2.

The Zimbabwean legal system

2.1. Introduction

A country’s legal system relates to all applicable legal rules and regulations
(laws) and a system of enforcing such rules and regulations with an overall
objective of to achieving justice in the society.
This chapter thus aims at providing an insight into the applicable laws of
Zimbabwe, their sources and the courts system through which the law as laid
down is applied. The Zimbabwean legal system has been described as a hybrid
or plural owing to the fact that the applicable law in Zimbabwe consists of legal
rules and regulations that were adopted from foreign jurisdictions and those
that have been developed through legislative process, customary practices and
judicial precedence.

The history of the Zimbabwean legal system mirrors that of the country
particularly the colonial history. The Zimbabwean legal system consists of the
Common law (non-statutory or unwritten Anglo Roman Dutch Law),
statutes/legislation (laws made by law making authorities), case law/judicial
precedence (legal principles developed from court decisions) and customary
law (legal principles that have evolved from customs/practices).

2.2A Historical Overview of the Zimbabwean legal system1

As highlighted above, the country’s legal history mirrors that of its colonial
history. As such, it becomes imperative that a historical overview of the
Zimbabwean legal system be presented. This section thus traces some
significance events in the development of the Zimbabwean legal system. The
Zimbabwean legal history bears some resemblance to that of South Africa. This
explains the similarities in several statutes as well as the application of case law
of South Africa in Zimbabwe.

1
See generally Rowland JR Constitutional History of Southern Rhodesia: An Outline’ and
Palley C, The Constitutional History and Law of Southern Rhodesia ( 1888-1965)(1966).
Linington G Constitutional Law of Zimbabwe (2001).
Zimbabwe, as the case with South Africa, was colonised by British settlers.
These settlers arrived in Zimbabwe from South Africa in 1890 through what is
known in history as the Pioneer Column. Prior to the arrival of these settlers,
the indigenous people, mainly the Shona and Ndebele, occupied the modern
day territory of Zimbabwe. They lived under traditional leadership who excised
sovereignty authority over them.

The indigenous populations were governed under tribal traditional or

customary laws. Each tribe followed its own practices and these practices were
the law that the traditional leadership enforced. The law was fragmented and
uncodified. It managed to exist through generation through tradition and the
ruler was the custodian of such law.  The rulers (chiefs) with the assistance of
their councils administered the law. Legal disputes were resolved through a
well-structured system that starts at family level to clan level and then to the
kraal level and finally chieftaincy level. The chief was the highest judge whose
decisions were final. As the supreme ruler, chiefs could issue decrees on various
matters and these decrees becomes binding upon subjects.

In 1986, the Shonas and Ndebele waged resistance wars against colonial settlers
in what is now known as the First Chimurenga or Umvukela The British
government granted a Royal Charter to Cecil John Rhodes’ British South
African Company (BSAC) on 29 October 1889. This marked the formal
colonisation of Zimbabwe. The Charter conferred upon the BSAC the authority
to administer Zimbabwe for at least 25 years.

The Charter is regarded as the first legal instrument governing the colony then
known as Rhodesia (after Cecil John Rhodes). It provides both legislative and
judicial matters. Some of the key features of the Charter are;

 Article 10- on the preservation of peace and security. Provided for the
enactment of ordinances pursuant to this objective and establishment of
a police force. These ordinances were to be approved by authorities in
Britain. This article vested legislative, administrative and judicial powers
 in the BSAC. This marked the beginning and imposition of formal law
upon a sovereign indigenous population.
 The 12th of September 1890 saw the hoisting of the Union Jack at Fort
Salisbury (now Harare) by British Settlers. This signalled of effective
occupation of Zimbabwe.  This was done on the strength of the Charter.
This was followed by the establishment of a settlement and creation of a
police force. 
 The natives resisted the occupation of their land and in 1893 waged an
armed resistance against the settlers in what become known as the
Anglo-Ndebele war. The Lobengual led Ndebeles were however
defeated owing largely inferior weapons.
 A High Court was set up in 1984. Its decisions were appealable to the
Cape Supreme Court. This court administered British (English Law) and
Roma- Dutch law of the settlers.
 On 20 October 1898, Southern Rhodesia Order in Council was enacted.  It
provided for the appointment of an Administrator and a Legislative
Council with powers to enact laws for the “peace” order. Good
government of Southern Rhodesia was vested in the British Crown and
not in the BSCA.  All cases tried in the courts then bore the name of the
Crown 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.
 1923- The adoption of a Constitution. Its main features were;

