Give a detailed account of content and substance of common law in zimbabwe

8/18/2019 Give a detailed account of content and substance of common law in zimbabwe

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Faculty of Law Department of Public Law

NAME NDHLOVU BRIGHT BONGANI

REG NUMBER R164843M

MODULE CODE LB103

MODULE NAME HISTORY OF ROMAN-DUTCHLAW

YEAR 2016

LEVEL: 1.1

UESTION

GIVE A DETAILED ACCOUNT ON SUBSTANCE AND CONTENT

OF COMMON LAW IN !IMBABWE "30 MAR#S$


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GIVE A DETAILED ACCOUNT ON THE SUBSTANCE AND CONTENT OF COMMON

LAW IN ZIMBABWE [30 MARKS]

KEYWORDS DEFINITION

SUBSTANCE: The real physical matter of which a thing consists

CONTENT: everything that is included and held in something

COMMON LAW: unwritten law established by following earlier judicial decision

QUESTION OVERVIEW

This question requires one to review the physical matter and everything that is included and held

in unwritten law of Zimbabwe. This suggests that there are many components that form the

common law in Zimbabwe. These components are largely Roman-Dutch law and English law

with traces of ermanic !ustoms and "nternational law. Therefore this essay will e#patiate on

how did these components conjugate and blend to form what is now $nown as !ommon law in

Zimbabwe. This essay will go further and e#plicate how the plural or hybrid law still applies to

present day Zimbabwe.

ESSAY

Zimbabwe has recogni%ed the common law since its e#istence in the country. The &ancaster

'ouse !onstitution of Zimbabwe of ()*+ did regard the subsistence of common law. ,lso the

effective !onstitution of Zimbabwe ,mendment o. /+0 /+(1 recogni%es e#istence of common

law and appreciates its application. !ommon law is a portion of the law which is not derived

from legislation and emanates from a collection of principles made by judges in the course of

resolving issues brought before the courts. The law is applicable to all people of a given society

regardless of race2 tribe2 se#2 level of education and bac$ground.( The common law of Zimbabwe

is largely Roman-Dutch law with English grafting with traces of ermanic customs and

"nternational law and it is subjected to further modification. This essay will e#plain how the

antithetical laws synthesi%ed to become substance and content of common law in Zimbabwe.

1 Madhuku L. (2010) An Introduction to Zimbabwean law ea!er Pre"" #arare


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This will be done through tracing how did Roman law conjugate with Dutch customs and how

did the dual law arrive at the !ape of ood 'ope. "t will be elucidated how in the !ape !olony

English law joined the blend. This essay will also dilate how the plural law was imposed on

Zimbabwe. "n this essay it will also be proven that the 'ybrid law is still the substance and

content of common law of Zimbabwe.

3re-colonial societies of Zimbabwe were dominated by feudal chiefs who controlled large tracts

of land. The laws of pre-colonial Zimbabwe were to govern social and political relations based

on feudal dominance. The political and judicial administrations were carried out by $ings and

their indunas and there was no separation of power. The one drawbac$ of social and legal

progress was that these were pre-literate societies. This meant that there was no systematic

recording of laws rather the only source of law was oral tradition.

"n (**) a group of private 4ritish persons from 5outh ,frica under the leadership of !ecil 6ohn

Rhodes approached 7ing &obengula of the debele. This eventually led to the signing of the

Rudd !oncession in which &obengula is said to have agreed to grant Rhodes and his people2

8The e#clusive charge over all metals and minerals situated and contained in my $ingdoms and

principalities together with the full power to do all things that they may deem necessary to win

and procure the same.9 This was then ta$en to mean that Rhodes had been given the right to

e#ercise some governmental control to enable his group to e#ercise the rights granted by the

Rudd !oncession. :inding it very difficult to apply unsystematic ,frican !ustomary law in the

territory the colonists loo$ed for a systematic legal system.

;n the (+th 6une (*)( the 4ritish 'igh !ommissioner at the !ape issued a proclamation setting

out the e#ercise of judicial power by establishing various magistrates< courts in =ashonaland and

also ordered the application of the law applying at the !ape on that day./ The question arises

which law was applied on the !ape of ood 'ope> This one can be easily tac$led by saying it

was largely Roman-Dutch law with substantial English law grafting. There still arises anotherquestion from this unsatisfactory answer2 how did these different types of law blend and how did

they arrive in 5outh ,frica> Therefore the ne#t stage in this essay will be to answer these

questions.

2 ibid


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etherlands had been a Roman !olony for over :ive hundred years. The Romans had authority

over many institutions li$e administration in their colonies. Even though2 the Romans did not

enforce their laws and customs over their conquered states but 'ahlo and 7ahn notes that?

