Statute Law Draft Manual J. Zowa (Partial Edit)

COUNCIL FOR LEGAL EDUCATION
STATUTE LAW SYLLABUS
TABLE OF CONTENTS
CHAPTER
1 The Constitution 3
1.1 The Constitution as the supreme law of Zimbabwe

1.2 Issues of ultra vires legislation and common law
Principles in contravention of Constitution
Constitution as source of law section 89
1.3 Citizenship
1.4 Declaration of Rights
1.5 Law making by Parliament
1.6 Effect of international and regional Conventions on Domestic Law
1.7 Constitutional Cases; Decided
2 Interpretation Act 1.01
2.1 Definition section 19
2.2 Rules as to gender and number
2.3 Date of commencement of statutory instruments
2.4 Reference to time and distance
2.5 Service of documents
3 Guardianship of Minors Act 5.08 22
3.1 Rule of Guardianship of Minor Children s3
3.2 Guardianship, custody, access rights of non-custodial parent of minor
children where the parents are separated or divorce s4
3.3 Concept of Sole guardianship and sole guardianship
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3.4 Special provisions on custody of minor children upon separation of the
parents
3.5 Applications for appointment of guardianship to children without
natural guardians s9
3.6 Enforcement of orders relating to aces and custody
4 Maintenance Act 5.09 25
4.1 Definition of Maintenance Courts
4.2 Dependent and Responsible persons
4.3 Making of maintenance orders
4.4 Enforcement of maintenance orders
4.5 Termination and variation of maintenance orders
4.6 Directions against employers
4.7 Registration of maintenance orders
5 The Married Persons Properties Act 5.12 35
6 Companies Act 39
6.1 Application of the Act
6.2 Incorporation of companies
6.3 Provisions relating to names of companies
6.4 Share Capital
6.5 Liability of and validity of acts of directors
6.6 Protection of minority members of company
6.7 Winding up and judicial Management
7 The Administration of Estates Act 6.01 56
7.1 The office of the Master, appointment and removal of executors and
the estates of deceased persons
7.2 Estates of minors and persons under curatorship
7.3 Distributions of estates of persons governed by customary law
8 Deceased Estates Succession Act 6.02 64
9 The Insolvency Act Chapter 6.04 68
9.1. Voluntary and compulsory sequestration and the procedures to be

followed
9.2. The effects of sequestration
9.3. The appointment and removal of trustees
9.4. Liquidation and distribution accounts and contributions by creditors
9.5. Rehabilitation of insolvents

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10 The prescription Act Chapter 8.11 78

10.1. Acquisitive prescription
10.2. The prescription of debts
10.3. When prescription of debts begins to run
10.4. When prescription of debts may be delayed or interrupted
10.5. Judicial interruption of prescription
10.6. The procedure for raising prescription in pleadings
11 The Shop licences Act Chapter 14.17 80
12 The Legal Practitioners Act 82
12.1. The privileges of Legal Practitioners
12.2. Practicing certificates and prohibition of practicing without certificates
12.3 Trust accounts and annual audits
12.4. Discipline and the power of the Disciplinary Tribunal
13 The Labour Act Chapter 28.01 86
14 The Matrimonial Causes Act 88
14.1. Additional jurisdiction of the High Court
14.2. Irretrievable breakdown as the only ground for divorce
14.3. Division of matrimonial assets
14.4. Recognition of certain divorce decrees and orders
15 The Wills Act Chapter 6.06 91
15.1. The application of the Act
15.2. The capacity to make a will
15.3. The capacity to benefit under a will
15.4. Competent witnesses
15.5. Amendments to wills
15.6. The formalities of making a will
15.7. The effects of subsequent marriage on a will

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15.8. The rectification of wills

1. CONSTITUTION
1.1. The constitution is the supreme law of Zimbabwe and if any law is inconsistent with the
Constitution that law shall to the extent of the inconsistency, be void. The constitution in
any state occupies the apex of hierarchy of laws because it is appreciated that Constitutions
are made by the people. Therefore the “we the people” principle becomes the law of the
state. In that same vein, the constitution though an Act of parliament becomes the yardstick
for the legality of other laws, thus referred to as the supreme law. In Zimbabwe, section 3
exalts or emphasizes the supremacy of the document
It becomes the supreme law because any law either an act of parliament, subsidiary
legislation, presidential decree inter alia would require to be intra vires the Constitution
and also satisfying the requirement of constitutionalism. By constitutionalism, the
legislation must hook and sink with the tenets of the supreme law1 without unreasonable,
illegal derogations.
Moreover, any law inconsistent shall be void. It is worth to note the use of the peremptory
shall. Therefore as was noted by GUBBAY C.J in Sterling Products International v Zulu
2(as he then was) when aptly postulated that acts done contrary to the legislature shall be
void.
Peremptory: S V Takaendesa3, S V Rufaro Hotel 4
In addition, the supreme law becomes the yardstick to which other laws are measured the
legality snd consistency. Conclusively, section 3 provides expressly the apex of the laws
hierachy and non compliance would have grave legal consequences.
Compare with section 2 of the COPAC Draft 2013
1.2. Ultra vires legislation and common law to the constitution

As noted earlier in 1.1 in Zimbabwe as stipulated in section 3, the constitution becomes the
supreme law of the land hence any law ultra vires the constitution becomes void. It is also worth to
note section 2 of the draft constitution COPAC which also widens the scope by inclusion of custom,
law or conduct and also binding the judiciary which develops common law. Briefly common law is a
source of law created by case law and also known as precedent5
Firstly, ultra vires the constitution has been described by A.W Bradley and K.D Ewing as, “when
conduct breaches a written constitititon, unconstitutionalism is likely to mean illegal”. Therefore any
legislation that breaches the spirit and letter of the supreme law becomes illegal and cannot stand
1
Williams v Johanesburg 1915 TPD362
2
1988(2)ZLR293 SC
4
3
1972(4)SA72 RA
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4
1994(1)ZLR7 HC
5 nd
Constitutional and Admin Law, Martin and Turner 2 Edition 2006
the constitutionalism test. Thus ulta vires simply means going beyond the legal authority in this
respect the constitution.
Upon the discovery that the law either statute or common law is ulta vires, the court can strike off
the provisions provided it can stand alone. In deciding whether a statute is ultra vires the
constitution, the court would decide whether parliament was constitutionalyy authorized to do so.
See S v Delta Consolidated Pvt ltd 1991(2)ZLR234 S
In a nutshell any legislation that does not fall within the objectives and tenets of the constitution
but instead derogate or seek to subjugate the constitutiton would automatically be illegal hence
void as provided by section3 of the supreme law.
Common law
Our constitution establishes the Judiciary as constituting the Government and being art of the three
tiers of state, the judiciary exercises judicial authority which ought to further the objectives of the
Constitution. The term ultra vires is widely used in the legal parlance but under the common law,
the judiciary in its interpretation of the law should be solely guided by the objectives, mischief and
rights sought to address. Thus the court should be guided by the constitution in its interpretation
See Smyth v Ushewokunze
1.3. Sources of law
Section 89 of the constitution also establishes a dual legal system recognizing general law
and also african customary law. Customary law as noted in section 89, would be applicable
though subject to other legislative provisions. One interesting Act of Parliament being the
Customary and Local Courts Act which regulates other aspects of African Customary law as
a source of law in Zimbabwe.
However, African customary law as a souce of law in terms of section 89 applies to civil
matters and not to criminal matters. This preserves the application of general law in the
penal law arena S v Matyenyika 1996(2)ZLR538. In addition, the application of customary
law can be based on an agreement as provided in the Customary Local Courts Act. Therefore
that would also depend on the circumstances of the case.
Furthermore, the Act provides the “just and proper” prinmciple for the applicability of the
customary law and also the discretion of the court in deciding the matters thereto. It is
worth to note that the appeal court would usually not temper with the discretion of the first
court to apply customary law. Lopez v Nxumalo case
In addition, African customary law as a source of law cannot be used where it would
produce an unjust result thus the general law would apply thereto
Matibiri v Kumire 2000(1)ZLR
Chapeyama v Mangwende 2000(2)ZLR
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Chihowa 1987(1) ZLR356

