AN INTRODUCTION TO LAW by Officers of The Ministry of Justice (D.A. Reynolds, B.L., LL.B., assisted by Mr. J. A. Russell)FOREWORD By the Hon. Mr. Justice J. VR. Lewis, Judge President of Zimbabwe, 1977 to 198) ‘This revised edition ofthe “Introduction to Law” by Mr. D. A. Reynolds will be wel- ‘comed by all those who are embarked on a career connected with the law. Mr. Reynolds is to be congratulated upon producing a publication which deals comprehensively with all aspects of the law, its purpose, its nature, its sources and its practical application in the Courts, in succinct and simple terms which will be easly understood and digested by the beginner. Iis no mean feat to be able to fit so much information about the law into such a small space and yet keep the subject interesting and stimulating for the reader, yet this is pre- cisely what Mr. Reynolds has achieved inthis litle book. can well understand why its ‘Tequited reading forthe Magistrates, Prosecutors and Presiding Officers Training Course. | would go further and suggest that it should also be compulsory reading in the High Schools ofthis country.PREFACE “An Introduction to Law” was first published in December, 1971. Much water has passed under the bridge since then and it is necessary to bring the book up to date. No basic changes have been made tothe original except where changes in the law have neces- sitated amendments and alterations. Itshould, perhaps, be mentioned that no attempt has been made to include some aspects cof law which are its believed, too specialized wo warrant inclusion in such a basic work. The following pages deal only withthe general Roman-Dutch and statutory laws of the ountry, and not with many ofthe technical statutes, or the particularly specialized fields of law. Wider and detailed reading will be necessary for these areas. For example, the law ‘elatng to African Marriage is omitted, as is the law relating to Patents and Copyrights. Regrettably, it has not been possible to include African law and custom, a most interesting and worthwhile subject, but one which calls for a separate work of its ow Before commencing even general legal studies, a student will find it of value to stand back, as it were, and view the law as an over-all complex: as a complete whole. This is simply a process of orientation, and itis hoped that “An Introduction to Law” will be of assistance in this exercise, Itmust, however, be appreciated that this work does not purport to give a comprehensive account of the legal system in our country. Rather it should be ‘egarded as an attempt to paint a compact picture of the origins and the main branches of ‘our Roman-Dutch law, and of the relationship of the one branch to another. An “introduction to law” means just that. Only the surfaces ofthe topics discussed have been scratched, only the broadest outline has been given, Despite this, it is hoped that the student's interest in law will have stimulated, and he will complete his reading having some notion of the sources of our law and of our means by which legal rights and duties ‘ae categorized and enforced,MODE OF CITATION OF SOME BETTER-KNOWN LAW REPORTS Ac. ‘Appeal Cases (England: House of Lords and Privy Council), 1891 ‘onwards AD. South African Appellate Division (1910 to 1946) AER ‘All England Repos, 1936 onwards. ‘App. Cas. Appeal Cases (England: House of Lords) (1876-90), Bas Bisset & Smiths’ Digest of South African Case Law. Buch, Buchanan's Reports of the Supreme Court of The Cape Colony (1868-75). Buch. A.C Buchanan's Reports of the Appeal Court of the Cape Colony or Bac) (1880-1910), ce Cape Colony, cr Cape Province CPD. © Cape Provincial Division (1910-1946), CTR Cape Times Repons (1891-1910) DcLD. Durban and Coast Local Divison. EDC Easter Districts ofthe Cape Colony (1880-1905) EDL or ®) Eastem Districts Local Divison (1910-1946) ce) Federal Supreme Court (Southern Rhodesian Cases) (1956-1964), END. Finnemore's Notes and Digest of Natal Cases (1860-67) G.WL or (G) Griqualand West Local Division (1910-1946) Heo, igh Cour of Griqualand West (1882-1910) KB. Law Reports (England: King’s Bench), 1901 onwards Kotz Kotze's Report of the High Cour of the Transvaal (1877-81). Lge. ‘Law Journal Report (England: Queen's Bench) (1831-1946) LRQB. Law Reports (England: Queen's Bench) (1866-75) LT or LTR. Law Times Reports (England: New Series) (1859-1947) Mor Menz, Menzies" Report ofthe Supreme Court of the Cape Colony (1828- 40) N. Natal NLR Finnemore's and Dulcken’s Selected Natal Cases, 1873-9; and Natal Law Repors (1879-1932). Neb. Reports ofthe Natal Provincial Division (1933-1986) OFS. 00, Orange Free State Report (1874-83). ORD. or(0) Orange Free State Provincial Division (1910-1946) orc High Cour ofthe Orange River Colony (1903-10). PH. Prentice Hall Weekly Service, 1923 onwards,os. Queen's Bench Reports (England) 1886-52, and Law Reports, (Queen’s Bench England), 1891 onwards QBp. Law Reports, Queen's Bench Division (England) (1876-1890). Ros. Roscoe's Report of the Supreme Court of the Cape Colony (1861-78). R&N, Rhodesia and Nyasaland Law Reports (1956-64) RLR. Rhodesian Law Reports, 1964 onwards, SA.orS ALR. ‘South African Law Reports, 1947 onwards. SAR Reports of the High Court of South Africa (1881-1892). B.C ieeniel Supreme Court of the Cape Colony (Iuta's Reports) (1880-1910). umber) Searle Searle's Reports of the Supreme Court of the Cape Colony, (1850— 6). SR. Reports of the High Cour of Southern Rhodesia (1899; 1911-1955). SWA. Reports of the High Court of South West Africa (1920-1946), TPD.or (1) ‘Transvaal Provincial Division (1910-1946), TH Reports of the Witwatersrand High Cour (1903-1910), Ts. Reports of the Supreme Court of the Transvaal (1902-1910) WLD. or (W) ‘Witwatersrand Local Division (1910-1946). Examples of case references (1) Korb v. Valma (Pty.) Lid., 1952 (3) $.A. 844 (T.). Plaintiff ‘s name is Korb. Defendant's ‘name is Valma (Pty.) Lid. The ¥. stands for versus. The judgment of the court is reported in the 1952 (Volume 3) South African Law Reports at page 884. The court was the Transvaal Provincial Division. (2) S. v. Gabriel, 1970 (1) RL.R., 188 “S” refers to the State. The accused person's name is Gabriel. The judgment of the court is reported in the 1970 (Volume 1) Rhodesian Law Reports at page 188. @) Lucas v. Hoole, 1879 Buch. 142; “Buch.” refers to the name of the reporter (Mr. Justice Buchanan in this instance). (See Hehlo and Kahn's “The South African Legal System”, page 292 for a full discussion of the recording of court decisions.CHAPTER, m1, TABLE OF CONTENTS Preface Mode of citation of Law Reports JURISPRUDENCE 7 ‘The meaning of law (1)—~The purpose of law (3)—The application of law (S)—Principles of law (6}—The conflict of principles (9) Elements of law (10), SOURCE OF LAW ‘Customary law (15)—Roman law (20)—Roman-Dutch law (25) — Legislation (28)—Precedent (32) DIVISION OF LAW Public law (39}—Consttutional law (40)—Administratve law (42)— Criminal law (43). Private law (46)—The law of persons (46)—The law of property (50) The law of succession (52)—The law of obligations (53)—The law of ‘contract (53}—The law of delict (54). Intemational law (59}—Public international law (60)—Private inter- national law (61), (Commercial law (63). Procedure and Evidence (64). ‘THE LAW COURTS ‘The Magistrates’ Counts (68)—The Superior Courts (76)—The Supreme Court (7}—The High Court (77). ACRIMINAL TRAIL ‘The prosecution of a crime (81)—Examination-in-chief (83)—Cross- ‘examination (84)—Re-examination (85)—A prima facie case (85)—The defence case (86)—The addresses (87)—The verdict (88)—The sentence (88)—A preparatory examination (94)—Legal aid (96)—Review (97)— Appeal (98), ACIVIL TRIAL Civil Procedure (100}—A civil action (102)—Letter of demand (102) —The summons (103)—The pleadings (103)—Appearance 1 defend (104) —Furher particulars (104)—The defendant's plea (105)—The trail (106) The judgment (107)—Absolution from the instance (107)—Costs (107) Gamnishee orders (108)—Maintenance orders (110)—Motion day (111)— Civil imprisonment proceedings (112)—Contempt of court (113)—Conclu- sion (115). Some well-known Latin expressions and maxims (116). Page 1s al 100CHAPTER I JURISPRUDENCE ‘THe MEANING OF Law General This opening chapter is entitled “Jurisprudence”, a word which has meant many different things to many different people. Definitions of “jurisprudence” range from Ulpian’s “the knowledge ofall things human and divine”, to Campbell's “skill in the law.” The term itself is simple. It is derived from the Latin iuris prudentia, meaning knowledge of the law. For our present purposes, we will employ this simple signifi- cance; Our inguiries will be directed at attempting to dis- cover the essential nature of law, the sources of our legal rules and the meaning of fundamental legal principles. ‘The concept of law Let us commence our investigation by examining the word “law”; let us arrive at a fuller understanding of the nature and concept of this term which is, after al, the subject we are studying. From almost imperceptible beginnings the law, like Topsy, grew and grew. The tiny seed, germinating thousands of years ago, has, despite adver- sity and setback, burgeoned and developed through all the transitional stages of growth to the mature product of today. The law has been described as “the bulwark of society, the foundation stone of human relations.” Lord Chancellor Sankey paid a fine tribute to the law of England some years ago— ‘ “amid the coss-currents and shifting sands of public life he sai, “he law is ikea greatrock upon which a man may set his fect and be safe, while the inevitable inequalities of private life are not so dangerous ina country where every citizen knows that inthe Law Courts, at any rate, he can get Justice: ‘We would like to think that the Lord Chancellor's remarks could be equally applied to the law of Zimbabwe. Works of Dickens go a long way towards establishing that Mr. Bumble’s declara- tion that “the law is an ass” was well founded. However, Dickens was writing of an ra when the development of the law had been left far behind the development of society. It is easy to understand that when a law is designed to meet the simple needs of a small community, that law needs replacing when the community expands to any ‘great extent. The simple laws operating in England a century ago had merely been Patched and not replaced, and were just not equal to the demands made by the ‘expanded commercial population of Dickens’ time. ‘The “laws.that we refer to.comprises.a,se,of males, that rep ‘These rules, which state how people are to conduct themselves, are also called legalnorms. The word “norm” comes from the Latin norma meaning a yardstick or rule. In its general sense “SHOP'S a rule or law which governs our ordinary, everyday activi- es in a recognized and standard way. We have moral codes, laws of ‘etiquette and fashion, and rules applicable to certain games, The laws appertaining to all such as- Pects are norms. The norm we are investigating is the legal norm, or one that has been called “the law of the Law Courts”, Expressed in other words, we wish to learn about the laws regulating human conduct which are dealt with by the courts of law. A simple definition of law is— “the-body of rules, which a stale. or.community secognttés as binding-on is subjects or members. and. which determine those persons rights or dates.” Sencar To the layman, no one comes into contact with the law unless he is in trouble with the police, or unless he wishes to enter into a formal and binding relationship with another person. His knowledge of law is gathered from the cinema and television screen, sensational newspaper stories and detective yarns. It should not be surprising to learn that the layman's understanding of law is not only highly coloured but quite erroneous as well. George Findlay, K.C., writing an article in the 1948 South African Law Journal, expresses his conception of law as follows: “During every hour ofthe day “in the dealings of citizens with one another", as Plato pus it milions ‘pon millions of legal obligations “spring up", become binding and are discharged. Some ae of ong duration, others arc of brief curency. ...As you proceed along the sect you ae eaught up in the constant swirl of emergent rights and dues that arise between motrist and pedestan and al ‘who use the street. In the shops and exchanges men become buyers and sees by the million at very minute of the day. They pay. they borrow and they bank in a veritable tangle of legal relation ships. Indeed anyone who has to do with anyone else or with any group or organization of people, is ‘enmeshed in tis legal network; and every single relationship has a dual aspect itis a elaonship between the partis and iti relationship also between them and society ofa whole. Men ae involved init all willy-nilly and whether they are babes or lunatics, whether they understand their Position or whether they have not the slightest glimmering of twill be apparent from this excerpt thatthe law pervades virtually all our elation- ships, whether or not we wish it or know of it. Whenever we buy a cinema ticket, ‘order a meal at a restaurant, hire a television set, send a coat to the drycleaners, of ‘engage in virwally any action that effects another person, that action is governed by the law, and our rights and duties under the law are usually well defined. Zhe law means differen things 0 different people, To an advocate it may mean not only bread and butter, but.also-an-interesting:puzzie,.to an old lag.it may. mean, i EGET Ror tee he necns ny win he cover bad debi 0. student a headache! Rh eee he. Teeoye Simple incidents may lead to results of considerable consequence in' law. A momentary inadvertence while driving a car; a lack of foresight in regard to a potentially dangerous situation, a failure to peruse a document properly—all these and innumerable other possibilities may entail legal consequences of great magnitude. ‘Take, for example, a man driving a car towards a robot-controlled intersection. His / 2attention is attracted towards a pretty mini-skirted figure on the pavement. When he ‘manages to look ahead again the robot has changed to red, but it is to late for him to stop and an accident occurs. The results may be tragic or very costly. Life or ives may be lost and much misery and suffering may be the seque! to his casual “glance to leg” An interesting case illustrating the considerable repercussions that may ensure from a simple act was the celebrated case of Donoghue versus Stevenson, 1932 A.C. (this stands for the Appeal Cases of the United Kingdom). A woman had purchased and Partially consumed a bottle of ginger beer in a tea room. On pouring out the balance ofthe ginger beer from the bottle she was horrified to see a decomposing snail emerge. She sued the manufacturer of the ginger beer, claiming damages for shock and gastro- ‘enteritis which she alleged she suffered as a result. After a number of increasingly expensive legal battles, the case was finally decided in her favour by the highest appeal court of the country. Mr. Justice Ligertwood of Australia remarked of this case: “He really does not deserve the notoriety he has achieved. He was in fact a very dublous snail However, there is no doubt that his soul goes sliding on for eve, andfor generations, lawyer, jrists ‘and judges will enquire and speculate as to what effect the snail has upon the la.” ‘This case is very famous, and has had an important bearing on legal principles which will be encountered later. Purose oF Law Lord Justice Denning, a distinguished English judge, once said, “the law as I sec it ‘has two great objects; to preserve order and to do justice.” 1. Preservation of order The law would not be required if all people were perfect. If they were, there would ‘ot be the continual conflict of interest which does, in fact, take place. In providing rules of conduct, the law stipulates what must be done, what may be done and what Must not be done. This is in order that the individual and collective rights of each member of the community may be protected. The law tries to prevent one person’s rights clashing with another's, and the rights of an individual from clashing with the rights of the community. It tries to preserve peace and order. One sometimes hears the desire expressed to “get away from it all”, to “stop the world. I want to get off". One may wonder why man chooses to live as a member of an organized society instead of as a free and independent individual. As a member of a community he is subject to constant restrictions, he is required to work, is a slave to ‘convention and prejudice, and in most ways is controlled by society like a puppet on a string. Most young people in growing up cry for freedom, for independence and liberty. Why should we not strike out for individuality? The principal reason is obvi- ‘ous. If every person did just as he pleased, allowing his instincts and desires uninhib- ited latitude, there could be no society, no community or communication, and the law of the jungle would soon prevail.