8"n conformity with their usual practice in dealing with conquered territories2 the Romans did not

attempt to force Roman law and institutions on their new subjects. :ive hundred years of Roman

rule could not however2 fail to leave their impression on laws of the ermanic tribes. The

superstructure of government and administration was Roman. Roman garrison towns were

founded and large Roman country estates established. Roman civil servants2 officers and

businessmen constituted the ruling class. ,s labour tenants on Roman estates2 as domestic

servants in Roman households2 as soldiers in the Roman army and cler$s in Roman business

firms the members of the subjects races pic$ed up the ideas of their masters and too$ them bac$

to their tribes. The history of the late Roman Empire was characteri%ed by the Romani%ation of

the provinces and by the barbari%ation of Rome9.1

This shows that Roman law gradually infiltrated and assimilated into Dutch legal system. The

erman tribes in etherlands continued to use their customs and where their customs had gaps

thus casus omisus@ they applied Roman law especially on trade law2 family law and contract law.

The scientific nature of Roman law made it easily for Dutch citi%ens to adopt it.

Ahat is $nown as Dutch law it includes the ermanic law. ,fter BC ,D a powerful :ran$ish

$ingdom was established in what was formerly Roman aul. These :ran$s codified their law in

writing with the influence of Roman law2 previously it was held in the memory of designated

individuals who acted as judges in confrontations and meted out justice according to customary

rote2 based on careful memori%ation of precedent. Therefore as in etherlands there where many

ermanic tribes they applied this law and most probably it left its traces on the Dutch law which

was blended with Roman law to form what 5imon an &eeuwen on his boo$ title of (Cth century

termed Roman-Dutch law Roomsch-'ollandschRecht0. 'aving found out how did the Roman-Dutch law was formed the ne#t stage is to review how did it arrive at the !ape of ood 'ope.

"n ,pril (F/ 6an van Riebeec$ came to the !ape of ood 'ope as a representative of the Dutch

East "ndia !ompany2 in order to establish a refreshment base for ships to and from the east. The

$ #ahlo #% & and 'ahn% (1*+) The South African Legal System and Background ,uta and-ompany% -ape own


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company conducted its business under a charter granted by the 5tates eneral of the Republic of

the Gnited etherlands. Gpon settlement on !ape grounds an Riebeec$ had contact with the

native people who were of guni origin among others. These indigenous people applied

customary law and this was the basis for the regulation of their societal relations and conduct. "t

should be ta$en into consideration that though this customary law was applied in their day to day

life2 it was of no use to the commercial sector of Dutch life as it only provided answers to local

marriages and barter trade. Thus it is clear that these shortcomings of the customary law

necessitated the implementation of the Roman Dutch law by the Dutch settlers as the customary

law was generally wea$ in terms of commerce and trade.

Ahen the English too$ over the !ape !olony in (C)F2 after defeating the 4oers in ,nglo-Dutch

Aar the law they found e#isting was Roman-Dutch law which had been brought to the !ape by

the Dutch. The English did not overhaul the e#isting legal system@ however2 their own English

law principles too$ a deep hold in certain areas such as evidence. This infiltration of English law

into the then e#isting Roman-Dutch law was in many respects inevitable and welcomed such that

it greatly influenced the law at the !ape which was deficient in certain aspects. Het2 in some

areas li$e family law English law did not penetrate deeply.

English law did not replace Roman-Dutch law as the common law of the !ape@ instead it became

fused with it to create a hybrid legal system. The rule of English law enunciated in !alvin and

!ampbell v. 'all was that 8the laws of a conquered country continue in force until they are

altered by the conqueror9.B ,t one stage English officials were quite eager to adopt English law

and discard of the Roman-Dutch law at the !ape but this innovation never materiali%ed.

'owever2 English law did penetrate the Roman-Dutch system and this was done in three ways.

The first was through e#press enactments2 for e#ample2 early !ape statutes on companies2

negotiable instruments and insolvency were based on the corresponding English legislation.

,ccording to an der =erwe and Du 3lessis when the English arrived at the !ape they appointeda two men commission to enquire into the affairs of the colony inter alia the legal system and

ma$e recommendations for whatever changes they deemed necessary.F The hitherto common law

at the !ape had many gaps or casus omisus2 for e#ample the e#positions by the various Roman-

/ -ampbell ! #all (1/) cowper + & 10/ -. Merwe % ,. Du Ple""i" 3ntroduction to the law of 4outh 5frica (201/) 5"pen Publi"her%6ew 7ork


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Dutch jurists were sometimes contradictory such as those of '. De root (F*1-(BF0 and

,rnold innius (F**-(FC0 and descriptions of crimes were often vague. ,s such English law

was actually welcomed as it addressed some of the missing elements of the Roman-Dutch law at

the !ape.