Vareta v Vareta SC126/90
Mgaya v Magaya 1999(1)ZLR100
Introduction to Law, Prof Madhuku
Conclusively, the development, appreciation of customary law as faced resistance as it is

often refered to as matters of facts inter alia. Jengwa v Jengwa. However, it is worth to note
that though sometimes the dual legal system encourages conflict of laws, it remains to be
part of our law by virtue of section 89 of the Constitution as read with section 3 of the
Customary Courts Act.
1.4. Citizenship law
Citizenship law relates basically to the branch of law that deals with the qualifications of
persons as having direct relationships with the state and also the rights and duties that are
related to the citizenship entitlement. In Zimbabwe individuals can be citizens either by
birth, descent or registration.
According to section 4 it provides a transitory provision which accommodates citizens from
the previous State before the commencement of the Constitution. However it is worth to
note that the same qualifications would apply in respect of whether the individual is a
citizen by birth, descent or registration.
Moreover, section 5 provides for non-citizenship to children born to envoys of other foreign
sovereign states when the parents would be in line of duty in Zimbabwe. Furthermore,
restrictions are also placed on children born to alien enermies in Zimbabwe. Thus the
entitlement to citizenship is severely restricted in the Constitution. See section 5 in toto
The Zimbabwean Constitution also provides for Citizenship by descend and provides for the
requirements to be satisfied. It provides that,
Save as is otherwise provided by section 5(2) or (4), a person born outside Zim-babwe on or after
the appointed day shall be a citizen of Zimbabwe by descent if— (a) his father or his mother is at
the time of his birth a citizen of Zimbabwe otherwise than by descent; and (b) his birth is registered
in accordance with the law relating to the registration of births. [Section as amended by sections 3 and 15 of
Act No. 14 of 1996 - Amendment No. 14]
The Copas Draft constitution also provides for citizenship by descent in terms of section 37
and it appears more akin to the Lancaster House Constitution only that the COPAC scope is
expanded in its application for instance to grandparents inter alia.in addition the
Constitution also provides for citizenship by registration in accordance with the laws of
Zimbabwe and the Parliament is empowered to promulgate law to deal with such matters.
However, the Constitution prohibits dual citizenship and it is a group upon an individual
can loose its citizenship upon proved that one is a citizen of two countries. The Constitution
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repealed the dual citizen provision by section 2 of SI1/1983.

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It is worth to note that Citizenship comes with certain rights and obligations to the
individual and the individual ought to jealously guard and be loyal to his State lest he be
found Treasonous and it’s a criminal offense. Moreover, according to the Rattigan6 case it
emphasized on the right to vote, right to reside in Zimbabwe and also right to enjoy the
justiciable rights in the state. On the other hand, the citizen must abide by the laws and
interests of the country and these are some of the duties he ought to discharge
1.5. Declaration of Rights (derogations)
Human rights law occupies a significant sphere of law and they are widely recognized,
respected, preserved and promoted. However under this section it is important to articulate
much on the concept of derogations in respect to the Zimbabwean Declaration of Rights.
Firstly it is worth to note what was postulated in West Virginia State Board of Education
v. Barnett 319 US 624 [1993] where it was stated, “The very purpose of a bill of rights
was to withdraw certain subjects from the vicissitudes of political controversy to place
them beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One’s right to life, liberty and property, free
speech, free press, freedom of worship and assembly and other fundamental rights may
not be submitted to vote, they depend on the outcome of no elections.”
The bill of rights therefore provides a set of rights which cannot be taken away by
Parliament except through an amendment of the bill of rights itself. These are rights which
belong to persons by virtue of them being persons. To qualify for a right in the bill of rights
al what is required is to prove being a person. It is important to make a distinction between
human rights in general and the justiciable rights under the Zimbabwean constitution. If a
right is not in the bill of rights it can’t be enforced in the courts as a constitutional right – it
may still be a human right.
Zimbabwe’s bill of rights is in Chapter 3 of the constitution. It stretches from Section 11 to

Section 24.
 Section 11 – This is a preamble
 Section 12 – Right to life
 Section 13 – Right to liberty
 Section 14 - Freedom from forced labour
 Section 15 – Freedom from inhumane or degrading treatment
 Section 16 – Right to private property
 Section 17 – Freedom from search or seizure
 Section 18 – Right to protection of the law
 Section 19 – Freedom of religion and conscience
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 Section 20 – Freedom of expression
 Section 21 – Freedom of assembly and association
 Section 22 – Freedom of movement
 Section 23 – Freedom from discrimination
 Section 24 – Sets out the procedure of enforcement by the Supreme Court directly
Therefore it is important as shall be noted later that some of the rights though sacrosanct
can be derogated from especially when the full realization would infringe on the other
individuals rights, hence under this section such clarity shall be highlighted by using few
rights as examples
Right to life
The Constitution although acknowledging the importance of life also provides exceptions
when the right to life can be lawfully breached. The lawful deprivation of life in pursuance
of an order of court, to stop an unlawful act from occurring, self defence inter alia. However
it is also very important to note that section 12(3) offers a yardstick for use in assessing the
extend of force used in the circumstances. Therefore, if the force was unreasonable, the act
would be unconstitutional and the enforcement procedure is available in the Constitution.
Section 12 provides,
(1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a
criminal offence of which he has been convicted. (2) A person shall not be regarded as having been deprived of
his life in contravention of subsection (1) if he dies as the result of the use, to such extent and in such
circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the
case— (a) for the defence of any person from violence or for the defence of property; (b) in order to effect a
lawful arrest or to prevent the escape of a person lawfully detained; (c) for the purpose of suppressing a riot,
insurrection or mutiny or of dispersing an unlawful gathering; or (d) in order to prevent the commission by that
person of a criminal offence; or if he dies as the result of a lawful act of war. (3) It shall be sufficient
justification for the purposes of subsection (2) in any case to which that subsection applies if it is shown that
the force used did not exceed that which might lawfully have been used in the circumstances of that case
under the law in force immediately before the appointed day. CONSTITUTION OF ZIMBABWE (as amended at
30.10.2007
Right to personal liberty

This right is respected but can also be derogated from lawfully and reproduction of the
section would clearly outline the derogations.
Protection of right to personal liberty
(1) No person shall be deprived of his personal liberty save as may be authorized by law in any of the cases specified in
subsection (2). (2) The cases referred to in subsection (1) are where a person is deprived of his personal liberty as may be
authorized by law— (a) in consequence of his unfitness to plead to a criminal charge or in execution of the sentence or order
of a court, whether in Zimbabwe or elsewhere, in re-spect of a criminal offence of which he has been convicted; (b) in
execution of the order of a court punishing him for contempt of that court or of another court or tribunal or in execution of
the order of the Senate or the House of Assembly punishing him for a contempt; [Paragraph as amended by section 26 of Act
31 of 1989 - Amendment No. 9 and section 23 of Act No. 5 of 2005 – Amendment No. 17 - with effect from the 1st December,
2005.] (c) in execution of the order of a court made in order to secure the fulfilment of an obligation imposed on him by law;
[Paragraph as amended by section 4 of Act 30 of 1990 - Amendment No. 11] (d) for the purpose of bringing him before a
court in execution of the order of a court or an officer of a court or before the Senate or the House of Assembly in execution
8
of the order of the Senate or the House of Assembly; [Paragraph as amended by section 26 of Act 31 of 1989 - Amendment
No. 9, by section 9 of Act 15 of 1990 - Amendment No. 10, and section 23 of Act No. 5 of 2005 – Amendment No. 17 - with
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effect from the 1st December, 2005.] (e) upon reasonable suspicion of his having committed, or being about to com-mit, a
criminal offence; (f) in execution of the order of a court or with the consent of his parent or guard-ian, for the purposes of his
education or welfare during a period beginning before he attains the age of twenty-one years and ending not later than the
date when he attains the age of twenty-three years; (g) for the purpose of preventing the spread of an infectious or contagious
dis-ease; (h) if he is, or is reasonably suspected to be, of unsound mind, addicted to drugs or alcohol, or a vagrant, for the
purpose of his care, treatment or rehabilita-tion or the protection of the community; or (i) for the purpose of preventing his
unlawful entry into Zimbabwe or for the purpose of effecting his expulsion, extradition or other lawful removal from
Zimbabwe or the taking of proceedings relating thereto. (3) Any person who is arrested or detained shall be informed as soon
as reasona-bly practicable, in a language that he understands, of the reasons for his arrest or detention and shall be permitted
at his own expense to obtain and instruct without delay a legal representative of his own choice and hold communication with
him. (4) Any person who is arrested or detained— (a) for the purpose of bringing him before a court in execution of the order
of a court or an officer of a court; or (b) upon reasonable suspicion of his having committed, or being about to com-mit, a
criminal offence; and who is not released, shall be brought without undue delay before a court; and if any person arrested or
detained upon reasonable suspicion of his having committed or being about to commit a criminal offence is not tried within a
reasonable time, then, without prejudice to any further proceedings that may be brought against him, he shall be released
either unconditionally or upon reasonable conditions, including in particu-lar such conditions as are reasonably necessary to
ensure that he appears at a later date for trial or for proceedings preliminary to trial. (5) Any person who is unlawfully
arrested or detained by any other person shall be entitled to compensation therefor from that other person or from any person
or authority on whose behalf or in the course of whose employment that other person was acting:
Provided that— (a) any judicial officer acting in his judicial capacity reasonably and in good faith; or (b) any other
public officer, or person assisting such public officer, acting rea-sonably and in good faith and without culpable
ignorance or negligence; may be protected by law from liability for such compensation.
In a nutshell, the Constitution also lawfully provides for derogations an these are to be restrictively
interpreted because they are based on fundamental rights that ought to be protected ans such
scope of derogations was aptly noted in section 11 which is the preamble for the Declaration of
Rights when it postulates that,
Preamble
Whereas persons in Zimbabwe are entitled, subject to the provisions of this Consti-tution, to the fundamental rights and
freedoms of the individual specified in this Chap-ter, and whereas it is the duty of every person to respect and abide by the
Constitution and the laws of Zimbabwe, the provisions of this Chapter shall have effect for the purpose of affording protection
to those rights and freedoms subject to such limitations on that protection as are contained herein, being limitations designed
to ensure that the enjoyment of the said rights and freedoms by any person does not prejudice the public interest or the rights
and freedoms of other persons.(underlining for emphasis)
Law Making Process
1.6. According to section 32 of the constitution, the law making power vests in the Legislature and
the President and any other person or authority conferred such power by the Legislature7.
The parliament (consists of the houses namely the Senate and the House of Assembly)8. The
senate is constituted in terms of section 34 of the law. It is presided by the President of the
Senate in terms of section 35 and also deputized by a deputy President interms of section
36.
The house of Assembly is composed and consists of 210 members in terms of section 38 and
is presided upon by a speaker of Parliament and his deputy in terms of section 39. The
tenure of office is provided for in terms of section 40 of the Constitution
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7
Section 32(2)
8
Section 33
Law making process9
Law making-up Parliament

