INTRODUCTION TO LAW

MRS J.NDONGWE
NATIONAL CERTIFICATE

DEFINITION : LAW
 These are a body of rules and regulations written and or unwritten that constitutes a
community or society.
 A body of rules or regulations that govern human conduct within a given community
or society which are enforceable and binding on the subjects of that community.
 Is a code of conduct , that controls human behavior towards each other in respect to
their business and private lives

LAW DEFINITION AND ANALYSIS

1.Rules and regulations that govern human conduct.
There are many types of laws that relate to a number of things e.g.scientific laws that relate to
the universe and how nature is regulated etc.
However in this subject, we are concerned about how human behaviors regulated.
The law is an instrument that is used by a society/community to ensure that people /subjects
do the right thing.

ENFORCEABLE AND BINDING

 The law on its own cannot achieve anything, there should be mechanisms or means to
ensure that the law is applied or upheld by the subjects of the society.

 No wonder why society needs the service the Police Army and Judiciary and such
other institutions .These ensure that the law prevails
 The law should bind, oppose, direct, order or instruct the subjects what to do and any
action contrary/against what is stated at law is punishable.

SANCTIONS
Broadly speaking,sanctions can be described as an unpleasant event or act that is given or
prescribed to a member state who has failed to abide or uphold the defined law.It is a
punishment or punitive measure given to a member of a society who has acted contrary to
what the law says

LAW vs REGULATIONS
Law governs all members in the country or society but regulations like by laws may be for
specific areas eg. Each municipality can have by laws for its area and these are not
enforceable to another area.
THE NATURE/PURPOSE OF LAW /AIM/ OBJECTIVES

PURPOSE OF LAW
 To maintain peace and order.
 To settle disputes
 To do justice
 Settle disputes
 Security
 To protect the rights of individuals
 To prevent the rights of individuals from clashing with the rights of the state

1.TO DO JUSTICE
The word justice is difficult to define, it shall be assumed that justice is or means anything
that is right and fair in a given situation –what is right and fair to a fair minded person,
The law should be seen by an ordinary man to achieve the right results that are fair to
everyone
Its objection should be logical and its results should be reasonable.
2. TO REDUCE CONFLICTS
Where conflicts arise the law should take its course to settle the dispute.
Should someone have done something wrong, the person should be punishable by the law
thus serving to maintain peace.

3.TO MAINTAIN PEACE /PRESERVE ORDER

Without law everyone might do whatever he/she finds necessary to do without considering
other people’s position. To avoid a crisis the law should be applied uniformly so as to
maintain peace and order.

PRINCIPLES OF MORDERN LAW /POSTITULATES OF A JUST LAW/

DOCTRINE OF IMPARTIALITY/ RULES/ ESSENTIALS
/CHARACTERISTICS OF LAW

1. JUST APPLICATION
Law must be reasonable-it should uphold what is right and forbid what is wrong
{murderer vs parking offender-fine]

2. EQUALITY
The law should apply equally to all the people of a given community in the same
condition irrespective of race, color or creed or the social or economic conditions eg.
Whether rich or poor, famous or commoner.

3. UNIFORMITY /GENERALITY
The law should apply uniformly to all people in all areas,Binga,ChiredziMrewaetc

4. AUTHORITY
The law should be derived from a proper authority eg Parliament or Municipality
It should be derived from a competent body.

5. CERTAINITY
In order to be just as far as possible the law should be certain/known.
It should be clear and not ambiguous .it should be declared and made known before
being applied. Any new law should be published in the government gazette, and once
gazetted, nobody can argue that he/she did not know it hence legal maxim –
IGNORATIA JURIS NEMI NEM EXCUSAT –ignorance of law excuses no one.

Legislation which purports to apply to past action is called ACTS POST FACTO
LEGISLATION and is unfair as is applied retrospectively/ backwards
 6. POSITIVE
In the interest of the public

JUSTICIA/GODESS OF JUSTICE
(A) blind folded
(C)scaleCertainty
Fair Fair
Uniformity A Uniformity
fair
C Uniformity

B. Sword
Fair
Authority

 The principles of law are derived from the justicia-the goddess of justice.
 She symbolizes the function of the law
 She is depicted or shown blind folded, holding a scale on her left hand and a sword or
bow and arrow on her right hand.
 The significance of these features are :-

JUSTICIA’S BLINDFOLD
Denotes equality and explains the fact that the law is blind to society’s difference, disparities
in wealth, class, power and race.All the people are the same in the eyes of the law.

JUSTICIA’S SWORD
  Symbolizes the authority of power to enforce or use force if necessary
e.g.
 The use of police and courts
 It is with the sword that obedience is enforced.

JUSTICIA’S SCALE

 It symbolizes uniformity and or equality

 It represents the constant weighing of the rights and interests of one individual against
those of another, so that those belonging to one will not overshadow another
 The aim is to achieve a balance, for if this fails the peace and order on which society
depends for its existence is endangered

DIVISIONS OF LAW

LAW

NATIONAL LAW

INTERNATIONAL LAW

PUBLIC INTERNATIONAL PUBLIC INTERNATIONAL

PUBLIC LAW
PRIVATE LAW
CONSTITUTIONAL LAW CRIMINAL LAW SUBSTANTIVE LAW
ADJECTIVE LAW CIVIL LAW

(individual vs individual) (procedure)

(compensation)

ADMINISTRATIVE LAW

Law of persons Law of Property Law of Succession Law

of (real rights) obligation

LAW
Is divided into international and national law

INTERNATIONAL LAW

Refers to rules and laws made and enforced by several states and regulates the conduct
or relationship of one state to another.
Public International law
are laws enforced by the state courts with the jurisdiction over private individualwhere the
system of law for more than one state are concerned.
Private international law –solves conflicts between individual and corporation in which
international law exists’

NATIONAL LAW

Refers to rules and laws made and enforced by a single state alone and is binding on the
inhabitants of that particular state.

PUBLIC LAWS
Refers to laws which regulate rights when one part of the dispute is the state.

CONSTITUTIONAL LAW
It’s a set of rules defining and regulating the structure and function of the organ of central and
local government.
It is mainly concerned with the structure of organs/depts of the state and the divisions of
power within the state.
A constitution is the collection of rules setting out the framework or machinery of the state.It
shows the distribution of authority among the various institutions which together make up the
state
These are the rules that controls the State, President ,Parliament, Law courtsand government
boards etc

ADMINISTRATIVE LAW
The branch of constitutional law which is concerned with details of administration. It consists
of rules and regulations which lay down functions of the state officials and the rights and
duties of private individuals in their dealings with the state and the procedure In which these
rights and duties are enforced.

CRIMINAL LAW
This is law relating to crime and mainly deals with the punishment by the stateof persons for
offences which they will have committed in the community.
A crime is an unlawful action accompanied by a blameworthy state of mind which is
punishable by the state.

PRIVATE LAW
Refers to the rules and regulations that govern the logical relations between individual.
It affects the interest and rights of individual citizen.

SUBSTANTIVE LAW
Refers to actions of logical rights which lay down that one person has a right against another
person
 It is the law that is concerned with recognization eg rights, duties, immunities ,privilege
etc
In the law of purchase and sale, the buyer has the duty to pay the price and receive the goods
and the seller has the right to receive the price and the duty to deliver the goods

LAW OF PERSONS
Deals with matters such as legitimacy, marriage, insanity etc.

LAW OF PROPERTY

Is concerned mainly with real rights to properties

LAW OF SUCCESSION
Deals with what happens to a deceased person ‘s property after his/her death.

LAW OF OBLIGATION

Deals with personal rights and obligation in favour of the person over another as a result of a
contract or delict

ADJECTIVAL /PROCEDURAL LAW

Refers to a class of legal rights which deals with means by which legal rights are enforced or
a law that is concerned with how the contractual rights and duties are enforced.

CIVIL LAW
Refers to the laws that looks into the private affairs of individuals and regulates the legal
rights of people

DIFFERENCE BETWEEN CIVIL AND CRIMINAL LAW

CRITERIA CIVIL LAW CRIMINAL LAW

1.Branch/division of law Private law Public law

2.Aim/Objective/Intention To compensate the plaintiff for the To punish the accused
loss rather than punish the defendant

3.Degree of proof required Based on balance of probabilities Proof beyond reasonable doubt

4.Interest/Parties involved Private individuals eg Individual vs state usually

Peter vs John though private individuals can
initiate
5.Results /Actions Fine/specific performance Imprisonment /fine or death
sentence

6.Example Breach of contract Rape,murder,AssaultTreason

etc.

ARMS OF STATE

A) EXECUTIVE
COMPOSITION
 Head of state
 Vice President
 Security Agents
 Cabinet
 Civil Service
 Attorney general

FUNCTIONS
1. Declare war and maintain peace
2. Turn bills into laws
3. Implement laws
4. policy making
 5. Uphold the constitution
6. Sign treaties
7. Represent country at international meetings

B) LEGISLATURE
COMPOSITION

The President
 Speakers (non voters)
 Presiding officer
 Governors
 Chiefs
 Members of parliament
 Attorney General (ex officio)

FUNCTIONS
 Debate on matters of public interest
 Make and amend laws
 Approve state budgets
 Monitor line ministerial expenditure
 Represent constituencies
 Debate the President’s speach
C)JUDICIARY
COMPOSITION
 Chief Justice
 Judges and magistrates
 Chiefs to headmen

FUNCTIONS
 To interpret and apply law
 Ensure that enacted laws are constitutional
 Administration of justice
  Pass judgments
 Promote good governance
 Head Commissions of enquiry
SOURCES OF ZIMBABWEAN LAW

The main source of law in Zimbabwe is the Roman Dutch Law , but has been supplemented
by legislation ,decision of our courts i.e judicial precedence and custom
Furthermore many people in Zimbabwe are subject to traditional customary law particularly
in their family relationships.

THE ORIGIN AND DEVELOPMENT OF ROMAN DUTCH LAW

Roman Dutch Law is that system of the law which was applied in Holland during the period
of Dutch Republic and which the Dutch took with them to the various colonies which they
founded in the Cape, East and West Indies.
It is the common law today of Zimbabwe/South Africa,Botswana,Lesotho,Namibiaetc
It is actually the basis of Zimbabwean law

COMMON LAW
This is the law common to everyone in the country
That law which is not a product of a parliament
This includesRoman Dutch Law, customary law and judicial precedence or judge made law
Therefore common law includes all sources of law except legislation

SOURCE OF LAW
1.THE AUTHORITATIVE SOURCE OF LAW

These are the source of law which are binding upon all the citizen of the nation/country and
these include

A) . CUSTOM
These are habits, norms or usual practice of behavior observed by individuals in society.
Unwritten codes of behavior developed and practiced by individuals in a society or
community
Customs can be divided into 2 categories
 (a) Social Customs
Refers to practices of a given society which are not binding but of a persuasive nature
e.g. payment of lobola, greeting others etc.
(b) Legal Custom
These are practices which are binding .It entails duties which must be observed and
are enforced by the society. E.g. chisi
For a custom to be recognized as legally binding it must satisfy the following
condition:-
1. Reasonableness Obviously for any custom / trade usage to be recognized as law
it should be a reasonable custom and the test of Reasonableness is objective (This
will be expanded under law of delict).

2. Long – established For a custom to be binding as law it should be shown that it

has been established over along period of time.

3. Uniformly observed A custom should be uniformly followed by the people to

whom it applies.

