AD331 - State Legal Liability-2

UNIVERSITY OF ZIMBABWE
DEPARTMENT OF POLITICAL AND ADMINISTRATIVE STUDIES

FACULTY OF SOCIAL STUDIES
ACADEMIC YEAR (SEMESTER: FEBRUARY TO JUNE 2021)
Programme BSc Honours in Government and Public Management

Course AD331 State Legal Liability
Lecturer Dr T. Chidhawu
Office Room 238, New Arts Commerce and Social Studies Building
Contact Hours
Lecture Times Online
Purpose of the Course

State Legal Liability is concerned with aspects of the state’s legal relationship with individual
persons and organisations. In particular, the course focuses on the extent to which the state can be
held liable for the consequences flowing from its acts and omissions. Increasingly, and in recent
years, the state has become involved in a wide range of activities that impact on the lives of
ordinary persons. Where these activities result in some form of harm, the principles of state legal
liability may be able to provide a remedy.
Aims
 To explore the case-law
 To examine the theoretical basis of state legal liability
 To evaluate institutions and processes used to implement government policy through law;
and
 To redress grievances against public bodies
Objectives
 To identify the remedies that are available to persons who have suffered because of illegal
or irregular administrative action.
 To understand how sate legal liability regulates relations between public authorities and
private individuals and bodies, and between a public authority and other public authorities
 To provide the ‘what’ (understanding) and ‘why’ (reasoning) of the state legal liability
Student Assessment
 Students will be expected to submit one written assignment during the course of the
semester. The marks attained by students in their papers will be used to determine the final
course work mark. It must be noted that the course work counts for 25% of a student’s final
mark.
 Final examination counts for 75%
 Assignments papers must be handed in via email to the lecturer.
 NB: - Students are strongly encouraged to participate online.
1
Course Content
1. Introduction
a) The purpose of state legal liability
2. The principles of state liability

a) Defining state liability
b) Vicarious liability
i) in contract: the concept of executive necessity
ii) in delict: the scope of employment test (note: in English law ‘delict’ is known as ‘tort’)
c) Damages for unlawful arrest
d) Damages for malicious arrest or prosecution
e) How a statutory duty may be breached
f) Impact of the Administrative Justice Act
3. Administrative tribunals
a) The nature of administrative tribunals
i) Statutory tribunals
ii) Domestic tribunals
b) Judicial review
c) Locus standi
d) Review procedure
e) Operations of administrative tribunals
f) Appeal and review contrasted
4. The Administrative Court

a) The structure of the court
b) Jurisdiction of the court
c) Procedure of the court
5. The Doctrine of State privilege

a) The doctrine defined
b) Making a privilege claim
i) Class claims
ii) Content claims
c) The discretionary power of the court
d) Impact of Access to Information and Protection of Privacy Act
6. The Human Rights Commission

a) The office defined
b) The structure and powers of the office in Zimbabwe
c) An international perspective of the office
d) Evaluation of the office
7. Other investigative machinery

