INTRODUCTION TO LAW 4.4.3.

4.4.4. Law of
Succession
4.4.5. Law of
1.0. INTRODUCTION
Obligations
1.1. About the course
(Delictual and
Contractual)
2.0. JURISPRUDENCE 4.5. International Law
2.1. What is jurisprudence 4.5.1. Private
2.2. What is a Legal System International
2.3. Meaning of Law Law
2.4. Purpose of Law
2.5. Application of the Law
5.0. PARLIAMENT
2.6. Principles of Law
5.1. Structure of Parliament
5.2. Passage of Bills
3.0. SOURCES OF LAW
3.1. Custom
6.0. THE CONSTITUTION
3.2. General
6.1. Human Rights
3.2.1. Common Law
6.2. Establishment of Courts
3.2.2. Precedent
6.3. The Attorney General
3.2.3. Legislation
6.4. Separation of Powers

4.0. DIVISIONS OF THE LAW

7.0. THE COURTS
4.1. Constitutional Law
7.1. Structure
4.2. Administrative Law
7.1.1. The Supreme
4.3. Criminal Law
Court
4.4. Private Law
7.1.2. The High Court
4.4.1. Law of Persons
4.4.2. Law of Property

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7.1.3. The Magistrates 7.4.2. A Civil Trial
Courts
7.1.4. The Community
8.0. TIPS ON FINDING THE
Courts
LAW
7.1.5. The Primary
8.1. The Consolidated Index
Courts
to Zimbabwe Law
7.1.6. The
Reports
Administrative
8.2. The Law Reports
Court
7.1.7. The Small
Claims Courts 9.0. GLOSSARY OF TERMS
7.2. Extra Territorial
Jurisdiction
7.3. Arbitration
7.4. Court Hearings
7.4.1. A Criminal Trial

ABOUT THE COURSE

This course will cover the sources and divisions of the law of Zimbabwe,
Parliament and the Constitution. It also deals with the role of the courts and the
structure of the court system. The objective is to provide trainees with a basic
grounding so as to prepare them for further studies.

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Introduction to Law

Law-

 Definition is difficult to discern as it depends very much on the society in

which one belong.
 From a learning point of view, law can be defined as those rules and
regulations that oversee the human conduct and it is enforceable by the
state.
 Law can also be defined as that which assists victims of crime to get
remedial action in the event of breach of their rights.
 Law can be in several ways:-

Public law

Private law

Procedural law

Derived from two Latin words iuris prudentia meaning knowledge of the law or
the practice of the prudentes (the experts). Jurisprudence has two aspects :-
analytic and normative (the law as it is and the law as it ought to be).

JURISPRUDENCE

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 jurisprudence, Science or philosophy of law.
 Jurisprudence may be divided into three branches: analytical, sociological,
and theoretical.
 The analytical branch articulates axioms, defines terms, and prescribes the
methods that best enable one to view the legal order as an internally
consistent, logical system.
 The sociological branch examines the actual effects of the law within
society and the influence of social phenomena on the substantive and
procedural aspects of law.
 The theoretical branch evaluates and criticizes law in terms of the ideals
or goals postulated for it.

JURISPRUDENCE

1. Law as a science or philosophy.

2. a system of laws or a particular branch of law.

Noun 1. jurisprudence - the branch of philosophy concerned with the law and
the principles that lead courts to make the decisions they do

legal philosophy, law

philosophy - the rational investigation of questions about existence and
knowledge and ethics
contract law - that branch of jurisprudence that studies the rights and
obligations of parties entering into contracts
corporation law - that branch of jurisprudence that studies the laws
governing corporations
matrimonial law - that branch of jurisprudence that studies the laws
governing matrimony
patent law - that branch of jurisprudence that studies the laws
governing patents

 Natural law is the idea that there are rational objective limits to the
power of legislative rulers. The foundations of law are accessible through
human reason and it is from these laws of nature that human created
laws gain whatever force they have.[2]

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 Legal Positivism, by contrast to natural law, holds that there is no
necessary connection between law and morality and that the force of law
comes from some basic social facts although positivists differ on what
those facts are.[3]
 Legal Realism is a third theory of jurisprudence which argues that the
real world practice of law is what determines what law is; the law has the
force that it does because of what legislators, judges, and executives do
with it. Similar approaches have been developed in many different ways in
Sociology of law.
 Critical Legal Studies is a younger theory of jurisprudence that has
developed since the 1970s which is primarily a negative thesis that the
law is largely contradictory and can be best analyzed as an expression of
the policy goals of the dominant social group.

Aristotle

Aristotle, by Francesco Hayez

Main article: Aristotle

Aristotle is often said to be the father of natural law. [7] Like his philosophical
forefathers, Socrates and Plato, Aristotle posited the existence of natural justice
or natural right (dikaion physikon, δικαίον φυσικόν, Latin ius naturale). His
association with natural law is due largely to the interpretation given to him by
Thomas Aquinas.[8] This was based on Aquinas' conflation of natural law and
natural right, the latter of which Aristotle posits in Book V of the Nicomachean

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Ethics (= Book IV of the Eudemian Ethics). Aquinas's influence was such as to
affect a number of early translations of these passages, [9] though more recent
translations render them more literally.[10]

Aristotle's theory of justice is bound up in his idea of the golden mean. Indeed
his treatment of what he calls "political justice" derives from his discussion of
"the just" as a moral virtue derived as the mean between opposing vices, just
like every other virtue he describes.[11] His longest discussion of his theory of
justice occurs in Nicomachean Ethics and begins by asking what sort of mean a
just act is. He argues that the term "justice" actually refers to two different but
related ideas: general justice and particular justice. [12][13] When a person's actions
are completely virtuous in all matters in relation to others, Aristotle calls her
"just" in the sense of "general justice;" as such this idea of justice is more or less
coextensive with virtue.[14] "Particular" or "Partial justice", by contrast, is the part
of "general justice" or the individual virtue that is concerned with treating others
equitably.[13] Aristotle moves from this unqualified discussion of justice to a
qualified view of political justice, by which he means something close to the
subject of modern jurisprudence. Of political justice, Aristotle argues that it is
partly derived from nature and partly a matter of convention.[15] This can be
taken as a statement that is similar to the views of modern natural law theorists.
But it must also be remembered that Aristotle is describing a view of morality,
not a system of law, and therefore his remarks as to nature here are about the
grounding of the morality enacted as law not the laws themselves. The passage
here is silent as to that question.

The best evidence of Aristotle's having thought there was a natural law comes
from the Rhetoric, where Aristotle notes that, aside from the "particular" laws
that each people has set up for itself, there is a "common" law that is according
to nature.[16] The context of this remark, however, suggests only that Aristotle
advised that it could be rhetorically advantageous to appeal to such a law,
especially when the "particular" law of ones' own city was adverse to the case
being made, not that there actually was such a law;[17] Aristotle, moreover,
considered two of the three candidates for a universally valid, natural law
suggested in this passage to be wrong.[18] Aristotle's theoretical paternity of the
natural law tradition is consequently disputed.[citation needed]

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Aspects of jurisprudence

Jurisprudence can be defined as that branch philosophy that deals with origins of
law, how law is supposed to be enforced and why we are supposed to enforce
the law. It has been posited by posner in his document about problems of
jurisprudence that:-

Jurisprudence addresses the question about law that an intelligent layman of

speculating bent … not a lawyer might pick particular interest. What is
law?...Where does it come from?...Is law an automous discipline?...What is the
purpose of law?...Is law a science or humanity?...

