Financial Training Company

2007

Corporate and Business Law- F4 (Zimbabwe)

Casebook

Legislation as a source of law in Zimbabwe

Legislation, which is frequently referred to as Statute Law is the most important source of law in

many of the world�s jurisdictions including Zimbabwe. In terms of the Constitution of Zimbabwe

legislative power of the Republic is vested in the Parliament of Zimbabwe and the President.

There are two main forms of legislation, Acts of Parliament and delegated legislation.

Delegated legislation is passed by bodies to whom Parliament has delegated authority.

Although statutes of Parliament are the primary source of legislation, other types of legislation

(delegated legislation) are promulgated by bodies and persons empowered to do so. Examples

of such forms of legislation are:

(a) Proclamations by the State President in terms of the Constitution.

(b) Ordinances, regulations and statutory instruments by Government Ministers in charge of

state departments in terms of the relevant empowering statutes.

(c) Bye-laws of the various municipalities and rural district councils throughout the country.

(d) Rules and regulations by statutory bodies such as the Health Professions Council, The

Traffic Safety Council etc.

Sometimes legislation may be needed so urgently that the legislature can act very quickly (fast

tracking) to enact the requisite legislation. But usually the legislative process goes through a

lengthy and protracted procedure. The legislative phases can be broken down as follows:

(a) First Reading of the bill which is a mere formality.

(b) Second Reading � this is the most important stage in the introduction of most bills

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and the main principles of the Bill are discussed at this stage.

(c) Committee Stage � this gives members of Parliament an opportunity to discuss the

Bill clause by clause and improve the wording and make amendments where

necessary.

(d) Report Stage � if any amendments have been made at the previous stage they will

be debated and considered by the House

and further amendments can still be made.

(e) Third Reading � finally a bill is given a formal third reading and goes to the

President for his approval and when the President

signs a Bill it becomes an Act of Parliament and part of the law. To inform everybody

what the new law is, it will be published in the Government Gazette (constructive

notice).

Some of the well-known (if not controversial in some cases) pieces of legislation that have been

enacted by Parliament in the last

twelve months include:

(1) The Public Order and Security Act No. 1 of 2002

(2) The Sexual Offences Act No. 8 of 2001 and

(3) The Access to Information and Protection of Privacy Act No. 5 of 2002

Both the High Court and the Supreme Court have got the power to set aside legislation which is

ultra vires the Constitution, for example where legislation purports to derogate from rights

enshrined under Chapter Three of the Declaration of Rights in the Constitution. This is because

our Declaration of Rights is justiciable (can be vindicated in a court of law).

As for delegated legislation, there are many factors/reasons which justify its existence. Briefly

some of the reasons are:

1. Pressure on Parliamentary time � the Parliamentary calendar is very congested and there is

no time to debate in detail all the

matters which require legislation in the country;

2. Flexibility and adaptability-delegated legislation can easily be adapted to suit a change in

circumstances.

3. Certain matters such as tax law, medical and engineering matters require unique expertise in

terms of the legislative agenda

of the Government and the details are then worked out by the experts and technocrats who are

employed by the relevant

government ministries, departments and statutory bodies.

4. In an emergency there may be insufficient time to resort to the laborious processes of

Parliament; statutory instruments and proclamations can be brought into force much more

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quickly and expeditiously than statutes.

The major criticism that is often made against delegated legislation is that it is undemocratic if

not unconstitutional, in that important rules and regulations are made without recourse to the

properly elected authority, Parliament. However, such criticism can be rebutted by the following

factors:

1. Parliament still ultimately retains some control over delegated legislation. Statutory

instruments are vetted by Parliament.

2. In our jurisdiction the superior courts (the High Court and Supreme Court) have

control over delegated legislation and normally the validity of a statutory instrument

can be challenged on two grounds namely:

(i) if the Statutory Instrument is ultra vires (outside the scope) the parent legislation

(ii) if the correct procedures were not followed in making the statutory instrument.

In all it can be said that it is quite clear that legislation is the most important and

authoritative source of law in our jurisdiction and the most common way by which

legislation is terminated is through repealing.

The Zimbabwean court structure The Zimbabwean court structure is relatively simple. It consists of the superior courts known as

the Supreme Court and the High Court and �inferior courts� comprising village courts, community

courts, magistrates courts, administrative courts, small claims courts and labour courts. The

word �inferior� is not used to convey any suggestion of inadequacy or imperfection, it simply

means that these courts have a smaller or inferior jurisdiction to the superior courts. Such courts

are also referred to sometimes as the �lower courts�.

The Zimbabwean Constitution provides for the Supreme and High Courts, the conditions

applicable to judges, their composition and powers. The remaining lower courts are created and

governed by their own legislation. That is why they are termed �creatures of statute�.

