BUSINESS LAW IN ZIMBABWE

1. SOURCES OF LAW

There are four sources of law in Zimbabwe and these are:

 Custom
 Statute / Legislatures
 Judicial Precedent
 Roman Dutch Law – (Common Law)

1. Custom
This is a social cultural pattern manifesting the social beliefs and tastes
of a specific group of persons called a society. It is not culture but
forms part of culture and as such forms part of the body of law of the
land and is enforceable by the court of the land. However, for a custom
to pass as a legal custom it must pass a Jurisprudential test positively
by passing the following qualities:
 It must be reasonable
 Must be uniformly observed
 Must be certain
 Must be long established and
 Must be compatible with the existing laws of the land

If it fails one or more of the aforementioned qualities it will therefore

remain a social custom and therefore not part of our law.
[Case: Van Breda Vs Jacobs]

2. Statute / Legislature
This is law properly made, by reason that it is made by the Parliament
which is authorised by the constitution of Zimbabwe to make the laws
of the land. It is the highest of all the sources the law and remains
supreme above the other sources of law. In the event of conflict
between the rules of statutes and rules of other sources of law, statute
rules take control of the other rules.

Every state has a specific institution that is responsible for making the law. The law made
directly by such an institution is called legislation. Modern states are run on the principle
of separation of powers. This principle requires the state to separate three principal
functions, namely:

(a)Law making
(b)Implementation of law
(c)Resolution of disputes in accordance to the law

For each of these functions, there must be a separate organ of the state. No simple organ
must perform more than one function.

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- The organ responsible for law making is called Legislature. (the Parliament)
- The Executive is the organ responsible for the implementation of the law while the
resolution of disputes in accordance with the law (adjudication) is allocated to the
Judiciary. NB: The goal is to avoid concentration of powers to one person.

The making of these rules involves the following procedure.

 A Minister or a Member of Parliament [MP] sponsors a bill in the
house of assembly.

 The bill must be read three times and debated upon when read.

 If the majority of the members vote in favour of the bill it is sent

to the office of the president for his assent.
 If the President gives his assent the bill is send to the
Government Gazette for the publication or promulgation as the
law of the land.

 On publication the bill becomes an Act of the Parliament and

forms the body of other laws of the land.

However, take note that presently the Parliament has three

departments, The House of Assembly and the Senate and The
President’s Office. For the Bill to become an Act of the Parliament it
must receive the approval all the departments, thus the majority of the
House of Assembly and The Senate and the President’s Office.

NOTE:
In each House the successive stages of dealing with the Bill are as
follows:
• First Reading – Publication and introduction into the agenda.
No debate.
• Second Reading- Debate and vote on the general merits of the
bill. No amendments are made at this stage
• Committee Stage- The bill is examined by a Standing
Committee of about 20 members representing the main parties
and including some members at least who specialise in the
relevant subject. If the Bill is very important, all or part of the
Committee Stage may be taken by the House as a whole sitting
as a committee.
• Report Stage- the Bill as amended in committee is reported to
the full house for approval.
• Third reading- This is the final approval stage and vote.

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Delegated Legislation

To save time in the Parliament, Acts usually contain section by which

power is delegated or given to a minister, or public body such as a
Local Authority, to make subordinated or delegated legislation. The
government passes an “Enabling Act” which sets out the overall
objectives that the legislation is intended to achieve, but the actual
detail of the is left to the body which the Act has delegated the power
to.

When the Executive makes law under power delegated to it, that form
of legislation is called delegated legislation. Delegated legislation is as
much law as primary legislation (that was made directly in an Act
where it is outside the powers granted to it by the Act). Where
delegated legislation is outside the powers granted to it by the Act, it is
said to be ultra vires (beyond the powers). If it is within the powers, it
is said to be (intra vires).If it is intra vires, it is void (null and void).
Delegated legislation is published in the form of what are called
statutory instruments.

Therefore, these are two forms of legislation.

1.Acts of Parliament
2. Statutory Instrument

There can be no Statutory Instrument without an Act of Parliament.

The Act of Parliament that gives rise to a Statutory Instrument is called
the Enabling Act. There is one Act of Parliament that is unique (in a
class of its own). Although it is an Act of Parliament, it is the supreme
law and overrides al other laws to the contrary. The Act is the
Constitution.

Section 2 of the Constitution of Zimbabwe, 2013, says that, ‘this

Constitution is the supreme law of Zimbabwe and any law, custom,
conduct or practice inconsistent with the Constitution is invalid to the
extent of its inconsistency’.

