STATUTE LAW QUESTIONS AND ANSWERS

CONSTITUTION OF ZIMBABWE

The President of the Republic of Zimbabwe has signed an agreement with the Republic
of Zambia in terms of which persons committing certain offences can be tried in the
courts of either country.
Describe the steps that must be taken in accordance with the Constitution of Zimbabwe
before the agreement can become law in Zimbabwe [10] NOV 2010

In terms of the Zimbabwe Constitution an international treaty/ convention/ agreement, is

binding on Zimbabwe when it has been approved by Parliament, and does not form part
of the law of Zimbabwe unless it has been incorporated through legislation.
Section 327 (2) of the Constitution provides as follows;
“An international treaty which has been concluded or executed by the President or under
the President’s authority –

(a) does not bind Zimbabwe until it has been approved by Parliament, and
(b) does not form part of the law of Zimbabwe unless it has been incorporated into the
law through an Act of Parliament.”

However an Act of Parliament may dispense with the need for Parliamentary approval or
the domestication of a particular treaty (or any class of treaties) before it can bind
Zimbabwe or can become part of Zimbabwean law. Section 327 (4) provides as follows;

“An Act of Parliament may provide that subsections (2) and (3)1-

(a) do not apply to any particular international treaty or agreement or to any class of such
treaties or agreements, or
(b) apply with modifications in relation to any particular international treaty or agreement
or to any class of such treaties or agreements.”

However the relaxation of the requirement for an international treaty to be approved by

Parliament or to be incorporated into the law of Zimbabwe by means of legislation does
not apply to every international treaty but only to some. Section 327 (5) provides that;

“Parliament may by resolution declare that any particular international treaty or class of
international treaties do not require approval under subsection (2), but such a resolution
does not apply to treaties whose application or operation requires –

(a) the withdrawal or appropriation of funds from the Consolidated Revenue Fund, or
(b) any modification of the law of Zimbabwe.”

1
S 327 (3) : An agreement which is not an international treaty but which- (a) has been concluded or executed
by the President or under the President’s authority with one or more foreign organisations or entities, and (b)
imposes fiscal obligations on Zimbabwe, does not bind Zimbabwe until it has been approved by Parliament.
 Subsection 6 of section 327 imposes a duty on every court or tribunal to adopt any
reasonable interpretation of the legislation that is consistent with any international
convention , treaty or agreement which is binding on Zimbabwe, in preference to an
alternative interpretation inconsistent with that convention, treaty or agreement. It must
be noted however that the publication of an international treaty (for general information)
does not make it binding on Zimbabwe or part of the domestic law. Methods of
incorporating an international treaty include; (a) embodying the provisions of the treaty in
the text of the Act of Parliament, and (b) including the treaty itself as a schedule to the
Act of Parliament.

What are the functions of the Citizenship and Immigration Board which is established
under Chapter II (now Chapter 3) of the Constitution of Zimbabwe? [6] NOVEMBER
2010

- Granting and revoking citizenship by registration.

- Permitting persons other than citizens to reside and work in Zimbabwe,and fixing the
terms and conditions under which they may so reside and work; and
- exercising any other functions that may be conferred or imposed on the Board by or
under an Act of Parliament

The Speaker of the House of Assembly informs you that a Member of the House of
Assembly who was on a visit to Malawi pleaded guilty to and was convicted on charges
of drug trafficking by the Blantyre Magistrates Court. He was sentenced to three
months imprisonment with hard labour. The Speaker is of the opinion that the actions
of the Member have tarnished the image of the Parliament of Zimbabwe and that firm
action should be taken against the Member to express Parliament’s disapproval of his
conduct.

Advise the Speaker. [10] NOV 2010

Section 129 (1) (i) of the Constitution provides that; The seat of a Member of Parliament
becomes vacant, if the Member is convicted – outside Zimbabwe of conduct which, if
committed in Zimbabwe, would be an offence of which breach of trust, dishonesty or
physical violence is an essential element; and sentenced to imprisonment for six months or
more without the option of a fine or without the option of any other non-custodial
punishment, unless on appeal the Member’s conviction is set aside or the sentence of
imprisonment is reduced to less than six months or a punishment other than imprisonment is
substituted.

What is clear from the above provision is that a member of parliament may lose his or her
seat in Parliament if he or she in convicted of an offence within or outside Zimbabwe.
However the elements of the offence must include breach of trust, dishonest or physical
violence, the member must also have been sentenced to imprisonment for a period of or
above six months without the option of a fine or the option of other non-custodial sentence.
In casu, the member of parliament was sentenced to three months imprisonment by a
Blantyre Magistrate Court, in this regard the period of imprisonment does not meet that
required by the Constitution which is six months. The Criminal Code prescribes crimes
involving dangerous drugs. It seems the offence of drug trafficking involves an element of
dishonesty since drugs will be concealed from detection by the authorities. It therefore seems
the conviction and sentence of the member of parliament does not meet the requirements of s
129 (1) (i).
In light of the above the Speaker of Parliament is not empowered to move a motion for the
removal from office of the Member of Parliament, moreso the Priviliges, Immunities and
Powers of Parliament Act does not regulate scenarios such as the present.

Manuel was arrested and placed on remand on charges of rape. A year later the charges
against him were withdrawn. Two years later he was summonsed to appear in the
magistrates court on the same charges. The prosecutor told him that the delay was
caused by the need to complete the trial of an accomplice who is to be used as a witness
in his trial. The initial trial of the accomplice was set aside by the High Court as a result
of which a second trial had to be conducted. The accomplice has since been convicted.
What if any rights does Manuel have? What are the factors which a court would take
into account in deciding whether Manuel’s rights have been violated? [10] NOVEMBER
2010

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Maria, a citizen of Zimbabwe, is married to Jona, a citizen of Angola. Jona is a medical

doctor and has been working at the Harare Hospital for the past six months. Jona’s
work permit will expire next month. He has been informed by the Department of
Immigration that the work permit will not be renewed and that he must leave
Zimbabwe by the end of December. Maria approaches you for advice. She has no
intention of leaving Zimbabwe and wishes to continue to reside in Zimbabwe. She is of
the view that as a citizen of Zimbabwe, she is entitled to live with her husband in
Zimbabwe and that any attempt to forcibly remove her husband from Zimbabwe would
infringe on her freedom of movement as enshrined in the Constitution.

Advise her. [10] NOVEMBER 2011.

The Constitution of Zimbabwe is the supreme law in terms of section 2 of the constitution.
This means that it is binding on every person, natural or juristic, including the State and the
state organs and its obligations must be fulfilled. Chapter 3 ( sections 35-43) of the
Constitution provides for citizenship rights. In terms of section 35 (2) all Zimbabwean
citizens are equally entitled to the rights, privileges and benefits of citizenship and are equally
subject to the duties and obligations of citizenship. In casu it is clear that Maria is a citizen of
Zimbabwe and she is entitled to the benefits that come with being a citizen of Zimbabwe.
One such benefit is freedom of movement as provided by section 66 of the Consitution.
Now the question is whether a Maria’s freedom of movement will be infringed if her
husband an Angolan national is forcibly removed from Zimbabwe.
One has to look at the reported case of Rattigan & Others v Chief Immiigration Officer &
Others 1994 (2) ZLR 54 (S). The facts were that three female applicants who were all
Zimbabwean citizens brought an application to the supreme court for an order declaring that
their rights to freedom of movement as citizens had been breached after the Department of
Immigration had refused to allow their husbands, who were all aliens, permanent residence in
Zimbabwe. And the issue before the court was whether a female citizen of Zimbabwe
married to a man who is an alien, being a citizen of a foreign country, is entitled to the right
to reside permanently with her husband in Zimbabwe.
Gubbay CJ held as follows;
- the proper approach to constitutional construction is one which serves the interests of
the Constitution and, best carries out its objects and promotes its purpose. All
relevant provisions are to be considered as a whole and were rights and freedoms are
conferred on persons, derogations therefrom, as far as language permits, should be
narrowly construed.
- The predicament of each wife has not been caused by the decision of the husband, as
head of the family, to establish the common household in a country other than
Zimbabwean. If that were so then, provided the decision was not unreasonable, the
wife, if she wished the marriage to survive, would be obliged to accept it and leave
Zimbabwe. To the contrary, the husbands share the desire of the wives that the
matrimonial abode be located in Zimbabwe. The impediment is the alien status of the
husbands and the refusal of the immigration authorities to permit them to remain in
Zimbabwe.
- The bond between husband and wife may be equally as strong as that between mother
and child.Marriages are almost invariably entered into by parties who have deep
affection for one another and who intend to devote the remainder of their lives
together. Although the condition of matrimony does not, as a concept of law, make the
spouses one flesh it nonetheless embodies the obligations to found a home, to cohabit,
to have children and to live together as a family unit.
- To prohibit the husbands from residing in Zimbabwe and so disable them from living
with their wives in the country of which they are citizens and to which they owe
allegiance, is in effect to undermine and devalue the protection of freedom of
movement accorded to each of the wives as a member of a family unit.

The court then made the order that the right of the applicants under s22 (1) of the
Constitution of Zimbabwe to freedom of movement, that is to say, the right to move
freely throughout Zimbabwe, the right to reside in any part of Zimbabwe, and the right to
enter and leave Zimbabwe, has been contravened by the decision of the first respondent
not to permit their alien husband to reside with them in Zimbabwe.
The University of Zimbabwe’s disciplinary committee has found Peter, a student at the
university, guilty of disorderly conduct. The committee has ordered that Peter will
receive six strokes with a rattan cane as punishment. The punishment will be
administered by the Dean of Students.

Advise Peter whether the punishment violates his rights as enshrined in the
Constitution. [6] JUNE 2012.

Section 53 provides for the right of freedom from torture or cruel, inhuman or degrading
treatment or punishment and it reads that “No person may be subjected to physical or
psychological torture or to cruel, inhuman or degrading treatment or punishment.”. In light of
this it can be said that if Peter is to receive 6 strokes with a rattan cane this amounts to
moderate whipping and therefore constitutes corporal punishment. On the face of it corporal
punishment is a violation of the freedom from torture. Under the former constitution it was
permissible to derogate from this right is corporal punishment was inflicted on a child under
the age of 18 years by his or her parents and in execution of a judgment of the court on a
person under the age of 18 years. The new constitution however does not mention corporal
punishment. In this case however the corporal punishment is not being carried out in
execution of a judgment or by a parent or guardian on a person under the age of 18 years. In
any event it is most unlikely that Peter is under age of 18 and in the case of S v Ncube 1987
(2) ZLR 246 (SC) it was held that corporal punishment on adults is unsconstitutional.
Moreover corporal punishment violates the right to personal security and section 52 provides
that; “Every person has the right to bodily and psychological integrity, which includes the
right— to freedom from all forms of violence from public or private sources.” In this case the
university is a public source and it is unlawful to infringe Peter’s bodily integrity by
whipping him with a rattan cane. Sv Willian Chokurumba 2015 per Muremba J ( still to
be confirmed by CC)- outlawed the C P and E Act. In conclusion the punishment violates
his rights of freedom from torture or cruel, inhuman or degrading punishment and the right to
personal security.

(a) After a general election, when does the five year life of the Parliament of Zimbabwe
commence?
(b) Distinguish between the prorogation of Parliament by the President and its
dissolution by the President. [5] JUNE 2012

Section 143 of the Constitution provides for the duration and dissolution of parliament and
subsection (1) thereof provides that; “Parliament is elected for a five-year term which runs
from the date on which the President-elect is sworn in and assumes office in terms of section
94(1)(a),and Parliament stands dissolved at midnight on the day before the first polling day
in the next general election called in terms of section 144.”. In light of this provision it can be
said the life of Parliament commences on the date on which the President elect is sworn and
assumes office.
Prorogation of parliament is the end of a parliamentary session while dissolution of
parliament is the end of the life or term of office of Parliament. Prorogation is followed by a
another session, dissolution however is followed by a general election. The president alone
has powers to prorogue parliament, however in some instances the National Assembly and
the Senate may pass resolutions to be dissolved and the President must then dissolve
parliament.

Padai has been in business as a dealer for many years and now wishes to venture into
banking by establishing his own bank. He has been told by the Registrar of Banks that
in terms of the Banking Act [Chapter 24:20], it is only a registered company which can
establish a bank. Padai feels that such a provision which denies him the freedom to
establish a bank discriminates against him as an individual in favour of companies and
accordingly is a violation of section 23 of the Constitution. He wants to institute an
application in the Supreme Court to challenge the constitutionality of the provision.

Advise him on his chances of success. [9] NOV 2012

Section 23 of the former constitution provided for the right of protection from discrimination
on any of the listed grounds, section 56 of the 2013 Constitution however provides for the
right to equality and non discrimination. The listed grounds of non discrimination are as
follows; nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class,
religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age,
pregnancy, disability or economic or social status, or whether they were born in or out of
wedlock. It is trite that Padai is a natural person and companies are juristic persons. On the
face of it discriminating between a natural and juristic person is not a listed ground for non
discrimination. Hence the discrimination is not automatically unfair since it is not
discrimination on any of the listed grounds.
In terms of section 86 (2) the fundamental rights and freedoms set out in the Declaration of
Rights may be limited only in terms of a law of general application and to the extent that the
limitation is fair, reasonable, necessary and justifiable in a democratic society based on
openness, justice, human dignity, equality and freedom, taking into account all relevant
factors including; the nature of the right and freedom concerned, the purpose of the
limitation, the nature and extent of the limitation. The Banking Act is a law of general
application in that it applies to everyone ie natural or juristic person, who wants to establish a
bank. The discrimination is fair, reasonable, necessary and justifiable because there are
fundamental differences between a natural and a juristic person, a company has a separate
legal personality from its members and it has perpetual succession. Padai on the other hand as
a natural person will die and that will be the end of it. Moreover registered companies are
preferred because they have the are regulated by the Companies Act and they are more likely
to safeguard the interests of clients than natural persons. Therefore the purpose of the
limitation of the right against non discrimination is it is in the public interest to have
registered companies as banks. The nature and extent of the limitation does not make it
absolutely impossible for Padai to operate the business of a bank. He with the association of
others may incorporate a company and then register as a bank. In the circumstances Padai’s
chances of success in the Supreme court are slim.

Advise, Bamba who is a Senator whether in terms of the Constitution he is eligible for
appointment as :
(a) a member of the Zimbabwe Electoral Commission,
(b) an employee of a statutory body,
(c) a member of the Parliamentary Legal Committee [9] NOVEMBER 2012

Bamba is not eligible for appointment as a member of the Zimbabwe Electoral Commission
because section 320 (3) provides that “Subject to this Constitution, Members of Parliament
and members of provincial or metropolitan councils, local authorities and government-
controlled entities are not eligible to be appointed as members of a Commission.”

Bamba is eligible for appointment as an employee of a statutory body, however upon such
appointment his seat becomes vacant. Section 129 (1) (g) provides that; “the seat of the
member of parliament becomes vacant - if the Member accepts public office or office as a
member of a statutory body, government-controlled entity, provincial or metropolitan council
or local authority or employment as an employee of a statutory body, provincial or
metropolitan council or local authority.”

Bamba is eligible for appointment as a member of the Parliamentary Legal Committee. In

terms of section 152 he is eligible whether he is or is not a registered legal practitioner.

(a) To what extent is the exercise by the President of his functions justiciable in terms of
the Constitution?
(b) When a Bill is presented to the President for assent, within what period is he
required to assent or withhold his assent? [6] NOVEMBER 2012

Justiciable means capable of being decided by a court, in the instance the issue is the extent
to which the courts can interfere when the President is exercising his functions. Ito s 104 the
president has powers to appoint ministers and their deputies. Section 110 lists the executive
functions of the president. In terms of s 111 he has powers to declare war and make peace,
ito of s112 he has the power of mercy, ito s113 he has power to declare a state of public
emergence.
It may therefore be said that to a limited extent the exercise of the President functions is
justiciable. He may refer a Bill to the Con Court for a declaration on its validity and the Con
Court may hear an application for the validity of a declaration of the state of public
emergency by the President. However in the exercise of his functions the President as head of
state acts on his own will and in some cases after consulting the cabinet and in some
instances he requires parliamentary approval. Thus the judiciary is involved to a limited
extent.
The President is required to assent or withhold his assent within a period of 21 days, see
section 131.