‘An English writer of another century—Hobbes-wrote of the possible situation that would arise should every man choose to live as an individual. He expressed the belief that man would live in a state of constant war, and every man would be against every ‘other man. In these conditions there would be no human progress. All man’s energies would be expended on seizing and defending. He would live with the continual fear and real danger of violent death. His life would be “solitary, poore, nasty, brutish and shore”. Cicero once said, “we are the slaves of the law in order that we may be free”. He might have added “and safe”. Man lives in a community to ensure freedom and safety. He can never be completely free or completely safe, but life as a member of a commu- nity has proved to be far frear and safer than would other-wise be possible. The re- straints which the law of the community imposes on the individual's freedom of ac- tion are the price he is required to pay for living within that community. These re- straints are not very onerous, and amount to a small price for the benefits they buy. Man is also of gregarious habit. Generally speaking, he chooses to live as a mem- ber of a community rather than in isolation. He likes his fellow-man, the sense of belonging to a society, the companionship and other social attractions that are inevita- bly connected with men en masse. Indeed, words associated with a solitary state, such as “recluse” or “hermit”, have acquired overtones of disrepute which imply peculiar and anti-social tendencies. Moreover, in our materialistic society based on a cash economy, man finds it necessary to work in order that he may acquire the essentials of living. Most of the possible fields of work are centered in and around a populous arca. For these reasons man chooses to live in a society, and itis the function of the law to preserve a state of order in this society. 2 Justice What of Lord Denning’s second object of the law— “to do justice"? What do we mean when we refer to “justice”? There is no simple answer to this question, and no satisfactory definition is really possible to a lawyer. For our purposes, we will be ‘content to regard ju iness, In other words, in any particular case, justice if Whal appears to be right and faic to a fait-minded,man. Itis a remarkable fact that the fundamental principles of justice are principles com- mon to virtually all developed legal systems. The machinery by which these princi- ples are put into effect varies between nations, but the basic principles remain the ‘same. One might think that with the very different origins, histories and environments that have affected the developing legal service of various countries, their respective laws would be equally diverse. However, this is not so; the fact is that human nature, ‘generally speaking, remains the same wherever it may be. Amongst the elements that form an integral part of man’s being is the sense of what is right and just. Individuals ‘may deviate in their application of this feature in matters of detail and as a result of Personal consideration; but if every selfish interest were eliminated, men the world ‘over would arrive at practically the same conclusion in interpreting a problem of right and wrong.In subsequent pages, we shall learn of one of the greatest authorities on Roman- Dutch law, Johannes Voet. He had this to say on this aspect: “Whenever our fancy leads us to scan with close atention the origins, the growth as well and the rolonged continuation right up tothe present day of humankind, we shall find that st no time and in ‘no place has i found itself without laws of right ané honour” ‘The second object of the law, therefore. is to give effect to man’s inmate sense of Justice, Itis necessary to distinguish the words “law” and “justice”, for the terms are not interchangeable. Confusion does sometimes arise because not only is justice one of the law's main objects, but itis also its chief instrument in fulfilling the law's other ‘main object of preserving peace and order in the community. Itis obvious that peace ‘and order reign when the members of a community obey the laws. In practice, itis found that the more “just” the law, the more likely itis that people will obey it. Law must conform to the prevailing sense of justice in a community or it will fail to pre- serve peace. To maintain an unjust law, on the other hand, requites a strong and com- pelling hand. Sooner or later the bulk of the populace will rebel against the unfair or disliked law. An example of this may be found in the unpopular law of some 50 years go, prohibiting the manufacture, sale or consumption of alcohol in the United States ‘of America. This law was disobeyed on so large a scale that it was virtually unenforce- able. ‘THe Appuicarion oF Law Iemay safely be said that everyone comes into contact with the law at some time or other, We all need the protection of the law to safeguard our rights and to look after ‘our imterests when these are jeopardized. Let us assume an individual goes into town, ‘buys a shirt, signs an agreement of lease for a flat and pays the first month's rent in advance, and finally, purchases a budgerigar from the pet shop. These are all simple transactions, but if the situation arises whereby the individual finds that the shirt has fone sleeve missing, the flat has already been rented to another person, and the budg- erigar expires that night from a disease which the owner of the pet shop knew about, he will feel aggrieved. He will want to know whether he has any legal remedy against ‘those he has been dealing with, and may eventually decide to call on the law to protect his rights. If any such matter eventually comes before a court of law for decision, the Judicial officer hearing the case will decide what legal rights and duties are involved and will give an order accordingly. He will try to do justice between the parties in accordance with law. Law enforcement machinery In general terms it may be said that the majority of people obey the laws of the country in which they are resident, and it is not necessary to use force to compel obedience. Most people readily and conscientiously comply with their legal duties and obligations of their own volition. There are various reasons why people comply 5With the law, just as there are many reasons why others disobey the law. Some may obey the law simply by virtue of their inherent sense of right and wrong, their up- bringing, their consciousness of the social duties of a good citizen. Others may be influenced by a fear of being caught, the opinion of other people, or simply a lack of desire of need to break the law. Possibly the greatest deterrent against the breaking of 4 criminal law is the stigma that public exposure would bring. However, whatever ‘motives influence people, the majority of them spend their lives without having any Unpleasant association with the law. Be that as it may, the fact remains that many persons do contravene the law, and it is necessary to set the wheels of the law in motion to put right the wrong that has been done. Obviously, if we are to have laws, we must also be able to enforce them—insist that they be complied with. If this were ‘Rot So, the law would soon fall into disrepute and be held in contempt. People would only obey the law if it suited them atthe time. The law, shorn of its authority or power of compulsion, would be a bruturm fulmen (harmless thunderbolt), or to use a re- cently coined phrase, a “toothless bulldog”. In recognizing this patent requisite, the state establishes and maintains the apparatus necessary {0 compel obedience to its Jaws and to make them effective. This “apparatus” or “machinery” consists of the police force, the courts of law and their officers, prisons and other punitive or reha- bilitative establishments. Although in a later section we will distinguish between the various branches of law in some detail, we may at this juncture mention that the “machinery’:forenforeing obedi+-~-="~ ence to criminal Jaws js different.io that ensuring that civil laws are effective... Pruncipes oF Law ‘The goddess of justice (Justitia) isa familiar figure— she symbolizes the functions of the law and of justice. She is depicted blindfolded, holding scales in her left hand and a sword aloft in her right hand. The symbolical significance of these features is as follows: (2) Justitia’s sword denotes the power to use force if necessary. As we have already discussed, force, or the threat of force, is necessary to induce some people to comply with the law . Justitia holds her sword aloft for all to see — itis with this sword that obedience is, if necessary, enforced. (b) She carries the scales as she is constantly weighing the rights and interests of ‘one individual against those of another so that those belonging to one may not over- shadow another's. Her task in this regard is to achieve and maintain a balance, for if she fails in this then the balance and order on which society depends for its existence are endangered. Not only does Justitia weigh the duties and affairs of individuals, she also weighs those of individuals against those of society itself (the State). Here also a balance is essential if society is to survive. (©) Justice demands and proclaims that all persons are equal in the eyes of that law ‘and must be treated as such. This is a fundamental rule of law and explains Justitia’s 6blindfold—She is blind to social distinctions of class, disparity in wealth and power, ‘and differences in race, colour ot creed. This emphasis on equality is, of course, tempered by the realities which actually exist. For example, to treat alike child and adult, sane and insane would obviously be Fidiculous, and would inevitably result in injustice. There must be different rules for People subject to different natural classifications, but no one person should be favoured above any other person of a similar condition. Voet expresses his conception of the essentials of law in this way: “The law ought to be just and reasonable, both in regard to the subject mate, directing what is ‘honourable, forbidding what is bse; and a its frm, preserving equality and binding the cizens equally.” ‘We may classify the principles of modern law as follows: 1. Just application In the words of Voet, legal rules “must direct what is honourable and forbid what is base”, We have previously discussed the necessity of the law conforming to the pre- vvailing sense of what is fair and right according to the community's system of values. Despotic, harsh or stupid laws will not commend themselves to the community and will eventually fall into disuse, or will be superseded, 2,_Equality We have already dealt with this requisite which relates to the necessity that the law ‘consist of rules which apply equally to all persons in the same condition. What applies to Tom has equal application to Dick and Harry provided they fall into the same clas- sification. Thus if Tom walks along a road, Dick cycles and Harry drives a car, they all fall into different categories applicable to road users, and rules appertaining to one do ‘not necessarily apply to the others. Each will be subject to laws governing the activity he is engaged in. Rich or poor, king or commoner, employer or employee—all men are the same in the eyes of the law if they fall into the same class. There is nothing unreasonable about insisting that no-one may practise law until certain qualifications have been obtained, but to preclude all lefi-handed persons from the profession would be absurd and an irelevant distinction. “Aa niformity. C18 esseritial iat the law should apply uniformly not only in regard to all people, but to all areas. To some extent this requisite overlaps the legal need for equal treat- ‘ment for all persons expressed above, but in this particular sense, the law should have general application to all people throughout the country. The good and the bad are subject to the law and if Mr. Jones, a Professor of Law living in the northern extremy of a country contravenes the law, the legal fate that is visited upon him is identical to that administered to Mr. Brown, an apprentice burglar who commits the same offence in the south of the country. Generally speaking, the community has a good idea what type of sentence is appropriate to a particular offence. The public would be horrified 7{0 read of a cold-blooded murderer being fined 50c, or of a parking offender being imprisoned. This aspect of public opinion, together with the over-all authority of the High Coun, ensures the uniform application of the law as far as is possible. 4. Authority Ic may appear an obvious requisite that only the proper authority be allowed to make a law. In our country, the main laws are “made” by the Legislature of Zimbabwe, but Certain other statutory bodies have legislative powers delegated to them. For example, ‘when one finds one’s car “ticketed” in an expired meter bay, the law appertaining to this incident has been “made” by the local municipality, not by the Legislature. Countries are careful to ensure that the power to legislate—a great power—is only ‘granted to extremely responsible bodies, and only in regard to local affairs. Naturally, these local laws only have local application. 5. Certainty ‘The requisites detailed above lead to certainty in the law. People in the same class acting in a particular way must be treated in the same way by the law. People must know this and in knowing it, they may conduct their affairs in the sure anticipation of the legal consequences. Not only must the legal rules be clear and unambiguous, but they must also be declared and made known before they are applied. Legislation which urports to apply to past actions is called “ex post facto legislation”. This is obviously unfair and is almost universally condemned, although it sometimes does occur. In Practice, 2 new law is promulgated (made known by publication) in the official organ of the State, the Government Gazerte. Once a law has been so promulgated, no one is permitted tomrgte that he We Hoe fact known of the law. A legal maxim, ignorantia Juris neminem excusat (ignorance of the law excuses no one) then applies. There is some controversy on whether this is « fair nule or not. Those who argue in favour of the retention of the maxim in law suggest that everyone can get to know the law and therefore should know it. They also suggest that where persons able to put forward ignorance as an excuse for infringing the law, it would be almost impossible for a Court to decide on the truth of the excuse, and this would result in injustice. Those ‘who argue that ignorance of the law should in fact be an excuse, base their arguments ‘on the practicalities that exist in modem conditions. Very few people do know more than a few rules of law, and all that can really be expected of the general public is that they know the common laws of the country (e.g., that theft and rape are crimes), and the statutory laws in everyday use (e-g., the rules applicable to driving a cat), As it stands at present, if an individual who has been hunting in the bush for weeks contra- vvenes a new law promulgated in his absence, he is nevertheless guilty ofthe relevant offence, although he had no possible chance of leaming of the new law. As this is obviously inequitable, should such a person be charged with the offence committed, it seems probable that the court would impose a nominal sentence at most. Itwill no doubt be appreciated by law students that not everyone does in fact know the law!‘celebrated American judge complained some 20 years ago of the “‘unknowability ‘ofthe vast wildemess of statutes”. What was true of America then isc Zimbabwe today; itis not possible even for a lawyer to read and retain all laws in existence in the country. In view of this, there is a growing consensus of opinion that this legal rule and maxim requires amendment. ‘As we have already mentioned, clear and unambiguous rules are desirable in any system of law. In practice it is at times difficult to foretell the outcome of a legal dispute. Quite apart from the fact that human fallibility on the part of the judicial officer renders the result of atrial open to occasional doubt, it often transpires that itis very difficult for the court to ascertain the true facts of any case. This is because the facts can only be deposed to by witnesses, who in turn may be affected by a variety of factors which would render their testimony unreliable. The witness may be untruthful or mistaken, his powers of observation may be poor, he may be biased or prejudiced. Many factors “colour” his evidence. In addition, it is sometimes difficult to apply the same law to different cases. Indi- vidual cases differ very considerably from other cases falling under the same general rule of law, and its a difficult task for the court to adjudicate uniformly and yet fairly in these cirmustances. If the law were in fact certain, there would, with equal certainty, be very little need for the services of advocates, atlomeys or courts. Despite the above comments, the fact remains that the vast bulk of the Jaw is cer- tain and known, and in the nature of human affairs, itis only the doubtful or difficult legal problem, or deliberately lawless conduct that requires the attention of the lawyer or the court. ‘The ConFLict oF PRINCIPLES To a certain extent, a conflict of needs arises in implementing the policy that the Jaw should be known and certain. This cannot be achieved if the law is constantly changing. If changes in the law were frequent, there would be many instances where acts performed in the expectation that they would lead to certain legal consequences would, in fact, lead to quite different legal consequences. The sdvanasen.gh consi acy snd uniform, would be Jost. On the other han, law must not be sbslaely igid and inflexible, i musadapt to she. changing circumstances, values and needs of society. If it does not, it will soon cease to be reasonable afd will not have the approval or support of the public. In an age such as the present, when one of the few unchanging facts is that practically everything is constantly changing, the task facing the legislature and the courts is a very difficult