4. It should be certain This means that it should be clear and not always changing.
.
CASE : VAN BREDA vs JACOBS 1921
In the above case a custom existed among those in the fishing industries in the Cape that once
a part of fisherman commences catching or nets a shore of fish between Cape point and fish
hock, other fishermen are required to desist from attaining a position to catch fish from the
same shore
Some fishermen sets their nets to a beach to a shore of approaching fish and another part of
fisherman then placed their nets a short distance in front of the first part, thereby intercepting
the shore and catching it.
The first party claimed in an action that the second party had violated a local custom “first
come first pull”,thus depriving them of their rights to catch the shore.

HELD
The court ruled in favor of the first part as it observed that the custom was reasonable
because it was designed to prevent disputes among fisherman and eminently fair to allparties.
The practice was Longlyestablished as it has been in operation for more than 45 years .It was
uniformly observed and known by all fishermen in the Cape and hence was certain as eleven
witnesses testified in this case.

B) LEGISLATION / STATUTE LAW

This refers to laws made /enacted by parliament and the president working together.
Refers to the publication of binding rules and laws on precise and well defined form by a
competent authority or body, having the legislation power to do so.
In Zimbabwe the legislative power is vested in the legislature which consists of the President
and parliament working together.

A statute or a act of parliament is the most authoritative source of law in Zimbabwe.its

provision overrides all provisions of other laws that may be inconsistent with the provision
that statute or act.
Legislation should also be based on the following principles:-
 Authority -parliament
 Certainty –known /predictable not post facto
 Equality
 Uniformity
 Just application-reasonable

THE LEGISLATION PROCESS / LIFE CYCLE OF LEGISLATION

Legislation passes through the following stages:-
(a) Conception:
There must be at least the initial proposal.
In Zimbabwe anyone can initiate legislation/law.
Anyone can make a representation to his/her MP {Member of Parliament}
The MP will take the proposal to the relevant minister, who then can take it to the Attorney
General for the proposal to be put in legal form and jargon / language
This draft is called a bill.

(b) Birth:
The next adventure is the hatching of the bill into an act. This occurs when the bill
successfully sails through parliament and is assented to by the President before it is finally
promulgated or gazette into law.

The bills go through the following stages in parliament,

1. First reading
This is the introduction of the bill by the responsible minister-and no debating
2. Second reading
At this stage the minister explains the purpose of the billor the policy behind the bill.
Details of the bill can be analyzed and debated on
Members of the parliament are then given time to study the bill carefully before it can be
made law.
3. Committee Stage
The house goes into a committee to discuss the various clauses of the bill,making
amendments /corrections even to the wording
4. Report stage
The committee chairperson will report if there were any amendments made to the bill by the
committee
The committee and report stage are only necessary if there are amendments or to be made to
the bill.
5. Third Reading
This is the third reading and final where the minister reads the bill for the last time and the
MP s are given the last chance to object to the bill being made law
The bill goes to the senate and goes through the same process.
If approved by the senate it is send to the President for assent and signature

C)LIFE
If the President agrees with the provisions of the bill he/she signs and the bill becomes law
when it is published in the GVT gazette and hatches into an act.
From the date of publication the provision of the act become law and no one will be allowed
to argue ignorance of that law (ignoratia juris nem nem excusat).ie ignorance of law is no
excuse.
The life of an act may be indefinite and will exist and be applied and enforced as long as
there’s need for it.
D) DEATH / TERMINATION
An act or enactment may come to an end in the following ways:-
a) Expressly Repealed
This is done by parliament by coming up with a new act which replace the old one,
e.g. the Company’s act chapter 24/03 replaced company act chapter 190.

b) Impliedly Repealed
This occurs when the provisions of a new act are inconsistent with the provision of an
earlier act, the affected earlier section falls away.

c) Lapse of time
The time period set for the act may come to an end where an act has been made for a
specified period, when the period gets to an end the act cease to be the law thereafter.

d) Abrogation / Death of Law

The rule of law is abrogated and becomes dead i.e. falls into disuse if it is no longer in
use / observed.

SUBSIDIARY LEGISLATION/ DELEGATED LEGISTRATION

This refers to the laws made / passed by authorized subordinates such as local Authorities
and municipalities.
These laws are usually called by- laws and are published in statutory instruments, GOVT
notices, rules and orders etc. All subsidiary legislation must be within the power of the
enabling act.
Any subsidiary legislation which is in consistent with or which exceeds the limits of
legislation is declared ULTRA VIRES i.e. over and above and hence unenforceable.

JUDICIAL PRECEDENCE / JUDGE MADE LAW/ CASE LAW

Precedence is a previous judicial decision which serves as a rule/ guide to a similar case held
in the future. Generally it is not the function of the judge to make law.
The function of the judge is to state, interpret and apply existing laws and not to make laws.
However a judge can become a law maker indirectly.
This happens when a court has given a ruling concerning the legal positions in a set of
circumstances, this ruling becomes the law or future reference and other courts will thereafter
apply the law as stated in the original case.
(FELNER vs MINISTER OF INTERIOR 1954)
e.g.
1.In a novel case which has not previously been heard before the courts for legal decisions,
the judge’s decision becomes the law for the future.
2.Where the statute is not clearly worded, the wording as given by the judge becomes the law
until such time as it is altered by the parliament.
3. Where the law is vague and capable of double interpretation, this interpretation as given by
the judge becomes the law.
4. Where there’s a legal vacuum or a grey area, as to what law should be applied in a given or
prevailing situation.

PRINCIPLES OF JUDICIAL PRECEDENCE/JUDGE MADE LAW/ CASE LAW

1. DOCTRINE OF STARE DECISIS (Stare decisis et non quitamovere)

Stare decisis means to stand by the decision and not to disturb settled points.
HABIB MOTAN vs TRANSVAAL GOVT 1904
Once the court has given a certain ruling that court and those courts that are subordinate to it
in future give the same decision on similar cases
This doctrine follows the hierarchy of courts or authority.e.g. the decision of superior courts
are binding on all inferior courts.
The decision of supreme courts binds all inferior courts including the high court but not
binding at the Supreme Court
Decisions of inferior courts do not bind any other courts even themselves.

ADVANTAGES OF STARE DECISIS

a) Maintains certainty , predictability ,equality ,uniformity and convenience of law
b) Decisions are not delayed
c) Keeps the weaker judge along right and rational path
d) Saves time and reduces court costs

DISADVANTAGES OF STARE DECISION

 a) A legal rule formulated before sufficient experience may contain an errorwhich may
be perpetuated as bad law.
b) Fails to come up with changing times and sentiments
c) The first experiment become the last and wealth of subsequent experience and
constructive thought counting to nothing

2. RATIO DECI DENTI – (Reason for decision0

Ratio deci-denti is the reason for the decision, this refers to the basis or the material facts on
which a decision is reached.
It is the principle of the decision
Material facts are facts necessary to the decision of the case ,the omission of which would
either lead to a different or no decision at all being made.

The sum of total material facts used to reach a decision is the ratio deci denti
COTTAT vs PRIEST 1937
3. OBITA DICTA
This is a remark made in passing by a judge
It does not form part of the decision
It is a statement made in the way of making a decision or accidentally.
Obita Dicta is not binding on future cases but maybe accorded great weight and respect by
subsequent court depending upon the circumstances on which the remark was made.
PETERSON vs JAJBHAY 1940
JAJBHAY vs CAPPIN 1939

JURISTS
Is the collection of ancient practicing law in Netherlands or refer to those who own the basis
of a wide spread reference by the court and elsewhere are regarded as authorities of law e.g.
VOET
THE HIERARCHY OF COURTS IN ZIMBABWE

Top level
SUPREME COURT
Superior courts
Court appeal
HIGH COURT

Court of first instance MAGISTRATE COURT

COMMUNITY COURT
Local
Courts
Low level PRIMARY / VILLAGE COURT

LOCAL COURTS /PRIMARY COURTS

Are made up of primary courts i.e.

a) Village courts
Courts of first instance
b) Community courts
Courts of first instance and also courts of appeal on parties tried by the village courts can
appeal with the community court.

COMPOSITION OF THE COURT

A village court is presided over by a headman or any other presiding officer appointed by the
minister –in practice they are usually appointed by the public
A community court is presided over by a chief or any other presiding officer appointed by the
minister.

JURISDICTION /POWER OF PRIMARY COURT

Primary courts have and may exercise jurisdiction to hear and try and determine any civil
case in which customary law is applicable when:-
a) A defendant is the resident within that area of jurisdiction of the court or
b) The cause of the case arose within such area and or
c) The defendant consent to the jurisdiction of the court.

A village court shall have no jurisdiction in any civil case

a) Where the claim is not determined by the customary law
b) Where the claim or the value exceeds specified amounts
c) To dissolve a marriage
A community court has no jurisdiction in any case
a) Where the claim is not determined by customary law
b) To dissolve a marriage contracted under the marriage act i.e. a civil marriage.
In terms of amounts of claim, the community court has no limit

CRIMINAL JURUISDICTION OF PRIMARY COURTS

A village court has no jurisdiction to try criminal cases

OFFENCES WHICH MAY BE TRIED BY THE COMMUNITY COURT

1. Theft of property not exceeding specified amounts..
2. Malicious injury to property not exceeding specified amounts
3. Assault which does not involve the use of any weapon and which does not cause
grievous bodly harm (GBH)
4. Contravention of local by- laws.
From the community court one appeal with the magistrate courts

MAGISTRATE COURTS
These are established in terms of the magistrate court Act.
These are situated in all provinces
These are courts of records and all proceedings should be recorded in English language
COMPOSITION
These are presided over by magistrates, who are appointed by the public service commission
in terms of the constitution.
The magistrates are usually appointed from the clerical section of departments of magistrate’s
courtand must be legally qualified

These are courts of first instance i.e. (cases can originate or be heard for the first time in these
courts) but they also act as courts of appeal as they hear appeals from the community courts.

TYPES OF MAGISTRATES
1. Ordinary-junior magistrate
2. Senior magistrate
3. Provincial magistrate
4. Regional/ Chief magistrate

JURISDICTION
All magistrate have jurisdiction over civil cases,
They may hear any civil matter provided
a) The person /partnership/ company carries on or is employed within the province in
which the court has jurisdiction.
b) The parties consent to the jurisdiction of the court
c) The action arose solely or partially within the area of the court’s jurisdiction.
Magistrate do not have jurisdiction to hear matters relating :-
a) Dissolution of marriage not under customary law
b) Validity and interpretation of will
c) The mental status of a person –insanity
d) Order for specific performance where performance is sought without the option of
payment of damage
e) Where the claim is in respect of a liquid document e.g. cheque the amount should not
exceed specified amounts
CRIMINAL JURISDICTION
The magistrate should have jurisdiction over all crimes except :-
1. Treason
2. Murder
3. An offence where any law requires that the person convicted of such offence shall be
sentenced to death.
They can however preside over summary trials and preparatory examination

MAGISTRATE COURT
LEVEL IMPRISONMENT FINE
Ordinary 1 year
Senior 2 years
Provincial 3 years
Regional/ chief 7 years

Procedure
In both criminal and civil cases one can appeal in person or be represented by a lawyer

Appeal
Appeals against sentence go to high court and appeal against conviction orcan go straight to
Supreme Court.

SMALL CLAIMS COURTS

 Established in terms of Small claims courts Act 1992as a result of lobbying by
consumer pressure groups ,e.g.consumer council.
 They called for a fast and cheap dispute resolution forum
 Courts are based in Harare and Bulawayo and presided over by a senior magistrate.
 Procedure is semi-formal
 No legal representation

JURISDICTION
Commercial disputes that arise between traders and their consumers , e.g.
-dry cleaning firm and a client
-Lawyer and an accounting firm e.g. on over charging

There’s no appeal from a decision of the small claim court.