The Speaker of Parliament seeks your advice. A Bill which originated in and was passed
by the House of Assembly has been rejected by the Senate. The Members of the House
of Assembly want to know whether the Bill can nevertheless be promulgated into law.
Advise the Speaker. [10] NOVEMBER 2012

Generally before a bill is passed into law it has to be passed by both houses of parliament
however in some instances disagreements may arise between the two houses. Primacy is
given to the National Assembly in cases of disagreement between the two houses of
parliament. The 5th Schedule to the Constitution provides for the procedure to be adopted if
there is disagreement between the two houses of parliament. Paragraph 6 (1) (c) provides
that if a Bill which originated in the National Assembly has been rejected or has not been
passed by the Senate within ninety days after the Bill was introduced into the Senate; the Bill
may be presented to the President for assent and signature in the form in which the Bill was
passed by the National Assembly. However a Bill cannot be presented to the president for
assent and signature unless after the 90- day period has expired and the National Assembly
has resolved that the Bill should be presented to the President for assent. The Bill must be
accompanied by a certificate from the Speaker of Parliament and the certificate must state
that the bill was passed in accordance with paragraph 6 and the requirements thereof were
satisfied. A bill that is passed ito paragraph 6 is deemed to have been duly passed by
Parliament in the form in which it is presented to the President. It must be emphasised
however that the procedure outlined above does not apply to money bills or constitutional
bills. It would advise the Speaker to follow the procedure outlined above provided the bill
which was rejected by the Senate is not a money bill or a constitutional bill.

Jairosi is 25 years old and is the local chairman of the Peoples Political Party. Last
week, the Harare Magistrates Court convicted Jairosi on a charge of theft and
sentenced him to imprisonment for a period of five months. Jairosi does not intend to
appeal against conviction or sentence and is serving his sentence at Chikurubi
Maximum Prison. Jairosi has been selected by his party to stand as a candidate for the
Senatorial election which is due to take place in four week’s time.

Advise Jairosi whether he can stand for election in terms of the Constitution. [10] June
2013

The Constitution provides for qualifications and disqualifications for election as Senator. In
terms of section 121 (1) a person is qualified for election for senator if he or she is a
registered voter and is at least forty years of age. In casu it seems that Jairosi is a registered
voter, however he does not meet the age requirement since he is only 25 years old.
The fact that Jairosi is serving his term of imprisonment does not work against him at this
point in time since he is not a member of the Senate yet. Had he been a member of the Senate
his conviction and sentence might probably cause him to lose his seat as a member of Senate.
My advise to Jairosi is that he cannot stand for election as a Senator in terms of the
Constitution since he is only 25 years old and the law requires a person who is at least 40
years old to stand for election as a Senator. Therefore Jairosi does not qualify for election as a
senator.

Explain giving examples and clearly distinguishing each from the other how, in terms of
the Constitution, one is or becomes a citizen of Zimbabwe—
(a) by birth,
(b) by descent,
(c) by registration [12] June 2013

Section 36 provides for citizenship by birth. In terms of the section one is or becomes a
citizen of Zimbabwe by birth if they were born in Zimbabwe and when they were born either
their mother or their father was a Zimbabwean citizen or any of their grandparents was a
Zimbabwean citizen by birth or descent. Persons born outside Zimbabwe are also
Zimbabwean citizens by birth if when they were born either of their parents was a
Zimbabwean citizen and ordinarily resident in Zimbabwe or working outside Zimbabwe for
the state or an international organisation. Unlike registration by descent one is a citizen by
birth whether he or she was born in or outside Zimbabwe, citizenship by descent only applies
to persons born outside Zimbabwe.

However a person is or becomes a citizen of Zimbabwe by descent in terms of section 37 if

when they were born outside Zimbabwe either of their parents or any of their grandparents
was a Zimbabwean citizen by birth or descent or either of their parents was a Zimbabwean
citizen by registration. The additional requirement is that the birth must be registered in
accordance with the law relating to the registration of births.

Section 38 provides for citizenship by registration. There are three instances in which one
becomes a citizen of Zimbabwe by registration. One becomes a citizen by registartion if he or
she has been married to a Zimbabwean citizen for at least 5 years and one may also become a
citizen by registration if he or she has been continuously and lawfully resident in Zimbabwe
for at least 10 years. In any of these two instances one becomes a citizen by registration
provided the satisfy the conditions prescribed by an act of Parliament upon application to be
registered as a citizen of Zimbabwe. The third instance in which one becomes a citizen by
registration is when a child who is not a Zimbabwean citizen has been adopted by a
Zimabwean citizen and an application has been made to be registered as a Zimbabwean
citizen. Thus it can be said that citizenship by registration is dependent on application while
citizenship by birth and citizenship by descent are based on blood relations.
Section 326(1) of the Constitution states that “customary international law is part of
the law of Zimbabwe, unless it is inconsistent with this Constitution and the laws of
Zimbabwe”.
Explain the meaning of the term “customary international law”. [12] JUNE 2014

A custom may be referred to as a practice which has been Observed and accepted by states as
part of International Law. Art. 38 of the Statute of the International Court of Justice refers
custom as Evidence of a general practice accepted as law. Customary law can only develop
when general practice accepted as law is present

Usually customary rules are codified and replaced by statute

In International Law customary rules are a very important source of Internationa Law
Unlike in consenting to a treaty, a state’s consent to a customary rule is inferred from its
conduct
May be regarded as the common law of the international community. There are two main
requirements of ascertaining the existence of a customary rule in IL ;
(a) Usus - settled practice and [inferred from conduct ie support for a cause; there
must be constant and uniform usage;
(b) Opinio juris sive necessitas - the acceptance of an obligation to be bound
Usus or Settled practice may be ascertained from;
- Treaties, decisions of national and international courts, national legislation, diplomatic
correspondence, policy statements, national advisor’s opinions, draft reports of the IL
Commission, UN Resolutions

It is the law which is applied when the parties have not arranged matters in a treaty or when
the treaty provisions are not universally acceptable.
A customary rule can eventually be embodied in a treaty and the practice of states under a
treaty can develop into a customary rule.
In the case of Nicaragua v USA (1986) it was held that The fact that a treaty has been
adopted that covers the same ground as a customary rule does not mean that the custom has
ceased to exist, the two can exist concurrently.

Advice the following three persons who were each sentenced to death by the High
Court before the new Constitution came into force whether the sentences are likely to be
carried out:
(a) John, a male who is twenty-two years old;
(b) Mary, a woman who is thirty years old;
(c) Gurai, a male who is seventy-two years old. [12] JUNE 2014

With regard to John the death sentence is likely to be carried out because in terms of the new
constitution it is permissible to impose it one someone over the age of 21 and under the age
of 70 years. Thus john falls under the age range on which the death sentence may be carried
out since he is 22. See section 48 (1) (c)
With regard to Mary the death sentence is not likely to be carried out.In terms of section 48
(1) (d) the death penalty must not be imposed or carried out on a woman and she Mary is
female it is not permissible to carry out the sentence on her.

With regard to Gurai the death sentence is not likely to be carried out. In terms of section 48
(1) (c) (ii) the death sentence may not be imposed on a person over the age of 70. Gurai is 72
years old therefore he is a person over 70 years and is likely to benefit from the constitutional
provision against imposition of the penalty on the elderly.

Discuss how and to what extent the Transitional Provisions and Savings in the Sixth
Schedule to the Constitution of Zimbabwe have made changes to the substantive
provisions of the Constitution on—
(a) the composition of the Constitutional Court;
(b) the election of Vice-Presidents and their removal from office;
(c) the registration of voters. [12] NOVEMBER 2014

(a) Section 166 provides for the composition of the Con Court and in terms of the
provision the Court consists of seven judges, namely the CJ and the DCJ and five
other judges of the Con Court. Paragraph 3 (1) of the 6th Schedule provides that
Chapter 8 of the Constitution which provides for the powers and jurisdiction of the
Con Court came into operation on the publication day. Paragraph 18 (2) of the 6th
Schedule provides that notwithstanding section 166, for seven years after the
publication date the Constitutional Court consists of the CJ and the DCJ and seven
other judges of the Supreme Court who must to hear any constitutional case. Thus it
can be noted that the CC will for the first seven years consist of 9 Supreme Court
judges while at the expiration of the seven years it will consist of 7 Con Court Judges.
That to a greater extent the Transitional Provisions have made changes to the
composition of the Con Court, both in terms of the make up of the Court and the
number of judges.

(b) Section 92 of the Con provides for the election of Vice Presidents, and their election
must take place jointly with that of the President and concurrently with the general
elections for Members of Parliament, provincial councils and local authorities.
However paragraph 14 (1) of the 6th Schedule provides that in the 1st election and
in any Presidential election within the 1st election, candidates for election as President
do not nominate any person in terms of section 92 to stand for election as Vice
Presidents. And in terms of paragraph 14 (2) the person nominated as President
(within the 1st 10 years) must appoint without delay two Vice Presidents who serve at
his pleasure. Thus the Con Provision on the election of VPs is suspended for the 1st
ten years after the 1st election and to a greater extent the transitional provisions have a
greater extent made changes to the substantive provisions of the Constitution.

Section 97 provides for the removal of the Vice Presidents from office and they made
be removed after the Senate and the National Assembly have made a joint resolution
 passed by at least half of their total membership. The VPs can be removed by
Parliament on any of the four grounds. However paragraph 14 of the 6th Schedule
provides that for the 1st ten years after the 1st general elections Vice Presidents are not
elected jointly with the President by rather are nominated by the President at his
pleasure, thus they can me removed by the President at any time without the
involvement of Parliament. Thus to a greater extent the transitional provisions have to
a greater extent made changes to the substantive provisions on the removal of Vice
Presidents.

(c) Chapter 7 of the Con makes provision for the conduct of elections and section 155
(2) provides that the State must ensure that all eligible citizens, that is to say citizens
qualified, under the 4th Schedule, are registered registered as voters. And the 4th
Schedule provides that a person is qualified to be registered as a voter on a voters roll
of a constituency if he or she is of or over the age of 18 years and is a Zimbabwean
citizen.Paragraph 6 of the 6th Schedule provides for the registration of voters. It
made changes to a lesser extent to the substantive provisions on the registration of
voters since it says that all those who were lawfully registered voters before the
publication date will be eligible to vote in the 1st elections.

(a) Name the three tiers of government. [3]

(b) Distinguish between the Coat of Arms and the Public Seal. [3]
(c) What are the qualifications for elections as a member of the National Assembly ? [3]
(d) When must a general election be held ? [3] NOVEMBER 2015

The three tiers of the government of Zimbabwe are provided for in section 5 of the
Constitution, namely; the national government; the provincial and metropolitan
councils and; local authorities.

A coat of arms is a unique heraldic design on a shield, and it consists of the shield
supporters, crest and motto. In the case of Zimbabwe the two kudus support the green
shield and the national moto is unity, freedom and work. The Public Seal on the other
hand is a seal that is fixed to a document that is issued by the government to show that
the document is validly executed.

Section 125 of the Con provide for the qualifications for elections as a member of the
National Assembly namely; one must be a registered voter and one must at least be 21
years of age.

In terms of section 144 a general election takes place where;

- Parliament has passed resolutions to dissolve in terms of section 143(2);
- the President has dissolved Parliament in terms of section 143(3);
- the President has dissolved Parliament following a vote of no confidence in terms of
section 109(4); or
- Parliament stands dissolved following a vote of no confidence in terms of section
109(5);

the President must by proclamation call and set dates for a general election to be held
not more than ninety days after Parliament passed the resolutions or the President
dissolved Parliament or Parliament stood dissolved, as the case may be
INTERPRETATION ACT

Can the speech made to Parliament by a Minister be used to interpret a provision in a

statute? [5] NOVEMBER 2010

Yes, it is permissible to use as an aid to interpret a provision in a statute, the speech made to
Parliament by a Minister on the occasion of the moving by that Minister of a motion that the
Bill containing the provision be read a second time ... as recorded in the Votes and
Proceedings of Parliament or in any official record of debates in Parliament (s 15B(2)(f) of
the Interpretation Act).

Distinguish between:
(a) a statutory instrument and a notice in the Gazette;
(b) headings and marginal notes [8] NOVEMBER 2011

A statutory instrument is any proclamation, rule, regulation, by-law, order, notice or other
instrument having the force of law, made by the President or any other person or body under
any enactment, while a notice in the Gazette is the official publication of the Government in
which it informs the public of various legal instruments. A statutory instrument must be
published in the Gazette before it comes into operation ito section 20 of the Interpretation
Act, however a notice in the Gazette can provide for any legal instrument and is not confined
to statutory instruments.

A heading is a title at the head of a page or section of the book (or enactment) for example
the arrangement of sections into Parts while marginal notes or side notes are notes inserted a
the margin of an enactment embodying either some detail that was omitted in transcribing or
some change or amendment.

Where an enactment authorises a document to be served without directing it to be

served in a particular manner, how would service of a document “on the lessee or
occupier of house number 5, Mvuma” be effected? [4] NOVEMBER 2011

In terms of section 40 (2) of the Interpretation Act, where an enactment authorizes or requires
a document to be served on any person without directing it to be served in a particular
manner, the service of that document may be effected —
(a) by personal service; or
(b) by post in accordance with subsection (1); or
(c) by leaving it for him with some person apparently over the age of sixteen years at house
number 5 Mvuma
(d) in the case of a corporate body, or an association of persons whether incorporated or not,
by delivering it to a director, the secretary or clerk of the body or association at the
 registered or principal office of the body or association, or serving it by post on such
director, secretary or clerk at such office; or
(e) if it is not practicable, after reasonable inquiry, to discover the name or address of an
owner, lessee or occupier of premises on whom the document should be served, by
addressing the document to him by the description of owner or lessee or occupier of the
premises (naming them) to which the document refers and by delivering it to some
person on the premises or, if there is no person on the premises to whom it can be
delivered, by affixing it, or a copy of it, to some conspicuous part of the premises.

Modecai wishes to institute action in the magistrates court but has been told by the
clerk of court that she must give an address for service which is not more than fifteen
kilometres from the court. Modecai thinks that her house in Chitungwiza is within the
required distance but is not certain which road she is required to use in calculating the
distance.
Advise her. [4] JUNE 2012

Nyasha wishes to institute action in the magistrates court but has been told by the
clerk of court that she must give an address for service which is not more than fifteen
kilometres from the court. Nyashai thinks that her house in Budiriro is within the
required distance but is not certain which road she is required to use in calculating the
distance.
Advise her. [6] JUNE 2014

In terms of section 34 of the Interpretation Act when measuring any distance, the distance
shall be measured in a straight line on a horizontal plane. I would advise Modecai not to
worry about which road to use but to simply measure the distance from the magistrate
court to her house in a straight line and on a horizontal plane.

When does—
(a) a statutory instrument published in the Government Gazette on Friday, 2 November
2012, come into operation?
(b) an Act published in the Government Gazette on Friday, 2 November 2012, come into
operation? [6] NOVEMBER 2012

A statutory instrument published in the GG on Friday 2 November 2012 comes into

operation on the date on its publication ie Friday 2 November 2012 unless some other
date is fixed by or under the statutory instrument . See section 20 (1) of the
Interpretation Act
In terms of section 132 of the Con an Act of Parliament comes into operation at the
beginning of the day on which it is published in the Gazette, or at the beginning of any other
day that may be specified in the Act or some other enactment. Thus generally the Act came
into operation on the date of its publication ie Friday 2 November 2012.

The Interpretation Act [Chapter 1:01] defines “customary law” as “the customary law
of the people of Zimbabwe, or of any section or community of such people, before the
10th June, 189l, as modified and developed since that date.

Discuss your understanding of the definition. [10] NOVEMBER 2014

Customary law can be regarded as a set of norms and rules which the actors in a social
situation derive from practice and which they invest with binding authority. Section 192 of
the Constitution of Zimbabwe, 2013 says that the law to be administered by the courts of
Zimbabwe is the law that was in force on the effective date (3 August 2013) as subsequently
modified. The law that was in force is African customary law, and the common law as
modified by legislation. Thus the Constitution establishes a dual legal system recognizing
general law and also African customary law. Customary law is applicable though subject to
other legislative provisions. One interesting Act of Parliament being the Customary and
Local Courts Act (Chapter 7: 05) which regulates other aspects of African Customary law
as a source of law in Zimbabwe.

Whether or not customary law applies in a particular case is governed by the provisions of
legislation. Customary law applies under two circumstances: namely where the provisions of
a relevant statute say so and, in the absence of a relevant statute, by applying the ‘choice of
law formula’ (s.3) which includes considerations like the lifestyle of the parties.

Customary law applies in civil matters only. It does not apply in criminal matters. In S v
Matyenyika & Anor (1996) the High Court dealt with a case involving the crime of incest. It
set aside the conviction of the two cousins who, according to law, were prohibited from
having sexual relations. There was no similar prohibition under the general law. The
magistrates’ court had convicted them on the basis of the prohibitions of customary law. The
High Court set aside the conviction on the basis that customary law did not apply in criminal
matters.