The role of the following court officials are as follows:

(a) The Public Prosecutor

This official is appointed by the Attorney-General to appear on his behalf at preparatory

examinations and to conduct

prosecutions before the High Court and the Magistrates Court and is subject to the directions of

the Attorney-General. He decides whether a person should be charged with an offence. If so, he

appears for the state in presenting the case in court. He is responsible for preparing the case,

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securing the attendance of the accused person and the witnesses and having available any

other evidence he may wish to add. He is concerned with putting all the facts before the court,

not simply those necessary to establish the guilt of the accused.

The prosecutor does not appear in the village court because this court deals only with civil

matters.

(b) Messenger of Court

A messenger of court is an important court official. His office is established in terms of the

Magistrates� Court Act

[Chapter 7:10] s.10. In terms of s.10(5), all court process such as summons has to be served by

the Messenger of Court. His conduct is also governed by the same Act.

(c) Judge

The judicial office is created in terms of the Constitution. Judges� appointment, tenure of office

and disciplinary measures are governed by the Constitution as well as the High Court Act

[Chapter 7:06] and the Supreme Court Act [Chapter 7:13].

Judges are very carefully selected from the leading lawyers and possess the minimum

qualifications specified in the

Constitution and the High Court Act [Chapter 7:06]. In practice our judges are usually appointed

from the cream of the

professionals in Zimbabwe, the selections coming from amongst practising legal practitioners or

public servants such as regional magistrates or members of the staff of the Attorney General�s

office. On occasions our judges have come from suitably qualified lawyers from other

jurisdictions, subject to the requirements outlined in the Constitution.

(d) The Legal Practitioner

Any person accused of committing a crime or any party in a civil matter may be represented by

a legal practitioner. An exception to this rule is found in the village and community courts.

Until recently, a lawyer was either an advocate or an attorney. Both were legally qualified but

had different roles in legal affairs. They had been likened to the medical profession in that the

advocate was the �specialist� whereas the attorney was the �general practitioner� in law. Only an

advocate could represent persons in the High Court, and persons wishing to secure his services

could do so only through an attorney. No direct access was permitted. Then in 1981 and in

terms of the Legal Practitioners Act, No. 15 of 1981, the two branches were fused. There is

therefore, no distinction between the advocate and the attorney now in theory, although in

practice there are still advocates who continue to function independently as specialist

representatives.

Legal practitioners are very important court officials who help the court to reach the correct

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verdict. Their code of conduct is governed by the Legal Practitioners Act [Chapter 27:07]. The

Act creates a statutory body, the Law Society of Zimbabwe which governs all legal practitioners.

Upon receiving complaints from members of the public, the Law Society has the power to

investigate and take appropriate disciplinary action.

(e) The Master of the High Court

This office is created in terms of the High Court Act [Chapter 7:10]. The Master of the High

Court plays a very pivotal role in the day to day running of the High Court. He occupies and

performs both quasi judicial roles and administrative duties. He is responsible for keeping

several books of accounts like the Guardians Fund. In terms of the Child�s Act, he is the

guardian of all minors.

The Master of the High Court also administers estates, both Deceased and Insolvent Estates. In

the High Court, he operates separate offices, the Deceased person�s estate section and the

Insolvent Estates section. The Insolvent Estates comprises individuals who have been declared

insolvent, partnerships, companies, Trustees etc.

In Zimbabwe, the master of High Court is the same person, who plays the Sheriff�s role and

Registrar�s role. This system is not desirable. The government is currently working on a new

structure of the High Court�s Master, Sheriff and Registrar�s posts.

Judicial precedent

Judicial precedent (stare decisis) is arguably the second most important source of law in

Zimbabwe after legislation. The Latin maxim stare decisis means to stand by the precedents

and not disturb settled points of law.

Most advanced legal systems all over the world apply the doctrine of judicial precedent to a

greater or lesser degree. As Salmond puts it, �The importance of judicial precedent has always

been a distinguishing characteristic of English law . . .�

�Stare decisis is a good maxim and one to be generally followed but it is conceivable that

circumstances may arise which would render it a lesser evil for a court to override its own legal

opinion, clearly shown to be wrong, than to indefinitely perpetuate its error and save under the

most exceptional circumstances however a court should be bound by its own decisions unless

and until they are overruled by a higher tribunal on appeal. To adopt any other rule would impair

the dignity of the court, and would introduce a total uncertainty into business transactions and

legal proceedings . . .�

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In Zimbabwe the decisions of the Superior Courts (High Court and Supreme Court) are binding

on all the lower courts. Where a case is applicable the lower courts do not have any discretion

in this respect, the Supreme Court and High Court decisions must be followed even if patently

incorrect. The decisions of the Supreme Court are binding on all other courts including the High

Court.

