PROCEDURAL LAW DEPARTMENT

CLINICAL AND PRACTICAL SKILLS TRAINING

(LECTURE NOTES)

BASIC ELEMENTS OF DRAFTING DOCUMENTS

________________
Adapted from The Complete Plain Words by Sir Ernest Gowers (Penguin Books,
1982) pp 38-9.
______________________________________________________________________

You Must Know:

Before you begin to write, make sure that you:
Your subject (a) have a clear understanding of the subject;
Your reason for writing (b) know why you are writing — what does your
correspondent want to know and why does he
want to know it? Alternatively, what do you
want to tell your correspondent?
Your reader (c) adapt your style and the content of the letter
or minute to suit your correspondent’s needs
and his present knowledge of the subject.
______________________________________________________________________

You Must be:

When writing you should:
Clear (a) make your meaning clear; arrange the subject
in logical order; be grammatically correct; do
not include irrelevant material;
Simple and brief (b) use the most simple direct language; avoid
obscure words and phrases, unnecessary
words, long sentences; avoid technical or
legal terms and abbreviations unless you are
sure they will be understood by the reader; be
as brief as possible; avoid “padding”;
Accurate and complete (c) be as accurate and complete as possible;
otherwise further correspondence will follow,
resulting in extra work and loss of time;
Polite and human (d) in your letters to the public be sympathetic if
your correspondent is troubled; be particu-
larly polite if he is rude; be lucid and helpful
if he is muddled; be patient if he is stubborn;

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 be appreciative if he is helpful; and never be
patronising;
Prompt (e) answer promptly, sending acknowledgements
or interim replies if necessary — delays harm
the reputation of your firm or organisation,
and are discourteous.

Check Your Writing

Look critically at your written work. Can you
answer ‘yes’ to the following questions?
Is it:
(a) clear? (i) Can the language be easily understood by the
recipient?
(ii) Is it free from slang?
(iii) Are the words the simplest that can carry the
thought?
(iv) Is the sentence structure clear?
(b) simple and brief? (i) Does it give only the essential facts?
(ii) Does it include only essential words and
phrases?
(c) accurate? (i) Is the information correct?
(ii) Is the writing free from errors in grammar,
spelling and punctuation?
(d) complete? (i) Does it give all the necessary information?
(ii) Does it answer all the questions?
(e) human? (i) Is the writing free from antagonistic words
and phrases?
(ii) Is it, where appropriate, tactful, helpful,
courteous, sympathetic, frank, forceful?
(iii) Will the tone bring the desired response?
______________________________________________________________________

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 DRAFTING LEGAL DOCUMENTS
________________

References
Van Blerk, Legal Drafting: Civil Proceedings
Welsh, Civil Practice Handbook
Amler, Precedents of Pleadings
Beck, Theory and Principles of Pleading in Civil Actions
Dick, Legal Drafting
Mellinkoff, Legal Writing: Sense and Nonsense

Introduction
A legal document should look special, but the intended reader should be able to
understand it on first reading. The “intended reader” may be a lay client, another
lawyer, a government official or members of the public generally.
Good drafting does not necessarily involve using long words and lots of sub-
clauses; it consists in setting out the essential facts accurately, clearly and concisely
in such a way as to achieve the document’s purpose.
To be convincing, what you write should appear simple and right. This is not
easy to achieve. It takes time to learn a good style and time to apply it to a case.

General Principles of Drafting Legal Documents

1. Know what you are trying to do

Before starting to draft a document, work out what the document is supposed to
do, what you want to achieve by filing or sending it. If you are drafting pleadings,
decide on what causes of action or defences you are going to rely on.

2. Understand your subject

Again, before starting to draft a document, make sure you understand both the
facts and the law on the subject that is to be covered by the document.

3. Remember who you are writing for

Choose your language to suit your audience. Your writing should help, not
hinder, your intended reader’s understanding. If you’re writing to another lawyer, or
preparing heads of argument for filing in court, you don’t have to explain what you
would have to explain to a layperson, and you can be briefer than you would
otherwise be. But if you are writing to a client, or preparing a document which a
client or layperson is going to have to sign (e.g. an affidavit or a will) remember that
the client must be able to understand it. Choose ordinary words over legal words.
Resist the temptation to show off your erudition.

4. Ensure that the document is complete

The document must address all the relevant legal issues and facts, and must meet
any formal requirements.

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5. Follow the A B C
Ensure that your document is Accurate, Brief and Clear.

Accuracy
Some day someone may read what you have written in order to try to find
something wrong with it. So re-read it yourself and see if anyone could
misunderstand it or give it a different meaning.
“I bequeath my estate to the children of A and B” could mean to the
children of either A or B, or the children of them both, or half to A’s children
and half to B’s.
Daily speech is often ambiguous. Your legal documents must not be or they will
fuel lawsuits. Unclear writing causes litigation. And complaints. And
misunderstandings. Arguments are long and costly. Examples:

And/or
“And/or” is often used mindlessly and foolishly. Many judges and writers are
outraged if you use it at all, but in some cases it is a convenient shorthand. But you
must reflect every time you use it and ask yourself: could it only mean “and” or could
it only mean “or”? If you do this, you will find that “and/or” is usually an
unnecessary silliness. As it is in the following examples:
How women can prevent and/or survive rape
The order was not made and/or was kept in abeyance
We look forward to seeing and/or hearing from you
He might be discharged from prison and/or paroled at any time.

Negatives
Try to avoid negatives. First, they often make it difficult to understand the
precise meaning. What is meant, for example, by: “not unlike”? Or, “It was very
doubtful that he would not have …”? Negatives breed ambiguity. Secondly, a typing
error that leaves out a small “no” or “not” can be disastrous.

Passive voice
Avoid the passive voice as much as you can. This is particularly important in
statutes and contracts. Expressing something in the passive voice may lead to
ambiguity and lack of directness. For example, a provision in a contract or statute
enabling or requiring certain action to be taken may leave it unclear who must or can
take the action:
“Notice of the sale or disposal of a licensed printing press shall be given to
the Registrar within fourteen days.”
Who is to give the notice?

False alternatives
Avoid false alternatives:
A mouse can be eaten or caught by a cat or a trap.

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Words and phrases to avoid or use carefully
Aforesaid, aforementioned, said These words are objectionable on two counts:
they are lawyer’s jargon, and they are imprecise.
They can usually be substituted by the pronouns
“he”, “she” or “it”.
Deem This is a useful word to use when establishing a
legal fiction by “deeming” something to be what it
is not. All other uses of the word should be
avoided.
Herein Again, this is jargon and imprecise. In a contract,
“herein” may refer to the clause in which the word
appears, or the whole contract.
Hereinafter, hereinbefore Jargon.
Hereby This word is often used in statutes and is seldom
necessary.
It shall be the duty of This usually means merely “must” or “shall”
Less than, more than These words can lead the unwary into a trap. If
you provide for what is less than X and for what is
more than X, you leave X unprovided for.
Oral, verbal “Verbal” is often used when the intended meaning
is “oral”, as in “A complaint may be made
verbally or in writing” (should be “orally”).
Same “Same” and “the same” should never be used as
substitutes for “it” or “them”. It is pretentious.
Whatsoever, whosoever These words are regarded as archaic, except by the
legal profession. They can usually be omitted; if
you must be emphatic, use “whatever” or
“whoever”.
While In contracts and statutes, use this only in its tem-
poral sense, and not as a substitute for “although”.

Brevity
Most people are short of time.
Unnecessary words increase the opportunity for you and your reader to go wrong:
 every extra word is one more chance to mess things up;
 unnecessary words destroy the original clarity;
 unnecessary words make you and the reader forget what you are trying to
say;
 unnecessary words make a reader skim.
See what you can delete. Is the meaning unchanged?
Cut! Pare away formal clutter and unnecessary words, including duplicates such
as:
Aid and abet Basic starting-point
Basic fundamentals False misrepresentation

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 Final result Save and except
Force and effect Sufficient enough
If and when Surviving widow
Natural life Terrible tragedy
Null and void True facts
Obtain prior approval before Unexpected surprise
Premeditated before Unless and until
Prior criminal record
Shorten! See if a shorter form will do:
A certain amount of some In order to to
Alter or change alter In relation to about
As a matter of fact in fact In the majority of cases usually
At that point in time then Is applicable to applies to
By means of by Is dependent on depends on
By reason of because of Last will and testament will
Cease and desist stop Make application to apply to
Despite the fact that although Make provision for provide for
Due to the fact that because Nominate, constitute
Final and conclusive final and appoint appoint
Fit and proper suitable One John Smith John Smith
Furnish and supply provide Prior to before
Give recognition to recognise Revoke, cancel and annul cancel
Have knowledge of know Subsequent to after
I am hopeful that I hope The necessity of needing
In case of if Until such time as until

Clarity
Your document must be logically organised and easily understood.

Logical organisation
 Determine the content and order of the paragraphs
 The document must flow logically from the introduction to the conclusion
 There must be no internal contradictions.

Readily understandable
 Use correct grammar and spelling, and be careful of your syntax (i.e. the order of
your words):
If the baby does not thrive on milk, boil it.
My client has discussed your proposal to fill the drainage ditch with his
partners.

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 The accused assaulted Prof Feltoe while he was teaching a class with
intent to do grievous bodily harm.
 Use appropriate language. Remember who the document is directed at: is it a
layperson or a fellow legal practitioner?
 Always use the simplest language possible. It is more effective.
 Sentences must be clearly structured to give the essential facts through the use of
essential words and phrases.
 Don’t lose your reader in long, long sentences. The opening sentence in
Judgment HH-75-95 had 427 words.
Long sentences, usually carrying several ideas, are hard to understand. The
reader tends to get lost halfway through. The grammar usually has to be complex
and unfamiliar. The reader often doesn’t know what the sentence is all about
until well towards the end, and by that time he can’t remember the beginning.
The remedy for long sentences is simple:
 Split them into several short sentences;
 Where possible, use each sentence for one, or at most two, main ideas;
 Put the main clause early, and preferably first, in a sentence;
 Try to keep the sentence length to below 25 words.

Achieving your Client’s Purpose

Your document must meet your client’s goals and must be in accordance with
your client'’ instructions. Its language must be carefully drawn so as not to prejudice
the existing or future interests of your client.

Sexist language
The time is past when lawyers could pretend that the world is inhabited by males
only. Women are tired of being told that “words importing the masculine gender
include females.” It is not always easy to write genderless English. If you write,
“Each judge has his own ideals,” you will be faulted for ignoring women on the
Bench. If you write “Each judge has his or her own ideals,” you will be faulted for
clumsiness. If you write “All judges have their own ideals,” you will be faulted for
ambiguity. But you can avoid some obvious sexist terms:
AVOID USE
Foreman supervisor
Mayoress mayor
Men and their wives husbands and wives
Newsman reporter, journalist
Reasonable man reasonable person
Policeman police officer
Workman worker
To avoid using “he” and “she”, you can sometimes use the plural.

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Precedents
Precedents are useful, but must be employed very carefully.
 Precedents help to identify the necessary elements of a particular document and
may indicate the appropriate order in which those elements must be set out. They
can also provide useful examples of wording and phrases and so save time.
 There is no one correct way to draft any particular document.
 While a precedent is useful if must be used with caution. A blind use of a
precedent may result in a document at variance with the current law, or that does
not fit the current facts.

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 DRAFTING LETTERS

General
Letters are the documents that lawyers write most frequently, and they must be
written carefully.

Appearance
The appearance of a letter can be as important as its content. Letters should be
well laid out and properly typed.
A letter must be dated and set out the writer’s address. It should always contain
both the writer’s and the recipient’s references.
If there are any enclosures, their nature should be noted at the foot of the letter, or
at least they should be specified in the letter itself.

Style and tone

The style should be confident with no legal verbiage.
Tone is very important, and must match the contents. There is no point in writing
a letter in which the contents are conciliatory if the tone is combative. An aggressive
tone will alienate the recipient and may have an adverse effect. Sarcasm and insults
must be avoided in all legal letters. When writing on behalf of a client, make it clear
that you, the lawyer, are not personally involved. In a letter of demand, it is better to
say that the client has instructed the writer to issue summons if payment is not
received, rather than that the lawyer will issue summons if payment is not received.
There should be no ambiguities, so re-read what you have written and revise it
where necessary.
When writing a letter, and when revising it afterwards, always consider the effect
it is likely to have on it recipient. Ask yourself: will the letter achieve its objective?
And remember, letters are often read by others: e.g. by the court if the matter results
in litigation.

DRAFTING AGREEMENTS

Taking instructions
You must understand what your client intends to achieve from the agreement
before you start drafting it. Your object must be to express the parties’ rights and
liabilities under the agreement with such precision that there can be no doubt in the
future as to what they are.
While parties are responsible for the substance of the agreement, the lawyer is
responsible for its form and legality — but he may have to assist the parties to
negotiate and to crystallise their agreement, by asking appropriate questions. He
should also make sure his client understands the consequences of the agreement,
including implied terms in it.
The lawyer should ascertain what the client’s time-limits are. If the agreement
must be concluded and signed by a certain date, the lawyer must have it ready by
then.

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Understanding the law
Before starting to draft any agreement, the lawyer must make sure he understands
the applicable law, i.e. the common law and any statute law, including tax laws.
If the law implies terms in a contract, they can be omitted from the written
agreement though it is often better to spell them out for clarity. And the parties may
wish to vary such terms. For example it is common practice in sale agreements to
vary the provision for passing of risk, and provide that the risk will pass not on the
conclusion of the agreement but on the transfer of the property.
Make sure you understand the rules on interpretation of contracts.
Pay particular attention to the Consumer Contracts Act [Chapter 8:03] and the
Contractual Penalties Act [Chapter 8:04].

Consumer Contracts Act

This Act applies to contracts for the sale or supply of goods or services, where the
seller or provider is dealing in the course of business and the purchaser or user is not.1

“5 When consumer contract is unfair

(1) A court may find a consumer contract to be unfair for the purposes of this Act—
(a) if the consumer contract as a whole results in an unreasonably unequal exchange of
values or benefits; or
(b) if the consumer contract is unreasonably oppressive in all the circumstances; or
(c) if the consumer contract imposes obligations or liabilities on a party which are not
reasonably necessary to protect the interests of any other party; or
(d) if the consumer contract excludes or limits the obligations or liabilities of a party to
an extent that is not reasonably necessary to protect his interests; or
(e) if the consumer contract is contrary to commonly accepted standards of fair dealing;
or
( f ) in the case of a written consumer contract if the contract is expressed in language not
readily understood by a party.
(2) A court shall not find a consumer contract to be unfair for the purposes of this Act
solely because—
(a) it imposes onerous obligations on a party; or
(b) it does not result in substantial or real benefit to a party; or
(c) a party may have been able to conclude a similar contract with another person on
more favourable terms or conditions.”

1
In Cabri (Pvt) Ltd v Terrier Services (Pvt) Ltd HH-51-04, the court (Gowora J) found that a
contract for the moving of heavy equipment was a consumer contract, even though it was concluded
between two commercial organisations.

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 “SCHEDULE (Sections 2, 4 and 7)
SCHEDULED PROVISIONS

1. Any provision (commonly known as a “voetstoots provision”) whereby the seller or

supplier of goods other than used goods, excludes or limits his liability for latent
defects in the goods.
2. Any provision whereby the seller or supplier of goods or services excludes or limits
the liability which he would otherwise incur under any law for loss or damage
caused by his negligence.
3. Any provision whereby the seller or supplier of goods or services excludes or limits
his liability unless a claim is brought against him within a period which is shorter
than would otherwise be permitted under any law regulating such claims.
4. Any provision whereby the seller or supplier of goods excludes or limits his liability
in the event that the goods do not conform with any description or sample given in
respect of the goods.
5. Any provision which denies or limits the right of the purchaser of any goods to
require the seller or supplier—
(a) to reimburse the purchaser for the whole of the price or amount paid in
respect of the goods; or
(b) to replace the goods; or
(c) to repair the goods at the expense of the seller or supplier; or
(d) to reduce the price or amount payable in respect of the goods;
in the event that the goods are not supplied in conformity with the consumer contract
or are not fit for the purpose for which they are sold or supplied.
6. Any provision imposing a burden of proof of any matter on the purchaser or user of
any goods or services where the burden would otherwise lie on another party to the
contract.”

Contractual Penalties Act

This deals with penalty stipulations and contracts for the sale of land by
instalments. Generally penalty stipulations are enforceable unless the court considers
they are out of proportion to the prejudice suffered by a party.