Customary law also applies where the parties agree that it should. The agreement must be
genuine and must be either express or implied, that is, with regard to the nature of the case
and the surrounding circumstances, it is reasonable to assume that the parties are in
agreement. Where there is no agreement, the courts may impose the application of customary
law, but only on the basis that it is ‘just and proper’. In deciding this, the law requires the
court to consider the ‘surrounding circumstances’. These include the mode of life of the
parties, the subject matter of the case, the parties’ knowledge of customary law and/or
general law and the closeness of the case to general law or customary law. In Lopez v
Nxumalo (1985) the court found it ‘just and proper’ to apply customary law. Here the
appellant was a white Portuguese man and the respondent was a black Zimbabwean woman.
The appellant had allegedly seduced the respondent’s daughter and the respondent wished to
sue him for seduction damages under customary law. The appellant contended that he knew
no African customary law. He thus sought to have the matter dealt with under general law
and not customary law, arguing that the community court had no jurisdiction to hear the
matter. The community court rejected his arguments and held that customary law applied and
therefore that it had jurisdiction. The appellant then unsuccessfully appealed to the Supreme
Court. The Supreme Court noted that the fact that the appellant had no knowledge of African
custom and customary law was merely one of the factors taken into account. That factor had
been weighed against the fact that the respondent did not understand general law and that she
and her daughter had lived a life guided by customary law.

The choice of law formula applies ‘unless the justice of the case otherwise requires’, meaning
where the choice of law yields the application of customary law, but it has been established
that the content of customary law would attain an unjust resolution of the matter, general law
not customary law must be applied, as was stated in Matibiri v Kumire (2000). In
Chapeyama v Matende & Anor (2000) the court in distributing matrimonial property in a
divorce situation refused to apply customary law. Injustice would have been occasioned to
the wife as under customary law she was entitled to a very limited share even if she had
contributed to the acquisition of other property. The court then applied general law in order to
do justice in distributing the property.

There has been a problematic interplay between customary law and general law in
Zimbabwe. In Katekwe v Muchabaiwa (1984), the Supreme Court held that the father of an
African female whose daughter had reached the age of 18 years no longer had a right to sue
for seduction damages under customary law in respect of that daughter. On the basis that
statute law had changed the status of women even under customary law, it was argued before,
and accepted by, the court that the reason why women could not sue on their own under
customary law was because they were regarded as perpetual minors.

Since 1984 the statute law gave them majority status on reaching 18 years and therefore
bestowed on them rights they could not enjoy under customary law.
In present day Zimbabwe, the first enactment to refer to the application of customary law was
the Royal Charter of 1890 which was enacted at the time of the conquest. This enactment,
after empowering the British South Africa Company to govern Southern Rhodesia, imposed
on the company the duty of appointing judicial officers and establishing such courts as were
necessary for the administration of justice.

Throughout Zimbabwe’s 90 years of colonial history, customary law was largely applicable
in civil cases involving Africans unless the justice of the case otherwise required. It was
particularly applicable to any matter relating to seduction, adultery, lobola (bride price),
custody of children and devolution otherwise than by will of movable property, rights in land
not held under individual registered title and a marriage contracted under customary law. In
all these cases, in order to be applicable customary law had to pass the test of not being
repugnant to natural justice or morality or to the provisions of any statute law.
However, the court was not obliged to apply customary law if such application was contrary
to the demands of the justice of the case. Colonial policy towards customary law clearly
perceived this law as a secondary system of law for whose administration it was necessary to
establish a separate system of courts: the chief courts and the district commissioner’s
courts. The general law on the other hand was administered by the magistrates’ courts and the
High Court. This dual system of courts was accompanied by a dual system norms and laws in
civil matters, particularly in the field of family law.

Thus, in general terms, civil disputes between Africans were to be governed by customary
law unless the justice of the case required otherwise or unless the applicable customary law
was contrary to natural justice, good conscience or morality or unless an applicable statute
was in existence. On the other hand, disputes between non-Africans were resolved by the
application of Roman–Dutch common law and/or statute law.

The dual system of laws and norms prevailing in the country during the colonial period was
preserved by Zimbabwe’s Independence Constitution (s.89) and presently by section 192.
Under a system, the primary courts (village and community courts) have jurisdiction only to
apply customary law. Finally in our jurisdiction, the case of Van Breda and Others v
Jacobs and Others (1921) lays down the requirements in order for custom to be recognised
as a binding rule of law:
(1) The custom must be reasonable
(2) The custom must have existed for a long time
(3) The custom must be generally recognised and observed by the community
(4) The content of the customary rule must not contradict any existing statute law

Explain whether any of the following form part of an enactment-

(a) Punctuation in an enactment, [3]
(b) Marginal notes in an enactment, [3]
(c) Explanatory references inserted therein as part of revision of the enactment. [3]
NOVEMBER 2015

In terms of section 6 of the Interpretation Act any punctuation in any enactment shall form
part of an enactment. Thus punctuation in an enactment form part of an enactment and may
be used as aid in the construction/ interpretation of the enactment.

Marginal notes in an enactment do not form part of an enactment as provided by section 7 of

the Interpretation Act. Marginal notes are deemed to have been inserted for convenience of
reference only.

Explanatory references inserted therein as part of revision of the enactment do not form part
of an enactment, they are deemed to have been inserted for convenience of reference only.
THE GUARDIANSHIP OF MINORS ACT

After Mr Abel had instituted an action for divorce against his wife, he applied for and
was granted sole custody of the couple’s minor child. The wife was granted the right of
access to the child in terms of which Mr Abel was to deliver the child to the wife’s place
of work every Friday afternoon. Mrs Abel is unhappy that Mr Abel has failed to honour
his obligations. All her efforts to secure access to the minor child have failed. Mr Abel
insists that his wife is a bad influence on the child and that he will oppose to the highest
court whatever action she may bring to enforce her right of access.

Advise Mrs Abel on the steps that must be taken to enforce her right of access to the
minor child. [10] NOVEMBER 2010

Mrs Abel must make an application to the clerk of the children’s court (s 6 (2)). The clerk
would, subject to the directions of the presiding officer of the children’s court, issue
summons to Mr Abel to appear before the children’s court. The children’s court would then
investigate the matter on the day specified in the summons and Mr Abel would be required to
show cause why the court should not fine him (if the court is satisfied that Mr Abel acted
without reasonable excuse in refusing or failing to allow Mrs Abel access to the child) (s
6(4)(a). In addition, if the court sees fit to do so, it could also vary or rescind the access order
(s 6(4)(c)(i))
///////////////////////////////////////

Paul’s neighbours, Mr and Mrs Mikoba contracted cholera and died within hours of
each other leaving their only child, four year old Paida, without a relative to look after
him. Paul wishes to adopt Paida.
Advise him on what steps he must take in order to adopt the child. [6] NOVEMBER 2011

Any fit and proper person may be appointed as guardian of the child who has no natural
guardians or tutor testamentary, as in casu (s 9(1)).
The application should be made to the children’s court by Paul since he has the custody and
care of Paida and the application should be lodged with the clerk of the children’s court(s
9(2)).
The following steps would follow after lodging of the application:
The clerk of the children’s court would publish in the Gazette and in a newspaper circulating
in the area where the minor resides, notices calling on all persons with an interest in the
matter to appear before the children’s court on a specified date (s 9(3)). The notice would
also specify if there is any proposed guardian, giving the name. A hearing would then follow
on the specified date, where the children’s court would appoint a fit and proper person to be
guardian (s 9(4)). The decision would be reviewed by a judge of the High Court who would
confirm or vary the decision.

What are the rights of a parent who has been granted sole guardianship of a minor
child? [5] NOVEMBER 2011
What are the rights of a parent who has been granted sole guardianship of a minor
child? [5] JUNE 2014

The rights are provided by section 4 of the Act and they are as follows;
(a) the power to consent to a marriage, or
(b) sole custody of the minor,
(c) or order that on the predecease of the parent named in the order, a person other than
the survivor shall be the guardian of the minor, to the exclusion of the survivor or
otherwise
(d) a parent to whom the sole guardianship or custody of a minor has been granted under
subsection (1)may, by testamentary disposition, appoint any person to be the sole
guardian or to be vested with the sole custody of the minor, as the case may be
THE MAINTENANCE ACT

Mr Mogo who is employed as a teacher, was ordered by the maintenance court to make
monthly payments of $100 to his wife as maintenance for their minor children. Despite
repeated reminders from his wife, Mr Mogo has refused to make any payments. Mrs
Mogo reported the matter to the police leading to Mr Mogo’s arrest. Mr Mogo was
subsequently convicted by the Magistrates Court on a charge of failing to comply with a
maintenance order and sentenced to ten days imprisonment. He has served his sentence
but still refuses to pay.

Advice Mrs Mogo whether fresh criminal proceedings can be instituted against Mr
Mogo.[5] NOVEMBER 2011.

Part 3 of the Maintenance Act provides for the enforcement of the maintenance orders. Yes
indeed fresh criminal proceedings may be instituted against Mr Mogo. Section 23 of the Act
makes it a criminal offence to fail to comply with a maintenance order. In terms of s 23 (3) a
person who has been convicted of an offence and within two months after his release from
imprisonment to make payments in terms of the maintenance order shall be liable to be
prosecuted again and his previous conviction shall not be a bar to his conviction on a later
charge. In casu the defence of lack of means cannot avail Mr Mogo since he is employed as a
teacher.

When would an order for the periodic payment of maintenance cease:

(a) in respect of a spouse,
(b) in respect of a child [6] JUNE 2012

With regard to a child a maintenance order ceases when;

(a) the child dies or is adopted by another person; or

(b) in respect of the marriage between his parents, an order of divorce or judicial
separation or decree of nullity is made which includes an order for the maintenance of
the child; or
(c) the child marries
(d) subject to section 11 (2), the child attains the age of 18 years.

With respect to a spouse payment of maintenance cease when;

(a) the wife dies or remarries; or

(b) an order of divorce or decree of nullity is made in respect of the marriage; or

(c) an order of judicial separation is made which includes an order for the maintenance of the
wife
* See section 11 of the Maintenance Act which provides for termination of maintenance
orders

Subsection (3) of section 6 of the Maintenance Act [Chapter 5:09] states that—
“(3) For the purpose of determining whether or not a person who is subject to
customary law is legally liable to maintain another person, a maintenance court shall
regard—
(a) husbands and wives at customary law as primarily responsible for each
other’s maintenance;
(b) the parents of a child as being primarily and jointly responsible for the
maintenance of that child until the child attains the age of majority or
becomes self-supporting.”

Discuss why it was necessary for the legislature to enact this provision and what the
legal position would have been in its absence. [10] JUNE 2014

Therefore the parents under customary law are primarily responsible for looking after the
children .Parents have a duty to look after their children both under customary and general
law. Each parent must contribute according to their means. Duty begins as soon as child is
born or adopted. Parents of a child born out of wedlock have a duty to maintain the child each
contribution being determined by the means of the parties so even though we say a child born
out of wedlock has no father, the biological father once paternity is established is legally
liable to maintain the child. On the other hand, under traditional customary law the father of a
child born out of wedlock had no responsibility to maintain his child unless he obtained
custody. We have already discussed the ways in which the father can get custody. Colonial
courts took view that such a father was not a responsible person for purposes of the
Maintenance Act./////////////////////////////////////////
THE MARRIED PERSONS PROPERTIES ACT

Sikulu and Dori have decided to get married but are uncertain whether their marriage
should be in or out of community of property.
Advise them the differences between the two marriages [10] JUNE 2012

Marriage out of community of property

• Arises automatically when the spouses are non Africans and there is no ante nuptial
contract.
• Seems that now because of the repealing of section 13 of the Customary marriages
Act, this now applies also to Africans married under general law as far as movable
property is concerned.
• Each spouse retains his /her property that they brought into the marriage and the
property they each acquired during the marriage.
• Wife is not under the control of her husband. She can enter into contracts, sell her
own property , enter into partnerships and go to court without her husband's help.
• At dissolution of marriage by death or divorce, each spouse retains his or her own
property and court has no power to interfere and alter or adjust the property rights of
spouse using the fairness or equity and justice principle.
• A imprudent spouse is prevented from ruining his/her spouse because there is no
community of debts. In reality however most spouses merge their property and
allocate each other responsibilities in running the household. One spouse may be
allocated the responsibility of buying durable good for example so that it becomes a
legal fiction at the end of the day for each to walk away with what they brought into
the marriage.
• Some wives stay at home and take care of the family. This role is then considered
unimportant in the out of community realm because their domestic contribution is not
taken into account. There is therefore no equity there

Marriage in community of property

• Movable and immovable property ,present and future including debts held jointly and
spouses hold equal shares regardless of their contributions.
• Joint estate falls automatically under administration of husband - has power to
encumber, alienate or deal with property as he sees fit.
• Husband can donate, sell or destroy estate and is not liable in damages to his wife for
any maladministration
• At dissolution by death or divorce, community comes to an end and one half each
goes to the spouse in the event divorce and half goes to the heirs of a deceased spouse.
BUT NOW COURTS CAN DO SO IN TERMS OF THE MATRIMONIAL
CAUSES ACT THAT PROVIDES AN EQUITABLE RE-ALLOCATION OF
COMMUNITY ASSETS AT THE TIME OF DIVORCE. Marital power highly
prejudicial to women See : Chiromo vs Katsidzira 1981 ZLR 418.
Section 2 of the Married Persons Property Act [Chapter 5:11] provides that “community
of property and of profit and loss and the marital power shall not attach to any
marriage solemnised between spouses whose matrimonial domicile is in Zimbabwe,
entered into after 1st January 1929 …”.
What is the meaning of—
(a) community of property and of profit and loss,
(b) marital power,
(c) matrimonial domicile. [9]NOVEMBER 2012

community of property and of profit and loss

This is a marriage regime in there is a universal joint ownership of all the spouses’ present
and future assets. Under community of property the wife falls under the marital power of the
husband, who is the administrator of the joint estate and has power to encumber and alienate
the assets. The effect is that if one spouse is insolvent then the joint estate will be insolvent
and if one spouse is liable for debts then the assets of the joint estate will be attached to
satisfy the debt.

marital power

This relates to the authority or power of a husband over his wife at common law, under which
she was a minor. The power included the husband’s power to administer the assets of the
joint estate. What these means is that a wife cannot institute or defend legal proceedings or
enter into a contract, leave a will or enter into a contract without the husband’s authority.

matrimonial domicile

This the place that is regarded by the parties to a marriage as their

home.//////////////////////////////////////////////
THE COMPANIES ACT

A, B, C Co. Ltd is facing serious viability challenges. The Directors of the company are
not certain whether they should apply to the High Court for the winding-up of the
company or for an order to have the company placed under judicial management.
Explain fully to the Directors the two options to enable them to make an informed
choice. [9] NOVEMBER 2010

A, B, C Co. Ltd is facing serious viability challenges. The Directors of the company
are not certain whether they should apply to the High Court for the winding-up of the
company or for an order to have the company placed under judicial management.
Explain fully to the Directors the two options to enable them to make an informed
choice. [9] JUNE 2014

JUDICIAL MANAGEMENT

Judicial Management is the management of a company by a person appointed by the Master

of the High Court in terms of the provisions of the Companies Act ss 299- 314, subject to the
supervision of the High Court. The object of a judicial management order is to avoid the
drastic remedy of winding up when a company is in financial difficulties due to
mismanagement or some other cause, but there is a reasonable probability that under more
careful controlled management it will surmount its difficulties. Section 300 of the
Companies Act. The has a discretion whether or not to grant an application for judicial
management, it may grant the application if it appears just and equitable to do so.

The company itself, a creditor, a member (shareholder) or certain officials may apply to the
High Court for a provisional order placing a company under judicial management.
The High Court may also grant a provisional judicial management order on an application
being made to it for a winding up order. Section 299 of the Companies Act

The effect of a judicial management order is that persons vested in the management of the
company’s affairs hall from the date of the judicial management order be divested thereof.
Section 301 of the Companies Act.
Upon the granting of a provisional judicial management order all the property of the company
concerned shall be in the custody of the Master until a provisional judicial manager has been
appointed and has assumed office. Section 302 of the Companies Act. The final order has to
be confirmed at a date not less than 60 days from the date of the granting of the provisional
order. The provisional judicial manager assumes the management of the company and takes
possession of the company assets. He also has to obtain leave from the court before disposing
company assets except in the ordinary course of the company business.

In terms of Section 303(c) the provisional judicial manager shall prepare and lay before
separate meetings of creditors, shareholders and debenture holders, If any, to be convened by
the Master a report. The purpose of the mentioned meetings is to consider the report and
decide whether a final judicial management order is desirable, to nominate a final judicial
manager and at the creditors’ meeting to prove creditors’ claims. The provisional judicial
manager shall remain in office until the return day. On the return day the court will grant a
final order after considering the views of interested parties as laid down in s 305. And a final
judicial management order transfers the management of the company from the provisional
judicial manager to the final judicial manager. The duties of the final judicial manager are set
out in sections 306 and 307.