The Supreme Court is not bound to follow its own previous decisions although generally it will

only depart from its previous decisions if convinced that it was clearly incorrect.

In the High Court a single judge is bound by decisions of two judges sitting together and by

decisions of what is called a full bench which consists of three judges sitting together.

Decisions of the High Court are binding on all lower courts and the decisions of the lower courts

are not binding on any other court, not even themselves.

Advantages of Judicial Precedent

The advantages of the principle of stare decisis (precedent) are many.

1. It enables the citizens, if necessary with the aid of practising lawyers to plan their private and

professional lives with some degree of certainty and assurance as to their legal effects.

2. It cuts down the prospect of unnecessary litigation particularly with �open and shut� cases

where the law is reasonably predictable.

3. It keeps the weaker judicial officer along right and rational paths, drastically limiting the space

allowed to partiality, caprice

or prejudice thereby retaining public confidence in the judicial system through like cases being

treated alike.

4. It conserves the time of the courts and reduces the cost of law suits. Advantages of judicial

precedent are certainty,

predictability, reliability, equality, uniformity and convenience.

The following are the disadvantages of judicial precedent;

1. Once a hierarchy of binding precedents has been established a certain amount of

rigidity and inflexibility is introduced.

2. A strict principle of stare decisis fails to allow legal rules to change with the times.

3. Proliferation of past situations gives rise to reports and far from the law becoming

predictable, this might result in a great deal

of uncertainty.

4. It is sometimes said that the development of the law through new precedents is too

sluggish and too irregular.

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When applying precedent, it is useful for the court to determine what the ratio decidendi of the

precedent making case is. This term literally means �the reason of the decision or the principle

upon which the decision was based.� It is the ratio decidendi of a previous case that is binding

on the future generations of cases. Where a court considers that the case before it does not fall

within the ratio decidendi of an earlier court�s judgment, it is said to �distinguish� the case.

Naturally this process only occurs when the previous case is similar or is cited as an authority

applicable to the present case.

One post independence case which has fundamentally changed the face of African customary

law in Zimbabwe thereby establishing a precedent for hundreds of similar cases in the last

twenty years or so is the case of John Katekwe v Mhondoro Muchabaiwa (1984). The issue was

what effect the Legal Age of Majority Act No. 6 of 1982 had on African women who hitherto

were perpetual minors and needed the consent and assistance of a male guardian if they

wanted to conclude a contract.

The Supreme Court then made the following ruling which has become a binding precedent to all

the other courts in the country including the High Court on numerous occasions.

�It is common cause that the effect of the Legal Age of Majority Act is that the old customary law

concept

that an African woman was a perpetual minor who needed a guardian to assist her in her

contractual

obligations has been done away with because every person acquires majority status on the

attainment

of the age of 18 years. It is also common cause that an African woman with majority status can

contract

a marriage without the consent of her guardian because she no longer needs a guardian.�

Advantages and disadvantages of our system of

judicial precedent.

Where the doctrine of judicial precedent applies it means that the decisions of certain courts are

binding on other courts. The following are the advantages of such a system.

(i) The system leads to an element of certainty in law. It is true to say that when a client seeks

advice from a legal practitioner he wants to know his legal position. As the courts follow

previous decisions according to their positions in the hierarchy of the system, it will be possible

to give the client advice in most cases. However, our Supreme Court position in allowing itself

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greater flexibility when considering its own decisions detracts from the element of certainty.

(ii) The law is able to grow as the needs of the society alter. This was clearly confirmed by our

Supreme Court in Zimnat Ins. Co. Ltd v Chawanda 1990 where, for the first time, it recognised

the right of a customary law wife to claim as a dependant in an action for damages in delict.

(iii) It allows greater flexibility in the development of the legal system. Thus a general ratio

decidendi may be extended to various fact situations. For example, the statement of what in law

is a duty of care for the purposes of the law of negligence has been extended to the situations

where a taxi-driver, by his negligence in reversing his vehicle, caused illness to a mother in a

bedroom. The following are the disadvantages of the system:

(i) Once a hierarchy of binding precedent has been established, a certain amount of rigidity is

introduced into the law. It may force some courts to give a decision which they know to be

ridiculous.

(ii) The courts often avoid applying rigidly a principle by distinguishing between previous cases

and the one before them. No doubt, this leads to endless hair-splitting and time wasting.

(iii) Proliferation of fact situations gives rise to much litigation and many reports. These two

factors combined make the law, in many instances, most uncertain. In order to verify a case law

principle, there are over a thousand law reports in which to search.

