An Introduction to Zimbabwean Law WEAVER_Intro-to-Law_FINAL.indd 1 15/3/10 15:44:35 WEAVER_Intro-to-Law_FINAL.indd 2 15/3/10 15:44:35 An Introduction to Zimbabwean Law lovemore madhuku BL (Hons), LLB (Zimbabwe), LLM, PhD (Cantab) Lecturer in Law, Faculty of Law University of Zimbabwe WEAVER_Intro-to-Law_FINAL.indd 3 15/3/10 15:44:35 Published by Weaver Press, Box A1922, Avondale, Harare and Friedrich-Ebert-Stiftung (FES) Box 4720, 6 Ross Avenue Belgravia, Harare © FES & Lovemore Madhuku, 2010 Typeset by forzalibro designs Cover by Danes Design, Harare Printed by Sable Press, Harare All rights reserved. No part of the publication may be reproduced, stored in a retrieval system or transmitted in any form by any means – electronic, mechanical, photocopying, recording, or otherwise – without the express written permission of the copyright holders. ISBN: 978-1-77922-098-1 WEAVER_Intro-to-Law_FINAL.indd 4 15/3/10 15:44:35 About the author Born on 20 July 1966 in Madhuku village, Lovemore Madhuku completed his primary and secondary education in Chipinge. He then completed his Bachelor of Law (Honours) degree in 1989 with a first-class pass at the University of Zimbabwe and went on to study for a post-graduate Bachelor of Laws (LLB) degree. Awarded a Beit Trust Fellowship to study law at Oxford University in the UK, he transferred after a term to study for the Master of Law (LLM) at the University of Cambridge on a Cambridge Commonwealth Trust Scholarship, completing with a first class in July 1994. He then returned to Zimbabwe for an 18-month break, during which time he joined the Friedrich Ebert-Stiftung, a German NGO, as a labour law consultant while at the same time teaching in the Law Faculty. In January 1996, he returned to the University of Cambridge to study for a PhD, which he successfully completed in December 1998. While still studying for his PhD, he accepted a permanent lecturership in the Law Faculty at the University of Zimbabwe. Since then, Madhuku has taught introduction to law, constitutional law, labour law, jurisprudence (legal theory), tax law, and banking law and has published extensively in these areas. He is currently Chair- person of the Department of Public Law in the Law Faculty. Dr Madhuku is very active in civil society work. He is one of the found- ers of the National Constitutional Assembly (NCA) and has been its National Chairperson since July 2001. The NCA is advocating for a new, democratic and people-driven constitution in Zimbabwe. He is married to Annamercy and they have three children, a daughter, Tendai, and two sons, Nyasha and Kuziyakwashe. WEAVER_Intro-to-Law_FINAL.indd 5 15/3/10 15:44:35 WEAVER_Intro-to-Law_FINAL.indd 6 15/3/10 15:44:35 Contents Acknowledgements xiii Foreword xv 1 What is Law? 1 The concept of law: A definition 1 The relationship between law and morality 3 The relationship between law and justice 4 What is a legal system? 6 The purpose and function of law 6 To do justice 7 To preserve peace and order 7 To enforce morality 8 To protect the interests of the ruling class 10 Two key elements of law: legal right and legal personality 10 Legal right 10 Legal personality 11 2 Sources of Law 13 Legislation 13 Common law 15 A brief history of Roman Dutch law 18 Advantages of precedent 24 Custom 25 General custom 25 African customary law 26 Authoritative texts 32 Law reports 33 3 Divisions of the Law 36 Criminal law versus civil law 36 Public law versus private law 39 Substantive law versus procedural law 40 vii WEAVER_Intro-to-Law_FINAL.indd 7 15/3/10 15:44:35 Contents National law versus international law 40 General law versus customary law 41 Common law versus civil law 41 Law (common law) versus equity 41 4 The Law-Making Process 43 Introduction: State organs and their powers 43 The legislature (the law-makers) 44 The executive 46 The judiciary 47 Other key organs 48 The Attorney General 48 The Comptroller and Auditor-General 49 The Public Protector 49 The process of law-making in Parliament 49 Pre-bill stage 50 Types of bills 51 Gazetting of bills 51 Passage of bills in Parliament 52 The effect of Parliament’s failure to follow specified procedures 55 Delegated legislation 57 5 The Structure of the Courts 61 The division between criminal courts and civil courts 61 Criminal courts 61 Magistrates Courts 62 Composition 62 Jurisdiction 63 The High Court 64 Composition 64 Jurisdiction 66 The Supreme Court 67 Composition 67 Jurisdiction 67 Courts-martial 68 Police board of officers 68 Prison courts 68 viii WEAVER_Intro-to-Law_FINAL.indd 8 15/3/10 15:44:35 Contents Children’s Courts 68 Parliament sitting as a court over breach of parliamentary 69 privileges Ordinary civil courts 70 Magistrates Courts 70 Jurisdiction 70 Composition 71 The High Court 71 Composition 71 Jurisdiction 71 The Supreme Court 72 Composition 72 Jurisdiction 72 Specialist courts 73 Advantages of specialist courts 73 Disadvantages of specialist courts 74 Examples of specialist courts 74 The Labour Court 74 The Administrative Court 76 The Administrative Court as the Water Court 76 Special court for income tax appeals 78 Local courts on customary law 79 Small Claims Court 80 6 The Legal Profession in Zimbabwe 84 Introduction: The legal profession 84 A divided or fused profession? 