i. The established a legislative assembly consisting of thirty (30) elected

representatives of electoral districts.

ii. Provision for the election of a Speaker and a Deputy speaker of the
Assembly -   developments that marked the commencement of formal
parliament a model which Zimbabwe still follows today.
 1961- The 1923 Constitution was revised. Revision saw the conferment of
more powers of self- government on the territory of Southern Rhodesia.
The territory was still a British Protectorate.
 11th of November 1965- Unilateral Declaration of Independence (UDI)
by Ian Smith. UDI 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.
 1969- Adoption of a new Republican Constitution. Key features included;

- Introduction 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
(23) Senators, ten (10) Europeans, a further ten were (10) African
Chiefs and the remaining three (3) were persons appointed by the
President. 

* 1987 the Senate was abolished only to be reintroduced in

September 2005.

- The House of Assembly consisted of sixty-six (66) members of which

fifty (50) were Europeans, sixteen (16) were Africans.  

 Inequalities led to political impasse and the waging of a war of liberation

by Africans who demanded majority rule resulting in the colonial
government partially relenting leading to talks in 1978.
 1979- new Constitution was agreed. Elections were held that were won
by Bishop Abel Muzorewa’s United African National Congress and he
became Prime Minister.
 The country was briefly known as Zimbabwe- Rhodesia. However,  
political instability resulting in the 1979 Lancaster House Constitutional
 Conference.2 The conference sought majority rule for Africans and
complete granting of independence to Africans. 
 1980- after the conference, an election was held and Robert Mugabe’s
ZANU PF won.
 On 18 April 1980 Prince Charles formally conferred independence upon
Zimbabwe and the new constitution then came into effect on the same
day.
 Up until, 2013, the Lancaster House Constitution served as the supreme
law of Zimbabwe.
 Between 1980 and 2013,3 this Constitution went through several
amendments. Notably in 1987 when the office of Prime Minister was
abolished and an Executive Presidency was introduced.
 The Constitution underwent a series of amendments that are tabulated
below;

Number and year Short title Date of

commencement

27 of 1981 Constitution of Zimbabwe Amendment Act, 1981 (No. 2) 10.6.81

25 of 1981 Constitution of Zimbabwe Amendment (No. 2) Act, 1981 31.7.81

1 of 1983 Constitution of Zimbabwe Amendment (No. 3) Act, 1983

(Sections 14 and 15) 22.4.83
(Remainder of Act) 1.9.83

4 of 1984 Constitution of Zimbabwe Amendment (No. 4) Act, 1984 27 4.84

4 of 1985 Constitution of Zimbabwe Amendment (No. 5) Act, 1985 5.4.85

15 of 1987 Constitution of Zimbabwe Amendment (No. 6) Act, 1987 21.9.87

23 of 1987 Constitution of Zimbabwe Amendment (No. 7) Act, 1987

(Sections 1 and 21) 20.11.87
(Remainder of Act) 31.12.87

4 of 1989 Constitution of Zimbabwe Amendment (No. 8) Act, 1989 31.3.89

31 of 1989 Constitution of Zimbabwe Amendment (No. 9) Act, 1989

(Section 22 (b)(b), (d) and (e)) 11.5.90
(Remainder of Act) 27.3.90

15 of 1990 Constitution of Zimbabwe Amendment (No. 10) Act, 1990 3.8.90

30 of 1990 Constitution of Zimbabwe Amendment (No. 11) Act, 1990 17.4.91

2
The Constitution of Zimbabwe was published as a Schedule to the Zimbabwe Constitution
Order 1979 (S.I 1979/1600 of the United Kingdom).