However the High Court has the power to review the decision where there’s an allegation of
gross irregularities in the proceedings e.g. That the magistrate has an interest

HIGH COURT
It is set up in terms of the constitution
It is the superior court of records
Permanently set up in Bulawayo and Harare and has cessions in Gweru, Mutare and
Masvingo

COMPOSITION
 For the purpose of hearing or exercising its original jurisdiction in any matter it shall
consist of one or more judges of the high court
 For the purpose of hearing a criminal trial it consists of one judge of the high court
and two assessors.
 For the purpose of reviewing the proceedings or decision of inferior courts it shall
consist of one or more judges of the high court.
 For the purpose of exercising its appellant it shall consist of two judges of the high
court.

CIVIL JURISDICTION
The high court has jurisdiction over all matters and persons within Zimbabwe.
However they don’t have jurisdiction hear:-
a) Constitutional matters
b) Matters that require declaration of rights
The high court may reserve certain aspects to be decided upon by the Supreme Court.

CRIMINAL JURISDICTION
The high court may pass any sentence permitted by law and may impose a deathpenalty. The
powers are unrestricted as to period and amount.
The high court has full jurisdiction over matters arising within Zimbabweand has extra
territory jurisdiction (Authority outside country) in matters concerning Zimbabwe citizens
who commit offences outside Zimbabwe,the effects of which has some harmful effects in
Zimbabwe.
RODWELL MHARAPARA vs STATE (95/85)

PROCEDURE
The high court is bound by the rules of the high court as laid down in the high court rules
which
- People may appear and represent themselves personally, but it is more usual that legal
practitioners appear on their behalf.
- In criminal matters where the accused will not have the legal representation because
he/ she do not afford, counsel (non as prodea counsel) is appointed to represent.

REVIEW AND APPEAL

- The high court has power to review all the proceedings from the inferior courts .It can
confirm, vary or set aside the judgment.
- It can also hear all the appeals from such courts but with regard to sentence only
- Has power to review tribunals, Administrative laws etc.
- All appeals from high court go to the Supreme Court.

POWER TO OVERULE PARLIAMENTARY LEGISLATION

- Overrules parliamentary legislation where such legislation are In consistentwith the
constitution.
- Will determine the validity of subordinates legislation e.g. by-laws. Such legislation
will be invalid if:-
 Inconsistent with the constitution
 If it is ultra vires the structure under which it was made
 Uncertain or unreasonable
 Contain improper delegation of power

SUPREME COURT
 - Set up in terms of the constitution of Zimbabwe
- Have sessions in Harare and Bulawayo –may sit in Gweru, Mutare and Masvingo
- Is the highest court in Zimbabwe
- The judges are appointed from leading lawyers of the cream of the legal professionals
of Zimbabwe.
This is a court of appeal but can also be a court of first instance in relation to
constitutional matters and matters involving the violation of rights.

COMPOSITION
The Supreme court is duly constituted if it constitute not less than 3 judges of which one shall
be:-
a) The chief justice or
b) A judge of the Supreme Court.

JURISDICTION
The Supreme Court has the power to :-
a) Allow the appeal and squash the conviction / sentence
b) Alter the conviction / sentence
c) Substitute conviction with a suitable sentence
d) Confirm conviction or sentence or increase sentence

PROCEDURE
There’s no appeal from the judgment of the Supreme Court.
The court is not bound by any of its judgment rulings nor by those of its predecessor’s i.e. the
doctrine of stare decisis is used but not compulsorily.

REVIEW
Subject to review by non except pardon by the state President

ADMINISTRATIVE COURT
Constituted in terms of Administrative Court Act

COMPOSITION
 - Is presided over by the President of the court or the acting President, who is duly
qualified to act as the judge of the Administrative Court
- Such a person must have to be a former judge of the High Court or a legal practitioner
with at least 7 years experience.
- The President of the court and 2 assessors to assist him / her.

JURISDICTION
- It deals with administrative cases such as the determination of water rights, shop
licenses ,road and motor transportation permits etc
- The jurisdiction of the court as determined by having reference to the act, itself and
any other enactment dealing with the function of the court.

PROCEDURE
The Administrative Court is a court of records and proceedings are conducted in public
unless otherwise stated .The parties may appear in person or may be represented by the legal
practitioners

APPEAL
Appeal to the Supreme Court but in some cases may be reviewed by the High Court.

LAW OF CONTRACT
CONTRACT: A contract is a lawful agreement made by two or more persons within the
limits of their contractual capacity, with the serious intention of creating legal obligation,
communicating such intentions without vagueness each to the other, being of the same mind
as to the subject matter, to perform positive or negative acts which are possible of
performance.

ESSENTIALS OF VALID CONTRACT

1. Lawful agreement-(Brandt vs Bergestedt 1917)-Sunday sales
2. The agreement must be within the parties contractual capacity –(Edelsten vs
Edelsten)
 3. There should be serious intention to contract or create legal relationship –animus
contra hendi –Conradie vs Rossouw
4. Parties must communicate –Bloom vs American Swiss Watch Comp.
5. Parties must be of the same mind as to the subject matter –consensus ad idem-
Moritz vs Pratley 1894.
6. Agreement must not be vague Levistein vs Levistein
7. Performance must be possible –Wilson vs Smith and Another 1961.

1.0)LAWFULL AGREEMENT
Any contract must be within the framework or limits of the law
The law defines what ought to be done and what must not be done i.e. legal or illegal

CAUSES OF ILLEGALLITY
a) An agreement contrary to statute
b) An agreement contrary to public policy
c) An agreement contrary to morals-ie contra bonos mores

An agreement contrary to statute

A contract which is specifically prohibited by law e.g. the sale of human beings, fire arms or
trading without a license-liquor
Any arrangement to do an illegal thing is void or is not allowed.
Lion Match Co. vs Wessels 1946

An agreement contrary to public policy

These refer to contracts such as Restraint of trade-Pest control(Central Africa) Ltd vs
Martin and Another 609
These include price fixing, monopoly, limits to individuals interest to work or trade.
(katz vs Efthimiou 1948)
However where the agreement is in the equal interest of the contracting parties and does not
adversely affect the public,the law may make exceptions e.g. ex- employee and sell of
goodwill.

Gambling Transactions
Wagers gambling are considered to be contrary to public policy and are therefore illegal.
(chimbadzo)

Immoral agreement –contra bonos mores e.g. (prostitution and polygamy)

Any agreements that seek to do anything that is immoral is void ab initio i.e. from the start.
Agreements to further prostitution or paying a commission /bribing a marriage officer is an
immoral act and is thus un enforceable.(Hurwtz vs Taylor 1926)
All agreements which are illegal do not constitute contracts but mere arrangements and the
relationship between the parties is regarded by 2 doctrines.
1. Ex turpi causa non aurita action i.e
From an evil cause no action will arise.
- No court will come to the assistance of parties in a void contract.
- The above principle applies regardless of the fact that one part may have performed
his/her part to the arrangement
- No court can order specific performance at law and non can sue for the same
The court adopts the position that let the loss fall where it lies.
2. Pari Delictum Lest Factum Defendentis
-In equal guilty the position the defendant is stronger
-Where one party has performed in an illegal contract, the position of the defendant is
stronger as the court cannot compel the other part to perform
- Law may only intervene if there’s unjust enrichment and not for the contract itself
(Jajbhay vs Cassim 1939)
The rule may be relaxed to do simple justice between man and man

2.0)CONTRACTUAL CAPACITY
- Refers to the ability of one person to either contract or his / her incapacity to contract
- At law, not all persons can enter into contracts for some are deemed to lack it and
therefore needs assistance when contracting e.g. minors, insolvent,insane persons etc
- On the other hand there are people who have totally no legal right to contract at law.
- If they enter into any contract, the agreement or arrangement is void.
- There’s another group of people with full contractual capacity who can enter into any
contract which is legal.
PERSONS WITH FULL LEGAL CAPACITY
- All majors
- All married persons
- Women married out of community of property through antenuptual contract
- Tacitly emancipated minors

PERSONS WITH LIMITED LEGAL CAPACITY

- Insolvent
- Interdicted prodigal
- Women married in community of property
- Artificial persons

PERSONS WITHOUT LEGAL CAPACITY

- Drunkards/ intoxicated individuals
- Insane person
- Illegal association
- Minors
-
PERSONS WITH FULL LEGAL CAPACITY
All majors
- The legal age of majority act 1982 defines any one above the age of 18 as having full
contractual capacity, over all matters be it social or business.
- Every major can enter into any contract , e.g. hire purchase ,marriage etc. (everything
constant )

Married persons
- A minor automatically becomes a major at the instance of being married or marrying
- Any married women can contract fully provided she is not married in community of
property.
Women married out of community of property
- Unless the spouse enter into an antenuptual contract (contract entered before
marriage).The woman is subject to the husband marital power.
 - She will therefore be allowed to enter into any contract with other parties to sell her
own property.
- She can sue or be sued without the husband’s role.
An antenuptual contract is executed by the judge and should be registered with the registrar
of deeds.
An antenuptual contract can be signed even if not registered but concluded

TACIT EMMANCIPATION
Tacit Emancipated Minors
- These are minors who have been given some degree of freedom either expressly or
impliedly by their guardians, to contract either generally or can be occupied or and
can carry a trade (do a business) or can be occupied or employed on own account.
- That emancipation give the minor full legal capacity in a particular trade and no more
- Their capacity to contract is limited to the business or employment /occupation.
- In determining whether one was tacitly emancipated or not, the following factors are
relevant:-
a) The relationship between minor and guardian(s).
b) Whether the minor is staying with the guardian (DAMA vs BERA)
c) The nature. Duration or size of the occupation
d) The degree of the contract
- The minor is tacitly emancipated depending on the degree of freedom or autonomy
indicated by 4 functions indicated above.

PERSONS WITH LIMITED CAPACITY

1. Women married in community of property
Contracts entered by a woman married in community of property are void since such persons
have no legal standing for them to contract except with the consent/ husband’s expressed
authority.
This excludes buying necessities such as clothing, food, medical necessities and their
domestic services consumed or used permanently or temporarily as part of joint house hold ,
These include insurance, bank account, however they cannot apply for a bank overdraft.
They may operate a business with the husband’s consent and hence bind the joint estate.
The joint estate is liable only in-terms of the extent of any enrichment which has happened to
both but not to the extent of the total liability, unless it has been authorized by the spouse to
be public trade where:-
a) One need to be dealing with the public at large
b) It is clearly separated from home or joint business
c) Business is conducted on premises taken for that purpose
d) If this is conducted openly at a site of all.

2. Insolvent
- is a person whose business has been sequestrated in-terms of the insolvency act.
- These persons are not allowed to enter into contracts that are legally binding without
the approval of the trustee.
- These may enter into personal contracts such as marriage and can be employed.the
insolvent may not operate businesses or general dealers , be manufacturers , be
company directors or hold a liquor license for it require the consent of the trustees.

3. Interdicted Prodigal
- The prodigals are persons on a spending spree.
- Persons squandering money
- These persons are managed by curator who has to approve their contracts , they can
contract for basic necessity
4. Artificial Persons
- Companies are artificial persons for they can sue or and be sued
- They are separate from the shareholders
- Companies can only do what is permitted by the memorandum of association or
constitution.

PERSONS WITH NO LEGAL CAPACITY

1. Illegal Associations
An association that is not registered is illegal and any contract which it enters into is illegal
and hence void.
Such associations will only be liable in the event of any enrichment and not the actual
contract obligation
 2. Alien Enemies

This refers to persons who are citizens of a country or countries which have been declared to
be at war with Zimbabwe and who are residing in the enemy’s territory
Any contract with these subjects is void.