Schools of jurisprudence

Natural law school

It assumes that law can not be divorced from morality. It also advances the idea
of normative values to be considered when making law. Natural law school has
been developed by the likes of Aristatle, St Thomas, Acqinus, John Locke, Ian
Fuller and Finnis. To Aristotle’s Natural law is that which ought to be and it
should be derived from nature. Natural law is believed to be rational conventions
of moral judgments. It has an objective of moral principles which depend upon
the nature of the universe and which can be discovered by reason. It also
proposes that they should be goodness in the law that is in place. Further
expound that law can be divided into four sectors

Lex eternal- the good discovered by nature, God’s plan for the universe into
which rational men could gain insights through relations

Lex naturalis- (Conscious participation)-

Lex divinor- The law of God revealed by the scriptures.

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Lex humana- Positive law- derived from the secondary natural law. It is
necessary for the following reasons:

-natural law does not provide all solutions for everyday life in society.

There is need for compulsion to force selfish people to act reasonably. To him,
human law or Lex humana can either be just or unjust. To be just, a positive law
must be virtuous, necessary, clear and of common good. He castigated unjust
law as a pervasion of law and should not bind man’s moral conscience.
Obedience to unjust law can only be there to avoid anarchy. On the other hand,
Locke assumes that law should be read as it ought to be. He underscores the
fact that reason should be the cornerstone of law making. He goes on to say that
reason suppliers the answers why God’s wills are not clear. Reason enables every
man to grasp the context of law of nature. Therefore reason teaches us to
consult it that be all equal and independent. No one ought to harm another in
life. Locke claims that individuals tacitly concerns to obey the law by there mere
presence within the territorial confines of society since to be within a society
means taking advantage of the benefits derived from the actions of political
sovereign. Tarcity concerns made him subject to laws of the country that concern
is useful construct for demanding obedience to the laws by those present in the
society. Locke proposes that where laws are unjust people has a right to revolt
against that Government.

Contribution by Locke

It reinforces morals of legitimacy of capital production when he sites the sanctity

as private property.

He proposes that people should have their liberty at all times if that does not
happen people act on revenge in order to restore their violated political order.

Fuller and Morality

Just like Locke Fuller subscribes to the idea of reasoning in legal underlining. He
advocated for integrated relationship of means and ends which he says they
move in interactive fashion. Ends to him ca not be judged without considering
the means. The connection of law and morality is necessary for the function of
the legal system. He links with Locke on the fact that the legal system I
purposive human enterprise subjecting human conduct to government of rules.
He developed what he called internal morality of law (because he set up
standard for evaluation of official conduct.

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Natural law lessons

What can we gain from natural law? It has build up most constitutions nations
like the UN declaration of Human rights. It allows us to understand that law
should not be taken in its strict sense but should be considered in what moral
values are embedded in it. It also assist us to understand that law can not be
separated from the precepts of justice and fairness. Natural law does make us
think about why we have law, what law can achieve and what we should do
when we think it is faulty. Natural law helps us to understand that human law is
subservient from God made/ natural law. It also assists us to understand that
there are certain objective moral values in law. The notion of natural justice is
endorsed in the law. Natural law is mainly concerned with the ideal environment
(idealism) that is why it proposes what the law ought to be. The Latin maxim
Lex Luinusta non est lex meaning an unjust law is not law at all) summarises
it all.

The Positivists

The Positivists school centres much on their assertion that law should be taken
as it is. It seeks to stick law on any moral content so that one arrives at a
positive statement of law as it actually is. Notable adherence to the positive
school includes the likes of John Austin, Jejemy Bertham who bases positive
law as an off shoot of the principals of utility. The principal posses the fact that
law should promote happiness for the greatest number. He brings about this
statement/ assertion through analyzing what brings about pleasures and pain. A
measure of state may be said to be in conformity to utility when in like manner it
augments the happiness of the subjects. Laws promulgated should promote that
which benefits the society. On the other hand, Austin defines law as the
command of the sovereign backed by sanctions. He presupposes that there are
five elements that must exist:-

-There must be a sovereign (the ultimate source of power and law.

-There must be an independent political society a kind of hierarchy structure

where one command.

-The sovereign is the one who has the authority to command.

-Failure to obey these commands will result in sanctions (punishment).

-The subject of the sovereign should be in a habit of obedience to the sovereign.

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Contributions of the positivists to law.

It assists us to understand the role of parliament in making laws.

Positive theory take law as it is regardless of its moral content or whether it is

just or unjust. To the positivists, there is nothing called bad law or immoral law.
What law is is one thing. Its goodness or badness is another. Law itself could
only be taken from parliament and it is human made. It reinforces the statement
that law is utopia/esolesia.

Relationship between law and morality.

Recognition and relationship between the two is even found in our acts of
parliament eg the issue of murder is taken from the commandment “thou shall
not kill. Moral rules are converted into law in three ways:-

1 Through promulgation (enactments that become a legal rule) eg prostitution.

2 Through interpretation- usually laws are build up through judicial procedure

which is legally binding to other courts of law.

3 Custom Moral values may also be converted into law through custom which
may become source of the law eg Riggs v Palmer 115 NY 506 1889 of which the
circumstances were that a grandson named in a will of his grandfather be
allowed to inherit his property.

Relationship between law and justice

As we talk about justice we are talking about the legal system. The purpose of
the legal system is to achieve the ends of justice and the law per se (in itself)
ought to be just and reasonable both in regard to the subject matter, directing
what is honorable forbidding what is wrong. Justice is the external standard in
which each law can be measured. It is difficult to define justice but on a layman
point of view, justice is the fairness or acting morally right or fair. If it is not
according to law it is no longer justice (See Minister of lands and others v CFU
2001 (2) ZLR 457 (5).

Purpose of law

Hence its functions are mainly to preserve peace and order, to do justice, to
enforce morality and at times to protect property or interests of those in power.
It also assists in resolution of disputes.

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Preservation of peace and order

It is one of the important areas which the law advances. The preservation of
peace and order must be sought in order to maintain a functional society
although some theorists argues that certain autocratic governments suppress the
aspirations and interests of individuals in the cloak of maintaining peace and
order. Autocratic governments issue laws which infringe basic human rights by
appealing to the overriding need to preserve law and order. Laws which are
unjust are not supposed to be followed as they do not adhere to the notion of
justice. Unjust laws invite disobedience and may lead to anarchy.

To do justice

Law must serve the ends of justice though the notion of justice if difficult to
define since what is just to a particular society may not be just in another
society. Law must promote the view of justice shared by those who are part and
parcel of the law. Justice must not be viewed by the minority as unjust. Justice is
an institution which is subjective, which applies in terms of the whims (interests).
To some, this statement Penner 1999 concludes that:

The substance of justice is as much as if more a question of political

philosophy as of jurisprudence. It is ultimately a question of perception of
the relations of human beings in society.

To enforce morality

Law must enforce morality to prevent harm to others but where an act harms no
one but ones elf, law must not be involved.

