notions as some
wrong decisions made will be maintained under the cloak that “what hath
been done before may legally be done again”
2. A strict application fails to allow legal rules to move with the times. Law must
be both stable and dynamic.
3. Doctrine can lead to manipulation of the law by lawyers who may want to
advantage from its lack of flexibility.
(e) Ratio- decidendi
This term means “the reason for the decision” or “the principle for the decision”.
The ratio-decidendi refers to that part of a previous decision which possesses
the rule of law upon which the decision was founded. It can also be defined as
the legally material facts of a case and the decision thereon.
(f) Orbiter – dictum
These are statements contained in a judgment which are not necessary or
relevant to the decision of the case (i.e. said by the way or incidentally).
More often than not judges express their opinion as to what the law is on some
aspect not really relevant to the case under consideration. A typical example is
where a judge postulates and answers a hypothetical set of facts or cites an
analogy. Such an orbiter –dictum is not binding on future courts but may be
accorded some respect by subsequent courts dealing with a similar matter
depending on the eminence of the judge who said it and the circumstances in
which the remark was made.
The reason why orbiter-dicta is not binding on future courts is that the point in
question (i.e. the subject of the dicta) may not have been properly argued and
evaluated with the result that its full implications may not have been fully
appreciated.
(g) Distinguishing
A court may avoid be bound by a previous decision if it distinguishes the
previous decision from the one it is being faced with.
To do this the court must make a finding that the facts of the present case are
so different from those in the previous case that the two decisions are
distinguishable. In other words the case before the court will not fall within the
ratio – decidendi of the earlier decision hence the need to distinguish it although
there may be similarities.
4 Sources of Insurance Law
The insurance law in Zimbabwe is heavily influenced by English law. The
Insurance Act Chapter 24:07 is the main legislation dealing with issues of
procedure in the conduct of insurance business in Zimbabwe.
5 The structure of the law courts
(a) Local courts
Courts in this country are divided into inferior courts and superior courts
The following inferior courts operate under the Customary Law and Local Courts
Act.
- Primary Courts
- Community Courts
Every primary court is presided over by a Headman or any other person
appointed by the Minister of Justice, Legal and Parliamentary Affairs in terms of
the Act. On the other hand every community court is presided over by a Chief or
any other person appointed by the Minister of Justice, Legal and Parliamentary
Affairs in terms of the Act.
Local courts only have jurisdiction involving customary law and amounts
claimable must not exceed five hundred dollars. Proceedings in local courts are
conducted in a simple and informal manner. Thus in local courts hearsay
evidence is largely admissible and legal practitioners are not entitled to appear
in these courts on behalf of a party in any case.
Any person dissatisfied with an decision of a primary court may appeal against
such decision to the community court within whose area of jurisdiction the
primary court is situated. On the other hand any person who is dissatisfied with
any decision of a community court may appeal against such decision to a
magistrate responsible for the area within which the community court is situated.
(b) The Magistrate’s Court
This court is a creature of the Magistrates Court Act. It is presided over by
resident magistrates in all the major services centres of the country. Additionally
there are circuit courts which service the more remote areas of the country.
Magistrates are civil servants who are legally qualified. On initial appointment
their jurisdiction is very limited but this increases as the magistrates advances in
his career. The stages magistrates go through are as follows:
(a) Criminal jurisdiction
1. Junior Magistrate – 12 months imprisonment with or without labour or a fine
not exceeding $1000 in default of payment an appropriate term of
imprisonment, provided this does not exceed the maximum of 12 months
2. Senior Magistrate - 24 months imprisonment with labour or a fine not
exceeding $2000 in default of payment an appropriate term of imprisonment
3. Provincial Magistrate - 36 months imprisonment with labour or a fine not
exceeding $3000 in default of payment an appropriate term of imprisonment
4. Regional – Generally 7 years imprisonment with labour. For armed robbery
regional magistrates have special jurisdiction of 10 years. They can also
impose a fine of $7000.
(b) Civil jurisdiction of magistrates court
Generally all magistrates have the same jurisdiction. The jurisdiction applies as
follows:1. They have jurisdiction over any person Criminal jurisdiction who resides,
carries on business or is employed within their province.
2. They also have jurisdiction over any partnership whose business premises
are situated within the province.
3. Jurisdiction also attaches to the magistrate whew the cause of action arises
within the province.
4. if the claim is based on a written acknowledgement of debt (i.e. a liquid
document like a cheque) the extent of the jurisdiction is $10 000. In any
other claim (i.e. those not based on a liquid document like ejectment claims)
the jurisdiction is $5000.
(c) The superior courts
The establishment of the superior courts namely the High Court and the
Supreme Court id provided for in the Constitution of Zimbabwe. Each of these
courts has its own enabling Act providing for the jurisdiction and powers
bestowed upon them. Judges of the High Court and the Supreme Court are
selected from eminent and experienced lawyers, prosecutors, magistrates, law
lectures, etc.
(d) The High Court
The high court is presided over by the Chief Justice, the judge president and
such other High Court judges as may be appointed. In civil trials the jurisdiction
of the court is unlimited as to persons, causes of action and the amount involved
in the dispute.
As regards criminal matters the High Court may pass any sentence permitted by
law and it is the only court that may impose the death sentence. In civil matters,
cases are usually heard by a single judge. Criminal cases are also normally
heard by a single judge with the assistance of two assessors. Assessors are
respected members of the community who are not legally trained as such like
chiefs whose role is to assist the judge on matters of fact. Matters of law are
exclusively for the judge alone to decide on.
(e) The Supreme Court
The Supreme Court is the highest court in the land. It is presided over by Chief
Justice and judges of appeal. A full Supreme Court bench consists of five
judges. The Supreme Court is not a court of instance, except in very
exceptionally circumstances, and mainly deals with appeals from all the lower
courts inclusive of the High Court.
The only time the Supreme Court sits as a court of first instance is when it
entertains a constitutional matter.
It has power to confirm, set aside or vary the judgment of any of any lower
court.
Other courts and tribunals
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Administrative Courts – e.g. Town Planning Appeal Court for the control
and administration of town planning)
-
The Rent Board – deals with issues of rents on leased properties and has
judicial powers
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The Juvenile Courts – their primary function is to safeguard the welfare of
children. Decisions of the juvenile courts are subject to review by the High
Court which is the upper guardian of all minors in the country.
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Small Claim Courts – their function is to adjudicate over small civil claims
generally not exceeding $ 2000.