The Constitution of Zimbabwe specifies the manner in which parliament legislates. The
story begins with section 51 which provides that “the power of parliament to make laws
shall be exercised by bills passed by the House of Assembly and the Senate and assented to
by the President”. This means that Parliament can only make law through the passing of
Bills. The question which then arises is : How are bills passed? The constitution does not
set out the entire procedure for the passing of bills. Schedule 4 of the constitution sets out
some aspects of the procedure for the passing of Bills but the bulk of the procedures are not
in the constitution. The constitution empowers Parliament to make what are called
“Standing Orders” which prescribe the procedure for the passing of Bills.10 Parliament has
made these Standing Orders and it is to them that reference must be made for aspects of the
procedure in respect of passing of Bills. Accordingly the two sources for the procedure for
the passing of bills are (i) Schedule 4 of the constitution and (ii) Standing Orders of
Parliament. The current Standing Orders were promulgated in 2005. Standing Orders
constitute a special form of legislation which is sanctioned by the constitution. They are law
and bind Parliament and if Parliament purports to pass the Bills contrary to the procedure
set out in the Standing Orders, the resultant Act is invalid, and of no force or effect.11
Pre-bill Stage
This is the stage leading to the finalisation of the proposals that are contained in the Bill that
is sent to Parliament. This is exclusively a political process dominated by the executive.
Legislative proposals result from a variety of sources such as political party manifesto,
government departments, commissions of enquiry, parliamentary portfolio committees,
pressure groups and reaction to disasters.
A major issue is the extent to which government is obliged to consult interested parties
before presenting a bill to Parliament. There is no legal obligation under the laws of
Zimbabwe for government to consult, let alone to be bound by the views of any person
before presenting a bill to Parliament. Consultations are at the discretion of government. In
other systems this is not the case. Some countries have constitutionally entrenched legal
requirements for the executive to consult and to state in a memorandum to Parliament
what steps have been taken to solicit the views of the people. For example section 90 of the
Constitution of Ghana provides as follows:
“In the United Kingdom, the practice is to issue either a white paper or a green paper before
sending bills to parliament. A white paper states proposals without government expressing
9
Introduction to Law, Professor Lover Madhuku
10
see section 57 of constitution
11
See Tendai Biti and MDC v Justice, Legal and Parliamentary Affairs and the Attorney General
10
SC10-2002
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a view and calling for public discussion while a green paper[on white paper] sets out
tentative proposals of government and calls for comments on them. After discussions, a Bill
is then formulated purportedly taking into account the inputs of the public discussion. In
1993, the government of Zimbabwe experimented with a White paper on Marriage and
Inheritance. This led to some notable public debate.12
The process of how proposals eventually become bills, are shrouded in secrecy appear to be
as follows:
(i) Cabinet makes a policy decision that a certain law is to be made e.g. to restrict the Media
or ban foreign funding of NGOs.
(ii) The decision is communicated to the relevant government department by the relevant
ministers and it must in turn prepare a set of detailed principles to govern the
legislation.
(iii) These principles are sent to the Cabinet Committee on Legislation [CCL]. This is a sub-
committee of cabinet tasked with supervising legislative drafting. Its function is to
debate and approve the principles in the light of the policy spelt out by the full cabinet.
(iv) From the CCL, the principles are sent to the A Gs office where a drafts person is
appointed and assigned the role of drafting the piece of legislation. He must work in
constant consultation with the relevant government department.
(v) When the department is satisfied with the draft, it sends a draft bill together with an
accompanying memorandum to the CCL which must scrutinize it in the light of the
principles and the policy articulated by the full cabinet.
(vi) After approval by the CCL, the bill may either be sent to the full cabinet [[where it on
important or controversial bill] or to Parliament. [where the CCL has been mandated to
follow that route]
Types of bills
A distinction must be drawn between public and private bills. Public bills are those which
are intended to alter the general law or to deal with public revenue or the administration of
justice. Private bills deal with matters of a Private or local nature such as legislation
promoted by local authorities or that relating to the property of private individuals. Within
the class of public Bills, a further distinction is drawn between a government bill
(introduced by a government minister) and a private member’s bill (introduced by an
individual Member of Parliament).
Gazeting of bills
The Government Gazette is the official publication of government. It is the legal medium
through which government informs the public about its legal instruments. Except for a
constitutional bill, the constitution does not require that a bill be gazetted it is introduced in
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Parliament. A constitutional Bill is one that seeks to amend or repeal any of the provisions
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12
See W. Ncube and L. Madhuku in the Legal Forum (1994)
of the constitution. The text of such a Bill must be published in the gazette not less than 30
days before it is introduced in parliament.13 For all other Bills, the Standing Orders require
every bill to be published in the gazette at least 14 days before being introduced in
Parliament.14 However, this requirement may be waived and the bill introduced without
being gazeted “in cases of urgency” upon the application of a Vice President or Minister.
PASSAGE OF BILLS IN PARLIAMENT

As Parliament has two houses, a Bill must be introduced in and passed by both houses. If
follows the same stages in each house. However, in general, the process in one house must
be completed before the Bill is introduced in the second house. In other words, the rule is
“one house at a time”. Except for one type of Bill called a Money Bill, any Bill may originate
in either house. A Money Bill may only originate in the House of Assembly.15 A Money Bill is
defined in section 6(9) of Schedule 4 of the Constitution. It is a public Bill which provides
for all or any of the following matters: imposition or administration of taxation; the
imposition of charges on the Consolidated Revenue Fund; the making or raising of any loan
by the government and the condoning of unauthorized expenditure.
1. First reading
No actual reading takes place. After a Bill has been gazetted, the member responsible must
serve notice of a motion that leave be granted by the House to bring in the Bill. On the day
specified in the notice, the motion for leave is moved and if granted the member must bring
a copy of the bill to the clerks at the table who read the title of the Bill. It is the bringing of
the copy to the clerks and the subsequent reading of the title thereof which are regarded as
the first reading.
2. Reference to Parliamentary Legal Committee