84 The nature of the fused profession in Zimbabwe 86 Admission as a legal practitioner 87 Practical legal training after registration 89 Discipline for professional misconduct 89 The Law Society of Zimbabwe 90 The Council for Legal Education 91 Judges 91 Who appoints judges? 92 Qualifications for appointment as judges 94 Compulsory retirement versus executive discretion to extend 95 the term of office of a judge The removal of judges from office 96 ix WEAVER_Intro-to-Law_FINAL.indd 9 15/3/10 15:44:35 Contents Other features on the independence of judiciary 103 Provision on judicial independence 103 Vesting judiciary functions exclusively in the judiciary 104 7 An Outline of Court Procedures 107 Civil procedures 107 Adversarial versus inquisitorial procedure 107 Civil trial procedure versus application procedure 108 Civil trial procedure 108 Letter of Demand 108 Issue of Summons 108 Appearance to defend 109 Request for further particulars 109 Defendant’s plea 109 Request for further particulars 109 Replication 110 Close of pleadings 110 Discovery 110 Pre-trial conference 110 Trial date 110 The trial 110 Judgment 111 Enforcement of judgment 111 Execution of property 111 Garnishee order 111 Civil imprisonment 111 Contempt of court 112 Appeals and reviews 113 Application procedure 114 Criminal procedure 115 General 115 Securing presence of the accused 116 Bail 117 The trial process 117 Stages of the trial process 118 The accused’s entering of plea 118 Outline of the State’s case 119 Outline of the defence 119 Evidence-in-chief 119 x WEAVER_Intro-to-Law_FINAL.indd 10 15/3/10 15:44:35 Contents Cross-examination 119 Re-examination 120 Closing of the State case 120 Application for discharge of the accused at the close of state 120 case (optional) Defence case 120 Close of the defence case 121 Addresses by both sides 121 Verdict 121 Addresses on sentence: mitigation/aggravation 121 Sentencing 122 Caution or reprimand 122 Fines 122 Recognisances 123 Community service 123 Imprisonment 123 Corporal punishment 124 Sentencing to death 124 8 Legal Aid 127 Introduction 127 The old system of legal aid 128 Civil court legal aid 128 Criminal court legal aid 128 The new system of legal aid 130 Evaluation of the Legal Aid Scheme in terms of the Act 133 Contingency fee arrangements 134 Legal aid by non-governmental organisations 135 The English legal aid system 136 Legal aid in South Africa 140 9 Statutory Interpretation 144 Introduction 144 The objective of interpretation 144 Rules of statutory interpretation 145 The Literal Rule 145 Statement of the rule 145 Application of the Literal Rule 146 xi WEAVER_Intro-to-Law_FINAL.indd 11 15/3/10 15:44:36 The Golden Rule 150 Statement of the rule 150 Application of the Golden Rule 150 The Mischief Rule 151 Application of the Mischief Rule 152 The special place of a casus omissus 152 Maxims of statutory interpretation 153 ‘Ejusdem generis’ 154 ‘Noscitur a sociis’ 156 ‘The rule of rank’ 156 ‘Expression unius est exclusio alterius’ 157 ‘Contemporanea expositio’ 158 ‘Reddendo singula singulis’ 158 ‘Cessante ratione legis, cessat ipsa lex’ 159 Presumptions of statutory interpretation 160 Introduction: What are presumptions? 160 Specific presumptions 162 The presumption against the alteration of the common law 162 more than is necessary The presumption that the legislature does not intend that 163 which is harsh, unjust or unreasonable The presumption of constitutionality 164 The presumption against retrospectivity 166 The presumption in favour of the principles of natural justice 166 The presumption against interpreting a statute so as to oust 168 or restrict the jurisdiction of the Superior Courts Aids to statutory interpretation 168 The Interpretation Act (Chapter 1:01) 168 Interpretation of sections of a statute 170 Preamble 170 The long title 172 The short title 173 Headings and marginal notes 173 Punctuation 174 Schedules 174 External aids 174 Historical background or surrounding circumstances 174 Parliamentary history, including parliamentary debates 175 Statutes in pari materia 176 Treaties and International Conventions 177 Some Latin words and expressions 183 xii WEAVER_Intro-to-Law_FINAL.indd 12 15/3/10 15:44:36 Acknowledgements This book is a compilation of my lecture notes for ‘Introduction to Law’, a course which is one of the main foundations of the LLB degree of the Faculty of Law, University of Zimbabwe.