INTRODUCTION TO LAW

What is Law [the concepts of law]

Law refers to rules and regulations that govern human conduct or
other societal relations and are enforceable by the state. Law is law
whether it is just or unjust, fair or unfair, good or bad, moral or
immoral, convenient or inconvenient etc. There are of course other
rules, religious directives and organisational rules. These other rules
may even be more effective in ensuring compliance with a particular
type of conduct. However, it is not the effectiveness of rules or their
goodness/badness that determines the legal quality. It is in fact, the
sole factor of enforcebility by the state that determines whether a rule
is a law or not. What distinguishes a legal rule from any other rule is
that a legal rule is one that is recognised as law and is enforceable by
the state.
There are two schools of thought regarding law, the so-called theories
of law. The definition is derived from what is called positivist theory
of law. This theory says law is law regardless of its moral context. It
goes further to say that what law is must be separated from what law
ought to be. The competing theory is called the natural law theory.
Natural law postulates that law cannot be separated from justice,
fairness and morality. Its guiding principle is expressed in Latin as
‘lex iniesta non est len’[an unjust law is not law at all].
According to this theory, no rule qualifies as law unless it is just and
fair. A rule which is immoral cannot be law.
The positivist theory is now the accepted definition of law. It is
applied across almost all systems in the world. We must conclude
therefore that law refers to a set of rules which are enforceable by the
state regardless of whether there are good or bad, just or unjust, fair or
unfair, reasonable or unreasonable.
How do we tell whether a rule is enforceable by the state? A rule is a
rule of law if and only if it is derived from a recognised source of law.
There are four recognised sources of law namely; legislation,
common law, custom and authoritative texts.
For a rule to be law, it must emanate form one of these source. If not,
it is not law no matter how good or just it may be.

DISTINCTION BETWEEN LAW AND MORALITY

Law is whether it is moral or immoral. However, at the law making
stage, it is usually moral rules which are converted into law. If a
moral rule is not converted into law, it remains a moral rule only. It is
not enforceable by the state. If it is intended that the state enforces a
moral rule, it must first be converted into law. In general morality is
the bedrock of law:- this does not mean that morality is law. It merely
means, most legal rules are derived from morality. In most societies
the moral rules which are converted into law reflect the moral
conviction of the of the dominant players e.g the contrasting positions
on homosexuality in Zimbabwe and South Africa.
See also the position on payment of roora/lobola which, despite being
widely accepted, it is not a legal requirement for the validity of a
marriage under general law. Morality may also be relevant in the
interpretation or application of unclear rules. The general rule is that
courts will favour a meaning which is in line with morality that way
morality develops a law. A common example is an English case of
Corbert Vs Corbert where the issue to be decided was the validity of a
marriage between a man and person who had undergone a successful
sex change to be a ‘woman’. Under English law marriage was
defined as that between a man and a woman. What was to be decided
was whether the person was a woman. The law did not define a
woman. The court held that to be a woman a person had to be born a
woman.
RELATIONSHIP BETWEEN LAW AND JUSTICE

law is law whether it is just or unjust. However at the law making

stage justice influences the content of the law. Law makers tend to
convert their notions of justice into law. If a particular notion of
justice is not converted into law it would not be enforced. What is
problematic with justice is that, what is just to one person may be
unjust to another. Ultimately it is the notions of justice of the
dominant players in society which are expressed in law, hence the
expression ‘justice according to law’ eg refer to the debate on land
reform in Zimbabwe.
PURPOSES OF LAW/ FUNCTIONS OF LAW
It is said that law has two main functions/ purposes namely :- a] to do
justice and b] to preserve peace and order.

Apart from these two functions they are others such as:- c] to preserve
morality. D] social engineering and e] to protect the interest of the
ruling class.

There continues to be a debate as to which of these functions is most

important. The answer depends on one’s philosophical outlook or
world view.
The persuit of justice is an important function of law but it depends on
the perceptions of justice shared by the dominant players of society.
Some legal systems believe that this is the most important function of
law and must be pursued at all costs. E.g there would lean towards
realising a guilty person if there is a possibility of them being
innocent.
On the other hand there are societies where peace and order is
regarded as an end in itself [ not as a means to an end]
ENFORCE MORALITY
The function of enforcing morality has been controversial because
some people say that it is not the business of the state to define moral
values. A wide body of opinion says that law has a role to play in
safeguarding certain vital elements of our moral fabric e.g the crime
of incest, homosexuality- South African tolerate it, while in
Zimbabwe homosexuals” are worse than pigs “

SOCIAL ENGINEERING involves using the law to push particular

attitudes- to impose certain attitudes. Law first and people will follow.
Eg gender quality. The best indication in Zimbabwe has been the
legal age of majority [ 18 years]
The last function on protection of ruling class interest is a Marxist
view- Karl Marx taught that law is an instrument of class rule. Society
is divided into classes. The class that controls the economic means of
production is the ruling class. Law is always for the interest of the
ruling class. It is an instrument of oppression.