This stage follows immediately after the first reading. It is the house in which the Bill
originates which refers it to the Parliamentary Legal Committee. This committee is set up in
terms of Section 40A of the constitution and its functions spelt out in section 40B. It is there
to examine all bills and statutory instruments and determine whether or not they are in
conformity with the Bill of Rights as any other provisions of the Constitution. If the
committee makes an adverse report, that is a report that in its opinion, the provisions of the
Bill contravene the Bill of Rights or some sections of the constitution, it is referred to the
whole house of the House of Assembly or Senate, as the case may be. It would appear that
the whole house has the power to reject the opinion of the Parliamentary Legal
Committee.16 If it rejects the opinion, it will proceed with the bill as if no adverse report
were given. If on the other hand, it agrees with the opinion, it should not pass a bill
containing the provisions.17 If the Parliamentary Legal Committee fails to present its report
13
See section 52(2) of the Constitution
12
14
See Order 102
15
See Schedule 4, section 1(2)
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16
See paragraph 4(3) of Schedule 4 of the Constitution
17
Ibid
within the period specified in the Standing Orders, it shall be presumed that there is no
adverse report and the house shall proceed with the Bill.
3. Second reading
This stage follows the report of the Parliamentary Legal Committee. There is no reading of
the bill. It is opened by the sponsoring minister who makes a second reading speech
outlining the purpose of the bill and the principles upon which it is based. This is followed
by debate on the principles. No discussion on the individual clauses is permissible, except
that reference may be made to these clauses as part of the debate of principles. In some
western democracies, a government that loses a bill at this stage may be forced to resign.
With recent reforms to the parliamentary system, it is at this stage that the relevant
parliamentary portfolio committee presents its report on the bill. PPCs are appointed for
every government department and one of their functions is to scrutinise proposed bills
including conducting public hearings on them and presenting a report to parliament. It is
expected that the chairperson of the PPC must contribute to the debate on principles based
on the findings of his/her committee.
4. Committee stage
This stage follows the second reading and involves a consideration of the bill clause by
clause. It maybe a special committee set for the purpose or a committee of the whole house.
The practice in Zimbabwe is to have a committee of the whole house. In other countries, the
committee of the whole house is preferred where the bill is straight forward or urgent or
politically contentious or of major constitutional importance. At this stage, amendments to
individual clauses are proposed and debated. Amendments are not usually successful
against the wishes of the government. The committee stage is chaired by the deputy
speaker or Deputy President, as the maybe, who is addressed as chairperson. Amendments
proposed by the PPC are discussed at this stage as proposals for amendments.
4. Report Stage
This stage involves making a report of the bill as amended to the house. If the bill was
considered by a committee of the whole house there is no report stage. At the report stage
other members of the house may propose amendments. Government may also use this
stage to reverse amendments made in the committee stage or to add new clauses arising
from any after-thoughts it has entertained.
5. Reference to PLC
If the bill is amended at the committee and or report stages, it is referred to PLC to
scrutinize the amendments and this follows the same procedure as at stage 2.
7. Third reading
13
No reading takes place and usually there is no debate unless some members give notice that
Page
they wish to debate the bill. This is the voting stage and the bill is put to a vote for either
approval or rejection. The quorum, that is the minimum number of people required to
constitute a valid meeting of the House of Assembly is 25 members and for the Senate is
11.18 For a Bill to pass, it requires a majority vote of those present and voting. However, for
a Constitutional Bill, it must be passed by not less than a two thirds majority of the total
membership of each house.
Transmission to the other house

As soon as the Bill has been passed by the house in which it originates, an authenticated
copy of it is transmitted to the other house. The second house may reject the Bill or pass it
with or without amendments. Where the second house passes the Bill with amendments, it
returns the Bill to the house of origin. The house of origin may reject, agree to or amend the
amendments made to the Bill by the second house.19 Disagreements between the two
houses are dealt with in the matter provided for in paragraph 3 of the Schedule 4. Primacy
is given to the House of Assembly in the following ways: (i) if a Bill originates in the Senate
and is totally rejected by the House of Assembly, that is the end of the Bill; (ii) if a Bill
originates in the House of Assembly and is totally rejected by the Senate, the House of
Assembly may still present the Bill to the President for assent in the form in which it passed
it, except for minor changes required by the passage of time. However, the House of
Assembly can only present the Bill to the President after the expiration of 90 days from the
day of the introduction of the Bill to the Senate and after passing a resolution to the effect;
(iii) where a disagreement relates to amendments made to a Bill, the House of Assembly,
may present the Bill to the President for assent in the form in which it passed it including
such amendments, if any, it may have agreed with the Senate. However, this may only be
done after the expiration of 90 days beginning on (a) the day of the introduction of the Bill
into the Senate (if the Bill originated in the House of Assembly) and (b) the day of the return
of the Bill to the Senate (if the Bill originated in the Senate). Again a resolution to that effect
is required. (iv) If a Bill originates in the House of Assembly and the Senate, although not
rejecting the Bill, has not passed it before the expiration of 90 days from the day of its
introduction into the Senate, the House of Assembly may still present the Bill to the
President as in (ii) above. In other words, if the Senate delays in passing a Bill, it may be
overridden by the House of Assembly. (v) A Vice-President or a Minister may certify that a
Bill originating in the House of Assembly and which has been passed by that House other
than a Constitutional Bill, is so urgent that it is not in the national interest to delay its
enactment. Such a Bill may be presented to the President for his/her assent in the form in
which it was passed by the House of Assembly after the expiration of 8 sitting days
beginning on the day of its introduction into the Senate, if there is no agreement between
the two houses on amendments to be made or if the Senate has not passed the Bill within
that period.
When a Bill has been returned by the second house to the house in which it originated, the
latter shall consider the amendments made by the other house and make a resolution on
14
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18
See section 54
19
See paragraph 2 of Schedule 4
whether or not it agrees to the amendments. It shall then communicate its resolution to the
other house by a “message”.20
9. Presidential assent
A Bill becomes law only after being assented to by the President. After a Bill has been
passed by both houses or after the House of Assembly has overridden the Senate as already
discussed, it is presented to the President for assent. In the case of a Constitutional Bill, it
must be accompanied by certificates from the speaker and the President of the Senate
certifying that it was approved by the requisite two thirds majority.21 The president is not
obliged to assent to a Bill:- he has unlimited discretion in this regard. If the president
decides not to assent to a bill, it is returned to the House of Assembly which has 2 options:
either to drop the proposed bill altogether or to send it back to the President. It can only
send the Bill back to the President if two thirds majority of the total membership resolve to
do so – a mere majority is not sufficient to disagree with the President. In the unlikely event
that the House of Assembly secures the relevant majority and the Bill is returned to the
President, he/she is given 2 options: either assent tot the Bill within 21 days or dissolve
parliament and call for fresh elections.
An issue which arises is where parliament purports to pass a bill contrary to the procedures
we have examined.
In Nkomo and another v Attorney General and others22 it was argued on behalf of the
applicants that the Constitution of Zimbabwe Amendment (number 13) Bill had not been
validly passed because at its final vote in parliament, that is at the third reading, it had not
received the affirmative vote of two thirds of the total membership of Parliament. What
was alleged to have happened was as follows: when the Bill was read for the third time, no
record of the number of members who voted in favour of the bill was taken.
A member of parliament raised the point with the deputy Speaker of Parliament who
thereafter issued the following ruling “the proceedings on the bill, after the second reading,
are not therefore in conformity with the provisions of the constitution. I therefore declare
these proceedings on the bill null and void and the third reading stage will appear on the
order paper tomorrow.” This was on 28 September 2003. A fresh third reading was
purportedly held on 6 October 1993. On this day, there was a vote count and 101 members
voted in favour of the Bill. It was assented to by the President on 2 November 1993 and
became law on 5 November 1993 when it was gazetted. The applicants argued that the Act
was invalid because there was no provision in the Standing Orders for Parliament to adopt
the course of action it took. In other words, Parliament had no power to rescind a vote it
had taken during the same sitting and on that basis, the fresh third reading was a nullity.
Accordingly, the Act was invalid. Four judges of the Supreme Court avoided this question
15
20
See paragraph 7 of Schedule 4
Page
21
See section 52(5)
22
1993 (2) ZLR 422
and left it open and decided matter on a different point. One judge expressed an opinion on
it which was obiter and it was to the effect that the courts had no power to inquire into the
internal proceedings of parliament as that would infringe parliamentary privileges.
This matter has now been resolved by the case of Biti and the MDC v Minister of Justice
Legal and Parliamentary Affairs SC10 2002.23 The law is that if Parliament purports to pass
a Bill contrary to the procedures set out in the Constitution and the Standing Orders, the
resultant Act is invalid and the courts are empowered to intervene and declare the Act of no
force or effect. In that case the applicants challenged the General Laws Amendment Act (Act
number 2 of 2002) and sought to have it declared illegal and of no force or effect. The Act
had introduced far reaching and controversial changes to the Electoral Act ahead of the
2002 Presidential elections. The purported amendments were viewed by the applicants as
favouring the ruling party and seriously prejudicing the opposition. The relevant Bill had
gone through the usual parliamentary procedures up to the third reading. When a vote was
taken on the motion for the third reading, government received an unexpected defeat by 36
votes to 24 thus effectively killing the Bill. True to its undemocratic instincts, the
government refused to accept defeat. The following day, the Ministry of Justice gave notice
that he would move a motion that Parliament rescinds its decision on the third reading. The
rescission was to be in terms of order 69. He also gave notice that he would move to
suspend the provisions of Order 127. Order 127 provides that no bill shall be re-introduced
in Parliament during the same session that it had been negated. Exactly on the next day,
the two motions were moved and passed by parliament. A new third reading was then
approved by a vote of 62 to 49. This meant that the Bill was now considered passed by
Parliament. The President subsequently assented to the Bill and the Act was promulgated
on 4 February 2002 in time for the presidential election. The contention of the applicants
was that Parliament had failed to follow the correct legal procedures in that it had breached
the Constitution and the Standing Orders. The Bill had therefore not been properly passed
and the Act was invalid legislation, so it was argued. These contentions were accepted by
the Supreme court in a 4 to 1 ruling and the Act was nullified. Ebrahim JA who presided
over the full bench in the absence of Chief Justice, Chidyausiku wrote the majority opinion.
He had a 2-pronged reasoning: first he held that Order 69 which gave Parliament some
powers of rescission of motions did not apply to the passing of Bills but only for motions
and it therefore did not authorize the procedure adopted by the Minister. Secondly, even
assuming that parliament could suspend Order127, and allow the re-introduction of a
second Bill in the same session, that second bill had to be introduced in accordance with the
normal procedures and not starting with the stage at which the Bill had been negative. As
the Minister had gone straight into a new third reading without starting afresh, this was
held improper and unlawful. Malaba JA dissented from the view of the majority. He
reasoned that the vote taken after the third reading was irrelevant and purported to base
this on Order 124. That order provides that after the third reading, no further questions
shall be put and the bill shall be deemed to have been passed by parliament. The judge said:
16
“My interpretation of Order 124 is that the question put to the house on the passage of the
Page
23
2002 (1) ZLR
Bill after it had been read for the third time was not legally permissible. By the time that
question was raised, the bill had passed and the majority vote could not affect the passage
of the Bill. The vote was in fact null and void”. This attempt to separate the third reading
from the vote taken to approve it is fallacious. A Bill is only said to have been read after the
affirmative vote taken to approve the reading.
Delegated Legislation
Parliament may delegate its law-making powers to a variety of public authorities
particularly the president, ministers and local authorities. Legislation emanating from these
authorities in exercise of the powers granted to them by Parliament is called delegated
legislation. The extent of the power to make law in this way is regulated by the relevant act
of Parliament which for this purpose is called the “enabling act” or “parent act”. The
constitution of Zimbabwe allows Parliament to delegate its law-making powers. This is in
section 32(2) which makes it clear that the legislature is empowered to confer legislative
functions on any person or authority. The system of delegated legislation is subject to two
controls namely:
a) Delegated legislation, like any other legislation, must be consistent with the constitution,
that is, it must be intra-vires the constitution and
b) It must be consistent with the parent act, that is must not be ultra-vires the enabling act.
In some cases, there are procedural safeguards in the enactment of delegated legislation.
Some statutes require the statutory instruments to be laid before Parliament. For example,
The Presidential Powers (Temporary Measures) Act [chapter 10:20] provides for
legislation made by the President in terms of the Act to be laid before parliament not later
than the eighth day on which parliament sits next after the regulations.24 The Act goes
further in S4(2) to give parliament the power to amend the regulations.
Under the constitution, the Parliamentary Legal Committee is required to examine every
statutory instrument published in the Gazette with a view to determining whether or not it
is consistent with the Constitution.25
If the committee presents an adverse report on a statutory instrument, that report is