NOTE: Legislation is therefore better understood as consisting of:

(a)Constitution – supreme law
(b)Ordinary Acts of Parliament
(c)Statutory Instrument

The Constitution itself cannot be unlawful. Every rule in the

Constitution is law. It is always a matter of interpretation to determine
the meaning of a rule. Regarding Ordinary Acts of Parliament, there
may be invalid if contrary to the constitution. However, whether a rule
is contrary or not to the Constitution, is a determinant that can only be

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made by a competent court. There is presumption of constitutionality.
This means that an Act of Parliament must pass the constitutionality
test for it to be valid. For a Statutory Instrument, there are two tests to
be passed namely:

i. The ultra vires test

ii. ii. The constitutionality test.

Legislation gets its legitimacy as law from the fact that it is directly
made by democratically elected persons.

NOTE: Each piece of legislation has a name and must be referred to by

its name. The name of legislation is specified by the legislation itself.
Acts of Parliament are classified into various and each group (in
Zimbabwe) is called a Chapter.
- An official in the Ministry of Justice is responsible for allocating
Chapter number and within the chapter group.
- The Constitution has no Chapter allocation. The correct citation for
the Constitution is Constitution of Zimbabwe, 2013.

Whenever an Act of Parliament is enacted, there is a number

corresponding to the sequence of the presidential signature. The first
Act to be signed in any one year is referred to as Act No. 1 of that year;
for example, Labour Amendment Act, 2015 (Act 3 of 2015). This simply
means that it is the third Act to be signed in that year. Every Act has
this number. However, the official name of an Act is with its Chapter
allocation except where there is no Chapter allocation or it is an
amending Act. In this latter situation, the name of the statute is by
reference to the allocated number; for example, Insolvency Act, 2015
(Act No. 3 of 2015).

Statutory Instruments have only one reference- by reference to the

year and their number in the year of enactment, for example, Labour
Retrenchment Regulations, 2015 (Statutory Instrument 205/2015). To
find the law, we must peruse legislation. Once we find it, we must
interpret it to establish its meaning. Fortunately, the list of statues is
published and is available.

Advantages Of Delegated Legislation

• Time saving
Speed - legislation can be passed quickly than the usual procedure
in the Parliament.
• Expertise - Delegation allows technical specialists or those with
local knowledge [who may be better qualified than the Parliament]
to take on the task of writing the details of the Act.

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• Flexibility – it is useful where the law is complex or changes
frequently such as rules on construction or motor vehicles.
• Accountability- unelected individuals or bodies are left to make
law, when they are not answerable to the people.
• Scrutiny- The overall volume of detail created by delegated
legislation means that the Parliament cannot scrutinise all the detail
of the Act, although usually there are some Parliamentary Control.
• Bulk- there are so many statutory instruments that are passed
each year which increases bureaucracy and compliance costs for
business.
• Scrutiny- The overall volume of detail created by delegated
legislation means that the Parliament cannot scrutinise all the detail
of the Act, although usually there are some Parliamentary Control.
• there are so many statutory instruments that are passed each year
which increases bureaucracy and compliance costs for business.

FORMS OF DELAGATED LEGISLATION

• Ministerial Powers exercised by Statutory Instruments.

• Local Authorities – given power to make bye-laws.
• Standing Committees / Professional Bodies – are empowered
to regulate conduct of their members eg Doctor’s, Engineer’s
Associations etc.
• Rules of Court- may be made by the judiciary to control court
procedures.
• Orders in Council- Emergence powers to make law, by bypassing
the Parliament.

CONTROL OF THE DELEGATED LEGISLATION

The control is done through:

• The Parliament
• The Courts

PRESUMPTIONS OF INTERPRETATION

• A statute does not alter the existing common law.

• Statute doses not have retrospective affect to a date earlier than its
becoming law.
• If a statute deprives a person of his property, say by nationalisation,
he is to be compensated for its value.
• A Statute is not intended to deprive a person of his liberty.
• A statute has effect only in the country of its origin.
• A statute cannot impose criminal liability without proof of guilty
intention.
• A statute does not repeal other statute.

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3. Judicial Precedent

 This is law made by the judges and used as a standard in

subsequent similar cases. [a landmark decision that set a
legal precedent]
 It is a legal decision serving as an authoritative rule or pattern in
similar cases that follow.

 It is an established practice; custom.

 It can be an act or instance that may serve as an example or

justification for subsequent situations.