Layout of agreement

Use of paragraphs and numbering

Agreements must be broken up into numbered paragraphs so that their contents
can be understood easily and particular provisions can be located readily. Headings
will make the contents of paragraphs clearer. If headings are used it may be an idea to
put in a clause saying that the headings are for guidance only and do not form part of
the agreement, but if the headings are carefully worded this is unnecessary.
Paragraphs should be numbered. Legal numbering is 1, 2, 3, etc. but other forms
can be used, e.g. A, B, C or I, II, III. Where there is a preamble, use a different form
of numbering from that used for the main paragraphs of the agreement.

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 To avoid paragraphs becoming unduly lengthy, they should be broken down into
subparagraphs.

Title and parties

It is a good idea to identify the agreement in the title, e.g. “Agreement of Sale”.
The parties can be identified by name and address in most agreements:

AGREEMENT OF SALE

BETWEEN

A.B., of …
(“the seller”)

AND
C.D., of …
(“the purchaser”)
Sometimes, e.g. if the parties are corporate bodies, the authority of their
representatives needs to be stated.:

AGREEMENT OF SALE

BETWEEN

A.B. COMPANY (PRIVATE) LIMITED,

Represented by C.D., authorised in terms of a shareholders’ resolution
dated 1 April, 2005
(“the seller”)

AND
E.F. COMPANY (PRIVATE) LIMITED,
Represented by G.H., authorised in terms of a directors’ resolution
dated 1 April, 2005
(“the purchaser”)

Preamble
Sometimes a preamble is necessary to set out briefly the parties’ intention in
entering into the agreement, or to record the existence of certain facts that have
brought about the agreement, or to record that there was a prior verbal agreement.
WHEREAS:
(a) …
(b) …
(c) …
IT IS AGREED AS FOLLOWS:

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 If the preamble records that there has been a prior verbal agreement, the final
recital should be “NOW THE PARTIES WISH TO RECORD THEIR
AGREEMENT:” If, on the other hand, the written agreement is to be the sole
agreement between the parties, the final recital should be: “IT IS AGREED AS
FOLLOWS:” There must be no confusion between the two. If one says: “THE
PARTIES HAVE AGREED AS FOLLOWS” there may be argument that the written
agreement is merely a memorandum of the prior verbal agreement.

Index
In long and complex agreements an index is a good idea so that parties can find
their way round the provisions. The page numbers of the clauses listed in the index
should be inserted only in the final draft of the agreement.

Definitions
Definitions are sometimes useful in complex agreements to shorten and simplify
the provisions. If the agreement is a long one, it is better to put all the definitions in
one clause.
Sometimes it is convenient to take definitions from a statute, e.g. definitions from
the Companies Act are useful in agreements relating to companies.
To identify defined terms, use is sometimes made of capital letters.
If you do put in a definition clause, make sure that you qualify it by stating that
the definitions apply according to the context:
1. In this agreement, unless inconsistent with the context—
And the following subclauses may be useful:
1. Headings, underlining and numbering are for convenience only and do not affect the
interpretation of this agreement.
2. Words and expressions importing the singular include the plural and vice versa.
3. Words and expressions importing a gender include both genders.
4. A word or expression importing a natural person includes a company, partnership,
joint venture, association or body corporate.
5. Where a day on or by which a thing is to be done under this agreement is not a
business day, the thing must be done on or by the following business day.

Signatures
These are usually set out at the end of the agreement. The usual form is:
SIGNED at … this …day of …, 20 …
AS WITNESSES:
Seller: ................................................ 1. .....................................................
AB
2. .....................................................
SIGNED at … this …day of …, 20 …

Purchaser:.......................................... .....................................................1.

CD

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 2. .....................................................

DRAFTING PLEADINGS

“The drawing of pleadings is the best method I know of proving to your own
satisfaction what a muddle-headed fool you are.”
— Prof R.H. Christie, Plain Speaking in the Law

Object of Pleadings
The object of pleadings is to put your client’s case down on paper for the
information of the other side and the court. You must not plead law, only facts, and
only material facts, but not the evidence by which you propose to prove those facts.
Pleadings summarise the parties’ cases and define the issues. They have a
threefold function:
1. To enable the parties to know the issues between them, so that each party knows
what case he has to meet.
2. To assist the court by defining the limits of the proceedings. This is necessary:
3. To ensure that once judgment is given, the parties cannot litigate again on the
same issues, i.e. so that any attempt to reopen the case can be met by a defence of
res judicata.

Dangers of bad pleadings

The dangers of faulty pleadings are:
1. Defective pleadings will need amendment, which incurs costs for your client.
2. An amendment may lead to cross-examination as to why it was necessary, or
compromise your client’s credibility. This is particularly so where the amendment
seeks to advance a new version of the facts.
3. Defective pleading may result in the failure of the proceedings.
4. For the lawyer, loss of reputation.

Formal requirements set out in rules of court

Formal requirements for pleadings in the High Court are set out in Order 15
Rules 99 & 100 of the High Court Rules, 1971; those for pleadings in the magistrates
courts are set out in Order 1 Rule 4 of Magistrates Court (Civil) Rules, 1980.
All pleadings must:
1. Be legibly typed or written on one side of A4 paper.
2. State the title of the action, the case number and the description of the pleading.
3. Contain a summary of the material facts on which the party pleading relies for his
claim or defence, … but not the evidence by which the facts are to be proved.
4. Be divided into paragraphs, consecutively numbered, each containing a separate
allegation.
5. Have each page, as well as any documents attached to it, numbered consecutively.

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6. Be signed by the party or his legal practitioner.
7. Give the party’s address for service.
8. Be filed with the Registrar and a copy served on the other party.

Analysis of the case

Before drafting a pleading, particularly a declaration or plea, analyse the case:
1. List all the facts, then analyse them in three stages:
(a) What is the case all about?
(b) What does the client want?
(c) How do I achieve what the client wants?
2. Consider the law and apply it to the facts:
(a) Decide the appropriate area of the law
(b) Determine the essential legal requirements
(c) Decide whether there is a case based on the facts.

Facts, law and evidence

Every pleading must contain a clear and concise statement of the material facts
upon which the party relies for his claim.

Evidence
A pleading must not generally deal with the evidence by which the material facts
are to be proved.
Distinction between facts and evidence:
“Stating that a thing was done is stating a fact; giving the details of how it was done
would be giving evidence of it. Sometimes it is very difficult to state a fact concisely,
without, in stating it, indicating the evidence of it.” — Barry JP in Jones v Hamilton &
Haw (1886) 5 EDC 222 at 228
Evidence may be pleaded if it is necessary to draw inferences from he evidence.

Law
A pleading must not set out statements of law. A pleading of a legal proposition
is not a pleading at all. A bare allegation that the defendant is indebted to the plaintiff
in a certain amount is insufficient; the facts on which the indebtedness is based must
be set out. A statement of indebtedness is a conclusion of law to be drawn from the
facts.
The conclusion of law to be drawn from the facts pleaded must be kept separate
from the facts. It can be very brief, e.g. “In the premises the defendant is obliged to
pay the said sum to the plaintiff”.

Principles of pleading
1. Only relevant material facts should be given, and they should be stated with
precision. Irrelevant facts are liable to be deleted from a pleading if they are
embarrassing to the other party.
2. Make sure your pleading covers all the issues between the parties. Courts are
reluctant to allow amendments that raise new issues which should have been set

15
 out in the pleadings. They will not do so if they suspect that an allegation was
omitted from a pleading deliberately for tactical reasons.
3. Don’t give too much detail. Pleadings must be as concise as the nature of the case
allows, and must be couched in summary form.
4. Don’t give too little detail. Too little detail will result in an application for further
particulars or an exception on the ground the pleading is vague and embarrassing.
5. Avoid repetition. If repetition is necessary (as where alternative or separate
claims are made, based on common facts) this should be done by reference and
not by restatement.
6. Use simple language. Avoid “the said plaintiff”; “hereinafter”.
7. When denying an allegation of fact in a previous pleading by the other party, the
denial must not be evasive but must answer the point of substance.
8. When drafting a pleading to make a claim or defend a claim, consider jurisdiction
and prescription. Check the legislation and the common law.
9. Draft pleadings carefully; they are binding on the parties, even though the courts
have a wide discretion to allow amendments. Be particularly careful when
drawing the first pleading in a case: everything that develops in a case, as far as
either plaintiff or defendant is concerned, flows in a direct sequence of causation
from the first pleading.

Precedents
Precedents of pleadings such as Amler’s Precedents of Pleadings and Beck’s
Pleading in Civil Actions are very useful, but use the precedents with caution. Check
the relevant law and the legal requirements.

SUMMONS AND DECLARATION

Formalities and essential elements

1. The full names and address of the plaintiff.
2. The full names and address of the defendant, if they are known to the plaintiff.
3. If plaintiff or defendant are suing or being sued in a representative capacity,
details of that capacity.
4. The nature of the claim. If the summons stands alone, the statement of claim must
be given in sufficient detail to found the basis of a claim or it will be excipiable.
5. The conclusions of law deduced from the facts alleged.
6. Whether interest is claimable and from what date.
7. A claim for costs (party and party unless there is an agreement between the parties
that costs should be on a different scale).
8. The prayer, i.e. a specific statement of the relief requested.
The usual form of a prayer is:
“Wherefore the plaintiff prays:
1. for judgment …
2. for interest thereon at the prescribed rate from … to payment in full;
3. costs of suit.”

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Joint and several liability
Where there are two or more defendants, consider whether their liability is joint
and several (joint liability — each debtor is liable for a proportionate share; several
liability — each debtor may be sued for the whole debt).

Alternative claims
Where there are alternative claims, the basis of each of them must be set out.
Inconsistent allegations in a summons render it excipiable, unless they are pleaded in
the alternative and cause no embarrassment: United Dominions Corpn (Rhodesia) Ltd
v van Eyssen 1961 (1) SA 53 (SR).

Multiple claims
These should be brought in a single summons: Trador (Pvt) Ltd v Chidzambwa
1999 (1) ZLR 528 (H)

Steps in drafting summons

1. Ascertain the facts.
2. Look up the relevant law.
3. Decide on the cause(s) of action.
4. Make an outline with numbered paragraphs and contents in brief.
5. Cross-check to ensure that all the material allegations are present and that there
are no unnecessary allegations.
6. Prepare a first draft.
7. Revise your draft. Introduce more accuracy, clarity, logic and relevance to each
paragraph.
8. Check it again.

Remember:
1. There must be no unnecessary allegations. Generally, plaintiff need plead only
what he has to prove. For example, in a case where your client is claiming
damages for assault, you need to allege:
(a) the nature of the assault;
(b) that the assault was intentional (i.e. not negligent);
(c) the injuries suffered
(d) the damages claimed
The fact that the assault was wrongful and unlawful is a conclusion of law
and need not be pleaded (though there’s no harm in doing so).2
Example:
1. The plaintiff is …
2. The defendant is …
3. On … at … the Defendant, with intent to cause grievous bodily harm, assaulted the
Plaintiff by kicking him on the stomach and head and striking him there with a pick-
axe handle.

2
See Mabaso v Felix 1981 (3) SA 865 (A) at 875A, where the averment was made.

17
 4. As a result of the assault, the plaintiff suffered a broken skull and a ruptured spleen
and incurred damages for pain and suffering in the sum of $ …
5. In the premises defendant wrongfully and unlawfully assaulted the plaintiff and is
liable to pay him the said damages.
2. The particulars of claim or the declaration must establish jurisdiction and locus
standi. This normally appears from the addresses of the parties, but sometimes it
is necessary to make a specific averment (e.g. in matrimonial cases).
3. A plaintiff is normally bound by the version he has pleaded and cannot rely on
defendant’s version to establish a cause of action. 3 While a plaintiff need not
anticipate defences, it is prudent to think of them and, if aware of a defence which
the court might accept, to use that version in the alternative.
4. Pleadings based on contracts. The most useful way to refer to a contract is to
describe it immediately after describing the parties. Paragraphs thereafter can
traverse the provisions of the contract to establish a cause of action. Remember
that you can annexe a copy of a written contract to the declaration. If it is not
written you must traverse the relevant provisions of the contract.
5. The relief sought must be justified by the allegations of fact in the declaration,
otherwise it is excipiable. It must be clear and precise.

PLEA

Preliminary analysis
Before drafting a plea, you must analyse both the defendant’s case and the
plaintiff’s declaration. Read the declaration, underline or list the plaintiff’s
allegations in each paragraph. Are there sufficient facts in the declaration to justify
the plaintiff’s conclusions of law? If a material allegation is missing, this may found
an exception.

Deciding on course of action

Having analysed the summons and declaration, decide what you want to do:
1. Plead to the merits?
2. Except? This is not a useful option for careless omissions in the declaration; in
such a case it is better to write to the opposing legal practitioner pointing out the
deficiency and inviting an amendment.
3. Apply for further particulars? This should not be done as a delaying tactic, but
should be essential either to limit the allegation or to enable you to plead, or to
have some other definite purpose. If you do seek further particulars, frame the
questions carefully and unambiguously to achieve your purpose — like cross-
examination. Remember you cannot ask for evidence.
4. Apply to strike out portions of the declaration? In practice courts dislike such
applications, no matter how much irrelevant material or evidence is included in a
pleading — it rarely causes the other side much prejudice.
5. File a special plea?
6. Apply to join a third party?

3
Sagers Motors (Pvt) Ltd v Patel 1968 (2) RLR 267 (A), where plaintiff tried to rely on
defendant’s version of a contract to establish its case, but failed to amend its pleadings appropriately.

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 Consider what the defendant’s possible defences are: will you merely require
plaintiff to prove some essential elements of his case (by denying the allegations or
disclaiming knowledge of them); or do you (i.e. defendant) have to prove or claim
something — if so, list all the elements of that defence or claim (e.g. in defamation
you may want to prove justification, that the statement complained of was
substantially true and in the public interest).

Essentials of plea
1. A plea must set out the defence in sufficient detail for the plaintiff to know the
nature of the defence.
2. A plea must deal with every allegation of fact made by the plaintiff. An omission
will mean that the fact is admitted.4 These allegations can be done by:
(a) admitting them;
(b) denying them;
(c) disclaiming knowledge of them (dunno)
(d) confessing and avoiding them (i.e. admitting the facts alleged but setting out
further facts which show some justification for the conduct complained of, or
put a different complexion on the allegation. Examples are estoppel, novation
and contributory negligence).
3. Denials must be unambiguous; if not they are considered embarrassing. It is
acceptable to say that the defendant “has no knowledge of the facts alleged and
does not admit them.” (it is unnecessary to say that the plaintiff is put to the proof
of them). But you must make it clear precisely what you are denying.
4. Admissions must be considered carefully, to avoid unnecessary or unwise
admissions.
5. When there is more than one defence, they must be kept separate.
6. Don’t add unnecessary allegations. If the law doesn’t require you to prove
something, don’t allege it.
You don’t have to go through the paragraphs of the plaintiff’s declaration,
admitting or denying every one of them. It is important that every allegation, not
necessarily every paragraph, is dealt with. Which you do depends on which style of
plea will make your defence or the issues clearer. If in doubt, and you have time, try
each method.

4
High Court Rules, 1971, O 15 R 104(2); Magistrates Court (Civil) Rules, 1980, O 16 R 2.

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 DRAFTING WILLS

Taking instructions
Wills must be drafted particularly carefully because the testator cannot be asked
to clarify his or her intentions when the will becomes operative. Great care must be
taken to ensure that accurate instructions are obtained and that the client understands
the implications of all the provisions of the will.
For example, if your client asks you to draft a clause stating that he appoints his
wife his heir and after her death his children, you must be careful. If you just state
that in the will, the result will be that you have created a fideicommissum, and the
wife will not be able to alienate the assets of the estate or dispose of the capital. This
is probably not what the client wanted at all.
Be tactful, because people are sensitive about making wills: reluctance to discuss
their affairs coupled with reluctance to contemplate their demise.
Make sure that your client’s wishes are practicable: for example, that he is not
going to create so many legacies that there will be nothing left for the heir (the
residuary legatee). Remember that estate duty is paid out of the residue of the estate
after the legacies have been paid. People sometimes want to control their families’
lives from the grave, and must be made aware of the difficulties that can arise if
conditions change so that their provisions become impractical.
Try to ensure that the will is not going to create family disputes and bitterness.
Disinheriting a child may cause bitterness, and leaving immovable property in
undivided shares can cause tensions if one heir wants to sell and another does not.
Clients should be discouraged from drafting their own wills, because of the
problems that arise from poor drafting.