presented to both houses but it is the duty of the Senate to consider the report. If the Senate
resolves to accept the opinion of the Parliamentary Legal Committee, the clerk of
Parliament shall report to the President, who shall forthwith, repeal the provision.
However, the Clerk of Parliament may only report to the President if the House of Assembly
has not resolved that the provision/s shall not be repealed. To be valid, this resolution of
the House of Assembly must be made within 21 sitting days after the Senate resolved to
accept the adverse opinion of the Parliamentary Law Committee.
17
Page
24
See section of the Act
25
See section 40B of the Constitution
The system of delegated legislation has been criticized as giving too wide powers to the
executive and this is contrary to the principle of separation of powers. In the absence of
effective safeguards, delegated legislation may be an avenue of undermining the
fundamental rights of persons. An example of a wide provision used to be in the old
Electoral Act [Chapter 2:01]. The notorious s158 provided as follows:
(i) Notwithstanding any other provision of this Act but subject to subsection 2, the
President may make such statutory instruments as he considers necessary or desirable
to ensure that any election is properly and efficiently conducted, and to deal with any
matter or situation connected with , arising out of or resulting from the election.
(ii) The statutory instruments made in terms of subsection 1 may provide for;
(a) suspending or amending any provision of this Act or any other law in so far as it
applies to any election.
(b) Altering any period specified in this Act within anything connected with, arising out
of or resulting from any election must be done.
(c) Validating anything done in connection with, arising out of or resulting from any
election in contravention of any provision of this Act or any other law.”
The President has routinely resorted to this section. In the run-up to the 2002 Presidential
elections, he promulgated a statutory instrument which modified the provisions of the Act
relating to postal votes, taking away the right to a postal vote from all persons except
members of security forces.
In the same statutory instrument, he barred from voting, white Zimbabweans who
purportedly lost their citizenship. Tsvangirai rushed to the Supreme Court challenging
s158 arguing that it was unconstitutional. Chidyausiku C.J dismissed the application on the
basis that Tsvangirai had no locus standi see Tsvangirai and Others v Registrar General SC
20/2002. After the 2000 parliamentary elections the M.D.C filed 37 petitions that is
challenging results in 37 constituencies.
The President promulgated a statutory instrument nullifying electoral petitions arguing that
they were influenced by foreign forces and in any event they were straining the time and
resources of the sitting MPs whose seats were being challenged. M.D.C. challenged the
statutory instrument in the Supreme Court and Gubbay C.J. upheld the application and set
aside the statutory instrument on the basis that it was infringing the right of access to the
courts entrenched in the constitution.
See Shepherd Mushonga and the MDC v Patrick Chinamasa Minister of Justice SC 7/2001.
However, the system may be defended on the following grounds:

(i) pressure on parliamentary time – the bulk of legislation was passed in parliament – the
parliament would have a continuous session
18
(ii) the technicality of the subject matter of particular legislation eg statutory instrument on
Page
hazardous drugs – so it makes sense to leave it to the experts [Labour legislations)

(iii) the difficulty of working out all necessary administration details before a bill is
presented to parliament.
CONSTITUTIONAL CASES,
CHAPTER II CITIZENSHIP
9 Powers of Parliament in relation to citizenship
Chirwa v Registrar-General 1993 (1) ZLR 1 (HC)
Principal Immigration Officer and Anor v O’hara and Anor 1993(1) ZLR 69(S) v Registrar-
General 2000(2) ZLR 433(S)
Todd v Registrar-General & Anor 2002(1) ZLR 407(S)
Registrar-General v Todd 2003(1) ZLR 104(S)
CHAPTER III THE