3
4 of 1993 Constitution of Zimbabwe Amendment (No. 12) Act, 1993
(Sections 1 to 5 and 12) 1.11.93
(Section 9, re Defence Forces) 1.7.94
(Section 9, re Prison Service) 18.8.95
(Section 11, re Prison Service) 18.8.95
(Section 9, re Police Force) 1.10.95
(Sections 6, 7, 8, 10, 13, re Public Service) 10.3.96

9 of 1993 Constitution of Zimbabwe Amendment (No. 13) Act, 1993 5.11.93

14 of 1996 Constitution of Zimbabwe Amendment (No. 14) Act, 1996 6.12.96

10 of 1998 Constitution of Zimbabwe Amendment (No. 15) Act, 1998 30.6.1998

5 of 2000 Constitution of Zimbabwe Amendment (No. 16) Act, 2000 19.4.2000

5 of 2005 Constitution of Zimbabwe Amendment (No. 17) Act, 2005

(Sections 2–4, 18, 19 (new definition of “voter”),
20, 22 & 23, Part I of First Schedule and Second
Schedule 14.9.2005

Remainder of Act 30.11.2005

11 of 2007 Constitution of Zimbabwe Amendment (No. 18) Act, 2007 30.10.2007

1 of 2009 Constitution of Zimbabwe Amendment (No. 19) Act, 2009 13.2.2009

In 2013, a new Constitution was adopted and is the supreme law of Zimbabwe.

  

Sources of law

Where do we get the law? Sources of law are authorities that support legal
arguments/propositions. In Zimbabwe, these sources are the Constitution, legislation,
common law, case law/judicial precedents, customs /trade usage and authoritative
texts/legal writings.

1. The Constitution
Section 2 of the Constitution contains the supremacy clause which affirms that the
Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct
inconsistent with it is invalid to the extent of the inconsistency.
The Constitution is the fountain of the Zimbabwean legal system. The obligations it
imposes binds on every person, natural or juristic, including the State and all executive,
legislative and judiciary institutions and agencies of government at every level, and
must be fulfilled by them. This means that corporate organisations must operate within
Constitutional boundaries. They must not only positively abide by the constitutional
obligations but cannot design policy measures that contradict the Constitution.

Examples of Constitutional rights that corporate organisations must take note of

includes, right to dignity (s51), right to personal security (s52), freedom from slavery
and servitude (s54), freedom from forced or compulsory labour (s55), right to equality
and non-discrimination (s56), right to privacy (s57), freedom of assembly and
association (s58), freedom of conscience (s60), labour rights (s65), property rights (s71),
environmental rights (s73), freedom from eviction (s74), right to health care 9s76) and
right to food and water (s77). The exact extent to which these provisions impact upon
corporate behaviour will be discussed in latter parts of the study.
2. LEGISLATION
Legislation is undoubtedly the most significant source of law in any jurisdiction.
Legislation describes laws that are made by a law making authority of a country. In
Zimbabwe, the legislative authority is derived from the people and is vested in the
legislature, that is, Parliament and the President. 4 The legislature, as an arm of
government, is vested with the authority to make amends and repeal laws.

Parliament consists of the Senate and National Assembly constituted of members who
are elected by the general population to represent them in the law making process. The
law thus made by Parliament reflects or is deemed to be a reflection of the wishes of the
people.

Laws passed by Parliament are called Acts of Parliament. Examples includes the
Companies Act [Chapter 24:03], the Environmental Management Act [Chapter 20:27] and
the Money Laundering and Proceeds of Crime Act [Chapter 9:24]. When passing laws,
Parliament provides for a broad outline of statute that are given then given life and
details by drafts people from the Attorney-General’s office.