3. Mentally Ill Person (Insane)

Any contract entered into by a person during the period of insanity is void but such
person may be liable for unjust enrichment.
4. Drunkards –intoxicated
- Drugs or alcohol affects the capacity to make competent judgments and hence
contracts are void.
- It should however be proved that the drunkard was not merely reckless but totally
blinded.
- The person will only be liable for unjust enrichment.
(Van Metrnger vs Badenhorst)
5. Minors
- Persons under the age of majority -18 years, are minors and have no contractual
capacity at all except when they are assisted by their parents or guardians.
- The assisted contract should be to the minors benefit and not the parent’s benefit
- Should relate to –important life issues e.g. education, food etc
-
Exceptions to the general rule of people without contractual capacity

 Tacit emancipation (Dama vs Bera)

 Basic necessities (Unjust enrichment –Tanne vs fogit)
 Fraud –misrepresentation (where a minor lies or misrepresent his / her age the
contract will be binding in him.)
 statutory exceptions e.g. can open a POSB account
 Ratification ie if one later attains the legal age.
- Where the minor enters into a contract, the contract is void.
- Where the minor has already received something from the contract he/ she will be
required to pay for unjust enrichment and not for the contract itself.
- If the minor has received goods, can only return what he still has not what has been
consumed or lost.
 - If a minor reaches the age of majority and chooses to pursue the contract entered
while he was a minor, the act will be regarded as ratification and hence binds on him
even though it was entered without the parent’s assistance.(where a minor has
performed his part, the other part should also perform - limping contracts.)

3.0)SERIOUS INTENTION
- A contract can only result if the two parties are committed to be bound under the
contract.
- Serious intention can only be deduced from how the contract is defined.
- The parties must define their rights and obligation which they intend to undertake in
thecontract and should not leave any aspects open for a different interpretation.
- No contract results if an offer is made jokingly and one accepts it.
- Informal family arrangement cannot be treated as contracts.
- Informal social arrangements do not result in contractual obligation,
- Both parties may expressly state that they do not want to be bound, no contract result
from that part

(Balfour vs Balfour 1919)

Balfour agreed to pay wife monthly maintenance $30 while away in Caylon and then failed
and wife sued
held
in favor of Mr Balfour” informal financial arrangements within the family are not enforceable
at law.”

4.0)COMMUNICATION
 The parties must communicate their intentions to each other.
 The agreement is formed when one party makes an offer and the other part accepts
that offer
OFFER + ACCEPTANCE = AGREEMENT-Agreement can be expressed or implied.
NB. All contracts are agreements but not all agreements are contracts.

5.0)AGREEMENT MUST NOT BE VAGUE

It must be certain in meaning
The requirement in certainty in a contract is the fact that rights and duties be established and
defined in such a way as not to render the contract impossible at the instance of the court.
- The meaning of the contents should only have one interpretation
- E.g. there should be no room for argument as to whether the contracts was one of
purchase and sale or lease.
- Any contract that is vague is null and void –no contract and un enforcable

6.0)THE PARTIES MUST HAVE BEEN OF THE SAME MIND

A true and valid agreement is an outcome of a valid offer and valid acceptance.
- Valid Offer + Valid Acceptance = Agreement = contract
- At law, the two parties should be in AD IDEM (Consensus ad Idem) –both parties
should be of the same view.
- There should be a meeting of the mind
- The wishes of the offeror and offeree should be similar(UNION OF WILL)
- It therefore means that a mistake is a ground that can be used to avoid a contract

TERMINATION OF MINORITY
Major
Marriage
Tacit emancipation
Order by the court
Ratification.
OFFER
- An offer is an express or implied proposal to give or do something.
- It is a definite promise to be bound on certain terms.
- It is not a contract before acceptance
- An offer is made to a particular person or group of persons or to the world at large e.g.
reward cases. (Carlil vs Carbolic smoke Ball Co. 1893)
- Only the person or a member of that group to whom the offer was made may accept.
- If the offer is accepted as it is an agreement is reached which may be a contract.

ESSENTIALS OF A VALID OFFER

 1. Offer must be definite.-
- It must not leave aspects of the agreement dependent upon the future will of one of
the parties Kantor Vs. Kantor
- It must not leave part of the agreement blank or open to subsequent negotiation
(Ok bazaars vs Bloch 1929 and
King vs Portgieter).
- It must not contain wording which is vague (Dawidowitz vs Van Drimelin 1913 and
Humphreys vs Carsell 1923 )
2. Offer must be made with the intention of being accepted by some other person and
not a mere invitation to do business.
NB.The following are not offers:-
a) Invitation to tender (Spenser Vs Harding)
b) Newspaper adverts in general
c) Display on self service counters(Pharmaceutical Society of Great Britain Vs
Boots Cash chemists 1953).
d) Displays on shop windows(Crawley Vs Rex)
e) Statements of lowest price in response to a specific enquiry (Harvey Vs Facey
1893)
f) General statements of the lowest price (Erfoiken Vs Simon)
g) Adverts by transport company of their lowest price for conveying goods
frazer Vs Frank Johnson 1894
3. Offer must not have been revoked
- Offeror may revoke his offer at any time before acceptance has taken place.
The revocation is ineffective until brought to the attention of the offeree
- Revocation takes place in the following ways:-
a) Lapse of reasonable period.
b) Notification –expressly
c) Supervening impossibility or illegality
d) Rejection –counter offer Hyde Vs Wrench )
However the request that the offer be considered is not a counter offer
(Amalgamated Society of Woodworkers SA Vs Schoeman )
NOR is a request simply for some variation in the manner of the contract performance e.g.
asking for credit.
NB. Revocation is only effective when received (Bryne Vs Van Tiehoven)
4. Offer must be one on which an optional time limit has not expired.(Boyd Vs Nel
- The option is a separate contract which is totally binding on the offerer regardless of
whether his offer is eventually accepted or not or regardless of even whether the
offeree is capable of accepting or not.
- Thus the offerer may not break the option by selling to another person before the
date ,NOR may he destroy the options value by himself makingit impossible before
due time to fulfill his own offer, NOR is the option revoked by the death.(Van de Pol
Vs Symington)
NB, although it has been argued that an indefinite option should be regarded as valid for at
least reasonable period having regard to the circumstances (Annamma Vs Moodley) Current
thinking is that an option may not be granted for an indefinite period.
- However keeping an offer open until the offeree is in a position to accept is
permissible since the period although unknown is not indefinite.
5. Offer must be communicated to the person with whom it is intended that the contract
should be made
- An offer made to the specific person cannot be accepted by a third person.

ADVERTISEMENT
The general rule is that an advert is not an offer but a mere intention to do business.
Crawley Vs Rex 1929)
- For he who advertises may not have the serious intention to contract..
- The purpose of the advert is merely to invite or attract the other part to come and
(negotiate or do business with the advertiser.
- Thus a customer is invited to offer the marked price for the article and the tradesman
can please himself whether to accept the offer or not.

In Crawley Vs Rex
- A shop keeper advertised a particular brand of tobacco at a shop by putting a placard
around his shop marking a cheap price.
 - Crawley entered the shop and bought a pound of tobacco and left, he then re-entered
and asked for another pound and the shop keeper refused. Crawley refusedto leave the
shop without the tobacco. The shop keeper sued Crawley for trespassing.
Held
The advertisement was not the offer and the contract was therefore not concluded Crawley
tendered the price, Crawley was found guilty of trespassing.
Exceptions to the rule
An advert can however amount to an offer where a general offer is made to do business with
whoever shall perform certain acts as in Reward cases
Carlil Vs Carbolic Smoke Ball Company 1893
A company advertised that it would pay $100 to any user of the “smoke ball “manufactured
by it in the event the user catches influenza.
C used the smoke ball, but none the less caught influenza.
Held
The advert was a valid offer duly accepted by Carlil when she used the smoke ball and hence
she was entitled to the $100

Where just one reward is offered only the 1st person to do what is required is entitled to the
reward.
(Lee Vs American Swiss Watch Co. 1914)
Mrs. Lee and several others gave the necessary information in response to the company‘s
advert.
Held
she was not entitled to receive as she was not the first to give information.
NB.No reward may be claimed by anyone who did not know of the requirements since one
cannot accept an offer he didn’t know about.

(Bloom Vs American Swiss Co. )

B didn’t know of the reward at the point of giving information and hence cannot claim the
reward later after giving the information willingly and ignorantly.
Similarly no reward of information is forcibly provided.

TERMINATION OF OFFER
An offer may be terminated through the following:-
 1. Revocation/ Withdrawal
- Offeror may revoke his offer at any time before acceptance has taken place
- The revocation is ineffective until it is brought to the knowledge or attention of the
offeree.
- It is only effective when received by the offeree
- Revocation may also occur by implication.
(Greenberg Vs Wheatcroft 1950)
On 6 June W signed a written offer to buy certain land from G the owner. On 7 June
W telephoned G’s agent revoking the offer, on 8 June G signed an acceptance on the
documents containing the written offer.
Held
The offer had been effectively revoked on 7 June and no longer opens for acceptance
NB. However an offer may be irrevocable if the offeror binds himself / herself by a separate
contract to keep the offer open for a specific i.e. where there’s an option (option period)
In the event of breach of the option by the offeror the offeree is entitled to damages
(Boyd Vs Nel)

2. Lapse
A offer lapses in the following ways:-
- Death or insanity of either part.
- Reasonable time (Ramsgate Hotel Co. Vs Montefiore 1866)
- If not accepted within the prescribed time (Laws Vs Lutherfords 1924)
- If the intended program becomes illegal not possible for performance
(Wilson Vs Smith and other 1956)

3. Rejection
An offer comes to an end if rejected by the offeree either by communicating or
making a counter offer.
The effect of the counter offer is that it cancels the original offer.
(Water Meyer Vs Murray 1911)
 (Hyde Vs Wrench 1840)
Defendant offered to sell land to the plaintiff for $1000.00, plaintiff offered to pay
$950.00.the Defendant rejected this
- Plaintiff then agreed to pay $1000.00 but now the defendant no longer wished to sell
Plaintiff then sues for breach of contract.
Held
- The plaintiff had made a counter offer which has the effect of cancelling the original
offer.
NB.
- A counter offer may however be accepted by the original offeror if he so wishes.
- It must also be noted that a mere requisition for more information is not a counter
offer(Stevenson Vs mclean 1880 and Amalgamated Society of woodworkers of SA
Vs Schoeman and another 1952)

DIFFERENCE BETWEEN AN OFFER, INVITATION TO TREATY,COUNTER

OFFER AND CROSS OFFER.
Invitation to Treaty
- This is an invitation to another person to make an offer as in the case of
advertisements e.g. where a customer is invited to offer the marked price for the
article and the tradesman can please herself whether or not to accept the offer.
- Other example of invitation to treaty.
a) Invitation to tender (Spenser Vs Harding)
b) Company prospectus
c) An auctioneer’s request for bids.
d) Exhibition of goods for sale in shop (Fisher Vs Bell).
e) General adverts of goods.
Counter offer
is a rejection of the original terms of an offer by making alteration to the original
offer, it is a conditional acceptance that brings the original offer to an end, i.e. it has
the effect of cancelling the original offer.(Hyde Vs Wrench 1840)
- A counter offer may however be accepted by the original offeror if he so wishes.
Cross offer
 - Occurs where there’s inconclusive discussion between X and Y regarding the sale of
X’s property e.g. where X by letter offers to sell his property to Y for $500.00 and Y
by means of a letter again which crosses X’s letter in the post offer to buy X’s
property for say $500.00 (Tiwn Vs Hoffman 1873)
Held
No contract arises from a cross offer
NB- it was a split decision as it was argued that a contract could come into being
where the parties have intended to create a legally binding agreement on the same
basis.