one. A renowned English judge, Lord Atkin, commented in reference to old legal rules: ““Whea these ghosts ofthe past stand inthe path of justice clanking their medieval chains, the proper ‘course forthe judge isto pass through them undeterred” While the courts and the Legislature do regularly resole old legal shoes, they are generally slow to interfere with well-established principles and stable practices. The proof of this assertion can be found in the fact that the overwhelming majority of legaltransactions that occur daily do not give rise to any subsequent dispute. Obviously, the parties are certain ofthe effect ofthe transaction—the law is clear and unambigu- ‘ous—and they find themselves where they intended to place themselves, and are well ‘contented. Conclusion \ From the foregoing, it will be seen that enduring law must be based on reason, must be applied with equal justice to all men and, of course, must be supported by able law- ‘enforcement machinery. If the machinery is unreliable, the law itself loses its purpose. If, for example, the Police force is corrupt, the judiciary biased or the prison service inhumane, no one will seek protection of the law, and no one will care to set the wheels of the legal machine in motion. In $00 B.C. Confucius expressed the basis of all law, what is known as “the golden rule of legal conduct” in saying, “Do not do to others what you would not like to be done to yourself”. This is the essence of all legal rules. [ELEMENTS oF Law Up to now we have discussed law as a total concept, and have made no effort to distinguish between the various branches that exist in the field of law. These main divisions are treated of in some detail ina later chapter. At this stage we may adopt the basic divisions described by Glanville Williams in his useful little book “Learning the Law”, He says: "One of the layman's inveterate errors is to suppose thatthe lawyer is largely—even exclusively — ‘concemed with law .. Infact the law is divided into two great branches, the crsunal and the civil and ‘ofthese much the greater isthe civ. Civil law in this context means the law that isnot criminal aw”. In using these two divisions of law, itis mecessary to explain the fundamental dif- ferences between them, so that less difficulty will be experienced in understanding what follows. Crimi ‘composed of rules formed or reco} state ich prohibit Certain acts on ‘civil law, on the other hand, concerns private affaits'(as opposed 1 Stile concems) and is the collection of rules regulating the legal rights of people. For example, if anyone infringes the criminal Jaws of the State, he is prosecuted by State officials in a court of law. The court trying. the case decides what punishment, if any, is appropriate, and passes sentence accord- ingly. On the other hand, if one person infringes the legal rights of another, the person. aggrieved may sue the offending party for redress. The court hearing this matter decides what reparation is necessary to put the wrong right, and makes an order ac- cordingly. In both cases, the State has the power and ability, through its relevant de- ‘partments, to give effect to the court orders. Occasions do arise when one unlawful act may give rise to both criminal and civil Proceedings. For example, if person injures another in committing a crime, such as, driving a car negligently, he may face two actions—the sate may choose to exact 10Punishment for the offence, and the aggrieved individual may desire redress forthe injury done to him personally. ‘We will deal with the elements of a crime at a later stage, and for the present we will restrict our studies to an examination of the substantive portion of the civil law. ‘This is the portion of the law that regulates the legal rights of persons. Both “legal rights” and “persons” will be dealt with as elements of civil law. 1. Legal rights ‘We have already mentioned how the law tries to balance conflicting rights, and will Protect a person's legal right against any infringement. It is of great importance to understand what a legal right is. A simple definition formulated by Wille is— “an interest conferred by, and protected by the lav, eniling one person to claim that another person ‘Or persons either give him something or 6oan at for him, o refrain from doing an act." At the outset, itis as well to remember that we are concerned only with legal rights. Other rules also create rights such as those which are implied in the rule of etiquette expressed in the phrase— “ladies first”, or by the referee of a rugby match declaring a layer “off sides”. Such rights are no concem of the law unless the law chooses to Tecognize them. For example, a child enjoys a moral right to be cared for and fed by his parents. The law has recognized this moral right, and has made it a legal require~ ‘ment, Thus, if a parent fails to meet this requirement, the law now has the power to ‘compel him to care for the child. Whereas both morals and laws are concemed with +human interests, the former only become legal rules if the state considers them to be of sufficient worth to warrant enforcement. Before a right is protected or enforced by the law, there must be a correlative duty. For example, a child that has fallen into a swimming poo! and is drowning has a legal ‘ight to live, but there is no legal duty imposed on a bystander to jump in and rescue him. ‘Rights and duties are created and protected by the law for reasons of fair play and social necessity. Itis of course, necessary for the extent ofthese rights and duties to be fixed. This is done by determining what the owner of each right may or may not do. Take, for example, a plot-owner’s right of ownership to his land, The law permits him to cultivate plants on his land but not those which are considered harmful , such as Lantana camara. He is not allowed to grow plants in such a position that they en- ¢eroach onto a neighbour's land. He is allowed to erect buildings on his plot, but only if they comply with certain requirements as to dimensions, materials used in construc tion and siting in terms of a local authority’s building by-laws. All plot-owners' rights are limited in this manner by legal rules. If this were not so, the rights of all residents of a particular area would be continually clashing, and friendly neighbours would be ‘unknown. Where a person's right is in danger he may call on the law to come to his aid and. protect it. The law may assist the person whose right is threatened by ordering the offending person to refrain from the conducts constituting the threat. If the corre- usponding duty has been disregarded and the threat has been put into operation, the law ‘may put a stop to this and order that the person whose right has been invaded be ‘compensated for any loss suffered. It is not uncommon to hear someone proclaiming— “he has no right to do that, there ought to be a law”, or “don’t push me around, I known my rights”, or some similar utterance. In common parlance, the word “right” has many meanings—we talk of a “right” to freedom; being in the “right” in an argument; a “right” to our annual holiday; a “right” decision; the “right’ to make a will. These are a few exam- Ples that spring to mind. The Constitution of Zimbabwe, 1979, contains the following Preamble to the Declaration of Rights. “Whereas itis desirable to ensure that every person in Zimbabwe enjoys the fundamental rights and ‘freedoms ofthe individual, that isto sy, the right, whatever his ace, tribe political opinions, colour ‘or ereed, tif, libemy, security ofthe person, the enjoyment of property andthe protection of the law. and o freedom of conscience of expression and of assembly and association, and torespect for bis private and family fe.” ‘These examples of the use of the word “right” indicate the variety of meanings given to it In legal language the word is used in different senses as well. For our present purposes, however, we will regard a legal right as meaning a legally protected interest which imposes a correlative duty on others. For example, when I buy a packet ‘of cigarettes and hand over the purchase price, I have the right to expect delivery of the cigarettes. The tobacconist has a duty (corresponding to my right) to hand me the cigarettes. 2. Interest It will be noted that the word “interest” appears in our definition of a legal right, and it may be wondered what this word means. In this context, “interest” includes anything which is of benefit to man, either as an individual or collectively. For exam- ple, a man has an interest in the things which belong to him, in his freedom and in his reputation. A duty, it will recalled, is an obligation to perform or forbear from per- forming some act. A positive duty requires a person to do something, whereas a nega- tive duty requires a person to refrain from doing something. While duties are gener- ally created for the benefit of the community or for a right holder, they do sometimes exist for the benefit of the person bound as well. For instance, the rules prohibiting the general consumption of heroin or of harmful liquids are drawn up for the benefit of those who may be harmed by taking them. Toretum to our example of the parent and child, the parent has a duty to support his child. Its obviously in the child's interest to be supported. This interest is protected by the law, and the parent can be forced to support the child and may be punished for failure in this duty. Thus we find that the child has a right to the parent's support and the parent has a correlative duty of support. The failure of the parent to support the child is a wrong which the law will redress. 3. Persons ‘The rights, duties and interests we have discussed are, of necessity, inseparably linked with peopl; they canriot exist as unconnected entities. In everyday language a person is. a human being. In law, a distinction is made between natural persons and fictitious 12Persons. The fictitious person is sometimes referred to as an “anificial” or “juristic” Person. The term means some body ot association on which the law has conferred the ‘capacity to acquire rights and incur duties. In other words, in law we speak of fictitious or juristic persons in addition to, and as distinguished from human persons. In modem law the corporation is the most important type of fictitious persons. A corporation is an association of persons which has been invested by the law with rights and duties. Its members are natural persons, i.c., human beings, but it has in law an existence and personality entirely separate from theirs. Its rights and duties of its members. The corpo- ration can take legal action in its own name and can be forced to perform its obligations. fa member dies, the corporation continues to exist. It can also be punished for breaking 4 legal rule. Because itis not a natural person itis treated somewhat differently from cone. For instance, if a corporation is convicted of committing a crime it cannot be im- prisoned or whipped as a punishment; it can, however, be fined. ‘The following are some of the bodies and associations which possess what is known as “corporate personality" —municipalities, universities, law societies, companies and building societies. All of these are legal “persons”. All human beings are “natural persons” in the eyes of the law. This has not always been so. In Roman law, for example, slaves were not recognized as persons—they ‘were “things”, and had no rights. They did not, in themselves, enjoy the protection of the law. As recently as the eighteenth century, there were slaves in America and in the Cape. In certain countries people could be punished by being “outlawed”, This meant, in effect, that they lost their human identity as their rights were not recognized and they were not entitled to the protection of the law. In modem law, however, every ‘human being is recognized by the law as being capable of acquiring rights and being subject to duties, and can sue and be sued. This broad statement requires qualification, For example, some natural persons are treated differently to other natural persons. Atminor or an insane person obviously suffers from limited capacity; the law recog- nizes this fact and protects such persons from incurring liabilities to which a person of full legal capacity would be subject. Attributes such as legitimacy, solvency and mari- tal status also limit full legal capacity. Af a layman is told that “a person is a human being”, he will probably accept this statement at face value. A lawyer, on the other hand, is never satisfied with superficial ‘explanations. He will undoubtedly ask, “who or what is a person? Do conception, birth, sex. puberty, age, name, legitimation, mental and physical capacity, citizenship status, domicile, relationship and many other factors affect his position? Is a human embryo a person? Is a condemned man a person? Is a grotesque deformity of a human being a person’? ‘We will not attempt to answer any of these questions, and will merely record the fact that the law of persons is often treated as a complete and detailed topic in itself. ‘We may mention that even in regard to the simple question, “when does a person come into existence?” there is no simple legal answer. Legal personality begins as 13,soon as a child is born and breathes, or is capable of a separate existence from its ‘mother. Even an embryo has certain rights, however, which the law recognizes retro- spectively when the child is bom. For example, a child whose father died before it was bom may succeed to his father’s estate, either by will or upon intestacy. Another example is that if a pregnant woman is sentenced to death by a court of law, the execution of the sentence will be delayed until after the birth of the child. Legal personality ends on death, inthe case of a natural person, but very often the deceased bequeathes legal consequences of great importance to others. For example, where his death is duc to violence or where he leaves assets or liabilities, his demise brings about a great many other consequential issues. “Death but entombs the body, not the soul.” Nor, in law does it entomb the consequences of his living acts. 4CHAPTER II SOURCES OF LAW Itis common knowledge thatthe psychiatrist considers that the events in aperson’s childhood play an important par in determining his ultimate personality. This is equally true of the law—its birth and formative years give rise to the system we operate today. {If you wish to understand our law, you must have knowledge of al stages ofits develop- ‘ment, In case you may feel we are ratling dead bones unnecessarily, however, there is another very good season for our study of the sources of law. This is that on_occasions the courts are obj ‘old sources ion in the cases upon which they are adjudicating. Obviously, ifthe judge is to know whether the source he is consulting is authentic, recognized and authoritative, he must have some knowledge of the history of our law. Most Continental systems of law arg, codified—that is, the law of the country is reduced to writing and is contained in one complete pice of Jegislation—but in Zim- babwe ‘iid South Africa this is not the position. We draw our knowledge of the law from various sources, each of which we will discuss in some detail, The first of these relates to the birth of our law. This happy event can be traced back to the very beginning of human society—to Primitive man. We will refer 1o this source of law as customary law. Customary Law ‘One can only speculate on the way of life of primitive man, but there can be no doubt that his whole existence was a struggle; a struggle for food and a constant strug- ale against the elements, against wild animals and his own kind. He was very much a Part of nature, His numbers, like those of the other living creatures, were regulated by an evolutionary process involving the survival ofthe fittest. His actions were almost solely based on instinct. In the beginning, without any conscious thought on his part, ‘the customs practised by primitive man were developed from his natural instincts and from the procedures he adopted in adjusting to his environment, Some writers refer to this form of law as “natural law”, ie., the behaviour patterns man developed to accord with bis instincts, and the rules of conduct he adopted to meet environmental chal- lenges. It was doubtless found that obedience to the natural laws was the condition precedent to the survival of individual tribes. As time went by we may conjecture that tribes drew together for mutual protection, and larger communities were thus formed. ‘The natural laws still applied, but in addition, certain habits and customs, probably based on religious beliefs and on necessity, were established. The members of the community automatically practised and maintained the customs they regarded as neces- sary or desirable, and these became entrenched as part and parcel of their way of life. Simple habits, with constant application and repetition, can develop into firm cus- toms, and all members of the community are required to comply with the customs. 15This is exactly what a customary law is. “Where an act has for some considerable time been performed in.a particular way, ¢ custom exists that the act shall be so performed, Where the State requires obedience to the custom, itis a law.” (Montmorency.) 