INTRODUCTION TO ZIMBABWEAN LAW
- The nature and origin of law
(a)The nature of law
Law is used in society to reflect social values and norms. It is one of the most effective instruments used in upholding and safeguarding community values and aspirations.
Law is an instrument of state power. In ancient societies law was a weapon used by the ruling elite to consolidate their grip on power. Under the modern concept of state power, the law can be used for the same purpose.
Certain sanctioned practices are commonly referred to as undemocratic e.g. suppression of freedom of speech and deprivation of other freedoms. The force of law is used to make the practices hold. It is thus a convertible tool capable of being used for good or bad courses by those in position to mobilize it in their favour.
Slavery and apartheid to name just a few had a strong legal backing. Today they have been eradicated and the eradication largely assumed a legal backing.
The law can be generalized as a set of rules designed to regulate human behaviour. Law is constantly assuming new outlooks and perspectives that are reflective of the changes in the society it serves.
(b)Origin of law
The origin of law can be traced back in ancient history to the very days when man began to be organized into distinct societies. Before that man was highly mobile hunters and gatherers and there were no fixed societies. As man began to form themselves into states, the sate assumed the role of maintaining order.
Law was identified as one of the main instruments the state could not only use to regulate human conduct but also to further its objectives. One of the main objectives is the maintenance of order and the attainment of fairness in society.
- Laws and their classification
The law can be classified as follows:
2.1Public and private law
Public law comprises those laws that regulate rights, relationships and obligations between the state or its administrative arms on the one hand and its subjects on the other.
Public law is concerned with the interests of the public at large and the welfare of the state.
Public law is formed from the following branches of law:
(a)Public international law
This law governs inter-state relationships e.g. immigration laws between Zimbabwe and other countries.
(b)Constitutional law
This law is concerned with the functions of the organs of the state, namely, the legislature, the executive and the judiciary, as well as power within the state.
(c)Law of procedure
The law of procedure deals with procedural aspects applicable to both civil and criminal courts in a given jurisdiction.
2.2 Private law
This branch of law governs the rights and obligations where both parties involved are private persons. The word person includes companies and other organisations of a like nature. Examples include law of persons, family law, law of property, intellectual property law, law of succession, law of contract and insurance law. The fundamentals of all insurance transactions lie in contract and consequently the law governing contracts is very important to insurance students.
2.3National and international law
National laws are laws pertaining to a particular state. Internal law is a body of rules that regulates the conduct of states towards one another.
2.4Civil and criminal law
(a) Civil law
A delict is a breach of a general duty imposed by law leading to a civil action at the instance of the injured person. Civil law governs relationships between private individuals and is not concerned with the community at large.
In civil proceedings it is up to the injured party to seek redress or waive his rights. In civil cases the two parties are always cited e.g. Jeki Chani versus Pita Ghost.
The dominant role is to compensate the party injured by breach of legally imposed duties. Civil law can also be used to prevent a threatened wrong from being committed e.g. an injunction can be used to prevent a threatened breach of contract.
(b) Criminal law
A crime is simply a public wrong. Criminal conduct is that conduct which is viewed as harmful or prejudicial to the society at large despite the fact that the particular act complained of would have been committed against one person or a small number of people.
For example, where A steals from B the view taken by the law is that such conduct is not only harmful to B alone but to the whole community represented by the State.
Consequently all criminal proceedings are usually conducted and sanctioned by the state.
The state through the Attorney General plays a key role in all criminal proceedings in contrast with civil proceedings where it is up to the injured party to seek redress or waive his rights.
All criminal cases cite the state as the main complainant e.g. The state versus Jeki Chani even though in reality the actual complainant would be a private individual.
Because criminal law deals with public wrongs all those found should be punished. Punishment takes the form of imprisonment, payment of fines, canning or any other form of punishment which the court can legally hand out.
(c) Technical distinction between civil and criminal law
The distinction is centered on the degree of proof legally required for a claim to succeed under the two branches of law. In our law a civil case will succeed if there is enough evidence on a balance of probabilities to support it.
On the other hand a criminal prosecution will only succeed if the available evidence proves that the accused person is guilt beyond a reasonable doubt.
A lower standard of proof is used in deciding civil cases while a much high standard is used for criminal cases. This difference is understandable in view of the fact that a criminal conviction leads to punishment and one form of punishment often handed out by courts is deprivation of liberty (i.e. imprisonment). By imposing a higher burden of proof on criminal cases seeks to eliminate the danger of punishing innocent citizens.