(iv) It is sometimes said the development of the law through new precedents is too slow and too

irregular.

Customary law

Soon after independence a new structure was put in place for the administration of customary

law through the Primary Courts Act (1981).

The rationale underpinning the new legislation was to revamp the use and administration of

customary law.

Chiefs� courts, district commissioner�s court and the court of appeal for African civil cases were

abolished. These were replaced by the village courts, community courts, district courts. From

the district court appeals would go directly to the Supreme Court, which is the highest judicial

authority in the country.

Under this system, the primary courts (village and community courts) had jurisdiction only to

apply customary law. In 1989 the system was further refined through the enactment of the

Customary Law and Local Courts Act (1989).

The changes brought about by that legislation mean that both the Magistrates Court and the

High Court will have original jurisdiction to determine all civil cases whether governed by

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customary law or general law, whereas local courts will have jurisdiction to hear only customary

law claims falling within the limits of their monetary jurisdiction and also not falling within areas

that have been expressly excluded from their jurisdiction which areas include claims for custody

and guardianship of children, maintenance and divorce.

Finally in our jurisdiction, the case of Van Breda and Others v Jacob and Others (1921) lays

down requirements that must be fulfilled in order for custom to be recognised as a binding rule

of law.

(1) The custom must be reasonable

(2) The custom must have existed for a long time

(3) The custom must be generally recognised and observed by the community

(4) The content of the customary rule must not contradict any existing statute law.

Customary law versus general law A dual legal system is the co-existence of legal systems as valid sources of law. The existence

of the two legal systems was created by s.89 of the Constitution of Zimbabwe, which sanctions

the applicability of both customary law and general law (Roman-Dutch law) as valid sources of

law. As a result of this system of co-existence a lot of problems arise as discussed below:

Section 89 of the Constitution states as follows:

�subject to the provisions of any law � relating to the application of African customary law, the

law to be administered shall be the law in force in the Colony of Good Hope as at 10 June 1891,

as modified by subsequent legislation �.�

It is clear that the Constitution recognises both sources of law. The first problem of the dual

legal system stems from the choice of law process. The system responds in this regard by

conferring a duty on the courts to judicially determine which source of law should apply to a

particular case. The court in deciding which law is applicable, guidelines are provided for in

terms of s.3 of the Customary Law and Local Courts Act [Chapter 7:02]. It provides that

customary law will apply where the parties in dispute agree that it must apply. In the absence of

express agreement, customary law will apply, where having regard to the nature of the case

and the surrounding circumstances, it appears that the parties have agreed that it shall apply.

The court can also decide whether in view of the particular circumstances, and nature of the

case, it is proper and just that customary law should apply. For example, a contractual dispute

relating to the payment of lobola (bride price) or a succession dispute over chieftainship would

necessarily involve an application of customary law. Section 3 of the Act further defines

surrounding circumstances to include the parties� mode of life, subject matter of the case,

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knowledge of the parties of customary law and general law and the closeness of the case to

general law or customary law. This section further abolishes the old colonial choice of law,

which was based on racial considerations. Ultimately the court is supposed to reach a decision

after weighing all the above given factors.

The choice of law problem is more pronounced if there is a legal dispute between Africans and

non-Africans. This was encountered in the case of Lopez v Nxumalo (1985), where the

appellant was a white man of Portuguese extraction, while the respondent was a black

Zimbabwean woman. The appeal was against the decision of a Community Court, (as it then

was) which had held that it had jurisdiction to entertain an action under customary law, for

damages for seduction by the respondent against the defendant.

The appellant�s contention was that he knew no African custom and therefore was not

acquainted with African customary law. The Supreme Court rejected the appellant�s argument

and ruled that it was just and proper for customary law to be applied and saw no basis for

interfering with the decision of the Community Court.

Some argue that the guidelines afford creative flexibility in the choice of law process. Guidelines

end up leaving too much discretion to the court. The ambiguity created by phrases such as ��

unless the justice of the case requires� makes the system too fluid to give it judicial effect and,

resultantly, it would be uncertain and flawed with unpredictability and inconsistency.

According to customary law, it is the eldest male child who becomes heir to his deceased

father�s intestate estate. However the eldest female child does not enjoy a similar right. In the

case of Chihowa v Mangwende (1987), the Supreme Court ruled that the eldest child,

regardless of gender, inherits his or her deceased father�s estate by virtue of the Legal Age of

Majority Act, now part of The General Law Amendment Act s.15. The unpredictability of the dual

legal system was revealed in Vareta v Vareta (1990) where it was held that the eldest son is the

natural heir of his father�s estate even if there is an older daughter irrespective of the Legal Age

of Majority Law. In Magaya v Magaya the Supreme Court ruled that the Chihowa v Mangwende

case was incorrectly

decided. Complexities are created where there exists the potential application of two different

systems of law with different legal consequences in the same case. The conflict heightens,

especially when customary society might not accept or identify with the rulings of general law.