a) Internal administrative control
b) Parliamentary control
8. Remedies
a) Interdicts
b) Mandamus
c) Spoliation orders
d) Habeas corpus
e) Damages
2
Assignment Question
1. Critically examine the extent to which State Liabilities Act [Chapter 8:14] in Zimbabwe provides
the basis for strengthening the efficiency and effectiveness of state institutions in delivering on their
mandate and accounting to the public.
Submission Date TBA
Tutorial Questions
1. “State privilege doctrine is an impedimenta to justice” Critically discuss.
-Feltoe, “State Privilege: A Curious Conflict.” 1971 (1) ZLJ 31;
-Craig, Administrative Law 1999; Duncan V Cammel, Laird and Co, 1942 AC 624 (HL);
-Conway V Rimmer, 1968 Ac 910 (HL); Burmah Oil V Bank of England, 1980 AC 1090;
-S V Tsvangirai 2004 (2) ZLR 210 (H);
-Hambly V The Chief Immigration Officer 1995 (2) ZLR 264 (H),
- S V Sithole 1996 (2) ZLR 575 (H);
-Feltoe, “Can there be a Fair Criminal Trial when State Privilege is Claimed? 2004 Issue No. 11,
Zimbabwe Hunan Rights Bulletin 140.
2. Critically examine the relevance of vicarious liability doctrine in State Legal Liability.
3. Discuss the remedies available for citizens to counter omissions or violations committed by state
employees during their official duties.
4. Indicating improvements that might be implemented to make the office of the Zimbabwe Human
Rights Commission more effective, discuss its role in upholding the right to administrative justice.
6. With reference to Zimbabwe and any other Southern African country, critically discuss the duties
of the state in upholding human rights.
7. By comparing and contrasting, discuss the differences between appeals and reviews.
3
Required References
Bailey, Jones and Mowbray, Cases and Materials on Administrative Law, 3rd ed. (1997)
Baxter L. (2009) Administrative Law, New York, Butterworths.
Craig, P (2003) Administrative Law, London: Sweet and Maxwell, fifth Edition.
Feltoe, G. (2012) A Guide to Administrative Law and Local Government Law in Zimbabwe,
Harare: Legal Resources Foundation
Hoexter, C. (2007) Administrative Law in South Africa, Juta Co.
Wade, W and C.Forsyth (2004) Administrative Law, Oxford: Oxford University Press, ninth
Edition.
Recommended references
Bennett et al., (1993)Administrative Law Reform
Burns Y. (2003) Administrative Law under the 1996 Constitution, Durban, LexisNexis
Butterworths.
Cockram, (1976)South African Administrative Law
Craig, (1999) Administrative Law, 4th ed.
De Smith, Woolf and Jowells,(1999) Principles of Judicial Review.
Devenish, Govender and Hulme, (2001)Administrative Law and Justice in South Africa.
Emery, (1999) Administrative Law: Legal Challenges to Official Action.
Feltoe G. (2004) Guide to Zimbabwean Administrative Law , Harare, Legal Resources
foundation.
Hatchard J. (1993) Individual Freedoms and State Security in the African Context: The Case
of Zimbabwe.
Hoexter, (1992) Supplement to Baxter’s Administrative Law.
Hondora, T, (2003) Media Laws in Zimbabwe.
Innes R, (1963) Judicial Review of Administrative Tribunals.
Jones B L, (1999)Garner’s Administrative Law
Leyland and Woods,(1999) Administrative Law, 3rd ed.
Linington, (2001)Constitutional Law of Zimbabwe .
Ndlela, N, (2003)Critical Analysis of Media Law in Zimbabwe
Tungwarara O: ‘The Ombudsman and the protection of human rights’ in: Nherere and
D’Engelbronner, Eds.(1993) The Institutionalisation of Human Rights in Southern Africa,
Oslo, Nordic Human Rights Publishers.
Wade and Forsyth, (2000)Administrative Law, 8th ed.
Wiechers, (1985) Administrative Law
Some journal articles that may be of interest

Copper, D. (1996)“Institutional Illegality and Disobedience: Local Government Narratives”,
Oxford Journal of Legal studies 255.
Feltoe G, ‘The Ombudsman’s new Powers to deal with Human Rights Abuses: How effective will
these Powers be?’ 1997 vol. 9, no. 1, 37
Hatchard J, ‘How effective is the Ombudsman?’ Legal Forum (1994) vol. 6, no. 2, 18
Hatchard J, ‘The development of the Office of Ombudsman.’ 1985 vol. 3, Zimbabwe Law Review, 62
Hatchard J, ‘The Ombudsman in Africa revisited.’ (1991) vol. 40 ICLQ 937
Hatchard J, ‘The Ombudsman in Africa with special reference to Zimbabwe.’ (1980) vol. 35 ICLQ 255
Martin R, ‘The Ombudsman in Zambia.’ (1977) vol. 15 Journal of Modern African Studies 239
Josh Ard “Welcome to the New World of Medicaid Hearings”, Administrative Law Journal, State
Bar of Michigan, summer 2008, Issue 32.
Anonymous, ‘The Representative Action.’ (1989) Legal Forum vol. 1, no. 3, 34
Gubbay CJ, ‘What a Reviewing Judge Expects of a Magistrate.’ Legal Forum (1992) vol. 4, no. 2,
4
Tshuma L, ‘Towards Group Litigation in Zimbabwe.’ (1990) Legal Forum, vol. 2, no. 2, 20
Feltoe G, ‘State Privilege: A Curious Conflict.’ 1971 (1) ZLJ 31
4
Feltoe G, ‘A Guide to the State Liabilities Act.’ (1993) Legal Forum, vol. 5, no. 4, 55
Munyurwa R, ‘Town Planning Appeals.’ 1991 Legal Forum vol. 3, no. 3, 39
Statutes
Access to Information and Protection of Privacy Act
Administrative Court Act
Administrative Justice Act
Interpretation Act
Presidential Powers (Temporary Measures) Act
State Liabilities Act

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UNIVERSITY OF ZIMBABWE

DEPARTMENT OF POLITICAL AND ADMINISTRATIVE STUDIES

ACADEMIC YEAR (SEMESTER: FEBRUARY TO JUNE 2021)

Programme BSc Honours in Government and Public Management

Purpose of the Course

2. The principles of state liability

4. The Administrative Court

5. The Doctrine of State privilege

6. The Human Rights Commission

7. Other investigative machinery

Submission Date TBA

Some journal articles that may be of interest

Feltoe G, ‘State Privilege: A Curious Conflict.’ 1971 (1) ZLJ 31

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