1. Social and legal customs It is necessary to appreciate that the formation of a customary law involves the passage of a considerable period of time. There is no clear-cut moment when the habit is transformed into a law; the process is gradual and imperceptible. In early societies it is probable that the natural laws we have mentioned were interwoven with custom- ary procedures, moral codes and directives based on religious beliefs, and the whole formed a confused miscellany of obligatory rules. However, in the due course of time the various rules were isolated, and legal custom came to be dissociated from social ‘custom. The leader or leaders of the community would determine what rules of con- duct should and did in fact govern their affairs, and would decide how these rules should be enforced. ‘The main factor distinguishing a social custom from a legal custom is the question of state control. If the state considers the custom requires compliance, and will enforce obedience to it it is then a legal custom. Otherwise itis simply a social custom. A.legal custom entails duties which must be observed, whereas a social custom entails practices which may be observed. Punishment is not the criterion, for a breach of ‘ther custom may be penalized; the former by the state and the latter by the local section of the community affected. We are all familiar with the penalties that may be imposed by the state. Society, too, is not slow to punish a breach of many of its con- ventions, and society's “sentence” may be trivial or it may have far-reaching conse- quences, It should be noted that in moder law custom has virtually ceased to play any part ‘asa source of law. In earlier times, however, customary law was virtually the only law in existence, and many of our modern legal principles are based on the developed and adjusted customary laws of long ago. An interesting example ofthis was a custom that had its origin in the Middle Ages and concerned the contract of sale in early Roman- Dutch law. To effect a binding contract the custom was for the seller formally to place his foot on the article being sold. The custom was named "voetstoots” or “foot-touch”. ‘Only the name has survived the passage of time, and although a sale “voetstoots” is of ‘common application in our law today, the modem significance is thatthe seller gives ‘no guarantee as to the quality or quantity of the goods he is selling, and the buyer purchases the articles as they stand, with all their faults. ‘As we have already mentioned, a custom that eventually develops into a legal rule is ‘normally the product of slow and laborious growth. This process does not necessarily apply toa social custom. Itis interesting and rather amusing to read Allen’s “Law in the ‘Making” in this regard. This book was originally printed in, 1927, but subsequent editions continue to use the following passage as an example of a social custom: 16“tae average Englishman could no more be induced to wear his hair Jong than the average Chinese ‘mandarin could be induced to wear his finger-nals shor." Allen was, of course, attempting to illustrate that if the average Englishman grew his hair long, he would so violate the conventional properties that he would be sub- Jected to ridicule or some other social “penalty”. The excerpt also illustrates the amaz- ingly short period of time that has elapsed since this “settled” custom was reversed by the dictates of fashion. Many of our modern social customs arise, flourish and then die all within the space of a few short weeks. They are at times illogical, undesirable and even immoral. Our day-to-day customs are often based on unthinking imitation, the dictates of fashion, and the handling down from generation to generation of ordinary habits. For one thing. ‘modem man simply does not have the time or the inclination to weigh each minor action in the balance to decide whether his proposed course accords with recognized and desirable principles or not. As W. Bagehot says in “The English Constitution”: “The most imellectual of men are moved quite as much by circumstances which they are used 1 as by their own will. The active voluntary par of aman is very smal, and if i were not economised by 8 slepy kind of habit, its results would be nul. We could not do everyday out of our own heads al weave todo, We should accomplish nothing, forall ou energies would be fritered away in minor _auempts at pety improvements. One man, toe, would go off fom the known track i one direction, ‘and one in another; 0 that when a crisis came requiring massed combination, no two men would be ‘ear enough to act together It isthe dll traditional habit of mankind that guides most men's activi ties and isthe steady frame in which each new artist must st the picture that he paints." In effect, then, modem man’s everyday actions consist mainly of following tradi- tion, habit and the conventional “beaten-path” ‘Those who are conventionally-minded sncered at by the younger generation for being “square” or “trad-bound!” While itis true that blind acceptance and unques- tioning repetition of the norm may be the greatest enemy of progress, any other course is generally impracticable. To follow the normal patterns of day-to-day liv- ing is socially necessary, and itis the odd “non-conformist” who so strikingly illus trates this point, On the other hand, the unfortunate part of social convention is that it sometimes happens that people come to believe that simply because most people follow the customary way of doing things, then that course is the only acceptable path to follow. Anyone who deviates from this conventional course is then branded as foolish or anti-social. Examples of imitative customs include superstitions such as believing it is unlucky to walk under a ladder, popular “crazes” such as wearing tinted sunglasses with enormous frames, or pursuing some particular pastime or entering a popular ‘competition. These “crazes” may come and go without logic or reason in a matter of weeks, and during the duration of the “disease”, countless thousands of people may be affected, Another example of an imitative custom is found in the jury system. Despite the patent defects and anomalies of this antiquated system, the 7Use of juries, which originated in England, has been copied in many other coun- tries of the world Many other examples may come to mind—some having the force of law, others merely being illogical habits. An example of the later class of habit may be found in the practice of wearing a tie to one’s place of work, or when attending a social func- tion. Although this habits possibly dying out, certain hotels still insist on “jacket and tie after 6 p.m.”, and many theatres would not admit anyone who was not wearing the ‘conventional te, Particularly in a hot climate, this custom—a relic from another country and another century—may appear to have litle to recommend it ‘An example of a custom presently having the force of law is that of clothing certain Parts of the body when in a public place. 2. The scope of customary law today As we have scen, our lives are constantly affected by both social and legal customs. As a source of law, however, custom has virtually ceased to play any part in the mod- em world. Allen explains this fact as follows: “The seope of custom diminishes as the formulation of legal rules becomes more explicit and as a ‘more elaborate machinery ise up forthe making nd administering of law. Though minor customs and usages spring up even nowadays, especialy in commercial relationships, the great formative Peri ofthe more important customs belongs tothe past. ‘The pace and style of moder living is so swift and so different from that ofthe past that custom has no time to develop: as soon as the need for a legal rule or reform arises, the Legislature simply steps in and supplies the need. This statement requires qualification, however. It has been said that there are three principal stages in the development of the legal system of any country. First comes customary law, then ccase-law (the law as stated by judges in particular cases), and finally legislation, or the Jaws made by the supreme authority of the country. Accepting this statement as cor- rect, itis interesting to note in certain countries, all three stages of development exist side by side. For example, in our own country, custom often regulates the social and Jegal relations of the African in the rural areas far more closely than the actual laws of the country do, Indeed, custom plays a major role in the urban communities as well, but it is not so deeply rooted, perhaps, nor so pervasive as in the remoter parts of the country. In recognizing this fact, and in making allowance for it, our primary courts are specially charged with the duty to adopt and apply “Customary judicial practices”. ‘The Presiding Officers must, therefore, have an extensive knowledge and understand- ing of customary law, and they interpret the problems put before them on the basis of customary law. It may be asked what the function of the judicial officer is when he is faced with conflict, in a civil case, between the general laws of the country on the one hand, and the African customary law on the other hand. This situation is catered for in section 3 of the Customary Law and Primary Courts Act (No. 6 of 1981).It should be noted in particular that these remarks apply to civil cases only, and are confined to primary courts. Jn criminal cases, the same law is applied throughout the country. In certain of these cases however, the evidence might show that the person charged was influ- ‘enced in his actions by a prevailing custom. This factor would probably be taken into account by the trail court in mitigation of sentence. 3. The recognition of custom in modera law From an historical point of view at leas, all moder legal systems regard custom as the main source of law. Our common law is based on customary law, and some other customs have been recognized by the state and incorporated in legislation. (For the resent, we may regard the common law as all the law applied in Zimbabwe other than statute law). An example of customary law embodied in legislation can be found in South African law. Customs existed prohibiting any form of blasphemy, and also prohibiting the playing of any form of spot on Sundays. Both customs are now regu- Jated by statute, and it is an offence to blaspheme, or to contravene the provisions of the Sunday Observance Act. The converse is equally true—some customs that had attained the force of law, have now fallen away as being obsolete, An example of this is the rule against adultery which developed from a custom prohibiting adultery into a Jaw—a common law— prohibiting adultery. This law has now fallen away and adul- tery is no longer a crime in our country. The case deciding this was Fitzgerald v. Green, 1911 E.D.L. 432. Note, however, that adultery may ground a private action for damages in a civil court of law. AAs we have previously mentioned, in modem law custom plays a very minor role. If anyone relies on the existence of @ custom in a court of law he must prove its ‘existence by certain well establish rules. These rules were enunciated in Van Breda v. Jacobs, 1921 A.D., at page 330, and are as follows: ‘The custom must be reasonable; proved to have been in existence for along time; generally recognized and observed by the community; and certain, clear and consist- ‘ent with statute law, ‘When we talk of customary law today we generally refer to established and recog- nized trade usages and customs. For example, in Van Breda’s case it was proved that custom existed amongst those engaged in the fishing industry at False Bay in the Cape that once a party of fishermen had commenced catching or netting a shoal of fish between Cape Point and Fish Hoek, other fishermen were required to desist from ‘attempting to catch a portion of the same shoal. The court held that this was a reason- able custom and eminently fair to all parties. The defendant was required to pay the value of a catch of fish that he had intercepted in Violation of the custom. 4. The two schools ‘There are two schools of thought as to the place of customary law amongst the true souitees of law. One school, whose views have been set out by a man called Savigny, regards customary law as the true source of all law. Savigny argues that in the early 19days customary rules were the only kind of laws known, and the laws governing early societies were all based on custom, Even today, he says, where the people have delegated the function of legislation to the sovereign or central authority, the coming into exist- ence of new laws still depends on the national conscience of the people. The state may attempt to influence national custom by introducing new laws, but where these con- flict with the conscience and desires of the people they will soon require amendment because of the consequent outcry. (On the other hand we have what is known as the analytical school, whose views have been expressed by one Austin, This schoo} suggests that custom is not a source of law at all other than in an historical sense. The arguments of this school are based fon the development of English law after the Norman Conquest when the Norman judges are said to have invented the existence of customary law solely to avoid giving offence to the conservative English people. Austin contends that until a court of law says that a custom is a law, there is no law in existence. is suggested that both schools are right up to a point. In modem society it is 4ifficult to accept that the coming into existence of new laws always depends upon the national conscience of the people as Savigny suggests. One has only to examine the political structures of many countries in the world to realize that this view is un- tenable. Similarly, itis difficult to imagine how the “national conscience” dictated the creation of Acts such as the Settled Estates Leasing Act [Chapter 157] which facili- tated the leasing of estates which are the subject of a settlement! On the other hand, Austin’s argument is open to objection as well. A custom may still bealaw if it would be so classified by the courts inthe event of it ever coming tothe test. In other words, ifa custom satisfied the four requisites we have mentioned above, itis a law regardless of whether the court has already recognized it as a legal custom or not. Roman Law [cis a striking thought that Roman law forms the basis of the laws applied in most civilized countries today, and is studied by law students throughout the world. It is of Particular importance in Zimbabwe where, as you know, the system of law practised in Roman-Dutch law. Our law has developed over thousands of years to the end Product we practise today. As one author has put it, “our system of law has emerged from an incredibly massive array of material, culled from the depths of antiquity, and forged in the crucible of time”. Roman law played a fundamental role in this process of development. Tradition has it that Rome was founded by Romulus in 753 B.C. In comparison with ‘other paris of our globe, Roman legal history was tardy in developing. For example, a fairly civilized system of law operated in Asia some 7 000 years ago, and the Sumerian peoples of 5 000 years ago had already codified their existing laws to regulate commercial relationships. The famous Code of Hammurabi can be dated approximately 2123 B.C., and this represented a highly organized system incorporating civil judges and cours of appeal. The Roman system comes into view some 1 500 years thereafter—a late starter! 20Roman history is commonly divided into three periods which are related to the different forms of government prevailing—the Monarchy. the Republic and the Empire. The monarchy extended from 753 B.C. 10 $09 B.C. In common with the laws Of other primitive societies, the earliest Roman law was essentially tribal, and was a ‘mixture of religious and moral rules that were inextricably intermingled with the cus- toms of the day. We know very litle ofthis period, and what we do know is based on legend and is very unreliable. Eventually the monarchy came to an end with the expulsion ofthe last ofthe kings— Tarquinius Superbus—and this event heralded the coming into being of the Roman Republic. 1. The Republic (509 B.C. to 27 B.C.) In its early years, the Republic was tom by conflict between the partricians, who Were powerful and wealthy, and the plebeians, who considered themselves oppressed, both politically and economically. One of the principal complaints of the plebeians was that knowledge of the law was reserved to a privileged few. The magistrates were always partricians, and it was alleged that the administration of justice was arbitrary and discriminatory. In 462.B.C., a plebeian called Gaius Arsa demanded legal reforms that would include some codification of the law. Ten years of strife raged over these proposals until the Partricians eventually capitulated. The laws of Greece were studied and 10 men (de- em viri—commonly known as the decemvirs) were commissioned to investigate the reforms agreed upon. The decemvirs made a short record of the existing Roman laws on 10 tablets. The following year a succeeding commission drew up a further two tables, and this recorded collection and consolidation of the laws was known as the “law of the Twelve Tables" —(lex duodecim tabularur), ‘There can be little doubt that the XII Tables marked the starting point of Roman legal history. Romans of later ages had a high regard for the XII Tables. Livy called it “the fountain ofall public and private law”. In approximately 60 B.C. Cicero paid this rather flowery tribute: “Though all may grumble, shall say what think, ht i one looks a the source and contents of our laws then, by Hercules! one single screed ofthe Twelve Tables appears tome thave the libraries of lle philosophers beaten in its authoritative weight and is ric usefulness.” From this simple “code” developed the legal system which has had such a pro- found influence on the history of the world. In the preface to Lee's “Elements of Roman Law”, he describes Roman law 25 “one of the great things which have hap- ened in the world”. An American lawyer comments as follows: “What we need most today is more of the invigorating etemal influence of Roman law. There is not a prob- em of jurisprudence which it does not touch: there is scarcely a comer of political Science on which its light has not fallen. The population of the Roman Empire may hhave been 50 millions, but at present 870 million people live under systems traceable to Roman law.”