Legislation is supreme over any other source of law for as long as it is valid and in
force. However, it can be invalid if; (i) is repealed (cancelled) by Parliament (eg through
passing of a new law- The Public Order Security Act (POSA) [Chapter 11:17] repealed
and replaced the Law and Order Maintenance Act (LOMA) [Chapter 11:07]); (ii) if time
period set for the Act lapses, the Act becomes inoperative and invalid and hence no
longer a source of law, (iii) is declared unconstitutional or sections thereof declared as
such by the courts.

An Act of Parliament can empower other individuals or entities who are ordinarily not
law makers, to supplement it (the Act). An Act of Parliament becomes the principle law
4
Sections 116 and 117.
or enabling Act for it will enable other secondary entities to make laws. The laws that
are then made by such entities are referred to as subsidiary or delegated legislation.
Examples include Statutory Instruments, Regulations and By-law made by ministers or
local authorities (city councils). Legislation made by Parliament through Acts and
subsidiary/delegated legislation are collectively known as Statutory law/ statutes.

Subsidiary/delegated legislation can only be of force if it does not conflicts with or is

not repugnant to the empowering/enabling statute.5 Delegated legislation is also
Invalid if delegated power has been used for a purpose other than that of which it was
conferred6 and if it is unreasonable. 7

3. COMMON LAW
It is law common to all inhabitants of Zimbabwe. Can be described as common sense
law that is unwritten. The term common law has been used to describe legal systems
influenced by English common law but in civil law countries influenced by France,
Germany, Netherlands and Italy owing its origin to Roma Law.

As shown previously, the origins of the present day Zimbabwean legal system is closely
related to that of South Africa. For this, the two jurisdictions share the same common
law. In 1652, the Dutch settler Jan van Riebeeck arrived at the Cape of Good Hope. The
Dutch regarded the existing customary law as barbaric and sought to replace it with
their own Roma-Dutch legal system. This becomes the common law of South Africa. In
890 the British settlers who had migrated to then Rhodesia (now Zimbabwe) imposed
the Roman-Dutch legal system as the common law of Zimbabwe.

Roman-Dutch becomes the common law of Zimbabwe. It is of historical-colonial

reasons. Other areas of the Zimbabwean legal system are modelled along the South
African law and by extension, the English law. Examples includes the Insurance and
5
See Ranger v Greefield and Wood) 1963 R&N 127 (FS) 138; 1963 (2) SA 207, 218.
6
See Minister of Justice and Law and Order & Another v Muzorewa and Others)1964 RLR 298 (A).
7
See Campbel v R)1956 R&N 84 (FS) and S v Nyamupfukudza 1983 (1) ZLR 43(S).
corporate law from the English lex mercantalia. The English law remnants in South
Africa and then Zimbabwe can be traced from the arrival of the English at the Cape of
Good Hope in 1806 and their subsequent conquest of the Dutch. The English managed
to preserve the existing Roman-Dutch law that was being applied by the Dutch but only
limited its application to social interactions. However, as rulers, they wanted to exert
their influence in administration and commerce hence English law was applied in these
fields. When the British completed the occupation of Zimbabwe, they adopted the same
system.

Zimbabwean common law is primarily the Roman-Dutch law that as applied at the

th
Cape of Good Hope on the 10 June 1891. Roman-Dutch law is a hybrid of two distinct
legal systems- the Roman law and the Dutch legal system.

Roman-Dutch law
It is to some extent, the pivot of Zimbabwean law. The law evolves around it and is the
basis of modern day Zimbabwean legal system. It is a hybrid of ancient Roman
traditions and Germanic law in the Netherlands particularly the province of Holland. It
is a fusion of Roma law (customs) and Germanic law. At its peak in the 16 th Century,
Emperor Justinian codified Roma law and as the Roma Empire expanded into Europe,
it was fussed with other legal systems particularly the Germanic law in Netherlands
states. Roman-Dutch law was a product of systematic fusion by ancient writers such as
Hugo Grotius also known as Huig de Groot or Hugo Groot (1583-1645) between 1619
and 1621.