In S v Matyenyika (1996) which involved the crime of incest, the High Court set aside the

conviction of two first cousins, who according to customary law are prohibited from having

sexual relations. Under Roman Dutch law, there is no similar prohibition because the two do not

fall within the prohibited degree of consanguinity of blood affinity. Whilst there are anomalies

and contradictions inherent in the application of a dual system of law, it is also true to say that in

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many ways the concept of dualism has stood (in spite of the imperfections) the test of time since

it started operating with the advent of colonialism in 1890. After independence in 1980 the

system was retained and it will continue to be our law for the foreseeable future.

The Magistrate had convicted them on the basis of customary law. The decision was set aside

because customary law did not apply to criminal law.

In summation it can be said that the legal complexities that arise as a result of applying a dual

system of law inevitably provide our superior courts (High Court and Supreme Court) with an

opportunity to break new legal ground in the application of customary law.

Further cases of common vs customary law

In Zimbabwe, sources of law, that is, legislation, the common law and the customary law are

binding on the state and its citizens, whereas persuasive sources of law, which include texts

and legal judgments from other jurisdictions can only persuade the courts that a particular legal

principle ought to be binding. What is considered binding is that set of rules which a community

accepts as being so and generally, such rules are seen as emanating from a binding source

and enforced by the various organs of the state.

These binding sources alone, in the strict sense of the word can be said to be the legal or

formal sources of law. However, the laws of any given state can never be exhaustive or

comprehensive. Thus lawyers in arguing and judges in deciding cases where there is no

legislation, judicial precedent or legal rule in point may argue in their search for material that will

identify interests such as justice, convenience, morality and social utility that may be of

significance in determining the appropriate rule of decision. The persuasive nature of any

source of law depends on the court�s estimate of its value and worth in the circumstances. Thus

there is need for persuasive sources of law to be taken into account in order to fill in the gaps

arising from legal principles that are in a state of moot. It must be said therefore that the ever-

growing body of authority which encapsulates many sources of law is, although binding, never

complete and hence the need to draw constantly from persuasive sources of law.

The most important binding source of law is legislation. Legislation refers to statutory law and

covers those rules made by the legislature. The legislative authorities promulgate the law in

various statutory forms, such as Acts of Parliament, Presidential decrees and Ministerial

Regulations. In Zimbabwe, the legislative authority is the legislature, which is composed of

Parliament and the President. Legislation by Parliament is embodied in a specialised legal

document called an Act of Parliament law. It can, however, delegate its law-making powers to

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the President, his ministers, local authorities or other organs and this is known as delegated or

subsidiary legislation. There is one piece of legislation under Zimbabwean law, which is

supreme and overrides all other laws to the contrary. This piece of legislation is known as the

Constitution of Zimbabwe and it renders void any source of law that contradicts it. S89 of the

Constitution clearly and unequivocally spells out the law to be applicable in Zimbabwe. What

distinguishes legislation from persuasive sources of law is that it is 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, whereas, persuasive sources of law do not have authority and can merely make

propositions over various points of law. Legislation is therefore by far more important than any

other source of law, persuasive or otherwise, in any advanced legal system as all law is

created, amended or abolished by the legislative process.

The next most important binding source of law is case-law, otherwise known as judicial

precedent and sometimes referred to as common law. The term common law refers to that

portion of the law, which is not derived from legislation but emanates from a collection of

principles made by judges over generations in the course of resolving issues brought before the

courts. It has, therefore, been described as judge-made law.

Historically, the common law is derived by judges from general principles of justice, common

sense and morality. In the modern sense, the common law is largely a question of precedent. Its

distinctive character is that a decision made in one case may be binding on future cases. A

judge in a later case is bound to consider the relevant previous cases and in certain instances,

he or she is required to accept previous decisions even if he considers them to be wrong.

However, it should be noted that previous decisions should not be followed blindly for if an

erroneous decision has been given, it ought not to be allowed to spread and corrupt the justice

delivery system for all time. The Supreme Court exhibited the correct attitude by departing from

its previous decisions in a number of relatively recent celebrated customary law cases of

Katekwe v Muchabaiwa (1984), Chihowa v Mangwende (1989) and Magaya v Magaya (1999).