A judicial management order usually provides a moratorium in regard to the company’s

debts. The order may provide for the staying of all actions, proceedings, writs, summonses
and other proceedings against the company.

WINDING UP

Winding up is the process by which a company’s existence is brought to an end. This may
take the form of either winding up by the court or voluntary winding up. While the process is
continuing the company is described as being in liquidation. Winding up is provided for in
Part V of the Companies Act.
Section 206 of the Companies Act sets outs 7 grounds upon which a company may be
wound up by the court. The grounds are:
(a)If the company has by special resolution resolved that the company be wound by the court.
(b)If default is made in lodging the statutory report or in holding the statutory meeting.
(c)If the company does not commence its business within a year from its incorporation or
suspends its business for a whole year.
(d)If the company ceases to have any members.
(e)If 75% of the paid-up share capital of the company has been lost or has become useless for
the business of the company.
(f)If the company is unable to pay its debts.
(g)If the court is of the opinion that it is just and equitable that the company should be wound
up.

Which ever ground is relied on, the court is not obliged to issue a winding up order but will
exercise its discretion, taking into account the wishes of creditors and contributories.
Section 207 (1) provides that an application for winding up by the court may be made by the
company, a creditor, a contributory or, as a result of an inspector’s report under Section
162,the Minister of Justice, Legal and Parliamentary Affairs.

The applicant must proceed by way of application to the High Court (Section 207), which
must comply with the Companies (Winding Up) Rules,SI841/1972. One of the
requirements of Rule 5 of SI841/1972 is that the application must be served on the company
if it is not it self the applicant.
On hearing the application the court may exercise any of the wide powers conferred on it by
Section 208,but if satisfied it will normally issue a provisional order for winding up and for
the appointment of a provisional liquidator, but if nobody could be prejudiced it may issue a
final order.
The Registrar of the High Court is required by Section 214 to transmit every winding up
order to the Chief Registrar of Companies.

The immediate effect t of a winding up order is to freeze the company’s affairs in a number
of respects:
(a) Legal proceedings, attachments and executions are stayed.(Section 213 (a) and( b)).
(b) Dispositions of property, share transfers and alterations and the status of members may no
longer be made, except with the permission of the court.
(c) The company’s property is deemed to be in the control of the Master until a provisional
liquidator is appointed.
(d) A statement of the company’s affairs must be submitted to the Master who may report to
the court on the conduct of the company’s affairs.
(e) The powers and duties of the directors cease.

If a provisional winding up order is made the court will appoint a provisional liquidator.
When a final winding up order has been made the Master calls for meetings of creditors and
contributories to elect a liquidator. Section219. The liquidator should be independent. Before
taking up his duties the liquidator must give security to the satisfaction of the Master. Section
274. The Master or any person having an interest in the winding up may apply to court for a
declaration that the liquidator or proposed liquidator is disqualified or for an order removing
him for some good cause. Section 273.
////////////////////////////////////////////////////////////

The Directors of ABC Limited have agreed that it has become necessary for the
company to convert itself into a private company and to further change its name to
XYZ (Private) Limited in order to reposition itself in the market.
Advise them what steps they must take in order to bring about the desired changes. [6]
NOVEMBER 2011

What are the steps and procedures to be followed in order to effect a change of name of
a company? [6] NOVEMBER 2012

• They must amend the articles of association of the company and have a provision in
its articles of association that prohibits the company from offering its shares or
debentures to the public see s33 (1) (c)
 • The amended articles of association must restrict the right to transfer its shares s33
(1) (a)
• With regard to the change of the name the ABC Limited has to pass a special
resolution to that effect and must apply to the registrar of companies for approval to
change the name of the Company from ABC Limited to XYZ (Pvt) Ltd – s 25 (1).
The registrar will only approve the change of name if application b4 him has been
published in the Government Gazette and a daily newspaper circulating in the district
in which the registered office of the company is situated. The publication must state
the application will be made to the Registrar for his approval not less than 14 days
after the last publication of the advertisement.

In terms of section 49 of the Companies Act [Chapter 24:03], “a bill of exchange or

promissory note shall be deemed to have been made, accepted or endorsed on behalf of
a company if made, accepted or endorsed in the name of, or by or on behalf or on
account of, the company by any person acting under its authority.”
Explain the meaning of “bill of exchange or promissory note”. [5] JUNE 2012

A bill of exchange is a negotiable instrument and can be defined as “ an unconditional order

in writing, addressed by one person to another, signed by the person giving it, requiring the
person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a
sum certain in money to a specified person or his order, or to the bearer.”

A promisory note is also a negotiable instrument and can be defined as “an unconditional
promise in writing made by one person to another, signed by the maker and engaging to pay
on demand or at a fixed or determinable future time, a sum certain in money to a specified
person or his order, or to bearer.”

NB Negotiable instrument is a document which evidences and embodies contractual rights,

possession of the document is essential in order to enforce those rights.

Emmanuel, a director and major shareholder of XYZ Limited is not happy with the
performance of the company’s auditors. Following the failure by the auditors to
produce the audit report on time, he wrote to the auditors informing them that the
company had terminated its contract with them. Ellen who is also a director and
minority shareholder objects to the termination of the contract and seeks your advice.
Advise her. [8] JUNE 2012

An auditor may only be removed at a General Meeting as provided by section 150 of the
Companies Act.

Courts are reluctant to interfere with the internal management of a company, because the
ultimate decision making body is the general meeting of a company and a resolution passed
by the majority will be adopted, and this is popularly known as the majority rule. However in
exceptional circumstances the majority rule will be departed from and an aggrieved minority
shareholder may institute action against majority shareholders, such as when;
 (a) The alleged wrong is ultra vires the memorandum or articles of the company.
(b) If the transactions complained of could be validly done or sanctioned only by a
special resoulution because a simple majority cannot confirm a transaction which
requires concurrence of a greater majority; eg s 20; s 25. In some cases the authority
of the court is required; eg s 91 and s 92
(c) Where what has been done amounts to fraud and the wrongdoers themselves are the
controlling majority. The majority rule is relaxed in favour of the aggrieved minority
who are allowed to bring a minority shareholders action on behalf of themselves and
all others.

In casu it is improbable that the conduct of Emmanuel falls under the above discussed
exceptions to the majority rule. Her prospects of success are therefore slim.

See also section 196 of the Companies Act i.e. oppressive or prejudicial conduct by the
majority eg not participating in the decision making process of the company.

??????????????????? seek confirmation??????

What is the nature and purpose of judicial management? What are the requisites for
the grant of an order placing a company under provisional judicial management? [7]
NOVEMBER 2012

Nature and purpose of judicial management

Judicial Management is the management of a company by a person appointed by the Master

of the High Court in terms of the provisions of the Companies Act (ss 299- 314), subject to
the supervision of the High Court. The object of a judicial management order is to avoid the
drastic remedy of winding up when a company is in financial difficulties due to
mismanagement or some other cause, but there is a reasonable probability that under more
careful controlled management it will surmount its difficulties - s 300.

The requisites for the grant of an order placing a company under provisional judicial
management

The application must be made by a person who would be entitled to apply for winding up of
the company. Persons who can applying for the winding up of a company are listed in section
207 of the Act and these are the company itself, a creditor, contributory or the Minister of
Justice is specified circumstances.

Before an application is filed with the court, a copy of the application including the
supporting affidavits and other documents, shall be lodged with the Master of the High Court,

A court will grant the application if it appears;

That by reason of mismanagement or for any other cause the company is unable to
pay its debts or is probably unable to pay its debts and has not become or is prevented
from becoming a successful concern, and;
 That there is a reasonable probability that if the company is placed under judicial
management it will be enabled to pay its debts or meet its obligations and become a
successful concern, and;
That it would be just and equitable to do so.

Distinguish between—
(a) a memorandum of association and articles of association, of a company,
(b) shares and debentures,
(c) shareholders and directors. [6] NOVEMBER 2012

(a) A memorandum of association is a document that sets up the company, and it regulates a
company’s external activities and must be drawn up on the formation of the registered
company. It confirms that the subscribers wish to form a company under the Companies Act
and agree to become members of the company. The memorandum gives the company’s
name, objects of the company, that liability of the members is limited and the number of
shares held by each member.

Articles of association is a document that set out how the company is run, governed and
owned. It includes the responsibility and powers of the directors and the means by which the
members exert control over the board of directors.

(b) Shares are units of ownership interest in a corporation or financial asset. While owning
shares in a business does not mean that the shareholder has direct control over the business's
day-to-day operations, being a shareholder does entitle the possessor to an equal distribution
in any profits, if any are declared in the form of dividends. Shares may include stock as
provided by section 2 of the Companies Act. Has more rights. Holder of a share is a
shareholder. Share is the capital of a company. Income on shares is dividend. Holder has
voting rights.

A debenture is a type of debt instrument that is not secured by physical assets or collateral.
Debentures are backed only by the general creditworthiness and reputation of the issuer. Both
corporations and governments frequently issue this type of bond to secure capital. Like other
types of bonds, debentures are documented in an indenture. Debenture includes stock and
bonds as provided by section 2 of the Act. Has less rights but a high interest rate to offset the
high risk. Holder of a debenture is a debenture holder. Debenture is a debt of a company.
Income on debenture is interest. No voting rights on the holder.

(c)Any person, company or other institution that owns at least one share of a company’s
stock. Shareholders are a company's owners. They have the potential to profit if the company
does well, but that comes with the potential to lose if the company does poorly. A shareholder
may also be referred to as a "stockholder".

A member of a company's board of directors who assumes the shared responsibility of the
board to determine and implement company policies. Directors act as trustees for the
company and are not beholden to the shareholders, although they may be held accountable
and personally liable by the shareholders for actions taken.

You are consulted by Shava, the managing director and majority shareholder of a small
company. The company is not trading well and she is concerned that it soon may have
to cease business. In this context, explain to Shava the difference between voluntary and
compulsory liquidation procedures [8] JUNE 2013

Compulsory liquidation procedure

- Company can only be wound up by the court on any one of the grounds listed in
section 206 of the Act
- Winding up by the court is deemed to commence at the time of the presentation of the
petition for the winding up- s 210
- In terms of section 207 an application or petition for winding up may be made by the
company, creditor, contributory or the Minister of Justice, Legal and Parliamentary
Affairs after an inspectors report made under s 162
- The application must comply with the Companies (Winding Up Rules) SI 841/ 1972
- On hearing the application the court may issue a provisional order for winding up or
dismiss the application- s208
- Court may stay or set aside winding up at any time on the application of the liquidator
or creditor or contributory – s 227

Voluntary Winding Up

- A company may only be voluntarily wound up if a resolution that the company be

wound up voluntarily has been passed – s 242
- Unlike compulsory winding up voluntary winding up takes has two forms; members’
voluntary winding up or creditors’ voluntary winding up
- Voluntary winding up is deemed to have commenced at the time of the passing of the
company resolution for voluntary winding up
- The resolution only takes effect after the following procedures have been complied
with – s 243 ;
(a) The must be notice of the resolution for winding up to the Registrar of Labour
Relations and the company’s worker’s committee within 4 weeks of passing the
resolution.
(b) Notice of the resolution has to be given to the Master and the Registrar within two
weeks of passing the resolution.
(c) Notice of the resolution must be published within one month of passing the
resolution in the Gazette.
(d) Members have to furnish security to the Master – s 246 (1)

(a) What is a company prospectus?

(b) List the persons who are liable to pay compensation to persons who suffer damage
by reason of any untrue statement included in a prospectus. [8] JUNE 2013
A company prospectus is any prospectus, notice, circular, advertisement or other printed
invitation offering to the public for subscription or purchase any shares or debentures of a
company as defined by section 2 of the Act.
In other words it is an invitation to the public, inviting members of the public to invest in the
company (by purchasing its securities). It therefore provides prospective investors with
certain prescribed information on which to make an informed decision.

The following persons are liable to pay compensation to persons who suffer damage by
reason of any untrue statement included in a prospectus;
(a) every person who is a director of the company at the time of the issue of the prospectus;
and
(b) every person who has in writing authorized himself to be named and is named in the
prospectus as a director or as having agreed to become a director, either immediately or after
an interval of time; and
(c) every person being a promoter of the company; and
(d) every person who has authorized the issue of the prospectus

SEE SECTION 58 OF THE COMPANIES ACT

Mawoneyi, acting in his capacity as an agent of a “company”, D. E. F. Ltd which was

about to be, but had not yet been registered, entered into a contract for the supply of
goods with H & H Ltd. Despite being paid the contract price, H & H Ltd has failed to
deliver the goods. The company has since been registered and now wishes to enforce the
contract which was entered into with H & H Ltd.

Advise D. E. F. Ltd whether the contract is enforceable. [6] JUNE 2014

A person may enter into a written agreement in the name of, or purport to act in the name of,
or on behalf of an entity that is to be incorporated in terms of the Act but does not as yet
exist. Section 47 of the Companies Act provides that;
Any contract made in writing by a person professing to act as agent or trustee for a company
not yet formed, incorporated or registered shall be capable of being ratified or adopted by or
otherwise made binding upon and enforceable by such company after it has been duly
registered as if it had been duly formed, incorporated and registered at the time when the
contract was made, if—
(a) the memorandum on its registration contains as one of the objects of such company the
adoption or ratification of or the acquisition of rights and obligations in respect of such
contract; and
(b) the contract or a certified copy thereof is delivered to the Registrar simultaneously with
the delivery of the memorandum in terms of section twenty-one.

The learned authors Nkala and Nyapadi in their book Company Law in Zimbabwe 1995
Edition are of the view that a company can adopt or ratify contracts made on its behalf
before incorporation provided that it (the company) meets the following five conditions- viz;
that the contract is in writing; the person making the contract on behalf of the company to be
formed, irrespective of how he describes himself must at least profess to act as agent for the
company; the memorandum and articles of association must contain at the time of
incorporation the contract as one of its objects; the contract must be delivered to the registrar
simultaneously with the memorandum and articles of association and the contract must be
legally enforceable.

In casu the contract is enforceable if the company ratifies the contract by following the
procedures set out in section 47 or as explained by the authors. See Gray & Anor v
Registrar of Deeds HH 114-2010

Question 4 (8 marks)
(a) Name four persons who are disqualified from being appointed auditors of a
company.
(b) Under what circumstances will a private company be required to appoint an
auditor? November 2014

The following persons are disqualified from being appointed auditors of a company in terms
of section 152 (1) of the Companies Act;
(a) an officer or servant of the company;
(b) a person who is a partner of an officer or servant of the company;
(c) a person who is an employer or an employee of an officer or servant of the company;
(d) a body corporate;
(e) a person who is an officer or servant of a body corporate which is an officer of the
company;
(f) a person who by himself, or his partner or his employee, regularly performs the duties of
secretary or bookkeeper to the company.

A private company will appoint an auditor in the following circumstances;

(a) If the number of members in such private company exceed 10
(b) If all the members in such private company agree that an auditor shall be appointed
(c) If such a private company is a subsidiary of a holding company which has it self
appointed auditors
(d) If any of the members of such private company is
(i) A public company whether incorporated under the Act or the law of a foreign
country, or
(ii) A private company which is a subsidiary as determined in terms of section
143, of a public company referred to in subparagraph (i)

QUESTION 5 [12]
(a) Give examples of proposed names of a company that the Registrar can refuse to
accept ? [3]
- Muslims Are Terrorists (Pvt ) Ltd
- Unprotected Sex (Pvt) Ltd
- Econeto (Pvt) Ltd

(b) Distinguish a private company from a cooperative [3]

A private company may be incorporated by one or more persons and there is a limit
to the number of shareholders that it may have. In terms of s 33 (1) (b) a private
company is not allowed to have more than 50 members, excluding employees. It has
the following characteristics;
(a) Must end its name with the words “(Private) Limited” see s8 (1) a (i) A
(b) Must have a provision in its articles of association that prohibits the company
from offering its shares or debentures to the public see s33 (1) (c)
(c) Must restrict the right to transfer its shares in its articles of association see s33 (1)
(a)
(d) The number of its members must be limited to 50 in the articles of association see
s33 (1) (b)

A cooperative company is a company other than a private company. The name of the
company must end with the word “co-operative” or the abbreviation “co-op”. Its
memorandum of association states that its main objective is one or other or both of the
following; (i) the provision for its members of a service facilitating the production or
marketing of agricultural produce or livestock; (ii) the sale of goods to its members.
See s36 (1) (a).
Its articles of association must;
(a) Restrict the transfer of its shares
(b) Shall provide that its shares are of one class only
(c) Subject to s 39, fix a limit on the number of shares that may be held by any one
member
(d) Regulate the voting rights of its members in accordance with s 39
(e) Limit the dividend which may be paid on its shares to a rate not exceeding 10%
per annum
(f) Provide for the distribution of a part or the whole of its profits amongst its
members on the basis of certain or all of their business transactions with the
company. See s 36 (1) (b)

(c) Under what conditions may a company issue shares at a discount ? [ 3]

A company may issue shares at a discount in the company of a class already issued:
Provided that—
- the issue of the shares at a discount must be authorized by special resolution of the
company and must be sanctioned by the court;
- the special resolution must specify the maximum rate of discount at which the shares
are to be issued;
- not less than one year must, at the date of the issue, have elapsed since the date on
which the company was entitled to commence business;
 - the shares to be issued at a discount must be issued within thirty days after the date on
which the issue is sanctioned by the court or within such extended time as the court
may allow.