SOURCES OF LAW

1. LEGISLATION
By legislation we mean the rules of law contained in the legislative
instruments of the state. The rule must be found in a specified
instrument either directly or by implication via interpretation of the
legislative instrument.

That which is implied is said – it has some value as that which is

expressly said each state has an organ called the Legislature which
is responsible for making law.
Legislation therefore are the rules made by the legislature. In
Zimbabwe the legislature consists of The President and Parliament
(see Section 116 of the Constitution of Zimbabwe)
The legislative makes law in two ways namely:
a) By enacting an Act of Parliament and
b) Delegating its law making powers to the organs
(See Section 117 of the Constitution of Zimbabwe)
When law is made by an organ exercising delegated powers, it is
called delegated legislation and must be contained in what is called
a Statutory Instrument.
There are therefore two forms of legislation:
- An Act of Parliament and Statutory Instrument.
These are the only two forms of legislation available in almost all
legal systems across the world.
A Statutory Instrument cannot exist outside framework of an Act
of Parliament. It must always have a parent called the Parent Act
or Enabling Act.
An Act of Parliament requires the signature of the President for it
to be valid. It starts at what is called a Bill (proposals which are
debated by Parliament)
When a Bill is approved by Parliament, it is sent to the President
for his assent. He may refuse to assent to the Bill. It is the
President signature which converts a bill into an Act.
An Act of Parliament requires the process to have been in
accordance with the law making procedures of Parliament.
It may be enacted to deal with both past and future events. Where
it is dealing with the past, it is said to be retrospective. The general
rule is that legislation must not be retrospective.
Every Act of Parliament has a name. That name must be used
when referring to the Act.
The name is the Short title and its Chapter reference e.g. Labour
Act (Chapter 28:01) or Electoral Act (Chap 2:13)

Where there is no Chapter reference the name of the legislation is

the Short title and the year of its enactment and its number in the
year of enactment e.g. Labour Act, 1985 (Act number 16 of 1985)
Different countries have different ways of referring to statute.

Anything contained in an Act of Parliament is law.

Statutory Instruments are as much law as an Act of Parliament.
BUT the SI must be consistent with the Act where a SI is
inconsistent with the Act it is said to be utra vires and therefore
void (null and void)
Utra vires means beyond the powers.
The validity of a Statutory Instrument as law depends on it being
INTRA VIRES (not being ultra vires)
Statutory Instruments are cited by reference to the year and number
in the year of publication in the (Government Gazette). They do
not require the signature of the President.
They are made by either the President or his/her ministers e.g
Labour (Termination of Employment) Regulations, 2014 (SI15 of
2014) or Electoral (Registration of Parliament Symbols)
Regulations, 2013 (SI3/2013)

There is one Act of Parliament which overrides all other Acts and
other laws. It is sui. generis (Special Unique). It is the Supreme
law of the Country. This Act of Parliament is called the
Constitution.
Any law inconsistent with the Constitution is invalid. So an Act of
Parliament which is inconsistent with the Constitution is invalid.
This also applies to SI. The Constitution itself cannot be invalid.
When a law is inconsistent with the Constitution, it is said to be
unconstitutional.
There is therefore a hierarchy as follows:
Constitution (Special)

Ordinary Acts of Parliament

Statutory Instruments

It is the courts which determine Constitutionality of Legislation.

With reference to SI there is the Ultra Vires argument and
Constitutionality argument whereas with Ordinary Act of
Parliament there is only the Constitutionality argument.
The Constitution has this status of being the Supreme law
because it is regarded as the word of the people. Although it is
an Act of Parliament, that process of making a Constitution is
usually different, in political terms, from the process of making
any other law. At law the making of a Constitution requires
approval by Parliament through a Special majority.
Politically it requires participation of the people and a
referendum.

Legislation as a source is very much depended on its

interpretation. Interpretation is done by the courts. There are
settled principles of Statutory Interpretation.
Only a court has power to give authoritative and binding
meaning of a legislature provision.
Statutes have certain ways in which they are referred to. Apart
from the name a statute has several parts as follows:
a) Sections
b) Sub-Sections
c) Paragraphs
d) Sub-Paragraphs
e) Headings
f) Marginal notes
g) Schedules
See an Introduction to Law – by Madhuku.

Headings and marginal notes are not regarded as part of Statute.