Roma-Dutch law was first brought to South Africa by early settlers in 1652 when Jan
van Riebeeck settled at the Cape of Good Hope. The Dutch introduced their legal
systems and uprooted African traditions and customs that had served as the law for the
indigenous population. In 1806 the British arrived in South Africa and replaced the
Dutch as the rulers. However, they did not abolish Roman-Dutch law but rather
retained it to regulate mainly social aspects of life while introducing English law in
areas of administration and commerce. In 1890 they tracked northwards to present day
Zimbabwe and upon completion of formal occupation, adopted the same legal system
as in South Africa. The Roman-Dutch law even though modified by legislation and
judicial decisions, still have imprints on the Zimbabwean legal system though colonial
legal history.

4. JUDICIAL PRECEDENT/CASE LAW/JUDGE MADE LAW

Ordinary the judiciary (courts) interpret and apply the law as laid down by the
legislature. The question is then asked how then can there be a law made by judges?

As some legal theorists pointed out, judges’ approach to the other legal sources gives us
the law in operation.8 Judges authoritatively interprets statutory provisions, or decides
whether a previous case in point is binding or decides whether a pronouncement of
Roma-Dutch law by old writers is part of the Zimbabwean common law or whether
requisite criteria for establishment of custom have been met.

Judges make law through the doctrine of precedent. It terms of this doctrine, resolutions
of legal questions today must be in the same manner as were decided yesterday. The
doctrine is a result of several factors such as convenience, the need to benefit from
accumulated wisdom derived from previous court decisions, to enhance certainty as
well as honouring tradition. The doctrine of precedence originated from the English law
principle of state decisis which literally translates to ‘stand by your decision and do not
disturb the law.’

The doctrine is premised on two condition, namely,(i) hierarchy of courts and (ii) a
systematic case law reporting.

(i) Hierarchy of Courts

8
See discussion of the critical theory of law (legal realism).
Courts must be graded. The doctrine then operates if it accepted that lower courts must
follow decisions of higher courts and courts at same level are bound by own decisions.
A discussion of the Zimbabwean court structure will be made latter suffice to say that
decisions of higher courts bind those of lower courts. Generally a court is bound by its
own decision. Lower courts are bound by decisions of higher courts. Higher courts are
also bound by their own decisions unless such as decision was made in error or
pursuant to a repealed legislation.

(ii) Systematic case reporting

Cases must be reported in yearly volumes known as Law Reports. Example Gomwe v
Chimbwa 1983 (2) ZLR 121. This is known as case citation reported in a Law Report.
The parties to this case are Gomwe (the Plaintiff or suing party) and Chimbwa (the
Defendant or party being sued). 1983 is the year the case was reported not when the
cause of action arose. (2) is the Volume where one can find the case and ZLR is the
name of the Law Report ( Zimbabwe Law Report). It is possible to have words like HC-
H for High Court Harare, HC-B for Bulawayo High Court, SC for Supreme Court and
CC for Constitutional Court. 121 is the page where one can find the reported case. If
there is another number after 121, eg 130, that will be the exact page normally where the
relevant issue can be found.

In giving judgements, a judge explains his reasons by setting out the facts of the case

and then the law applicable to the case. Another judge or legal practitioner reading the

judgement in the law reports will extract the operational and essential reason for the

decision. These essential reasons which constitutes the operation parts of the decision

are known as ratio decidendi. Judges can also make observations on the law. Such
sweeping statements are not essential to the decision and are known as obiter dicta. An

obita is only persuasive.

5. CUSTOM/TRADE USAGE
It is an established pattern of behaviour that can be objectively verified within a
particular social setting. Can be described as habits or usual practices of behaviour
observed by individuals in a society. Repetition among members of a community
eventually leads to social standards becoming accepted and thus group habits
crystallize into social rules.