REQUIREMENTS OF A VALID ACCEPTANCE

1. Acceptance must be in terms of the offer

- It must be definite and unconditional
- It must correspond with the terms of the offer.
- It must be accepted as it stands .(Water Meyer Vs Murray 1913)
2. Acceptance must be unequivocally i.e. there should be no doubt or ambiguity as to
whether acceptance has taken place (Boern Vs Harris 1949)
3. Acceptance must be made during the life of the offer i.e. before the offer lapses or is
revoked.(Ramsgate Victoria Hotel Co. Vs Montefoire 1866)
4. Acceptance must be in the manner prescribed by the offeror
- If the offeror prescribed the mode or manner of acceptance, these become one of the
terms of the offer.
- If Acceptance is not made in the manner prescribed by the offeror, no contract arises.
(Eliason Vs Henshaw 1819)
An offer by E to buy flowers from H was brought to H by wagon. In terms of the offer it was
required to send his acceptance to E by means of wagon H thinking he could reach E more
quickly by post accepted by letter which arrived after the wagon.
Held
Acceptance was invalid and hence there was no contract.
NB. Mode may not be prescribed as in adverts but performance of the act without notification
of the advertiser is valid –(Carlil Vs C.S.B Co.)
The mode used to make the offer is usually regarded as the mode for use on acceptance
 5. Acceptance must be made by the person to whom the offer was intended.
(Bird Vs Summerville and Other 1961)
Exception in the case of the option on a sale for cash where the right of the case may be
ceded to a second party.(Harsh Vs Neil 1948)
6. Acceptance must be communicated to the offeror
7. Acceptance must be consistence with the requirements of a valid contrac

POSTAL RULE (expedition Theory)

Where the Post Office is used as a channel of communication and a written offer is made by
post, the contract becomes complete at the time when and the place where the letter of
acceptance is posted.(Cape Explosive Work Co. Vs SA Oil & fat Industries 1921 and
C.E.W Co. Vs Liver Brothers SA Limited )
Each of the defendants wrote and sends by post to C.E.W Co. at Summerset West Cape,
letters containing an offer to sell glycerin, SAO and fat industries from Belmote in Transvaal
and Lever Brothers in Durban.
The letter of acceptance was posted in Somerset West
The matter was heard before the court which had jurisdiction over the case –SAOFI wanted
Transvaal while LB wanted Durban where they respectively received acceptance letters
Held
Somerset West where the letters of acceptance were posted, had the jurisdiction.
NB. The contract is concluded whether or not the letter was received by the offeror
(Household Fire Insurance Vs Grant )
- Posted means placing in the box and not handing the postman.
- It is assumed that once a correctly addressed letter is posted, it will reach the
addressee
- Acceptance made to the correct address where the offeror has left that address without
notifying the offeree is valid
- The above also applies to offer and acceptance by telegram but not by telephone or
telex

AGREEMENTS BY TELELPHONE AND TELEX

In the case of instantaneous communication i.e. telephone and telex, a contract is concluded
at the time when and place where acceptance is received by the offeror.
Thus the postal rule does not apply, thus if bad weather –line prevents the offeror from
hearing the acceptance e.g. the line is cut before the offeror hears the acceptance, there’s no
legal or valid acceptance.

SPECIAL TERMS
- These are the contents of a contract which prescribe the performance to be made by
each part and the manner in which it should be made or
- These are the undertakings and or promises contained in the contract
- Terms may be expressly agreed or may be implied by law or the facts
- Where the offer is subject to special terms, the offeree will not be bound by the terms
but may expressly or impliedly accept them as follows:-
-
a) SIGNED DOCUMENTS
CAVEAT SUBSCRIPTOR

Where these are concerned the CAVEAT SUBSCRIPTOR rule applies i.e. let the one who
signs be aware.
- The rule is to the effect that if a person signs a document he or she is bound by the
term and conditions of that document , Whether he /she didn’t read it or even where it
is written in a language one doesn’t understand.
- It applies not only when one signs after studying the document but also when one
signs carelessly or recklessly (George Vs Fairmaid Pvt Ltd 1958)
G a hotel guest signed a hotel register which contained contractual terms some of
which he completed by filling in blank spaces but the rest of which he didn’t read.
The clauses meant that goods will remain in rooms at owner’s risk, certain goods
belonging to G were stolen and he sued the hotel company.
Held
G was held by the terms because he knew he was signing a contractual document.
(Bhikagee Vs Southern Aviation 1949 )
B an experienced business man who was accompanied by a friend who could read and write
but was not asked to sign,signed a flight ticket all of it in a language (English) he could not
understand.
The contract contained a clause to the effect that the company was not liable for delays due to
bad weather.
Bad weather prevented the completion of the journey in time and B had to make alternative
arrangements, the company sued B when he refused to pay.

Held
B was bound by the condition, the that he didn’t understand English was immaterial. By the
signature he elects to take risks and is therefore bound.(Burger Vs Central SouthAfrican
Railways 1903)
Held
When a man signs a document he is bound by the words above his signature

EXCEPTIONS TO THE RULE

a) Where the signature was obtained through fraud ,duress, undue influence and
misrepresentation (Donnars Motors Vs Kufinya 1968-voestoots)
b) Where the contract is illegal or contains a mistake Justus error
(Foster Vs Mackinnon 1869)
c) Where the words contained in the contractarevague or ambiguous and the parties are
under an honest mutual mistake as to what each part intended.
NB, where a part signed a document where any of the above exceptions apply. The party
escapes liability by pleading a defense NON EST FACTUM(not my deed).

B) UNSIGNED DOCUMENTS
IMPOSED TERMS

UNSIGNED DOCUMENTS e.g. Tickets and Receipts i.e. Ticket cases

Such tickets and receipts often contain certain exemption / exclusionary clauses. E.g.
- Goods left at owner’s risk
- Chengetai nhumbi dzikarasika hatiripe
An exemption clauses is a contractual provisional which seeks to protect one of the parties
from liability which he/she would be otherwise subject to:-
 - These clauses may provide that the party concerned shall not be liable at all or
alternatively might place an upper limit.
- The clause must be communicated to the offeree or other part.
{Parker Vs South Eastern Railway Co. 1877 CSAR Vs Maclaren and CSAR Vs
James 1903 }
Where an agreement has taken place in the normal manner and the offeree has been given a
ticket by the offeror which contains written matter purporting to contain terms of the
agreement, the offeree will be bound by all these terms if he is aware or ought to have been
aware of the terms at the time of acceptance that the offer was subject to them
(Dyer Vs Melrose Steam Laundry 1912)
The approach of the court in ticket cases has been to adopt the so called Parker Test
established in Parker Vs Serc 1877
- Under the Parker Test the following questions are asked:-
a) Did the person who received the ticket know that there was printing or writing on
it
- If yes
b) Did he know that the printing /writing contained provisions of the contract in
question.
- If yes, then the plaintiff is bound
- If both or any of the above question are answered negatively (NO) then a third
question is asked.
c) Did the person giving the tickets do what was reasonably sufficient to give notice
of the condition.
- If yes- bound : if no – not bound
In Summary
- The offeror must do all that is necessary or reasonably sufficient to bring the
conditions to the notice of the offeree.(CSAR Vs Marlborough Court 1903 / CSAR
Vs James)
- The condition must be brought to the notice of the offeree either before or at the time
when the contract is made otherwise it will not apply.
(Oiley Vs Marlborough Court 1949)
O booked into a hotel having paid in advance she had a room allocated, and on one of the
walls was a notice ”THE PROPRIETOR WILL NOT HOLD HIMSELF LIABLE FOR
ARTICLES LOST / STOLEN UNLESS HANDED OVER TO THE MANAGER FOR
CUSTODY”
O closed the self locking door of the bedroom and handed the keys to the reception clerk
down stairs.
- A third person took the keys and stole certain of O’s goods from the room
- O sued the hotel for the loss
Held
The contract was completed at the reception desk and no subsequent notice in the bedroom
could affect O’s right as she had seen the notice when she was already a guest. The notice
must have been given to her before or at the time when contract was being made hence the
notice could not bind her.
Exceptions
NB. Had O previously visited and seen the notice she would have been bound by its
condition on the basis of constant number of dealings as in (Sparling Vs Bradshow 1956)
Where it was established that by having kept goods in a warehouse for 3 years, seeing the
notice on several occasions during that time was reasonable constant dealing for one to have
known the conditions and hence no compensation could be received for loss or damage

CONDITION
conditions is used to refer to terms of a contract. Thus one
would ask, “What are the conditions of the contract” referring to the terms of the
contract. However this is not the meaning in Roman and Dutch Law. In our usage, a
condition is a future certain or uncertain event and a conditional contract is one whose
operation depends on the occurrence or non-occurrence of a future event.
Types of Condition

a) Suspensive Condition

This is a condition which suspends the operation of a conduct until the condition has been
fulfilled. Thus where one says “I will give you my car if you go to town on a “stay
away” Wednesday and some back without any injuries.
A contract which is subject to a suspensive condition is a valid contract. From the
moment it has been entered into no party can resile or cancel it unless there is
misrepresentation and such other factors. If the condition is fulfilled the contract
becomes immediately enforceable retrospectively to the time of making the contracting
unless the contract provides otherwise.

b) Resolutive Conditions

This is the opposite of suspensive condition. By resolutive condition the contract is

effective and operational now but we are saying it will come to an end if the condition is
fulfilled. If the condition is fulfilled then the contract ends. Thus is one says “If you
drink beer I will take away my daughter from you” It means there is a contract to have
the daughter which is operating but it will end if the condition is fulfilled i.e. “if you
drink beer”.

THE CONTRA PROFERENTUM RULE

- This rule is applied where there’s vagueness in the interpretation of a contract.
- It states that where the meaning of a contract is not clear and all the rules of
interpretation have been exhausted the ambiguity in the writing should be interpreted
against the party who is responsible to draft it.

VOID AND VOIDABLE CONTRACT

VOID
- If a contract lacks one or more of the essential of a valid contract, it will be described
as a void contract i.e. it does not exist at law.-neither can rights nor obligation arise
out of it.
- It is unenforceable
- It might be illegal
- Impossibility of performance
- Vague
- Lack communication
- On legal agreement
- Enter into a contract with a minor
- The courts cannot enforce these contacts because there is no contract at al
VOIDABLE
- A voidable contract has all the essentials of a valid contract, but could contain some
floe of law
- There is a choice given to the aggrieved or injured party to choose to continue to be
bound or rescind it.
FORMS OF VOIDABLE CONTRACTS/ types
a).MISREPRESENTATION
A misrepresentation is false statement of facts which is made by one person to another before
and at the time of contracting of some matter or circumstances relating to it with the intention
of inducing a contract that actually results in contracting.

ESSENTIALS OF MISREPRESENTATION
1. The false statement should have been made to an existing fact not future fact.
a) A promise for the future not carried will only be misrepresentation if it had been
guaranteed \ has been made as a lie.(Kafiya Vs Domer Motors 1968)
b) An honestly held statement of opinion can never be a misrepresentation
(Lamp Vs Walter)
c) Puff Talk Vs Sales Talk
Puff talks are not misrepresentation
d) Conduct may replace compliment words as false representation.
(Trotman Vs Edwick)
e) Non disclosure (utmost of good –Uberima Fidei) e.g. insurance or contract of
insurance
2. The false statement must be material in essence that an ordinary reasonable person
would have contracted in the circumstances.
3. The misrepresentation must have been made with the intention that it should be acted
upon.
NB. Duress force fear
Undue influence Weakening relationships
4. The misrepresentation should be acted upon resulting in the contract.