. 21‘The style ofthe XII Tables consists of a series of terse and simple imperatives. For example the procedure for securing the presence of another before the Roman Practor (a magistrate) was prescribed as: “if a man summon another into court, he must go. If he go not, let witness be called: in that case he may be taken.” Prior to the publication of the XII Tables, it is believed that the knowledge and Practice of law was confined to the College of Pontiffs. (A pontiff was a kind of Priest). One of their number was appointed each year to arbitrate on disputes between Romans. In 300 B.C. a new law (the lex Oguinia) admitted plebeians to the College of Pon- tiffs. This had the effect of breaking pontifical control over the law. There emerged a body of lay jurists who assumed the function of interpreting the laws and giving legal ‘advice to all who sought it. This included the magistrates and judges. ‘Some of the magistrates were empowered to issue proclamations known as edicts, Setting out the legal principles they would follow during the year that they were in office. These magistrates were responsible for considerable development of the sub- Stantive law by means of their edicts. The magistrate could not create a new law, nor ‘epeal an existing one. But he could either grant an action or refuse one. For example, he recognized the validity of blood relationship in the law of succession, even though the strict civil law did not. The jurists played an equally significant role in the devel- ‘opment of the law as they gave advice to the magistrates on how their edicts should be framed, and on the outcome of individual actions. ‘The growth of the “Praetorian law” came to an end with the publication of the Edicium Perpetuum in Hadrian’ s time (117-138 A.D.). This was a consolidation of the edicts of all magistrates in one comprehensive document. The Republic eventually disintegrated in civil war. The end of the Republic can be said to date from 31 B.C., when the great-nephew of Julius Caesar—Octavian by yname—crushed Mark Anthony in the naval baitle of Actium, Octavian assumed the yname of Augustus, and became the first Roman Emperor. 2. ‘The Empire (from 27 B.C.) In the centuries that followed, the law was extended by the enactments of the Senate, the ordinances of the various emperors, and the further activities of the jurists. ‘The resolutions of the Senate were known as Senatusconsulta, An early manifesta- tion of the influence of Roman Law on Zimbabwean law can be seen in one such resolution passed in A.D. 46, called the Senatusconsultum Velleianum (relating to the law of suretyship as applied to women). This law held good for centuries, until it was ‘eventually brought to an end by Act of Parliament in Zimbabwe on the 13th March, 1959—1 913 years later! During the second and third centuries A.D., Roman law was interpreted and expanded by eminent jurists of thatera. Their field of influence lay mainly in reorgan- izing the Edictum Perpetuum of Hadrian’s time into some sort of order and symmetry ‘and in solving practical problems as they arose. They reconciled diverging rules and 22interpreted the law contained in the Edict. They also settled some of the points of difference regarding legal interpretation that had arisen between two opposing schools of thought. These schools were known as the Sabinian and the Proculian schools. An example of a point on which they were divided was the permissible age of matrimony. ‘The Sabinians considered sexual maturity was the criterion, whereas the Proculians regarded specified ages as being the test (14 for boys and 12 for girls). The proculian school eventually won the day! ‘The importance of the jurists was considerable, Jolowicz, for instance, says, “itis to the jurists of the principate that Roman law owes its fame and its influence on subsequent generations.” This period, the first two and half centuries of the Empire, is often referred to as the “golden age” or “classical age” of Roman law. Of the many famous classical jurists, probably the best known were Gaius, Papinian and his assistant Ulpianus. These were stirring times—Papinian was put to death in A.D. 212 by the Emperor Caracalla as he refused to justify Caracalla's murder of his own brother. Ulpianus was assassinated by the Praetorian guard in A.D. 228. It is not known what became of Gaius! ‘The influence of the Emperor on the development of law was very considerable as well. While he did not assume legislative power initially, by the middle of the second century A.D. it was recognized that he could make law. ‘The Empire expanded with great rapidity at this time, and the Roman law grew from the law of a city to the law of almost the entire civilized world. One may picture the outstanding kind of person the Roman must have been to have advanced 50 remarkably in such a relatively short period of time. He undoubtedly possessed exceptional military talent and organizing ability, and it comes as no great surprise to Jeam of the expansion of the Roman Empite, the might and power of the Roman People, and the force and logic of their legal system. The “classical age” was followed by years of internal strife and disorder until the Emperor Diocletian came to power in A.D. 284. He restored order and reorganized the Empire into four territories for the purposes of administration. His system, ‘although in itself a failure, led to the ultiriate creation of the Eastern and Westem divisions of the Empire, ruled from Rome and Constantinople (Byzantium) respec tively. The division proper started when Constantine the Great established a second ‘capital at Byzantium in 324. Years of “sharing” the Empire followed. Then there was 8 period of unification under the Emperor Theodosius I, but on his death in 395 the final division took place between his sons. We are all familiar with the decline and fall of the Wester Empire. The date assigned to the complete overthrow of the Wester Empire is A.D. 476. This disintegration of the Empire did not, surprisingly enough, result in a decay of Roman law, The barbarian kings in fact kept this law alive in the west as a subsidiary ‘common law. In A.D. 212 Roman citizenship had been granted to all free subjects of the Empire, and they were all subjects to Roman law. The barbarian kings did not wish to make any radical changes. They did, however, sometimes maintain parallel legal systems; applying one system to the Romans and another to the barbarian sub- jects. They continued to use Roman methods of administration 23‘Whereas the Western Empire had fallen, the Eastem Empire continued to exist. An important date in the history of the Eastern Empire was A.D. 527. This was the year that Justinian came to the throne in Constantinople. This famous Emperor conceived an immense project of legal reform, namely to reduce the existing laws to systematic form after making necessary amendments and interpretations, and rejecting obsolete and unimportant laws. Commissions were appointed to undertake this task which involved the extraction of the existing laws from some 2 000 publications. The legis- lation resulting was known collectively as the Corpus luris Civilis. Although not strictly “code” in the modem sense, this legislation was basically a work of codification and is commonly referred to as “Justinian’s Code”. The code consisted of four parts: (2) The Institutes: This first pan is a brief textbook on the whole of Roman private law, designed for use by law students; (b) The Digest or Pandects: This is the most important part of the code. The word igest is derived from the Latin verb “digerere”, which means “arrange”. This name ‘conveys that a diversity of matter is arranged in the contents. The section does in fact include the opinions and writings of a varicty of the classical jurists. The word “pan- dect” is derived from Greek and means “the all received”, i., thatthe opinions of the Jurists were all received into this part of the code; (©) The codex (code): This part is a collection of statutes promulgated by the Emperors. (G) The Novellae: This last part was a number of new statutes, promulgated at a later date which were included in the corpus juris. Justinian directed that the corpus juris was to be the only source of law for ever. This command has, of course, been universally disobeyed ever since! Apart from being liable to criticism for this dictatorial anttude, perhaps we may also comment on the matter of his self-esteem. The proem (preface) to the corpus juris reads as follows: “The instnates of Justinian ‘The Emperor Caesar Flavius Justinianus;conqueroe ofthe Alamanni, Goths, Franks, Germans, ‘Ata, Alan, Vandals, ticans—pious prosperous; renowned: victorious tumphant; ever august —'o young men desirous of the lw ‘The Imperial Majesty should not only be made glorious by ams, but elo armed with aws, that ‘War and peace alike may be well directed, and thatthe Roman Emperor may not ony be triumphant {in bate, but also by pursuing the pats of law overcome the wicked designs of unprinipled men land be seen tobe as much «scrupulous upholder of justice a victorious over conquered foes. Both ends, with uniing effort and unfailing foresight, by God's blessing, we have attained. The Yalour of our arms, barbarian nations made subject to our sway have learned to know. Affiea and ‘innumerable other provinces, afer so long an interval by the victories which God has givea us ‘estored to our rule and Empire, bear witness tot All nations now are ruled by laws which we have {issued or compiled.” After the completion and publication of the corpus juris, Roman law lay virtually neglected for some six centuries. The Roman Empire declined and fell to barbarians. 24Constantinople fell to the Turks in 1453. As we have already mentioned, however, although the Empire fell to pieces, most European countries retained Roman law in whole or in part as a subsidiary common law. Justinian’s legislation was revived in the 12th Century, when @ manuscript of the corpus juris was discovered. The famous jurist Imerius taught Justinian’ laws at Bolo- gna University in Italy at this time, and students from alt over Europe were attracted to his lectures. Roman-Duren Law ‘The term “Roman-Dutch law” was first used by Simon van leeuwen who was a famous Dutch jurist living from 1625 io 1682. Toe tesm obviously connotes a merg- ing of the two systems of law. The Romans spent nesrly four centuries in the Nether~ lands, and the reception of their law into the Dutch system was not a simple matter. Holland was only one of seven provinces which declared their independence from ‘Spain in 1581. These provinces combined to forma the Republic of the United Nether- lands. The legal system existing at the time of the Romans consisted of Germanic or Dutch customary law and statute law. Very gradually Roman law was “grafted” on to the Dutch law. The most common way in whic this procedure took place was through the actions of the courts and the Dutch writers on iaw: As the communities developed and grew, new laws were necessary to govern and control the additional complexities. Where no Dutch law was available to mest this need, Roman law very often met the Particular situation, and was used accordingly. The Dutch customary law had never been reduced to writing, and where customary law was obscure, recourse was had to Roman law. We talk of the “reception” of Roman jaw into Holland. This legal system was also “received” in numerous other countries, and we can distinguish between three types of reception: (a) Formal reception ‘This we find in some states, for exemple, German stsies, where the Roman law was taken over completely by legislation. (b) Informal reception This was the manner of taking Roman law iato ‘he legal system of Holland, ic. the old Dutch jurists merely referred to Roman law in their works as forming part of the Jaw of the Netherlands. These statements of the law by the jurists were accepted by the courts, and thereby became established aw. (©) Infiltration In some countries, such as Scotland, Ronan law was not received openly, but fil- {ered almost unnoticed into the national law. ‘We have mentioned Simon van Lecuyien as being one ofthe famous Dutch jurists. Perhaps the greatest of all Dutch jurists was Hugo de Groot (Grotius), who has been asdescribed as the father of Roman-Dutch law. He lived from 1583-1645. One other who must be mentioned is Johannes Voet (1687-1713) whose works are not only world-renowned but are very often referred to by jurists of today seeking an answer to a difficult legal problem, During the period of the Dutch Republic, from 1581 to 1795, the Netherlands was ‘a maritime and colonial nation of prime importance in the world. Her outposts ranged from the present New York to the East Indies. The main principles of the Roman- Dutch law were carried by the commanders and Governors of the eight Dutch trading ‘companies to the various comers of the globe. ‘The fall of the Dutch Republic at the end of the 18th century and the replacement of Roman-Dutch law by the Code Napoleon rang the death-knell of Roman-Dutch law in Europe. All over Europe codification had put an end to the use of Roman law, and the study of Roman law thereafter became a purely theoretical and historical exercise. In very few countries now is a knowledge of Roman law important expert to the law student, Amongst these few countries we can, of course, number South Africa and Zimbabwe, where Roman-Dutch law is the legal system in operation. fe ‘The Roman-Dutch system of law was introduced into the Cape when van Riebeek of the Dutch East India Company settled there with others in the year 1652. As a ‘matter of interest, Simon van Leeuwen used the phrase “Roman-Dutch law” as the é Oo ‘subtitle of his legal work that was published in Leyden in the same year—1652. These \ * As garly Dutch setters brought the Roman-Dutch system of law with them, and it was 2 lo {Put into practice initially in the Cape. The system was carried into Natal, the Trans- wr een {Vaal the Orange Free State and eventually, into Zimbabwe. ‘ | In 1806 the British annexed the Cape. One ofthe condition ofthe wanafr ofthe Cape to the British was that the colonists retained their own. Jegal system, that is the Roman-Dutch law. When the Pioneer Column arrived in Harare in 1890, the Roman { Dutch system of law had become well established in South Africa. i \,_On 10th June, 1891, the British High Commissioner issued a Proclamation to the = that Zimbabwe was to be governed for the time being by the laws of the Cape 1. In this way Roman-Dutch law arrived in Zimbabwe. It should be noted that the Roman-Dutch law that was in force in Zimbabwe at the ‘end of the 19th century, was by no means the identical system that van Riebeck had ‘brought with him tothe Cape in 1652. The intervening years saw many changes brought about by the influence of English law. In 1806, the British had annexed the Cape and in 1841 it was formally coded to Great Britain. When the Cape, and the other Dutch settlements of Ceylon and part of Guiana were ceded, to Great Britain, a condition of the cession was the Roman-Dutch law should be retained as the common law of these territories, which thereafter became British colonies. Most ofthe judges appointed to the ever-increasing number of cours, and the advocates practising therein, were quali- fied in English law. A final appeal to the Privy Council in England was instituted, the 26English idea ofa jury system was introduced, and in many instances, English law was drawn upon directly for new le . English sources of law were far more acces- sible than the foreign language sources of Roman-Dutch law. In these circumstances, itis not surprising that English legal terminology became common, a very real danger of a complete take-over by English law existed. This danger was averted by the for- mation of the Union of Soath Africa in 1910, and the institution of a Court of Appeal in Bloemfontein for the four provinces of the Union In Zimbabwe's early history, appeal lay only to the Cape Supreme Court. Later an initial appeal lay to the Apoellate Division of the Supreme Court of South Africa, and a final appeal lay to the Prvy Council. We now have our own Supreme Court and no ‘appeal lies beyond this court. ‘Appeal tothe Privy Council was abolished in South Aftica in 1950, and in Zimbabwe in 1965. Although at this stge the Roman-Dutch sysiem of law was firmly entrenched both in South Africa and inZimbabwe, the influence of the English law was embodied in the system, and in fact ths influence is still apparent in many instances in out legisla- tion and terminology. For example, our Criminal Procedure and Evidence Act [Chapter 59] contains several directins whereby the law to be applicd shall be that in force in the ‘Supreme Cour of Judicatre in England (for example, section 295). British Government wes established in Nyasaland (now Malawi) in 1902, and in ‘Northern Rhodesia (now Zambia) in 1911, and English law was proclaimed to be the Jaw of both