The Law in Zimbabwe

Law provides a source of scholarly inquiry into legal history, philosophy, economic analysis and sociology. Law also raises important and complex issues concerning equality, fairness, and justice.

Introduction

Zimbabwe has a hybrid, or plural, legal system in the sense that the law currently in force was adopted from foreign jurisdictions and imposed into the country by settlers during the colonial era. Zimbabwe’s law after several years of independence still exposes residual traits of the process of transplantation of historical disempowerment ands colonial takeover.

Zimbabwe’s Legal system consists of the Common Law in Zimbabwe (non statutory or unwritten Anglo Roman Dutch Law), Legislative Law in Zimbabwe, Precedent / Case Law / Court Decisions and Customary Law. With the exception of Criminal Law, which has recently been reformed and codified, Zimbabwe’s law is not codified. The Constitution of Zimbabwe is the Supreme Law of the country and it is the parent act of any other Legislation.

Historical Overview

The colonial and legal history of Zimbabwe, although unique and independent, is interconnected and interrelated to the history of South Africa’s legal developments and colonial developments.

Prior to the arrival of the first British settlers in 1890, the area now known as Zimbabwe was occupied exclusively by the Shona and Ndebele peoples whose chiefs exercised Sovereign powers over them. The Shona people occupied the northern part of the country known as Mashonaland, while the Ndebele people occupied the southern part known as Matebeleland. Lobengula, a Ndebele chief, was the most powerful chief at the time of British occupation. The law in force before British occupation was the traditional or customary law of the tribes living in Zimbabwe at that time. The traditional laws were written and were not uniform throughout the country. Chiefs and their kraal heads administered the law with the chiefs being the judges who had the final say in the settlement of disputes. Chiefs have the power to issue royal decrees and these would become law. Traditional laws were enforced by the king or chiefs warriors, or indunas.^[1]

The relationship between law and morality

Law is law, regardless of its moral content. However, most legal rules are derived from morality. This means that in such instances, the law is used to enforce morality. Law-makers seeking to enact new laws to regulate human conduct usually convert into law their deeply held moral convictions. Morality is the bedrock of law but it is not law. Take, for example, the following rule: Thou shall not kill. This is a rule of morality. If the state decides to recognize and enforce it, it also becomes a legal rule. If the state decides not to convert it into law, it remains a moral rule only. A moral rule is converted into law in three main ways. First, a moral rule that is considered by a given society as so important as to require legal backing is converted into law by the simple device of enacting a piece of legislation incorporating that moral rule. Once enacted, the piece of legislation becomes the source of the legal rule, but this does not take away the fact that its real source is morality. For example, most people in Zimbabwe would regard it as immoral for any person to engage in any form of sexual activity with an animal. This moral perception has been converted into law through the creation of the crime of bestiality, which is provided for in Section 74 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) as follows:

Any person who knowingly commits any sexual act with an animal or bird shall be guilty of bestiality and liable to a fine up to or exceeding level fourteen or imprisonment for a period not exceeding one year or both.

The second way in which a moral rule may be converted into law is in the so-called ‘grey areas’ of the law, i.e., where the law is unclear and the courts resort to moral principles in interpreting the law. An interpretation made by a court is legally binding for the purposes of the issue at stake and, as shall be seen later under the common law system, it becomes, in appropriate cases, part of the law.^[2]

29 October 1889 marked the commencement of formal colonial takeover for Zimbabwe. A company known as the British South Africa Company (BSAC) was given a Charter on 29 October 1889 by the British government. The company was the brainchild of Cecil John Rhodes, a British businessman and politician. The colony of Zimbabwe was renamed Rhodesia, after Cecil Rhodes. The charter was a semi-permanent instrument of government until such time as nay settlers could take over the administration of the colony. According to the charter, the British South Africa Company was to administer the colony for at least twenty-five years before the contract was tampered with.

In itself the charter was the first legal document which outlined how Rhodesia was to be governed and administered. It also defined legislative and judicial issues. Article 10 of the Charter decreed thus:

"…the company shall to the best of its ability preserve peace and order in such manners as it shall consider necessary and may with that object make ordinances to be approved by [the British] Secretary of State, mat establish and maintain a force of Police".