NB SEE SECTION 75 OF THE COMPANIES ACT

(d) Name any four particulars which must be contained in the annual return to be
submitted by every company to the Registrar. [3]

The following particulars must be contained in the annual return as provided by

section 123(1) of the Companies Act;

(a) the situation of the registered office of the company;

(b) the place where the register of members is kept if, under the provisions of this
Act, it is not kept at the registered office of the company;
(c) the amount of the share capital of the company, and the number of the shares into
which it is divided;
(d) the number of shares taken from the date of incorporation of the company up to
the date of the return;
(e) the number of shares issued for cash;
(f) the number of shares issued as fully or partly paid up otherwise than in cash and
the nature of the consideration given for such shares;
(g) the amount called up on each share;
(h) the total amount of calls unpaid;
(i) the total amount of the sums, if any, paid by way of commission in respect of any
shares or debentures,
(j) allowed by way of discount in respect of any debentures, since the date of the last
return;
(k) the total number of shares forfeited;
(l) the discount allowed on the issue of any shares issued at a discount or so much of
that discount as has not been written off at the date on which the return is made.

ADMINISTRATION OF ESTATES ACT

Outline the considerations in terms of the Administration of Estates Act [Chapter 6:01]
that determine whether a deceased estate is to be administered in accordance with
customary law. [5] NOVEMBER 2011

Section 68G (1) of the Administration of Estates Act provides that section 3 of the
Customary Law and Local Courts Act [Chapter 7:05] shall apply in determining the
question whether or not customary law applied to a deceased person. It is necessary to
reproduce the provisions of the Customary and Local Courts Act; In terms of section 3(1) (a)
of the Act customary law shall apply in any civil case where—
(i) the parties have expressly agreed that it should apply; or
(ii) regard being had to the nature of the case and the surrounding circumstances, it appears
that the parties have agreed it should apply; or
(iii) regard being had to the nature of the case and the surrounding circumstances, it appears
just and proper that it should apply;
And section 3 (2) defines surrounding circumstances as; “surrounding circumstances”, in
relation to a case, shall, without limiting the expression, include—
(a) the mode of life of the parties;
(b) the subject matter of the case;
(c) the understanding by the parties of the provisions of customary law or the general law of
Zimbabwe, as the case may be, which apply to the case;
(d) the relative closeness of the case and the parties to the customary law or the general law
of Zimbabwe, as the case may be.

However section 68G (1) states that the Customary Law and Local Courts Act does not apply
without qualification and it states that ; Provided that it shall be presumed, unless the
contrary is shown, that—
(a) customary law applied to a person who, at the date of his death, was married in
accordance with customary law; and
(b) the general law of Zimbabwe applied to a person who, at the date of his death, was
married in accordance with the Marriage Act [Chapter 5:11] or the law of a foreign country,
even if he was also married to the same person under customary law

Advise :
(a) a creditor who obtained a warrant of execution against the property of his debtor a
month before the debtor died whether he can proceed to execute against the debtor’s
property;
(b) the Master, whether he can authorise the sell of the property of a deceased estate
otherwise than by public auction;
(c) surviving spouses, the meaning of “a joint usufruct over the house”. [9] NOVEMBER
2011

- A creditor who obtained a warrant of execution against the property of his debtor a
month before the debtor died cannot proceed to execute against the debtor’s property.
Section 44 provides for the suspension of execution against a deceased estate. Thus
 the creditors will only execute the debtor’s property after the expiration of a period of
6 months after the letters of administration have been granted.

- The master can authorise the sell of the property of a deceased estate otherwise than
by public auction. In terms of section 120 of the Administration of Estates Act a sell
otherwise than by public auction made be authorised by the Master if, after due
inquiry, the Master is of opinion that it would be to the advantage of persons
interested in the estate and if the will of the deceased contains no provisions to the
contrary, grant the necessary authority to the executor so to act.

- A joint usufruct is a legal right accorded to two or more persons that confers on them
the temporary right to use and derive income or benefit from someone else's property.
Usufruct is usually conferred for a limited time period or until death. While the
usufructuary has the right to use the property, he or she cannot damage or destroy it,
or dispose of the property. For example, the spouses will have a usufruct over the
house and they have full rights to use it, or rent it out and collect rental income, as
long as the usufruct is in effect.

You are consulted by Muchaneta who informs you that her husband Tony to whom she
was married to under an unregistered customary law union passed away last week. He
left a will in terms of which he bequeathed to her four houses valued at $1 million which
are registered in his name and a huge sum of money at the bank. Tony did not have any
creditors.

Outline to her the steps necessary before the registration of the houses can be
transferred into her name. [12] JUNE 2012
- Muchaneta or a nearest relative has to file an original death notice (within 14 days of
the death) plus a copy on the prescribed form ( for filing with the Master)- s 5 of the
Administration of Estates Act
- Muchaneta then has to transmit the written will of the deceased (Tony) to the Master
- Muchaneta will have to comply with either section 12 or section 14 of the Act
depending on the Matrimonial Property regime which governed the marriage. The
sections require an inventory to be made by the surviving spouse (within 30 and 14
days respectively of the death of the deceased).
- If the will does not provide for an executor, an executor will have to be appointed in
terms of section 25. The surviving spouse, next of keen or legatees (creditors if they r
any) may be called upon by the Master to appoint an executor and if appointed the
executor will be granted letters of administration. However section 29 provides that
letters of administration will only be granted to a registered executor or a surviving
spouse, or next of kin of the deceased person concerned
- After obtaining letters of administration, the executor has to frame an inventory of
the deceased’s estate – s 38 (1)
 - Since there are no creditors there is no duty in terms of section 42 to call upon
creditors and others to lodge claims against the estate.
- The executor has to frame and lodge with the Master an account showing the
administration and distribution of the estate, within 6 months from the day on which
letters of administration were issued.
- In framing the distribution account, the executor has to make provision to pay claims
against the estate (medical expenses, funeral expenses, arrear income tax, household
expenses). The executor also has to make provision for his fees.
- The executor has to frame the distribution account and award the four houses and
money in the bank account to Muchaneta, the surviving spouse as provided by the
will.
- After lodging the account of the administration of the estate and after the Master has
accepted it the houses will be ready for registration and transfer into Muchaneta’s
name.

Maria was customarily married to Alexander in 2004. All the necessary requirements
under customary law were met although the marriage was not registered. Unbeknown
to Maria, in 2006, Alexander entered into another marriage with one Muchaneta which
marriage was solemnised in terms of the Marriage Act [Chapter 5:11]. Maria and
Alexander have resided in a house which is registered in Alexander’s name in Gweru
since 2004. There are six minor children from the marriage. Last week, Alexander died.
He did not leave a will. Muchaneta has given Maria an ultimatum to leave the house
and is claiming that as the one and only lawful wife of Alexander, she is entitled to
inherit the house.
Advise Maria. [7] NOVEMBER 2012

In Zimbabwe they are two types of marriages, a marriage under the Marriage Act and one
under the Customary Marriages Act. Under the Marriage Act a party is required to have only
one spouse, however marriages under the Customary Marriages Act are potentially
polygamous. Section 68 of the Administration of Estates Act regulates the procedure to be
followed if a situation such as the present. Section 68 (3) provides that a customary marriage
is regarded as a valid marriage notwithstanding that it has not been solemnized in terms of the
Customary Marriages Act. Thus Maria’s marriage with Alexander is a valid marriage even
though it is not registered. The same section provides that a customary marriage is invalid if
any one of the parties was a party to an existing marriage under the Marriages Act.

Section 68 (4) provides that “a marriage contracted according to the Marriage Act [Chapter
5:11] under which persons are not permitted to have more than one spouse shall be regarded
as a valid marriage for the purposes of this Part even if, when it was contracted, either of the
parties was married to someone else in accordance with customary law, whether or not that
customary law marriage was solemnised in terms of the Customary Marriages Act [5:07].”
The effect of this provision is that a part to an existing customary law marriage can enter into
a marriage under the Marriage Act, however such marriage shall be regarded as customary
marriage.
In casu Alexander entered into a Marriage in terms of the Marriage Act while he had a
subsisting customary law marriage. Such subsequent marriage to Muchaneta has to be
regarded as a customary law marriage. Thus both marriages between Alexander and Maria
and between Alexander and Muchaneta are customary marriages and they are both valid. In
light of the foregoing the estate of Alexander will have to be distributed in accordance with
customary law as provided by Part IIIA of the Administration of Estates Act.

(a) You are the executor of a deceased estate. In the course of your duties it is brought
to your attention that the deceased is survived by a mentally disordered son who has a
valid claim to the estate.
What action are you required to take upon receipt of this information?
(b) Your client obtained judgment in the High Court against the property of a debtor
who unfortunately died the following day. He instructs you to proceed to obtain a
warrant of execution against the property of the deceased.
Advise your client[10] JUNE 2013

As the executor, if I find out that a mentally disordered son of the deceased has a claim
against the estate I will enquire whether the mentally disordered son has a lawful curator and
if the son does not have a curator I shall forthwith transmit to the Master a statement in
writing containing the name of such mentally disordered son and specify the nature and value
of the property to which the mentally disordered son has such a claim. NB SEE section 50 of
the Administration of Estates Act.

My advice to client will be that no person shall sue out or obtain any process in execution of
any judgment before the expiration of the period notified in the Gazette in a manner provided
in the Administration of Estates Act.- s 44 (1)I would also advice client that on person shall
sue out and obtain any process in execution of any such judgment within six months from
the time when letters of administration have been granted to the executor against whom
execution of such judgment is sought without first obtaining an order from the High Court or
some judge thereof for the issue of such process. – s 44 (2) Thus the execution of against the
deceased estate if suspended until the provisions of section 44 are complied with

Briefly explain the meaning and purpose of each of the following terms as used in the
administration of deceased estates:
(a) death notice;
(b) inventory of estate;
(c) letters of administration;
(d) inheritance plan;
(e) tutor testamentary. [10] NOVEMBER 2014

Death notice is a written notice filled up and signed the nearest relative of a deceased person
which is transmitted to the Master of the High Court. Its purpose is to inform the Master of
the occurance of the death of the deceased person. see s 5
Inventory of estate is a list of the assets such as property, goods and effects in the deceased
estate. Its purpose is to be a written record of assets that forms part and belongs to the
deceased person. see s 12 and s 14

Letters of administration are documents issued by the Master certifying that the named
person has been duly appointed as the executor and is therefore authorised as such to
administer the estate of the named deceased person. The purpose of letters of administration
is to ensure that people who administer estates of deceased persons act in terms of the law
and their resultant acts are legally valid. see s 23-24

Inheritance plan is a plan drawn up by the executor providing for matters concerning the
beneficiaries of the deceased estate of persons subject to customary law. Its purpose is to
ensure that the aforesaid beneficiaries benefit from the deceased estate in an orderly manner
after laid down procedures have being followed. See s 68D

Tutor testamentary is a tutor nominated and appointed in a will or deed duly executed by the
father or the mother. The purpose of the tutor testamentary is to administer and manage the
estate or to take care of the person of such minor whose parents are dead or have abandoned
the minor. See s 69-70

QUESTION 3[ 12 Marks] NOVEMBER 2015

(a) Where a person dies without having by any will or codicil appointed a person to
be the executor, are there any persons who are disqualified from appointment by
the Master as executor ? [3]
- Persons who are nor registered under the Estate Adminstrators Act [ Chapter 27:20]
as executors.
- Persons who are not the surviving spouse, or next of kin of the deceased person
concerned.
- Incapacitated persons eg minors, mentally insane, [See section 29A]

(b) Advice a person who is in possession of a warrant against a person who has since
died whether he can proceed to instruct the Deputy Sheriff to attach the
property to attach the property of the deceased. [3]

The execution of the estate of a deceased person is suspended upon the death of the
judgment debtor. The judgment creditor would have to fulfill the two conditions set
out in section 44 of the Administration of Estates Act.

(c) Can the heir at customary law be appointed as the executor of a deceased estate
? [3]
 The heir at customary law of the deceased person concerned can be eligible for
appointment as executor if the deceased person’s relatives present at a meeting
summoned by the Master agree on his appointment. See s 68B (3)

(d) How is it to be determined whether customary law applied to a deceased person

? [3]

Section 68G (1) of the Administration of Estates Act provides that section 3 of the
Customary Law and Local Courts Act [Chapter 7:05] shall apply in determining the
question whether or not customary law applied to a deceased person. It is necessary to
reproduce the provisions of the Customary and Local Courts Act; In terms of
section 3(1) (a) of the Act customary law shall apply in any civil case where—
(i) the parties have expressly agreed that it should apply; or
(ii) regard being had to the nature of the case and the surrounding circumstances, it
appears that the parties have agreed it should apply; or
(iii) regard being had to the nature of the case and the surrounding circumstances, it
appears just and proper that it should apply;
And section 3 (2) defines surrounding circumstances as; “surrounding
circumstances”, in relation to a case, shall, without limiting the expression, include—
(a) the mode of life of the parties;
(b) the subject matter of the case;
(c) the understanding by the parties of the provisions of customary law or the general
law of Zimbabwe, as the case may be, which apply to the case;
(d) the relative closeness of the case and the parties to the customary law or the
general law of Zimbabwe, as the case may be.

However section 68G (1) states that the Customary Law and Local Courts Act does
not apply without qualification and it states that ; Provided that it shall be presumed,
unless the contrary is shown, that—
(e) (a) customary law applied to a person who, at the date of his death, was married in
accordance with customary law; and
(f) (b) the general law of Zimbabwe applied to a person who, at the date of his death,
was married in accordance with the Marriage Act [Chapter 5:11] or the law of a
foreign country, even if he was also married to the same person under customary law
DECEASED ESTATES SUCCESSION ACT

Explain the meaning of section 7 of the Deceased Estates Succession Act [Chapter 6:02]
which reads as follows:
No legitimate portion to be claimed of right
No legitimate portion shall be claimable of right by any one out of the estate of any
person. [6] NOVEMBER 2011

The meaning of this section is that no person has a right to claim a portion out of the estate of
any person. However this is the general rule and the exception is that only persons who in
terms of the rules of intestate succession are entitled to succeed ab intestato and receive a
benefit from the estate of a person who dies intestate. The surviving spouse is the intestate
heir and she inherits the house and is also entitled to reaceive half of the free residue of the
deceased intestate or a child’s share which ever is greater. And if the deceased person has no
surving spouse or heir his blood or half blood relatives will inherit the property. The meaning
of this section is that a person has no right to claim a portion of the estate if the deceased
person left no asset or if there is no free residue out of the estate one will not be able to
receive a benefit out of the deceased estate. Moreover in terms of section 4 of the Act one
has no rights to receive articles of sentimental value, thus there are limitations as to whom
may benefit and the nature of what they can benefit from the estate of a deceased person.

In terms of section 5(1) of the Deceased Estates Succession Act [Chapter 6:02], where as
a result of a distribution in intestacy any property devolves upon any heirs in undivided
shares, the heirs may agree upon an alternative division of the property.

Explain the meaning of “undivided shares”. [5] JUNE 2010

Undivided shares means claim of ownership of commonly-owned assets or property (in this
case intestate property) where each co-owner has unrestricted claim to all the assets or the
entire property but no co-owner has exclusive claim to any single asset or part of the
property.////////////////////////////////////////////////////////////
THE INSOLVENCY ACT

What is the effect of the following antecedent transactions to an insolvent estate?