Instructions checklist
[Taken from Mary Welsh, The Civil Practice Handbook, pp 24/11-12]
1. The people involved
1.1. The full names and any aliases, the age, permanent address and domicile of
the testator.
1.2. The name of the testator’s spouse, the status of the marriage (civil or
customary, in or out of community) and some detail regarding the spouses’
assets.
1.3. The names, sex and ages of children, whether they are single or married. Are
any more children likely to be born?
1.4. If the children are minors, the testator may wish to appoint a guardian in the
event of both parents’ death. If so, obtain the guardian’s name and address.
1.5. Details of other relatives, e.g. parents, brothers and sisters.
1.6. Any special disabilities of children or other beneficiaries.
1.7. What provision should be made for the surviving spouse between the death of
the testator and the appointment of the executor?
1.8. Is the testator contemplating marriage?

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 1.9. Is the testator divorced? If there is provision for maintenance, the provisions
of the Deceased Persons Family Maintenance Act must be considered.
2. The testator’s finances.
2.1. You don’t always have to know the size of the testator’s estate, but it is often
useful to know it in order to advise the best mode of disposition.
2.2. The testator’s personal financial position, debts, assets, insurance policies,
etc. Who are the beneficiaries of any life insurance policies?
2.3. His membership of any provident or pension funds and the beneficiaries of
the proceeds.
2.4. Employment details and the employer’s address.
2.5. Where the testator is a partner, details of the partnership, the partnership
agreement, its finances, provisions as to goodwill, capital, income or work in
progress in the event of the death of a partner.
2.6. Where the testator owns his own business, details of the business such as loan
accounts, current balance sheet and profit and loss account. What will happen
to the business on the testator’s death? Who will run it? Is it to be carried on
or sold?
2.7. Where the testator carries on business through a private company, details of
the company such as its memorandum, membership, current balance sheet
and profit and loss account, control of share transfers.
3. Legacies
3.1. The full names of the legatees and their relationship to the testator.
3.2. Where legacies are to be made to institutions, the correct names and addresses
of the institutions and the purpose of the legacies and any conditions attaching
to them.
3.3. The nature of the legacies.
4. Heirs
4.1. The correct names and marital status of heirs and their relationship to the
testator.
4.2. Whether they are to benefit equally or fractionally.
4.3. If minors, whether there is to be a trust and the age when they are to possess
in full ownership.
5. Executors and administrators
5.1. The full names of nominees and their descriptions (e.g. AB, a legal
practitioner practising in partnership in the firm of AB & C).
5.2. The names of substitutes if the nominee fails.
5.3. Any special powers to be given to the executors or administrators in addition
to those allowed by law where the business or nature of assets requires this.
(N.B. remember the distinction between an executor and an administrator; the
executor is vested with the estate until it is wound up; an administrator
manages any property or trust afterwards.
5.4. Are they to be exempted from providing security?
5.5. Any special provisions about remuneration. If the executor is a professional
person, it is usual to provide that he may charge his usual professional fees

21
 for any work done over and above the administration of the estate itself —
e.g. conveyancing work done to transfer immovable property. If no such
provision is made, such fees cannot be charged.
6. Trusts
6.1. Whether trusts are to be created for surviving spouses, minors, handicapped
beneficiaries and otherwise.
6.2. The basic conditions of the trust.
6.3. The powers of the trustee, particularly whether he is to use capital and
income.
6.4. Termination of the trust.

Promptness
It is vital that will should be drafted promptly, particularly for elderly or sick
clients. Example: The Frederick Clayton Trust Act [Chapter 17:02], under which a
testator gave his legal practitioner a draft will on 1 July 1916 and asked him to draft it
properly; he died the next day. Hence the Legislative Council passed a statute to give
effect to his testamentary intentions to ensure that their charitable provisions were
observed.
Note that the problems over Clayton’s will would not occur now, because under
sec 8(5) of the Act, the Master can accept documents intended to be wills as valid
wills.

Formal requirements
Remember the formal requirements for a will, set out in sec 8 of the Wills Act
[Chapter 6:06]:
 The testator (or his appointee) and the witnesses must sign each page as near as
possible to the end of the writing.
 The signatures of the testator or his appointee must be made or acknowledged (by
the testator) in the presence of two competent witnesses who are both present at
the same time.
 Each competent witness must sign or acknowledge his or her signature on each
page in the presence of the testator and the other witness (these signatures do not
have to be at the foot of the page, though it is convenient to put them there).
 If the will is signed by the testator’s appointee it is valid only if, before the
testator’s death, a magistrate, presiding officer, justice of the peace or
commissioner of oaths certifies on the will that he is satisfied as to the testator’s
identity and that the will is the testator’s will. That person must sign each page.
Alternatively, a court may state that the will is valid (though this will require an
application to the court).
Documents may be annexed or referred to a will to explain or expand on the
provisions of the will, and such document need not be signed and witnessed as a will
(sec 14 of the Act).

Competent witnesses
Anyone over the age of 16 who is competent to be a witness in court, and who
can see the testator sign a will, is competent to be a witness to a will.

22
 But remember: a person who benefits under a will cannot be a witness to that
will.

Drafting of wills

Language
As in all legal documents, try to draft a will in as simply as possible. This will
ensure that the testator understands it. Sentences should be as short as possible while
being clear and unambiguous. Repetition and tautology is not necessarily a vice if it
achieves clarity.
Words that are capable of more than one meaning should be avoided. The same
meaning should be given to the same words throughout the will.
If provisos or conditions are attached to a bequest, it must be clear what the
provisos or conditions relate to.

Title clause
Avoid this is the “last will and testament”. Just say:
“This is the last will of ABC, at present living at … , Zimbabwe”
The last words will help to establish the testator’s domicile.

Revocation clause
This is necessary to make it clear that the testator is revoking any previous wills
totally, not partially:
“I revoke all former wills made by me.”

Nomination of executor
Executors are nominated by the testator and appointed by the Master of the High
Court.
It is usual to exempt an executor from providing security. The Master may still
require him to provide security, but not to cover all the assets of the estate — only the
liabilities and the value of the legacies.
As indicated in the checklist above, if a professional person is appointed as
executor or administrator it is a good thing to allow him or her to charge professional
fees for work done in addition to that of executor.
Example 1 (nomination of relative):
“I nominate my wife ABC to be the executrix of my estate, with all
the power and authority that is allowed or required by law, in particular the
power of assumption. I exempt her from providing security for the
performance of her duties.”
Example 2 (nomination of professional person):
“I nominate one of the partners for the time being of the firm of …,
Legal Practitioners, of … to be the executor of my estate, with all the
power and authority that is allowed or required by law, in particular the
power of substitution. I exempt him from providing security for the
performance of his duties, and I authorise him to receive from my estate

23
 the normal executor’s commission and the normal fees for any work which
he may do in a professional capacity.”

Beneficiaries
Identify the beneficiaries clearly. Ensure that their correct names are used and, if
there is likely to be any confusion, identify them by some distinguishing feature, e.g.
their relationship to the testator or someone else.
If a bequest is made to a class of person (e.g. the children of a particular person)
describe the class accurately (e.g. “the children of my son A who are alive at my
death”).

Directions and wishes

There is an important distinction between a direction by the testator, binding on
the beneficiary, and a wish or desire (a modus). Testators often want a beneficiary to
do something but do not want to make it a binding condition. This must be made
clear.
Example:
“It is my earnest desire, without however binding my sons in any way,
that they should pay each of the persons who, at the date of my death, are
employed in my business a month’s salary as a gift for the faithful service
they have rendered me in their lifetime.”
On the other hand, if you want to create a condition, avoid the words “wish” and
“desire”.

Legacies
Try to discourage the testator from giving too many insignificant legacies; they
are burdensome on the executor.

Bequests
Identify accurately the property that is to be bequeathed:
“I bequeath to my daughter ABC my one-carat diamond ring set in 18
carat gold.”
If it isn’t identifiable the estate may have to buy property to give to the legatee.
Immovable property should be described by its title-deed number or description.
A beneficiary is entitled to property bequeathed to him free from any liabilities or
burdens on it, unless the will indicates the contrary. So if a will bequeaths a house
over which there exists a bond, the executor must use the residue of the estate to free
the house from the bond. This may not be the testator’s intention.

“Thirty-day” clause
This provides for the near-simultaneous death of the testator and the principal
beneficiary (e.g. a testator husband who is killed in the same road accident as his
beneficiary wife). It avoids double death duty. If the clause is not included, where a
couple die simultaneously or within a close time of each other duty is payable on the
estate of the first to die and again on the enhanced estate of the second.

24
 Example:
“If my wife, … , survives me for thirty days or more, then I bequeath
the whole of my estate to her.”

Per stirpes clause

This provides that if a beneficiary predeceases the testator, the children of the
beneficiary will take the beneficiary’s share of the estate, the share being divided
equally between the children.
Example:
“I bequeath the whole of my estate in equal shares to my children. If a
child of mine has predeceased me leaving surviving issue, the issue shall
stand in the place of that child and take per stirpes the child’s share of my
estate.”

Simple trust
A testator may want to create a trust in his or her will, for example where the
beneficiaries are minors. An administrator must be appointed for the trust, and the
will must give the administrator adequate powers to allow him to carry out the
testator’s intentions.
Where the trust is for the benefit of a minor, the testator must consider the age at
which the beneficiary’s capital can be paid over to him. Any age of 18 can be chosen.
Example:
“Should any of my heirs not have attained the age of majority on my
death, the heir’s inheritance shall not vest in him or her but shall devolve
upon my administrator in trust to sell, call in and convert it into money,
with power in his discretion to postpone such sale, calling in or conversion
and to invest and reinvest such moneys in whatever manner and upon
whatever security my administrator in his absolute discretion thinks fit.
My administrator may pay to the guardian of each such heir, or
otherwise utilise the income and, if necessary, the capital of the trust for
the maintenance, education and general advancement in life of the heir
until he or she attains the age of … years.
As each such heir attains the age of … years, my administrator shall
pay to him or her his or her share of the capital and undistributed income,
if any, of the trust.
My administrator may borrow for the purpose of the trust such money
as he may from time to time think fit, and my pledge, cede, mortgage or
otherwise encumber the assets of the trust as security for the loan.

Conclusion
A simple conclusion to a will is as follows:
“Signed at … on the … day of … , 20…, in the presence of the
undersigned witnesses, who signed in my presence and in the presence of
each other, all being present at the same time.”

25
Execution of wills
After drafting a will, make sure that your client has an adequate opportunity to
study it before it is signed.
It is vital to ensure compliance with the Wills Act regarding the signing of a will.
Try to arrange that the will is signed in your office to ensure that it is done properly.

Effect of marriage
A will generally becomes void upon the subsequent marriage of the testator (sec
16(1) of the Act).
Where the testator’s marriage is annulled or dissolved, any disposition to a former
spouse lapses and any appointment of a former spouse falls away, unless the will
clearly indicates that the testator’s intention was otherwise (sec 17 of the Act). In
such a case it is much better for the testator to make an entirely new will.

26
 DRAFTING OPINIONS

Reference:
Opinion Writing, Inns of Court School of Law (Blackstone Press, 1996)

Definition
What is an opinion? In this context, it means a formal document written by a
lawyer in which he or she gives advice to a client on the law or on facts, or on both
law and facts.
All lawyers have to advise their clients, and they may do so informally, orally or
in writing. Written advice may take the form of a letter, or — particularly when it is
prepared by a lawyer practising as an advocate — as a formal opinion. This lecture
will concentrate on the writing of formal opinions, but what is said about them will
apply to some extent to all forms of legal advice, whether written or oral.

General
Opinions must be written clearly. Remember the general principles of drafting
set out at the beginning of this course. In particular, you must be:

Clear
The meaning must appear immediately from the words used; your reader
should not have to re-read your words, ponder them and analyse them in order to
work out what you mean.

Precise
Everything you write should say exactly what you want to say, neither more
nor less. The words you use should be chosen for their precise meaning, and your
sentences must be composed to convey a precise sense.

Unambiguous
Many words are capable of meaning two or more distinct things. We
frequently use words which mean precisely what we intend them to mean, but
which are capable of meaning something very different if looked at from a
different viewpoint or in a different context.

Concise
Avoid repetition and digression. Leave out whatever is unnecessary to
convey your meaning.

Complete
You must, on the other hand, be complete. Express your ideas completely,
and set out the steps in your reasoning completely. If you don’t, you are liable to
be unclear or ambiguous.
Generally, you should keep your reader in mind when you write, and direct your
writing to him or her, i.e. make sure that he or she will understand what you are
saying. And always read over what you have written and correct it to ensure that it is
accurate and conveys precisely what you intend.

27
 You must remember that the purpose of an opinion is to advise. It must contain
advice.

The mental attitude

You must take a practical approach, that of a practitioner rather than an academic.
When you write an essay, or answer a question in an exam, you are trying to show
how much you know about a particular topic. When you write an opinion, on the
other hand, you are trying to answer a practical problem, to provide your client with
the best possible answer to that problem. You must remember:

You are dealing with a real situation

In a real situation there is a real client with a real problem who wants your
advice. He doesn’t want you to show off your knowledge; he wants help in
finding the right answer. He doesn’t want to know what the law says so much as
how he stands in relation to the law.

The facts are fundamental

In giving advice your starting point will always be the facts. The facts are
fundamental because they give rise to the problem, and any questions of law must
be answered in the context of the facts.
It is very rare for a practitioner to be asked a purely hypothetical question,
but even in such a case the context in which the question arises, the surrounding
circumstances, will be of fundamental importance in answering the question.

The law is a means to an end

The law is usually a very important means to an end, but never an end in
itself. The law is what you consult, and use where appropriate, to help produce a
solution to the client’s problem. It is the context within which you organise,
analyse and interpret the facts in order to provide your advice and answer
questions of fact.
The golden rule is: use the law to help you form an opinion on the facts, not
the facts as an excuse to form an opinion on the law.

Above all, answer the question

You must answer all the questions that have been asked or, if not asked, that
need to be answered. You must ensure that your advice answers your client’s
questions in such a way that he knows what to do to resolve his or her problem —
which, remember, is a factual problem.
You must never say: “I can give no answer.” You may not be able to give a
definite answer, but there must always be some answer.
In addition to answering the questions that have been asked and need to be
answered, you may add additional advice if it is relevant and helpful to the client.
For example, if your client has asked for your opinion on the law in order to
decide whether or not to institute or defend legal proceedings, it may be helpful to
comment on the evidence that will be needed to establish the client’s claim or
defence. You may also want to advice on procedural steps to be taken or whether
an attempt should be made to reach a settlement. Remember, too, that costs are
very important: you should never advise a client to take a step which may have

28
 implications in terms of costs, without advising the client what those implications
are.

Preparing to write an opinion

Preparing to write an opinion involves the following:

Read and understand your instructions

If you are practising as an advocate, your instructing legal practitioner will have
provided you with “instructions”, i.e. a statement of the problem, a request for advice
and all supporting documents. In other cases you will have to obtain those
instructions from your client — you will have to find out from him or her what the
facts of the matter are and what questions need to be answered, and you will have to
obtain the relevant documents.
The first stage in preparing to write an opinion is to understand your instructions
fully. This does not mean that you must read every word of every contract or lengthy
document that your instructing practitioner or client may have provided you with: but
you must understand them.

Answer the question: what does the client actually want or need to know?
You must have a clear idea of what your client wants to know (or needs to know)
if you are to address your mind to the right issues and give proper advice.
Remember that he or she does not really want to know the law; your client is
interested in the result as it affects him or her: generally, “what should I do?” or
“what will happen to me?”

Absorb and organise the facts

Make sure you have a comprehensive understanding of all the material facts, i.e.
of the facts that are material and relevant to the case. To do this you must organise
the facts. You can do this by making notes or schedules or diagrams; sometimes you
can do it in your head.
You will probably find that there are a great many facts included in your
instructions that are irrelevant, and you may find there are gaps — information that
you have not been given and which you need. In such a case you will have to ask
your instructing practitioner or client to provide the necessary information. When you
ask for it, make it clear why you want the information. If it won’t make any
difference to your opinion, don’t ask for it.