DECLARATION OF RIGHTS
11 Fundamental rights & freedoms of the individual
Hewlett v Minister of Finance & Another 1981 ZLR 571 (AD)
Austin & Another v Chairman, Detainees’ Review Tribunal & Another 1988 (2) ZLR 21 (SC)
In re Munhumeso & Others v 1994 (1) ZLR 49 (SC)
Rattigan & Others v Chief Immigration Officer & Others 1994 (2) ZLR 54 (SC)
Davies & Others v Minister of Lands, Agriculture & Water Development 1994 (2) ZLR 294 (HC)
Davies & Others v Minister of Lands, Agriculture & Water Development 1996 (1) ZLR 681 (SC)
12 Protection of right to life
Fikilini v Attorney-General 1990 (1) ZLR 105 (SC )
Woods v Commissioner of Prisons & Others 2003(2) ZLR 421(S)

19
Page
13 Protection of right to personal liberty

S v Slatter & Others 1983 (2) ZLR 144 (HC)
Attorney-General v Slatter & Others 1984 (1) ZLR 306 (SC)
Granger v Minister of State 1984 (2) ZLR 92 (SC)
Allan v Minister of Home Affairs 1985 (1) ZLR 339 (HC)
Makomboredze v Minister of State (Security) 1986 (1) ZLR 73 (HC)
Bull v Attorney-General & Director of Prisons 1986 (1) ZLR 117 (SC)
Kona & Others v Attorney-General 1986 (1) ZLR 187 (HC)
Bull v Minister of Home Affairs 1986 (1) ZLR 202 (SC)
S v Poli 1987 (2) ZLR 30 (HC)
Hokonya v Director of Prisons & Another 1989 (1) ZLR 317 (HC)
Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC)
Fikilini v Attorney-General 1990 (1) ZLR 105 (SC)
Boyd v Minister of Justice, Legal & Parliamentary Affairs 1990 (2) ZLR 364 (HC)
Attorney-General v Blumears & Another 1991 (1) ZLR 118 (SC)
Martin v Attorney-General & Another 1993 (1) ZLR 153 (SC)
S v Woods & Others 1993 (2) ZLR 258 (SC)
Motsi v Attorney-General & Others 1995 (2) ZLR 278 (HC)
Chinamora v Angwa Furnishers (Pvt) Ltd & Others 1996(2) ZLR 664
Botha v Zvada & Minister of Home Affairs SC 62/97
S v Makwakwa HH 141/97
S v Makamba(2)2004(1)ZLR 233(S)
Musarira v Anglo-American Corporation 2005 (2) ZLR 267(S)

20
15 Protection from inhuman treatment

Page
S v Ncube & Others 1987 (2) ZLR 246 (SC)

S v Anand 1988 (2) ZLR 414 (SC)
S v A Juvenile 1989 (2) ZLR 61 (SC)
S v Nkomo 1989 (3) ZLR 117 (SC)
S v Arab 1990 (1) ZLR 253 (SC)
S v Masitere 1990 (2) ZLR 289 (SC
Conjwayo v Minister of Justice, Legal & Parliamentary Affairs & Another 1991 (1) ZLR 105 (SC)
Catholic Commission for Justice & Peace v Attorney-General & Others 1993 (1) ZLR 242 (SC)
Nkomo & Another v Attorney-General & Others 1993 (2) ZLR 422 (SC)
Woods & Others v Minister of Justice, Legal & Parliamentary Affairs & Others 1993 (2) ZLR 443
(SC)
S v Makwakwa HH 141/97
Blanchard &Others v Ministry of Justice 1999(2) ZLR 24(S)
Chituku v Ministry of Home Affairs &Others2004(1)ZLR36(S)
S v Nyambo 2005(1) ZLR 443(S)
Chichera v Attorney-General 2005(1)ZLR 307(S)
Kachingwe & Others vMinistry of Home Affairs& Others 2005(2)ZLR 12(S)
16 Protection from deprivation of property Pretorius v Minister of Defence (1) 1980 ZLR 150
(GD)
Pretorius v Minister of Defence (2) 1980 ZLR 395 (AD)
Hewlett v Minister of Finance & Another 1981 ZLR 571 (AD)
Zimbabwe Township Developers (Pvt) Ltd v Lou’s Shoes (Pvt) Ltd 1983 (2) ZLR 376 (SC)
21
Bickle & Others v Minister of Home Affairs 1983 (2) ZLR 400 (HC)
Page
Building & Engineering Supply Co. (PvT) Ltd v Controller of Customs 1988 (1) ZLR 238 (HC)
CW v Commissioner of Taxes 1988 (2) 27 (HC)
S v Harington 1988 (2) ZLR 344 (SC)
Smith v Mutasa N.O. & Another 1989 (3) ZLR 183 (SC)
Commissioner of Taxes v CW (Pvt) Ltd 1989 (3) ZLR 361 (SC)
Mhora & Another v Minister of Home Affairs & Another 1990 (2) ZLR 236 (HC)
Chairman, Public Service Commission, & Another v Hall 1992 (2) ZLR 271 (SC)
Davies & Others v Minister of Lands, Agriculture & Water Development 1994 (2) ZLR 294 (HC)
Nyambirai v National Social Security Authority & Another 1995 (2) ZLR 1 (SC)
Chairman, Public Service Commission & Others v Zimbabwe Teachers’ Association & Others
1996 (1) ZLR 637 (SC)
Mhlanga vSherriff of the High Court 1999(1) ZLR 276 (S)
Law Society &Ors v Ministry of Finance (Attorney General intervening) 1999(2)ZLR 231 (S)
CFU v Ministry of Lands & Others 2000(2) ZLR 469 (S)
Nhari v PSC 2001(2) ZLR 535 (S)
Igudu Farm(Pvt)Ltd v Commissioner of Police & Others 2001(2) ZLR 143 (S)
Ministry of Lands v Paliouras 2001(2) ZLR 22 (S)
Frontline Marketing Services(Pvt) Ltd v GMB &Others 2003(1) ZLR 96 (S)
Mgwaco Farm(Pvt) Ltd & Another v Pasi &Others 2003(2 )ZLR 438 (S)
Quinnell v Ministry of Lands & Others 2004(2) ZLR 293 (S)
S C Shaw (Pvt) Ltd v Ministry of Lands 2005(2) ZLR 153 (S)
Campell (Pvt) Ltd & Another v Ministry for National Security Responsible for Lands, Land Reform
and Resettlement & Another SC 49/07
22
Page
16A Agricultural land acquired for resettlement

16B Agricultural land acquired for resettlement and other purposes
Etheredge v Minister of State for National Security Responsible for Lands, Land Reform and
Resettlement and Anor HC-H 16/2009
17 Protection from arbitrary search or entry
Ministry of Lands & Others v CFU 2001(2) ZLR 457 (S)
18 Provisions to secure protection of law
Minister of Home Affairs v Bickle 1983 (1) ZLR 99 (SC)
S v Paweni & Another 1984 (2) ZLR 16 (HC)
Bull v Minister of Home Affairs 1986 (1) ZLR 202 (SC)
Austin & Another v Minister of State (Security) & Another; Bull v Minister of State Security &
Others 1986 (2) ZLR 28 (SC)
Poli v Minister of Finance & Economic Development & Another 1987 (2) ZLR 302 (SC)
S v Chaerera 1988 (2) ZLR 226 (SC)
S v Beahan 1989 (2) ZLR 20 (SC)
Bishi v Secretary for Education 1989 (2) ZLR 240 (HC)
Fikilini v Attorney-General 1990 (1) ZLR 105 (SC)
S v Chilimanzi 1990 (1) ZLR 150 (HC)
S v Masiriva 1990 (1) ZLR 373 (HC)
Dube v Chairman, Public Service Commission & Another 1990 (2) ZLR 181 (HC)
23
S v Marutsi 1990 (2) ZLR 370 (SC)

Page
Pickering v Zimbabwe Newspapers (1980) Ltd 1991 (1) ZLR 71 (HC)
In re Mlambo 1991 (2) ZLR 339 (SC))
In re Muskwe 1992 (1) ZLR 44 (HC)
Mlauzi v Attorney-General 1992 (1) ZLR 260 (SC)
In re Masendeke 1992 (2) ZLR 5 (SC)
S v Mushayandebvu 1992 (2) ZLR 62 (SC)
S v Nemutenzi 1992 (2) ZLR 233 (HC)
Vice-Chancellor, University of Zimbabwe & Another v Mutasah & Another 1993 (1) ZLR 162 (SC)
Ex parte Chief Immigration Officer in re O’Hara & Another 1993 (1) ZLR 122 (SC)
Catholic Commission for Justice & Peace v Attorney-General & Others 1993 (1) ZLR 242 (SC)
S v Midzi & Others 1994 (2) ZLR 218 (SC)
S v Morrisby 1995 (2) ZLR 270 (SC)
S v Chogugudza 1996 (1) ZLR 28 (H)
Cox v Chief Immigration Officer & Another 1996 (1) ZLR 500 (HC)
1996 (1) ZLR 637 (SC)
S v Sithole 1996 (2) ZLR 575 (HC)
Holland & Others v Minister of the Public Service, Labour & Social Welfare SC 15/97
Bourne v The State SC 77/97
Shumba v Attorney-General SC 89/97