A schedule is part of the Statute which deals with a matter in
more detail – It is like a footnote which is put aside in order to
provide for smooth flow of a statute e.g. The University Act
may provide that there shall be rules governing students conduct
and discipline. Instead of providing details of students conduct
in the main body of the Act, this may be separately put in a
schedule.
In a schedule there is no reference to sections but to paragraphs
and sub-paragraphs.

COMMON LAW
The Common Law refers to rules of law derived from decisions
of the courts over a period of time. It is based on what is called
Judicial precedent. These rules of law are rules outside
legislation. They apply where there is no legislation on the
point.
Most principles of the common law have existed over hundreds
of years. The common law operates this way- A Judge in a case
is required to refer to and apply principles of law contained in a
previous case.
Historically the common law developed from principles of
Justice and Fairness but in the modern world it is based on rules
whether fair or unfair, just or unjust.
The authority to support a rule of common law is a previous
case or an authoritative text purporting to state the common law.
In Zimbabwe and other African countries the structure of the
common law is complicated by colonial history. In England the
Common Law is exclusively Judge-made law (Judicial
precedent)
Each African Society inherited a colonial legal system. This
colonial legal system is still relevant as part of the common law.
This is because at the inception of colonial rule the colonial
states imposed a legal system. In Zimbabwe this was done by
proclamation on 10 June 1891. The proclamation said, “The
law to apply shall be the law applicable at the Cape of Good
Hope on 10 June 1891)”
This proclamation meant that focus had to be on “The law
applicable at the Cape”
What was that law?
The law applicable at the Cape had come from Holland. It was
mainly a law called – Roman-Dutch Law.
Roman-Dutch law is itself a fusion of Roman law and Dutch
customs. This fusion occurred in Holland and had been
completed by 16th Century.
It was given the name Roman-Dutch by one of the Dutch (Juris).
This is a law that landed at the Cape in 1652 when the Dutch
colonised the Cape. In 1795 after more than 100 years of
Roman Dutch law the British took over the Cape. They made a
decision not to change common law. However, the legal system
was administered by the British.
Inevitably English law concepts influenced the legal system.
By 1890, the law applicable at the Cape was mainly Roman-
Dutch Law with some English law grappling’s, some call it
“Anglo-Roman-Dutch law”.
The expression “law applicable” was therefore deliberate.

In 1980, the Zimbabwe Constitution had section 89 which was

carried from the proclamation of 10 June 1891.
Section 89 provided as follows – “... the law to apply in
Zimbabwe shall be the law applicable at the Cape of Good Hope
on 10 June 1891 ...”

In 2013 a new constitution was enacted to replace the Lancaster

House Constitution. Section 192 of the Zimbabwe Constitution
provides as follows:
“ ... the law to apply in Zimbabwe shall be the law applicable on
the effective date ...”
The effective date is the date of the swearing in of the President,
i.e 22 August 2013.

Section 192 therefore incorporates Section 89 of the 1980

Constitution. This means that the law to apply in Zimbabwe
shall be “the law applicable at Cape of Good Hope on 10 June
1891 ...”
The common law of Zimbabwe therefore is made of two
components namely a) The law applicable at the Cape 1891 and
b) Judicial decisions since 1891.
Normally judicial decisions reflect the law applying at the cape
on 10 June 1891