However, the general rule is that the Judges have no authority to make
new rules of law as such authority remains the exclusive function of
the Parliament. Function of the Judges is not less or more than
interpreting and applying the rules of law made and handed down by
the parliament.

There may be a situation which presents itself an exceptional to the

general rule. This is when a complainant comes before the court and
claim the respondent’s conduct has disadvantaged his personal right
and character. If the court discovers that despite the injured cause
there is no substantive rule of law to be applied to the dispute, then
the High Court or Supreme Court becomes entitled to entertain such a
case as an exceptional case to the rule and give a judgement which
has no effect of creating a new rule of law.

However, before entertaining the dispute the court shall be satisfied on

the following elements:
 Plaintiff has a legitimate claim
 The conduct of the respondent has disadvantaged the position of
the complainant.
 There is no any other remedial action available to the complainant
besides the one sought from the court.

The court shall be guided by the essentials of reasonableness and

partiality.

The judgement shall be determined by the facts, which facts shall in

the judgement become the reasons of the judgement. The reasons of
judgement become the new Substantive rules of law. When the facts of
the dispute become the reasons of judgement, they have the effect of
being law created in the judgement. This aspect is regulated by the

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doctrine of “Ratio Decidendi”, which means the rational decision or
reasons of the judgement.

- Immediately the judgement is pronounced, the doctrine of “Stare

Decisis” comes into place, which means “Stand by your previous
decision and do not cause disturbance to the settled points’. It
intends that once precedence has been made the course of the rank
and President and inferior courts must come to the same decision or
judgement when ever faced or confronted with a dispute of the
same facts in nature in the future.

- However, another doctrine found in a judgement is of “Obita

Dictum”, which is not a binding rule. It is a maclament
(STATEMENT) made by the judge during the process of giving a
judgement lamenting about the possible future conduct by the court
toward a particular trend of offence of the society. The comment
has no effect on the judgement itself.

Advantages of the Judicial Precedent

 It affords redress to the injured party in circumstances where

there is no any other remedy available.

 It enhances the body of law as it provides for new rules of law of

the land
 Although a precedent is authoritative in its country of origin only,
however it transcends nation borders and influence judges
across the global law and as such it is the only universal source
of law.

 It enhances planning since one can easily predict the outcome of

a case with the courts.

 Consistency and fairness since similar cases are dealt with in the
same way. As a result, it avoids mistakes.

 Prevents injustice

 Precision- since case law helps to define law areas, so there is

great detail.
 Time saving - since there is no drafting and passing and laws.
 Flexibility – since the law can change in the long run.

Disadvantages
 It is manifested with a degree of unfairness to the respondent of
the precedent who is punished for a conduct which was not

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 illegal at its commissioning neither to the creation of the
precedent.

 May perpetuate injustice because of adherence to past events

that might have been wrongly dealt with.

 Suffers some deficiency of public promulgation as it is not

gazetted.

 It is not comprehensive as it is limited or restricted to the actual

facts of dispute which led to the precedent.

 Rigidity – does not change easily as it is bound by higher courts,

and bound by the past decisions.

 Complexity – not always find ratio decidendi, hard to find all

relevant cases even with computer data base.

4 Roman Dutch Law

It is made up of three components
 Roma Decrees
 Dutch Custom up to 1652
 Legal Treaties by the Jurists

It was developed into a legal system after independence of

Netherlands from the Roman Empire.

Before independence, the legal system of Netherlands was Roman law

which was mainly in the form of six Decrees codified into Quarts and
handed down to the Roman Empire.

 When the Roman Empire left Netherlands, the Roman Law

remained functional.
 However, some the Roman law had to be changed as it was not
friendly enough the people and they were replaced by the Dutch
Custom.
 However, the two could not be compatible to each other, hence
the introduction of the Legal Treaties which were designed to
harmonise the two [ the Dutch custom and the Roman Law].

 Our present legal system has developed much that there is still
very little of the Roman-Dutch Law present.

 The only Dutch custom which formed part of our Common Law
was the custom which was in existence by 1652.

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 The only part of the Roman Dutch Law found in our legal system
is the Legal Treaties which were written by the outstanding
jurists in Netherlands with aim of creating a just legal system.

 However, the Roman Dutch Law was brought to SA in 1654 by

Jan Van Reeback
 It remained law of the land of Cape until 1805 when the British
took over.
 It was then brought to Rhodesia by Rhodes in 1890 and
remained the Common Law of land until 1980 when we got our
independence.

NB Legal Treaties are philosophies or discourses written by a

group of lawyers in a country as the authority in a specific filed.