Construct a legal framework

You apply the law to help you organise the facts and discover the questions that
need to be answered, to identify the issues of fact and law involved in the case, and
put them into a proper order. This amounts to constructing a framework of questions
which the law requires to be answered in order to determine the answer to your
client’s problem.
For example, if your client wants to get damages for breach of contract, the
questions might be as follows:
 Was there a valid contract?
 What were its terms?

29
  Has the other party breached the contract?
 Has your client breached it?
 What damage has your client suffered?
 Was the damage caused by the other party’s breach?
 Was the damage within the contemplation of the parties?
Other questions might be added; for example, has the client’s right of action
prescribed?
Such a framework can be constructed only through an application of the law,
because the law determines what points need to be established before your client can
succeed in a claim arising from breach of contract.
When researching the law for this purpose, you must keep in mind the facts of the
case. You should never conduct legal research without knowing what question you
are seeking an answer to, otherwise your research will be without purpose or
direction.
Identifying the issues or questions in this way will help in the process of
organising the facts. It will tell you what facts are relevant and what is their relative
importance. It will also show you what depends on what.
When identifying the specific issues on which the case depends, you must also
identify all the questions on which your answer is required, including implicit ones
such as:
 What are the client’s chances of success?
 How strong is the evidence?
 What procedure should be followed in this case?
 Is it worth proceeding?
 What is the next step for the client to take?
Also bear in mind the case that your client’s opponent (if there is one) is likely to
raise, and the issues that will arise from that case. For example, what defences is he
or she likely to raise? Can you meet them?

Answer all the questions

Having identified the questions, you must answer each one of them.
Some of the questions you may be able to answer definitely. For example, in a
case involving breach of contract where both parties accept the validity of the contract
and there is nothing to suggest it is flawed, you can state definitely that that is the
contract between the parties. On the other hand, many issues cannot be answered so
simply and definitely. Some may not be capable of a definite answer until they have
been determined by a court. On these questions you will have to reach a conclusion
of uncertainty, in other words you will have to exercise your judgment to express an
opinion as to the answer. The judgement you use in forming your opinion is your
lawyer’s judgement, using your skill at legal understanding and interpretation and also
your experience and common sense as to the facts.
When answering questions to which you cannot give a definite answer, be careful
in the language you use to express the degree of your certainty or uncertainty. If the
question is: will the client succeed in his action?”, do not answer “yes” when you

30
mean “probably”; do not answer “probably” when you mean “possibly”; “possibly”
when you mean “unlikely”; or “some chance” when you mean “no”.

Consider your advice

Having answered all the questions you must also advise your client what he or
she can or should do. If the client has a problem, he doesn’t want to be told the
solution; he wants to be told how to go about obtaining that solution. In other words,
he needs practical advice.

Writing the opinion

Writing the opinion does not mean setting down your thinking process in writing,
going through all the steps listed above. It involves setting out the results of that
thinking process.

The purpose of an opinion

The purpose of an opinion is to lead your client to the clearest possible
understanding of his or her position so that he or she can decide, on your advice, what
to do about it. There are three aspects to this:
1. The opinion is your answer to the questions which your instructing legal
practitioner or your client asked of you.
2. It is your interim judgment on your client’s present position as you see it. In
expressing that opinion you must be as objective as possible. At this stage you are
not arguing a case for your client; you are telling him what his position is.
3. It is a piece of advice to your client regarding his position. In expressing this
advice you can be subjective, because here you are trying to help the client as
much as possible.
To achieve these purposes, your opinion must be clear, complete, unambiguous,
easy to read, easy to follow, and an accurate representation of what you think. It must
be a reasoned opinion: an opinion is incomplete if no reasons are given. It must also
look to the future and indicate the way forward.
An opinion is not:
 an argument. Arguments seek to persuade, and there should be no element of
persuasion in an opinion. You are not presenting your client’s case to a court or
trying to prove anything.
 an essay. You are not trying to set out everything you know on the subject or to
impress anyone with the breadth of your knowledge. It should set out the results
of your thinking process rather than the process itself. If you find yourself setting
out the law in the same detail as in a textbook, you are probably writing an essay
rather than an opinion.
 a submission. When you make a submission you are putting forward an
argument or a theory for someone else (usually a judge) to decide upon. In an
opinion you are exercising your own judgement. An opinion should not contain
the words “I submit that …” Instead, you should say “I consider that …” or “I
think that …”
 an instruction. You are not telling your client what to do; you are advising him.

31
For whom is the opinion written?
If you have been asked for advice by another legal practitioner, the question
arises: are you writing for the instructing practitioner or for the client? In such a
case, strictly, you are writing for the instructing practitioner but in fact the answer
depends on who is going to act on your advice. If it is the practitioner, then you are
writing primarily for him or her, but if it is the client then you should ensure that the
opinion is written in such a way as to be intelligible to the client.

Whose opinion is it?

You must make it clear whose opinion you are giving. When expressing a view
on the law or the facts, say: “I (or we) think …” or “I (or we) consider …” not “It is
thought that” or “It is considered that …” If you are practising on your own, use the
first person singular (“I”); if you are writing on behalf of a firm, use “we”. And you
should sign the opinion or otherwise make it clear who “I” or “we” are.

Setting out the opinion

There is no right or wrong way of setting out an opinion, but there are good and
bad ways of doing so.
The following are suggestions.
Heading
An opinion should have a heading of some sort. If the opinion relates to court
proceedings, the heading should contain the names of the parties, the court in which
the proceedings are being conducted and the case reference.
Summary of facts
The opening paragraphs should summarise the material facts of the case. This is
necessary because your instructing legal practitioner or client will be able to see, from
reading those paragraphs, if you have understood the facts and if you have omitted
anything of importance. You should, however, make your summary as concise as
possible.
Conclusions
After summarising the facts and before going on to set out your reasoning, you
may state your conclusions and give your overall opinion on the case. If you do, it
means that your instructing legal practitioner or your client does not have to go
through your reasoning before finding out what your opinion is.
Reasoning
Next you should set out the reasoning that has led you to your overall
conclusions. Take each issue in its logical order, saying what you think on that issue
and why: i.e. stating your opinion and reasons, and giving advice.
You must give your reasons for the opinions you express, because a mere opinion
without reasons is worthless. You should bear in mind, too, that if your client is going
to act on your opinion, for example by instituting or defending legal proceedings, you
may have to present argument in court on the basis of your opinion. If you have not
recorded your reasoning you may find you have to repeat your research when you
come to prepare your argument.

32
 The worst enemy of clear reasoning is irrelevance. To check that only relevant
matters are dealt with in your opinion, check each paragraph by asking the following
questions:
 Is it part of my opinion in this case?
 Is it a necessary step in my line of reasoning?
 Is it part of the advice I am giving the client?
If the answer to any one of these questions is Yes, then the paragraph is relevant.
If you get three Noes, then it is almost certainly irrelevant and should be deleted.
Common ways in which you may drift into irrelevance are:
 setting out all your research into the law rather than the results of your research.
You may have read a lot of cases but it is unlikely that every one of them will
form part of your reasoning. Don’t list every case just because you have read it.
 seeking to distinguish cases that are so wholly different from the case you are
dealing with that no one would ever have thought of comparing them in the first
place.
 giving a general exposition of the law in a particular area, regardless of whether it
touches on the facts of the case you are dealing with.
 wasting time on hypothetical cases.
The conclusion
Here you must set out your opinion and advice, if you have not done so already.
If you have, it may be helpful to summarise them.
Numbering of paragraphs and subheadings
Some lawyers number each paragraph of their opinions, and some put in
subheadings. This can help to ensure that one’s opinion follows a logical order and
does not drift into irrelevance.

Citing cases and other authorities

You should cite only cases and authorities where they are relevant to your
opinion, reasoning or advice. Do not try to put in as many cases as you can, or put in
all the cases you have read. If no case is relevant, don’t put any in.
When you do cite a case, or refer to an authority, give the full reference so that
your instructing legal practitioner, or anyone else who is interested, can look it up.
If your opinion is being written primarily for the benefit of another legal
practitioner, don’t try to explain well-known principles of law and cite authorities for
those principles. Assume that the practitioner is familiar with them.
If several cases appear to be relevant, you do not need to cite them all. Be guided
by the following principles:
 Cite the most authoritative case; in our jurisdiction, cases decided by the
Supreme Court are binding on all other courts.
 When a later case interprets or clarifies an earlier one, you will need to cite both.
 Cite only a case that lays down general principles rather than one that applies
those principles to particular sets of facts, unless those facts are markedly similar
to the facts of the case you are dealing with.

33
 Don’t ignore cases which are against you, i.e. which reach a decision that is
adverse to the proposition you are trying to make. You must try to distinguish
those cases or show that they were wrong. If you can’t do that, then you should
reconsider your proposition.
 Don’t cite several cases that all say the same thing.
 Don’t try to show off your legal research abilities.
Whenever you cite a case, show how it is relevant to (i.e. supports) the
proposition you are making.

34
 DRAFTING HEADS OF ARGUMENT
_______________

(Peter van Blerk, Legal Drafting: Civil Proceedings)

(Squires & Rombauer Legal Writing West Publishing Co, 1982)

Requirement to file heads of argument

If appellants to the Supreme Court and the High Court are legally represented,
their practitioners must file heads of argument before the hearing. For example, rule
25(2) of the Supreme Court (Magistrates Courts) (Criminal Appeals) Rules, 1979 (SI
504/1979) requires an appellant’s practitioner to file a document within 15 days after
being called upon to do so by the Registrar:
“setting out the main heads of his argument together with a list of authorities to be
cited in support of each head”.
If the practitioner does not do so, the appeal is regarded as having been
abandoned and is deemed to have been dismissed.
And see rules 24(2a), 43 and 44 of the Rules of the Supreme Court, 1964 (SI
565/64).
In the High Court Rules, 1971, O 32 R 238 requires an applicant’s legal
practitioner, before the hearing of an application, to file with the Registrar:
“heads of argument clearly outlining the submissions he intends to rely on and setting
out the authorities, if any, which he intends to cite”
and to deliver copies of the heads on the other parties. Until heads have been
filed and delivered, the matter will not be set down for hearing. Respondents who are
legally represented must also file heads of argument before the hearing, and a failure
to file them will result in their being barred.
And in the Labour Court Rules, 2006 (SI 59/2006), rule 19 requires an applicant
or appellant who is legally represented to lodge heads of argument with the registrar
of the court
“clearly outlining the submissions he or she intends to rely on and setting out the
authorities, if any, which he or she intends to cite.”
A party is not precluded from making a submission or citing an authority which
was not set out in his heads, unless the court or judge considers that the omission was
a deliberate attempt to mislead the other side or that to allow the submission to be
made or authority cited would prejudice the other side in a way that cannot be
remedied by an order of costs or a postponement.
Chamber applications may be accompanied by heads of argument (O 32 R 243).

Definition of heads of argument

As indicated from the legislation, heads of argument are a document setting out
the main heads of a party’s argument or an outline of the submissions he intends to
rely on, and setting out any authorities he intends to cite in support of that argument or
those submissions.

35
 The SA Uniform Rules of Court define “heads of argument” as “a concise and
succinct statement of the main points, without elaboration, which the litigant intends
to argue”.

Purpose of heads of argument

Heads are a tool used by a practitioner to persuade a court, in the following ways:
 Heads inform the court properly of the facts of the case. Remember that the
judicial officer may not be au fait with the facts. They also enable you to
present the facts in the most favourable light — but you must not mislead the
court. Mention facts adverse to you, but try to put them in as favourable a
light as possible.
 Heads tell the court, in advance of the hearing, of points the litigant proposes
to raise, and his argument in support of those points.
 Heads give the court advance notice of issues of law and references to case-
law and other authority.
 Heads inform the other side of the above matters. This helps both sides to
clarify the issues and identify points that are common cause, and enables
each of them to meet points that that the other side will raise.
Heads also assist the judicial officer in that he or she need not make extensive
notes of the parties’ arguments, and if there is a delay between the hearing and the
judgment they will provide the judicial officer with a helpful summary of the facts.

Content and form of heads of argument

Heads should be headed with the names of the parties, state the court in which the
case is being heard and the case number.
At a minimum, heads must contain a summary of the main points the party
intends to raise in argument and references to the authorities (cases, statutes and
textbooks) that the party wishes to cite in support of those arguments.
Heads may also set out the background to the case or summarise the facts. It is
helpful to do so in applications, where the facts are not always easy to ascertain from
the papers, and in appeals where the facts are complex or important to the client’s
case (i.e. where the grounds of appeal are based on fact). If you think the judicial
officer will not have read the papers or understood the facts, or if you want to
emphasise particular aspects of the facts, then put in a summary.
In addition, they may identify the issues in the case. As indicated above, this
enables the parties and the court to identify points that are common cause and points
that are in issue. It also helps to get the judicial officer to see the issues as you see
them.

Layout
Suggested layout:
1. Set out the material facts (optional, as indicated above).
2. Identify the issues.
3. Set out the propositions of law, with references to authority.
4. Apply the facts to the law.

36
5. Conclude with the relief sought by the party.
Alternatively, for an appeal:
1. Set out the material facts (where appropriate, as indicated above).
2. Summarise the main points of your argument (this can be done by setting out the
grounds of appeal).
3. For each ground, set out:
(a) the facts on which the ground is based (i.e. the facts which support the
ground)
(b) the law in support of that ground
4. Conclude with the relief sought by the party.

Disputes of fact
Where there are disputes of fact, the outline of material facts may start with facts
that are common cause, identify the areas of dispute and then give reasons for
favouring your party’s version.

Disputes of law
Where there are disputes of law, either identify the dispute and give reasons
(logic, equity, case authority) why your argument is the better one, or present your
argument and follow it by analysing and destroying your opponent’s argument.

General
Heads must follow a logical layout.
Heads must read as simply and easily as possible.
They should be divided into short paragraphs, which may be numbered, each
paragraph dealing with a single proposition of law or fact, e.g.:
“6. The learned magistrate erred in accepting without question the evidence of Jeremiah
Nkomo as to the nature of the assault:
(a) Nkomo contradicted himself as to the nature of the weapon used by the
appellant in the assault;
Nkomo 15 line 24, 17 lines 22-25
(b) in any event, Nkomo was an accomplice, and his evidence should have been
treated with caution.
S v Chouhan 1986 (2) ZLR 237 (S)”
Note, when citing cases give their full references, and do not use endnotes.
Don’t quote passages from the evidence; just refer to those passages.
The length of heads of argument will depend on the nature of the case and the
complexity of the argument, but try to keep them as brief as possible. Above all, they
must not be so long that the judicial officer will not read them.

Points to remember
When drafting heads of argument:
 Remember that the judicial officer will probably read your heads and those of
your opponent before going through the other papers. They are therefore your
first opportunity to persuade the judicial officer that your argument is correct.

37
 Choose your arguments carefully. Don’t try a scatter-gun approach of putting in
all the possible arguments, good or bad, in favour of your client’s case. If you
include poor arguments you will lose credibility and the good arguments will lose
their force.
 To help you in choosing your arguments, identify the conclusions that the court
must come to in order to find in favour of your client, then identify reasons for
those conclusions.
 If possible, put your strongest arguments first; they will have more impact.
 Be forceful, but not so forceful that a fair-minded reader will lose faith in your
credibility.
 If there are weak points in your case, acknowledge them while suggesting that
they do not seriously undermine the case. Be critical of your case before the
judicial officer does.
 Where appropriate, concede small points which do not seriously affect your
client’s case; this will enhance the impression of fair-mindedness.
 Don’t be rude, either to your opponent or (in an appeal) to the trial court. Refer
to “the learned magistrate” or “the learned trial judge” even when you are
criticising his or her reasoning. Your criticisms should be respectful.
 Don’t mislead the court; you must mention facts and authorities that are adverse
to your argument.

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 COMMON LATIN AND FOREIGN EXPRESSIONS AND MAXIMS FOR
LAWYERS
_____________________

Most of the entries in this list are taken from Bell’s South African Legal
Dictionary, 2nd ed. They are translations of foreign phrases and maxims, and do not
indicate how far, if at all, the maxims are applicable in Zimbabwean law.