It is thus patently clear from the provisions of Article 10, that the company had now been vested with legislative, administrative and judicial powers and this was the beginning of formal law and its imposition upon a sovereign African Natives.

On the 12th of September 1890, acting on the strength of the Charter, a group of British Settlers arrived at what is now Harare in Mashonaland and hoisted the Union Jack (British flag), a sign of effective occupation. The place was then named Fort Salisbury. A town was created and a Police Force set up. The occupation was secured through dishonest and fraudulent means, given that the black natives were oppressed to British occupation of their territory. On 9 May 1891, the British government brought into being the "South Africa British Protectorate". The idea was to secure the territory from occupation by the South African Republic. However, the company remained in control of the territory.

Given the deceitful and fraudulent means of securing the territory used by Rhodes and his company, tension began to mount between Lobengula and the company. A war broke out in 1893 in which the natives, poorly armed, were defeated. This war was to be known as the Anglo-Matebeleland war of dispossession.

In 1894, a High Court was set up, from which appeals would proceed to the Cape Supreme Court. It is thus common knowledge that the laws administered in the colony of Rhodesia were of foreign origin – mainly British (English Law) and Roman – Dutch Law.

A landmark occurrence took place on 20 October 1898. The South Rhodesia Order in Council was enacted. It provided for the appointment of an Administrator and a Legislative Council. The Legislative Council had the power to enact laws for the "peace" order and good government of Southern Rhodesia vested in the British Crown and not in the Company. All cases tried in the courts then bore the name of the Gown or the Rex. In October 1923, Southern Rhodesia was formally transformed into a British Colony by the Southern Rhodesia (Annexation) Order in Council of 30 July 1923. This influenced the law to be administered in that it led to the adoption of English legal principles in certain instances.

A Constitution then came into being in 1923. The Constitution established a legislative assembly consisting of thirty elected representatives of electoral districts. It also provided for the election of a Speaker and a Deputy speaker of the Assembly. Such a development marked the commencement of formal parliament a model which Zimbabwe still follows today. The 1923 Constitution was later revised in 1961; the 1961 constitution conferred more powers of self government on the territory of Southern Rhodesia, because the territory was still a British Protectorate. It also took into account the views of the African nationalists who sought to advance the political rights and interests of Africans.

On the 11th of November 1965, Ian Smith declared a Unilateral Declaration of Independence (UDI), which sought to free the territory from the direct British control and dominion and establish a system of total self-governance. The Queen dismissed Ian Smith and his Ministers for insubordination and declared the declaration illegal, and urged all citizens, the Judiciary, the armed services, the police and the public service to carry on with their normal tasks.

In 1969 a new Republican Constitution was adopted. It introduced a Non-Executive Presidency, a bicameral legislature, consisting of a house of Assembly and a Senate. The Senate was the upper house, constituting of twenty-three Senators - ten were Europeans, a further ten were African Chiefs and the final three were persons appointed by the President. The Senate was abolished later in independent Zimbabwe in 1987 and later recently re-introduced in September 2005. This serves to highlight how the law in Zimbabwe has been etched and shaped by the country’s Colonial history.

The House of Assembly of 1969 consisted of sixty-six members. Fifty were Europeans, the other sixteen were Africans. This reservation of seats for Europeans who were the minority was to say the least oppressive and it gave rise to the Revolutionary war for independence.

As a result of the continued Political impasse, numerous efforts were made to solve the political crisis. Africans continued waging a war in demand for majority rule and total independence. In 1978 the Regime partially relented and entered talks with African national parties. A new Constitution was agreed on (the 1979 Constitution Elections were held and the U.A.N.C won - Bishop Abel Muzorewa became Prime Minister). Southern Rhodesia for that brief period came to be known as Zimbabwe Rhodesia. Political turmoil continued embattled and this gave rise to the Lancaster House Agreement in 1979, which sought majority rule for Africans and a total grant of Independence to Africans. Soon after the Constitutional Conference, an election was held in 1980 in which Robert Mugabe’s Zanu PF won. On 18 April 1980 Prince Charles formally conferred independence upon Zimbabwe; the new constitution then came into effect on the same day.