TYPES OF MISREPRESENTATION
1. Honest misrepresentation
2. /Fraudulent /
3. Innocent /
4. negligent

b) Duress Requirements
a) Actual violence or reasonable fear
b) The fear must be caused by the threat of some considerable evil to the party or
family or property.
c) It must be the threat of an imminent or inevitable evil.
d) The threat or intimidation must be contra bonos mores
e) The moral pressure used must have caused damage
(Brook Vs Smuts 1942) and (Blackburn Vs Mitchel 1897)

c) UNDUE INFLUENCE

REQUIREMENTS FOR UNDUE INFLUENCE

- That the other party exercises influence over him

- that this influence weakened his powers of resistance and made his will pliable
- That the other part exercises his influence in an improper manner to induce him to
consent to the transaction which is to his detriment and which he ,with normal free
will would not have concluded.(Preller& Others Vs Jordan 1956 )

d) MISTAKE

REQUIREMENTS FOR MISTAKE

The mistake must be of fact not law as ignorance of the law excuses no one.
(Barker Vs Bentley 1978)
- The mistake must concern a material fact(Maritz Vs Pratley 1894)
- The mistake must be reasonable (Justus error)
i.e. it must not be due to the negligence of the part
(George Vs Fairmaid 1958)
BREACH OF CONTRACT AND THE REMEDIES OF THE INJURED PARTY.
It is the violetation of another party’s rights by failing to perform according to the
terms of the contact.

- Where there’s no real agreement or where the consent of one part is defective, the
relationship between the parties is governed by the rules applicable to void and
voidable contract.
- In the first place there is no contract so no question of enforcement.
- In the second, one of the party has an election , he may abide by the contract or claim
(Restitutio in Integrum) damages eg
- Where there’s defective in performance i.e. failure to observe one or more terms of
the contract. (Broderick Properties Ltd Vs Rood 1962)
- Such breach may occur in advance i.e. anticipatory breach where there is unlawful
repudiation before the appointed time of performance
(Novick Vs Benjamin)
- in contracts where performance has to be made by each part at the same time which is
the general rule in bilateral contracts, breach by one part cannot arise unless the other
party has performed his part of the agreement or is ready to perform his part to the
agreement(Hauman Vs Norje)
- if one of the parties is required to perform first he cannot demand performance
from the other part until has himself performed and the other part cannot be on
breach.
- The right of one part to refuse to performance until the other part has performed is
known in continental systems as the Exceptio Non Hympleti Contractus
- Remedies differ according to the materiality of the breach.
If breach is material:-
a) He may treat the contract as cancelled and sue for damages.
b) Abide by the contract and sue for specific performance and claim such damages as
he has suffered-(Restitutio in Integrum)
c) Breach of non material fact does not lead to cancellation but to a claim for
damages as suffered as a direct breach of the term.

FORMS OF BREACH/ methods/ways

 1. Mora Creditoris- Creditor in default
2. Mora debitoris- Debtor in default
3. Rendering performance impossible
4. Anticipatory breach
5. Positive mal performance
REMEDIES
1. Damages
2. Specific performance

BREACH OF A CONTRACT

Breach of contract is failure by one of the parties to a contract to observe one or more of the
terms of the contract. Breach of contract does not mean that the contract does not mean that
the contract will end but it will continue to exist in its breached state. There are a number of
ways in which a party may breach a contract.

a) REPUDATION/ ANTICIPATORY BREACH

When one of the parties acts in a way as to lead a reasonable person in the position of
the other party to believe that he does not want to fulfill his party of the contract
altogether or not to respect a material term, he is taken to have repudiated the
contract. Repudiation can take place before the actual date on which performance is to
be made and this is called anticipatory breach. An example of repudiation in advance
or anticipatory breach is where one contract to buy a car and the other party sells and
delivers the same car to someone else. It is obvious that when the date of delivery to
the first buyer comes by, he will no be able to deliver it because it is no longer
there.When a party shows that he does not intend to be bound by the contract the
other party may cancel the contract.

b) MORA DEBITORIES
 This is where the debtor who is the other party to the contract fails to perform his
obligations on a fixed date of performance and if no date is fixed, with reasonable time of
receiving demand from the creditor for performance. The debtor is usually said to be in
mora. Failure to pay money on due debt is a typical example of mora debitoris.

c) MORA CREDITORIES

Where the other party to the contract refuses to accept performance when it is
tendered by the other party the creditor is said to be in mora. An example would be
where the seller refuses to accept payment tendered by the buyer in a contract of sale.

d) Positive Malperformance

This is where the other party performs but the performance is not adequate enough to
comply with the contract. It thus amounts to defective performance and is breach of
contract.
Remedies for Breach of Contract

Remedies for breach of contract is the relief that one would seek where the other
partyhas breached a contract.

a) Specific Performance

As a general rule the aggrieved party has a right to seek specific performance. This is
an order from the court compelling the other party to do what he was supposed to do
under the contract. The injured party should therefore be prepared to carry out his
own part.
The court however has the power / discretion whether to award the order of specific
performance or not. Thus if you are seeking specific performance, you should always
include an alternative of damages. The court would usually nor order specific
performance in the following situations”
i) Where it is almost impossible for the other party to render specific performance as
in Shakinovysky V Lawson Investments 1904 TS 326
S sued for specific performance of delivery of a shop he had bought but the seller had
sold it to someone else who was innocent of the previous transaction and had taken
delivery of the shop. It was held that S was not entitled to specific performance i.e.
delivery of the shop as this was impossible.
ii) Where damages are enough to compensate the injured party
iii) Where it would be difficult for the court to enforce its order
iv) Where it would cause great hardships to a 3d party
Haynes V Kingwilliamstown Municipality 1951 (2) SA 370 AD. The municipality
contracted to release 250 000 gallons of water daily from its storage dam to Mrs
Haynes who lived downstream. In 1922 there was a drought and Mrs Haynes
allocation was
affected. She sued for specific performance i.e. the release of the water as per the
contract. The court ruled that the plaintiff had a right to claim either specific
performance or damages. However in this case the order for specific performance was
not granted because it could have caused great hardships not only to the respondent
but also to the residents of the town to whom the respondent owed a public duty to
render adequate supply of water.

v) Where the contracts of personal nature. Where the contract involves personal
services to be rendered the courts are reluctant to award specific performance because
of the possibility that disputes will always arise. E.g. in an employer relationship
specific performance is tantamount to compelling people to continue working
together when their relationships has already been strained.
b) Cancellation

Where a party breaches a material or a certain term which the parties agreed should
not be breached, the other party has an option of canceling the contract.
i) A Forfaiture Clause: This usually a clause in a contract of lease where the landlord
is entitled to cancel the lease and eject the tenant if
he breaches any of the specified terms such as non payment
of rent on due date.

ii) Fortfaiture Clause Such a clause in a mortgage bond entitled the mortgagee to
call up the bond where the mortgagor is in default usually
by failing to pay interest on due date.
iii) Lex Communssoria Usually found in a contract of sale under which the seller is
entitled to cancel the sale on breach of one or other of the terms of the contract,
usually non payment.
Cancellation and Restitution .After canceling the parties should be prepared to
restitute i.e. to bring whatever benefits they received under the contract. Thus
cancellation may not be appropriate where it is not possible to restitute. In addition to
cancellation a party may seek damages.

c) Damages

When one claim damages for breach of contract, he intends to be placed in the
position he should have been had the contract been properly performed in so far as
that can be achieved by payment of money and without undue hardship to the other
party. Damages for breach of contract therefore essentially differ with those for a civil
wrong or delict.

For a delict the party is to be returned to the original position as if he had not been
injured at all where as for breach of contract, the damages are to place the other party
at a prospective position.
Damages can only awarded for breach of contract where the injured party can
establish
the following requirements:

i) The loss must result from the breach itself. General damages are those damages that
flow directly from the breach and special damages are those remote damages. For one
to claim special damages he should show that the parties actually or presumptively
contemplated that they would probably result from the breach. If the
loss was not caused by the breach then one cannot claim damages for breach of
contract.
ii) The loss must be actual loss or a monetary gain which is lost. No damages, under
law
of contract, are awarded for sentimental loss or injured feelings. Jockie V Meyer
1945 AD 354. J had booked a hotel, was given key of Room 309 and took occupation.
M’s agent a few minutes later sent for J and told him that there was a mistake and he
had to return the keys. When he returned the keys the hotel was fully booked. He sued
for damages for breach of contract and included damages for
humiliation and loss of prestige. It was held that under damages for breach of contract
he could not be awarded damages for humiliation and loss of prestige.
iii) The injured party must do all in his power to mitigate the loss. This is called
mitigation of damages. The injured party cannot sit back and relax and allow the
damages to increase day by day and do nothing about it. He must take reasonable
steps to minimize loss.

d) Interdict

An interdict is an order in which a person is ordered to refrain from doing a particular

act. This is the most appropriate where; a party to a contract has good reason to fear
breach by the other i.e. to prevent threatened breach. This remedy is not limited to law
of
contract only.

e) Declaration of Rights

The High Court has power to declare rights. If parties to a contract are not able to
ascertain who has the right under a contract they can seek the H.C to clarify the
position
for them without penalizing any one of them.

i) Money loan lent by the state- 15 years

ii) Debt owed to state – 6 years

 iii) Any other debts – 3 years

The period of prescription begins to run as soon as the debt is due and it may be
interesting to know that a judgment debt prescribe after 30 years. So one starts to
count the period from the day when the money was supposed to be paid.

NB.SPECIFIC PERFORMANCE
An application for court order compelling the other party to perform their obligation in terms
of the contract
- Specific performance apply in certain circumstance and not in other
- Courts may not declare specific performance in the following situations
a) Where specific performance is impossible e.g. where the contract is one of
master and servant, factors like closeness or confidentiality of relationship
should be considered, eg doctor and patient.
b) Where the damages would adequately compensate the plaintiff
c) Where it would be difficult for the court to enforce its order e.g. disability or
insolvency of either of the contracting parties
d) Where the result would be to be to impose hardship on the defaulters party e.g.
ordering the delivery of large quantities of water in drought years from
community to someone’s land.
e) Where the thing claimed can be readily bought elsewhere.

TERMINATION OF CONTRACTS
1. Performance
2. Merger
3. Novation
4. Set off
5. Release / Waiver
6. Prescription
7. Insolvency
8. Death
9. Supervening impossibility of performance
PERFOMANCE
- Performance is the fulfillment of the contract within the time and in accordance with
the manner stipulated.
- This is the most common way of terminating a contract
- The two usual methods of performance are payment and tender
- (G Salt Works Vs Van Tender)

PERFORMANCE MUST BE POSSIBLE

- The intention of every contract is that something must be done.
- The objective or intention of the contract should be possible of performance.
- The moment performance becomes impossible the contract falls away or is Void.
- Performance can either be physically possible or legally possible
- If a party seeks to avoid a contract on the ground of current impossibilities it is
important to prove.
a) The performance must have been impossible at the time of the contract.
b) The one seeking to avoid the contract should not have known or suspected that the
contract was impossible (Wilson Vs Smith)
c) The contract must be absolutely impossible to everyone.
(Adler Vs Bloomfontein Town Council)
d) Performance of the contract must not be guaranteed (Lord Clifford Vs
Waits).

- SUPERVENING IMPOSSIBILITY

An act of God or state that prohibits performance, natural causes –storm, deaths and
imprisonment.