The issue of homosexuality and prostitution are cases in point. Sir Wolfenden a
British Jurist with his committee agreed that there is no need to criminalize
homosexuality as long as it does not deprive social morals ( if done privately but
prostitution can be criminalized if there is an element of solicit.) John Stuart Mills
an adherent to this proposition points out that the state should not interfere with
the liberty or action with any of their number or individual unless it is for the
purpose of self protection. He points further that the only purpose for which
power can be rightly exercised over a member of a civilized community against
his will is to prevent harm to others. His own good, either physical or moral is not
a sufficient warrant. Lord Devlin on the other hand proposes that it is legitimate
purposes of law to enforce morality. Every society has a right to punish any kind
of an act that is grossly immoral. The test is not whether or not the act in

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question harms any person. The test of what is grossly immoral is that of a right
minded person (layman) and his socially moral opinion. To him, the reason for
using law to enforce morality is to achieve social cohesion rather than to endorse
its degradation.

To protect the interests of the ruling class

This is prefixed on the Marxist theory which argues that the main purpose of law
is to protect and promote the interests of the ruling class. To them law is a
component of the superstructure which is determined by the base economic
structure. As the ruling class owns the means of economic production. It controls
the base and uses the law to protect its interests. The ruling class suppresses
other classes in order to maintain the status quo.

Legal System

It is subtotal of law of a given society, how it is made, enforcement and

instructions involved in making and enforcements.

Legitimating of a legal system

Lon Fuller proposes the following features that legitimize a legal system:

 There must be rules – This is interpreted as a demand for generality ie

there must be rules of some kind and their essential feature is that there
must be general in scope.
 Promulgation – The demand that the law must be made public. The law
should not be kept secret-Citizens are not likely to know the contents of
all laws but they must be able to find them out.
 No retroactivity –rules must be protective i.e. in order to govern human
behavior, they must be set out in advance in order that citizens be able to
decide whether to conform to them or not. The basic Human rights of no
punishment without a law express this principle.
 Rules must as far as possible and clear in order that they must be
understood and followed. Rules that are contradictive have a possibility of
ordering Human conduct.
 No contradiction – rules that demand competing actions give no clear
guidance as to what behavior is expected by law. Laws must not require
the impossible. Laws that demand behavior over which have no possible
control can not allow a fulfillment of subjecting this conduct of rules

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Consistence

Laws must not keep changing rapidly if they are to produce stable expectations
of what the law requires from its citizens. There must be consistence in its
application.

Congruence between official action and docketed rules.

What officials do must be according to the law set out in advance in order to
avoid arbitrary powers of those in authority.

Legal Right

Is an entitlement conferred by the law to an individual. It may also means an

interest conferred by and protected by the law. Entitlement one person to claim
that another person or persons either give him something or to do an act for him
or refrain from doing an act. Rights are divided into different categories namely:-

Moral rights, Natural rights and legal rights.

A legal right entails a positive duty when the claim is the other person must
perform an act. It entails the negative if the other person refrains from doing the
act.

A legal right is only so if conferred and protected by the law. Within the legal
right fraternity, we have what we call personal rights and real rights. Real rights
per se are not directed at any particular person but are binding on all persons
requiring them to refrain from doing an act. Whilst personal rights are directed to
a particular individual to do or refrain from doing an act e.g. X may have a right
to claim W to deliver certain items or W not to interfere with his contractual
relations.

Legal personality. Legal rights are enjoyed only by legal persons but there are
exceptions in which institutions could be regarded as persons. In terms of the
companies’ act, corporate are regarded as legal persons and are able to transact
could be sued or can sue. They are regarded as so because they have got a
juristic position or are artificial persons. Therefore they have also a legal right
just like an individual. Corporate are separated from share holders and
management have got what we call a corporate identity.

Sources of law.

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Sources of law are those avenues in which our laws are born from or derived
from. Our Zimbabwe legal system is a derivative of different sources of law
among them being legislation, authoritative text books, customs, common law
and judicial precedence.

Legislation

Referred as statutory law that is directly from the legislature as defined by

section 32 (1) of the constitution “Parliament as a law making body may delegate
its powers to the president, minister or local authorities. By so doing these
bodies through delegated power can create what is called delegated legislation.
Delegated legislation are in the form of statutory instruments and even by laws
have the same effect as the main act. The test for legality of a statutory
instrument is that it has been passed within the powers of delegated authority
and that it must not be grossly unreasonable. It should adhere with the dictates
of the enabling act and the constitution. If it is contrary to these, any action
done will be regarded as ultra vires. If delegated legislation is within the dictates
of the enabling act or any other act in the guiding costs of all legislative
activities. All acts of parliament should pass a constitutional test. Section 3 of the
constitution proclaims that it is the supreme law of Zimbabwe and anything
which is inconsistent with it shall be void to the extent of the inconsistence.

Life of an act of parliament.

Shall subsist until it is repealed.

Affection of time eg the Presidential powers temporary measures. An act can also
be either amended or repealed if it is or provisions are inconsistence with the
constitution.

How to cite acts of parliament.

Acts of parliament can be cited in the following:-

 By reference in the chapter eg criminal law (codification and reform Act)

Chapter 9:07
 By reference to short title and calendar year in which it was enacted eg
labour act 1985.
 By reference to short title and calendar year and its number in the
calendar year in which it was enacted eg Labour act 1985 (act no
16/1985.)

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Generally, in Zimbabwe we adopt the first and the third option. SIs can be read
as follows: Presidential powers (temporary measures) (labor relations regulations
(1998 (51 368A/1998 that it is cited with no chapter and reference number ia
made to the title which refers to the code of gazetting. In other countries it may
be different eg English legal system cite acts by placing between the word act
and year and a comma and a calendar year.

Common law.

In terms of the constitution, the common law that is adopted is sanctified under
section 89 of the code where it reads in prose that the roman dutch law which
was in force since the 10th June 1891 will be used as a cardinal law by making
decisions in justice delivery. Section 3(1) of the Criminal law codification and
reform act nullifies the use of the roman Dutch law as our main law and it says,
“The non-statutory Roman-Dutch criminal law in force in the Colony of the Cape
of Good Hope on the 10th June, 1891, as subsequently modified in Zimbabwe,
shall no longer apply within Zimbabwe to the extent that this Code expressly or
impliedly enacts, re-enacts, amends, modifies or repeals that law.
This does not mean that our courts will discard the common law in its entirerity
but persuasively take reference to it just like the English legal System. Common
law can be defined as that portion of law which is not derived from legislation.
And emanates from a collection of principals maybe from judges in the course of
resolving issues brought before the courts. What it means therefore is that
common law is judgment law which also include what is called Judicial
precedence . When a court ascribes a meaning to a given provision of an
enactment that meaning may bind future reports. Usually the doctrine of Stare
desis is important. Common law has been applied in our system but it has
brought certain misgivings specially other groups of people in the fact that it
discriminates them. In Zimbawe, for a judicial precedence to be accepted as part
of common law, it has to satisfy the following:
 Should be a proposition of law not a proposition of fact
 The proposition must be part of ratio Decidnti Orbita dictum/dicta.
The ratio decidenti is the principal of law upon which the decision is based.
However, in a judgment, it is common for a judge

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WHAT IS JURISPRUDENCE

WHAT IS A LEGAL SYSTEM

A legal system is perhaps rather like an elephant – difficult to describe but easy
to recognize.

A layperson might well regard a legal system as including everything to do with

the law and its application from the Police to the Judges and the prisons. This is
an understandable view given that most people have as little to do with lawyers
and the law as possible and therefore have a tendency to regard the legal
system as simply the machinery used to deal with criminals.

From a lawyer’s perspective the expression “Legal System” has a different

meaning. It means the system by which laws are made, amended and applied.

It therefore includes those bodies, which have the power to make law and those,
which are responsible for its application.

