ZQMS-ARC-REC-002

ASSIGNMENT COVER

REGION: _______MIDLANDS______________________________________________________

PROGRAM: __BBFH_________________________________________INTAKE: __32 ________

FULL NAME OF STUDENT: _MASEKESA LOGIC_________________PIN:P1823896C _____

MAILING ADDRESS: ZRP MKOBA POLICE CAMP P.BAG 25, GWERU _________________

CONTACT TELEPHONE/CELL: _0715343655_________________ ID. NO.: 04-130382-V-04___

COURSE NAME: BUSINESS LAW_1_______________CODE: BCC105 _______

ASSIGNMENT NO.___________1_____________ DUE DATE: _10/03/19 __________________

ASSIGNMENT TITLE: _____QUESTION 1 AND 2 ____________

_________________________________________________________________________________

______________________________________________________________________________

MARKER’S COMMENTS: ______________________________________________________

______________________________________________________________________________

OVERALL MARK: _____________ MARKER’S NAME: ________________________

MARKER’S SIGNATURE:_______________________________ DATE: ___________

Question 1

Law refers to body of rules and regulations that govern human conduct in a country. They are

basically three types of rules, rules which forbid certain types of behaviour, rules which require

people to compensate others whom they injure and rules which set out what must be done to

carry out particular activities for example formation of a company. These rules may be made by

parliament or bodies such as local authority who are given powers by parliament. The judges

also play a part by laying down rules known as precedents when they hear cases in court. The

means by which rules come into existence are known as sources of law.

Law comes into existence through legislations, judicial precedent, customs and common law. I

am going to discuss and try to explain the hierarchy of the above mentioned sources of law.

Legislation is the name given to rules made by parliament of Zimbabwe. The main purposes of

legislation are to change, clarify existing law or creating new rules. This is the most important

source of law in the modern world. Laws that are made by the parliament are called statutes for

example consumer protection act, companies’ act and banking act just to mention a few. The

Zimbabwean legislature is created by the Constitution of Zimbabwe on section 117.

Legislation is the supreme source of law because Parliament may enact or repeal any law it

chooses and if there is any conflict between legislation and judicial precedents then legislation

prevails. Also a statute will never be absolute; it remains in force until it is repealed by another

statute. The legislative authority in Zimbabwe lies with Parliament and the executive. Parliament

has got a total of one hundred and fifty members. Of these, one hundred and twenty are elected

by ordinary votes, eight are provincial governors appointed by the president, ten are chiefs
elected in terms of the electoral act and twelve are directly appointed into parliament by

president.

The president is the one who is vested with executive authority. When statutes are formulated

they are introduced into the parliament as bills and this is mostly done by the minister concerned.

The statute has to go through certain stages before it comes into force and I am going to briefly

explain the stages below.

The first stage in making statute law is introduction where the concerned minister introduced his

bill.

The next stage is preliminary stage where the minister obtains cabinet approval and drafted bill is

forwarded to the parliament for printing.

The following stage is first reading where the speaker of parliament calls on the minister to

present the bill after which it is referred to the parliamentary legal committee for any possible

violation of human rights.

After first reading the bill goes to second reading where the minister in charge explains the

principles of the bill.

The following stage is the committee stage where the committee to the house under a chairman

considers the details of the bill section by section and amendments maybe made at this stage.

After the above stage the bill goes to report stage where any amendments to the bill are

examined, accepted or rejected by the house.

The bill later goes to third reading stage, at this stage the bill is read for the third time as required

by the constitution.
After third stage the bill goes to referral stage, senate and house of assembly for scrutinizing and

making recommendations. If it was originated by senate it is send to house of assembly and if it

was originated by house of assembly it is send to senate for the above two reasons.

From referral stage the bill is referred to original house where it emanated from with

recommendation before the bill is send for approval.

The last stage is presidential assent where the bills is printed and send to the president for his

assent and signature. If done it becomes law and will be binding. The act is then enrolled with

the high court to use and enforce.

The above stages when fully adhered to; they give rise to existence of law through legislation in

the form of statutes.

Judicial precedent is another source of law in Zimbabwe. The highest court of appeal is the

Supreme Court. The decisions of this court are laws and are binding on every citizen including

the executive branch of government. Traditionally the function of judges is to decide on cases in

accordance with existing rules. These rules are contained in statutes and in judgments of things

that have been followed. Past judgment is what is called precedents. For a precedent to be

binding it requires the following to be satisfied it must be a ratio decidendi statement meaning

reason for the decision and the court must have a superior status to the court considering the

statement at a later date.

