Law and Procedure of Meetings

Lecture Notes

What is Law?

The term “Law’ denotes different kinds of rules and principles. Law is an instrument which
regulates human conduct/behaviour. Law is a system of rules created and enforced through
social or governmental institutions to regulate behaviour.

Law refers to the whole system or set of rules made by the government of a town, state,
country.

According to Salmond “the law may be defined as the body of principles recognized and
applied by the state in the administration of Justice.

Law is the command of a sovereign, containing a common rule of life for his subjects and
obliging them to obedience.

Importance of law

Law is very important for a society for it serves as a norm of conduct for citizens. Law
provides for proper guidelines and order upon the behaviour of all citizens and to sustain the
equity on the three branches of the government. It keeps society running. Without law there
would be chaos and it would be survival of the fittest and everyman for himself. Without law
our society would be chaotic, uncivilized mess and anarchy would reign supreme.

Most importantly the law also provides a mechanism to resolve disputes arising from those
duties and rights and allows parties to enforce promises in a court of law (Corley and Reed
1986 P.A)

The law is important because it acts as a guideline as to what is accepted in society. Without
it, there would be conflicts between social groups and communities. The law allows for easy
adoption to changes that occur in society. Leading law firms, among them Schmidt and
Clark, provide assistance that helps protect individuals’ rights and liberties, thus ensuring a
more equitable society.

Laws are created because it helps prevent chaos from happening within the business
environment and as well as society.

Classification of law

Civil law vs. criminal law

Civil law is concerned with the law of civil or private rights. Civil law deals with resolving
disputes between one entity and another. The guidelines for these disputes are outlined in

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 official documents like a state’s business and professions code, the health and safety code,
and other governmental rules and regulations. The cause of action in these cases can be
initiated by private as well as public parties.

Criminal law, on the other hand, deals with an individual’s offenses against the state. Thus
criminal law is the law of crimes and their punishments. An offense against the state
essentially means breaking a criminal law established by government.

While both deal with resolving a wrong committed by one party to another, there are several
primary differences between criminal law and civil law, including:

• The conduct at issue

• Punishments

• Burden of proof

• Statutes of limitations

• Who initiates a case

• Appeals process

While this list is not exhaustive, it does cover many of the key divergence points between
civil and criminal law.

Law Examples

Civil law examples Criminal law examples

Custody disputes Homicide

Bankruptcy Conspiracy

Defamation Obstruction of justice

Breach of contract Assault

Property damage Possession of a controlled substance

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 Sources of law

The following are sources of Zimbabwean law:

a. Legislation
b. Precedent / Case law / Court Decisions
c. Customary Law
d. Common Law
e. Authoritative texts

a. The Legislation (Bicameral System)

Legislation refers to the law validly enacted by the legislative authority of Zimbabwe and
assented to by the President of Zimbabwe. The term “legislation” refers to the act of making
laws. “Legis” means law, and “Latum” means making, hence it implies lawmaking.
Legislation is the way of making laws in which the competent authority is responsible for
drafting and enacting laws in a specific state. According to Bentham and John Stuart Mill,
“Legislation comprises both the legislative process and the law that emerges from it.”
However, the term “legislation” refers to a specific form of lawmaking, namely the
declaration of legal regulations in statutory form by a competent authority. It refers to the
state legislature’s act of enacting legislation.

In Zimbabwe the legislative authority of Zimbabwe vests in the President and parliament of
Zimbabwe which is the Primary Legislation. In line with this the constitution says that:

1. The Legislative authority of Zimbabwe shall vest in the Legislative which

shall consist of the President and Parliament.

2. The provisions of subsection (1) shall not be construed as preventing the

legislature from conferring legislative functions on any person or authority.

The power of Parliament to make laws shall be exercised by Bills passed by Parliament and
assented to by the President. The President may within twenty-one days of the presentation
of a Bill, assent to or withhold his assent. The Legislature of Zimbabwe can confer powers on
any authority to create binding laws. Currently the Legislature of Zimbabwe is a bicameral
system consisting of a Lower House (Parliament) and an upper House (Senate). Legislation
brought through parliament has to be scrutinized by the Senate before it goes for assent to the
executive President. Both houses have the power to initiate, prepare, consider, and reject
legislation.

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 The method of passing legislation is entrenched in Section 511 of the Constitution. All
legislation in Zimbabwe is styled Acts of Parliament or Statutes. Other authorities such as the
President, acting unilaterally, and Ministries can pass legislation known as Statutory
Instruments, or Subsidiary Legislation. Subsidiary or Subordinate Legislation consists of the
following:

 Regulations made by a Minister for purposes specified in the Enabling Act of

Parliament.