THE MEANING OF LAW

There are many definitions of law, amongst which the following are found.

“rules that govern the behaviour of man.”

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Lord Chancellor Sankey, while paying tribute to the law of England had this to
say:

“amid the cross-currents and shifting sands of public life, the law is like a great
rock upon which a man sets his feet and be safe, while the inevitable inequalities
of private life are not so dangerous in a country where every citizen knows that
in the law courts, at any rate, he can get justice.”

THE PURPOSE OF LAW

The law has two main functions, to preserve order and to maintain justice, with
the interests of the individual balanced against the interests of the community.

In considering how the law maintains justice, is necessary to ask what is justice?
According to Reynolds in his book “An Introduction to Law”

“Justice is what appears to be right and fair to a fair minded man.”

In the legal context this “fair-minded man” is generally known as the “reasonable
man”.

There are also basic rights and principles of justice which are absolute and do
not need interpretation by a reasonable man.

The law achieves its objective of doing justice by treating all people equally and
to be accepted must conform to the prevailing perception of justice.

THE APPLICATION OF LAW

The law is there to protect the rights of individuals and to balance them against
the interests of society as a whole. For the law to be effective it is vital that the
system contains machinery for the enforcement of both the criminal and the civil
law, hence the need for a Police Force, Courts and the Prison Service.

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THE PRINCIPLES OF LAW

There are five basic principles of law.

1. The law must conform to the prevailing understanding of what is fair,

just and right (justice).
2. The law must apply equally to all people irrespective of their social
status, level of education, colour, race etc (equality).
3. The law must be applied in a uniform pattern (uniformity).
4. The law should only be made by people with the necessary authority
(authority).
5. The law should be clearly defined with recognized parameters
(certainty).

SOURCES OF LAW

1. CUSTOM

In Zimbabwe customary law is interpreted as the legal rights and duties affecting
indigenous people observing a traditional lifestyle.

It is defined in Section 3 of the Customary Law and Local Courts Act 1990 (Cap
7:05) as;

“ The Customary law of the people of Zimbabwe, or any section or community of

such people, before the 10th June 1891* as modified and developed since that
date.”

This is not the only country where there is customary law although in many
countries the significance of such law has been eroded with the passage of time.

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Customary law affects both civil and criminal cases and has been recognized for
many generations. Although customary law applies throughout Zimbabwe, it is
not necessarily uniform. It is quite possible for the customary law affecting one
group to differ from that affecting another.

In the past information regarding customary law was passed from one
generation to the next by word of mouth although in recent times efforts have
been made to record the law in written form.

The colonisation of Zimbabwe in the last century inevitably had an impact on the
existing legal system. The settlers brought with them their legal system which
was fundamentally the Roman-Dutch system applied in the Cape and there was
therefore a need to try to reconcile the two conflicting systems.

The colonisers, having achieved a military success, applied their system of public
law. However when it came to private law the customary law of the indigenous
people was recognized and continued to have effect. The advantage to the
colonial power was that order was maintained despite the lack of resources.

Customary law was recognized in the Royal Charter of 1890 which required the
British South African Company to have “careful regard” for it. Subsequent
legislation adopted a similar approach and customary law remains applicable to
the present day.

Section 80 of the Constitution provides that:

“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 or the High Court and by any other court in Zimbabwe
subordinate to the High Court shall be the law in force in the colony of the Cape

19
of Good Hope on 10th June 1891 as modified by subsequent legislation having in
Zimbabwe the force of law.”

It can be seen that although the Constitution makes the general law the law the
law of the country, it does not assist us to find out how customary and general
law co-exist.

It is therefore necessary to look at the Customary Law and Local Courts Act
1990, which provides for the application of customary law.

Section 3 (1) states as follows:

Subject to this Act and any other enactment, unless the justice of the case
otherwise requires,

(a) customary law shall apply in any civil case where-

(i) the parties have expressly agreed that it should apply; or
(ii) regard being had to the nature of the case and the surrounding
circumstances, it appears that the parties have agreed it should
apply; or
(iii) regard being had to the nature of the case and the surrounding
circumstances, it appears just and proper that it should apply;

(b) The general law of Zimbabwe shall apply in all other cases.

“Surrounding circumstances” are defined in S. 3 (2) as, without limiting the

expression, including-

(a) the mode of life of the parties;

(b) the subject matter of the case;

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(c) the understanding by the parties of the provisions of customary law or
general law of Zimbabwe, as the case may apply to the case;
(d) the relative closeness of the case and the parties to customary law or
the general law of Zimbabwe, as the case may be.

2. GENERAL

(a) COMMON LAW

The expression Common Law means that part of the law common to the whole
of Zimbabwe, formerly the unwritten law, now contained in the Criminal Law
[Codification and Reform] Act.

It is generally held that the Common Law of Zimbabwe is Roman-Dutch although

this is an over simplification of the position. Over the years there have been
other influences notably that of the English system.

In order to understand the present it is necessary to have some knowledge of

the past and we must therefore examine briefly the history of Roman-Dutch law
and its influence in Zimbabwe.

In 1652 Jan van Riebeeck a Dutch sailor landed at the Cape of Good Hope. He
had with him law books relating to the law in Holland, which was a province of
the Netherlands. That law had evolved from Roman law and it was in 1652 that
the expression Roman-Dutch law was first used.

Roman law was developed during the time of the Roman Empire. It was
therefore spread throughout the empire, which extended way beyond Rome
itself.

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Its influence spread throughout Europe although the degree of assimilation of
Roman law varied from country to country. In some countries such as some
German states, it was officially declared to be the law. In others, such as
Scotland it infiltrated subtly into the system. In England there was resistance to
Roman law and to this day its influence is minimal.

In the Netherlands although Roman law had not been officially adopted, the
courts referred to it as part of local law and thus informally, it became part of the
system.

In the seventeenth and eighteenth centuries prosperity based on trading came to

the Netherlands and produced a number of highly regarded legal writers who
further developed Roman law. Although the influence of this school was largely
swept away by invasion of the Netherlands by Napoleon, it was this refinement
of Roman law that arrived in the Cape of Good Hope with Riebeeck and became
known as the Roman-Dutch law.

The next major phase in the development of the common law of Zimbabwe was
the British capture of the Cape territories in 1806. The influence of English law
then began. There was no dramatic immediate change although over a period
there was a gradual and substantial shift.

Hence by 1891 the common law of South Africa had become Roman-Dutch with
a heavy English flavour. This was the common law adopted by the then Southern
Rhodesia

Since then the common law of Zimbabwe has developed to suit this country
whilst still being able to draw on English and Roman-Dutch influences.

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Even to this date after codifying the law, decisions based on both the English and
Roman-Dutch law continue to provide guidance in interpreting the law of
Zimbabwe.

(b) PRECEDENT

The doctrine of precedent refers to the fact that within the hierarchical structure
of the Zimbabwean courts, a decision of a higher court will be binding on a court
lower than it in hierarchy.

Thus the Supreme Court standing as the highest court in the land binds all courts
below it in the hierarchy. As regards its own previous decisions it is free to depart
therefrom. It is in other words, not bound by its own decisions. However, it must
be noted that although not so bound, the Supreme Court does not exercise its
descretion to depart from previous decisions lightly.

High Court decisions also have binding force on courts lower in the hierarchy.
The High Court is itself bound by decisions of the Supreme Court. It decisions in
turn bind the Magistrates courts and those below them.