24
Jiah & Others v Public Service Commission & Minister of Health & Child Welfare HH 107/97
Page
Banana v Attorney-General 1998(1) ZLR 309(S)

PTC Managerial Employers Workers Cttee v PTC &Another 1998(1) ZLR 444(S)
Munyuki v City of Gweru1998(1) ZLR 182(S))
S v Mavharamu 1998(2) ZLR 341(S)
S v Kusangaya 1998 (2) ZLR 10(S)
S v Chidawu 1998 (2) ZLR 76(S)
Wheeler &Others v Attorney-General1998 (2) ZLR 305(S)
S v Mukungatu 1998 (2) ZLR 244(S)
Matamisa v Mutare City Council &Another1998 (2) ZLR 439(S)
Nhari v PSC 1999(1) ZLR 513(S) Sv Likwenga & Others 1999(1) ZLR 498(S)
Lees Import and Export(Pvt) Ltd v Zimbank 1999(2) ZLR 36(S)
Sivako v Attorney General 199(2) ZLR 271(S)
In re Chinamasa 1999(2) ZLR 291(S)
Chavunduka & Another v Commissioner of Police & Another 2000(1) ZLR 418(S)
Commissioner of Police v CFU 2000(1) ZLR 503(S )
S v Hombarume & Another 2000(1) ZLR 234(S )
CFU v Ministry of Lands& Others 2000(2) ZLR 469(S )
Chinamasa, In re 2000(2) ZLR 322 (S)
Hove v Chairman, Health Professions Council’s Disciplinary Committee 2000(2) ZLR 442 (S)
Capital Radio(Pvt)Ltd v Ministry of Information(1) 2000(2) ZLR 243 (S)
MDC v Chinamasa &Anor NNO2001(1) ZLR 69 (S)
S vChiweshe2001(1) ZLR48(S)
Ministry of Lands& Others vCFU 2001(2) ZLR 457 (S)
S v Nhando & Others 2001(2) ZLR 84 (S)
S v Tsvangirai 2001(2) ZLR426 (S)

25
S v Blanchard &Others 2001(2) ZLR373 (S)

Page
Ministry of Lands& Others vCFU 2001(2) ZLR 457 (S)
Tsvangirai v Registrar-General& Anothers(1) 2002(1) ZLR 268 (S).
Association of Independent Journalists& Others v Ministry of State for Information & Others 2004
(1) ZLR 94 (S)
Ngaru v Chief Immigration Officer & Another2004 (1) ZLR 501 (S)
In re Hativagone &Another 2004 (2) ZLR133 (S).
Quinnell v Ministry of Lands & Others 2004(2) ZLR 293 (S)
Sv Samakomva 2005(1) ZLR 12 (S)
Paradza v Chirwa N O &Others 2005(2) ZLR94 (S)
Claudious Marimo &Another v The Minister of Justice Legal and Parliamentary Affairs & Others
SC25/06
Mawere &Another v The Central Intelligence Organisation SC 30/07.
Movement for Democratic Change & Another vthe Judge President and Another SC55/09
19 Protection of freedom of conscience
In re Chikweche 1995 (1) ZLR 235 (SC)
20 Protection of freedom of expression S v Hartmann & Another 1983 (2) ZLR 186 (SC)
Woods & Others v Minister of Justice, Legal & Parliamentary Affairs & Others 1994 (2) ZLR 195
(SC)
Retrofit (Pvt) Ltd v Posts & Telecommunications Corporation & Another 1995 (2) ZLR 199 (SC)
TS Masiyiwa Holdings (Pvt) Ltd & al. V Minister of Information 1996 (2) ZLR 754 (SC)
Mutasa v Makombe N.O. SC 44/97
The United Parties v Minister of Justice, Legal & Parliamentary Affairs, Registrar of General
Elections, Minister of Finance, ZANU (PF) & ZANU (Ndonga) SC 139/97
Chavunduka &Another v Ministry of Home Affairs &Another 2000(1) ZLR 552(S)

26
Chinamasa,In re 2000(2) ZLR 322 (S)

Page
S v Tsvangirai 2001(2) ZLR 426 (S)

Tsvangirai v Registrar-General & Anothers(1) 2002(1) ZLR 268(S).
Biti &Another v Ministry of Home Affairs &Another 2002(1) ZLR 197(S).
Matebeleland Zambezi Water Trust v Zimbabwe Newspapers(1980) Ltd &Another 2003(1)ZLR

83(S)
Capital Radio (Pvt)Ltd v Broadcasting Authority of Zimbabwe& Others 2003(2) ZLR 236 (S)
Zimbabwe Lawyers for Human Rights & Another v President of Zimbabwe & Another 2003(2) ZLR
444 (S)
Association of Independent Journalists& Others v Ministry of State for Information & Others 2004
(1) ZLR 94 (S)
Law Society of Zimbabwe v Ministry of Transport & Another 2004 (1) ZLR 257 (S)
Madzingo &Others v Ministry of Justice & Others 2005(1 )ZLR 171(S)
ANZ (Pvt) Ltd v Ministry of State for Information & Others 2005(1) ZLR 222 (S)
National Constitutional Assembly v The President & Others 2005(2) ZLR 310 (S)
21 Protection of freedom of assembly & association
The United Parties v Minister of Justice, Legal & Parliamentary Affairs, Registrar of General
Elections, Minister of Finance, ZANU (PF) & ZANU (Ndonga) SC 139/97
CFU v Ministry of Lands& Others 2000(2)ZLR469(S)
Sports & Recreation Commission vSagittarius Wrestling Club & Another 2001(2) ZLR 501 (S) ).
Biti &Another v Ministry of Home Affairs &Another 2002(1) ZLR 197 (S).
Frontline Marketing Services(Pvt) Ltd v GMB & Others 2003(1) ZLR 96 (S)
22 Protection of freedom of movement
Chirwa v Registrar-General 1993 (1) ZLR 1 (HC)
Rattigan & Others v Chief Immigration Officer & Others 1994 (2) ZLR 54 (SC)
27
In re Wood & Another 1994 (2) ZLR 155 (SC)

Page
Salem v Chief Immigration Officer & Another 1994 (2) ZLR 287 (SC)
Barrows & Another v Minister of Home Affairs & Others 1995 (2) ZLR 139 (HC)
Ruwodo N.O. v Minister of Home Affairs & Others 1995 (1) ZLR 227 (SC)
Hambly v Chief Immigration Officer (1) 1995 (2) ZLR 264 (HC)
Eliot v Commissioner of Police & Minister of Home Affairs SC 41/97
Kohlhaas v Chief Immigration Officer & Minister of Home Affairs SC 183/97
Hofstetter v Chief Immigration Officer, Minister of Home Affairs & Attorney-General

HH 136/97
Hambly v Chief Immigration Officer (3)1998(2) ZLR 285(S)
Kenderjian v Chief Immigration Officer 2000(1)ZLR 697(S)
Bhatti & Another v Chief Immigration Officer & Another 2001(2)ZLR 114(S)
Mudyanduna vMukombero & Others 2004(1) ZLR 427 (S)
Makulumo v Chief Immigration Officer & Another 2004(1) ZLR 383(S)
Jonasi-Ogundipe v Chief Immigration Officer& 0thers 2005(1) ZLR 396 (S)
23 Protection from discrimination on the grounds of race, etc.
CW v Commissioner of Taxes 1988 (2) 27 (HC)
Katiyo v Standard Chartered Zimbabwe Pension Fund 1994 (1) ZLR 225 (HC)
The United Parties v Minister of Justice, Legal & Parliamentary Affairs, Registrar of
General Elections, Minister of Finance, ZANU (PF) & ZANU (Ndonga) SC 139/97
Magaya v Magaya 1999(1) ZLR 498 (S)
Mandizvidza v Chaduka NO &Others 1999(2) ZLR 375 (S)
S v Banana 1998(2) ZLR 533 (S)
S v Banana 2000(1) ZLR 607 (S)