The Lancaster House Constitution of 1979 was the Supreme Law of Zimbabwe until the year 2013 when the country came up with a new Constitution.

Divisions of the Law

Criminal Law versus Civil Law

A crime is a wrong punishable by the state, and the main object of Criminal Law is punishment of the offender(s). A civil wrong is a wrong against another person, and the main object of Civil Law is to compensate the victim for the harm suffered. Although a crime is a wrong against an individual, it is considered a wrong against the state and it is the latter which has the prerogative of prosecuting. In exceptional cases, a private prosecution is permitted.

Every legal system decides which wrongs against individuals are to be regarded as wrongs against the state and therefore punishable by the state. It is clear that a wrong becomes a crime solely because of the decision by the legal system that it be regarded as such. This is why a crime in one society may not be a crime in another. For example, while homosexual practices are regarded as criminal in Zimbabwe, they are not in South Africa.

A wrong may be both a crime and a civil wrong. Whereas virtually all crimes are civil wrongs, the reverse is not the case. Most civil wrongs are not crimes. Examples of civil wrongs include breach of contract, delicts (defamation, assaults) and trespass.

The prerogative of the state to pursue a criminal prosecution does not affect the civil remedies available to a person who has been wronged. Where the wrong is both a crime and a civil wrong, it is permissible to institute both proceedings at the same time or one after the other. The result in one case may not have a bearing on the other. In a criminal case, the state is required to prove the guilt of the accused ‘beyond a reasonable doubt’. This is not the same thing as ‘beyond a shadow of doubt’. In this instance, the guilt of the accused must be overwhelming in such a way that any doubt that may still exist must be unreasonable.

In a civil case, the liability of the other party need only be proved on a ‘balance of probabilities’, i.e., just above 50 per cent. This means that a person who may not be proved guilty beyond a reasonable doubt may still be found liable on a balance of probabilities. Accordingly, the fact that a person has been found ‘not guilty’ in the criminal courts cannot itself be a basis for not pursuing civil action. However, it must be clear that a person found guilty beyond a reasonable doubt is clearly liable on a balance of probabilities.

The legislature has now stepped in to assist civil litigants where a person has already been found guilty in criminal courts. In terms of the Civil Evidence Act (Chapter 8:01), a conviction in a criminal court is admissible in a civil court. The Civil Evidence Act was enacted as Act Number 15/1992 and came into force on 15 October 1992. Section 31 (13) of the Act provides as follows: Where it is proved in any civil proceedings that a person has been convicted of a criminal offence, it shall be presumed unless the contrary is shown:

1. That he did all acts necessary to constitute the offence; or
2. Where the offence is constituted by omission to do anything, or that he omitted to do that thing, as the case may be.

Even where allegations of a criminal nature constitute the basis of a civil action, the standard of proof remains that of a balance of probabilities. A typical example is where an employee is accused of theft or fraud at the workplace and the employer institutes disciplinary proceedings with a view to terminating the contract of employment. In such disciplinary proceedings, the employer is only required to prove the theft or fraud on a balance of probabilities and, if successful, the employee may be dismissed. Should the employee be prosecuted, the state will have to prove the theft or fraud beyond a reasonable doubt. In ZESA v Dera the employee was accused of theft and the employer sought to dismiss him from employment. A disciplinary committee found the employee guilty of theft on a balance of probabilities and authorized his dismissal. The employee subsequently appealed to the Labour Relations Tribunal, which reversed the disciplinary committee’s ruling by holding that since the allegation was of a criminal nature, the employer had to prove it beyond any reasonable doubt. The employer successfully appealed to the Supreme Court, which rejected the approach of the Labour Relations Tribunal and reiterated that in all civil cases, including those where allegations are of a criminal nature, proof remains on a balance of probabilities. The Supreme Court also took the opportunity to state the rationale of the different standards of proof in criminal and civil cases. McNally JA said:

It is a startling, and in my view, an entirely novel proposition, that in a civil case the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus a person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties.

Moreover, parties in a civil dispute are equally interested parties, in the sense that each one seeks relief. X claims money from Y, Y claims an order that he owes nothing; X wishes to dismiss Y, Y wishes to remain employed. In a criminal matter the State does not stand to gain or lose by the outcome of the trial. So, if Y is acquitted of theft, the State does not suffer. But if X is forced to continue to employ Y, whom it has accused of theft, X does indeed suffer if Y,who is in fact a thief, is found ‘not guilty’.