Individual decisions of High Court judges do not bind other judges of the High
Court, although they are of strong persuasive authority and in practice other
judges tend to follow such previous decisions. Only in the rarest of occasions will
one judge depart from a previous decision of another judge.

On the lower scale in the hierarchy, decisions of magistrate courts and courts
subordinate to them have no binding force whatsoever.

What is binding in a previous decision?

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A judgment or decision comprises to two parts known as ratio decidendi and
obiter dictum.

RATION DECIDENDI

The ratio decidendi is the actual legal reason for the decision. In other words on
reading the whole case report, what one extracts as the legal principles that led
to the court’s decision, is what is the ratio decidendi of the case. The ratio is
what is binding in a case.

The ratio decidendi of a case may thus be understood as the statement of the
law applied in deciding the legal problem raised by the concrete facts of the
case.

It is important to note that the doctrine of precedent is not as hard and fast as it
may at first impressions appear to be. In practice the courts have used the
technique of distinguishing cases on their facts in order to decline to follow
otherwise binding precedent. This is possible because the legal decision in any
case is an abstraction from the immediate facts of that case. If, therefore, a
court decides, for some reason, that the facts in the case before it are so
different from those of a case setting the precedent, that court is at liberty to
ignore / depart from the precedent and treat the case before it as not being
covered by such precedent. The court may then decide the case as it thinks fit
without being bound by the otherwise binding precedent.

OBITER DICTUM

Not every statement of the law in a judgment is binding. Only those which are
based on the particular facts of the case, as found upon and upon which the
decision was based are binding.

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Any other statement is termed obiter dictum, i.e. said by the way. Note should be
taken that although obiter dicta do not form part of the binding precedent of the
casein which they occur and therefore, do not have to be followed by the courts
deciding later cases, the amount to persuasive authority and can thus be taken
into consideration in later cases is the court in the later case considers it
appropriate to do so.

ADVANTAGES AND DISADVANTAGES OF PRECEDENT

ADVANTAGES

1. Saves time of the judiciary and lawyers and their clients.

2. It provides a measure of certainty to law. Lawyers and their

clients are able to predict with a reasonable degree of
certainty what the outcome of a particular legal question is
likely to be in light of previous judicial decision.

3. It provides a measure of formal justice to the extent that like

cases are decided on like basis.

4. It provides an opportunity for judges to develop the law in

particular areas without waiting for Parliament to enact
legislation – this is done when the courts interpret the law
and determine what Parliament’s intention was when such
law was enacted.

DISADVANTAGES

1. The absolute number of cases that have been reported and can
therefore be cited as authorities undermines the degree of certainty to

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the law provided by the doctrine. The uncertainty is compounded by
the ability of the judiciary to select which authority to follow through
the use of the mechanism of distinguishing of cases on their facts.

2. The law may become ossified (hardened) on the basis of an unjust

precedent with the consequence that previous injustices are
perpetuated. For example the long delay in the recognition of the
possibility of rape within marriage – which has only recently been
given due recognition – firstly in H v. H 1999 (2) ZLR 358 HC –
followed by S. 8 of the Sexual Offences Act [Cap 9:21]; the irrational
evidential rule that required that the testimony of complainants in
sexual offences is not only credible but must also be corroborated. S v.
Banana 2000 (1) ZLR 607 S.

3. In developing law, it might be claimed that the judiciary is in fact

overstepping its constitutional role by making law rather than simply
deciding its application. This, it is argued violates the doctrine of
separation of powers.

LEGISLATION

Legislation may be defined as the publication of binding rules of law in a precise

and well-defined form by a person or body having the legal power to do so. In a
democratic country such as Zimbabwe the body given the power to make law in
this way is called the legislature.

The legislature in Zimbabwe consists of the President and Parliament.

The legislature may decide to initiate legislation for many different reasons. For
example it may consider proposals from the Law Development Commission,
consult with interested parties and then commence the process of legislation.

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The first stage is the preparation of a draft bill, which is introduced to Parliament.
It then passes through various stages before it is assented to, when it becomes
an Act.

Acts generally come into force when published in the Government Gazette. They
may cease to be operative when expressly or impliedly repealed. Some Acts are
made for a specific period of time and are terminated by the passage of that
time.

Acts are also known as statutes and laws made in this way are collectively known
as statute law.

At times the legislature delegates its powers to subordinate bodies. Enactments

passed by such subordinate bodies are known as statutory instruments. There
are various types of statutory instruments including rules, proclamations,
regulations, by laws, orders and notices.

DIVISIONS OF LAW

1. CONSTITUTIONAL LAW

This is the supreme law of a country that defines and governs the powers of the
presidency, parliament, ministers, judiciary, local authorities or governing bodies.
Most constitutions are written but some, for example the British constitution, are
not.

The Constitution of Zimbabwe provides for:

a) Human Rights

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b) Citizenship
c) General Elections
d) The Public Service and Defence Forces
e) The Administration of Government Finances
f) Judges and the Ombudsman
g) The office of the President
h) Parliament

Constitutional law deals with the structure and broad rules while the detail of
running and maintaining the various functions is provided by administrative law.

2. ADMINISTRATIVE LAW

Administrative law can be described as that law which determines the

organisation, powers and duties of administrative authorities. Constitutional law
confers powers that are defined by administrative law. Administrative law is
implemented by administrative authorities, for example the Rent Board, the Road
Service Board, the Censorship Board, the Zimbabwe Broadcasting Corporation,
the Forestry Commission etc.

3. CRIMINAL LAW

Reynolds describes the criminal law as the law relating to crime. It protects
members of society from those who commit crimes. A crime is an unlawful act
generally accompanied by a blameworthy state of mind, that is an actus reus and
a mens rea.

A person convicted of a crime will be liable to punishment by the courts. The

court will take into account mitigating and aggravating factors before deciding on
the punishment to impose although in some cases there are no mandatory
sentences which the court must impose in the absence of special circumstances.

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Criminal trials are held in open court unless the accused is a juvenile, in which
case the trial is held in camera. In Zimbabwe children under the age of seven [7]
are presumed to be doli incapax.

In Zimbabwe an accused person is presumed innocent until proven guilty. In

criminal trials the prosecution is required to prove its case beyond reasonable
doubt and if it fails to do so the accused is acquitted. There is no onus on the
accused to prove his innocence although some statutes provide for presumptions
against an accused in certain circumstances.

4. PRIVATE LAW

Private law governs the relationship between individuals enforcing and

maintaining their rights against each other. It encompasses the laws of persons,
property, succession, obligations, contract, delict and commercial law.

a) LAW OF PERSONS

The term “persons” includes artificial persons such as companies. The legal
capacity of natural persons is important as this has a bearing on their ability to
enter into or enforce obligations. Legal capacity is determined by age, sex,
nationality, domicile and legitimacy.

The legal age of majority is 18. Minors have limited rights, but can act through
their parents or legal guardians except with regard to marriage.

b) LAW OF PROPERTY

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The law of property relates to real rights in both moveable and immovable
property. Movable property means things whose ownership can be transferred by
delivery. The ownership of immovable property can only be transferred by duly
registered notarial deed. Certain things cannot be owned by anyone because
they are communal.

There are certain real rights, which are benefits, enjoyed by one person over the
property of another, for example, the right to use a road which passes through a
farm belonging to another. This right is limited to the use of the road in a normal
way and without detracting from the value of the property. A mortgage is also a
right which one person has over immovable property of another pending
repayment of a loan.