 Bye-Laws created by specified local authorities such as Urban or Rural Councils,

acting under powers given to them by the relevant Acts of Parliament.

 Proclamations issued by the President for purposes such as dissolving Parliament.

 Rules of the superior Courts to facilitate procedure and their operations.

 Regulations made by the President under the Presidential Powers Temporary

Measures Act.

b. Case Law / Precedent

Case law is law that is based on judicial decisions rather than law based on constitutions,
statutes, or regulations. Case law concerns unique disputes resolved by courts using the
concrete facts of a case. Case law, also used interchangeably with common law, refers to the
collection of precedents and authority set by previous judicial decisions on a particular issue
or topic. In that sense, case law differs from one jurisdiction to another.

Precedent refers to past decisions of the superior courts. Precedents establish the legal
position of cases tried in the courts and establish the reasoning for decisions made by the
judges in each particular case. Conversely, precedents therefore guide the courts in making
future decisions in similar cases brought before them. Zimbabwe relied on precedents of
South African origin or those of any jurisdiction in which English law and Roman-Dutch law
is applied and the precedents of Rhodesia.

The maxim Stare Decisi at non queta movere best sums up the use of case law in
Zimbabwe. The maxim means to stand by old decisions and not disturb settled points.
Supreme Court decisions in Zimbabwe are binding on all interior courts. High court ruling
also binds the lower courts such as the Magistrates courts.

The advantage of Precedents is that they ensure informality and consistency in the
application of the law and they maintain certainty and equality of the law in similar
circumstances.

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 c. Customary Law

The customary law of Zimbabwe is generally unwritten. Customary law refers to the fixed
customs and practices of the tribes of Zimbabwe which were in practice since time
immemorial. The customs must be certain, reasonable and must had attained the recognition
of formal law. For example the criminalization of incest, in the sexual offences Act and the
Criminal Law (Codification and Reform) Act is the recognition of customary law which
prohibits incest or sexual relationship with certain degrees of blood affinity.

The constitution entrenches the recognition of African Customary Law. Section 89 of the
Constitution of Zimbabwe in imposing the law to be administered, sets up African customary
law as part of the law to be administered. Other Legislation, such as the:

Customary Marriages Act

Administration of Deceased Estates Act.

Customary Law and Local Courts Act.

The acts also establish the application of Customary Law in certain respect. The Customary
Law of Zimbabwe is limited in scope in its application. It has no criminal Jurisdiction
whatsoever and it governs some areas of Marriage, Inheritance and Guardianship only.

d. Common Law

Common law of Zimbabwe refers to the unwritten law or non- statutory law. Common law
excludes the African customary Law. The common law of Zimbabwe is primarily the
Roman-Dutch Law as applied at the Cape of Good Hope on the 10th of June 1891 as per the
provisions of Section 89 of the Constitution of Zimbabwe. The Common Law was
transplanted from the Cape and imposed to Zimbabwe. However, the common law at the
Cape in 1891 had been heavily influenced by English Law, hence the common law of
Zimbabwe must be said to be Anglo-Roman-Dutch Law.

A recent development in Zimbabwe ousts the application of Common Law. The recent
Codification of Zimbabwe’s Criminal Law through the Criminal Law (Codification and
Reform) Act jeopardizes the application of Common Criminal law Section 3 of the Act states
unequivocally that Roman-Dutch Criminal Law no longer to apply.

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 Common law, however, does not apply on criminal matters. This is by virtue of section 3 of
the Criminal Law (Codification and Reform) Act, which unequivocally states that Roman–
Dutch criminal law is inapplicable in all criminal matters in Zimbabwe. Like in the case of
the development of customary law, the Constitution bestows power on constitutional,
supreme and high courts to develop common law, taking into account the interests of justice
and the Constitutional provisions.

e. Authoritative Texts

One cannot safely assert that authoritative text from acclaimed legal authors form part of
Zimbabwe’s law. However textbooks on law have persuasive authority upon which reliance
can be had in making judicial decisions. The few authoritative legal authors in Zimbabwe
rely on old Roman Dutch writers. They mainly write commentaries and guides to the law of
Zimbabwe. Professor Geoff Feltoe has several Guides to the Laws of Zimbabwe which are
widely used and referred to in litigation. His comments and assertions form persuasive
grounds upon which cases can be decided.

Theory Assignment 1

Examine any five roles of law in business. Use examples to illustrate your answer (25
marks)

The assignment should be typed using New times roman, font size 12, Line spacing to be
1,5. Consult a minimum of five sources and use Harvard referencing style

Due date 6 April 2022

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