HEXCO · Polytechnic · NC Accountancy

Business Law 1: The Zimbabwe Legal System

Learning Outcome 2 of 5

Free HEXCO NC Accountancy notes on The Zimbabwe Legal System, learning outcome 2 of 5 in Business Law 1. Law in society and business, the Zimbabwe legal system and general principles of law. Semester 2, module 310/22/M07.

Here we learn where Zimbabwe's law comes from, including custom, Roman-Dutch law, legislation and judicial precedent, the functions of the three organs of the State, and the courts in which cases are heard.

To find out what the law says on any matter, one must know where Zimbabwean law comes from, who makes it, and which courts apply it.

2.1 Sources of Law in Zimbabwe

A source of law is the place where a legal rule comes from and where its authority can be found.

Zimbabwe has a mixed legal system, combining Roman-Dutch common law, legislation, judicial precedent and customary law, all subject to the Constitution.

The Constitution

The Constitution of Zimbabwe (2013) is the supreme law of the country. Any law, practice, custom or conduct that is inconsistent with it is invalid to the extent of the inconsistency. It sets up the organs of the State and contains the Declaration of Rights, which protects fundamental rights and freedoms.

Custom as a Source of Law

Custom is a practice followed by a community for a long time and accepted as binding. A distinction is drawn between social norms, which are customs of good behaviour, such as greeting elders, that are followed but not legally enforced, and legal norms, which are customs the community regards as compulsory and which the courts enforce. Customary law applies mainly in family, inheritance and land matters among people who live under it, and it must be consistent with the Constitution.

Roman-Dutch Law

Roman-Dutch law is the common law of Zimbabwe. It developed from Roman law as adapted in the Netherlands, was brought to the Cape, and was received into Zimbabwe during the colonial period, so the law of the Cape Colony as it stood in 1891 forms the basis of our common law. It provides most of the rules of contract, delict and property, and is found in old authoritative writers and in court decisions that have developed it.

Legislation

Legislation is law made by a body with power to make laws. It includes Acts of Parliament, such as the Labour Act and the Companies and Other Business Entities Act, and subsidiary (delegated) legislation, such as statutory instruments made by ministers and by-laws made by local authorities under powers given by an Act. Legislation can change or replace the common law, and it is the most important source of new law.

Judicial Precedent

Judicial precedent is the rule that courts follow the decisions of higher courts, and their own earlier decisions, in similar cases, known as stare decisis ('stand by what has been decided'). The binding part of a judgment is the ratio decidendi, the legal reason for the decision, while remarks made in passing (obiter dicta) are only persuasive. Precedent brings certainty and consistency, because similar cases are decided in the same way.

2.2 Organs of the State

The Constitution divides the power of the State among three organs, a principle known as the separation of powers.

Each organ checks the others, so that no single body holds all power.

The Legislature

The legislature is Parliament, made up of the Senate and the National Assembly. Its main functions are to make laws by passing Acts, to approve the national budget and taxes, to oversee the executive, by questioning ministers and examining public spending, and to represent the people.

The Executive

The executive is headed by the President, with the Vice-Presidents, ministers and the Cabinet, and includes the government departments and the civil service. Its functions are to carry out and enforce the laws, to make and implement government policy, to run the public service, to prepare the budget, to make subsidiary legislation such as statutory instruments, and to conduct foreign relations.

The Judiciary

The judiciary consists of the courts and the judges and magistrates who preside over them. Its functions are to interpret and apply the law to disputes, to try criminal cases, to protect the Constitution and fundamental rights, including declaring laws or conduct invalid where they conflict with the Constitution, and to develop the common law through precedent. The judiciary must be independent, free from interference by the other organs.

2.3 The Courts

Zimbabwe has a hierarchy of courts, from local courts that apply customary law up to the highest courts of appeal.

A case usually starts in the lowest court that has power to hear it, and may be taken on appeal to a higher court.

The Hierarchy of Courts

The table describes the courts named in the syllabus, from the lowest to the highest. There are also specialised courts, such as the Labour Court, which hears employment disputes, the Administrative Court, which hears appeals against certain government decisions, and the Fiscal Appeal Court, which hears tax appeals. At the very top, the Constitutional Court decides constitutional matters.

Court	Jurisdiction and functions
Village court A local (primary) court presided over by a headman or chief.	Hears minor civil disputes under customary law in its area, such as small family and property matters. It has no lawyers and follows simple procedure.
Community court A local court above the village court.	Hears customary law civil cases, including appeals from village courts, within monetary limits set by law.
Magistrates court Presided over by a magistrate.	Hears most criminal cases, apart from the most serious, and civil claims up to a limit set by law, such as debt collection and smaller contract claims.
High Court Presided over by judges.	Hears serious criminal cases such as murder, civil claims of any value, and appeals and reviews from magistrates courts. It has inherent jurisdiction over all people and matters in Zimbabwe.
Supreme Court The highest court of appeal in non-constitutional matters.	Hears appeals from the High Court and certain other courts. Its decisions bind all lower courts.

Importance of the Courts to Business

Businesses use the courts to recover debts, enforce contracts, obtain interdicts to stop wrongful conduct, and resolve disputes with suppliers, customers, employees and the State. Choosing the right court saves time and cost; for example, a small unpaid account is usually claimed in the magistrates court, while a large commercial claim goes to the High Court. Many businesses also use arbitration, studied in a later outcome, to settle disputes privately.