A
A fortiori......................................... Even more so; for the greater reason
A mensa et toro............................... From bed and board
A priori........................................... (of reasoning) proceeding from causes to effects
A tempore morae............................ From the time of the default or delay
Ab initio.......................................... From the beginning
Ab intestato..................................... From a person dying intestate (i.e. without
having made a will)
Aberratio ictus................................ Deflection of the blow; the action of a
person who, intending to injure or kill a particular
person, misses that person and hits another
person instead
Accidentalia.................................... Terms of a contract which, not being
essential terms, are included only by express
agreement
Actio empti or ex exempto.............. A purchaser’s action on sale, for the delivery
of the thing sold
Actio personalis moritur cum
persona.................................... A personal action dies with the person
Actio quanti minoris....................... An action for the return of part of the
purchase price proportionate to the defects
discovered in purchased goods
Actio redhibitoria........................... An action for the rescission of a sale on the
ground of latent defects in the purchased goods
Actus non facit reum nisi
mens sit rea.............................. An act does not make (the performer) a criminal
unless he has a criminal intention
Actus reus....................................... Unlawful act
Ad fundandam jurisdictionem........... To found jurisdiction (where a defendant is
arrested or property is attached to give a court
jurisdiction)
Ad idem........................................... At one, or in agreement
Ad infinitum.................................... For ever
Ad valorem...................................... According to value.
Alibi................................................ Elsewhere. (A defence in criminal law that
seeks to establish that the person charged was not
at the place alleged, but somewhere else)
Amicus curiae................................. Literally, a friend of the court. The term
given to someone (usually a legal practitioner)
who advises the court or presents argument
regarding a point of law at the request of the
court
Animus contrahendi........................ An intention to enter into a contract
Animus domini................................ An intention to own (a thing)
Animus furandi............................... An intention to steal
Animus injuriandi........................... An intention to injure
Animus possidendi.......................... An intention to possess (a thing)
Audi alteram partem....................... Hear the other side
Autrefois acquit............................... Previously acquitted
Autrefois convict............................. Previously convicted
Aval................................................. A type of surety

B
Beneficium de duobus vel
pluribus reis debendi............... The benefit of being sued together, and of
division, where there are two or more debtors
who are bound jointly, but not severally, to pay
the debt. The benefit cannot be raised as an
exception where it has been expressly renounced
by the joint debtors.
Beneficium divisionis...................... The benefit of division. See above.
Beneficium ordinis seu
excussionis............................... The benefit of order or excussion. It is a defence
given to a surety, when called upon for payment
by the creditor, to claim that the principal debtor
must first be excussed.
Bona fide......................................... In good faith
Bona fides....................................... Good faith
Bona vacantia................................. Unowned property
Bonus paterfamilias........................ A good father of a family; a reasonable
person
Brutum fulmen................................ A harmless thunderbolt

C
Cadit quaestio................................. The question falls away; the dispute is at an
end.
Caeteris paribus............................. Other things being equal

40
Capax doli....................................... Capable of wrongdoing
Casus fortuitus................................ Fortuitous or unavoidable accident, and
accident which no ordinary care or foresight
could prevent
Casus omissus................................. Omitted case, a contingency not provided for
by statute
Caupo.............................................. An innkeeper
Causa.............................................. Cause, case or reason
Causa causans................................ The inducing or immediate cause of an
event, as distinguished from a cause which,
though proximate, is not the inducing one.
Causa sine qua non......................... Literally, a cause without which not. An
indispensable or necessary cause (i.e. the result
would not have occurred if the cause had not
been present)
Causa debiti (or debendi)............... The cause of debt; the reason for a debt
Caveat............................................. “Let him beware”. A notice lodged with the
Registrar of Deeds objecting (with reasons) to the
transfer of property
Caveat emptor................................. Let the buyer beware. A term of English
law.
Caveat subscriptor.......................... Let the signatory beware. A person who
signs a contract is presumed to have assented to it
and to be bound by the ordinary meaning of the
words in the contract
Certum est quod certum
reddi potest.............................. A thing is certain if it can be made certain (i.e. if
it can be ascertained)
Cessante ratione legis cessat
et ipsa lex................................. When the reason for a law ceases to exist, the law
itself falls away
Civiliter modo................................. In a reasonable manner
Commodatum.................................. A loan for use
Communis error facit ius................ Common error creates law
Compensatio................................... Set-off
Condictio causa data causa
non secuta................................ An enrichment action which arises when a person
transfers money or property to another on an
assumption, which did not materialise, or subject
to a modus which was disregarded or frustrated
Condictio indebiti........................... An enrichment action for the recovery of
money or property paid in the erroneous belief
that it was due

41
Condictio ob turpem vel
iniustam causam...................... An enrichment action for the recovery of money
or property paid or delivered in pursuance of an
illegal agreement
Condictio sine causa....................... An enrichment action for the recovery of
something that has been paid or given without
lawful cause
Confusio.......................................... The mixing of materials belonging to two or
more different owners
Consensus ad idem......................... The meeting of two minds in one and the
same intention; agreement
Consortium omnis vitae.................. A partnership for the whole of life; a
definition of marriage
Contemporanea expositio est
fortissima in lege..................... The best interpretation of a statute or other
document is that which it has received from
contemporary authority
Contra bonos mores........................ Contrary to good morals
Contra fiscum................................. Against the Treasury. In cases of doubt,
taxing statutes are interpreted contra fiscum and
in favour of the taxpayer
Corpus delicti................................. The body, substance or foundation of a
criminal offence
Crimen falsi.................................... Fraud
Culpa.............................................. Fault or negligence
Culpa lata dolo aequiparatur......... Gross negligence is equivalent to intention
Curator ad litem............................. A person (normally a legal practitioner)
appointed, for the purpose of legal proceedings,
as curator of a person under disability
Curator bonis.................................. A person appointed by the court to manage
the property of a person who is unable to do so
Curia advisari vult.......................... The court wishes to consider (the matter).
The phrase is used when a court reserves its
judgment. It is abbreviated CAV or cur adv vult.
Curia novit ius................................ The court knows the law. The court will take
notice of its own accord of any illegality revealed
in a transaction.
Cursus curiae est lex curiae........... The practice of the court is the law of the
court. A well-established practice must be
adhered to as if it were law.

42
Damnum sine injuria...................... Damage or loss without legal injury, i.e.
damage or loss caused by an act which does not
give rise to a cause of action
Damnum emergens......................... Damage or loss arising or which has actually
occurred
Damnum infectum........................... Damage or loss which has not been incurred,
but is anticipated
Damnum injuria datum................... Damage or loss caused by an actionable
wrong
De bonis propriis............................ From his own property; out of his own
pocket
De facto........................................... In fact, in reality; actual
De jure............................................ According to law
De minimis non curat lex................ The law does not concern itself with trifles or
very petty matters
De novo........................................... Afresh
Delectus personae........................... Choice of person.
Delegatus delegare non
potest........................................ A person to whom a power has been delegated
cannot delegate that power
Detentio.......................................... Physical control, custody or occupation of a
thing
Dictum et promissum...................... A material statement made by a seller to a
buyer during negotiations, relating to the quality
of the thing sold and going beyond mere praise or
commendation
Die bloedige hand erft niet............. The bloody hand inherits nothing. A person
who wrongfully causes a person’s death cannot
benefit from that person’s estate.
Dies induciae.................................. The days within which a legal act is to be
performed, e.g. the number of days allowed to a
defendant to enter appearance to defend an action
Dies interpellat pro homine............ The day makes demand on behalf of the
man; i.e. the arrival of the day on which a debt is
due replaces the need to demand payment
Dolus............................................... Fraud, wrongful intent
Dolus directus.......................... Direct or actual intent
Dolus eventualis...................... A form of intent where the wrongdoer, while
not desiring a particular result, foresees the
possibility that he may cause the result.
Dolus indirectus.............................. Indirect intent, where a wrongdoer directly
intends one result but knows that another result
will unavoidably or inevitably occur

43
Domicilium citandi et
executandi................................ Domicile for the purpose of serving court process
and execution
Dominium....................................... Ownership
Donatio........................................... Donation
Donatio mortis causa...................... A gift made in contemplation of death
Dum casta....................................... While she remains chaste

E
Eiusdem generis rule...................... Where a general word in a contract or statute
is followed by a more specific word or words, the
general word is restricted in meaning to the same
class as the specific words
Emptio............................................. Purchase
Emptio spei..................................... Purchase of a hope or expectation, e.g. the
purchase of whatever fish may be caught by a
person on a particular day
Eo nomine....................................... By that name
Erf ................................................. Plot of land
Essentialia...................................... Essential terms of a contract; terms which
are of the essence of a contract, without which
the contract cannot subsist
Et cetera.......................................... And other things
Ex abundanti cautela...................... From an excess of caution
Ex aequo et bono............................ According to equity and good conscience
Ex causa lucrativa.......................... From a lucrative source
Ex curia........................................... Out of court
Ex delicto........................................ From or arising out of a delict or crime
Ex necessitate legis......................... From legal necessity
Ex necessitate rei............................ From the necessity of the circumstances
Ex officio......................................... By virtue of office
Ex parte........................................... On behalf of or from one side. An ex parte
application is made by the applicant in the
absence of the respondent
Ex post facto................................... After the event
Ex turpi causa non oritur
actio......................................... No action arises from an immoral cause
Ex visceribus actus......................... Literally, “From the bowels of the Act”.
Interpreting a statute ex visceribus actus means to
interpret it by having regard to the statute as a
whole.

44
Exceptio doli................................... A defence available to a party to a contract
who avers that enforcement of a contractual
remedy would amount to unconscionable conduct
Exceptio non adempleti
contractus................................ A defence available to a party to a contract who
is sued for performance, where the party suing
has not himself performed his obligations under
the contract
Exceptio non numeratae
pecuniae................................... A defence claiming that payment did not follow,
that money was not paid over to the debtor (e.g. if
the creditor’s cheque “bounced”) and that there is
therefore no debt
Exempli gratia................................ For example; usually abbreviated as “e.g.”
Expressio unius est exclusio
alterius..................................... The express mention of one thing in a contract or
statute implies the exclusion of other things
Expressum facit cessare
tacitum..................................... If a contract or statute mentions expressly
something that is usually implied, the express
mention means that the implied term is negatived

F
Falsum............................................ Falsity, falsehood, fraud
Falsus in uno, falsus in
omnibus.................................... False in one thing, false in everything
Ferae naturae................................. Of a wild nature
Filum fluminis................................. An imaginary line drawn down the centre of
a river
Fiscus.............................................. The treasury
Fons et origo................................... The source and origin
Fortes fortuna adjuvat.................... Fortune favours the bold
Fortiter in re................................... With firmness in action
Forum............................................. A court
Fraus legis...................................... Fraud of the law; disguising the true nature
of a contract so as to evade the law
Functus officio................................ Having discharged his or her duty
Furtum............................................ Theft
Furtum usus.................................... Theft of the use of a thing (not a criminal
offence under our common law).

45
Generalia specialibus non
derogant................................... General things do not derogate from special
things. General provisions in a later statute
should not be interpreted so as to amend, repeal
or derogate from specific provisions in an earlier
statute
Genus.............................................. A kind; a sort; a class of people or things

H
Habeas corpus................................ Literally, “you have the body.” A writ in
English law requiring a person to be brought to
court in order that the lawfulness of his or her
detention may be investigated. The equivalent in
our law is the interdictum de homine libero
exhibendo.
Habitatio......................................... A personal servitude conferring the right to
live in a house belonging to another person
Hereditas........................................ Inheritance
Huur gaat voor koop....................... Hire goes before sale, i.e. a lease does not
become void when the leased property is sold

I
Ibidem............................................. In the same place, book, chapter, etc.
(usually abbreviated as ibid
Id certum est quod certum
reddi potest.............................. A thing is certain if it can be made certain
Id est............................................... That is to say; usually abbreviated to “i.e.”
Idem................................................ The same; in the same book, chapter, etc
Ignorantia legis neminem
excusat..................................... Ignorance of the law is no excuse.
Imperitia culpa adnumeratur.......... Lack of skill is counted as negligence
Impossibilium nulla obli-
gatio est................................... One is not obliged to perform the impossible
Imprimatur...................................... Literally, “Let it be printed”. A licence to
publish
In absentia...................................... In his/her/its/their absence
In ambiguo...................................... In doubt; in a doubtful case
In camera........................................ In chambers or in private
In curia........................................... In the court
In dubio........................................... In doubt; in a doubtful case
In esse............................................. In being; in existence
In extenso........................................ In full, at length
In extremis...................................... on the point of death; in great difficulty

46
In favorem libertatis....................... In favour of freedom
In fine.............................................. At the end; finally; to sum up
In flagrante delicto......................... In the act of committing a crime
In forma pauperis........................... In the form of a poor person. A person who
has been authorised by the court to sue or defend
in forma pauperis is assigned a legal practitioner
free of charge
In fraudem legis.............................. In fraud of the law; disguising the true
nature of a contract so as to evade the law
In jure non remota causa sed
proxima spectatur.................... In law the proximate, and not the remote, cause is
to be regarded
In limine.......................................... At the outset of the proceedings
In loco parentis............................... In the place of a parent
In nomine........................................ In the name of
In pari delicto potior est
conditio possidentis vel
defendentis............................... In cases where there is equal fault on both sides,
the position of the possessor or defendant is the
stronger one.
In pari materia................................ In an equivalent case or position
In perpetuum................................... In perpetuity
In persona....................................... In person
In pleno........................................... In full
In poenalibus causis benig-
nius interpretandum est In penal cases a more liberal interpretation is to
be adopted
In poenis strictissima
verborum significatio
accipienda est.......................... In penal (statutes) the words should be
interpreted very strictly
In praesenti..................................... At the present time
In propria persona.......................... In one’s own person
In re................................................. In the matter of
In situ.............................................. In its (original) place; in position
In solidum....................................... For the whole. Where several debtors have
bound themselves in solidum they may each be
sued for the whole debt
In solutum....................................... In payment or satisfaction
In terrorem...................................... By way of a threat or intimidation
In toto.............................................. Entirely, altogether
In utero........................................... In the womb
In vacuo.......................................... In a vacuum

47
Incola.............................................. An inhabitant or resident
Infra................................................ Below; further on (in a book or article)
Injuria............................................. An invasion of another’s rights; an
actionable wrong
Instanter.......................................... Instantly
Instrumentum noviter
repertum.................................. A document recently discovered
Inter alia......................................... Amongst other things
Inter alios........................................ Amongst other people
Inter nos.......................................... Between ourselves
Inter partes..................................... Between the parties
Inter se............................................ Between themselves
Inter vivos....................................... Between living people
Interdictum de homine libero
exhibendo................................. An order that a person who is in detention must
be brought to court so that the lawfulness of the
detention may be investigated
Interest reipublicae ut sit
finis litium................................ It is in the interest of the State that there should
be finality to litigation
Interpretatio chartarum
benigne facienda est ut
res magis valeat quam
pereat....................................... A document should be interpreted so that it
has some operation or validity rather than that it
should have none
Intra vires....................................... Within the power or authority
Invecta et illata............................... Things brought and carried in, used with
reference to things a lessee brings on to leased
premises
Inventio........................................... Discovery, a form of acquiring ownership of
a res nullius
Ipse dixit......................................... He himself said it; an unproved assertion
resting wholly on the authority of the speaker
Ipsissima verba............................... The precise words used by a speaker or
writer
Ipso facto........................................ By that very fact or act; by the fact itself
Ipso jure.......................................... By operation of the law itself
Ita est.............................................. It is so
Item................................................. (adverb) likewise, also
Iudex............................................... A judge

48
Iudicis est ius dicere, non
dare.......................................... It is the duty of a judge to declare the law, not to
make it
Iure naturae aequum est
neminem cum alterius
detrimento et injuria
fieri locupletiorem................... By the law of nature it is just that no one should
be enriched to the detriment or injury of another
Ius ................................................. Law (usually unwritten law, as opposed to
lex, a written law) or right
Ius ad rem....................................... A right to a thing
Ius civile.......................................... Civil or Roman law
Ius disponendi................................. The right to dispose of a thing
Ius gentium..................................... The law of nations
Ius in personam.............................. A personal right, as distinct from a real right
Ius in personam ad rem
acquirendam............................ A personal right to acquire a thing
Ius in re........................................... A real right, as distinct from a personal right
Ius in re aliena................................ A real right in the property of another, e.g. a
servitude
Ius naturale..................................... Natural law, the law of nature
Ius pascendi pecoris....................... The right of pasturing livestock
Ius poenitentiae............................... A right to withdraw from a contract at will
Ius possessionis............................... The right of possession
Ius retentionis................................. A right of retention, a lien
Iustus error..................................... Reasonable error
Iustus titulus.................................... Just or lawful title

J
Judex, jus, juris, iustus.................... See under Ius, iuris and iudex
Jurat................................................ A statement at the foot of an affidavit, above
the signature of the commissioner of oaths,
stating where and when the affidavit was sworn
to. For example: “Sworn at Harare this XX day
of XX, 2005”.