Where do we get the law applying on 10 June 1891

We get it from previous decisions purporting to reflect that law
and where there’s no previous decisions, we get it from the
writings of the old Roman Dutch Juris.
The Roman Dutch Juris published books in Roman Dutch
Among them are Voote, GRotis Van der Linder, Van der
Keesiel [see an intro to law].
The Roman Dutch juris are not always in agreement, where
there is a disagreement between them reference must be made to
Roman law. The opinion supported by Roman law is to be
preferred.
Roman law simpliciter is not part of our law. Our law is Roman
Dutch. However we refer to the Roman law to resolve a
disagreement between Roman Dutch Juris. We will follow that
Juris who is supported by the Roman law.
Where Roman law does not resolve conflict it must become
irrelevant. This happens where neither of the Jurists is in
agreement with Roman law. In the situation the choice is
governed by Justice and fairness.
As the law applicable at the Cape had some English law
reference may be made to English law and not to the Roman
Dutch Juris. If the area of the law involved has been largely
affected by English law e.g Company law, Banking law,
International trade, etc.
From time to time it happens that S. Africa courts change the
law applying in South Africa. This must not lead to an automatic
change in Zimbabwe because the law applicable in South Africa
is not necessarily the law applicable at the Cape on 10 June
1891.
Each case must be determined on its own merits. Zimbabwe
court must determine whether or not the change in S. Africa
reflects the law applicable in Zimbabwe. A Zim court must be
prepared to disagree where appropriate because it’s not bound
by the views of the South African courts.
The approach in Book v Davidson is demonstrable incorrect. In
that case Dumbutshena CJ expressed the view that Zimbabwe
courts must not lightly ignore decisions of South African courts
and blindly followed a new South African approach to contracts
in restraint to trade. The court abandoned English South Africa
up to 1984 when the South Africans changed that position.
What is it in a previous decision that is relevant?
Not everything in a judgement of a court is relevant.
First, it must be a proposition of law and not a proposition of
fact.
Secondly, it must be the principle of law upon which the
decision is based on the ratio decidend (reason for the decision)
This is a statement of law or principle of law upon which the
decision is based. There are some propositions of the law in
given case which are not part of the reason for the decision.
They are said in passing. Judges do it every day. Such a
proposition of law which is not the ratio decidend is called
obiter dictum. (Plural is obiter dicta)
Only the ratio decidend is binding on a future court, the obiter
dicta is merely persuasive.
To be binding the ratio must emanate from a court which is
superior in the hierarchy of courts. The Constitutional court is
the highest court in all constitutional matters its decisions bind
all courts whether right or wrong.
The Supreme Court is the highest court in all other matters
(matters which do not involve constitutional issues) it binds all
courts in respect if all other matters including the Constitutional
Court.
Zimbabwe has two highest courts Constitution and Supreme
Court
These two courts are not bound by their own previous decisions
but they generally follow them. They may depart from a
previous decision if convinced that either there they were wrong
or if it is right to do so. (See intro)
The High Court is bound by decisions of Supreme and
Constitutional Court, it is not bound by its own. Its own
decisions are merely persuasive.
Reference to a high court decision is only relevant where there
is no Supreme Court or Constitutional court decision.
The system of precedent does not apply to the magistrate and
other common law, rules of law obtained from previous
decisions lower court.
The strict rule of law is that the Supreme Court and constitution
court are not bound by their decisions but they generally follow
them. If there is no Supreme court decision in an issue but they
is existence of a high court decision on the matter, the high court
decision will be taken as representing the law but it can always
be said that the issue is “open”.,
When we say a matter is said to be open, we mean that the
highest court has not spoken on it.

The Constitution in Section 176 provides as follows:

“The Con Court, the Supreme Court and the High have
inherent power to protect and regulate their own process
and to develop the common law or the customary law,
taking into account the interests of justice and the
provisions of this Constitution”

This Constitution provision has implications on the doctrine of

precedent. The following implications arise:
a) All cases before the coming into force of Constitution may be
abandoned if they do not reflect the spirit of the Constitution
and the so called “interest of justice”.
In other words these courts can not hide behind precedent to
apply a rule of law which is contrary to the provisions of the
Constitution or interest of justice.
This means no rule of common law is safe – every rule is
subject to a possible attack on the grounds of being not in the
interest of justice.
It was not permissible to abandon precedent merely on the
ground of it not being in the interest of justice. What was
permissible was to abandon it if it were a wrong decision.
b) Where the Supreme Court exercise the power in Section 176
its new common law position binds all courts whether right or
wrong.
c) The high court has power to develop common law in two
situations namely –
i) where the Supreme Court has not yet done so and where it
does so the lower courts are bounds.
ii) In situations covered by Supreme Court decisions made
before the coming into force of the constitutions. In those
situations the High Court is not bound by pre – 22 August
2013 decisions.
This means that the high court is only bound by Supreme Court
decisions made after 22 August 2013. This is where the High
Court wants to exercise power in Section 176.
This Section 176 was copied from S. African Constitution. The
SA Courts have already made use of their powers. In 2013 they
abolished the delict of adultery – It has outlived its usefulness.
Adultery used to be a crime. This was abolished by the courts in
development of common law under the doctrine of “disuse”

Custom
Custom refers to rules of law that emanate from the habits and
traditions which graduate into legally binding rules.
They are two types of custom namely –
a) General Custom
b) African Customary law
African Customary law is a special type of law which governs
the way of life of the African people. This is the law that
applied before colonial conquest/rule. It continues to apply but
in limited circumstances.
General custom refers to the customs in different fields of law
such as commercial law, international trade, banking law labour
law etc.
General Custom is found by examining the circumstances. It is
a matter of fact whether a custom exist. To be law a custom
must satisfy 4 requirements namely:
a) Certainity
b) Uniformily
c) Reasonableness
d) Long binding
The leading case is Van breda V Jacobs where the courts
accepted a custom in the fishing trade which gave a right to fish
in the sea to a person whose fishing net was in the line of those
fish.

African Customary Law

Zimbabwe has what is called a dual legal system. This is where
there are two types of law that may govern an issue namely
General law and African Customary law.
General law refers to Statutes/Legislation and the common law
while Customary law refers to the customs and traditions of the
African people which have the force of law.
A dual legal system means that if they are two people in the
same country over the same matter, one may be subject to
customary law while the other is under general law. The two
operate side by side and as to which law applies in any given
situation, depends on the choice of law formula provided by
law.
The law itself has rules which determine what law to apply.