Customs are not necessarily written down but observed by society for the society’s
good. Customs are thus practices of man that are regarded as law. Obedience thereto
usually instils a sense of fear. Example are ethics regulating professional conduct. Even
though these ethics are unwritten, they are observed by the profession as regulating its
trade/conduct.

Courts can enforce a custom/ trade usage as a source of law if it meets the following
requirements;9
(i)Reasonableness- a custom must be objectively seen to be reasonable. Reasonableness
is measured from the eyes of a reasonable man using the reasonable man test, that is,
whether a reasonable man would consider such a custom as worthy observing? A
reasonable man in this instance being an ordinary member of the society in which the
custom is practiced
(ii) Long –established – it must be shown that the custom have been in existence since
time immemorial.
(iii) Universal- the custom must be widely and uniformly observed and recognised
and followed as such.

9
See Jacob v Van Breda 1921 AD 330 and also Gomwe v Chimbwa 1983 (1) ZLR 121 (S).
 (iv) Certainty- it must be clear and not always changing. A law must be certain for it to
be able to be observed and as such a custom for it to acquire the force of law must also
have this quality.
(v) it must not contradict a rule of statute.

Van Bread v Jacobs – the parties Van Breda and Jacobs were fishermen at False Bay in the
Cape. There was a custom that he who comes first would set his lines for fishing nets
and no one was allowed to set their own nets nearer to the first fishermen’s. Jacob come
and spread his net near Van Breda’s and was sued. Van Bread claimed that Jacob had
violated the law as was stipulated in the custom. In his defence, Jacob argued that there
was no law prohibiting him from fishing near the first- cover. Ruling in Van Bread’s
favour, the court held that there was a long established custom which was widely
known by all fishermen in the area and which was certain, reasonable and thus binding
as if it was a law.

6. Legal writings
Legal writing by recognised authorities is also a source of law. Opinions and comments
by acknowledged writers and legal experts become a source of law given that they can
be cited as authority. Renowned jurist includes as Johannes Voet (1647-1713); Hugo
Grotius; Simon van Leeuwen (1626-1682); Dianysius Godefridus van der Kessel (1738-
1816) and Johan van der Linden.

However, in terms of English law tradition, one’s writings could only become authority

after their death. The rationale being that upon death you cannot change your mind.

Modern day court frequently quotes authors when conveniently summarizing law. See
Competition and Tariff Commission v Innscor and Another. 10 The value of writing
writings as an authoritative source of law is somewhat peripheral given that they

10
HH486-17/HC 6052/16.
simply modify and interpret existing ones. As such they are merely persuasive and not
binding on the courts.

The Zimbabwean courts system

Section 162 of the Constitution vest the judicial authority in the courts. The courts in
Zimbabwe are provided as follows;
The Constitutional court- is established and constituted in terms of section 166 of the
Constitution as the apex court that deals with Constitutional maters only. Its decision
on these matters binds all other courts. The Supreme court- established and constituted
in terms of section 168 of the Constitution, deals with appeals from the lower courts. It
is not a court of first instance meaning that matters cannot start at this court. The High
Court- established in terms of section 170 of the Constitution, is a court of first instance.
It is a superior court of record and have original jurisdiction over civil and criminal
cases. It has inherent jurisdiction. The Labour Court is a specialized court at the same
level as the High court and deals with labour issues. It is a creature of statute as it is
established in terms section 172 of the Labour Act [Chapter 28:01]. The Administrative
Court is another specialised court established and constituted under section 173 of the
Constitution and section 3 of the Administrative Court Act [Chapter 7:02] and deals with
administrative matters as defined in terms of the Act.

Section 174 of the Constitution provides for Parliament through an Act to establish and
constitute as well as define the jurisdiction of other courts and tribunals. Examples of
courts that have been established pursuant thereto includes the Fiscal Appeals Court
Act [Chapter 23: 05] dealing with appeals of fiscal (tax) nature.