K
Kustingbrief.................................... A special mortgage bond over immovable
property securing to the seller the balance of the
purchase price of the property

49
Laches............................................. Delay or neglect in the assertion of a right
Lacuna............................................ A hiatus, blank or omission
Laesio enormis................................ Literally, abnormal harm. A rule of Roman-
Dutch law allowing a person who sells property
for less than half its real value, or who buys
property for more than twice its value, to claim
damages or sue for cancellation of the contract.
Lapsus calami................................. A slip of the pen
Lapsus linguae................................ A slip of the tongue
Leges et constitutiones
futuris certum est dare
formam negotiis, non ad
facta praeterita revocari.......... It is rule that laws and ordinances make provision
for future matters and do not apply to past acts.
Leges posteriores priores
contrarias abrogant................. Later laws abrogate prior contrary laws
Legitimatio per subsequens
matrimonium............................ Legitimation by subsequent marriage.
Lex commissoria............................. A term of a contract allowing a party to
cancel it if the other party defaults in his or her
obligations
Lex domicilii................................... The law of a person’s domicile
Lex fori............................................ The law of the forum, i.e. of the country in
which the legal proceedings concerned are
brought
Lex loci contractus.......................... The law of the place where the contract was
made
Lex loci solutionis........................... The law of the place where payment was
made or an obligation was fulfilled
Lex non cogit ad
impossibilia.............................. The law does not compel a person to do
something that is impossible
Lex rei sitae.................................... The law of the place where the thing is
situated
Libertas est res inestimabilis.......... Liberty is a thing of inestimable value
Liberum arbitrium.......................... Free judgment, full power to decide;
freedom of action
Lis alibi pendens............................. A suit or legal proceeding is pending
elsewhere
Lis pendens..................................... Pending suit
Litis contestatio............................... In Roman law, the stage at which an action
was joined, i.e. ready for determination. In our
law, the close of pleadings.
Locatio conductio........................... Letting and hiring

50
Locatio conductio operarum.......... The letting and hiring of services, i.e. a
contract of employment
Locatio conductio operis................ The letting and hiring of a service, i.e. the
engaging of an independent contractor
Locum tenens.................................. A substitute or deputy
Locus citatus................................... The place cited, usually abbreviated to loc.
cit.
Locus classicus............................... A book or judgment which is an
acknowledged authority on a particular point
Locus standi.................................... Literally, a place of standing. A right to be
heard in a court. A person with locus standi has a
right to institute or defend legal proceedings
Lucri causa..................................... For the sake of gain

M
Magna culpa dolus est.................... Gross negligence is intent
Mala fide......................................... In bad faith
Mala fides....................................... Bad faith
Mala in se....................................... Things that are intrinsically evil or wrong
Mala quia prohibita........................ Things that are wrong because they are
prohibited by law
Mandament van spolie.................... A spoliation order
Mandamus...................................... Literally, “We command”. A court order
directing a person to do some specific thing.
Mare liberum.................................. A sea that is open to the ships of all nations
Mea culpa....................................... (through) my fault
Mens rea......................................... Criminal intent
Mero motu....................................... On his/her/its own accord
Merx................................................ Merchandise, a thing that is sold
Metus.............................................. Fear
Mobilia non habent
sequelam.................................. Movables cannot be followed up.
Modus............................................. Method or manner. A modus is a provision
in a will expressing the testator’s wish as to how
a bequest is to be used or applied
Modus operandi.............................. The way in which a person or thing operates
Mora............................................... Delay
Mores.............................................. Customs, morals
Mortis causa................................... Because of, or in anticipation of, death
Mutatis mutandis............................ Things having been changed which need to
be changed; with any necessary changes

51
 N
Namptissement................................ Provisional sentence
Nasciturus pro iam nato
habetur quotiens de
commodo eius agitur............... An unborn child, if subsequently born alive, is
regarded as having been born as soon as he or she
has been conceived, whenever such an
implication is to the child’s advantage.
Naturalia......................................... Terms of a contract that are implied by law
Nec vi, nec clam, nec
precario................................... Not by force, nor by stealth, nor by permission
Necessaria impensae...................... Necessary expenses
Necessitas non habet legem............ Necessity has (or knows) no law
Negotiorum gestio........................... Literally, “management of affairs”;
unauthorised management, or caring for, the
property of another person in that person’s
absence
Nemine contradicente..................... No one objecting; without opposition.
Usually abbreviated to “nem con”.
Nemo allegans suam turpitu-
dinem est audiendus................ No one who alleges his own wrongdoing should
be given audience
Nemo dat quod non habet............... No one can give what he does not have
Nemo debet bis vexari..................... No one ought to be troubled or prosecuted
twice for the same offence
Nemo debet esse iudex in
propria causa........................... No one should be judge in his or her own cause
Nemo debet locupletari cum
alterius detrimento................... No one should be enriched to the detriment of
another person
Nemo plus iuris ad alium
transferre potest quam
ipse habet................................. No one can give a greater right to another person
than he himself has
Nemo tenetur se ipsum
accusare................................... No one is bound to incriminate himself
Nisi ................................................. Unless
Nolle prosequi................................. Literally, “to be unwilling to prosecute”. A
certificate issued by the Attorney-General, stating
that he does not wish to prosecute.
Nomine officii................................. In the name of his or her office; in an
official capacity. Usually abbreviated to “N.O.”
Non est............................................ Non-existent, absent

52
Non est interpretatio, sed
divinatio, quae recedit a
litera........................................ It is not interpretation, but divination, to depart
from the literal meaning (of a contract or statute)
Non obstante................................... Notwithstanding
Non omne quod licitum
honestum est............................ Not everything that is legal is honest.
Non sequitur................................... Literally, “it does not follow”. An inference
or conclusion that does not follow logically from
the premise.
Noscitur a sociis............................. It is known by its associates. Where words
which are capable of analogous meaning are
coupled together, they are understood to be used
in their cognate sense.
Nota bene........................................ Note well. Usually abbreviated to NB.
Nova constitutio futuris
formam imponere debet
non praeteritis......................... A new law should make provision for the future,
not the past.
Novus actus interveniens................ A new act intervening, i.e. breaking a causal
chain
Nuda proprietas.............................. Bare ownership
Nudum pactum................................ A bare agreement, i.e. an agreement without
consideration
Nulla bona...................................... No goods. The name of a return of the
Sheriff or Messenger of Court stating that a
judgment debtor has failed to indicate assets
sufficient to satisfy the judgment.
Nulla poena sine culpa................... No punishment without fault
Nullum crimen sine lege................. No crime without law; a crime cannot exist
unless it is created by the law
Nullum tempus occurrit regi........... Time (i.e. prescription) does not run against
the king.
Numerus clausus............................. A closed number; a fixed maximum number.

O
Ob turpem causam.......................... For a dishonourable or immoral reason
Obiter dictum.................................. Said incidentally; an opinion expressed by a
judge in the course of a judgment, which is not
essential to the decision of the case
Obligatio civilis.............................. Legal obligation
Obligatio naturalis......................... Natural (i.e. non-legal) obligation
Occupatio........................................ Occupation; the taking of possession of a
thing that is not owned by anyone else

53
Octrooi A patent or privilege granted by the State
Omne quod inaedificatur
solo cedit solo.......................... Everything that is built upon the ground accedes
to the ground
Omnia praesumuntur rite
esse acta................................... Everything is presumed to have been done
correctly
Onus................................................ A burden or responsibility (usually, a burden
of proving something)
Onus probandi................................ Onus or burden of proof
Optima est legum interpres
consuetudo............................... Custom is the best interpreter of a law
Opus................................................ A work, a book
Opus citatum................................... The work already cited (abbreviated to op
cit)

P
Pacta sunt servanda........................ Agreements must be complied with or
enforced
Pactum commissorium.................... An agreement of forfeiture
Pactum de contrahendo.................. An agreement to make a contract in the
future
Pactum de non petendo................... An agreement not to sue
Pactum de retrovendendo............... An agreement by which a seller reserves the
right to buy back the thing sold
Pactum successorium..................... An agreement by which a person agrees to
bequeath or not to bequeath property to another
person.
Parate executie............................... Summary execution, e.g. an agreement
allowing a pledgee to sell the thing pledged if the
pledgor fails to pay the debt.
Pari passu................................ Simultaneously, side by side
Parol evidence................................ Oral evidence
Particeps criminis........................... A participant in a crime, an accomplice
Passim............................................. At or in various places
Pater est quem nuptiae
demonstrant............................. The father of a child is presumed to be the man
who is married to the child’s mother
Patria potestas................................ The power of a head of family over the
members of his family
Pauperies........................................ Damage caused by an animal
Peculium......................................... Property
Per aequipollens............................. In an equivalent manner

54
Per annum....................................... For or in each year; yearly
Per capita....................................... By or according to heads or individuals;
(shared or divided) equally between individuals
Per contra....................................... On the other hand
Per diem.......................................... For or in each day; daily
Per incuriam................................... By mistake
Per mensem..................................... For or in each month; monthly
Per procurationem.......................... As an agent. Usually abbreviated to “p.p.”
Per stirpes....................................... By or according to parent heads; inheritance
per stirpes is inheritance through a parent
Per se.............................................. By or in itself
Peregrinus...................................... A foreigner, a non-resident
Periculum rei venditae non-
dum traditae est
emptoris................................... The risk in a thing sold but not yet delivered lies
with the purchaser
Petitio principi................................ A begging of the question
Pignus............................................. Pledge
Plagium........................................... Kidnapping, man-stealing
Plantatio......................................... Planting. A means of acquiring property,
whereby something that is planted on another’s
land belongs to the owner of the land
Plus valet quod agitur quam
quod simulate concipitur......... What is actually done is more important than
what is conceived by pretence, i.e. the law pays
more regard to the substance of a contract than to
its form
Post factum..................................... After the event
Praedium dominans........................ Dominant tenement
Praedium serviens.......................... Servient tenement
Prima facie..................................... At first sight
Pro bono publico............................ For the public good
Pro deo........................................... Literally, for God. Usually means free of
charge
Pro forma........................................ As a matter of form
Pro non scripto............................... As if it had not been written
Pro rata........................................... In proportion, proportionally
Pro tempore.................................... For the time being
Probabilis causa............................. An acceptable ground for litigation.
Proferens........................................ An offeror. A party to a contract who,
personally or through an agent, is responsible for
the wording of the contract

55
Puisne............................................. Of lower rank.

Q
Qua As, or in the capacity of
Quaere............................................ Ask or enquire
Quantum......................................... Amount
Quantum libet................................. As much as you like
Quantum meruit.............................. As much as he or she is worth.
Quasi ex contractu.......................... Arising as if from a contract
Quasi ex delicto.............................. Arising as if from a delict
Qui facit per alium facit per
se.............................................. A person who does a thing through another
person does it himself
Qui prior est tempore potior
est iure..................................... A person who is prior in time has the stronger
right
Quid fit contra legem est iure
nullum...................................... A thing that is done contrary to a statute is a
nullity in law
Quid pro quo................................... Something given in return for something else

R
Ratio decidendi............................... The reason for a decision; the ground on
which a case was decided
Re ................................................. In the matter of, concerning
Rei vindicatio.................................. An action in which the owner of a thing
claims the thing
Res ................................................. A thing or things
Res alicuius..................................... A thing that belongs to someone
Res aliena....................................... A thing belonging to another person
Res communes................................. Common things, things that are not owned
by anyone but whose use is available to everyone
Res extra commercium.................... Things outside of commerce, which are
incapable of being owned by anyone
Res gestae....................................... Things done
Res in commercio............................ A thing capable of being owned
Res inter alios acta......................... Something done or transacted between other
people
Res ipsa loquitur............................. The thing speaks for itself; something that is
self-evident
Res judicata.................................... A case that has been decided

56
Res nova.......................................... A new matter, a question that has not yet
been the subject of a legal decision
Res nullius....................................... A thing that belongs to no one
Res publicae.................................... Public things; things that belong to the
public
Res sua............................................ One’s own property
Restitutio in integrum..................... Restitution in full
Rixa................................................. A quarrel
Rouwkoop....................................... An earnest, a token given to signify the
conclusion of a contract
Rubrica non est lex......................... A marginal note or title in a statute is not the
law

S
Scienter........................................... Knowingly
Scilicet............................................ That is to say; namely
Semble............................................. It seems
Senatus consultum.......................... A law enacted by the Roman Senate
Sensu stricto.................................... In a strict sense
Separatio bonorum......................... A separation of goods
Servitus actus.................................. A servitude entitling a person to drive beasts
along a road or path
Servitus altius non tollendi............. A servitude of not building higher
Servitus altius tollendi.................... A servitude of building higher
Servitus aquae ducendae A servitude of leading water
Servitus itineris............................... A servitude of way
Servitus oneris ferendi.................... A servitude of bearing a weight or burden
Servitus pecoris pascendi............... A servitude of pasturing livestock
Servitude viae................................. A servitude of way
Si sine liberis decesserit................. If he dies without children
Sic ................................................. Thus; so
Sic passim....................................... So in various places
Sic utere tuo ut alienum non
laedas....................................... You must use your property in such a way as not
to injure anyone else
Silva caedua.................................... Wood fit for cutting, i.e. trees which renew
their stems and branches after being cut
Simul et semel................................. At one and the same time
Sine die........................................... Literally, without a day. A case is postponed
sine die if no date is fixed for its resumption
Sine qua non................................... An indispensable condition or element

57
Singuli in solidum........................... Jointly and severally
Socius criminis................................ An accomplice in a crime
Solatium.......................................... Payment or compensation for loss suffered
Solutio indebiti................................ Payment of what is not due
Spes................................................. A hope or expectation
Spoliatus ante omnia
restitutendus est....................... A person who has been forcibly deprived of
property be restored to his possession of it before
anything else
Sponte sua....................................... Of one’s own free will
Stante matrimonio........................... While the marriage exists; during the
subsistence of the marriage
Stare decisis.................................... To stand by or abide by cases already
decided
Status quo....................................... The existing state of affairs
Status quo ante................................ The previously existing state of affairs
Stet ................................................. Let it stand, i.e. let it remain as it is
Stipulatio alteri............................... A contract for the benefit of a third party
Stuprum........................................... Immorality
Sub judice....................................... Under the consideration of a judge or court
Sub voce.......................................... Under the word or heading given
Sui generis...................................... Of its own kind or class
Superficies solo cedit...................... A building or structure accedes to the ground
on which it is built

T
Talem qualem rule The rule expressed in the maxim, “You must
take your victim as you find him”.
Talis qualis..................................... such as he/she/it is
Testamentum................................... A will
Tort................................................. A term in English law for a delict
Toties quoties.................................. As often as
Toto caelo....................................... Entirely, utterly
Traditio........................................... Delivery
Traditio brevi manu........................ Literally, delivery with a short hand, a form
of constructive delivery which takes place when a
ownership of a thing is transferred to a person
who is already in possession of the thing.
Traditio longa manu....................... Literally, delivery with a long hand, a form
of constructive delivery which takes place when
very bulky goods which cannot be delivered
physically are placed in the sight of the transferee

58
Transactio....................................... Compromise
Travaux preparatoires.................... Preparatory works; drafts, records of
preliminary discussions
Turpis causa................................... An immoral or dishonourable cause or
motive

U
Uberrima fides................................ Utmost good faith
Ubi ius ibi remedium...................... Where there is a right, there is a remedy
Ultima ratio.................................... The final sanction
Ultra vires....................................... Beyond the power
Universitas...................................... An artificial person; a corporate body
Usucapio......................................... Acquisition of a thing by use
Usufructus....................................... A usufruct
Usurpatio........................................ The interruption of prescription
Usus................................................Use; a type of personal servitude
Ut res magis valeat quam
pereat....................................... That the thing may be valid rather than invalid
Utiles impensae............................... Useful expenses; expenses which, though
they are not necessary to preserve the property,
increase its value

V
Vacua possessio.............................. Vacant or undisturbed possession
Venia aetatis................................... An indulgence or dispensation of age, a
privilege whereby a minor is regarded as an adult
before reaching the age of majority.
Verba ita sunt intelligenda ut
res magis valeat quam
pereat....................................... Words are to be construed so that the matter may
be effective rather than that it should be invalid.
Versanti in re illicita, omnia
imputantur quae ex
delicto sequuntur..................... If a person is engaged in something unlawful, he
is responsible for all the consequences flowing
from his act
Versari in re illicita........................ See above: versanti in re illicita
Versus............................................. against
Vetustas........................................... Immemorial user
Via media........................................ A middle way; an intermediate course
Via necessaria................................. A way of necessity
Via publica...................................... A public road

59
Vice versa....................................... The position being reversed; conversely
Vide................................................. See; consult
Videlicet.......................................... That is to say, namely
Vigilantibus non dormienti-
bus iura subveniunt.................. The laws assist vigilant people, not people who
are asleep
Vindicatio rei.................................. An action in which the owner of a thing
claims the thing
Vires................................................ Powers
Virtute officio.................................. By virtue of one’s office
Vis divina........................................ Act of God
Vis major......................................... Superior or irresistible force
Viva voce......................................... Oral, orally
Voetstoots........................................ A term describing a sale of property without
warranty
Volenti non fit injuria..................... No wrong is done to a person who consents

60
 LEGISLATION
________

Introduction
Over the past 100 years governments become increasingly concerned with
controlling the daily lives of their citizens. Matters which previously were of no or
little concern of the State — employment, safety standards at work-places, the
environment and so on — have become matters for State regulation. This has led to
an exponential increase in legislation of all kinds.
In this context, legislation may be defined as written rules of law made by a body
which:
 Has the necessary legislative power conferred upon it by or under the
Constitution; and
 Has followed a legally prescribed process of law-making.