MERGER

- A contractual obligation is extinguished by the merger when the creditor and debtor in
respect of that obligation become the same person, e..g. marriage in community of
property by the parties.
- Or when there is a merger or coming together as one entity of two entities which had
a debtor creditor relationship.
NOVATION
Is the extinction or coming to an end of one contract as it is replaced by another.
- The first or original obligation is extinguished and a new obligation is substituted for
it.
- The effect of novation is to discharge the old contract with its incidence such as
interest, real and personal securities

FORMS OF NOVATION
1. Novation Proper
This is when the original parties alone are parties to the new contract. E.g. when a
lease agreement is converted into a sale agreement between the same parties.
2. Assignment
Exists when a new person replaces or substitutes one of the original parties
- The consent of all the 3 parties to the contract is required (i.e. the assigned and the
original two parties )if the assignment is to be valid.
3. Delegation
Novation does not consist in substitution of one debt to another only but can also be
from one debtor to another through delegation.
- For the delegation to be valid consent of the 3 parties should be sought.
4. Cession
In the case of the old creditor being substituted for the new creditor.
5. Compromise
This occurs when a creditor agrees to accept less than the debt due to him or accepts
something else in lieu of the thing or act originally promised by the debtor

SET OFF
Takes place when a debtor acquires a counter claim against his creditor.

RELEASE / WAIVER
- Is the voluntary agreement by the parties that they shall no longer be bound by their
contract
 - No legal formalities are laid down for release and even a written down contract can be
terminated by a verbal agreement or by any conduct on the creditors part from which
it can be inferred that he has waived his rights
-
PRESCRIPTION
For every sort of debt the law fixes a definite period after the lapse of which the debt can no
longer be legally enforced and if the period lapses the debt is said to be prescribed.
- The debt becomes legally unenforceable although it has not been discharged
- The period of prescription is calculated from the day on which the debt became due.

INSOLVENCY

When the debtor is declared insolvent

SUPERVENING IMPOSSIBILITY OF PERFORMANCE

i.e. act of God or State which makes performance impossible eg disasters, illness,
imprisonment
DEATH
- Partnership- death of a partner brings the partnership to an end
- Agency –death of principles / agent
- Employment- death of employee- contract terminated and death of employer –
contract terminated after one month.
- Surety ship – death of surety terminate the contract.

THE PAROLE EVIDENCE RULE

It states that ‘where a written contract is being interpreted no oral evidence may be received
by the court which tends to contradict or alter, add or vary the written terms except where
ambiguous words are used or where there’s fraud”

Mandanment Van Spoile

A court order directing the spoliator to return the thing immediately to a possessor who has
been deprived or despoiled of his possession without his consent
LAW OF DELICT
- A Delict is an act other than breach of contract for which the person wronged may
claim the damage or
- Is an unlawful act or the omission on the part of one person which infringes the legal
rights of another person’s life, person, property, liberty or reputation and which
entitles the later to claim damages /redress generally in the form of pecuniary
compensation from the offender .e.g. assault, defamation, trespassing, false
imprisonment, adultery etc
NB. Many delicts are crimes but not all Crimes are delicts e.g. adultery is a delict not a crime
but treason is a crime not a delict

DIFFERENCE BETWEEN A CRIME AND DELICT

A delict is a wrong against a particular person entitling him to claim compensation from the
wrong doer, where as a crime is a wrong against the state which the state punishes.
WHO IS LIABLE FOR A DELICT
The general rule is that if a person commits a tort or delict he/ she is personally liable to that
delict.
i.e. the person who actually commits a delict is liable .However a person can be held
indirectly liable for someone’s delict and this concept is sometimes called vicarious liability
e.g. an employee can make his employer liable thus the employer is vicariously liable or
indirectly liable, for delicts committed by his employee during the course and within the
scope of employment .
CLASSES OF DELICTS
There are two main classes of delict
1. Those which infringe another’s rights to property, person or life and which cause actual
pecuniary loss e.g. misappropriation or damaging of another’s property or the intentional
or negligent killing or injury of another, damage caused by animals. These types of
delicts fall under Lex Aquilia
2. Those that involve an insult (contumelia)to another by infringing his rights in respect of
dignity, reputation or liberty e.g. defamation , assault or adultery –such delicts are
referred to as injuria
Damages for injuria are quite different from Aquilia damages in that a person can claim
Aquilian damages to compensate him for the loss he /she has suffered and the claim is called
AQUILIAN ACTION
Unlike the damages for the Injuria,Aquilia damages are not meant to punish the offender but
to compensate the injured part for the loss caused to him/her but must prove what he /she has
lost.
On the other hand damages for injuria, are meant to punish the offender and soothe the
injured person’s injured feelings
The person who has suffered an injuria therefore does not have to prove that it has caused
him any loss.
NB. The remedy whereby damages are recovered for pecuniary loss ( i.e. loss which is
capable of being measured in terms of money) arising out of delicts involving injury to
property, person or life is the Lex Aquilia or Aquilian Action.
Generally this action is available only if the aggrieved party has suffered actual percuniary
loss , though it is possible to claim damages for pain and suffering arising out of physical
injury.
The remedy whereby damages are recovered in case of delicts involving injury to another’s
dignity, reputation or liberty is the
ACTIO INJURIUM
- Here damages may be claimed whether or not the aggrieved party has suffered actual
pecuniary loss. He is entitled to damages simply for the insult to his personal reputation,
dignity or physical integrity
Thus all delicts come / fall under either injuria or Lex Aquiliathough some acts / delicts may
fall into both e.g. an assault may cause the victim pecuniary loss as well as injury to his
dignity
In which case damages will be recovered under both heads on a single action

ESSENTIALS OF LIABILITY UNDER THE LEX AQUILIA

1. There must have been Actual wrong doing by the defendant
2. The injury must have been either intentional or negligent
3. The plaintiff must have suffered pecuniary loss
4. The defendant’s wrong doing must have caused the plaintiff’s pecuniary loss.
Actual wrong doing by the defendant
Every person has the right that others should not injure his person or property and any act
which violates this right is therefore wrongful unless it is shown that the act was legally
justified e.g. if it was done in defense of the wrong doer, the person or property, there is no
liability even if the act caused pecuniary loss.
Thus the wrong doer must actually have done something; a mere failure to do something (an
omission) does not in general amount to delict. If a person sees a man drowning in a river,
there is no legal obligation on him to rescue the man and his failure to do so is an omission
for which he is not legally liable. However if he had pushed him into the water then his act in
so doing is a positive act for which he would be liable.

Exceptions
The general rule states that there is no delictual liability for a mere omission, there are
however cases in which a failure to do something can render the wrong doer delictually liable
a) Where a person is required by statute to do something. If he fails to do it and his
omission causes loss to another he will be liable in damages to the later e.g. owners of
machinery are required to fence off all exposed dangerous parts of the machinery
which may cause injuries to others e.g. grinding mill.
b) Where a person assumed control of a potentially dangerous thing, he is under a duty
to prevent it from harming others e.g. tame a lion or snake or vicious dogs etc.
c) Persons carrying on certain occupations are under a the common law obliged to do
certain things and if they fail to do so with the result that another person suffered
pecuniary loss, the later can recover compensation from them e.g. an innkeeper is
bound to give shelter to all bona fide applicants for accommodation unless there is
some reasonable ground for refusal.
d) When by some previous act, a person has created a potentially dangerous state of
affairs which would otherwise not have existed, he is under a legal duty to take
precaution to prevent it from becoming an actual danger. E.g. if a person leaves his
car in a public street it is his duty either to remove it before dark to ensure it is
protected by light to prevent danger from others
(Municipality of Bulawayo Vs Stewart 1916)

The municipality was found liable to a plaintiff who while walking one night along a
footpath In Bulawayo fell over pipe that was projecting above the surface of the
 footpath. The municipality had laid the pipe properly but by the wearing away of the
path it became exposed.
Intention or Negligence
In order to succeed under the Aquilian Action, the plaintiff must prove that the
defendant acted either intentionally or negligently.
A) Intention (Dolus)
The plaintiff must prove two things if he seeks to establish that the wrongdoer
acted intentionally.
- That the wrongdoer foresaw and desired the consequences of his act.
- That the wrongdoer knew that the act was wrongful
NB. If either or both of these essentials are absent, there can be no dolus or intention.
Dolus may be implied In certain circumstances e.g. where a person injures another by
acting recklessly, it is assumed that he appreciated the wrongful nature of his act.
The maxim, culpa lata dolus acquiparatur applies which means gross negligence is
equivalent to wrongful intention
B) NEGLIGENCE (CULPA)
Most actions under aquilium action results from carelessness / negligence
- Negligence means doing what a reasonable person would not do or
- It may be defined as a failure to exercise the degree of care which an ordinary
reasonable careful person (diligent paterfamilias) would have exercised in the
circumstances
For a person to succeed under a claim based on negligent, he must prove three things
a) that the other party acted dishonestly
e) That he the aggrieved suffered loss
f) That the other party’s dishonesty caused his loss
TEST FOR NEGLIGENCE
The plaintiff must show that the defendant failed to display the degree of care that a
reasonable person would have displayed in the circumstances in order to avoid inflicting
harm upon the plaintiff or upon the class of persons of which the plaintiff was a member i.e.
he must show the defendant was negligent in relation to him (the Plaintiff) or in relation to
the class of persons of whom the plaintiff was a member.
 - The courts have decided that a reasonable person would have foreseen the possibility
of harm and would have taken steps to prevent it and that if the defendant failed to
take steps he would be negligent.
- In Transvaal & Rhodesian Estates Ltd Vs Golding 1917
The plaintiff wondered off a road at night time and fell into an excavation on the
company’s property. The hole being about 20 yards from the road. The company was
held not liable as it would not reasonably have foreseen that users of the road would
be injured by the excavation, as it was far off the road.

NB. The position would have been different if the public were on the habit of using
the company’s ground or if the excavation was dangerously placed next to the road

Standard of Care Required

The standard of care required is that which would have been observed in the circumstances
by an ordinary reasonably careful person (diligent paterfamilias) e.g. the ordinary prudent
person would certainly take more care in handling a gun than in handling a walking stick.
Lack of skill
If a person voluntarily involved in some activities or occupation which requires greater skill
than the average person possesses, such person is under duty to have and exercise that higher
degree of skill, and failure to do constitutes negligence e.g. surgeon & engineer
Proof of Negligence
The onus of proving negligence is on the plaintiff. Even if there is no direct evidence of
negligence, the mere fact that damage or injury has been caused may in certain circumstances
give rise to the inference that harm was due to the defendant’s negligence, In such a case re
iplaloquitur appliesi.e. The occurrence speak for itself.
This principle applies where the injury was caused by a thing under the sole control of the
defendant or his employee and the injury is such that it would not have happened had the
necessary care been taken

PECUNIARY LOSS
To succeed in an action for damages under Aquilian Action, the plaintiff must prove that he
has suffered pecuniary loss (which is capable of being measured in monetary terms.)
If he has not suffered pecuniary loss the plaintiff may / will not be able to recover the
damages unless the injury was accompanied by contumelia (insult) in which case he has an
action under the Actio injuriarum)
In Union Gvt Vs Warneke 1911 ADplaintiff wife was killed due to the negligence of the
defendant’s servants
Plaintiff sued for damages on the ground that he had been deprived
a) His wife’s comfort and society
b) Her assistance in the care, clothing and upbringing of the children
Held
That the loss of the wife’s assistance in the care and upbringing of the children was capable
of monetary assessment but the loss of the wife’s comfort and society was not a pecuniary
loss at all
Exceptions
The rule that damages cannot be recovered under aquilian action unless loss is a pecuniary
one is subject to the following exceptions.
1. A person who is physically injured through another’s negligence may obtain
compensation for the physical pain suffered as a result
2. Where the real purpose of the action is not to obtain compensation for injury or
damage but to establish a right challenged by the defendant. In such a case nominal
damages may be awarded even though plaintiff proves no loss.
3. Apart from these exceptional cases, plaintiff must prove not only that he has suffered
pecuniary loss but also that the loss resulted immediately from the defendant’s act. It
should be noted that damages can be claimed under the aquilian action for pure
economic loss i.e. loss sustained without any physical damage or injury to a person or
to corporeal property
(Zimbabwe Banking Corp Ltd Vs Pyramid Meter Corp Ltd)
Such economic loss must be measured in monetary terms
4. Causation
- In order to succeed in an action for delict, the plaintiff must prove that his loss or
injury was caused by the defendant’s wrongful act or omission
- Where the defendant intended his wrongful act to cause harm, he will be liable for
that harm and no problem of causation arises, because a person is always answerable
for the foreseen and desired consequences of his act.
 - Liability for unintended consequences is a matter on which there have been
conflicting opinions expressed in our courts and liability generally depends on the
answers to 2 questions:-

a) Did the defendant’s conduct in fact cause the harm?