The magistrates’ court is created by the Magistrates Court Act [Chapter 7:10] and deals
with matters defined under the Act. It is a court of first instance with jurisdiction
limited by the Act. It shares jurisdiction with the High Court in other matters given that
the High Court have inherent jurisdiction in both civil and criminal matters. As a lower
court, the magistrates’ court is not a court of record and its decisions are not binding on
other courts.

Customary/ primary courts are established under the Customary Law and Local
Courts Act [Chapter 7:03] deals with customary law matters as defined under the Act
and excludes those matters that are exclusively dealt with under specific legislation.

Court jurisdiction

This refers to the court’s competency to hear a matter before it and to make pronounce
hereupon. It is the court’s power to exercise authority over persons and things within
its area of influence. It is affected/influenced by such factors as geographical location
and type of cases including the subject matter. Jurisdiction thus can be in relation to (i)
the subject matter and (ii) person involved. .A court must have both subject matter
jurisdiction and personal jurisdiction over the matter to hear a case. Cases whose cause
of action arises within a particular geographic area are heard by a competent court
within that area.

Understanding the concept of jurisdiction is significant in that it assist parties to a

lawsuit to know which court to approach. The first question that one needs to answer
before filing a lawsuit is which court has jurisdiction over the matter.

(i) Subject matter jurisdiction

A court can only hear and make a determination upon a matter before it if it has
jurisdiction in relation to the subject matter. In other words, the nature of the case must
be one that the court in question is able to deal with. Subject matter thus comes first. For
example, only the High Court can make a determination in relation to issues affecting
the status of legal subjects such as marriage and insolvency. However, the location of
parties concerned determines the exact High Court to hear these matters. If for
example, a company is located in Harare and is subject to insolvency proceedings, the
High Court in Harare will have jurisdiction over the matter.
Magistrates’ courts cannot hear murder cases because a magistrate lacks the power to
pronounce upon such matters. He/she cannot sentence someone to death.

(ii) Personal jurisdiction is based on where one (or both) of the parties lives, owns
property, or does business. Parties to a lawsuit can by agreement chose a court to hear
their matter. The doctrine of convenience is important in determining jurisdiction here.
Litigants must not be inconvenienced by attending court matters hence it is critical that
they have easy access to the court.

It is pointless for a court to make a determination that it is not able to effect. A court
must be able to enforce its judgment thus where the defendant is or carries on business
or has property determines personal jurisdiction. The follow the defendant principle is
applicable as a general rule of convenience.

(iii) Monetary jurisdiction and nature of the case.

In cases where the subject matter is a monetary dispute, the amounts involved
determine which court will hear the matter. Whereas the High Court have unlimited
monetary jurisdiction, the Magistrates court’s monetary jurisdiction is as determined by
law from time to time. Section 73 of the Magistrates Court Act empowers the Minster to
prescribe monetary thresholds for this court. Magistrates Court (Civil Jurisdiction)
(Monetary Limits) Rules, 201911 prescribe the maximum threshold as $3 000 000.00.

11
Statutory Instrument 126 of 2019.
Some other types of jurisdiction include appellate jurisdiction and concurrent
jurisdiction. Appellate jurisdiction refers to the power of a court to hear an appeal and
to revise, overturn, or uphold a previous court's decision. The Supreme Court is the
final appellant court in the appeals process. Concurrent jurisdiction is exercised
simultaneously by more than one court over the same subject matter and within the
same territory. A litigant can choose in which jurisdiction the case is filed.

Legal subjectivity, rights and obligations

• A legal subject is any entity which the law accords rights and confers obligation.
• Legal rights- any interest which the law recognizes and is prepared to protect.
Eg. Everyone has an interest in living. The law thus recognises that interest and
is prepared to protect it hence that interest becomes a right to life.

• A legal subject can either be a natural subject eg. A human being or an

artificial/juristic person (any entity besides a human being that is capable of
acquiring rights and incurring obligations) eg a company.