Types of legislative instruments

Primary legislation
The Constitution dictates which body has power to make the highest level of
legislation, “primary legislation”. In Zimbabwe it is the legislature, made up of
Parliament (the House of Assembly and the Senate) and the President.5
Parliament makes laws called “Acts of Parliament” or “Acts”.

Subsidiary legislation
Bodies that are subordinate to Parliament, which are usually created by
Parliament, may be given legislative powers. Examples are local authorities and
statutory bodies such as the Law Society and the Health Professions Council. Their
legislation is called “subsidiary legislation”, or “delegated legislation” or “statutory
instruments”. Frequently officials such as Ministers are given power to make
subsidiary legislation, usually to supplement a body of rules on a specific matter that
are already set out in an Act. More general powers may be given to bodies
performing a governmental role over a limited area or activity — e.g. local
authorities. But in all such instances the delegation and the limits upon it are to be
found in the Act, which takes precedence over any contradictory matter which may be
contained in the subsidiary legislation (the doctrine of ultra vires).
Types of subsidiary legislation are the following (the terms are not always used
consistently):
 By-laws, which are made by local authorities.
 Notices, instruments which apply provisions in an Act of Parliament to
specific persons or classes of persons, or to specific cases or places or issues;
 Orders, which are practically indistinguishable from notices.
 Regulations, which are of general application, particularly legislation
containing rules of substantive law.

5
Secs 32 & 33 of the Constitution.

62
  Rules, for instruments that prescribe procedural requirements rather than
general substantive law.
 Rules of court (defined in the Interpretation Act) which are rules regulating
the practice and procedure of a court.
 Proclamations, made by the President, being formal announcements of
legislation that is likely to be important or have significant consequences.
All these are known collectively as “statutory instruments”.
In our system, contrasted with a statutory instruments, there are what are called
general notices published in the Government Gazette. A general notice is a formal
public notification required by law, an administrative notice limited in time or to
specific persons or simply a public advertisement of a fact that is required to be
notified by statute. Often, a general notice does not have major significance for the
general public. General notices are published in the body of the Gazette and not as a
supplement to the Gazette in the way that statutory instruments are published. In the
1996 Revised Edition of the Statutes most references to “notices in the Gazette” were
replaced (often mistakenly) by references to “statutory instruments”.

How Acts are made

A draft Act of Parliament, before it has been enacted by the legislature, is called a
Bill.

Private and Public Bills

There are two types of Bills that can be presented to Parliament for enactment:
Private Bills and Public Bills.
Private Bills
Private Bills are those which are of particular interest or benefit to any person
or group of persons, public company, corporation or local authority. Such Bills
can only be introduced into Parliament after a petition and a copy of the proposed
Bill has been presented and adopted.
Private Bills are seldom if ever introduced into Parliament in Zimbabwe.
Public Bills
Public Bills are Bills which relate to matters of general public interest and are
introduced upon notice given by a Member of Parliament. They are further
divided into Government Bills and Private Member’s Bills.
Public Bills are piloted through Parliament by Government Ministers and the
latter by Private Members (“Backbenchers”) of Parliament.

Process before Bills are presented in Parliament

Public Bills usually originate long before they are presented to Parliament, and —
if they are Government Bills — they must undergo certain processes within the
Executive Branch before they emerge in the public domain by being published in the
Gazette.

63
 Cabinet Committee on Legislation
The Cabinet Committee on Legislation is a committee of Cabinet which
considers proposals for legislation put forward by government Ministries, and
draft legislation prepared by the Attorney-General’s Office to give effect to
Ministries’ proposals. The Committee is chaired by the Minister of Justice, Legal
and Parliamentary Affairs and consists of various Ministers appointed to the
Committee by the President, as well as the Attorney-General and the Secretary
for Justice. It meets once a week.
If a Ministry has a proposal for legislation, the Ministry is supposed to put
forward that proposal in a memorandum of principles setting out the nature of the
proposed legislation, the reasons for it and its anticipated effects. If the proposed
legislation is likely to have an effect on the country’s finances, the views of the
Ministry of Finance must be sought and noted in the memorandum. The Minister
concerned, or his Permanent Secretary, is supposed to present the memorandum
of principles to the Cabinet Committee on Legislation and, if the Committee
approves the principles, it will authorise the Ministry to approach the Attorney-
General’s office to get the proposed legislation drafted. Once a draft has been
prepared to the satisfaction of the responsible Ministry, it is circulated to all other
Ministries for their comments and then submitted to the Cabinet Committee on
Legislation. If the Committee approves the draft, the Committee’s chairman
reports it to Cabinet at its next meeting. And if the Cabinet approves the draft
Bill, the Attorney-General’s Office is instructed to send the draft to Parliament
for printing. Parliament, it should be noted, is responsible for printing all Bills.
When printed, every Bill is published in the Gazette.
The procedures after Bills are published in the Gazette are laid by the
Constitution and by Standing Orders made by Parliament under section 57 of
the Constitution. Standing Orders require that, in general, a Bill should not be
presented to Parliament earlier than fourteen days after it has been published. In
the interim, the published Bill is referred to the appropriate Portfolio Committee
of Parliament, that is to say, the Portfolio Committee which looks into the
functions of the Minister responsible for presenting the Bill. The Portfolio
Committee may conduct public hearings with members of the public, especially
interest groups, to enable them to make input.

Procedure in Parliament
Bills must be passed by both the House of Assembly and the Senate before they
can become Acts of Parliament, but they may be presented first in either House
(though most Bills are presented first in the House of Assembly). The procedure for
passing Bills in both Houses is essentially the same.
First Reading
Prior to the First Reading, the Minister responsible for the Bill gives notice to
the House of his or her intention to present the Bill. On the appointed day the
Minister moves the motion that the Bill be read for the first time, whereupon, if
the motion is not rejected, the Speaker (or President of the Senate) directs the
clerk to read the Long Title of the Bill. This is the formal introduction of the Bill
before the House and no debate takes place at this stage. The Bill is then referred
to the Parliamentary Legal Committee in terms of the Constitution and Standing

64
Orders to determine whether, if enacted, the Bill would be in contravention of the
Declaration of Rights or any other provision of the Constitution.
Report by Parliamentary Legal Committee
If the Parliamentary Legal Committee issues an Adverse Report about the
Bill, that is, it reports that, in its opinion, the Bill, if enacted, the Bill would be in
contravention of the Declaration of Rights or any other provision of the
Constitution, the Adverse Report must be presented to the House for adoption.
At the beginning of the debate on the Adverse Report, the Minister responsible
for the Bill may withdraw the Bill or agree to amend it at the Committee Stage to
bring it into conformity with the Declaration of Rights and Constitution. On the
other hand, if the Minister does not agree with the Adverse Report, he or she must
seek to have it overridden after the conclusion of the debate on whether to adopt
the Adverse Report. If the House votes not to adopt the Adverse Report, or if no
Adverse Report was issued in relation to the Bill, the Bill may proceed to the next
stage.
Second Reading
At the Second Reading Stage, the Minister explains the principles of the Bill.
The chairperson of the Parliamentary Portfolio Committee then presents its report
containing its findings and recommendations on the Bill. Debate on the Bill
follows thereafter. The individual clauses of the Bill cannot be debated as this is
reserved for the Committee Stage. At the conclusion of the debate the Bill is
read a second time (that is, the Speaker (or President of the Senate) directs the
clerk to read the Short Title of the Bill. Any proposed amendments to the Bill for
consideration at the next (Committee) stage must be notified in advance in the
Order Paper (that is, the agenda and minutes of the current sitting of
Parliament).
Committee Stage
At the next Stage, called the Committee Stage, the whole House becomes a
single committee under the Chairman of the Committee (the Deputy Speaker or
Deputy President of the Senate) for the purpose of considering the Bill clause by
clause (or, if the Bill is a very long one, Part-by-Part or Chapter-by-Chapter).
The title of each individual clause (or Part, or Chapter) is read out by the person
presiding over the committee for debate, adoption or amendment by the House.
If an amendment to a clause has been proposed and is notified in the Order Paper,
that amendment is put to the House for debate when the committee reaches the
appropriate clause, and, if agreed by the House, the amendment is adopted.
Debate on the principles of the Bill cannot be re-opened, and is confined to the
substance of each clause or amendment.
Report Stage
This is a purely formal stage where the Chairman of the Committee of the
Whole House reports to the Speaker (or President of the Senate) whether the Bill
passed the Committee Stage, with or without amendments. If any amendments to
the Bill were adopted, these must be referred back to the Parliamentary Legal
Committee for its opinion on whether the Bill, as amended, would be in
contravention of the Declaration of Rights or any other provision of the
Constitution. If the Committee issues an Adverse Report on the Bill as amended

65
 and the House votes not to adopt the Adverse Report, or if no Adverse Report is
issued in relation to the Bill, the Bill may proceed to the next stage.
Third Reading
At the Third Reading Stage, debate may take place, as at the Second
Reading, on the principles of the Bill. However, issues which were not brought
up during the Second Reading may not be raised. The Third Reading is the final
stage.
Transfer to the other House
Once a Bill has been passed by either the Senate or the House of Assembly,
it is transferred to the other House and all the above stages are repeated. Once the
Bill has been passed by both Houses it can be said to have been passed by
Parliament.

Presidential Assent
When a Bill been passed by Parliament, fair copies of it are signed first by the
Clerk to Parliament, then presented to the President for assent within 21 days in terms
of section 51 (2) of the Constitution. The date of presentation is crucial to
determining whether the President has given or withheld his or her assent within the
required 21-day period. By parliamentary convention, the date of presentation is
taken to be the date of the letter by the Clerk of Parliament to the Chief Secretary to
the President and Cabinet under cover of which the fair copies of the Bill are
transmitted to the President’s office. The President grants his or her assent by
authenticating fair copies of the Act with his or her signature and the attachment of
the public seal. If the President withholds his assent, he returns the Bill to the House,
which may, within six months after it has been returned, resolve by the affirmative
votes of not less than two-thirds of its membership, to again present it to the
President. The President must thereupon assent to the Bill within 21 days, unless he
earlier dissolves Parliament.

Enrolment of Act
After Presidential assent the Clerk of Parliament causes an authenticated copy of
the Act to be enrolled on record in the office of the Registrar of the High Court. The
enrolled copy is conclusive evidence of the contents of the Act.

Publication of Act
Once the President has assented to an Act, the President’s office causes it to be
published in the Gazette. Most Acts come into operation on the day that they are so
published, but some have a delayed date of commencement. This delayed date is
usually to be found in the first section of an Act:
“This Act shall come into operation on a date to be fixed by the President by statutory
instrument.”

Classification of Acts
The following is a classification of Acts according to their purpose:
 An amending Act: an Act with the principal purpose of making alterations to
earlier legislation. These Acts invariably have the word “Amendment” in their

66
 title, e.g. the Banking Amendment Act, 2005, or the General Laws Amendment
Act, 2005 (which amends over 30 other Acts of Parliament). But be careful: the
General Law Amendment Act [Chapter 8:07] amends the common law, not other
statutes. Acts which are not amending Acts — i.e. which consist wholly or
mainly of substantive provisions of law — are sometimes called “principal Acts”.
 An Appropriation Act: an Act which must be passed at least once a year to
state the amounts of public expenditure authorised for the following financial
year, as determined by the government in the estimates approved by the
Legislature. A Supplementary or Additional Appropriation Act may be called for
if additional expenditure must be authorised in a given year.
 A codifying Act: an Act to provide a comprehensive and coherent set of written
rules for a major area of law. The Criminal Law (Codification and Reform) Act
is a prime example.
 A consolidating Act: an Act to gather together into one statute all the existing
written rules on a given matter, especially those rules that are scattered between
an Act and several other Acts that amended it. For example, the Wills Act
[Chapter 6:06], which consolidated and amended the common law relating to
wills.
 A declaratory Act: an Act with the principal purpose of stating what the law is,
and has always been, on a particular topic, and so removing doubt or uncertainty.
So far as I know we don’t have any such Acts in force in Zimbabwe, but there are
numerous provisions in our statutes that begin with the words “For the avoidance
of doubt, it is declared that …”
 An enabling Act: an Act with the principal purpose of conferring powers to do
something which otherwise cannot be lawfully done or would otherwise be
unlawful. The Exchange Control Act is primarily an enabling Act.
 A Finance Act: an Act, usually annual, with the principal purpose of providing
for the raising of revenue to meet public expenditure and, therefore, to change
existing tax laws.
 A validation Act: an Act the sole purpose of which is to declare valid some
action, omission or procedure which, as the law stood at the time, was invalid or
legally defective. For example, the War Marriages (Validation) Act.
 An indemnity Act: an Act to indemnify a person or body of persons, that is,
protect them from the criminal or civil legal consequences of certain acts,
especially acts done in an official capacity and in good faith.

Naming the Parts of statutes

1 Citation (with number and year)

The year is the year in which the enacting process is completed; the number
represents the order in which the Bill is given Assent. The number is entered when the
Act is published after enactment. Our principal statutes are grouped into Titles
according to their subject-matter, e.g. Title 2: President and Parliament; Title 4:
citizenship and immigration; Title 5: Persons and the family.

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2 Arrangement of Sections
The table of contents is included only in longer Acts. It is made up from the
section numbers and section headings. Shorter Acts (fewer than 10 sections) do not
require an arrangement of sections, and an arrangement is not put into an amending
Act.

3 Coat of Arms
The national insignia, commonly printed to signify/enhance the formal authority
of the statute. But it has no legal significance and is automatically added by the
Government Printer.

4 Long title
This is a formal statement of the scope of the Act and the main ways in which the
Act is intended to have future effect. It is important as an aid to interpreting the Act,
and also when the Act is being debated in Parliament: members are not allowed to
propose amendments to a Bill that go beyond its scope as stated in the long title.

5 Enacting formula
This is a standard formula that indicates that the Act has gone through the formal
process of enactment. The formula is laid down in section 51(4) of the Constitution.

6 Short title
The label or name that the Act will carry; it facilitates its citation.

7 Preamble
A recital of the circumstances and reasons leading up to the enactment.
Preambles are not often inserted in our statutes, but sometimes they are useful to
indicate the background of an Act: for example, the Citizenship Act [Chapter 4:01]
has a preamble setting out the provisions of the Constitution relating to citizenship.

8 Date of commencement
A provision which states that the Act is to commence on a date to be notified by
the President by statutory instrument. If the Act is to come into operation on the date
of its promulgation, this provision becomes unnecessary and is omitted altogether.
Our Acts do not contain a provision which is common in some other jurisdictions,
a “sunset clause” which limits the duration of the Act. The advantage of such clauses
is that, when the Act comes to an end Parliament must re-enact it entirely and has the
opportunity to debate each provision of the Act.

9 Section heading
An editorial aid to the contents of the section to which it is attached. It does not
form part of the Act.