territories. Ir the days of the Federation ofthe Rhodesia and Nyasaland, it .was peculiar that the Enjlsh law of those two countries, and the Roman-Dutch law of, Zimbabwe were practisd side by side in apparent harmony. The whole process of development of these diferent systems of law would, one might imagine, have culmi- nated in divergent and epposing rules and procedures. On the contrary however, the two systems bear remakable similarity. One school of thought considers that our system of law isthe nea-perfect product ofthe countless years ofits development. An ‘opposing school of thorght considers that Roman-Dutch law can be criticized in that “its text books are antiquated and its weapons are rusty”. Whatever school of thought ‘you may prefer, it seems possible that our system of law will be codified one day. This Process will solve mary difficulties, and will possibly go a long way towards achiev- ing a complete and symmetrical system of 1a. ‘This brief historical sketch has carried us over nearly 3 000 years of legal develop- ‘ment, and iis of great iterest to see how many of our laws have gradually changed to ‘meet the needs of the developing society. Change or modification has not been inevi- table, however, and many of the principles employed by the early Roman tribes are still in use today. On the other hand, situations have arisen whereby the law has been required to move with unaccustomed rapidity, and possibly has found itself incapable of synchronizing with reality. The advent of the “horseless carriage” created a situa- tion of this nature. The spectacular advances made in vehicular performance have resulted in escalating traffic hazards. Consequential problems such as the regulation of speed and the necessity to combat pollution appear to have left the law lagging. In “7any event, it seems apparent that in some instances, it has not moved rapidly enough. In a very well known and popular text book on criminal law—Gardiner and Landsdown's South African Criminal Law and Procedure—at Page 1591 of the sixth edition, the following passage occurs: nat constitutes furious driving must be determined upon a consideration ofall the facts and cit- ‘cumstances ofa parcular case—no exact or mathematical definition i practicable, Thus the div- {ing of a motor carat a speed of 12 miles pe hour through a busy street ofa town might amount to furious diving. v, Mogs, 20 CT. 414: but an equal or even greater speed upon a county road with ith orno waffic would ordicarily not constitute furious driving. Evidence that the accused had diven his motorcar through village atthe rte of 23 miles per hour was in ex parte Stone (1909) 73 4.P, 488, held sufficient to support conviction for driving ata speed dangerous to the pubic in ‘contravention of section I of te Motor Car Ac, 1908 of the British Parliament”. It would not seem altogether inappropriate in this quotation to substitute the word “chariot” for the words “motor car” and place the signature of Gaius atthe foot of this legal exposition! ‘So much for the historical origins of our law. We may now tum to legislation as a source of law. Lecisuarion Very long ago it became obvious that it was necessary to have some system whereby new laws and amendments to existing laws could be introduced speedily. Some per- son or body of persons had to have the power to pass laws that would keep pace with the rapidly changing conditions of a developing community. All countries recognized this need and all appointed such an authority. In a democracy, this authority is described by the general name of the “the Legislature”. The Legislature makes laws which are called “statutes” or “Acts”, and it has the power to amend or repeal statutes, already in existence. ‘The power to legislate is a most important and responsible function. Its aim is to regulate the affairs of the country’s residents in a just and honourable manner. ‘We may define “legislation” as the publication of binding rules of law in a precise and well defined form by a person or body having the legal power to do so. Legisla- tion is by far the most important source of law in any advanced legal system, and Practically all modem law is created, amended or abolished by legislative process. Before going on to discuss the process in detail, let us have a brief look at the way government works in an advanced democratic system. In our country—indeed under any democratic system of government-—the responsibility for legislation rests on those elected by the people for this purpose. Democracy requires that those chosen by the electorate should make the Laws, fr itis by these laws thatthe people are governed. In Zimbabwe the people's representatives are elected to the Parliament of Zimbabwe which comprises a Senate and a House of Assembly. The legislative power is vested in the Legislature, which consists of the President and Parliament. 28‘The Legislature can make whatever laws it considers to be necessary or desirable in the interests of peace, order and good government, and can subsequently amend or repeal such laws. The kind of laws made in this way are collectively referred to as “statute law”. Each separate law is referred to as “an Act", meaning an Act of Parlia- ‘ment. There are approximately 500 Acts having legal effect in Zimbabwe at present. ‘These are constantly subject to review, and may at any time be amended to remove ‘anomalies or to meet changing circumstances. In 1963, and again in 1974, all the Acts in force in the country were revised and consolidated, and were published in separate, ‘consecutive volumes. We refer to each such Act by its short title and by the chapter ‘number it has been given. For example, the Act regulating the dealing in and posses- sion of gold is referred to as the Gold Trade Act {Chapter 164]. Since 1974, the various new Acts passed by the Legislature have been published in separate volumes annually, and we refer to these by their shor titles and the year of publication. For example, we would speak of the Precious Stones Trade Act (No. 8 of 1978). In most cases an Act will set out broad principles only, and will authorize some ‘other person or body to issue other enactments to provide for the detailed administra- tion of the Act and the implementation of the principles involved. This is necessary because the Legislature would not have the time co attempt to regulate the multifari- us affairs of a modern society. So complex and so technical are the majority of con- Cems in the modem world, that the Legislature often delegates its power to make enactments to responsible bodies who are better qualified to understand and control the activities of such concems. Enactments made under such delegated power are generally known by the collective term “statutory instruments”. We also refer to statu- tory instruments as “subsidiary legislation”. The statute law of the country, therefore, consists of the Acts of Parliament and statutory instruments of subordinate bodies. Both have legal effect and provide many of the rules by which we live. There are several different types of statutory instraments, namely Rules, Proclama- tions, Regulations, By-laws, Orders and Notices. Some are made by the Head of State; some by another person specified in the enabling Act—very often a Cabinet Minis ter—and some by specified bodies. For example, the Public Services Act [Chapter 271) allows the President to make regulations on matters affecting officers of the Service, while the same Act allows the Minister of the Service to make regulations in respect of employees. ‘As we have mentioned before, the power to legislate is not given lightly, and the Legislature always retains the right to withdraw the power it delegates. In Zimbabwe, all subsidiary legislation must be laid before Parliament. In an indirect way, the courts may also exercise a measure of control over subsidi- ary legislation. They have the power to rule that the statutory instrument is invalid on the grounds that it contains provisions which the Legislature did not authorize. In 2other words, a court may declare subsidiary legislation to be ulira vires the enabling Act. (This is the Latin term which is used in legal terminology, and means “outside the power”) ‘The scope of the doctrine of ultra vires is illustrated in the judgment of Lord Chief Justice Russell in Kruse v. Johnson, 1898, Q.B. (Queen’s Bench), at page 911 “... would be the ty ofthe court to conden by Taws invalid because unresionable, But uerestonable in what sense? Ii for insance. they were found be paral and neal in ‘operon as between diferent classes they were manifest unjust they disclosed bad fa if {hey involved such oppressive o gration ntefeence with te rghts of tote subj to them ab ‘woud find po jusiieatin inthe mins of reasonable men, the court might wel) “Paament sever intended to give authority to make sch les; they ac unreasonable ad levies” Apart from the requirement of being intra vires (within the power), subsidiary legis- lation must satisfy certain other conditions before it will be accepted as valid. For instance, it must be shown that the procedure specified for making such legislation hhas been followed, and that the legislation does not conflict with an Act of Parliament. ‘The average layman has little or no idea how legislation comes into being, and does ‘ot appreciate what a thorough and searching examination of the proposed law is conducted before it finally becomes operative. Let us run through the “life-cycle” of the average law. 1. Conception In Zimbabwe, anyone can initiate legislation. A chance remark, a casual incident, an indignity suffered—anything may indicate the need for an amendment of, or an addition to the law; and anyone may sow the legislative seed. The administrative authority concemed will examine the proposal, will seek the views of any interested parties, and will decide whether to pursue the matter or not. If approved, the proposal will be set out in legal form and language by the Attomey-General. This document is called a “draft Bill”. After further consideration and approval, the Minister responsi- ble arranges for the Bill to be introduced to Parliament. 2. Birth - The next adventure isthe “hatching” of the Bill into an Act. This event occurs when the Bill passes successfully through Parliament, is assented to by the President, and is finally promulgated. The hatching process is not an easy one. Each clause of the Bill is subjected to scrutiny, debate, criticism and suggested improvement by the members of the House. During its passage through the House of Assembly, a Bill goes through the follow- ing stages— (a) first reading; (b) second reading; (©) Committee stage: (@) report stage (if amended during the Committee stage); and (©) third reading. 30‘These various stages ensure that the Bill is subjected to detailed and careful exami- nation. After its final reading, the Speaker of the House of Assembly sends an authen- ticated copy of the Bill to the Senate for consideration. The passage ofthe Bill through the Senate involves further lengthy procedures and further examination. After the ‘Senate has passed the Bill. itis sent to the President for assent. When he signs the Bill in token of his assent, the Bill “hatches” and becomes an Act. It should be noted that the description of the events following the original proposal, and of the passage of the Bill through both Houses has been simplified by assuming that it passes all its stages without setback. However, sometimes proposal and Bill are referred back and forth like a shuttlecock in a game of badminton, As will be realized, the process of legislation is a lengthy one and there may easily be a delay of two years or more before the original proposal finally becomes law. A delay of this duration has the advantage of providing a useful safeguard in that it avoids the danger of hasty and ill-conceived legislation. In cases of urgency, however, the process may be speeded up considerably. 3. Life Usually, an Act comes into force on being published in the Goverment Gazette. From the beginning of the day on which it comes into effect, the provisions of an Act hhave the force of law. This means that from then on the state will use its law enforce- ‘ment machinery to force anyone not obeying a provision of that law to comply with it. ‘The life of an Act may be indefinite, and it will continue to exist, and to be applied and enforced as long as there is a need for it. Many of our statutes still in force came into being before the tum of the century. Unfortunately, some remained in force long after the need for them passed, For example, the Rabbits Act was introduced in 1891 to prohibit the importation of rabbits into Zimbabwe. This Act was eventually repealed in 1953, long afier the reason for its existence (to avoid a scourge similar to that occurring in Australia) had fallen away. 4. Death ‘We will enumerate the ways in which an enactment may come to an end as follows: (2) The most common way is for it tobe expressly repealed. This is accomplished by the Legislature simply passing a new Act which repeals the old one. (b) There may also be an implied repeal. This is an indirect way of repealing legis lation, and operates in this way: where a provision in an Act is clearly inconsistent with a provision in an earlier Act, the later provision may, by implication, repeal the earlier one. The courts are reluctant to find that the legislature has impliedly repealed ‘an enactment, however, and wherever reasonably possible, will rule that no repeal is. implied. (©) Where an Act has been made for a specified period of time, its limited life is ‘erminated simply through the passage of time and no formal action is necessary. 31Under the old Roman-Dutch law the life of an Act could be brought to an end by its provisions being ignored by the public for a long period of time. This does not hold 00d today. The present-day legal position in Zimbabwe is that a statute law remains in force until repealed or amended by the Legislature. The final source of law which we will discuss is that of judicial precedent. PRECEDENT In common parlance this word is used to describe a previous case that is referred to as an example. In law a similar meaning is conveyed by the term, but in a particular sense. In this special sense, a precedent is a previous judicial decision which serves as a rule or guide for similar cases heard in the future. In other words, once a court has ‘given a ruling concerning the legal position applicable in a particular set of circum- stances, this ruling becomes the law for the future, Other courts will thereafter apply the law as stated in the original case. ‘The principle embodied in the doctrine of precedent in the Latin maxim, stare decisis ¢1 non quieia movere (to stand by the decisions and not disturb settled points). This Principle is found in all developed legal systems, and it may be wondered why this is so. ‘The main reason is that the law must be certain. It will be recalled that we discussed this, requisite of law before. Certainty is undoubtedly a very important requisite in any legal system; without it one would not know whether one’s actions were right or wrong, lawful or unlawful. An additional reason is natural inclination we have of being guided by and profiting from, the wisdom of our forbears. It would be a time-consuming and irrational exercise to examine afresh each problem as it arose without having regard to ‘he weight and value of any analysis that might have been conducted previously. The function of a judge is to interpret and apply the law as it exists, not to make Jaw. It will be asked why, in this event, is precedent described as a source of law? In ‘many cases the judge simply applies existing legal rules. Where, however, the case in question is a novel one, and no legal rules exist in relation to the facts, the judge must then decide the case in accordance with principles of justice. He will examine all ‘material relevant to the problem, including analogous authorities, and may even study theccases of other countries. He will base his decision on principles he has been able to extract from the material examined. His decision now becomes the law on the point, ‘and the effect is that a new rule of law has evolved. The creation of this new law is really incidental to the judges’ main purpose of resolving the dispute. This factor is ‘commented upon in Fellner v. Minister of the Interior 1954 (4) S.A. 531, as follows: “In so far asthe law is built up by judicial precedent, itis built up not deliberately in order to create 1 body of law, but as a result ofthe discharge by the Cour of its function of setng the dispute between the parties 1. Stare decisis All advanced westem countries apply the doctrine of stare decisis to a greater or lesser degree. The English approach is comparatively rigid. As Salmond puts it, “The importance of judicial precedents has always been a distinguishing characteristic of 32English law.” The Continental approach, on the other hand, does not allow a similar degree of authority to the doctrine; the court there is not obliged to follow its own previous decision or that of another court. Nevertheless, for reasons that are consid ered below, the Continental court will not lightly depart from the principle embodied in the doctrine. Our law is summed up by the Innes, CJ., in Habib Motan v. Transvaal Govern- ment, 1904 T.S. 404, at 413, in this way: “Stare decisis is good maxim, and one tobe generally followed, bu itis conceivable that cizcum- tances may arise which would render i lesser evil fr a cour to over-ride its own legal opinion, clearly shown to be wrong, than indefinitely