Disputes, and dispute resolution

Legal disputes arise during the course of engineering projects as a form of business.
They can be internal (between a company and its employees) or external (between a
company and a supplier). A legal dispute is any disagreement over the existence of a
legal duty or right, or over the extent and kind of compensation that may be claimed by
the injured party for a breach of such duty or right. Litigation is where parties approach
the courts to resolve the dispute. When making such a decision, need to give due
consideration to the following;

(i) Whether the likelihood of recovery and the amount of recovery are enough to justify
a judgment against it,
(ii) Whether there is a likelihood of a counter-claim,

(iii) Whether resorting to litigation will cause an ill feeling among customers, suppliers,
or other sources of corporate finance,

(iv) Whether the defendant will be in a position to satisfy the judgment against it (nulla
bona judgment= no goods to execute).

(v) Whether the suit will be accompanied by harmful publicity

(vi) Whether the lawsuit will have a lasting adverse impact on the relation between the
company and the defendant.
 Can you sue a manufacturer of your computers over a $300-00 software
malfunctioned problem when you rely on the manufacturer for support,
service and spares for the next 10 years?
 Can you evict homeless people who have occupied a part of your premises
that is not in your plans for the next 30 years? And if there are in the short
term (5 year plan)?

The golden rule for corporate business organisations is to always consider settling.
Settling serves time, cost, and ill will of a trial.

 TO LITIGATE OR NOT? IS IT WORTH IT?

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Does it make sense for a manager to consider alternative methods of resolving a dispute
when he/she has access to a judicial system provided by the government and financed
by the taxpayer?

• Litigation is expensive and takes a toll on the business and its employees.
• Litigation generates costs in form of legal fees,
• It distracts management from company’s business.
 • The business risk damaging its public image and jeopardize relationships with
the opposing party.
• ADRs now preferred methods of settling conflicts with customers, suppliers, and
employees.

 ADR s includes negotiation, mediation, and arbitration, and hybrids such as mini-
trials.
 Choice is determined by corporate needs and constraints.
 There is need for trade-offs,
 Need for a quick solution v right method,
 Public attention v confidentiality,
 Need to preserve relations v lasting solution,

NEGOTIATION

 Give-and- take
 Transactional negotiation= forward looking with concern for desired
relationships
 Dispute negotiation= backward looking to address past events that have
caused disagreement.
 Participation in the process is voluntary.
 Parties can negotiate themselves or through legal representatives.
 Parties try to avoid arguments.
 Final decision is reached by mutual agreement through mostly compromise.

ARBITRATION

 Parties appoint an independent arbitrator.

 Parties can be represented by legal representatives.
 Arbitrator makes the decision.
 Depending with the clauses in the contract ( if method is provided therein),
can be binding.
  The standard used to determine the dispute is the arbitrator’s sense of
fairness.
 The arbitrator imposes a resolution upon the parties.
 Resolution enforced by courts.
 Costs are agreed upon by parties before they enter into arbitration.

 The Arbitration Act [Chapter 7:15] applies to arbitration in Zimbabwe.

 Section 4(1) provides that arbitration may be used to determine any dispute
submitted by parties for arbitration. However, section4 (2) excludes the
application of the Act from the determination of certain matters. The matters are
excluded from determination by arbitration are;

i. An Agreement that is contrary to public policy; or

ii. A dispute which, in terms of any law, may not be determined by arbitration,
or,’

iii. A criminal case;

iv. A matrimonial cause or a matter relating to status, unless the High Court
gives leave for it to be determined by arbitration, or

v. A matter affecting the interests of a minor or an individual under a legal

disability, unless the High Court gives leave for it to be determined by
arbitration, or

vi. A matter concerning a consumer contract as defined in the Consumer

Contracts Act [Chapter 8:13] unless separately agreed to by consumers. A
consumer contract is a contract for the sale or supply of goods or services or
both, in which the seller or supplier is dealing in the course of business and the
purchaser or user is not and excludes (a) a contract for the sale, letting or hire of
immovable property; or (b) a contract of employment.