The most obvious example is the mortgage bond over a house where a building
society advances money for the purchase of a house and in return is given the
title deeds as security.

c) THE LAW OF SUCCESSION

This is the law which, defines and governs what happens to the estate of a
deceased person. Where there is a valid will the property will be distributed
according to the contents of the will. Where a person dies ab intestato (i.e.
without a will) the law provides for the handling of their estate according to their
race or nationality.

d) THE LAW OF OBLIGATIONS

The law of obligations deals with personal rights held against specific persons
and arising out of contract or delict.

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e) THE LAW OF CONTRACT

According to Ellison Kahn in his book “Contract and Mercantile Law” a contract is;

“an agreement by which two parties reciprocally promise and engage or one of
them singly promises and engages to the other to give some particular thing or
to do or abstain from doing some particular.”

For a contract to be valid there must be an offer and an acceptance of what is

offered and the minds of the parties must be set on the same thing. The law only
recognizes contracts which are lawful and so an unlawful contract is void. A
contract is fulfilled by performance as per agreement.

f) THE LAW OF DELICT

This is the law which deals with duties owed to another and compensation or
restitution consequent upon a breach thereof. There must be a causal nexus, i.e.
a link between the wrongful act and the injury sustained. A person can only be
liable for the reasonably foreseeable consequences of his wrongful act (see R v.
John 1969 (2) S.A. 560). In Zimbabwe the foreseeability test is used in
preference to the direct consequences test which makes a person liable for all
the consequences of his wrongful act. The foreseeability test is also known as
the reasonable man test. It is a two-tier test applied as follows:

i) would a reasonable man have foreseen the danger

in question and
ii) if so would he have avoided the danger?

If the answers to both questions are yes then the wrongdoer is liable to
compensate the injured party.

g) INTERNATIONAL LAW

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International law is described in the second edition of Butterworth’s “Words and
Phrases Judicially Defined” as:

“that body of law which is composed for its greater part of the principles and
rules of conduct which states feel themselves bound to observe and therefore,
do commonly observe in their relations with each other.”

It governs the relations between countries and individuals with international

organisations and institutions. The rules which form public international law, are
found in treaties and conventions. At times it is not easy to enforce the rules
should a country be found to have breached the law.

The sources of international law are stated in the United Nations Charter.

h) PRIVATE INTERNATIONAL LAW

This is the law that deals with the handling of disputes between persons, natural
or artificial, involving two or more legal systems. It is part of the law of a country
and has been referred to as conflict of laws because no two legal systems are
identical.

Private international law relates to different conflicting laws and the decision as
to which law to apply in a particular case. The court before which a case is
pending is the one that has to decide which of the two conflicting laws to apply
in a given case guided by existing law including foreign judgments.

PARLIAMENT

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STRUCTURE

Parliament in Zimbabwe consists of the House of Assembly and the Senate.

Provincial Governors are ex officio members.

The Speaker who is elected by the members controls proceedings in the house.
Members of the Cabinet (Ministers and Deputy Ministers) may not be elected as
Speaker. A Deputy Speaker is also elected. The President appoints ministers from
the members.

There is also constituted a special committee called the Parliamentary Legal

Committee that consists of not less than three MPs of whom the majority shall be
legally qualified. Cabinet members and Ministers may not be members of this
committee.

INTRODUCING A BILL

Parliament makes laws by passing Bills. A Bill is a proposal of a new law. An

member of Parliament can introduce and Bill except a money Bill in the House. A
money Bill is a proposal for a new law to raise money for the government or to
authorize the government to spend money. Only a Minister or Deputy Minister
can introduce a money Bill.

PASSAGE OF BILLS

The expression passage of Bills refers to the various stages that a Bill must go
through until becomes law.

The stages are as follows:

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 First Reading
 Parliamentary Legal Committee

 Second Reading

 Committee Stage

– Report Back

 Third Reading
 Senate
 Presidential Assent

FIRST READING

When the Bill is introduced in the House of Assembly a person called the
Secretary-at-the-Table reads out the title of the Bill in the House. This is the first
reading, which is no more than a formality. No debate takes place and the Bill
must then be referred immediately to the Parliamentary Legal Committee.

PARLIAMENTARY LEGAL COMMITTEE

When the PLC receives the proposed legislation its task is to examine the Bill,
Draft Bill, Statutory Instrument or Draft Statutory Instrument in order to ensure
that no part of the proposed legislation infringes the Declaration of Rights or any
other provision of the Constitution. The PLC must examine all proposed
legislation save for money Bills or Bills which amend the Constitution. After
examining the proposed legislation the PLC writes a report to the Speaker stating
whether any part of the examined LEGISLATION WOULD INFRINGE THE
declaration of Rights if it were to become law. If the PLC determines that the
proposed law or any part thereof indeed contravenes the Constitution, its written
report must contain reasons explaining the conclusion arrived at. Parliament is
obliged to consider an adverse report by the PLC. It, however, has the
discretionary right to accept or reject the PLC’s report. In other words it is
Parliament that ultimately decides whether a provision in a Bill or Statutory
Instrument contravenes the Constitution.

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SECOND READING

If the Bill or Statutory Instrument does not receive an adverse report or has been
amended and passed by the PLC in its amended form, it proceeds to be read a
second time. This is the second reading. Usually the second reading is done after
having given reasonable time to the members to read the Bill. At the second
reading the person who introduced the Bill usually a government Minister
explains the meaning and purpose of the Bill. After this explanation the other
members of the House of Assembly debate the Bill in great detail. A debate is a
formal discussion or argument. During the debate members will either support or
attack the Bill. Amendments to the Bill itself may not be proposed during the
second reading.

A bill originating from the upper house is brought to the House of Assembly at
this stage. The person introducing it accompanies it to be present at this reading.
It then goes through the subsequent stages just like any other bill.

COMMITTEE STAGE

At the end of the debate, the House resolves itself into a committee of the whole
House and examines the Bill in detail, clause by clause. Every clause must either
be accepted, amended or rejected. As soon as the House resolves itself into a
Committee, the Speaker leaves the chair and the Deputy Speaker thereafter
controls proceedings in his / her capacity as the chairperson of Committees. It is
permissible at the Committee Stage to amend the Bill, if necessary. However,
such amendments must be relevant to the subject matter of the Bill. No
amendment that is in conflict with the principle of the Bill as read the second
time may be accepted.

REPORT STAGE

At the end of the Committee Stage discussions, i.e. after the House, sitting as a
Committee, has completed its work, the chairperson reports the Bill with or

35
without amendments to the house. The Committee then hands the Bill back to
the House.

THIRD READING

When the Bill is back with the House, it is, on an appointed date, read the third
time. This is the Third Reading. The Third Reading is also a formality where no
debate takes place.

SENATE STAGE

The Bill is sent to the upper house for further scrutiny whereupon the Senate
examines it. The Senate is free to suggest amendments to the Bill. It goes
through stages resembling the second stage up to third reading stage. The Bill
will be returned to the Lower House with or without amendments

Upon return to the Lower House the Bill may be amended accordingly or
forwarded to the President for assent with or without amendment. Before the Bill
is sent for assent, the Secretary of Parliament authenticates it and an entry to
this fact is made in the journal of the House.

PRESIDENTIAL ASSENT

Assuming that the Bill is in order, the next stage is the Presidential Assent. The
authenticated Bill is transmitted to the President who shall within 21 days of
receipt either assent or withhold his assent.

If the President withholds his assent, the Bill is returned to Parliament.