When do we apply Customary Law?

Section 89 of the Old Constitution which is still law by virtue of
Section 192 of the Constitution open as follows “Subject to ...
African Customary law ...” This means that it recognised the
existence of customary law and is the basis of the dual legal
system.

The question is ... under what circumstances does customary law

apply? The circumstances are specified in the customary law
and local Courts Act Chapter 7:05.
In terms of that Act Customary law applies in civil disputes
only. It does not apply in criminal matters.

In Civil matters customary law applies in terms of the “Choice

of law formula” in Section 3 of the Act it applies:
a) Where the parties agree that it should apply
b) In the absence of an agreement, it is just and proper that it
should apply having regard to the surrounding circumstances
The Act defines surrounding circumstances as including:
- Mode of life of parties, nature of the case, its closeness to
customary law and the parties knowledge of customary law.
After taking into account surrounding circumstances the court
exercises a discretion and determines whether or not it is just
and proper for customary law to apply.
- A discretion must only be reasonable.
A discretion is not interfered with merely on the basis that
one is not in agreement with it.
- The formulation used to interfere with a discretion is as
follows “the decision must be so outrageous in its defiance
of logic or common sense that no reasonable/sensible
person applying his or her mind to the facts could have
arrived at it”
Instead of saying that you can say “taken leave of his
senses”

The leading case on the application of customary law is Lopaz 2

v Nxumalo Sc 115/85. In that case the parties were a
Zimbabwean woman and a white Portuguese man. He seduced
her daughter in the rural areas. She sued him for seduction
damages in a community court, her life and that of her daughter
were entirely in the rural areas. She knew no general law. He
met the daughter while on his farming activities in rural areas.
He knew no customary law. He objected to the application of
customary law. The community court applied customary law
and rejected his defence. It came to the conclusion that it was
just and proper for customary law to apply. He appealed to the
supreme court and lost. The SC refused to interfere with
discretion of the court a quo. (court below).

The Act has an overriding provision , union is covered by the

expression. “unless the justice of the case otherwise requires”
This means that customary would not apply where it would lead
to injustice. Further customary law would not apply if there is a
statute which says it shall not apply. The issue of justice arose
in the case of CHAPEYAMA V MATENDE 2000 (2) ZLR 356.
In that case the parties were married under customary law, their
marriage was not registered. It was an “unregistered customary
law union” They had fallen in love when they were in grade 7.
They sat for “O” Level together and both failed. They had lived
together for several years, had two children and had acquired
considerable property together. They left the rural areas and
were now living in Harare (Mufakose). Their property included
a house in Harare which was registered in both their names.
Suddenly the husband terminated the marriage and sought an
order from the courts to have the name of wife deleted from the
registration certificate pertaining to the house. This action was
under customary law. Under customary law the wife did not
own anything.
She was only entitled to the amai and maoko property. The
surrounding circumstances favoured the application of
customary law. But customary law yielded a clear injustice the
court abandoned the customary law on the basis of “Court
Justice of the Case” and applied general law.

Customary law itself is subject to the Constitution and General

law. Some rules of customary law no longer apply.
The leading case is Katekwe v Muchabayana 1984 which held
that the effect of the legal age of majority was to give every
person including women the power to sue and be sued in their
own name.
Accordingly a father no longer has the right for seduction
damages in respect of a daughter who is 18 years or above. It
meant that roora was a matter of contract between father in law
and son in law – it no longer affected the validity of a marriage
under customary law.

This case was followed by Chihova v Mangwende 1987 which

gave a daughter the right to inherit from her father under
customary law.

In Vareta v Vareta 1990 – the Supreme Court started to retreat

and said that, the right of a daughter to inherit from her father
only existed where there was no male child.

In Magaya v Magaya the Supreme Court delivered a bombshell

– it held that Katekwe was wrongly decided – rights of women
under customary law are determined not by age but virtue of
being a woman.
This was reversed by legislation so that the position of women
under customary law is now based on equality – see Section 56
of the Constitution.

Customary law is still alive in many aspects particulary

ascendance to traditional leadership.
Recently the courts appear to have adopted a closer scrutiny of
procedures in customary law courts. In Nyikadzino v Morgan
Tsvangirai 2012 (1) ZLR 405. An action was brought against
Tsvangirai arising from a highly publicised customary law
marriage that occurred in November 2011. It was claimed that
the marriage was taboo because it took place in November, a
sacred month under customary law (mwedzi wembudzi). The
Chief himself (Chief Negomo) was cited as the plaintiff. He
personally served the summons on Tsvangirai in Harare. The
summons required Tsvangirai to attend court at a named
business centre. The cause of action was clear and was stated as
follows: “Tsvangirai married Leocardia Karimatsenga in the
sacred month of November which is taboo the spirits needs
appeasement the rains have failed to fall”.