The common law base of Zimbabwean law is Roman-Dutch law, which is a fusion of Roman law

and Dutch customary law. It is a unique brand of law in that its elements may be traced mainly

to the writings of Roman-Dutch jurists such as Hugo Grotius, Johannes Voet and van der

Linden. Having said this, the Constitution of Zimbabwe implies that the common law of

Zimbabwe is Roman-Dutch law to the extent that it was influenced by English law. It must be

noted however, that, unlike Roman-Dutch authority which is binding on the courts, English law

only has persuasive influence, that is, it is not binding on the courts but may be resorted to

where the law is unclear. Therefore, the distinction between judge-made law and persuasive

sources of law is that like with legislation (both primary and delegated) both are binding sources

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(they must be followed where appropriate) whereas with

persuasive sources of law (e.g decisions of other jurisdictions) they may be followed where

appropriate.

Customary law is the final binding source of law. African customary law is a specialised form of

law in Zimbabwe. The country�s dual legal system means that, in certain matters, there is the

potential application of two different systems of law, general law and customary law, each with

different legal consequences. Customary law comes into force where an act has, for some

considerable time, been performed in that particular way. Where the state requires obedience to

the custom, it is law. This was illustrated in the case of Van Breda v Jacobs (1919), where the

court upheld the custom in fishing trade whereby persons involved in fishing could lay a claim to

fish in the sea not yet captured in their nets as long as they were in the �line� of their nets. The

custom must be reasonable, proved to have been in existence for a long time, generally

recognised and observed by the community and certain, clear and consistent with statute.

Customary law, as a source of law is binding on our courts, subject to certain statutory

entrenched legal considerations.

Having considered the nature and distinction of binding sources of law, it is necessary to

consider the nature and distinction of persuasive sources of law.

Authoritative texts are the principal persuasive sources of law. The term authoritative texts

refers to writings by leading authorities in the field of law. As already noted, books written by

Roman-Dutch jurists are binding sources of Roman-Dutch law and are treated as such in the

courts. Under the head of authoritative texts fall modern textbooks and scholarly articles and

publications. Unlike binding sources of law, these have no inherent authority of their own, but

may be regarded as very persuasive sources of law, where neither legislation nor case law are

in point; or where they are explaining a legal point, which is not clearly covered in a binding

source of law. Into the same category may fall legal judgments from foreign jurisdictions such as

South Africa or England.

Decisions from South African courts are highly persuasive having regard to the fact that they

have a Roman-Dutch law basis. Any worthy system of law is prepared to be influenced by the

reasoning on basic legal issues of another i.e legal borrowing. The persuasive nature of an

opinion of an author depends, inter alia, on the standing of the author or jurisdiction in the field

of law in question, the reputation of the author among judges, the scholarly level of the piece of

work involved and the covering nature of the presentation.

It can be concluded, therefore, that what distinguishes a binding source of law from a

persuasive one is that the former is compelling on the courts, whereas the latter merely puts

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forward provisions to the courts, where binding sources are unclear or brief in their explanation

of a particular legal principle.

Magistrates� Courts Magistrates� Courts and Primary Courts are creatures of statute. The Magistrates� Courts are

established through the Magistrates� Courts Act [Chapter 7:10] and the Primary Courts are

established and governed by the Customary Law and Local Courts Act [Chapter 7:05]

respectively. It is by these respective pieces of legislation that civil and criminal jurisdiction of

the Primary Courts

and the Magistrates� Court is governed.

The Magistrates� Court

As indicated these are a creature of statute and are established by the Magistrates� Court Act.

Civil Jurisdiction

The Civil Jurisdiction of the Magistrates� Courts is governed by ss.11, 12 and 14 of the Act.

In terms of s.14(a)(I) the Court has no jurisdiction in a suit wherein is sought the dissolution of a

marriage, other than a marriage solemnised in terms of the Customary Marriages Act. This

provision seems awkward. The Magistrates can validly solemnise any marriage but, this

provision takes away the power of dissolution. The same applies to any disputes arising out of a

marriage, other than a marriage solemnised in terms of the Customary Marriages Act [Chapter

5:07]. Jurisdiction here lies with the High Court.

The Court has no jurisdiction in determining the validity of or interpretation of a written or oral

will or other testamentary document. This is provided for in terms of s.14(1)(b) as read with

s.14(2).

The determination of the status of person in respect of his/her mental capacity or soundness

cannot be determined by a Magistrates� Court. This power and jurisdiction lies with the High

Court.

The same applies in respect of the determination of an application for an order of specific

performance. The Magistrates� Court cannot give an order of specific performance which is not

accompanied by an alternative for damages. This is provided for in terms of s.14(d) of the Act.

Jurisdiction What the Court can Do � Civil

In respect of Civil Jurisdiction, the court shall have it in all civil cases determinable by general

law of Zimbabwe or by customary law. The causes of action should fall within the force of the

Act and Regulations requirements. This is provided for in terms of s.11 of the Act.

