The legal environment

 Law regulates human conduct.

 Law regulates business transactions.
 Formation, conducting of projects.
 General and specific regulations.
 Cannot successfully plan and implement a project without
regards to the law.
 How contracts formed- rules of negotiating projects- anti-
competitive behaviour (bid rigging and collusion), remedies for
non-performance.
 Environmental impact of projects.
 Safety and labour
 Behaviour on market
 The Constitution
 S2- the supremacy clause-= supreme law of the land,
any law, practice and conduct inconsistent with it will be
invalid to the extent of the inconsistence.
 Severance to invalidate the inconsistent part
 Affirms supremacy of.
 Its provisions takes precedent.
 Further that its obligations applies to every legal entity
(natural or juristic person, state and its organs and
agents).
 S65 labour rights
 Right to fair and safe labour practices.
 Right to be paid a fair and reasonable wage.
 Right to form and join trade union of choice.
 Right to participate in lawful collective job action.
 Entitled to just, equitable and satisfactory
conditions of work.
 Implications for engineering projects.
DISCUSSION.
S 73-environmental rights
 Right to an environment that is not harmful to
health.
 Protection of the environment-prevention of
pollution and ecological degradation.
DISCUSSION- implications on engineering
projects.
 Health and safety

 Health and safety rules are guided by a number of

statutes.
 The main acts to be observed in terms of health and
safety in construction works are the Labour Act
[Chapter 28.01],
 the National Social Security Authority Act [Chapter
17.04],
 Factories and Works Act [Chapter 17.04],
 Environmental Management Act [Chapter 20:27],
 the Pneumoconiosis Act [Chapter 15:08].
 The Labour Act
 
 The Labour Act contains stipulations in favour of
the health and safety of workers.
 no employer shall require any employee to work
under any conditions or situations which are
below those prescribed by law or by the
conventional practice of the occupation for the
protection of such employee’s health or safety.
 Observance of basic conditions of employment.
 Observe employee’s rights to a safe working
environment and other workplace hazards.
The National Social Security Authority Act
[Chapter 17:04] Accident Prevention and
Workers’ Compensation Notice No.6 of 1990.
 seeks to cater for workers’ needs in case of
accidents occurring at the construction site.
 The Environmental Management Act [Chapter 20.27]

 emphasizes sustainable development and prohibits

the discharge and disposal of waste without a waste
license.
 It goes on to set standards of noise pollution and lists
some offences relating to pesticides and toxic
substances.
The Pneumoconiosis Act [Chapter 15:08].
 prohibits the employment of workers in dusty
occupation who suffer from penumonoconiosis
(respiratory disease).
 The Factories and Works Act

 provides for the registration and control of

factories,
 the regulation of conditions of work in
factories,
 supervision of the use of machinery and
precautions against accidental injury to
persons employed on structural work.
 There are also some specific rules that govern the use
of land and buildings, depending on the nature of the
structure and the permitted use of the land.
 An example would be restrictions on the use of land
and water in the vicinity of aerodromes.
 In general, local authorities have adopted the Model
Use and Occupation of Land and Buildings By-laws
while city councils have adopted Public Health By-
laws which regulate the permitted uses of land and
buildings within their jurisdiction.
 Environmental protection laws
 Environmental protection issues are provided for in
the Environmental Management Act [Chapter 20.27].
 It establishes the Environmental Management Agency
(EMA) that ensures compliance with the legislation by
both individuals and companies.
Waste management
 The Environmental Management (Effluents and
Solid Waste Disposal) Regulations, 2007 regulates the
disposal of effluent and solid waste and provides for the
procedure in the event of accidental spillages.
Environmental Impact Assessments
 In terms of the Environmental Management Act
[Chapter 20:27] and the Environmental
Management (Environmental Impact Assessment
& Ecosystems Protection) Regulations, SI 7 of
2007, housing developments, and commercial
industrial plants, tourist resorts and recreational
developments among other developments require an
Environmental Impact Assessment to be conducted
by EMA.
 Permits and approvals
 Engineering projects eg construction of infrastructure= requires permits
from local authorities.
 Must comply with planning laws and regulations.
 The Regional Town and Country Planning Act [Chapter 29:12] empowers
local authorities to designate the design and carrying out of building
works.
 The local authority would state the minimum specifications of the
infrastructure or the need for approvals from the relevant utility that
governs the infrastructure.
 They stipulate building standards through model building by-laws.
 These must be incorporated in contracts for design and carrying out of
building works.
 For new roads and sewers = authorized by local authorities.
 Sewerage waste disposal= ZINWA.
 Electricity= ZESA.
 Although there is no mandatory requirement to
that effect, the parties would need to ensure
that they incorporate the necessary approvals
from the local authority into their agreements.
 The terms and conditions of engagement are
usually governed by contract, and they
therefore tend to vary in each case.
 Contractors