Parliament may, within 6 months and upon a majority of two thirds of all
members, present the Bill for assent again. The President shall within 21 days

36
then either assent or dissolve Parliament. If the President assents, i.e. signs the
Bill it becomes law as an Act of Parliament.

An Act of Parliament becomes effective on the day of its publication in the

Gazette or on any other day specified in the Act or any Subsidiary Legislation.

The Gazette is published on Fridays by the Government Printer. All Acts are
published in the Gazette, as are some Bills.

Bills for amendments to the Constitution must be published at least 30 days

before they are introduced to Parliament.

Parliamentary debates are published in the Hansard. The Hansard is a small

booklet, which records all proceedings of Parliament.

THE CONSTITUTION

(a) HUMAN RIGHTS

Provisions with regard to human rights are contained in chapter 111, “The
Declaration of Rights”. The sections contained in the Declaration are as follows:

(i) Fundamental rights and freedoms of the individual

(ii) Protection of life
(iii) Protection of right to personal liberty
(iv) Protection from slavery and forced labour
(v) Protection from inhuman treatment
(vi) Protection from depravation of property
(vii) Protection from arbitrary search and seizure

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(viii) Provisions to secure protection of law
(ix) Protection of freedom of conscience
(x) Protection of freedom of expression
(xi) Protection of freedom of assembly and association
(xii) Protection of freedom of movement
(xiii) Protection from discrimination to the grounds of race etc
(xiv) Enforcement of protective provisions
(xv) Savings in the event of public emergencies
(xvi) Interpretation of other savings

(b) ESTABLISHMENT OF COURTS

Section 79(1) provides that judicial authority shall vest in the Supreme Court, the
High Court and the subordinate courts.

Section 79(A) provides that the Judiciary shall consist of the Chief Justice, the
judges of the Supreme Court, the Judge President and judges of the High Court
and persons presiding over subordinate courts.

The Supreme Court is the superior court of record and final court of appeal. It
consists of the Chief Justice, not less than two other judges appointed by
the President and in certain circumstances additional judges appointed by the
Chief Justice.

The High Court is a superior court of record. It consists of the Chief Justice,
the Judge President and other high court judges.

In order to qualify as a judge a person must have been a judge in a similar

jurisdiction or have been a legal practitioner for seven years either in Zimbabwe
or in a similar jurisdiction.

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Judges are appointed by the President after consultation with the Judicial
Service Commission and before appointment must take an oath.

The Judicial Service Commission is set up under the provisions of S. 90 of the

Constitution and its function is to “tender such advice and do such things in
relation to the judiciary as are provided for by this constitution or under an Act of
Parliament”.

Judges have security of tenure subject to certain exceptions, until reaching the
age of 65 and may elect to continue until reaching 70. They are paid from the
Consolidated Revenue Fund.

(c) THE ATTORNEY GENERAL

Section 76 provides for the appointment of the Attorney General who is the
principal legal advisor to the Government. The office is a public one but shall not
form part of the public service.

He is appointed by the President after consultation with the Judicial Service

Commission and must take an oath before taking office. The qualifications are
the same as for a judge.

The AG is a non-voting member of Cabinet and Parliament. He is not eligible for

appointment to any office, post or committee of Parliament. He has authority
over criminal proceedings and may require the Commissioner of Police to
investigate and report to him.

There is a provision for the appointment of one or more Deputy Attorneys

General. The AG and any other deputies are paid from the Consolidated Revenue
Fund.

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SEPARATION OF POWERS

The doctrine of separation of powers entails division of authority of the State and
conferring it upon the three organs, namely the legislature, the judiciary and the
executive. The essence of the doctrine is to ensure protection of rights,
promotion of democracy and provision of a self-checking mechanism within a
government.

This doctrine owes its origins from the works of three prominent philosophers;
Montesquieu (French), John Locke (English) and Aristotle (Greek). The assertions
of most of these writers are as follows:-

JOHN LOCKE (Treatise of Civil Government – Cap. 12 p. 143)

 If the same people are given powers to make laws and execute them,
they exempt themselves from obedience to the laws they make.
 Freedom of citizens of a State can be insured only if a collection of power
which can lead to abuse is prevented by a division of government
authority into the legislature, executive and judiciary and its exercise by
different government bodies.

MONTESQUEU
 There are or should be three organs in a State.
 One organ should not interfere with the work of another. One organ
exercising more than one function will be a threat to individual liberty.
When the three are united in the same person or body there can be no
liberty.
 Again there is no if the power of the judiciary should not be separate
from the legislature and the executive.
 There will be an end of everything where the same man or body, whether
of nobles or of the people, to exercise those three powers, that of
enacting the laws, executing public resolutions and of trying the excesses
of individual. The essence of the doctrine is to restrain abuse of powers.

Other later writers were of the following views: -

 The essential value of law, liberty and democracy are best protected if the
three primary functions of law-based government are discharged by
distinct groups.

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 The whole idea is to organize authority in such a way to check oppression
and arbitrariness.

Pure separation in the absolute sense is difficult to achieve and there is no

country practically, which has it. Most countries adopt the partial separation
theory through what is known as the system of checks and balances. In this
system each organ is able to check on the exercise of power by others.

In Zimbabwe separation of powers is formally and constitutionally recognized by

the creation of the legislature (Cap. V – section 32 – 63), the executive (Cap. IV
– section 27 – 31) and the judiciary (Cap. VIII – section 79 – 92).

PARTIAL SEPERATION THEORY in Zimbabwe and America

President- executive

Authors like Bradley and Ewing and Marshal g argued

THE COURTS

STRUCTURE

The main courts in Zimbabwe are the Supreme Court, the High Court, the
Magistrate Courts, the Community Courts and the Primary Courts. There is also
the Administrative Court and the Small Claims Courts. The Supreme Court is
provided for by the Constitution. It is presided over by three judges, but five sit
in constitutional cases. It deals with General and Customary law. It has appellate
jurisdiction in Civil and Criminal cases and original jurisdiction in constitutional
matters. It also deals with appeals from the Administrative Court.

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THE HIGH COURT

The High Court also deals with Criminal and Customary law. It is presided over
by a judge although two assessors also sit in Criminal trials. The High Court has
original and unlimited jurisdiction in all Criminal and Civil cases. It has unlimited
sentencing powers and may pass the death sentence.

It deals with Civil and Criminal trials, appeals and reviews from the Magistrates
Courts, bail applications and reviews of decisions made by quasi-judicial bodies.

THE MAGISTRATES COURTS

The Magistrates Courts Act (Chapter 7:10) provides that there shall be one or
more Magistrates Courts for each province as the Minister may provide. The
President may by order in the Gazette create Regional Divisions consisting of one
or more provinces. The Magistrates Courts deal with Customary and General
Law. The Customary jurisdiction relates to appeals and reviews of decisions of
the Community Courts.

General law jurisdiction includes Criminal cases except offences carrying the
death penalty. Civil jurisdiction is restricted to the province and is limited to a
value set from time to time. Criminal jurisdiction relates to any offence
committed within that region or province but also covers and offence committed
within 5kn of the boundary or in a vehicle within the region or province or within
5km of the boundary or an offence begun or completed within the province or
regional division.

The Magistrates Courts are presided over by Magistrates who may sit with
assessors but in practice usually sit alone. The Minister may appoint any person
to hold magisterial office. The Magistrates are graded according to seniority and
each level has different jurisdiction. The grades are magistrate, senior

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magistrate, provincial magistrate and regional magistrate. The Magistrates Courts
also deal with remands, bail applications and civil applications.