Any cause of action founded upon any Bill of Exchange, promissory notes, bond, a written

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acknowledgement of debt or any liquid document together with interest due thereon, the court

shall have jurisdiction over that cause of action.

Irrespective of rank and seniority SI 31/2000 sets value and monetary jurisdiction of �all

magistrates� at $200 000·00. All actions relating to ejectments against the occupier of any

house, land or premises, the court shall have jurisdiction as long as the right of occupation of

any such premises does not exceed the prescribed amount under SI 31/2000.

Recently the High Court ruled that the Magistrates� Courts� power to hear and grant Ex parte

applications should be greatly monitored and exercised with great caution especially ex parte

applications for ejectments.

Actions in which is claimed a decree of divorce, judicial separation or nullity of a marriage

solemnized in terms of the

Customary Marriages Act fall within the force of the Magistrates� Courts jurisdiction. Related

thereto is the payment of maintenance in terms of the Matrimonial Causes Act [Chapter 5:13].

In terms of the Act, the Magistrates� Courts can validly determine actions relating to the

guardianship and custody of children born from a marriage solemnised in terms of the

Customary Marriages Act [Chapter 5:13]. Even in unregistered customary law unions, all issues

relating to the guardianship, custody and access of children born from them, the Magistrates

can validly determine.

All in all, though the amount which may be claimed may exceed the prescribed one, under SI

31/2000 parties may agree and confer jurisdiction upon the court through a written

memorandum of agreement signed by both parties in terms of s.11(1)(C) of the Magistrates�

Courts Act.

Magistrates� Criminal Jurisdiction

In terms of s.49 of the Magistrates� Court Act, the court shall have jurisdiction over all offences

except treason, murder or any other offence where an enactment requires that a person

convicted of an offence shall be sentenced to death.

Criminal jurisdiction is unlike civil jurisdiction. It is determined by the rank and seniority of that

particular presiding magistrate.

Magistrates are ranked as follows:

(i) Magistrates (ordinary)

(ii) Senior Magistrate

(iii) Provincial Magistrate

(iv) Regional Magistrate

(v) Chief Magistrate

Criminal jurisdiction can be ordinary, special or remittal by the Attorney General. Criminal

jurisdiction was amended by the General Laws Amendment No 2 of 2002 and No 14 of 2002.

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An ordinary Magistrate can convict a person and imprison him for a period not exceeding two

years. On cases of remittal by the Attorney General his jurisdiction shall not exceed four years.

Similarly, in ordinary cases, he may impose a fine of $400 000·00 and $750 000·00 or remittal.

A senior magistrate can impose a custodial sentence of five years or less or a fine of $750

000·00. On remittal, his jurisdiction is similar to that of an ordinary magistrate. A Provincial

Magistrate also can impose a maximum custodial sentence of five years or a fine of ($1 000

000·00) one million dollars.

A Regional Magistrate on summary trial can impose 10 years of custodial sentence or $1 500

000·00 (one million five hundred thousand dollars) fine.

Special Jurisdiction

This is provided for in terms of s.51 of the Magistrates� Court Act. Under the new General Laws

Amendment Nos 2 and 14 of 2002, the powers of ordinary, Senior and Provisional Magistrates

in dealing with the offences outlined under s.51(I) (a)�(e) of the Act, the jurisdiction is seven

years imprisonment or $1 250 000·00 fine.

The Regional Magistrate has now a special jurisdiction of 12 years imprisonment or $2 000

000·00 fine. Under the new s.51(4) of the Act, in respect of sexual offences the special

jurisdiction of Regional Magistrates is now 20 years imprisonment or $2 500 000·00 fine.

Community Courts and Primary Courts These courts generally deal with civil matters fully falling within the force of customary law and

custom practices. Therefore, clearly, these courts have no criminal jurisdiction.

Primary Courts are presided over by a headman in terms of s.11(1) of the Customary Law and

Local Courts Act (hereinafter called the Act) and the Community Courts are presided over by

chiefs in terms of s.11(2) of the Act.

Jurisdiction

In terms of s.15 of the Act, a local court shall have jurisdiction to hear, try and determine any

civil case in which customary law is applicable where the defendant is normally resident within

the area of jurisdiction of the court, the cause of action or any element thereof arising within

such area or where the defendant consents to the jurisdiction. In terms of s.16(I) of the Act,

local courts have no jurisdiction in any case where the claim is not determinable by customary

law. In terms of s.2 of SI 220/2001, SI 30/2002 and SI 29/2002, the court has no jurisdiction

where the claim of any article exceeds $40 000·00 for chiefs. Like the Magistrates, local courts

cannot determine the validity or effect of interpreting a will. Local courts have no jurisdiction

whatsoever to dissolve any marriage. However local courts can adjudicate upon marital

relationships which, though recognised by customary law, have not been solemnised in terms of

the Customary Marriages Act. These are better known as unregistered customary unions.

