An Introduction to Zimbabwean Law

Contents

vii 1 What is Law? The concept of law: A definition The relationship between law and morality The relationship between law and justice What is a legal system? The purpose and function of law To do justice To preserve peace and order To enforce morality To protect the interests of the ruling class Two key elements of law: legal right and legal personality Legal right Legal personality 2 Sources of Law Legislation Common law A brief history of Roman Dutch law Advantages of precedent Custom General custom African customary law Authoritative texts Law reports 3 Divisions of the Law Criminal law versus civil law Public law versus private law Substantive law versus procedural law Contents Acknowledgements Foreword 1 1 3 4 6 6 7 7 8 10 10 10 11 13 13 15 18 24 25 25 26 32 33 36 36 39 40 xiii xv National law versus international law General law versus customary law Common law versus civil law Law (common law) versus equity 4 The Law-Making Process Introduction: State organs and their powers The legislature (the law-makers) The executive The judiciary Other key organs The Attorney General The Comptroller and Auditor-General The Public Protector The process of law-making in Parliament Pre-bill stage Types of bills Gazetting of bills Passage of bills in Parliament The effect of Parliament’s failure to follow specified procedures Delegated legislation 5 The Structure of the Courts The division between criminal courts and civil courts Criminal courts Magistrates Courts Composition Jurisdiction The High Court Composition Jurisdiction The Supreme Court Composition Jurisdiction Courts-martial Police board of officers Prison courts CONTENTS viii 40 41 41 41 43 43 44 46 47 48 48 49 49 49 50 51 51 52 55 57 61 61 61 62 62 63 64 64 66 67 67 67 68 68 68 Children’s Courts Parliament sitting as a court over breach of parliamentary privileges Ordinary civil courts Magistrates Courts Jurisdiction Composition The High Court Composition Jurisdiction The Supreme Court Composition Jurisdiction Specialist courts Advantages of specialist courts Disadvantages of specialist courts Examples of specialist courts The Labour Court The Administrative Court The Administrative Court as the Water Court Special court for income tax appeals Local courts on customary law Small Claims Court 6 The Legal Profession in Zimbabwe Introduction: The legal profession A divided or fused profession? The nature of the fused profession in Zimbabwe Admission as a legal practitioner Practical legal training after registration Discipline for professional misconduct The Law Society of Zimbabwe The Council for Legal Education Judges Who appoints judges? Qualifications for appointment as judges Compulsory retirement versus executive discretion to extend the term of office of a judge The removal of judges from office ix CONTENTS 68 69 70 70 70 71 71 71 71 72 72 72 73 73 74 74 74 76 76 78 79 80 84 84 84 86 87 89 89 90 91 91 92 94 95 96 Other features on the independence of judiciary Provision on judicial independence Vesting judiciary functions exclusively in the judiciary 7 An Outline of Court Procedures Civil procedures Adversarial versus inquisitorial procedure Civil trial procedure versus application procedure Civil trial procedure Letter of Demand Issue of Summons Appearance to defend Request for further particulars Defendant’s plea Request for further particulars Replication Close of pleadings Discovery Pre-trial conference Trial date The trial Judgment Enforcement of judgment Execution of property Garnishee order Civil imprisonment Contempt of court Appeals and reviews Application procedure Criminal procedure General Securing presence of the accused Bail The trial process Stages of the trial process The accused’s entering of plea Outline of the State’s case Outline of the defence Evidence-in-chief x CONTENTS 103 103 104 107 107 107 108 108 108 108 109 109 109 109 110 110 110 110 110 110 111 111 111 111 111 112 113 114 115 115 116 117 117 118 118 119 119 119 Cross-examination Re-examination Closing of the State case Application for discharge of the accused at the close of state case (optional) Defence case Close of the defence case Addresses by both sides Verdict Addresses on sentence: mitigation/aggravation Sentencing Caution or reprimand Fines Recognisances Community service Imprisonment Corporal punishment Sentencing to death 8 Legal Aid Introduction The old system of...