- This is answered by determining whether or not the harm would have resulted If the
defendant’s wrongful act or omission had not occurred.
b) Did the defendant’s conduct legally cause the harm?
- This is answered by determining whether or not the harm was a reasonably fosseable
result of the defendant’s wrongful conduct if it was within the range of the ordinary
human experience that the harm would result from the defendant’s wrongful act or
omission
It is not necessary that the special manner in which the harm occurs should be forcible nor its
presents extends all that is necessary is that the general nature or kind of harm should have
been foreseen.
In R Vs John 1969 the accused beat up his wife who was pregnant and chased her into the
bush at night where she fell into a pool and died.
Held
That he was liable for her death because even if he didn’t force the precise ways in which she
met her death, he would have foreseen that with her terror stricken flight she might have met
her death by tripling or colliding with some obstacle or in some other manner.
NB. The foreseeable test is that applied in most cases, but in personal injury cases, courts will
impose legal liability on defendant’s wrongful act or omission even if the harm was
aggravated by an ailment or physical condition is suffered by the plaintiff and the defendant
was unaware of the ailment or condition.
NEW BECAUSE INTERVENING
The defendant will not be liable for a wrongful act or omission if an entirely new cause
intervenes between his acts or omission and the harm done to the plaintiff e.g. when driving a
car John negligently knocks down a pedestrian and is taken to hospital. The ambulance in
which the pedestrian is being taken to hospital is involved in an accident / collision and the
pedestrian is killed.
John’s negligence in this case was a factual cause of the death because on the test for factual
causation the pedestrian would not have been in the ambulance in a position to be killed, if
John had not negligently knocked him down but the driver (John) is not legally liable for his
death because a new cause has intervened namely the collision involving the ambulance.

Exceptions
Even where there is a new cause of harm the defendant may still be liable if the new cause
involves a risk inherently connected with the state of danger created by the defendant or if the
new cause was a foreseeable result of the defendant’s action e.g. if a driver knocks down a
pedestrian and is thrown in front of the bus by the impact and run over, he is liable for the
injuries caused by the bus.

In Sadomba Vs Unity Insurance Co. Ltd 1978

It was held that where a by stander stole a watch from a person who was lying unconscious
by the road side at night after a traffic accident, the theft was a reasonably forseable result of
the traffic accident and the driver who caused the accident was liable for the loss of the
watch.
The defendant will remain liable if the new cause is not independent action but a necessary
measure of protection against the danger caused by the defendant.

In Scot Vs Shepherd 1773 shepherd threw a lighted firework into a crowd, one of the crowd
beside where it fell threw it away to prevent injury to himself and it exploded near Scot and
destroyed his sight in one eye.
Held
That shepherd was liable for the injury to Scot.

Injuria
An injuria refers to an insult so serious that damages may be claimed to soothe the injured
feeling.
The most common type of injuria is defamation
There are several ways in which one can insult people and all can amount to delict e.g.
a) Writing an insulting letter to a person
b) Using insulting words to a person in private
NB. Behavior can also be as insulting as words.

LIABILITY UNDER THE ACTIO INJURIUM

Actio Injurium is an action to obtain compensation for an injury to a person’s dignity,
reputation or liberty
The following are the essentials of a successful action under Actio injurium
A Wrongful Act
The act complained of must be wrongful i.e. there must be no justification or excuse for one
act
- The act must also be a positive one since liability under Actio injurium can never
result from a mere omission.
Animus Injuriandi(Malice)
The act must be done animo Injuriandi i.e. maliciously with the deliberate intention of
infringing the others rights in respect of a person dignity or reputation
Causation
The act must have caused harm to the plaintiff
NB. Same principles relating to causation under Aquilian Action apply under the Actio
injurium

DEFAMATION
- Is the publication of a false statement which damages a person’s good name or
- Is the publication without lawful justification of anything which tends to injure the
reputation of another
NB. The defamation matter nearly always consists of written (libel) or spoken words(slander)
but It may consist of a caricature (drawing /description that exaggerate)or effigy (ugly and
amusing) which holds up a person to ridicule
Thus there is a written (libel) defamation and oral defamation (slander).

GROUNDS FOR DEFAMATION/ FACTORS

To succeed in an action for defamation plaintiff must prove inter alia
1. That it refers to the plaintiff
2. That it was published
3. That the defendant was responsible for the publication.
4. That the matter is defamatory (Injurious to reputation)
The matter must be defamatory
 - a statement is defamatory if it tends to injure a person’s reputation i.e. to diminish the
esteem in which he is held by others
- it must be held defamatory to imputes to a person the commission of a crime or other
dishonorable conduct, dishonest or immorality.
- A statement may however be defamatory even if it contains no imputation on the
plaintiff’s character. It may be defamatory to say that a person is insane or physically
deformed or suffering from an infectious disease or he holds extreme or unpopular
opinion e.g. that he is a racist

DEFENSES FOR DEFAMATION

1. Justification
- Available if statement is true in substance –small inaccuracy do not defeat the defense
- if he is a real murderer or thief prove it with references
2. Fair Comment
- A comment made in good faith on a matter of public interest
- It must be an opinion and not a fact
- The comment must be based on a fact which is stated with a comment, must be fair.
3. Privilege
a) Absolute Privilege
- Members of the Parliament have absolute privilege and can make any statement, false
or malicious in parliament.
- Communication in judicial proceedings, state communication, parliament papers
provided they are fair and accurate.
-
b) Qualified Privilege
- The defense is available if it was not published widely than necessary and also not
motivated by malice e.g. when X makes a statement to Y about Z and it had an
interest to protect and Y has a duty to protect it eg professional statements between
solicitor and client
4. Unintentional Defamation
Words published innocently e.g.
1. The publisher was not negligent
 2. The publisher didn’t intend to refer to the plaintiff
3. The words were not prima facie defamatory
4. The publisher didn’t know any possible invendo
5. Jest-The statement was made as joke not serious
6. Compensation
- Made in retaliation
- Statement made in equal terms after the plaintiff had made a similar or same
comment
7. Consent
The plaintiff may have accepted the statement when it was made and not
complained
Rixa
A statement made while angered or provoked

DEFENSE FOR CLAIMS FOR INJURIES CAUSED BY A DOMESTICATED

ANIMAL
1. Provocation
That the injured party provoked the animal e.g. throwing stones at a dog which is
lying

2. Trespassing
That the injured party had moved into someone’s property without prior notice

3. Third party provoked

That the third party provoked the animal resulting in the attack to the injured party
4. Injured party was at the wrong place at wrong time
The injured party might have walked or wondered into someone’s property e.g. at night when
dogs have been set free

ARBITRATION
A procedure in which a dispute is referred to a person or to a tribunal, chosen by the parties to
the dispute for the final judgment adjudicating of the dispute, instead of going to a law court
(litigation).
 - It is the determination of disputes by a tribunal set up for the purpose by the parties
themselves.
- It is the procedure in terms of which dispute is referred to a person or a tribunal
chosen by the parties to the dispute for the final adjudication of the dispute instead of
having recourse to a court of law or
- It is a dispute resolution process in which the disputing parties present their cases to a
third party, intermediary or a panel of arbitrators who examine all the evidence and
then make a decision for the parties. The decision is usually building.
The arbitration process can either be voluntary or compulsory/ statutory

Voluntary Arbitration

This is when the parties agree to submit their differences for arbitration by the third party,
who will also have final authority to determine the outcome after hearing from the parties.

Compulsory/ Statutory Arbitration

This is arbitration regulated by law to avert a standoff in essential services, industrial or

sectors of the economy e.g. transport over fares etc
The arbitration is free to award a decision as he deems fit / appropriate or chooses either to
separate or offer the disputing parties or choose the entire package of both parties proposal.

ADVANTAGES OF ARBITRATION

1. Time saved as finality is reached more quickly

2. Costs are saved
3. Publicity is avoided as there is secrecy of proceedings
4. The decision of arbitrator is final
5. The neutrality of arbitrator creates an environment of fairness hence the decision of
the arbitrator is more acceptable to the parties.
6. The arbitrators are usually experienced personnel capable of resolving disputes
amicable
DISADVANTAGES OF ARBITRATION
1. Arbitrator’s unlike judges need not give formal reasons for their decision
2. The approach is a win loose technique that affects the working relationship or
business relationship between parties to the dispute
3. An arbitrator is an outsider divorced from the internal forces causing the dispute and
hence can bring out or effect imposed terms that do not really help the parties to the
dispute.
4. Arbitration process invite 3rd parties to interfere as they fact find into internal matters
that might result in classified information being exposed to the outside world.
5. Loss of sympathetic jurists –it is argued that jurists tend to sympathize more with
certain kinds of people such as fired employees, destitute wives and older individuals.
6. The decision of an arbitrator is an outside solution that parties might choose not to
commit themselves to.

THE ARBITRATION PROCESS

1. An arbitrator notifies parties to the dispute of the date, time and place of hearing of
the dispute.
2. An arbitrator first conducts pre hearing briefs for the sake of clarification of
differences and if parties are not agreeing the arbitrator may frame the issue.
3. Parties to the dispute presents witnesses and documentary evidence and cross
examination takes place
4. An arbitrator evaluates source and credibility of the evidence
5. Parties to the dispute submit post hearing submissions
6. An arbitrator considers the evidence brought before and renders an award or makes a
decision.
The arbitrator’s award is final and no appeal except only in the following circumstances when
the matter can e brought to the judge
- For An arbitrator dishonesty, partiality and bias
- When no valid agreement was entered into that authorizes the arbitration process.
- When arbitrator rules in an issue that is not authorized or referred to him/her.
NB. Awards are only modifiable only if there was a miscalculation of figures or a mistake in
the description of the person, property or thing referred in the award.
POWERS OF AN ARBITRATOR
A. GENERAL POWERS
- Power to allow or refuse amendment of pleading
- Power to order discovery and interrogation
- Power to order inspection of property which is the subject matter of the reference
- Power to award pre award interest
- Power to depart from rules of evidence unless the departure is repugnant (horrible and
disgusting) to natural justice and fairness.
- Power to procede with ex- parte hearing after a suitable preemptory order has been
issued.
B. SPECIFIC POWERS
- Power to take and examine evidence of the parties and witnesses or oath
- Power to administer oaths or take affirmations of parties and witnesses
- Power to make award within 3 months
- Power to give/ award interim award i.e. use his discretion
- Power to order specific performance of any contract other than contracts relating to
land or interest in land.
- Power to correct clerical mistakes or errors arising from accidental / slip or omission
- Power to award costs
 such other institutions .These ensure that the law prevails
 The law should bind, oppose, direct, order or instruct the subjects what to do and any
action contrary/against what is stated at law is punishable.