(a) An antenuptial contract which was entered into between the insolvent and his
spouse.
(b) Movable property belonging to another person which was left in the possession of
the insolvent.
(c) Movable goods which were sold to an insolvent but had not been paid for at the time
of sequestration. [9] NOVEMBER 2011 & NOVEMBER 2015

The effect of an antenuptial contract to an insolvent estate is that no benefit under a duly
registered antenuptial contract in good faith shall be set aside as a disposition without value,
unless the insolvent estate was sequestrated within two years of the registration of that
antenuptial contract. See s 41 of the Insolvency Act

The effect of movable property belonging to another person which was left in possession of
the insolvent on an insolvent estate is that the owner of such property shall lose all right to
recover that property if it has in good faith been sold as part of the insolvent estate unless,
before the sale, he gives notice in writing to the Master or the trustee, if appointed, that the
property belongs to him. See s 50 of the Insolvency Act

The effect of movable goods which were sold to an insolvent but had not been paid for at the
time of sequestration on an insolvent estate is that the seller may after the sequestration,
reclaim that property if, within the period of 10 days next following the delivery thereof he
gives notice in writing to the insolvent and to the trustee or the Master that he reclaims the
property. see s 49 of the Insolvency

Employees of GH Limited which has been placed under sequestration are concerned
that the estate which includes buildings and motor-vehicles will not be able to raise
sufficient funds to meet their salaries and wages as well as their terminal benefits. Apart
from the obligations towards the employees, the company owes income tax to the
collector of taxes, has an outstanding mortgage bond with the Building Society, has not
paid the remuneration of the trustee and the deputy sheriff’s costs of execution.
Advise the employees on their chances of recovering their dues. [ 6] JUNE 2012

The Insolvency Act 'ranks' the various claims against the insolvent estate, that is to say, lays
down the order in which they must be paid and to what extent each must be paid. The
estate, for purposes of distribution, consists of the proceeds of both the encumbered
and unencumbered assets. The proceeds of each encumbered asset are applied to pay
the claim (or claims) secured by that asset. Any balance remaining after payment of
secured creditors is combined with the proceeds of the unencumbered assets to pay the
remaining creditors. These moneys (known as the 'free residue') are applied first to
satisfy preferent claims (in their order of preference) and thereafter to pay the claims of
concurrent creditors.
In this instance outstanding mortgage bond is a secured claim it is paid first out of the
proceeds of the buildings. If there is a balance remaining after payment of the outstanding
mortgage bond then the proceeds are combined with the proceeds of the moto vehicle to pay
the remaining creditors. The remaining creditors will be paid in the following order;
- The remuneration of the trustee – section 100
- Costs of execution by the deputy sheriff- section 101
- Employees salaries and wages – section103
- Income tax- section 104
Thus the employeee’s will only receive their outstanding salaries and terminal benefits if
there is a free residue after payment of preferent claims. If there is free residue the employees
will not receive all the amount owed to them they will receive three months salary, and with
regard to terminal benefits they will not receive anything more than the prescribed
amount.Thus their of receiving their dues are fair.

Samuel whose estate was put under sequestration by the High Court two years ago
wishes to make an application for rehabilitation.
Advise him of the procedure he must follow in seeking the order of rehabilitation. [6]
NOVEMBER 2014

If any of the conditions set out in section 141 (1) and (2) of the Insolvency Act eg
certificate or lapse of specificied periods of time, an insolvent who has furnished security to
the registrar of the High Court may apply for his rehabilitation.

An application for rehabilitation is made to the High Court supported by an affidavit

containing an averment that the applicant has made a complete surrender of his estate and has
not promised any benefit whatsoever to any person or entered into any secret agreement with
intent to induce his trustee or any creditor to oppose the rehabilitation and also a statement of
his assets, liabilities and earnings at the date of the application.

The affidavit must also state the matters in section 143 (b) (i)-(vii).

The Master, the trustee and any creditor or any other person interested in the estate may
oppose the application in terms of section 144 (1).

The rehabilitation of an insolvent lies solely within the discretion of the court. However, the
discretion must be exercised judicially and not arbitrarily. Ex Parte Phillips 1938 CPD 381
at 384.

The High Court may; refuse the application or postpone the hearing of the application where
it requires further information for the proper exercise of its discretion-Ex Parte Isaacs 1952
(4) 128, rehabilitate the insolvent on such conditions as it may think fit to impose or order the
applicant to pay the costs of any opposition to the application if it is satisfied that the
opposition is not vexatious.
THE PRESCRIPTION ACT

You are consulted by a client who, six months ago, sold a piece of land in terms of an
agreement which provided for the purchaser to pay the purchase price in equal monthly
instalments over a period of three years. The purchaser has since put up a building
worth $60 000 on the piece of land but has however failed to pay the instalments which
were due at the beginning of October and November. The Agreement of Sale states that
if any one instalment of the purchase price is not paid when it becomes due, the seller
has the right to cancel the sale and resume possession of the property and that in that
event, all additions and improvements undertaken by the purchaser become the
property of the seller who shall not be obliged to pay any compensation thereon to the
purchaser. Your client wishes to take the steps necessary to cancel the sale and retake
possession of the property.

Advise your client. [10] NOVEMBER 2010

A contractual debt prescribes after 3 years (s 15(d)). Up to the time that the purchaser paid
the last instalment, that is, two months ago, there was no cause of action as long as the
purchaser was keeping up with instalments. From that time, however, the purchaser has been
in default and from then the debt became due and prescription begins to run as soon as a debt
is due [s 16 (1)] . Therefore, on application of the ordinary rules relating to prescription, the
debt has not been extinguished by prescription as there are more than two years left before
the debt prescribes. Further client can cancel the contact within the period of three years ie
before the debt prescribes. In terms of the law of contract the inncocent party has a right to
cancel a contact in the event of a material breach of the contract. However the cancellation
has to be done within a reasonable time after the breach otherwise the innocent would be
taken to have waived its rights to cancel the contract. Section 4 of the Prescription Act
provides for acquisitive prescription and a person shall become the owner by prescription of a
thing he has had in possession for an uninterrupted period of 30 years. Thus if the client does
not interrupt the possession of the purchaser for 30 year, clients loses all claims on the land
and the building attached to the land.

In May 2005, Kopak entered into an agreement with Hlahla in terms of which she
bought certain immovable property from Hlahla. Kopak paid Hlahla the last instalment
of the purchase price in December 2005. In terms of the agreement, Hlahla was to take
all steps to have the property transferred into Kopak’s name within two weeks of so
being requested by Kopak. Kopak, who owns many other properties, completely forgot
to make the request and only realised last week that the property was still in Hlahla’s
name. Upon receiving the request for the transfer from Kopak, Hlahla responded that
as far as he was concerned the matter was now prescribed and accordingly he had no
intention of complying with the request.

Advise Kopak.[7] JUNE 2012

A debt prescribes after three years- s 15 (d). However in terms of section 16 (1) prescription
begins to run as soon as a debt is due. Prescription begins to run as soon as the creditor
becomes aware of the existence of the debt unless the debtor wilfully prevents the creditor
from becoming aware of the existence of the debt. In the present case it cannot be said that
there was wilful conduct by Hlahla to prevent Kopak from becoming aware of the existence
of the debt.In this case the debt prescribed in December 2008 ie three years after the last
instalment payment was made. Section 17 of the Act provides for instances were completion
of prescription is delayed. The facts of this case do not fall under those listed circumstances
in any event a contractual debt prescribes when the reciprocal debt becomes prescribed. Thus
it can be said that Kopak can only blame herself for the prescription of the debt. Thus in the
circumstances her claim against Hlahla has prescribed.

In terms of the Prescription Act [Chapter 8:11], a praedial servitude shall be

extinguished by prescription if it has not been exercised “for a period which, together
with any periods for which such servitude has not been exercised by the predecessors in
title of the owner of the dominant tenement, constitutes an uninterrupted period of
thirty years”.
Explain the meaning of:
(a) a praedial servitude,
(b) the dominant tenement [6] JUNE 2012

A servitude is a right belonging to one person, in the property of another, entitling the former
either to exercise some right or benefit in the property, or to prohibit the latter from
exercising one or other of the normal rights of ownership. Praedium is immovable property,
whether lands or houses; thus

A praedial servitude is a servitude which attach to immovable property and can be divided
into rural or urban. It can be distinguished from personal servitude in that, while the latter are
given to and enjoyed by a person simply as a person, the former are not separable from the
dominant tenement, but are exercised by the owner in virtue of his ownership.

The dominant tenement is land or property that has the benefit of a servitude or easement. In
other words it is land in favour of which a servitude exists over another’s land or property.
The opposite of this concept is servient tenement i.e. land subject to a servitude.

In terms of an agreement entered into between Jane and Simangiso on 1 Janaury 2000,
Simangiso advanced a sum of $2 000 to Jane which amount Jane was to pay back in 10
monthly instalments of $200 each as from 1 February 2003. Jane has since repaid $600
in three instalments of $200 each leaving a balance of $1 400. The last of the three
instalments was made on 1 March 2011. Simangiso wants to institute action against
Simangiso for the recovery of the outstanding amount and approaches you for advice as
to whether the debt is not prescribed.
Advise her. [6] NOVEMBER 2012
Contractual debts prescribe after three years and after the expiry of the 3 years the debt will
be extinguished by prescription.- s 15 (d). Prescription begins to run as soon as the debt is
due- s16 (1). In casu, prescription began to run after February 2003 or after Jane defaulted on
payment. Normally the debt would have prescribed around 2006. However the Jane made an
instalment payment on 1 March 2011 after the debt had prescribed years back. The payment
by Jane after the debt had been extinguished by prescription is deemed to be payment of the
debt, whether or not Jane knew at the time that she made the payment that the debt had been
extinguished by prescription. See section 14 (3) (a). However the fact that Jane made the
payment after the debt had been extinguished by prescription cannot be used against her the
prescribed debt will remains a prescribed debt and her payment did not interrupt or delay the
prescription. Thus my advice to Simangiso is that the debt has prescribed and she cannot
recover the outstanding amount unless Jane pays out of ignorance of the prescription of the
debt.

You are consulted by a client who informs you that in 2000, a friend of his, Jona,
borrowed a sum of $2 000 from him immediately after which he left the country to seek
employment in the United Kingdom. Upon his return to Zimbabwe in June 2009, Jona
promised to pay back the money within a month. Nothing was received from Jona until
June 2010 when he paid your client $1 000, leaving a balance of $1 000 outstanding.
Your client wishes to institute action against Jona for the recovery of the balance but is
worried that the debt might have become prescribed.
Advise your client.[8] JUNE 2013

A contractual debt prescribes after three years. Prescription begins to run as soon as the debt
is due. Thus applying the normal rules of prescription, prescription commenced to run in
2000 since the client was aware of the identity of the debtor and of the facts from which the
debt arises. Normally the debt would have prescribed sometime in 2003, however because of
the fact that Jona was outside Zimbabwe the completion of prescription was delayed. In terms
of s 17 (1) (c) of the Act prescription is delayed and prescription is extended by a year from
the time Jona arrives back from the United Kingdom. The running of prescription is
interrupted by express or tacit acknowledgment of liability as provided by section 18.Thus
prescription was interrupted by Jona when he promised to pay back the money. Prescription
began to run afresh from the June 2009. Following the rules of prescription the debt
prescribed in June 2012 ie three years after it had been interrupted by Jona’s acknowledgment
of liability.

The Secretary for Higher Education informs you that the Ministry paid the university
fees of a student in terms of a loan agreement entered into with the student. The student
was required to commence the repayment of the loan in instalments immediately after
the completion of his studies, exactly five years ago.
Advise the Secretary whether the debt has prescribed. [6] NOVEMBER 2014

In terms of section 15 (b) a debt owed to the state or an advance or loan of money prescribes
after 15 years. There is no doubt that the Ministry is part of the state as such the period of
prescribtion of the loan agreement is 15 years. The Minisstry has 10 more years to sue the
student before the debt is extinguished by prescription.

QUESTION 10 [5 Marks] NOVEMBER 2015

(a) Does the Prescription Act [ Chapter 8: 11] apply to claims made under
customary law ?[1]
The Act does not applying to claims under customary law - see s 3(2)
(b) Is an agreement to pay a debt made by a debtor after the debt has been
extinguished by prescription enforceable ? [2]
Yes the agreement is enforceable whether or not the debtor knew at the time he made
the agreement that the debt had been extinguished by prescription- s 14 (3) (b)
(c) Can a court take note of prescription on its own motion ? [2]
A court cannot take note of prescription on its own motion, prescription has to be
raised in pleadings- see s 20
THE SHOP LICENCES ACT

Outline the procedure for obtaining a shop licence from a local authority. [7]
NOVEMBER 2010

The applicant for the issue of a new licence must publish two notices, one in the
Gazette and another in a newspaper circulating in the area of the local authority to
which the application will be made, of intention to make the application (s 14(1)). The
notices must be published between 28 and 42 days before the date when the
application is to be made.
The actual application has to be made in the prescribed form, to the local authority in
whose licensing area the business for which the licence is sought is to be conducted (s
16(1)). The applicant must include the prescribed fee and any information required by
the local authority, together with documents and proof of compliance with any
applicable legislation. It is possible for persons who have objections to issue of the
licence to lodge them with the local authority (s 15(1)). The application is considered
at a meeting of the local authority (sections 8(1) and 18(1)) and a decision is given in
accordance with s 20 of the Act. If the application is granted, the licence is issued
upon payment of the appropriate fee within the stipulated time of 3 months, failing
which the licence lapses (s 21(1); s 21(4)).

A renewal of the licence may be obtained on application, from the 1st of October of
the year in which the licence was issued s 23(1). The application is made on the
prescribed form, supported by a copy or the original of the licence to be issued. The
local authority issues the licence upon payment of the appropriate fee.

Explain whether a new shop licence should be applied for in each of the following cases:

(a) a businessman operating from the central business district of Harare has written
to the City Council advising that he has been given notice to vacate the premises
that he is operating from and that he will relocate to a shop at the business
centre in Avondale.
(b) a businesswoman operating from the central business district of Harare has
written to the City Council advising that she has acquired the stand adjoining
her premises to which she intends to extend her operations. [8] NOVEMBER 2011

The businessman who wishes to relocate or remove his business from the Harare CBD to
Avondale has to apply for a new licence in terms of Part IV and specifically section 16 of
the Shop Licences Act. The licensing authority may upon prior application being made to it
by the businessman dispense with the requirement to give any notice or to submit any
document, plan, specification or report in connection with the application for the new licence.
The businessman does not have to pay the appropriate fee for the new licence for the new
licence until the original licence has expired. See section 27.
The businesswoman who intends to extend her operations to which her licence relates from
the licenced premises to the stand adjoining her premises which she has acquired has to apply
for a new shop licence in terms of Part IV of the Shop Licences Act. The application must
state the details of the extension desired. The licensing authority may upon prior application
being made to it by the businesswoman dispense with the requirement to give any notice or to
submit any document, plan, specification or report in connection with the application for the
new licence. The businesswoman does not have to pay the appropriate fee for the new licence
for the new licence until the original licence has expired. See section 26

Your client who operates a business in the town centre wishes to object to the issue of a
shop licence to a potential competitor.
Advise him on what steps he must take. [5] JUNE 2013

- Client has to object to the application of a shop licence by the competitor within 7
days of the last publication of the notice to make an application- see s15
- In raising the objection client has to give notice in writing to the licensing authority of
his intention to oppose the application for a new licence by the competitor
- The written objection shall state the grounds on which his objection is based
- Client will have to appear before the licensing authority in person or represented by a
legal practitioner at the hearing of the application for the issue of a new licence -
section 18
- During the hearing client may submit any statement in writing and may give evidence
before the licensing authority. Client may also call any witness and cross examine any
witness called by the other party or by the licensing authority.
- Non appearance by client at the hearing will not be a ground for the dismissal of the
objection.