The plaintiff claimed “two beasts and two sheep ten metres
white cloth and ball of snuff for spiritual appeasement and land
cleansing.
Tsvangirai did not attend and judgement was given against him
in default. When judgement was about to be enforced
Tsvangirai’s lawyers challenged the proceedings.
The High Court set aside the summons on the basis that Chief
Negomo was both the plaintiff and presiding officer.
Court held that this is a feudal form of justice which has no
place whatsoever in the any modern system “It should be
blindingly obvious to any judicial officer that he can not
institute a claim or complaint and also adjudicate himself. It
follows that the summons issued by Chief Negomo is
fundamentally flawed. For this reason alone, the proceedings
pursuant to that summons constitute a nullity and must be
treated as being void ab initio”
The Court also set aside summons on the grounds that they were
not served by a messenger of court. Finally the court also held
that Gweshe bus Centre was not a place of sitting for a court in
terms of the 2002 Statutory Instrument.
The order of the court was to give leave to a “proper plaintiff” to
institute proceedings and for the matter to be heard de novo.
(afresh)

Authoritative Text
This refers to the published opinions of leading authorities in
law. The publication must either be a book or a reputable
journal.
Authoritative texts are persuasive authorities only. It is mainly
the reputation of the author and the convincing nature of the
argument that are relevant.
Some textbooks have acquired a high standing e.g. Christie,
Treitel, Kerr, Mckertain, Boberg, Brownley.

Law Reports
It is a requirement that decisions of the courts be in writing.
Decisions of the superior courts (high court, supreme court and
constitutional court are something published in an official series
of law reports called the Zimbabwe Law Reports (ZLR).
Not every decision is reported but every judgement is published
in the sense that it is made available to the parties.
Whether a judgement is reported or not reported, it has the same
precedent value. The selection of judgements for reporting is
done by a group of self appointed editors. In many cases the
panel of editors may miss out an important case e.g Loprt 2 v
Nxumalo SC115/85.
Where a case is reported it is more accessible however it is not
an excuse to fail to identify the law on the basis that it is
contained in the in unreported judgements.
In a law report the Editors put a summary at the top. The
summary contains the facts and the decision. It is call a
headnote.
The headnote may be wrong or misleading. Each series of law
reports has its own style of reference – In Zimbabwe there is
only one series – ZLR published by a private organisation
licensed by Government – the Legal Resources Foundation.

In other Canmes there are several law report e.g In England, the
following exist.
- Appeal cases (AC), Weekly Law Reports (WLR), All
England Law Reports (ALLER), Kings Bench (KB), Quens
Bench (QB)
- In South Africa the following exist:
SouthAfrican Law Reports (SA), All South Africa Law
Reports (ALLSA), Butterworths Law Reports – these depend
on subject e.g. Butterworths Labour Law ndustrial Law
Journal (ILJ)
The citation for Zim and SA is as follows:
 - Year, volume name of law report, the page where the case
begins and the name of the Court e.g 2012 (2) ZLR 115(5),
2010 (1) SA 130 (CC)
In England the difference is in the bracketing e.g [1915] 1
AC 415 (HL) – this applies to decision after 1890 for
decisions before 1890 the year is in round brackets e.g.
(1889) 2 KB 45
The Americans start with the page followed by name of
the report and then the year e.g 203 Ny 1985