THE COMMUNITY COURTS

Community courts are presided over by a chief or other person appointed by the
Minister of Justice or someone delegated by the Minister. In court, the person
presiding shall be assisted by not less than two but not more than five assessors.
The assessors act in an advisory capacity.

Jurisdiction is in customary law civil cases where the defendant is resident within
the area, or cause of action arose within the area, or the defendant consents.
Community courts deal with appeals from Primary courts.

THE PRIMARY COURTS

These are presided over by a headman appointed by the Minister as above.

Jurisdiction in customary law sees civil matters with a value set from time to
time. Assessors also assist as in the Community courts.

THE ADMINISTRATIVE COURTS

This court is established under the provisions of the Administrate Court Act
(Chapter 7:01) and is financed from the Consolidated Revenue Fund. It is
presided over by a President and two assessors. It has original jurisdiction in
water rights and valuations. However its main workload consists of appeals from
bodies such as the Town Planning Board, the Rent Board, the Disablement
Benefits Board and the Derelict Lands Board.

Appeal from the Administrative Court lies to the Supreme Court.

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THE SMALL CLAIMS COURTS

These courts are a new innovation. They deal with general law and are presided
over by a magistrate or a legal practitioner with at least three years experience
appointed by the Minister. The Small Claims courts deal with civil cases not
exceeding a set figure reviewed from time to time but exclude matters of
divorce, custody, maintenance, wills and defamation.

EXTRA TERRITORIAL JURISDICTION

The jurisdiction of courts in Zimbabwe is not confined to the borders of the

country. This principle has been considered in two cases.

In S v Mhara 1985(2) ZLR 211 it was held that:

“There is no justification for rigid adherence to the argument that extra territorial
jurisdiction should be confined to treason.

The principle is decreasingly appropriate to the facts of international life.

Crimes may occur in more than one state.

The courts should consider the place of impact or intended impact.”

In S v Kapurira 1992 (2) ZLR 17 it was held that the people and results were
broadly Zimbabwean and the case could be heard here. McNally JA in his
judgment referred to the principles of comity and effectiveness and said that one

44
“should think long and hard before accepting that our courts have no
jurisdiction.”

ARBITRATION

The Arbitration Act Chapter 7:02 provides for the settlement of disputes by
arbitration, which is a process, whereby disputes may be resolved without going
to court. Parties to a dispute may make a “submission” in which they agree to
refer current or future disputes to arbitration. Certain types of disputes, notably
criminal matters may not be referred to arbitration but there is a provision for
arbitration in private international disputes.

Awards made by arbitrators may be made judgments of the court and be

enforceable as such.

COURT HEARINGS

The Constitution provides that subject to certain exceptions, court hearings shall
be held in public. The Courts and Adjudication Authorities (Publicity Restriction)
Act permits a court to exclude certain persons and restrict the disclosure of
proceedings either of its own volition or upon the application of one of the
parties.

The Act also empowers the Minister to issue a certificate restricting publicity.

A CRIMINAL TRIAL

 Charge is put to the accused

 Plea entered
 Facts read
 Defence outline
 Admissions sought (if any)

45
 State case opens
– Examination-in-chief
– Cross Examination
– Re-examination

 Defence case opens

– Examination-in-chief
– Cross Examination
– Re-examination
 Addresses – the object is to summarise and collate evidence pertinent to
your case, advance reasons why the evidence in your favour should be
accepted and against you should be rejected. Draw attention to and urge
acceptance of the probabilities in your favour. Highlight to the court
principles of law involved in upholding your case and where exercise of
discretion is required. Be logical, coherent, brief and avoid being repetitive
in the argument.
 Verdict
 Mitigation/Aggravation
 Sentence

A CIVIL TRIAL

 Letter of Demand
 Summons
 Pleadings (formal written statements which set forth the claim or defence.
The first such pleading is the summons. At trial, parties may not put forth
arguments not disclosed in pleadings.)
 Appearance to Defend (A memorandum delivered in writing in which
defendant appoints an address within 3 miles of the court house where all
documents of the case may be served upon him.
 Request for Further Particulars (must be made within 7 days of any
delivery of pleadings, recipient has a right to require the pleader to supply
him with additional information.)
 Defendant’s Plea (must be delivered within 7 days of entry of appearance
to defend or receipt of further particulars he has requested.)
 Trial (i. Burden of proof – he who asserts must prove. Each party must
establish what it has alleged. ii. Standard of proof – the case is decided on

46
a preponderance of probabilities.
 Judgment (i. In whole or in part for the plaintiff or for the respondent, ii.
Absolution from the instance, iii. Award such costs as are fair and just.)

TIPS ON FINDING THE LAW

How does one find the law?

The answer lies in the saying that ‘a good lawyer is not one who knows the law
at his fingertips but one who knows where to find the relevant law’.

The law for most of our purposes will be found in decided cases. Law reports are
not only a collection of legal precedents but they also contain tens of thousands
of precedents dealing with a legion of legal principles. It thus is impractical to
think that one can know or even prophesy in which particular law report a
relevant case is found.

Knowing how to find a relevant cases is therefore of paramount importance.

THE CONSOLIDATED INDEX TO THE ZIMBABWE LAW REPORTS

The Consolidated Index to the Zimbabwean Law Reports is the primary source
book to find a case relevant to a legal question one is dealing with. For
Zimbabwean purposes there are two cumulative indexes to our law reports. One
covering the period 1965 – 1983 and the other one covering the years 1984 –
1991. The indexes are divided into 5 parts as follows:

5. Table of cases reported – This lists the names and

references of all cases reported during the period under
consideration. The order of names is essentially alphabetical.

47
6. Words and phrases considered – In this section are cases in
which words and phrases mentioned in the cases cited have
been considered by the courts. Some explanation of the
word or phrase is given, where appropriate, to show the
context in which it was used.

7. Table of statutes – The section details references to the

cases reported in which statutes, regulations etc, have been
considered by the courts. The statutes and regulations are in
alphabetical order.

8. Noter up – This is an alphabetical list of cases that have

been cited in judgments of the Zimbabwean courts reported
in the ZLR. Under each case name is given the subsequent
case or cases where it was cited.

9. Subject index- The most easy to use or user-friendly section

of the index. The section consists of an alphabetical index of
all cases reported, according to the relevant legal subject
they touch on together with their references. Considerable
cross-referencing of topics is incorporated to make the index
as useful as possible.

Note

The table of cases reported or the noter ups are arranged strictly alphabetically.
Subject to certain exceptions for example, in criminal matters where the cases
will depend on whether they are listed under ‘R’ (Regina or Rex) or ‘S’ (The
State).

THE LAW REPORTS

48
Although the consolidated index forms the primary or main source for tracing the
relevant law – the individual law reports themselves can be a useful source. The
consolidated index as is implied in its name covers several years of legal wisdom,
whereas an individual law report will cover a year or period thereof of legal
wisdom.

An individual law report, if used with skill is a good source for finding out what
the law is on a particular legal question. The best way or manner of using a law
report begins not with the looking for a particular legal principle, but with
familiarizing oneself with the varied contents in the report. This entails making
meaningful perusal, without looking for a particular area or legal principle,
through the reports. This helps in getting famhlíaò0wk|h t8e`Jourts qqMakf
deGel haþe#Ga`a~E`oeîer#lny(`ssks<r Hn develop)ngskills of spdaïing and
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49
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