Advise each of the following Bulawayo residents whether they require to obtain shop
licences from the Municipality of Bulawayo in terms of the Shop Licences Act [Chapter
14:17]— [9] JUNE 2014

(a) Mrs A who intends to sell soft drinks to her employees within her work
premises situated in the central business district;
Mrs A does not need to obtain shop licence because the Act does not apply to the selling by
an employer on her premises to her own employees- see section 3 as read with paragraph
3 of the 1st Schedule of the Shop Licences Act
(b) Mr B, a legal practitioner who intends to open a practice in the central
business district;
Mr B does is not required to obtain a shop licence because the Act only applies to the selling
and letting for hire any goods and legal do not sell goods but rather provide a service in the
form of legal advice and legal practitioners do not operate in a shop.
(c) Mr C who intends to sell goods at the Zimbabwe International Trade Fair. Mr C does
not need to obtain a shop licence because the Act does not apply to the selling of goods by a
trader from his exhibit at the ZITF- section 3 as read with paragraph 12 of the 1st Schedule

QUESTION 4 [ 6 Marks] NOVEMBER 2015

(a) Who is the shop licensing authority for an area which is not under the
jurisdiction of a local authority ? [2]

A board established by the Minister as may be specified by the Minister and

consisting of three inhabitants of the district is the shop licensing authority for an area
which is not under the jurisdiction of a local authority. See section 7 (1)
(b) What matters must be specified in a shop license ? [2]

The following matter must be specified in a shop license;

1. the name of the person to whom the licence has been issued;
2. the trade or business and the class or type of goods to which the licence
relates;
3. the premises to which the licence relates;
4. the number, situation, class or type of the vending machine or
machines to which the licence relates;
5. any condition, restriction or requirement subject to which the licence
has been granted. See section 11

(c) Is a shop licence transferrable to any other person ? [2]

A shop licence is transferrable to any other person in limited circumstances where

the person trading under the licence issued to another person is acting in a
representative capacity in relation to the holder of the licence (executor, trustee,
assignee, curator, liquidator or judicial manager) – (s 28(2)).
LEGAL PRACTITIONERS ACT- always in the exam

You are approached by a debt collector who informs you that two weeks ago, acting on
the instructions of One Supermarket, he wrote a letter to a customer of the supermarket
threatening to issue summons against him unless he immediately paid for goods that he
had obtained on credit from the supermarket. The letter also stated that the property of
the customer would be sold to recover the amount owed and that the customer would be
liable for the debt collector’s costs. Yesterday the debt collector was visited by the Police
who advised him that as he was not a legal practitioner, it was illegal for him to collect
debts on behalf of other persons. The Police have threatened to arrest him. He wants to
know whether he should stop debt collection.
Advise him.[10] NOVEMBER 2010

The practice of law is a privilege for registered legal practitioners as provided by section 8 of
the Legal Practitioners Act – s 8. It is a criminal offence for a person who is not a registered
legal practitioner to practice as such or in any manner hold himself out or pretend to be or
make use of any words or any name, title, designation or description implying or tending to
the belief that he is a legal practitioner or is recognised by law as such – section 9 (1). In casu
the debt collector hold himself out as a legal practitioner when he threatened to issue
summons aganinst the customer and execute the customers property. The threats led the
customer to the belief that the the debt collector is a legal practitioner when in actual fact he
is not. The debt collector also contravened section 9 (2) (b) of the Act when in expectation of
a fee assisted One Supermarket to threaten to sue out summons or process against the
customer. It can be noted that the debt collector contranvened two provisions of the Act.
However he should not stop debt collection, he should simply be care in his conduct of debt
collection such that he does not contravene the above provisions of the Act.

Anna engaged Moyaka Legal Practitioner to act for him not knowing that Moyaka did
not have a practising certificate. Moyaka disappeared with the deposit of $500 which
Anna had paid.
Advise Anna on her prospects of recovering the money in terms of the Legal
Practitioners Act [Chapter 27:07]. [6] NOVEMBER 2011

Section 70 of the LPA provides for compensation for loss through the dishonesty conduct of
a legal practitioner. It is clear that Moyaka was a legal practitioner although he did not have a
practising certificate. Anna will have to prove to the satisfaction of the Council of the Society
that he has sustained a loss in consequence of theft, fraud or dishonesty committed by
Moyaka. It is evident that Moyaka disappeared with a deposit of $500 which had been paid
thus it will not be difficulty for Anna to prove loss as a result of theft or dishonesty conduct
by Moyaka. However before Anna makes an application to the council of the Society she has
to exhaust all legal remedies, in casu she has no chance of exhausting other remedies because
Moyaka disappeared. In terms of section 70 (3) a grant out of the Compensation can be paid
to a person who has suffered loss as a result of dishonesty conduct by a registered legal
practitioner, despite the fact that the legal practitioner did not have a valid practising
certificate. The fact that Moyaka did not have a practising certificate will not bar Anna is
receiving compensation out of the Law Society Compensation Fund. However Anna has to
apply for compensation within the prescribed time rules- s 70 (4). If Anna applies to the
Council of the Society for the recovery of money her chances of success are high.

Advise Maurice, a member of the Institute of Chartered Accountants of Zimbabwe,

whether it is lawful for him to draft on behalf of a client for a fee the following
documents:
(a) a will,
(b) a memorandum of association of a company,
(c) summons for the recovery of a commercial debt. [6] JUNE 2012

- It is unlawful for Maurice a Chartered Accountant to draft a will for a fee on behalf of
a client because in terms of section 10 (1) (a) only registered legal practitioners in
possession of a valid practising certificate may draft a will for a fee.
- It is lawful for Maurice a Chartered Accountant to draft for a fee a memorandum of
association of a company on behalf of a client, this is because there is no prohibition
against members of the Institute of Chartered Accountants of Zimbabwe from drafting
a memorandum of association of a company for a fee – section 10 (5) (a)
- It is unlawful for Maurice to draft a summons for a fee on behalf of a client because in
terms of section 10 (1) (b) only registered legal practitioners in possession of a valid
practising may draft any legal process.

Moyo who is a sole practitioner and principal of the firm Moyo Legal Practitioners has
been approached by Walter who has been recently admitted as a legal practitioner.
Walter seeks employment as a legal assistant. Moyo who himself only completed his
pupillage in January 2012 is not sure whether he is authorised to engage Walter as a
pupil.
Advise him. [4] NOVEMBER 2012

Moyo must on top of being a registered legal practitioner also be in possession of a valid
practising certificate. He must look at whether the terms and conditions of the practising
certificate permit him to practice in association with any other person. If the practicing
certifificate permits him then he can employ Walter since he has been recently been admitted
as a legal practitioner. If Moyo is to employ Walter he will not have contravened the
provisions of against practice in association with unqualified persons set out in section 11 of
the Legal Practitioners Act. MOYO MUST HAVE BEEN IN PRACTICE FOR 4 YEARS
FOR SOMEONE TO WORK UNDER HIM

Misheck is a qualified legal practitioner who has completed his pupillage and is hence
entitled to become a principal or partner in a law firm. Sarudzai, a friend of his who is
an architect invites Misheck to enter into a partnership with him in which they will be
equal partners conducting the business of legal practitioners and architects. They will
then enjoy the benefit of sharing premises and clients the profits being divided between
them equally.
Advise Misheck whether there any legal obstacles to him going into partnership with
Sarudzai. [8] JUNE 2013

There are legal obstacles that prevent Misheck from going into partnership with Sarudzai.
Firstly section prohibits registered legal practitioners from practising in association with
unqualified persons. It is clear that Sarudzai is an unqualified person since she is an architect
and not a registered legal practitioner. In terms of section 11 (4) no registered legal
practitioner shall make over, share or divide his professional fees with any person other than
a registered legal practitioner practising as a legal practitioner. It is evident that Misheck and
Sarudzai intend to share the profits equally between them as partners and this will be a clear
violation of the statute. In terms of section 11 (5) it is an offence to violate any provision in
section 11 and it has been shown that the intended partnership will violate section 11 (4) of
the LPA. It is also an unprofessional, dishonourable and unworthy conduct in terms of
section 23 (1) (i) for a registered legal practitioner to remunerate an unregistered person by
way of a share in the profits of his practice. Thus it can said that not only will the partnership
be an offence but it will also be unprofessional conduct on the part of Misheck.

Solo was admitted as a legal practitioner by the High Court yesterday. He wishes to
work as an advocate but is not certain whether pupillage requirements apply to
advocates. In particular he wants to know whether there would be any impediment to
him setting up an office as an advocate from the onset.
Advise him.[6] JUNE 2014

A legal practitioner cannot practice as a principal, whether on his own account or in

partnership or association with any other person, unless he has been employed as a legal
assistant for not less than 36 months after registration with a legal practitioner. See section 4
of the Legal Practitioners (General) Regulations, 1999/ SI 137 of 1999. This means that
Solo has to work under the supervision of someone who has been in practice for at least 4
years for a total period of 3 years before he can set up office as an advocate. In Zimbabwe the
legal profession is not divided into attorneys and advocates as the case in South Africa, hence
the LPA apply with equal force to both attorneys and advocates. In any event advocates do
not set up an office but rather work in offices called advocate chambers and they must be
registered with the bar association. Thus it can be said that there are impediments to Solo
setting up an office as an advocate from the onset he must serve 3 years of tutellage from the
date of registration.

Nyepai, a legal practitioner, wishes to enter into a contingency fee arrangement with a
client, Maria, who has instructed him to institute a claim in respect of injuries which she
suffered in a motor-vehicle accident.
Explain to Nyepai the steps which he must take to enter into the arrangement, the fee
that he is permitted to charge and the options open to Maria should she be dissatisfied
with the arrangement or with Nyepai’s fee. [8] NOVEMBER 2014

Steps to take b4 entering into a contingency fee arrangement;

- Nyepai has to enter into arrangement if in his opinion there is a reasonable prospect
of success in the proceedings- S 4 of the Legal Practitioners (Contigency Fee
Agreements) Regulations, 2014 / SI 154 of 2014
- A brief summary of the matters provided in section 5 (a) – (f) of the Regulations has
to be provided by Nyepai to Maria in writing before a contingency fee agreement is
entered into.
- The contingency fee agreement has to be in writing and must be signed by both
Nyepai and Maria- section 22C of the LPA. The agreement has to reflect the
summaries that have been provided – section 5 of the Regulations
- The contigency fee arrangement must specify the matters set out in section 6 (2) (a)-
(f) of the Regulations
The permissible fees will be either;
(a) The normal fee of Nyepai, plus a premium that will not exceed the normal fee by
more than 200%, or;
(b) Not more than 25% of the total amount awarded to Maria
Whichever is the lesser amount. See s 22E of the LPA read with section 6 (3) and
(4) of the Regulations.

If Maria is dissatisfied with the arrangement or with Nyepai’s fee , she may refer a
contingency fee agreement or the fee claim thereunder for review by the Council of the Law
Society of Zimbabwe. On review the agreement or the fee claimed may be set aside or
modified. – see section 22F of the LPA

Question 2 [ 12 Marks] NOVEMBER 2015

Discuss the correctness of each of the following statements.
(a) Every registered legal practitioner is a member of the Law Society of Zimbabwe.
[3]
It is not correct to say that every registered legal practitioner is a member of the Law
Society of Zimbabwe. In terms of section 52 (1) it is not mandatory for a registered
legal practitioner to be a member of the Law Society of Zimbabwe because one only
has a right to become a member and a right to cease to be a member. Thus one has a
choice to be or not to be a member of the Law Society of Zimbabwe.

(b) Every registered conveyancer must be a registered legal practitioner.[3]

It is correct to say that every registered conveyancer must be a registered legal
practitioner. The reason being in terms of section 4 (2) (a) which provides for
applications for registration one may on application to be registered as a legal
practitioner combine an application to be registered as a conveyancer. One must have
a legal background to be a conveyancer
(c) It is an offence for a person who is not a registered legal practitioner to, for a fee,
draw a will on behalf of any other person. [3]
It is correct to say that it is an offence for a person who is not a registered legal
practitioner to, for a fee, draw a will on behalf of any other person. This is the general
position provided by section 10 (1) (a) however there are exceptions to this general
rule provided in section 10 (4) (a)- (c).

(d) A decision by the Council of the Law Society to withdraw a practicing certificate
on the grounds that the holder has not complied with its terms or conditions is
appealable to the High Court. [3]

It is incorrect to say that the decision by the Council of the Law Society to withdraw a
practicing certificate on the grounds that the holder has not complied with its terms or
conditions is appealable to the High Court. In terms of section of section 79 of the
LPA appeals from decisions of the Council of the Law Society lie with the Supreme
Court.
LABOUR ACT- always in the exam

What are the procedures for the declaration of a service as an essential service in terms
of the Labour Act [Chapter 28:01]. [5] NOVEMBER 2010

In terms of section 102 of the Act an essential service means any service the interruption of
which endangers immediately the life, personal safety or health of the whole or any part of
the public. The procedures for the declaration of a service as an essential service is as
follows;
- Minister consults the appropriate advisory council, if any, appointed in terms of
section 19 of the Act. The purpose of the consultation is to declare a service as an
essential service.
- After the consultation the Minister of Public Service, Labour and Social service in a
notice in the Gazette then publishes services that were declared as essential services.
-
NB The following services were declared essential services- Labour (Declaration of
Essential Services) Notice, 2003 SI 137 of 2003
(a) Services provided by the fire brigade or any other officer of the services
(b) Services relating to the supply and distribution of water
(c) Veterinary services
(d) Services provided by revenue specialists involved in the performance of security and
health checks at airports and other ports of entry on behalf of ZIMRA
(e) Health services
(f) Transport and communication services
(g) Electrical services provided by a person licenced under the Electricity Act
(h) Services provided by any public broadcaster during a state of disaster.

Outline the obligations of the employer in terms of the Labour Relations (HIV and
AIDS) Regulations, 1998. [8] NOVEMBER 2010

NB The above cited regulations in SI 202 of 1998 were repealed and replaced by regulations
of 2014 published under SI 105 of 2014.

An employee of XYZ Ltd has approached a labour officer to register an unfair labour
practice which he claims occurred two and a half years ago when XYZ Ltd refused to
award him a bonus. XYZ Ltd agree that they are guilty of unfair labour practice but
argue that the employee should have referred the matter to the labour officer at the
time the bonus was paid to the other employees and not two and a half years later.
Advice the labour officer. [5] NOVEMBER 2011

The Labour Act provides for prescription of labour disputes. Section 94 (1) provides that a
labour officer shall entertain an unfair labour practice that has come to his attention unless it
within two years from the date when the unfair labour practice first arose. Those labour
disputes prescribe after two years. In this came the application by the employee is 6 months
late thus his claim has prescribed. Since the employees claim was extinguished by
prescription the Labour Officer does not have the powers to entertain the employees’s claim.

Question 4
(a) ABC Ltd has filed an appeal to the Labour Court against a determination by an
arbitrator awarding damages to an employee in lieu of reinstatement.

Advise the company whether the filing of the appeal has the effect of suspending the
determination.

The common law rule is that the noting of an appeal automatically suspends the
judgment appealed against. See Wood NO v Edwards and Anor 1966 RLR 336 (G);
Whata v Whata 1994 (2) ZLR 277 (S). However the common law rule only applies to
superior courts such as the High Court and the Supreme Court, which have powers to
regulate their own process. Inferior courts such as the Labour do not have such power to
regulate their own process, their powers are derived from the enabling legislation. In this
case one has to look at the provisions of the Labour Act. In terms of section 92E (2) of
the Act an appeal to the Labour Court does not have the effect of suspending the
determination appealed against. Thus it can be said that the filing of the appeal by ABC
Ltd does not have the effect of suspending the determination of the arbitrator.

An appeal to the Labour Court against an arbitrator’s decision under s 98(10) is an appeal
in terms of the Act. The provisions of s 92E are unambiguous and unequivocal and apply
to every appeal in terms of the Act, including an appeal under s 98(10). Section 92E
precludes the suspension of the decision appealed against. The common law presumption
against the operation and enforceability of judgments appealed against has thus been
explicitly ousted by s 92E in the case of arbitral awards rendered under s 98.

(b) DEF Ltd has filed an appeal to the Supreme Court against a decision of the Labour
Court setting aside the dismissal of an employee.

Advise the company whether the filing of the appeal has the effect of suspending the
judgment of the Labour Court. [8] JUNE 2012

The provisions of s 92E are unambiguous and unequivocal and apply to every appeal in terms
of the Act. Section 92E precludes the suspension of the decision appealed against.
The common law presumption against the operation and enforceability of judgments
appealed against has thus been explicitly ousted by s 92E. The language of subss (1) and (2)
of s 92E encompasses every appeal made in terms of the Act, including one from the Labour
Court to the Supreme Court. Taking those headings into account, it becomes clear that s 92E
is confined to appeals made to the Labour Court generally, while s 92F deals specifically
with appeals from the Labour Court to the Supreme Court. An appeal under s 92F is thus not
an appeal “in terms of this Act” for the purposes of s 92E. Consequently, an appeal from the
Labour Court to the Supreme Court would, in accordance with the general common law rule,
operate to suspend that decision, subject to the right of the successful party to apply for
execution pending appeal.

Advise the following employees. [5] JUNE 2012

(a) Amon who is required to report for work every day and whose employer refuses
to give him any off days.

An employee is entitled to 24 hours of rest each week in terms of section 14C (1).
This statutory requirement cannot be derogated from to do otherwise will be to
contravene the provisions of the Act. Thus my advice to Amon is that he should cliam
his entitlement of weekly rest from his employer.

(b) Barbara who joined her present employer six months ago and whose employer is
refusing to grant her maternity leave and is insisting that she must instead
terminate her employment.

In terms of section 18 (1) of the Labour Act maternity leave is granted for a period of
98 days on full pay to a female employee who has served for at least one year. In
casu, Barbara has only served for six months, thus she is not entitled to maternity
leave as she does not meet the statutory time period. The refusal of by the employer is
not a contravention of section 18 and therefore it is not an unfair labour practice.