It is important to know that the Supreme Court itself is not however bound by its decisions and

can change them when it is necessary. The decisions of high court are binding on lower courts

that is magistrate court and those courts below them. When supreme courts and high courts
makes decisions, these are bound together in volumes called law reports and are kept for future

reference and guidance. These decisions are what are called judicial precedents.

As a source of law, judicial precedents they have got their advantages and these are, they are

detailed as they provide wealth of details, the rules are laid down in the course of dealing with

real situations, they can be established to meet society`s changing needs and they provide a

degree of uniformity .

On the other hand judicial precedent has got their limitations such as, they are rigid, complex,

there is danger of illogicality and they are slow in growth.

Customary law is another source of law in Zimbabwe. These are those habits or usual practices

of behaviour observed by individuals in a society and customs of unwritten roles of behaviour.

Customs arises out of constant practice over a long period of time.

For the practice to be adhered to as a custom it must meet the following requirements; it must be

well known, it must have been in existence for a long time, it must not be contrary to any

statutory provision and the custom must not be contrary to acceptable morals. If it satisfies the

above conditions the custom must be recognized and enforced by the state. Customary law is the

law of indigenous Zimbabweans which was followed by our fathers before the arrival of modern

law.

It is also important to know that, it is legal customs which are binding and authoritative. Legal

customs entails duties which must be observed and are enforced by the society and sometimes
through the parliament. The above explanation can be best explained by a case between Van

Breda v Jacob`s AD 1921 where:

Facts: there was a custom among fishermen at the Cape. In terms of this custom, once a part start

catching or netting shoal of fish between Cape point and Fishhoek. No one other than the

group of fishermen could target the same shoal. The custom was known as, “first come

first pull.” A group of fishermen broke the custom and the matter ended up in a court of

law. It becomes necessary to make determination whether or not the custom of the

fishermen would not become a law. The court found that the custom satisfied the basic

requirement needed for a custom to be enforceable and among others it was discovered

that the custom had been in existence for 45 years.

Held: the court came to the conclusion that this custom had become law and the offending group

was found liable. It was ordered to pay the value of the catch they had intercepted in

violation of the customs.

Customary law only applies in civil matters. It does not apply in criminal matters. Also

customary law only applies where the plaintiff and the defendant agree that it should. Where

there is no agreement the court may impose the application of customary laws but only on the

bases that it is just and proper. In taking that decision the court has to consider surrounding

circumstances to the case. In some instances customary law is still relevant such as in the

succession of chieftainship where it is exclusively governed by customary law which is

recognized by the constitution of Zimbabwe.

Common law is another source of law in Zimbabwe. The Zimbabwean common law is the

Roma-Dutch law which is based on the same principles as the law of our neighbour South

Africa. The law came from ancient Rome and was modified by the Dutch jurists. The Romans

were great lawyers and their greatness is evidenced by the use of Latin legal terms and maxims

in the legal profession. The Roman-Dutch law was brought into the country by the British High

Commissioner hence it has remained our common law to the day. Common law refers to all

those laws of a country which do not have origin in legislative enactment.

The term common law as a source of law in Zimbabwe can be used in the following senses, the

law applicable to all people of a given society regardless of race, tribe, or sex, as a classification

of legal systems which have the influence of the English common law as distinct from these

which have been termed governed law systems with the Roman law basis and as a portion of the

law which is not derived from legislation and emanates from judicial precedents.

The above discussed different sources of law in Zimbabwe when combined they will provide

laws that governs the conduct and behaviour of both natural and legal persons in a country.
Question 2

Ben entered into a contract. A contract is an agreement entered into between two or more

persons who are intended to be binding and enforceable at law. To be more specific, Ben entered

into a contract of employment which is referred to as a contract of service which in reality is a

sub-contract species of the contract of lease. Ben agreed to lease his labour and skills in return

for payment.

Being a contract, contract of employment must satisfy the usual requirements for a valid contract

and these are; there must be an offer, acceptance, undue influence, meeting of the minds,

consideration, capacity to enter into the contract and the contarct must be legal.