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Matters involving the custody or guardianship of minors are not determined by customary law

and therefore, it naturally follows that local courts have no jurisdiction. Since maintenance is

also governed by the Maintenance Act, only Magistrates� Courts are Maintenance Courts and

can validly adjudicate maintenance claims. Even the High Court is not a Maintenance Court, but

of course can hear the maintenance claim because of its unlimited jurisdiction.

However local courts may make various orders under s.17(a)�(f) of the Act, for example

payment of damages, order specific performance of a contract or order the payment of penal

damages where customary law so permits or requires.

Interpretation of statutes

(a) The Literal Rule

In terms of the canons of statutory interpretation, the court will usually begin its interpretation of

a statute by applying the literal rule, that is, the words of a statute must be interpreted in their

ordinary literal meaning. In construing the statute the object is, of course, to ascertain the

intention which the legislature meant to express from the language which it employed.

By far the most important rule to guide courts in arriving at that intention is to take the language

of the instrument as a whole and when the words are clear and unambiguous, to place upon

them their grammatical construction, and to give them their ordinary effect. As was said by the

court in Volschenk v Volschenk (1946)

�The cardinal rule of construction is that words must be given their ordinary effect . . .�

(b) The Golden Rule

The courts will normally seek to ascertain the intention of the legislature from the words of the

statute itself. However in practice, the court may find that the literal rule is inadequate to

interpret a particular statute as Malan J puts it in Volschenk v Volschenk (1946)

�If a rigid grammatical construction of the language employed leads to a result which is

manifestly absurd, unjust,

unreasonable, inconsistent with other provisions or repugnant to the general object, tenor or

policy of the statute,

the court will be justified in departing from the literal sense and in modifying or extending it in

such a manner as

will secure a conclusion which will eliminate such objective and give expression to the true

intention of the

legislature . . .�

The golden rule provides that the ordinary meaning of the words used must be followed unless

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this would lead to absurdity or is at variance with the intention of the legislature. What is such an

absurdity is well illustrated by Quenet JP in the Rhodesian case of R v Takawira and Others

(1965).

The statute concerned, without any qualification or exception made it an offence to be in

possession of subversive material. If interpreted literally, this would mean that �the policeman

who took possession of the subversive statement, the Public Prosecutor who tendered it as

evidence, the judicial officer who examined it at the trial would all be guilty of an offence and as

a result, it would never be possible to secure a conviction under the statute at all and as a result

the intention of the legislature would be completely frustrated and negated.

In the circumstances of the case, the court held that it would be permissible to qualify the literal

meaning by reading into the clause words such as �without lawful authority� so as to permit

officials to be in possession of the statement in the exercise of their duties (golden rule).

Human rights

Under the Constitution of Zimbabwe fundamental human rights are enshrined in Chapter III, the

Declaration of Rights. A number of fundamental rights and freedoms are listed and some of the

most common ones are:

. the right to life

. the right to personal liberty

. protection from inhuman or degrading punishment

. protection from arbitrary deprivation of property

. protection from arbitrary search or entry

. the right to due process of law

. freedom of conscience, expression, assembly and movement

In order to protect the multi-ethnic and multi-cultural nature of the country, discrimination based

on race, tribe, place of origin, political opinions, colour or creed is outlawed. It is important to

note that most of the fundamental human rights and freedoms are not absolute. There are a

number of derogations and exceptions recognised by the law and a few examples may suffice.

(a) The right to life

In Zimbabwe unlike countries like South Africa and European Union member states, the death

penalty is a competent criminal sanction for crimes like murder (where there are no extenuating

circumstances) and treason. According to the law certain categories of offenders are exempted

from the death penalty and these are:

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(a) a person who at the time of the offence is below 18 years of age

(b) a person who at the time of conviction is aged at least 70 years

(c) a pregnant woman

(b) Protection from torture, inhuman or degrading punishment

Exceptions to this very important right include, the infliction of moderate corporal punishment in

appropriate circumstances upon a person under the age of 18 years by his parent or guardian

or by someone in loco parentis or in whom are vested any of the powers of his parent or

guardian. Another exception here would include the infliction of moderate corporal punishment

in execution of the judgment or order of a court, upon a male person under the age of 18 years

as a penalty for breach of any law.

Although by and large the Supreme Court is an appeal court it can operate as a court of first

instance on matters relating to the Bill of Rights since it is justiciable.