It should be noted that some acts have a dual character and thus qualify to be civil or criminal at the same time. For example e.g. assault which is both a criminal and a civil act in one. It is possible for the wrongdoer to face proceedings under the two branches of law at the same time or on separate occasions.
Although criminal proceedings are conducted on behalf of the sate by the Attorney General, there are circumstances in which he may decline to prosecute the case brought before him.
When this happens the aggrieved party can arrange for a private prosecution with the state not playing a key role. In Zimbabwe private prosecutions are very rare presumably on account of the high costs involved.
3 The purpose and principles of law
3.1 The purpose of law
The fundamental role of law in society is the preservation of order. A society that is not governed by the rule of law can easily degenerate into anarchy.
Functions of the law are as follows:
(a)The law is one of the key instruments used by the state in the exercise of its power.
(b)The law is also used in the attainment of justice i.e. fairness.
(c)The law is also used for regulatory purposes e.g. the RTA Act Cap 13:11 which regulates among other things compulsory motor insurance in respect of third party liabilities.
The law must be enforced in order to perform the above functions. To this end the state must have efficient law enforcement agencies and structures namely the courts, police and prisons.
3.2Principles of law
The basic principles of law are as follows:
(a)Just application
The law ought to be just and reasonable, both in regard to the subject matter, directing what is honourable, forbidding what is bad. This means laws that are despotic, unjust or devoid of reasonableness will not commend themselves to society and will eventually fall into disuse or will be superceded
Law is essentially an expression of societal values and norms hence a law which fails to articulate and reflect these values cannot be sustained for long.
(b)Equality
The law should be applied equally to all persons regardless of their condition or circumstances. Class, race, culture, ethnicity and religious idiosyncrasies should be irrelevant in this respect e.g. where a poor man kills another using a knife and a rich man does a similar thing in similar circumstances the two should be treated in the same way.
However, there are situations where peculiar circumstances pertaining to each case are regarded e.g it would be unfair to treat a juvenile aged fourteen years who kills a person in the same manner as a forty year adult who commits the same offence.
(c)Uniformity
Similar to the principle of equality is the principle that law should have a general and uniform application to all people throughout the country.
If A who is a resident of Harare commits cold blooded murder is fined
Z$1 million and B who is a resident of Gweru commits a similar offence and is sentenced to death, there will definitely be a public outcry. If the law is to be seen as just then there must be uniformity in its application.
(d)Authority
The responsibility to make law must be given to the proper authority. In Zimbabwe the responsibility of making law is largely the prerogative of the legislature i.e. the Parliament of Zimbabwe.
However, statutory bodies have legislative powers delegated to them by Parliament itself e.g. making of by-laws regulating activities in the area under the control by a local authority.
(e)Certainty
The law must be sufficiently certain if it is to be enforceable. If it is ambiguous an environment of legal uncertainty is created under which people are unaware of what the law says.
To facilitate legal certainty laws must be declared and made known before they are applied. The practice in Zimbabwe and many other countries is that the new laws are promulgated (i.e. made known by publication in the official organ of the state known as the Government Gazette.
Once this is done no one can successfully argue that they did not know the law. The principle “ignorantia juris non excusa” (ignorance of the law is no excuse) then applies. Everyone is then presumed to know the law.
It should be noted that some laws are so well known that there is no need for them to promulgated. Such laws are part of common law. Laws on murder, theft, rape, etc fall in the category of common law. These laws are not the result of legislation but they are created largely by custom of the people and the decision of judges.
3.2 Sources of law
Zimbabwean Roman-Dutch law is derived from four sources, namely, Roman Law, Custom, Legislation and Judicial Precedent
(a)Roman law
Roman law forms the basis of Roman Dutch Law in Zimbabwe. Rome was founded in approximately 753 B.C. The earliest Roman law was developed during the monarchy and the law was a mixture of religious, moral and customary rules. The monarchy came to an end with the expulsion of the last of the kings – Tarquinius Superbus (Tarquin the proud). After the monarchy came the Republic which opened the period 509 B.C. to about 27 B.C.
In the early days of the republic Roman society was divided into two conflicting groups namely – the Patricians and the Plebeians.