to perpetuate its errr. Save under the most exceptional circumstances, however, 4 cour should be bound by it own decisions unless and until ey are cover-ruled by a higher tribunal on appeal. To adopt any other rule would impair the dignity of the ‘court, and would inroduce a total uncertainty into business transactions and legal proceedings" Hahlo and Kahn enumerate some of the advantages and disadvantages of the prin- ciple of stare decisis. The advantages it brings are listed as “certainty, predictability, reliability, equality, uniformity, and convenience”, The author's treatment of the main defects is repeated in full: “Firs it allows the law to become a perified forest of erroneous notions. Jonathan Swift in one oft ‘quoted passage in Gulliver Travels bas Gulliver spleneticaly say: "Its a maxim among lawyers, ‘that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice, andthe general reason of man kind, These, under the name of precedents they produce as authorities o justify the most iniquitous ‘Opinions; andthe judges never fail of directing accordingly”. A legal rule may be formulated before sufficient experience has been gathered, possibly even through some idisyncrasy of ahighestribu- ral, and the firs experiment thus becomes the lst, the wealth of subsequent experience and con structive thought counting for nothing. “Secondly, a strict principle of stare decisis fails wo allow legal rules, once in conformity with the needs of society but not longer s0, to move with changing imes and sentiments. “Law”, in Roscoe ‘Pound's famous words, must be stable and yet itcannot stand sl.” “Thirdly, it leads to casuisry. The law descends into ‘That codeless myraid of precedent ‘That wilderness of single instances’ of which Tennyson wrote, and it sclentific development i impeded if not, indeed, topped. A bad ‘decision may diver the law into a wrong path “Twill be recorded for a precedent, ‘And many an error by the same example ‘Will rush into the state It cannot be. Merchant of Venice. “In the words ofan eminent Australian judge: “I is not beter that the court shouldbe persistently ‘wrong than that it should be ultimately right”. “The obvious aim of any legal system is o strike a balance between excessive rigid- ity and uncontrollable laxity. Its hoped thatthe application of the doctrine in our laws achieves this aim. In the words of the late Sir John Kotze: “Roman-Dutch jurisprudence, while it recognizes the value of certainty in judicial sentences, land inculcates the precept that previous decisions should not be lightly departed from, also 3teaches the principle that previous decision which has been shown to be erroneous ought not tobe followed” tis obvious that not all judicial decisions will have the authority of a precedent. It is necessary to appropriate the structure of the courts of Zimbabwe to have a full understanding of the rules of precedent. 2. The hierarchy of authority Our court structure is relatively simple. It consists of the “superior” courts known as the Supreme Count and the High Court, and “inferior” courts comprising village Courts, community courts, magistrate’s courts and administrative courts. The word “inferior” is not used to convey any suggestion of inadequacy or imperfection, it sim- ply means that these courts have a lesser or inferior jurisdiction to the superior courts. Such courts are also referred to sometimes as the “lower courts”, also meaning lower in jurisdiction. Jurisdiction of course, means the extent and area of a court's power. We discuss the hierarchy of authority of our various courts and their structures in detail in Chapter IV (below). For the present, itis sufficient to know that our Constitution provides for both the ‘Supreme and the High Couns, their composition and powers and the conditions appli- cable to judges. The other courts, the lower courts, are created and governed by their ‘own particular enactments. Tt may be wondered in what way these various courts are used: how is it decided which of the courts is best fitted to deal with the case in question? The factor deter- ‘mining whether a particular case is channelled into a higher or a lower cour is essen- ally a matter of jurisdiction. In other words, if the case is of such a nature that it ‘seems that the lower court's statutory jurisdiction will be inadequate, the case is even- tually tied in the High Cour. ‘The High Court has the power to review the proceedings of inferior courts and statutory tribunals, and the record of a criminal case heard in a magistrate’s court is ‘automatically sent for review when the sentence passed is over acertain limit. Review Procedure entails the perusal of the inferior court recorded by a judge, and he certifies ‘whether the proceedings are in accordance with “real and substantial justice”. The Judge's powers in this regard are prescribed by statute. This power of review is a valuable one and helps to ensure that justice is done in all cases. It is of note that the Community Court Presiding Officers review the work of the village courts, and Regional Magistrates review the work of the other magistrates up to a set level. The way this review system works is as follows: if the Presiding Officer of a community court is not satisfied that a village court Presiding Officer has done justice between the parties, he may reverse the decision, alter it, or remit the ‘matter back to the court a quo for further evidence or any other correction desirable. In the case of the magistrates’ court criminal trails, if a magistrate passes a sentence over a $50 fine or three months’ imprisonment, but under a $200 fine or six months’ imprisonment, the case is automatically placed before a regional magistrate, This officer will scrutinize the record, and if he considers thatthe proceedings “are in accordance with real and substantial justice” he certifies the record accordingly and the record is filed.If he i of the view that justice has not been done in that particular case, however, hhe forwards the record to a judge of the High Court who will then decide what should bbe done about the case. The review system is explained further in a later chapter. 3. The application of stare decisis ‘We are now in a better position to understand the rules of precedent in Zimbabwe. ‘In general terms, the decisions of the superior courts are binding on the inferior courts. ‘The inferior courts do not have any discretion in this respect; the Supreme Court and the High Court decisions must be followed, even if patently incorrect. The decisions of the Supreme Court are binding on all other courts, including the High Court. The Supreme Court is not bound to follow its own previous decisions, although generally it will only depart from its own decision if convinced it was incor- rect. It should be noted that as recently as 1966, the House of Lords in England, sitting as a court of appeal, was bound by its own decisions. This excessive rigidity meant that if a bad decision had been made, this decision was nevertheless the law. The result was that some unsound rules remained binding on all courts indefinitely. The ‘only way in which this unsatisfactory result could be corrected was for the Legislature to pass an Act clearly stating what the law on the matter would be in the future. Such fan enactment would then supersede the judicial decision. As we have mentioned already, the decisions of the High Court are binding on all inferior courts. In the same way as with the Supreme Court, however, its not obliged to follow its own decisions. Itis necessary to qualify this statement to a certain extent. Occasions arise when one, two, three or more judges may be sitting on a particular ‘case. The High Court regards itself in principle as bound by its previous decision when sitting asa “lower court”. In other words, single judge considers himself bound ‘ona point of law previously decided by a two-judge court, Decisions of inferior courts do not bind any other court, not even themselves. 4. The authority of other courts Our court structure has not always been made up as it is now. In discussing the sources of our law we mentioned the various courts that have heard appeals from our other courts during the course of our brief history. In the days of the Federation, there ‘was an appeal to the Federal Supreme Court, and a final appeal still lay to the Judicial Committee of the Privy Council. In 1965 our present Supreme Court became our only ‘court of appeal. What authority have the decisions of these courts now? What author- ity do we give to the decisions of other courts of other countries? At the time these appeal courts exercised jurisdiction over our cases, their decisions were binding on all ‘our courts, but this is no longer the position. The Federal Supreme Court ceased to exist in 1964, and the Supreme Court of Zimbabwe Act (No. 28 of 1981), expressly states that the Supreme Cour is not bound by its own decisions, nor those of any ofits predecessors. The word “predecessor” includes courts such as the Federal Supreme 35Court and the Privy Council. In this way, decisions made by the Federal Supreme ‘Court, the South African Appellate Division and the Privy Council are now regarded as having “persuasive authority” only. This term means that our courts will have regard to their decisions and will attach due weight to them, but will not regard them as binding. Decisions from the superior courts of other countries are regarded in the ‘same light: that is they have persuasive authority. ‘The weight attached to the decision of another court depends upon many factors. For example, the fact that the South African courts apply Roman-Dutch law adds ‘considerably tothe authority oftheir decisions in our courts, Among the circumstances considered are— (a) whether it is an appeal court or a court of first instance; (b) the constitution of the court (that is the number of judges who took part in the case); (©) the eminence of the judge or judges who decided the case; (2) whether there were dissenting judgments; and (©) whether any inconsistent cases were cited in argument. Recently, our Supreme Court overuled a decision of the Federal Supreme Court in the case of the Attorney-General v. Schaube-Kuffler. The court comprised the unusu- ally high number of five judges. ‘We have constantly referred to the system of precedent in relation tothe “decision” Of a superior court, or the “judgment” of that court. It will be asked what part of the judgment or decision is binding on subsequent courts. The answer is that, in accord- ance with the rules we have discussed above, the courts are bound only by what is known as the ratio decidendi of the previous decision. 5. Ratio decidendi ‘This term means literally “the reason for the decision”, or, as Hahlo and Kahn have it, ‘the principle of the decision”, and itis this part of the judgment that is binding. As rule, the extraction of the principle of law leading to the court's order (the decision) does not present great difficulties. If difficulties do arise, itis often because the judg- ‘ment is understood in different ways. The topic can be applied in practice moze easily than it can be described in theory. As Glanville Williams puts it, “It is not a mechanical process but is an art that one ‘gradually acquires through practice and study”. However, a simple definition of the ratio decidendi of a case has been succinctly provided by Professor Goodhart as “the ‘material facts of the case plus the decision thereon”. He supplies, in addition, the following helpful formula: “Suppose that in a certain case facts A, B and C exist; and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (¢.g., judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C.exist, or in which facts A and B and C exist, the conclusion must be X. Ifina future case facts A, B, C and D exist, and fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy”. 36‘We may describe “material facts” as those facts necessary to the decision of the case. In other words, if a material fact were omitted, either a different decision would be reached, or it would not be possible to give a judgment at all. Unfortunately, the ratio decidendi of a case may not always be extracted in the simple manner described above. ‘The judgment given in most cases is normally composed of many more elements than only the material facts. For example, a court will sometimes arrive at its verdict only after reviewing various authorities such as other cases and the Views of text-writ- rs, comparing related cases, referring to general principles, assessing the credibility of witness and the probabilities of the manner, and so on. We would describe the total ‘material used by the judge in reaching his decision as the “reasons” for the decision. In this sense, the ratio decidendi is not the “reason forthe decision”. It is doubtless on this ‘round that Hahlo and Kahn define the phrase as “the principle of the decision’. In this regard Lord de Villiers said, in Collet». Priest, 1931 A.D., 290, “Whatever the reasons for a decision may be, it is the principle to be extracted from the case, the ratio deci- dendi, which is binding and not necessarily the reasons given for it" Forour purposes we may regard the ratio decidendi of a case as being the basis or foundation of the court's decision: the legal principle which necessarily led to the conclusion reached. It should be noted that more than one ratio decidendi may be contained in a judgment. 6. Obiter dictum Statements contained in a judgment which are not necessary to the decision of the case are known as obiter dicta (said by the way or incidentally). It often occurs that a judge will express an opinion as to what the law is on some aspect not really relevant to the conclusion reached. For example, he may postulate and answer a hypothetical set of facts, or cite an analogy. Such an obiter dictum is not binding on future courts, but it may be accorded great weight and respect by subsequent courts, depending, ‘upon the eminence of the judge and the circumstances in which the remark was made. This is illustrated by the case of Petersen ¥. Jajbhay, 1940 TPD.., 182. The judgment given in this case relied on an obiter dictum made in a prior case, that of Jajbbay v Cassim, 1939 A.D. 537. [twill be appreciated that if an obiter dicnum is made after careful reasoning by a judge of high repute, and is agreed to by the other judges ofthe court, it will n practice, if notin theory, virtually settle the law on the question. The reason why obiter dicta are not binding on future courts is thatthe point may not have been properly argued and that its Full impli- cations may not have been considered. It can be ssi that although there may be a place for obiter dicta in some circumstances, this is not genceally so. In normal circumstances & ‘court should confine itself to legal consideration necessary to the decision. 7. Distinguishing Where a court considers that the case before it does not fall within the ratio deci- dendi of an earlier court's judgment, itis said to “distinguish” the case. Naturally, this 37Process only occurs when the previous case is similar, or is cited as an authority appli- ‘cable to the present case. Distinctions may be drawn in various ways. The later court may consider the point in issue was merely obiter, or thatthe earlier court formulated a principle too widely and the conclusion reached was, therefore, unacceptable. Or the later court may hold that the earlier court did not a apply a principle correctly, and had it done so, a differ- ent ratio decidendi would have been reached. Any court may distinguish a case before it from the decision of any other court. ‘This process at times serves as a very usefull means of departing from bad judgments which are stated too widely. Conclusion In practice we find that courts almost invariably rely on precedents to assist them in reaching a decision. A great deal of criticism has been levelled at the system in that it is inclined to restrict the development and adjustment of the law. This occurs when a court is obliged to follow unfair, out-dated or incorrect precedents. Apart from the disadvantages listed by Hahlo and Kahn and quoted above, itis argued that the subtle hair-splitting adopted by many courts in distinguishing precedents in an unhealthy practice. It is also the tendency for practitioners and judges to look for en appropriate precedent rather than to seek the relevant principle. In the words of Cowper— “To follow foolish precedents, and wink with both our eyes, is easier than to think.” It does appear that the disadvantages inherent in the system out weight the advan- tages. It is for this reason that our courts apply the rules of precedent with caution and common sense. 