In the case of Ben, there was an offer from ZIL which was sent to him through email which

reads, “Your application has been successful, and we would like to appoint you as Legal

Manager at ZIL. We can offer you a salary of US$2000-00 per month”. Ben received the email

and accepted the offer.

All the essential elements to enter into the contract are met by Ben. In his case, when he received

the email and accepted the offer a contract between him and ZIL came into existence. Ben

communicated to the offeror informing his about his acceptance of the offer meaning to say a

contract comes into existence. The offeror did not specify on the manner in which Ben was

suppose to communicate his acceptance. In such instances the offeree must use the method of

communication used by the offeror. Ben responded by email since the offeror communicated

through email.

The position at law is that, once the email is send, then the contract has been created. Many

things indeed may happen to the email such as delay in delivery or get lost. In all such
circumstances the law will still say that a contract was created between Ben and ZIL because

when the offeror did not specify method of communicating acceptance, the presumption is the

offeror was prepared to receive communication of acceptance through email and ZIL assumed

risks associated with acceptable by email. In a decided case between Yates v Dalton; the facts

were that on 12 February Yates telegraphed an offer to Dalton. Dalton telegraphed an acceptance

on 13 February at 9:40 am. Just after 11:00 am, Yates telegraphed a revocation. It was held that

there was a contract because the acceptance was valid. Revocation came too late.

Ben went to his new work place and upon his arrival he was told that, the offer was withdrawn

on the 1st of May 2018 since he had not signed anything and commenced any work. In

accordance with a law of contract an offer can be withdrawn anytime by the offeror but the

offeror must make sure that he communicates such withdrawal to the offeree so that the offeree

will not act to his prejudice. An offer cannot be withdraw after it has been accepted. This was

well explained in the case of Laws v Rutherford 1924 AD 261 262, speaking generally when the

acceptance of an offer is conditioned to be made within a time prescribed by the offeror, then the

prescribed time limit should be adhered to. Ben accepted the offer the same day he received it

and communicated his acceptance. The offeror did not put time limit as to within what period

Ben should respond to the offer.

In the case of Ben, ZIL breached the contract. A contract came in to existence when Ben

responded to the offer accepting it. A contract is meant to be enforceable and for the parties

involved to perform their respective obligations. If one person to the contract breaches the

contract, then he has not acted in accordance with what the parties agreed. The innocent part in

this case its Ben, will therefore be entitled to remedies for the breach of contract. The wrong part
ZIL may not automatically cancel the contract because he will not be allowed to profit from his

own wrong.

Ben has got a number of remedies from the breach of contract by ZIL. The first one is he can

elect to sue or demand for specific performance (informa specifica). The court`s decision

whether or not to order specific performance will be guided by use of common senses in

practical matters. Where performance is impossible or where is cause hardship on Ben or third

parties, the court would not readily grant it. In the matter of Haynes v Kingwilliamstiwn

Municipality, facts were that the municipality was contractually obliged to dump a certain

number of gallons of water to Haynes`s farm. During a drought, the amount of water pumped

was reduced. The court did not order specific performance because this would have brought

hardship on the whole community.

Ben can also elect to cancel the contract but he must elect what he intends to do within a

reasonable period of time. If the breach is so fundamental and material that it goes to the root of

the contract, then the contract will have to be cancelled. Cancellation is available where an

essential term is breach for example breach which goes to the root of the contract. In the case of

Ben the breach goes to the root of the contract, where there is positive malperfomance, where

rejection has been accepted by Ben, where time is of essence to the contract and where there is

right to withdraw in the event of a breach.

The third remedy available to Ben is to claim for damage from ZIL. The main purpose of

damages is to try and put Ben in the position he would have enjoyed had the contract been duly

performed. The court will also try not causing undue suffering to the wrong party. Damages will
provide comfort to Ben. He will get the feeling that at least even though he did not get the job, he

has somehow received some form of redress.

In short offer + acceptance = agreement. That being the equation, Ben was offered employment

and accepted to be employed. Ben entered into contact with ZIL which is supposed to be binding

and enforceable. ZIL breached the contract and Ben is entitled to compensation form any one of

the remedies available when a breach is made by either party to a contract.

References

1. Christie R.H., (1985) Business Law in Zimbabwe, Juta & Co (Ltd)

2. Christie R.H., (1993) The Law of Contract in South Africa, Butterworths,

Durban.