“The procedures for the dismissal of an employee in terms of the Labour (National
Employment Code of Conduct) Regulations, 2006, are cumbersome and onerous.”
Discuss. [10] NOVEMBER 2012

NB SEE REGULATIONS

Question 2 (10 marks) JUNE 2013

(a) Name any five matters that must be provided for in an employment code of
conduct.
The following must be provided for in an employment code of conduct;
- the disciplinary rules to be observed in the undertaking, industry or workplace
concerned, including the precise definition of those acts or omissions that constitute
misconduct
- the procedures to be followed in the case of any breach of the employment code
- the penalties for any breach of the employment code, which may include oral or
written warnings, fines, reductions in pay for a specified period, suspension with or
without pay or on reduced pay, demotion and dismissal from employment
 - the person, committee or authority that shall be responsible for implementing and
enforcing the rules, procedures and penalties of the employment code
- the notification to any person who is alleged to have breached the employment code
that proceedings are to be commenced against him in respect of the alleged breach
- the right of a person referred to in paragraph (e) to be heard by the appropriate person,
committee or authority referred to in paragraph (d) before any decision in his case is
made
- a written record or summary to be made of any proceedings or decisions taken in
terms of the employment code, which record or summary shall be made at the time
such proceedings and decisions are taken.
SEE Section 101 (3) (a) – (g) of the Labour Act

(b) The manager of BBB Ltd has received information that the employees intend to go
on strike without prior communication whatsoever to him of their grievances.
Advise him on what steps would have to be taken in terms of the Labour Act to prevent
the employees from proceeding with the strike.

Employees have a right to collective job action, such as a strike, however a strike will be an
unlawful collective job action if it does not comply with the requirements set out in section
104 (2). One of the requirements for a lawful strike is that 14 days’ notice must be served on
the other party. In this case there was no prior communication with the employer of the
nature of the employees’ grievances, thus there was no attempt to conciliate the dispute.
Since the workers intend to go on strike without attempting to conciliate the dispute the strike
is prima facie unlawful.
In terms of section 106 (1) if employees or any other party threatens, recommends,
encourages, incites, organises or engages in any unlawful collective action the employer may
apply to the Minister to issue an order calling upon the employees to show cause why a
disposal order should not be made in relation to the unlawful collective job action. Thus the
Mananger may apply for a show cause order to the Minister of Labour. However the
Minister may call both parties and allow them to make submissions before issuing a show
cause order. Section 106 (2) specifies the contents of a show cause order.

After a show cause order has been issued the parties ie employer and employee will appear
before the Labour Court on a date specified in the show cause order and they will be allowed
to make representations. After conducting the inquiry the Labour Court may issue a disposal
order directing that the unlawful collective action be terminated, postponed or suspended.- s
107 (2) (a).

Question 9 (6 Marks) JUNE 2014

(a) M. N. Ltd has filed an appeal to the Labour Court against a determination by an
arbitrator awarding damages to an employee in lieu of reinstatement.
Advise it whether the filing of the appeal has the effect of suspending the
determination.
The filing of the appeal does not have the effect of suspending the determination – section
92E (2). ALSO READ JUNE 2012 QUESTION ABOVE

(b) P. Q. Ltd has filed an appeal to the Supreme Court against a decision of the
Labour Court setting aside the dismissal of an employee.
Advise the company whether the filing of the appeal has the effect of suspending the
judgment of the Labour Court.

The filing of the appeal has the effect of suspending the judgement of the Labour Court
because the Act does not exclude the common law that the noting of an appeal suspends the
decision appeal against. Act is silent on appeals against decisions of the Labour Court

Barbara commenced work for Eboa and Co as a receptionist in January 2014. In July
2014, she applied for maternity leave which was refused by the employer. Barbara
believes that the refusal by the employer constitutes an unfair labour practice.
Advise Barbara the options open to her and what her chances of success are. [7]
NOVEMBER 2014

Maternity leave is granted for a period of 98 days on full pay to a female employee who has
served for at least one year – section 18 (1) of the Labour Act. In this case Barbara has only
served for six months, thus she does not meet the one year requirement. Unless there are
favourable conditions to Barbara provided in her employment contract she is not entitled to
maternity leave. The refusal to grant her maternity leave by her employer is justified since
she has not being employed for at least a year, and the refusal does not constitute an unfair
labour practice. The options that are available to her is other to resign from employment or to
seek an unpaid maternity leave from her employer.

A disciplinary committee has found an employee of XYZ Ltd guilty of misconduct and
has recommended the dismissal of the employee.

Advise the company whether the employee is entitled to a retrenchment package in

terms of the recent amendment to the Labour Act [ Chapter 28:01] by the Labour
Amendment Act, 2015. [8] NOVEMBER 2015.

It is clear that the employee was dismissed on the on the ground of misconduct. A
retrenchment package is available to employees who lose their employment under any one of
the circumstances specified in section 12 (4a). A retrenchment package is also available to
employees who lose their employment on retrenchment – see s 5 of the Labour Amendment
Act, 2015. A retrenchment is defined in section 2 of the principal Act. Since the employee
did not lose his employment on retrenchment in terms of section 12C or on any of the
grounds in section 12 (4a) of the Amendment Act he is not entitled to a retrenchment
package.
MATRIMONIAL CAUSES ACT – 90% chance to be in the exam

In terms of the Matrimonial Causes Act [Chapter 5:13], what are the circumstances
which a court may take into account as showing that a marriage has irretrievably
broken down? [6] JUNE 2012

The circumstances which a court may take into account as showing that a marriage has
irretrievably broken down are the following;

(a) the parties have not lived together as husband and wife for a continuous period of at
least twelve months immediately before the date of commencement of the divorce action
(b) the defendant has committed adultery which the plaintiff regards as incompatible with the
continuation of a normal marriage relationship
(c) the defendant has been sentenced by a competent court to imprisonment for a period of at
least fifteen years or has, in terms of the law relating to criminal procedure, been declared
to be a habitual criminal or has been sentenced to extended imprisonment and has, in
accordance with such declaration or sentence, been detained in prison for a continuous
period of, or for interrupted periods which in the aggregate amount to, at least five years,
within the ten years immediately before the date of commencement of the divorce action
(d) the defendant has, during the subsistence of the marriage—
(i) treated the plaintiff with such cruelty, mental or otherwise; or
(ii) habitually subjected himself or herself, as the case may be, to the
influence of intoxicating liquor or drugs to such an extent;
as is incompatible with the continuation of a normal marriage relationship;

SEE section 5 (2) (a)- (d)

In making an order for the division of the assets of the spouses in a divorce action,
identify five circumstances which the court is required to have regard to. [5]
NOVEMBER 2012

- the income-earning capacity, assets and other financial resources which each
spouse and child has or is likely to have in the foreseeable future
- the financial needs, obligations and responsibilities which each spouse and child has
or is likely to have in the foreseeable future
- the standard of living of the family, including the manner in which any child was
being educated or trained or expected to be educated or trained
- the age and physical and mental condition of each spouse and child
- the direct or indirect contribution made by each spouse to the family, including
contributions made by looking after the home and caring for the family and any other
domestic duties
 - the value to either of the spouses or to any child of any benefit, including a pension
or gratuity, which such spouse or child will lose as a result of the dissolution of the
marriage

- the duration of the marriage. SEE SECTION 7 (4) (a)- (g)

Question 2

(a) Outline the grounds upon which a decree of nullity of marriage may be granted.

A decree of nullity of marriage may be granted on the following grounds;

- that the marriage has not been consummated owing to the wilful refusal of the
defendant to consummate the marriage
- that either party to the marriage was at the time of the marriage mentally disordered
or defective within the meaning of the Mental Health Act [Chapter 15:06]
See section 13 (1) (a)- (b)

(b) What is the effect of a decree of nullity on the legitimacy of the children of the
“marriage”? [8] JUNE 2013

In terms of section 14 the effect of a decree of nullity on the legitimacy of the

children is that the children shall be deemed to be legitimate children notwithstanding
the annulment.

Your client informs you that she has been married to her husband in an unregistered
customary law union for the past fifty years. Her husband has of late been subjecting
her to abuse and she has decided to divorce him. She is however worried that although
he is the one to blame for the breakdown of the marriage, the courts might not award to
her a fair share of the matrimonial property.
Advise her.[6] JUNE 2014

Marriages in terms of the Marriage Act are dissolved by a decree of divorce granted by the
High Court, while customary law marriages are dissolved by a decree of divorce granted by
the Magistrate Court – section 4. One of the grounds for divorce is irretrievable breakdown
of marriage of the marriage. The fact that the plaintiff was subjected to abuse during the
subsistence of the marriage is a proof of the irretrievable breakdown of marriage. The
appropriate court in this case the Mag court may at the time of granding the decree of
divorce grant a order of the division of the assets of the spouses. In making an order for the
division of the matrimonial property the court will have regard to the circumstances laid out
in section 7 (4) (a) – (g) of the MCA. In the case of Takapfuma v Takapfuma it was held
that the court will have regard to the conduct of the parties in the breakdown of the marriage
if it is just to do so. In these circumstances it can be said that the fact that the client is to not
to blame for irretrievable breakdown of the marriage will help her in getting a fair share of
the matrimonial property.

On what grounds would a marriage be voidable in terms of the Matrimonial Causes

Act [Chapter 5:13]? [5] JUNE 2014

A marriage is voidable on the following grounds set out in section 13 (1) (a)- (b);

- that the marriage has not been consummated owing to the wilful refusal of the
defendant to consummate the marriage
- that either party to the marriage was at the time of the marriage mentally disordered
or defective within the meaning of the Mental Health Act

Shurai who is married to Hlalo in an unregistered customary law union seeks your
advice. She has been married to Hlalo for the past ten years and the marriage has been
blessed with five children. During the subsistence of the marriage, they acquired a
number of houses and motor-vehicles all of which are registered in Hlalo’s name The
two have lost love and affection for each other. Shurai wants to know—

(a) which court she can approach to seek an order of divorce;

Shuvai has to approach the Magistrate court for an order of divorce as it is the
appropriate court in terms of section 5 as read with section 2 which defines an
appropriate court as a magistrate court in relation to a marriage concluded in
accordance with customary law.
(b) what the provisions of the law are regarding the sharing of the matrimonial
property;

Section 7 of the MCA provides for an order for the division of matrimonial property on top
of a decree of divorce. In terms of section 7 (1) (a) in making an order for the division of
property the court may make an order for the transfer of property from one spouse to the
other. Thus the fact that the property is registered in Hlalo’s name will not hinder the court
from transferring it into the name of Shurai. Section 7 (4) (a)- (g) list the circumstances that
may be taken into account with the magistrate court in making an order for the division of the
matrimonial property. Such factors include the duration of the marriage and the standard of
living of the family among other considerations.

(c) what Hlalo’s obligations towards the maintenance of herself and the children
after divorce are, and the court she must approach to seek such maintenance.[9]
NOVEMBER 2014

In terms of section 7 (1) (b) of the MCA the court which grands the decree of divorce may
also make an order for the payment of maintenance. Since the parties were marriage in terms
of customary law, the Magistrate court, is the appropriate court to approach when seeking a
maintenance order. Hlahlo has obligations to maintain Shuvai and the five children, he can
make a lump sum payment or may make periodic payments. If he makes periodic payments
the duration of the period of maintenance is governed by section 8 of the MCA.

What are the grounds upon which a marriage can be dissolved by a decree of divorce
in terms of the Matrimonial Causes Act [Chapter 5:13]? [6] NOVEMBER 2014

The two grounds for a decree of divorce are provided by section 4 of the Act and they are as
follows;
- irretrievable break-down of the marriage as contemplated by section five.
- incurable mental illness or continuous unconsciousness of one of the parties to the
marriage as contemplated by section six.

Question 7 (9 marks) NOVEMBER 2015

(a) Is a decree of divorce granted in a foreign country recognized in Zimbabwe ? [3]

Yes a decree of divorce granted in a foreign country is recognized in Zimbabwe,

subject to the following conditions set out in section 12 (1) (a) and (b). The
appropriate court must be satisfied that the law of that country contains provisions
which correspond substan tially to the relevant provisions of section three or if the
President has, by proclamation in a statutory instrument, declared that the laws of
that country contain provisions which correspond substantially to the relevant
provisions of section three.
(b) When does an order for the periodic payment of maintenance in respect of a
child cease ? [3]

Section 8 (2) (a)- (d) of the MCA provides for the duration of periodic payment of
maintenance in respect of a child and the order cease;

(a) when the child dies or marries; or

(b) when the child is adopted; or
(c) when the child attains the age of eighteen years; or
(d) when the child becomes self-supporting;
whichever occurs the earlier.

(c) What are the grounds of divorce upon which a court will grant a decree of
divorce ? [3]
- irretrievable break-down of the marriage as contemplated by section five;
- incurable mental illness or continuous unconsciousness of one of the
parties to the marriage as contemplated by section six.
WILLS ACT

Explain whether each of the following persons is capable of receiving any benefit
conferred in terms of the will: [8] NOVEMBER 2011 and JUNE 2014
(a) a guardian of the testator;
A guardian of the testator is not capable of receiving any benefit conferred in terms of
the will, if the testator was a minor at the time the will was made. However a parent
who is a guardian of the testator may receive a benefit conferred in terms of the will-
section 6 (2) (e) (i).
(b) a person who has been found guilty of culpable homicide in respect of the death
in a car accident of the testator;
A person who has been found guilty of culpable homicide in respect of the death in a
car accident of the testator is capable of receiving any benefit conferred in terms of
the will. This is because culpable homicide is not one of the listed exceptions under
section 6 (2) to the general rule that nay person any receive a benefit in terms of the
will
(c) a person who witnessed the signing of the will by the testator;
A person who witnessed the signing of the will by the testator is capable of receiving
any benefit conferred in terms of the will, this is because the exception in section 6
(2) (a) does not apply to him because he did not sign the will as a witness.
(d) a child of the person who wrote out the will on the instructions of the testator.
The child of the person who wrote out the will on the instructions of the testator is
not capable of receiving any benefit in terms of the will by virtue of section 6 (2) (f).

Moses never went to school and is unable to read or write. He has considerable property
and wishes to leave a will to ensure that his children benefit from his estate.
Advise Moses whether he can execute a will and if so how.[8] JUNE 2013

The Wills Act provide for the capacity and formalities in making a will. A will may be
executed by a person of or over the age of 16 years unless at the time of making the will he is
mentally incapable of appreciating the nature and effect of his act – section 4 (1). It appears
Moses is over the age of 16 years hence he has the capacity to make a will. The formalities
for the making of a will are set out in section 8 of the wills act. In terms of the section a will
has to be in writing – 8 (1) (a). In these case Moses is unable to read and write, at his
direction another person may draft the will on his behalf. However the other person must sign
each page of the will as closely as may be to the end of the writing on the page concerned – 8
(1) (b). In terms of section 8 (1) (c) Moses must acknowledge the other person’s signature in
the presence of two or more competent witnesses present at the same time. A competent
witness is defined in section 7 as an person of or over the age of 16 years who is competent
to give evident in a court of law and is physically capable of seeing a testator sign his will or
acknowledge his signature on a will. Each competent witness must then sign each page of the
will or acknowledge his signature on each page of the will in the presence of the Moses and
of the other witness – s 8 (1) (d). However for the will signed by some other person in the
testators presence and at his direction to be valid in terms of section 8 (2) either;
(i) a magistrate, presiding officer of a community court, justice of the peace, commissioner of
oaths or designated official, at any time before the testator’s death—
A. certifies on the will that he has satisfied himself as to the identity of the testator and that
the will is the testator’s will; and
B. signs each page of the will ,or;
(ii) an appropriate court, on being satisfied that the will is the testator’s will and that it was
duly made by the testator, declares the will to be a valid will

Papa and Gogo who are husband and wife have executed a joint and mutual will. Gogo
is worried that she might not be able to revoke the will.
Advise her. [5] NOVEMBER 2014

Section 15 of the Wills Act provides for the revocation of wills. In terms of subsection 1
thereof a testator may at any time before his death his or her will wholly or partly and either
absolutely or conditionally.In casu we have a joint will it must be revoked at a time when
both Papa and Gogo are alive to avoid complications. In terms of section 15 (2) a joint and
mutual will is not revocable by the surviving testator to the extent that the will effects a
massing of the estates or any property of the joint testators and if the surviving testator has
accepted some benefit under the will. My advice to Gogo is that in light of the provisions of
section 15 she has to revoke the joint and mutual will when Papa is still alive because if he is
to predecease her she might not be able to revoke the will then.

Question 9 (6 Marks) NOVEMBER 2015

What are the requirements for the making of –
(a) a soldiers will [3]
- The soldier or testator must be on active service at the time of making the will –
section 10 (2)
- The will must be in writing – s 10 (2)

(b) an oral will [3]

- the oral declaration must be regarded as a valid will according to any law or custom to which the
testator was subject when he made the declaration.- section 12 (2) (b)
- the value of the testator’s estate on the date of his death must not exceed a specified amount-
section 12 (2) (b)
- the declaration must be made in the presence of witnesses