 Proposed Construction Industry Bill

 Regulate industry to protect public from substandard
products and workmanship.
 Ring fence industry against foreign players???
 DISCUSS THE POTENTIAL CONFLICT IN THE
BILL RTO CONSUMER PROTECTION.
 Proposes a Construction Industry Council – sectorial
regulatory authority-registration, licensing and
monitoring.
 Basis of enforcing standards compliancce.
 Engineers and Architects
 Engineering Council Act [Chapter 27:22] =est. Engineering
Council of Zimbabwe.
 Registration and licensing.
 Liability of members and responsibility of Council.
Architects Act – registration and regulation of practice of
architecture.
-consumer public protection- set accepted standard of conduct
and professional performance.
 Improper/disgraceful professional conduct- in by-laws.
 S37- agreement to share fees with unregistered
 Partnership with unregistered to do architectural work.
 the Construction Industry Federation of Zimbabwe
(CIFoZ) is the construction industry association
and it has established the National Joint Practice
Committee (NJPC) Standard Contracts 2000.
 These contracts are based on FIDIC Contracts and
have been approved by the Federation
Internationale Des Ingeinieurs Conseils
(FIDIC)= International Federation of
Consulting Engineers.
 Competition Law
 Competition Act [Chapter 14:28].
 Consumer protection
 Regulates anti-competitive business behaviour.
 Prohibits anti-competitive arrangements eg
collusive practises prevalent in tendering.
 Control restrictive practices eg monopolies
through regulating mergers and acquisitions.
 Prohibits misleading advertisements.
 Procurement law
 Public Procurement and Disposal of Public
Assets Act [Chapter 22:23].
 Procedure to public tenders including
engineering consultancy and construction
work.
 Establishes a procurement framework for
Public-Private Partnerships (PPPs).
 The Joint Venture Act [Chapter 22:22]

• Provides a structure to regulate the growing concept of

PPPs in Zimbabwe.
• Follows regional (continental) of regulating PPPs.
• Essentially regulates the agreements between public
entities and the private sector rto the ‘design,
construction, development, operation or delivery of
a new infrastructure, asset, facility or service or the
rehabilitation, modernization, expansion, operation,
delivery or management of an existing
infrastructure, asset, facility or service.’
 defines the types of projects that would be regulated by it,
 These are, Build and Transfer (BT),
 Build, Lease and Transfer (BLT),
 Build, Operate and Transfer (BOT),
 Build, Own and Operate (BOO),
 Build, Own Operate and Transfer (BOOT),
 Build, Transfer and Operate (BTO),
 Contract, Add and Operate (CAO),
 Develop, Operate and Transfer (DOT),
 Rehabilitate, Own and Transfer (ROT),
 Rehabilitate, Own and Operate (ROO),
 Build, Own, Operate and
 Maintain, Lease Management Contract,
 Management Contract,
 Service Contract,
 Contract for Services, Supply, Operate and Transfer.
•
under the Act,a public entity intending on entering a Joint Venture needs to
comply with the following steps:
•Contracting authority identifies and develops a project to be implemented.
•Public advertisement to invite expression of interest in the project (not
necessary if a counterparty is already identified ie unsolicited proposal).
•Undertaking of a Feasibility study which is then submitted to the Unit for
approval.
•If approved, the JV Unit prepares a request for the project proposal and a
model agreement.
•Proposal referred to the Cabinet with recommendations from the JV Unit.
•Cabinet approves or rejects the proposal, fully or provisionally.
•The application of fixed price contracts is as agreed by the parties.
•Fixed price contracts are therefore possible and are common.
 Common law
• regulates the client-contractor relationship
outside the construction contract.
• Provides for the contractor's duties eg
fiduciary duties ( of trust) of a contractor eg
duty to undertake the works with all proper
skill and care; to work with quality materials
that are fit for the purpose.
 Law of delict/torts
 Basis for contractor’s liability outside the
contract.
 Contract law

 Engineering projects involves a number of parties

principally the client and the contractor.
 The relationship of these parties is governed by common
law principles of a contract.
 These principles sets out the legal implications (rights and
duties ) of the parties.
 Other parties can also be involved through subcontracting.
 The ToRs of these subcontractors are implied from general
contract through ‘flow down clauses’ or incorporating by
reference clauses.
 Insurance
•
employer liability insurance in place.
• The building contractors and any other party to the works who is an
employer is therefore expected to have employers’ liability insurance.
•Contractors will also be expected to take out public liability
insurance during the construction period to cover injuries to persons
other than employees and damage to property.
•It is prudent to obtain insurance on the works, however the type of
insurance put in place depends largely on the nature of the
construction site.
•The most common insurance policy for major construction sites
would be the construction all-risk policy that provides cover for the
entire project.
 Security law

• Engineering projects contracts creates personal rights.

• Parties under duty to perform agreed work and have
rights to demand performance.
• Contracts thus creates a creditor-debtor relationship.
• Non-performance bestows remedies for breach.
• H/ver, remedies can take time or be valueless.
• Security law is a means of securing performance.
 security documents used to secure a project.
 Nature thereof vary considerably depending on
the nature and purpose of the construction
works as well as the zone in which the
construction takes place.
 The common position is that, in commercial
arrangements, the contractor would ordinarily
be expected to issue a performance guarantee or
a performance bond from a third-party surety.