The Patricians as a social grouping were powerful and wealthy. They virtually owned all the major means of production and thus occupied the upper class position in society. The Plebeians on the other hand were the lower class who were severely disadvantaged both politically and economically. It was during the Republican era in approximately 450 B.C. that the Law of the Twelve Tables was passed. From 27 B.C. came the Roman Empire.
The term “Roman Dutch Law” was first used by Simon Van Leeuwen, a famous Dutch jurist living from 1625 to 1682. The term denotes a fusion of Roman law with Dutch law.
The Romans spent quite a long period in the Netherlands which formed part of the then Roman Empire. During this period Roman law was absorbed into the native Dutch law.
Roman Dutch as a system of laws was introduced in the Cape when Jan Van Reibeck of the Dutch East IndiaCompany settled there in 1652. The early Dutch settlers brought with them the Roman Dutch system of law from their native country Holland (Netherlands). This system of law was initially practiced in the Cape and subsequently it spread to Natal, the Transvaal, Orange Free State and eventually into the then Southern Rhodesia (Zimbabwe).
History has it that in 1806 the British annexed the Cape Province. One of the conditions that was agreed on for the transfer of the Cape to the British was that the colonists retained their own legal system. This condition effectively meant that despite the fact that the Cape was going to be under British administration, Roman Dutch law was retained as the law of the colony.
When the Pioneer Column arrived in present day Harare in 1890, they brought with them the Roman Dutch System of law which they had been practicing in South Africa. Later on 10 June 1891 the then British High Commissioner issued a proclamation to the effect that Southern Rhodesia (Zimbabwe) was to be governed for the time being by laws applicable in the Cape colony. This heralded the official importation of Roman Dutch law into Zimbabwe where it formed the basis of our common law.
The Lancaster House Constitution of 1979 contained further provisions which effectively put the final seal on the Roman Dutch law as the legal system of the country.
Section 89 of this constitution provides:
“Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court and by any courts within Zimbabwe subordinate to the High Court shall be the law in force in the colony of the Cape of Good Hope on 10th June 1891 as modified by subsequent legislation having in Zimbabwe the force of law”
This therefore meant that even the status of Roman Dutch law as the legal system of this country was confirmed.
However an important consideration worth noting is that by the time Roman Dutch law came to Zimbabwe it already contained significant English infiltrations. In the period leading to the annexation by the British and soon thereafter, the Cape had seen an influx of English trained lawyers who were prone to refer to the English law with which they were familiar. Additionally in the early days of Zimbabwe’s colonization, an appeal lay only on the CapeSupreme Court, later to the Appellate Division of the Supreme Court of South Africa. A final appeal could be made to the Privy Council – a British court that dealt with colonial matters.
(b)Custom
A custom is a practice which by long-established usage has come to have the force of law(Collins Internet Linked Dictionary, 2006).
Custom is a recognized source of law and in this country customary law includes practices that have been accepted as binding by society and have thus become legally enforceable.
When the colonial settlers arrived in this country in 1890, Roman Dutch law was introduced as common law of the country. However, customary law as was practiced by the people in Zimbabwe was recognized as the law that was to govern relationships between the indigenous people provided that such customs were not in conflict with any legislation then in force or was not against the rules of natural justice.
Similarly those customs that were considered repugnant to good morals as determined by the colonial administrators were also banned.
For a custom to be recognized as binding and therefore legally enforceable, it had to be:
- Reasonable
- Long-standing
- Certain
- Uniformly observed
The above requirements were enunciated in the case of Van Breda v. Jacobs. This case concerned a fishing dispute between fishermen of the CapeCoast. There was a custom amongst the fishermen to the effect that once fishermen had put their lines in a particular place for the purpose of catching fish, no other fishermen were entitled to set their lines close to those of the first group as this would have the effect of intercepting the fish which could have been caught by fishermen who had put in their lines first. The courts decided in this case that since this custom was long standing, reasonable, certain and uniformly observed in that area, it was therefore legal and enforceable.
Soon after the colonial settlement in 1890, special courts were introduced to administer customary law. These included the District Commissioner’s Courts, Chief’s courts and African Appeals Courts. Most of these courts were presided over by the colonial administrators who knew very little about African Customs and Customary Law and hence tended to apply Roman-Dutch law principles that were common knowledge to them. As a consequence of this drawback in the application of customary law, the growth and influence of custom in the development of the law was restricted.