10 Section
This is the principal component of an Act (in a Bill, termed clause). It comprises
a numbered sentence, or sequence of sentences (each constituting a subsection),
dealing with a distinct legal proposition in the legislative scheme of the Act. Related

68
sections may be grouped into distinct Parts, each with a descriptive heading.
Sections are often divided into:
Subsections
A division of a section (numbered by a number in brackets) that deals with
an element of the legal proposition dealt with by the section.
Paragraphs
One of a series of components of a legislative sentence (in a section,
subsection or Schedule), each given a bracketed letter in sequence. A similar
feature within a paragraph is termed a subparagraph, but is numbered with
bracketed roman numerals.

11 Interpretation section
A section containing definitions of terms used in the Act or explaining how
expressions in it are to be construed/interpreted.

12 Schedule
A collection of rules or items, set out as an annex to the Act, which are extensions
of the rules in the section which contains the cross reference to the particular
schedule. If there are several, Schedules are set out, in a numbered sequence, in the
order in which they appear in the Act.

The General Structure of Statutes

A Non-statutory matter
1 Explanatory Memorandum (only in Bills)
A statement of the general aims of the Bill and its individual clauses, usually
for the information of Parliament. This is omitted from the Act.
2 Arrangement of Sections
A table of contents for the Act made up of the marginal notes of the sections
of the Act.

B Introductory Provisions
1 Long title
2 Preamble
A recital of the circumstances and reasons leading up to the enactment.

69
 3 Enacting formula

C Preliminary Provisions
1 Short title (Citation)
2 Date of commencement
3 Interpretation clause
4 Objects clause
A statement of the policy objectives or purposes of the Act. Zimbabwean statutes
very seldom have such a clause, but occasionally they appear: e.g. section 2A of the
Labour Act [Chapter 28:01].
5 Application provision
An extension or restriction of the standard rules governing the application of
the Act (eg, to apply to only part of Zimbabwe or to have extra-territorial effect.

D Principal Provisions
Substantive provisions
The main body of rules relating to the subject matter of the Act

E General/Miscellaneous
1 Penal provisions
Offences and penalties in support of the principal provisions
2 Evidence & process
Rules relating to proceedings arising out of the principal provisions
3 Delegation of legislative powers
Powers to make subsidiary legislation to supplement the principal provisions.

F Final Provisions
1 Amendments and repeals
Alterations to existing law consequent upon the principal provisions.
2 Savings & transitional provisions
Temporary provisions made necessary by the alterations to existing law made
by the Bill
3 Schedules
Annexed provisions that supplement the principal provisions
This is the general model. Some provisions are not standard for all Acts for
instance the preamble, the objects and the application clauses.

70
The structure of particular statutes

1. Statutes creating parastatals

In Zimbabwe there is an inordinate number of parastatals — i.e. corporate bodies
established by Act of Parliament. There are over 100 at a rough count, excluding
courts and local authorities. The layout of a parastatal statute varies quite a lot, but
generally it follows the following order:
PART I
PRELIMINARY
1. Short title and date of commencement.
There is almost always a delayed date of commencement in parastatal
statutes, because the parastatal body must be established, its membership
appointed or elected and its staff in office as soon as the Act comes into
operation.
2. Interpretation.
PART II
COMMISSION/COUNCIL
3. Establishment of the Commission/Council.
The usual formula is: “There is hereby established a Commission, to
be known as the … Commission, which shall be a body corporate capable
of performing, subject to this Act, all things that bodies corporate may by
law perform.” This wide wording probably gives the body corporate more
powers than are set out elsewhere in the Act.
4. Board of Commission/Council.
Usually the parastatal is governed by a separate board, which operates
rather as a board of directors in relation to a company. The Board may be
appointed by an official, usually a Minister, or it may be elected.
4. Functions and powers of Commission/Council.
The powers, such as the power to own property, enter into contracts,
etc. are usually set out in a Schedule to the Act.
5. Members of Board: qualifications for and terms and conditions of office and
removal from office.
Again, these are usually dealt with in a Schedule.
6. Proceedings and functions of Board — again, many of these provisions are
set out in a Schedule.
Provisions to note are:
(a) disclosure of interests: members must disclose personal interests in
matters debated by the Board, and if they don’t they are liable to be
dismissed; sometimes the statute makes it a criminal offence to fail to
disclose an interest;
(b) committees of Board: there is usually a wide power to delegate
functions to committees, e.g. provision stating that the board may
establish committees “in which the Board may vest such of its
functions as it considers appropriate”.

71
 The power to delegate is not presumed — delegatus delegare non
potest — so if you are representing a person whose rights have been
affected by a decision taken by a committee of a statutory body (e.g.
if a committee has refused to grant your client a licence — then it is
important to ensure that the statutory body has been vested the
committee with the power to grant or refuse such licences.
(c) Minister’s power to give the Board general directives on policy.
These sometimes have to be recorded in the Board’s annual reports,
which gives some publicity to such directives. Even if they have not
been recorded in a public document, however, it is sometimes
important to ascertain their precise wording to ensure that the
Minister is acting within his powers when giving the directive.
(d) reports of Board. The Board must usually submit annual reports to
the Minister, who is obliged to lay them before Parliament. But note
the additional requirements in the Audit and Exchequer Act [Chapter
22:03], which requires “designated corporate bodies” to submit
annual reports, plus balance sheet, income and expenditure accounts
and auditor’s reports, to the responsible Minister;
(e) validity of decisions of Board despite vacancies or imperfections in
their election or appointment. This is necessary to counteract the rule
of administrative that a tribunal must be properly constituted;
(f) execution of contracts by Board. This is important, since it allows the
validity of contracts to be easily established ex facie the contracts
themselves;
(g) non-liability of members of Board and employees of statutory body
for acts done in good faith and without negligence.
7. Chief Executive and other employees of Commission/Council.
Often details of the appointment of staff and the delegation of
functions to them are set out in a Schedule.
PART III
FINANCES OF COMMISSION/COUNCIL
8. Funds and finances of Commission/Council.
These provisions, which again are often contained in a Schedule, set
out the sources of the Commission’s funds (all too often, the funds come
from Parliament, i.e. the taxpayers), how the funds may be invested
(normally with approval from the responsible Minister), the
Commission’s financial year (usually coincides with the calendar year)
and the accounts to be kept by the Commission and how the accounts are
to be audited. It is important to note the provisions of the Audit and
Exchequer Act, which requires “designated corporate bodies” to submit
capital and revenue budgets for approval by the appropriate Minister and,
in the case of capital budgets, by the Treasury. These budgets must also
be laid before Parliament.
PART IV etc.
[Provisions setting out how the Commission/Council carries out its functions,
and the duties, rights etc. of the public in relation to it.]

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 PART V
GENERAL
11. Regulatory powers.
The section which gives the Commission (usually with the approval
of the responsible Minister) or the Minister power to make regulations
begins with a general statement that the Commission or Minister may
make regulations “for all matters which by this Act are required or
permitted to be prescribed or which, in its/his opinion, are necessary or
convenient to be prescribed for giving effect to this Act.” This is a wide
power, and even if those general words are followed by a list of specific
things for which regulations may be made, the power is not limited to the
things mentioned in the list.6 Note, however:
(a) regulations must be made within the objects and scope of the Act;
(b) the general power does not include a power to create offences and
prescribed penalties;
(c) a power to raise revenue by way of rates or taxes is not implied;
(d) a power to make retrospective regulations is not implied;
(e) a power to regulate and control does not include a power to prohibit
altogether.7
12. Amendment of other Acts.
FIRST SCHEDULE:  Provisions Applicable to Commission/Council.
SECOND SCHEDULE:  Ancillary Powers of Commission/Council.
THIRD SCHEDULE:  Financial Provisions Relating to Commission/Council.

2. Taxing statutes
Our Zimbabwean taxing statutes (using the word “taxing” in a broad sense)
consist principally of the Customs and Excise Act [Chapter 23:02], the Income Tax
Act [Chapter 23:06], the Capital Gains Tax Act [Chapter 23:01], the Value Added
Tax Act [Chapter 23:12], the Estate Duty Act [Chapter 23:03] and, of course, the
Finance Act [Chapter 23:04].
Broadly speaking, the levels or amounts of tax are prescribed in the Finance Act
and are changed as and when necessary; the persons who are liable to pay tax, and
the circumstances in which they must pay the tax and the consequences of failing to
pay the tax, are set out in the individual taxing statutes such as the Income Tax Act.
So if you want to find out what the current levels of income tax are, look in the
Finance Act; if you want to see when income tax is payable and whether your client
must pay it, look in the Income Tax Act.
Remember, too, that “Income Tax Act” is a misnomer for the Act; it once dealt
only with income tax but now covers such other taxes as taxes on fees, royalties,
carbon tax, ATM tax and so on.

6
Sec 21(1)(b) of the Interpretation Act [Chapter 1:01].
7
R v Williams 1914 AD 468.

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Government finance

Consolidated Revenue Fund and Exchequer Account

As a general rule, all government revenues must be paid into the Consolidated
Revenue Fund. This is a fund established by sec 101 of the Constitution which
consists of all fees, taxes and other revenues of the Government. It is held in an
account with the Reserve Bank called the Exchequer Account.8
There are three exceptions to the general rule that all government revenues must
be paid into the Exchequer Account:
1. The Ministry of Finance may authorise the establishment of separate funds into
which revenues are paid.9
2. Receivers of revenue may deduct from revenues they have collected such sums as
may be necessary for drawbacks, rebates and repayments before paying the
balance into the Exchequer Account.10
3. The Ministry of Finance may direct that revenue received by a Government
Ministry or department by way of fines, penalties etc must be applied for the
expenditure of the Ministry or department concerned. (this may be done through
the mechanism of a fund)
Also as a general rule, no money may be paid out of the Consolidated Revenue
Fund except to meet expenditure that is authorised by an Appropriation Act or that is
charged on the fund by some other Act of Parliament. 11 Withdrawals cannot be made
from the Exchequer Account without the written authority of the Ministry of
Finance.12
Collection of government revenues is vested in the Zimbabwe Revenue
Authority, a parastatal created by the Revenue Authority Act [Chapter 23:11]. It
replaced the old Income Tax Department and the Department of Customs and Excise.

State loans and guarantees

One of the consequences of sec 101 of the Constitution is that statutory authority
is necessary to authorise borrowing by the government or the giving of guarantees.
This authority is to be found in the State Loans and Guarantees Act [Chapter 22:13].
Under this Act, the President is empowered to authorise the Minister of Finance to
borrow money aggregating, in any one financial year, 30 per cent of the State
revenues for the preceding financial year. Likewise, the Minister is empowered to
give guarantees on behalf of the State, but they may not exceed 40 per cent of the
revenues of the preceding financial year and they must be reported to Parliament.

Parliamentary control over public expenditure

The main characteristic of our system of public finance is the supremacy of the
legislature; Parliament exercises an effective control over what goes into and what
goes out of the Consolidated Revenue Fund. In part, this control is exercised directly
8
See sec 22(1) of the Audit and Exchequer Act [Chapter 22:03].
9
Sec 30 of the Audit and Exchequer Act [Chapter 22:03].
10
See for example sec 120 of the Customs and Excise Act [Chapter 23:02].
11
Sec 102(1) of the Constitution.
12
Sec 24(1) of the Audit and Exchequer Act [Chapter 22:03]. Note that the Minister of Finance is
called “the Treasury” in that Act.

74
by Parliament, either by itself or through its Public Accounts Committee; in part
through the Ministry of Finance; in part it is exercised through the Comptroller and
Auditor-General, who is responsible for auditing all government accounts and
reporting on them to Parliament; 13 and in part it is exercised through accounting
officers.
Parliamentary control
Parliament:
(a) approves public expenditure in advance by scrutinising the estimates of revenue
and expenditure submitted to it each year by the Minister of Finance in terms of
s 103 of the Constitution and, through the annual Appropriation Acts,
sanctioning the necessary issues from the Consolidated Revenue Fund to meet
the approved expenditure;
Before the start of every financial year the Minister of Finance must present
estimates of revenue and expenditure for that financial year; these are detailed
accounts indicating how much the Government expects to receive from taxation
and other sources of revenue, and how much it proposes to spend. The
expenditure is broken down to show how much each Ministry and department
intends to spend in the coming year and what the Ministry or department intends
to spend it on.
(b) considers ways and means of providing sufficient funds to meet the approved
expenditure and enacts such legislation imposing taxes and authorising
borrowing as may be necessary;
(c) with the assistance of Comptroller and Auditor-General and the Ministry of
Finance, scrutinises at the end of the financial year the actual expenditure which
it approved in estimate form.
Parliament has a Public Accounts Committee for the purpose of examining the public
accounts after they have been audited by the Comptroller and Auditor-General. The
committee probes particularly into matters on which the Comptroller and Auditor-
General has commented adversely and into matters where there may have been
unauthorised or wasteful expenditure.
The Minister of Finance (the Treasury):
(a) supervises and controls public finances, manages the Consolidated Revenue
Fund and issues Treasury Instructions as to the management of public finances;
(b) approves the supply estimates before they are presented to Parliament;
(c) exercises miscellaneous functions including the writing off of losses, opening
new sub-heads in the estimates and approving virements between sub-heads of a
vote;
(d) generally, ensures that public money is spent only with prudence and in
accordance with proper statutory authority.
The Comptroller and Auditor-General: He is responsible for auditing and
reporting on all public accounts and some accounts of parastatals. He is answerable
only to Parliament.14
Accounting officers:
13
Sec 106 of the Constitution.
14
Sec 106(6) of the Constitution.

75
 The Permanent Secretary of every Ministry is the accounting officer for that
Ministry and, as such, is directly and personally responsible for ensuring that the
funds and property of the Ministry are properly expended and accounted for. He may
be required to appear before Parliament’s Public Accounts Committee to answer for
his actions.
Points to Remember:
The State cannot expend money or grant a loan or stand surety for the payment of
a debt, unless it authorised to do so by or in terms of a statute. Therefore:
 if you are a legal adviser of a Ministry or department of the Government, you
must ensure that all payments made by the Ministry or department are duly
authorised.
 if you are a legal practitioner representing a private person or body in
negotiations with the Government, you should ensure that any payment promised
by a government official is properly authorised, and that any guarantee will be
met. Remember that you cannot use legal means to compel a Minister to make a
payment which Parliament has not authorised, and you cannot legally compel
Parliament to authorise a payment.

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 SHORTENING DOCUMENTS
Cut! Pare away formal clutter and unnecessary words, including duplicates such
as:
Aid and abet Premeditated before
Basic fundamentals Prior criminal record
Basic starting-point Save and except
False misrepresentation Sufficient enough
Final result Surviving widow
Force and effect Terrible tragedy
If and when True facts
Natural life Unexpected surprise
Null and void Unless and until
Obtain prior approval before
Shorten! See if a shorter form will do:
A certain amount of some In order to to
Alter or change alter In relation to about
As a matter of fact in fact In the majority of cases usually
At that point in time then Is applicable to applies to
By means of by Is dependent on depends on
By reason of because of Last will and testament will
Cease and desist stop Make application to apply to
Despite the fact that although Make provision for provide for
Due to the fact that because Nominate, constitute
Final and conclusive final and appoint appoint
Fit and proper suitable One John Smith John Smith
Furnish and supply provide Prior to before
Give recognition to recognise Revoke, cancel and annul cancel
Have knowledge of know Subsequent to after
I am hopeful that I hope The necessity of needing
In case of if Until such time as until
 WORDS AND PHRASES TO AVOID OR USE CAREFULLY

Aforesaid, aforementioned, said These words are objectionable on two counts:

they are lawyer’s jargon, and they are imprecise.
They can usually be substituted by the pronouns
“he”, “she” or “it”.
Deem This is a useful word to use when establishing a
legal fiction by “deeming” something to be what it
is not. All other uses of the word should be
avoided.
Herein Again, this is jargon and imprecise. In a contract,
“herein” may refer to the clause in which the word
appears, or the whole contract.
Hereinafter, hereinbefore Jargon.
Hereby This word is often used in statutes and is seldom
necessary.
It shall be the duty of This usually means merely “must” or “shall”
Less than, more than These words can lead the unwary into a trap. If
you provide for what is less than X and for what is
more than X, you leave X unprovided for.
Oral, verbal “Verbal” is often used when the intended meaning
is “oral”, as in “A complaint may be made
verbally or in writing” (should be “orally”).
Same “Same” and “the same” should never be used as
substitutes for “it” or “them”. It is pretentious.
Whatsoever, whosoever These words are regarded as archaic, except by the
legal profession. They can usually be omitted; if
you must be emphatic, use “whatever” or
“whoever”.
While In contracts and statutes, use this only in its tem-
poral sense, and not as a substitute for “although”.

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