DIVISIONS OF THE LAW

Law may be classified in a variety of ways.
Classifications depend on the purpose sought to be
achieved. Some classifications are not useful.
1. Civil Law v Criminal Law
This appear to be the most important distination.
A crime is a wrong committed against the state/society and is
punishable by the state.
A civil wrong (Delict) is a wrong against another individual
and is not punishable and the wronged individual may be
given compensation.
What makes a crime a crime is the mere say so of the law.
Different societies have different crimes. What is a crime in
a society may not be crime in an another. e.g Homosexuality
is a crime in Zimbabwe but it is not and it is permissible in
South Africa and homo there are allowed to find a family.
Although crime is a wrong against society the actions that
lead to its commission are against an individual. It is society
which decides the wrongs against individual which are
deemed to be wrongs against society.
Almost every crime is also a civil wrong. The fact that a
crime has been committed do not take away the right of the
wronged party to pursue a civil action. The initiative to
prosecute for crimes lies with the state. – the initiative to
pursue civil action lies with individual concerned. These
actions may be pursued simultaneously. However for
purposes of evidence the law allows a conviction in a
criminal court to be used as evidence in a civil action without
any additional proof. This is the only practical reason why
civil action may wait for criminal action.
A “Not Guilty” verdict in a criminal court has no relevance
whatsoever in a civil action. There are circumstances where
the state may refuse to prosecute, there is a provision for what
is called a private prosecution – where a private person takes
over the role of state – where a private individual takes over
the role to prosecute. It will be still criminal law enforced by
private individual. That right can only be exercised if the
State issues what is called a NOLLE PROSE QUI (Decline to
prosecute). Where the state refuses that decision may be
taken to the courts for review – see the case involving Telecel
and Jane Mutasa.
There are more civil wrongs than crimes, civil law covers all
law which is not criminal law. This is so wide that it is
meaningless to list the scope of civil law. However, the
following areas fall in the scope of civil law, Delic, Contract,
family law, property law, most aspects of labour law etc.
 The essence of a crime is punishment but that of civil law is
compensation. The distinction between civil law and
criminal law has fundamental practical implications for
example it affects procedure in that civil law is enforced via
civil procedures while criminal law is pursued through
criminal procedure
The standard of proof is different, in criminal law it is proof
beyond a reasonable doubt, where in civil law it is on a
balance of probabilities.

2. Procedural Law v Substantive Law

Substantive law deals with rights and duties of parties. It is
about specific legal rights.
Procedural law is about enforcement of those rights. It deals
with the steps that must be taken to enforce rights. It is
sometime called adjectival law. This distinction has practical
implications.
Wrong procedures may undermine rights granted by law e.g
Approaching the wrong court or failing to exercise a right
within the time limits prescribed by the law. It is one thing to
have a legal right, its enforcement is another.

3. National and International Law

National law is the law of a particular country. It is
sometimes described as domestic law or municipal law.
International law is the law governing relationship among
states. Two or more countries constitute “International”
 There is no international parliament so international law is
derived from the consent of states involved mainly through
treaties and international organisations e.g United Nations. In
general individual persons do not derive legal individual
rights from international law. Individuals may only get rights
where international treaties grant them but the exercise of
these rights may generally be at the international level e.g
where individual citizens are given rights to take their
government to an international tribunal. In terms of Section
326 and 327 of the Constitution of Zimbabwe – International
law is subject to National Law i.e. National law overrides
International law – this is the standard approach across the
world.

4. Public Law v Private Law

Private law deals with rights of persons in their private
capacities i.e. as individuals. Whereas public law deals with
legal relationships in which he state or a public authority is a
parly.
In a few cases involving commercial contracts the state is
governed by PRIVATE LAW e.g. where it acquires goods on
the market. This distinction is sometimes difficult to make
e.g. in labour law there is both private law and public law.

5. General law v Customary law

General law refers to statute plus common law while
customary law is the law directly derived from the customs of
African people.
6. Common Law v Civil Law
This distinction only applies to what are called civil law
traditions in Western Europe where (law has been codified
and is no longer based on the common law as developed in
England. This is essentially the English Law tradition versus
Roman Law traditions.

7. Law v Equality
This is a distinction in English law. Law refers to the strict
law, refers to departures from stict law based consideration of
justice and fairness. English used separate courts called
courts of equality. These no longer exist and all quality have

LAW MAKING PROCESS

We have already considered law making in the form of common
law and custom where we are dealing with law making in the
form of legislature.

Separation of Powers
The principle of separation of powers says that there are ought
to be three organs of state namely:
a) The legislature – responsible for law making
b) The executive – responsible for implementing law (executing
law)
c) Judiciary – for law interpretation.
No organ must perform the functions of the other to
concentrate more than one function in any one organ is to
undermine individual liberty and promote oppression.
This principle is now almost universal. Most states are
organised in terms of this principle.
The underlying objective of this principle (SOP) is to regulate
the exercise of power so that it is not used oppressively.
It has been said that “power corrupts and absolute power
corrupts absolutely”. It is a constitutional technique to
promote individual liberty.
Zim follows the principle of separation of powers, although
in practice this may not be the case. The legislature is
provided for in terms of the constitution. (see Chapter 6,
executive is provided for in Chapter 5 while judiciary is in
Chapter 8.

The legislature consists of the President and then Parliament.

The President is also the head of the executive see Section 88
and 89 of the Constitution.
For composition of legislature See 116.

Parliament itself consist of two chambers – the National

Assembly and the Senate.
Parliament makes law by debating proposals which are as
Bills. If a Bill is approved by Parliament it is sent to the
President assent. If the president assents the Bill becomes an
Act of Parliament.
 Parliament has other roles – the law making roll is performed
only by debating and approving Bills.