38CHAPTER 3 DIVISIONS OF LAW Law, like most subjects, can be divided into various parts or components. It is important that this fact should be understood, because when laymen talk of law they usually have in mind a wide variety of topics; they might be talking of criminal law, or they might be discussing a contract, or even arguing about constitutional issues. In all ‘cases they are concerned with “the law”. What they might not appreciate is that the principles governing the various departments of the law differ widely. It is for this reason thatthe student must be clear in his mind about the various divisions within the body of the law. Until these divisions are clearly grasped, it will not be possible to take the first step involving a legal problem—that step is to identify the category into which the problem falls. For instance, a motor accident may give rise to “actions” which can be governed by both the rules of criminal law and delict; or a breach of ‘contract may in some circumstances entitle the injured party to sue for damages while in others he may only have the right to cancel the contract. Until the wrongful act has been correctly categorized in terms of the appropriate legal rules, it will not be possi- ble to determine the rights of the parties. In the pages that follow the main divisions of the law will be discussed. It will soon ‘become evident that most of our law falls into one of two major categories—public Jaw and private law. Pupuic Law The division of all law into public law and private law is a convenient method adopted to distinguish between those laws which regulate rights when one party is the state, as opposed to those laws regulating rights when both parties are “private per- sons”. In the former, rights and duties created by the law are exercised and enforced by or against the state as a party to a dispute, whereas, in the later, they are enforced against an individual. Another way of expressing the distinction is to say that public Jaw is what affects the interests of the public or the welfare of the state, while private law affects the interests of the individual citizen, Jt must be stressed that the distinction is made purely for convenience to distin- ‘guish cases where both partes are ordinary citizens from cases where either party is the state or a branch of it. Before discussing what public law comprises, we will ‘inquire into what is meant by “the state”. For our purposes it is convenient to define the state as an artificial (legal) person ‘consisting of a community of people (the nation) living together in a particular terri- tory under a common authority. This definition comprises three elements, namely, ‘community of people, a territory occupied by the community and a common authority under which the nation lives. 39‘We have mentioned that the state can be a party to a dispute. It may be asked how this can be possible when the very definition of “the state” includes the individuals, who are likely to litigate, The answer is that the state is like a comporation; itis a legal entity which is distinct from its members, and thus actions between the two are possi- ble, The state, like the corporation, acts through its organs. If, for example, our corpo- ration is a company, then it acts through its directors. The state acts through the presi- dent, the ministers and the goverment departments and other organs which possess authority. Private law govems the legal relations between individuals (the subjects of the state) who are on an equal footing in the eyes of the law. Public law governs the relations between government bodies or organs amongst themselves, and also between government organs and subjects. ‘We may now tum to examine the principles of public law, which can be considered under three heads: (1) constitutional law: (2) administrative law; and (3) criminal law. ‘The rules of constitutional and administrative law govern the activities of the official ‘organs of the state, while the criminal law controls conflicts between the state and its subjects. 1. Constitutional law In defining a state, we referred to an authority under which the nation lives. Itis the possession of this authority by the government of a state which enables it to govern. This state authority is the power which exists in every state by which it is protected as ‘an independent entity among other states in the world, and by which public order is preserved and the public interest is promoted. Where does this power come from? A government has its powers defined by a constitution which is a collection of rules Setting out the framework or machinery of a state. A constitution also fixes the distri- bution of authority amongst the various institutions which together make up the state. ‘These rules control the president, parliament, ministers, law courts, goveming bodies, ‘and the like. Constitutional law defines the rights and duties of these institutions in relation to each other and to the citizen. Constitutional law regulates the distribution of the functions of government, and the manner in which these functions are exercised. It also governs the relations of the state authorities to each other, and to the individual citizen. More than 200 years ago, the French writer Montesquieu divided all goverment Powers into three separate branches—the legislative, the judicial and the executive. This same three-fold division of power is followed today in all civilized countries Practising a democratic system of government. It is sometimes called “the three arms of government”. The “three arms” are explained as follows— (@) the legislative power enables a person or body of persons to make laws; (®)_ the judicial power is that which enables the courts to decide disputes in accordance with those laws; 40(©) the executive power enables the administrative branch of government to put the laws into effect and to execute the orders and sentences of the judiciary. Constitutional law generally consists of legislative enactments such as a written constitution and conventions. The latter are rules of behaviour which, though not enforceable at law, nevertheless form part of constitutional law. For example, if the government is defeated in the legislative assembly on an issuc of great importance, ‘constitutional convention demands that it resigns and hold a general election, These conventions have sprung up over the years because they make for the smoother run- ning of the govemment of the country. They are so important that itis necessary at this point to devote more attention to them. ‘Hood Phillips, in his Constitutional and Administrative Law, describes the conven tions as a means of bringing about constitutional developments without formal changes in the law. They do this by regulating the way in which certain powers given by law are ‘exercised. They therefore change in accordance with the requirements of the times and, being an informal method of change, they provide more adaptability than would a series of statutes or constitutional amendments. One may think of a convention as the means ‘most easily employed to adapt the machinery of state to perform tasks for which it was not originally designed, and to operate in spheres which were not previously envisaged. A constitution is not necessarily in written form. For example, the British Constitu- tion is unwritten, In this form it is flexible, and can be adapted freely to meet the changing needs of a government, With this type of constitution the scope of conven- tions is very considerable. Contrasted with a flexible constitution is the rigid one. This is a written, formal ‘enactment which provides special procedures that must be observed before any changes ‘may be made to it. Generally, amendments may only be made to such a constitution ‘when approved by a large majority of all members of the legislature. Where the con- stitution is rigid there is far less scope for conventions to operate. ‘A.convention is formed when changing circumstances necessitate the adoption of some new practice in order to govern effectively. If the practice is generally accepted as being obligatory, itis known as a convention. Tt should be noted that conventions are regarded as binding by those affected—the state and its officials—but they would not be enforced by a court of law. The purpose of constitutional law Wide powers are granted in a constitution and the function of constitutional law is to regulate their use. Constitutional law is concemed with the structure of the organs of state and the division of power within the siaie—that is, the organization of the state. ‘There is a continual interaction between the government of a state and its subjects. For example, the subjects elect the members of parliament, and Parliament, through legislation, controls the lives and activities of the subjecs in all kinds of ways. Const ‘tutional law aims at regulating the relationship between the government and the gov- emed (the citizens). 4‘The 1979 Constitution of Zimbabwe specifies how the Government shall be elected land provides the broad outlines of its powers afier it has been elected. It also contains ‘a Declaration of Rights which sets out the fundamental rights of the individual, such as the right to freedom of speech, assembly and religious worship. The Constitution provides that these rights shall not be interfered with by the State except where this is necessary in the national interest ‘Our Constitution also provides for the Judicature. This includes defining the pow- ‘ers and functions of the High Court of Zimbabwe, and specifying the rules to be applied in appointing judges to or removing them from this important office. It is advisable to examine our Constitution, and familiarize yourself with its terms. 2. Administrative law In distinguishing constitutional law from administrative law, Maitland said that “Con- stitutional law deals with structure and with the broader rules which regulate function, ‘while the details of function are left to administrative law”. So the difference between the two is one of degree rather than kind. “Administrative law determines the organiza~ tion, powers and duties of administrative authorities.” (Jennings, The Law and the Con- stitution). These authorities deal withthe day-to-day administration of the state. ‘The process starts with the legislature passing an Act, which then becomes law. ‘The organization responsible for putting the Act into operation and ensuring that its terms are complied with, may be called “the administration”. The powers delegated under the Act allow it to be put into operation in such a way as to work smoothly and efficiently. Let us see how an Act is put into operation. Parliament makes a minister responsi- ble for the implementation of an Act and delegates power to him to enable him to do so. He may make regulations in regard to the implementation of the Act, or, if the Act permits, may delegate this power to some organization. Usually the implementation of an Actis carried out by the administrative departments of the Public Service, but in some cases, the Act assigns powers and duties to some other organization such as an administrative board or tribunal. This will take place, for example, when the imple- ‘mentation of the Act requires expert or specialized knowledge not possessed by any administrative department. ‘The growth of society has been matched by the growth in the number and size of the organs of government in recent years. Not least of these are the various boards, ‘corporations and commissions. To give an idea of the number of these organizations, a few of the better-known ones in Zimbabwe are listed below. Boards: The Rent Board; The Road Service Board; The Defence Exemption Boards, The Censorship Board. Corporations, Co-operatives and Commissions: The Zimbabwe Broadcasting Corpo- ration; The Posts and Telecommunications Corporation; The Zimbabwe Railways: ‘The Cold Storage Commission; The Forestry Commission; The Electricity Supply a2‘Commission; The Cotton, Grain and Dairy Marketing Boards; The Sabi-Limpopo Authority; The Agricultural Development Authority. All these bodies are constituted by, and operate in terms of. specific legislation. ‘They are “creatures of statute”. Administrative law operates to ensure that they admini- ster the enactment properly and do not overstep the authority given them. The human relationship with which administrative law is concerned is that which exists between an administrative organ and another, or between an administrative organ and the subject (citizen). Because the subject has less authority or power than any administra- tive organ, the law guards the subject's rights and insists that the administrative organ keeps within its powers and complies with the prescribed procedure. This concludes the discussion of the first department of public law. Attention will ‘now be focused on the criminal law, or that branch of law which deals with criminal activities. 3. Criminal law In this section we will establish why criminal law is a branch of public instead of private law. We will also examine the clements of a crime and compare it with a civil wrong ‘The reason why certain acts are punished by the state, while others are treated as civil wrongs, is that the state, in establishing itself as the ultimate authority in a de fined territory, has assumed responsibility for maintaining order. Acts which in any way threaten this order are defined as crimes and are punished. They are seen as wrongs against the state even though a private individual is in most cases the immediate vic- tum. If the victim were permitted seek private revenge, he would further dispute the order and peace of the state. As a result there is a tacit contract between the state and all the people who live within it which says “the law (the instrument through which the state acts) will punish all those who injure you. directly or indirectly, and in return ‘you will refrain from seeking personal revenge and will uphold the law”. That is why nobody is permitted to “take the law into his own hands”. Civil wrongs, on the other hand, do niot pose an immediate threat to the peace of society, and for this reason the two parties involved can be left to pursue their claims of their own accord. The state, as the governing authority. does not become involved, and the dispute can be settled by the rules of private instead of public law. The wrong is not of sufficient gravity for the state to concern itself with redress. (Criminal law, to state the obvious, isthe law relating to crimes. A crime is an un- lawful action accompanied by a blameworthy state of mind which is punishable by the state. Those charged with crimes are prosecuted in the criminal courts of the land and may be punished by fine, imprisonment, whipping or death. When you come to study the criminal law in detail this outline will be greatly expanded. At this stage it is only intended to draw points of distinction between crimes and civil wrongs so as to establish the difference between the two. Both are concerned with wrongs, and the distinction is not between acts constituting the wrongs but between the legal proceed- 43ings that are brought. If proceedings against the wrongdoer are aimed at punishing hhim, then those proceedings are criminal, whereas proceedings that aim at compen- sating the injured person are civil. Criminal proceedings are called prosecutions and, generally speaking, do notend in any financial gain tothe injured person. Ifthe wrong- doer is fined, the money, in most cases, goes fo the state, not to the injured person, This is done to punish the wrongdoer, not to compensate the state. The civil law, on the other hand, provides rules for settling disputes between individuals. It protects rights and enforces obligations, and only uses imprisonment as the ultimate sanction, Asacrime is a wrong against the state, the state alone has the power to forgo prosecu- tion, of to remit the penalty imposed, that is, o grant a pardon. The injured party has no say in the matter. Quite the reverse is true in a civil case for here the injured party only ‘may bring an action (sue). He alone may withdraw the case or drop any part of it ‘The distinction between criminal and civil actions becomes more apparent if we ‘examine an example of a common occurrence. A motorist negligently collides with and injures a pedestrian. The motorist may be charged with the crime of negligent driving which is a wrong in the cyes of the state; at the same time, and in a separate proceeding, he may be sued in a civil action for damages by the pedestrian who has been harmed. Again, a husband may be charged with the crime of neglecting to main- tain his family. The state concerns itself in this case, a the family may then become a charge on the public purse. His wife, as a private individual, may institute civil pro- ceedings against him for a maintenance order. In each of these two cases both the community and an individual are wronged. The community's remedy is a criminal action; the individual's civil one. The are two sources of criminal law. The first is the common law. Common law crimes are those which have been so regarded since time immemorial and which the legislature has not interfered with by statute. The list of these includes such familiar crimes as treason, murder, robbery and rape. In addition to common law crimes there are those which the legislature has created. Any kind of behaviour may be forbidden by legislation. Examples of statutory offences range from the use of explosives or inflammable material against persons or inhabited buildings (for which the death pen- alty may be imposed, to breaches of municipal traffic by-laws for which a small fine is the penalty prescribed. Reference was made earlier to the clements of a crime. The essential factors which ‘must always be present if an act is to be criminal are as follows: First, itis essential that the wrongdoer should fail to act in accordance with a legal duty. There must, in this sense, be an action, because a man cannot be punished for his ‘thoughts alone; without some positive act on his part, he cannot be said even to have attempted to commit a crime. Secondly, the wrongful act must be voluntary. A wrong, done by a sleepwalker or a person having an epileptic fit would not be voluntary and so would not be punishable. This voluntary act is known by the Latin term, actus reus. ‘The next clement rélates to the accused person's state of mind. We refer to this by the Latin name, mens rea. Mens rea has been broadly defined as “criminal intention”, 4