In a criminal case one is primarily concerned with doing justice to the accused. In a civil case one is concerned to do justice to each party. Each party has a right to justice, and so the test for that justice has to balance their competing claims. Hence the ‘balance of probability’ test. ZESA, in the present case, has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law must balance those rights.

In distinguishing between criminal and civil actions, it has to be remembered that the same event may give rise to both. For example, where the driver of a car injures someone through their reckless driving, they are liable for prosecution under the Road Traffic legislation. At the same time, they will also be responsible to the injured party in the civil law relating to the tort of negligence.

Public Law versus Private Law

Public law may be described as that law in which the state is a party to the relationship or the dispute, whereas private law regulates the rights and duties of persons among themselves. The state has direct matters over which it is involved in the day-to-day life of citizens. This is the province of public law.

Another way of expressing the distinction between public law and private law is to say that if one of the parties to the legal relationship is the state then it is public law and if it is not, it is private law.

Public law covers constitutional law, criminal law, law of taxation and administrative law. Here, the state is involved in its capacity as a sovereign power. Private law covers the law of property, of obligations (contract and delict) and of persons. The state may be regulated by private law where it is involved not as a sovereign power but as an ordinary person, such as where it enters into a contract to purchase goods and services.

In some cases, it is difficult to tell whether a particular law is public or private in nature. For example, with labour law, some aspects fall under public law, such as when workers seek to register a trade union, while others are clearly in the domain of private law, such as the relationship

Substantive Law versus Procedural Law

Substantive law deals with specific legal rights and duties of persons, such as the nature of the rights and duties, how these are constituted, how they are extinguished and their legal effect.

Procedural law is composed of rules that govern the enforcement of rights, i.e., the steps which should be taken to impose these rights. It is sometimes described as adjectival law and includes the law of criminal procedure, civil procedure and the law of evidence.

National law versus international law

National law refers to the body of rules peculiar to a particular country or state, while international law refers to rules that are binding on states in their relations with each other.

International law is sometimes described as public international law so as to distinguish it from private international law (conflict of laws). Private international law deals with the exercise of jurisdiction by national courts in matters involving a foreign element, such as jurisdiction over a foreigner or where the cause of action arose in a foreign state.

It has been argued that international law is not law because there is no supra-national body to enforce it. This argument is misplaced. Modern jurists regard it as law and the courts refer to it as such. It is important to emphasize that the primary focus of international law is to regulate relations among states, not create rights for individual citizens. However, states may agree to create individual rights for their citizens and when this happens national law may be involved in the enforcement of those rights. An individual citizen has no right of audience before the International Court of Justice (ICJ).

In Zimbabwe, a rule of international law emanating from a treaty which has been ratified by Zimbabwe does not create legal rights for citizens under national law unless it has been incorporated into an Act of Parliament. However, rules of customary international law are automatically regarded as part of our national law, except where they conflict with a statute or the common law.

General law versus customary law

General law is made up of statute law and common law, whereas customary law refers to African customary law. Customary law only applies to Africans as defined in the Interpretation Act (Chapter 1:01). Customs of Europeans in Zimbabwe do not constitute customary law. An ‘African’ is defined as ‘any member of the aboriginal tribes or races of Africa and the islands adjacent thereto, including Madagascar and Zanzibar or any person who has the blood of such tribes or races and who lives as a member of an aboriginal native community.’

Common law versus civil law

A distinction is sometimes drawn between systems of law originating from Roman law (civil law systems) and those originating from English law (common law systems). The following passage from Smith and Bailey illustrates this distinction: The point that decisions of the superior courts are a source of law in their own right is a distinctive feature of ‘common law systems’, the term here being used to distinguish such systems from continental ‘civil law’ systems based in origin upon Roman Law but now upon a series of codes established in the nineteenth and twentieth centuries. The basic elements of English law have become established in a number of Commonwealth countries (most notably Australia, New Zealand and Canada, excluding Quebec) and the United States (except Louisiana).

References