The 4ritish 'igh !ommissioner


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practice as a legal practitioner-

"0 in Zimbabwe

""0 in a country in which the common law is Roman-Dutch and English is an official language@ or

"""0 "f he is a citi%en of Zimbabwe2 in a country in which the common law is English and English

is an official language.C

,fter all the discussion of the history of e#istence of Roman-Dutch law and English law it is then

crucial for one now to review how then these long lived laws in Zimbabwe still form the

substance and content of common law of present day Zimbabwe. "n /+(1 Zimbabwe adopted a

new constitution $nown as The !onstitution of Zimbabwe ,mendment o. /+0 /+(1. The

question is did this constitution dismiss the hybrid common law of Zimbabwe>

5ections (CC (0 a02 (C* (0 a0 and (C) (0 a0 in describing qualifications of judges of

!onstitutional court2 judges of 5upreme !ourt2 and judges of 'igh !ourt2 &abour !ourt and

administrative !ourt respectively they all read?

'e or she has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a

country in which the common law is Roman-Dutch or English and English is an officially

recogni%ed language@*

!ommon law being unwritten law $nown by the judges these sections of the effective

constitutions ma$e it clear that the common law applicable to Zimbabwe is the hybrid law which

was applied before the commencement of this constitution. The common law lex non scripta0 is

held in the hearts of judges therefore the requirements for someone to be appointed a judge at

any court of Zimbabwe shows that the substance and content of common law of Zimbabwe is

Roman law Dutch law and English law.

'aving proven how Roman-Dutch law2 English law and traces of ermanic customs are still the

contained in common law of Zimbabwe there remains "nternational law e#cluded. "n the ew!onstitution in 5ection B c0 it is stated that when interpreting chapter B of the constitution

courts 8must ta$e into account "nternational law and all treaties and convections to which

Zimbabwe is a party@9) This suggests that on top of the ,nglo-Roman-Dutch common law judges

Lanca"ter #ou"e -on"titution of


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must add "nternational law. Therefore the substance and content of Zimbabwean common law

includes "nternational law. Even though 5ection / (0 of The !onstitution of Zimbabwe sets out

that 8this !onstitution is the supreme law of Zimbabwe and any law2 practice custom or conduct

inconsistent with it is invalid to the e#tent of inconsistency.9(+ This means that "nternational law

can only be applied when it is intra-vires to the !onstitution hence it is of small portion in

Zimbabwe common law.

5ection 1 of the !riminal &aw !odification and Reform0 ,ct !hapter )?/10 provides that?

8The non-statutory Roman-Dutch criminal law in force at the !olony of the !ape of ood 'ope

on the (+th 6une2 (*)(2 as subsequently modified in Zimbabwe2 shall no longer apply within

Zimbabwe to the e#tent that this !ode e#pressly or impliedly enacts2 re-enacts2 amends2

modifies2 or repeals that law.9((

!onsidering this2 one may argue that common law non-statutory law0 of Zimbabwe no longer

has any components of Roman law or Dutch law or English law. 'owever the supremacy of the

constitution as provided by its section / (0 nullifies this provision. This provision would be

valid if it was found in the constitution of Zimbabwe therefore it does not affect the substance

and content of common law in Zimbabwe.

"n conclusion2 the substance and content of common law in Zimbabwe is largely Roman-Dutch

law with English grafting and contains some traces of ermanic customs and "nternational law.

The fusion and blending of these happened in different places. The !onstitution of Zimbabwe

,mendment o. /+0 /+(1 also affirms that the common law of Zimbabwe should be ,nglo-

Roman-Dutch through the qualifications required for someone to be appointed a judge. Therefore

substance and content of common law in Zimbabwe is largely Roman-Dutch with English

grafting.

10 ibid11 -riminal law (-odiAcation and &eform 5ct)


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Bibi!"#$%&'

(. =adhu$u &. /+(+0 An Introduction to Zimbabwean law Aeaver 3ress 'arare

/. 'ahlo '2 R and 7ahn2 E ()*0 The South African Legal System and Background 6uta and

!ompany2 !ape Town

1. !ampbell v 'all (CCB0 cowper )*ER(+BF

B. =erwe 2 6.E Du 3lessis /+(B0 "ntroduction to the law of 5outh ,frica ,spen 3ublisher2

ew Hor$

F. 4. Dube /+(B0 Roman-Dutch and English !ommon law? The "ndispensable law in

Zimbabwe ,fro ,sian 6ournal ;f 5ocial 5ciences olume o. B Iuarter " /+(B "55

///) J F1(1

. &ancaster 'ouse !onstitution of Zimbabwe ()*+C. !onstitution of Zimbabwe ,mendment o. /+0 /+(1

*. !riminal law !odification and Reform ,ct0

Documents

Give a detailed account of content and substance of common law in zimbabwe