Financial Training Company 2007 Corporate and Business Law- F4 (Zimbabwe

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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 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

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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 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

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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, 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

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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 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 . . .’ 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

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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. 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

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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 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

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

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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 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.

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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 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).

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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 (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

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puts 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 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

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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. 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 No. 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

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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. 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

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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 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

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offenders are exempted from the death penalty and these are: (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.

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