Pre-Bill Stage
This stage is not regulated by law. It is exclusively political.
In Zimbabwe it is shrouded in secrecy. In other countries the
pre-bill stage is generally open. However, this is not in terms
of law but in terms of well established political traditions.
In the UK, Government, by tradition, consult the public
before introducing a bill in parliament.
It publishes either a “white popular or General paper.
In a white parliament the view of people without it
expressing its own views
In a green paper, Government expresses its tentative view
and seeks comments on those views.

In Zimbabwe, there is no legal obligation to consult the people.

The new constitution has not altered this position despite
expectations for it to do so.

In Section 141 of the Constitution there is what is described as

“public access toll and involvement in parliament” - In terms of
that provision, parliament is required to facilitate public
involvement in its legislature and other process and “Ensure that
interested parties are consulted about Bills being condered and
parliament unless such consultation is inappropriate or
impractical.
This provision does not address the pre-Bill stage at all.
Parliament only gets involved when a Bill has already been
presented.

Even where parliament is required to consult after a Bill has

been presented, there is an exception – there is no duty to
consult if it is inappropriate or in action. These workds are not
defined
The Constitution imposes a duty on parliament and not on the
executive which in terms of our political traditions initiates
execution. Regarding proposed Costitution amendments
Section 328 of the Constitution requires a constitutional bill to
be published at least 90 days before it is debated in parliament.
The Speaker must involve members to exp
Again there is no pre-bill obligation.

Committee Stage
This stage involves a clause by clause scrutining of the bill. It is
the only stage where Parliament examines the content of a bill.
It is at this stage that amendments are made to the bill. The bill
is approved on a clause by clause basis.
In practice no debate take place. MPs just pass all the clauses.
This is because MPs are directed by their political parties on
how to vote. It is called “whipping”
Each party has an MP in parliament called the “Chief Whip”
whose role is to ensure that MPs from his or her political party
follow directions of their party.
Section 151(2) (f) of the Constitution recognises Chief Whips
by making members of the Committee on standing rules and
orders.
The Committee of parliament may be the whole house or a
Special Committee Set for the purpose. This stage is chaired by
the Deputy Speaker (in the National Assembly) and Deputy
President of the Senate (in the Senate)
This is because the Speaker and the President of the Senate are
not members of the Parliament.
The presiding psn at this stage is referred to as “Mr Chairman”/
“Madam Chair”

REPORT STAGE
This only takes place where there was a Special Committee
If it is a Committee of the whole house the report stage is a mere
fomarlity.
Zimbabwean Parliament has always used the whole house as a
committee.

In systems where Special Committees are used the report stage

may reverse amendments proposed by the Committee

REFERENCE TO PLC (PARLIA LEGAL COMMITTEE)

If the bill is amended at the Committee stage it is referred to the
PLC again to determine whether the amendments is consistent
with the constitution.
Third Reading
There is no reading. This is the voting stage. The bill is put to a
vote, the vote is on the whole bill except for constitutional bills,
the bill must be passed by those present and voting. It must be
by majority of those present and voting. For constitutional bills,
it must be passed by 2/3 of the total membership of parliament.
Even those who are absent are taken into account.

TRANSMISSION TO THE OTHER HOUSE

Zimbabwe has a bia – parliament. This means parliament has
two houses. For a bill to said to have been approved by
parliament it must have passed both. A bill may originate from
either house – except that money bill may only first be
introduced.
In Zimbabwe most bills originate in National Assembly.
The issue to consider is where there are differences between two
houses. These differences are dealt with in the fifth schedule to
the constitution. Details are a matter of constitutional but it is
National Assembly and the Sanate. If the procedure in the fifth
schedule does not

This means that senate may delay but not block legislation. In
popular terms the National Assembly is called the
“Lower”house white the Senate is called the “Upper House”
These terms have no legal meaning – they have no legal
significance, they are borrowed from the British system
Presidential Assent
A bill can not become law without the approval of the president.
It is the presidential assent which converts a bill into an Act of
Parliament.
In terms of Section 131 the president may or may not ascent to a
bill. The new constitution has changed the role of the President
in the event that it secured a two third majority for his signature.
The president no longer have power to dissolve Parliament
simple on the basis of disagreement over a bill.
In terms of Section 31 the president has power to refuse to sign
a bill. He may exercise power if he or she considers the deal/bill
................ reservations about the bill.
Any reservations will do ................................. if the other he or
she is required to put his reservations in writing and refer the bill
(see Section 131 (b)

Where a bill has been referred back to Parliament it is only

considered by the National Assembly and not senate.
The speaker must convene a sitting of the National Assembly
“without delay”
“Without Delay” may be an avenue to kill the bill. The National
Assembly may not be convened. If the National Assembly
decides to reconsider the bill it has two options namely