28
Kombayi v Registrar-General 2001(2) ZLR 356 (S)

Page
Chaduka NO& Another v Mandidzvidza 2002(1) ZLR 72 (S)
National Constitutional Assembly v The President & Others 2005(2) ZLR 310 (S)
24 Enforcement of protective provisions
Minister of Home Affairs v Bickle 1983 (1) ZLR 99 (SC)
Mandirwhe v Minister of State 1986 (1) ZLR 1 (SC)
Bull v Attorney-General & Another 1987 (1) ZLR 36 (SC)
Stambolie v Commissioner of Police 1989 (3) ZLR 287 (SC)
Zinyemba v Minister of the Public Service & Another 1989 (3) ZLR 351 (SC)
In re Masendeke 1992 (2) ZLR 5 (SC)
In re Wood & Another 1994 (2) ZLR 155 (SC)
Salem v Chief Immigration Officer & Another 1994 (2) ZLR 287 (SC)
S v Sithole 1996 (2) ZLR 575 (HC)
TS Masiyiwa Holdings (Pvt) Ltd & al. V Minister of Information 1996 (2) ZLR 754 (SC)
Mbire v The State SC 86/97
The United Parties v Minister of Justice, Legal & Parliamentary Affairs, Registrar of Genera
Matamisa v Mutare City Council &Another1998 (2) ZLR 439 (S l Elections,
29
Minister of Finance, ZANU (PF) & ZANU (Ndonga) SC 139/97

Page
S v Mavharamu 1998(2) ZLR 341 (S)

Jessie v Attorney General 1999(1) ZLR 121 (S)
Law Society &Others v Ministry of Finance(Attorney- General intervening) 1999(2) ZLR 231 (S)
In re Chinamasa 1999(2) ZLR 291(S) )
Zimbabwe Lawyers for Human Rights & Another v The President 2000(1) ZLR 274 (S)
Chavunduka &Another v Ministry of Home Affairs &Another 2000(1) ZLR 552 (S)
CFU v Ministry of Lands& Others 2000(2)ZLR469(S)
Hove v Chairman, Health Professions Council’s Disciplinary Committee 2000(2) ZLR

442 (S)
Muchero & Another v Attorney-General 2000(2) ZLR2 86 (S)
Marawa v Ministry of Transport &Others2000(2) ZLR 225 (S)
MDC v Chinamasa &Anor NNO 2001(1) ZLR 69 (S)
S vTsvangirai(1) 2001(1) ZLR 329 (S)
MDC& Others v Commissioner of Police &Others 2001(1) ZLR 8 (S)
MDC v Ministry of Justice2001(1) ZLR96(S)
Tsvangirai v Registrar-General& Another (1) 2002(1) ZLR 268 (S).
Registrar-General &Others vTsvangirai 2002(1) ZLR 204 (S)
Nyamandhlovu Farmers’ Association v Ministry of Lands & Another 2003(1) ZLR 185 (S)
In re Gwekwerere 2003(1) ZLR 625 (S)
Capital Radio (Pvt)Ltd v Broadcasting Authority of Zimbabwe& Others2003(2) ZLR 236 (S)
Associated Newspapers of Zimbabwe(Pvt) Ltd v Ministry of State for Information & Others
2004(1) ZLR 538 (S)
Chituku v Ministry of Home Affairs &Others2004(1) ZLR 36 (S)
ANZ (Pvt) Ltd v Ministry of State for Information & Others 2005(1) ZLR 222 (S)
Madzingo &Others v Ministry of Justice& Others 2005(1)ZLR 171 (S) )
Kachingwe & Others vMinistry of Home Affairs& Others 2005(2)ZLR 12 (S)

30
Mukonoweshuro v Mahofa 2005(2) ZLR 6 (S)

Page
Chirikure & Others v Kenmast Farming & Others 2005(2) ZLR 372 (S)
Paradza v Chirwa N O &Others 2005(2) ZLR94 (S)
Law Society of Zimbabwe v Minister of Justice, Legal and Parliamentary Affairs &
Another SC16/06
Bruce Irving Watson v S SC17/06
Claudious Marimo &Another v The Minister of Justice Legal and Parliamentary Affairs
& Others SC25/06
Gadzanani Nkomo &Another v S SC52/06
Bryford Njobvu v S SC61/06
Manica Zimbabwe Ltd &Others v Ministry of State for National Security, Lands, Land
Reform and Resettlement in The President’s Office and Another SC31/07
Movement for Democratic Change v Ministry of Justice, Legal and Parliamentary

Affairs & Others SC48/07
Shumba &Another v The Zimbabwe Electoral Commission & Another SC11/08
Chinanzvavana and Ors v Attorney General of Zimbabwe HC-H 73/2009
Mukoko v Commissioner General of Police & Another SC3/09.
Movement for Democratic Change & Another v the Judge President and Another
SC55/09
25 Savings in the event of public emergencies
26 Interpretation & other savings
Pretorius v Minister of Defence (1) 1980 ZLR 150 (GD)
Minister of Home Affairs & Others v Dabengwa & Another 1982 (1) ZLR 236
S v Ncube & Others 1987 (2) ZLR 246 (SC)
28.Presidential elections
31
Registrar-General &Others v Tsvangirai 2002(1)ZLR204(S)

Page
CHAPTER IV
THE EXECUTIVE
PART I
P ART 2
Vice-Presidents, Ministers & Cabinet
31D Ministers & Deputy Ministers
Nyakabambo v Minister of Justice, Legal & Parliamentary Affairs 1989 (1) ZLR 96 (HC)
31E(1) Ministers & Deputy Ministers
Quinnell v Ministry of Lands & Others 2004(2) ZLR 293(S
31H Executive functions of President
Forum Party of Zimbabwe v Minister of Local Government, Rural & Urban Development &
Others 1996 (1) ZLR 461 (HC)
Chirambasukwa v Minister of Justice, Legal & Parliamentary Affairs 1996 (2) ZLR 94 (HC)
31I Prerogative of mercy
31 K Presidential decisions
Zimbabwe Lawyers for Human Rights & Another v President of Zimbabwe & Another 2003(2) ZLR
444(S)
CHAPTER V
32
PARLIAMENT
Page
PART 1
Parliament
32 Legislative authority
Zimbabwe Teachers’ Association & Others v Chairman, Public Service Commission & Others
1996 (1) ZLR 91 (HC)
Others 1996 (1) ZLR 461 (HC)
1996 (1) ZLR 637 (SC)
PART 4
General Matters Relating to Parliament
42 Members sentenced to death or to imprisonment
43 Expulsion or suspension of members convicted of certain offences
49 Privileges of Parliament & members & officers thereof
PART 5
Powers & Procedure of Parliament
50 Legislative powers
Others 1996 (1) ZLR 461 (HC)
51 Mode of exercising legislative powers
S v Gatsi; S v Rufaro Hotel (Pvt) Ltd T/A Rufaro Buses 1994 (1) ZLR 7 (HC)
33
Page
Others 1996 (1) ZLR 461 (HC)

52 Alteration of the Constitution
PART 6
Elections & Sessions
58 Elections
PF-ZAPU v Minister of Justice (2) 1985 (1) ZLR 305 (SC)
61 Electoral Supervisory Commission
Zimbabwe Unity Movement v Mudede N.O. & Another 1989 (3) ZLR 62 (HC)
63 Committal to prison by Parliament
Bennet v Parliament of Zimbabwe & Others(2) 2005(1) ZLR 210 (S)
Bennet v Parliament of Zimbabwe (1) 2005(1) ZLR 155 (S)
Bennet v Constituency Elections Officer, Chimanimani & Others 2005(1) ZLR 258 (S)
CHAPTER VI THE EXECUTIVE

[Chapter (sections 64-72) repealed by Act 23/87]
65 Executive powers
66 Exercise of functions of President
Rushwaya v Minister of Local Government & Town Planning & Another 1987 (1) ZLR 15 (SC)
67 Prerogative of mercy

34
CHAPTER VII THE PUBLIC SERVICE

Page
75 Functions of Public Service Commission
Dube v Chairman, Public Service Commission & Another 1990 (2) ZLR 181 (HC)
Zimbabwe Teachers’ Association & Others v Chairman, Public Service Commission & Others
1996 (1) ZLR 91 (HC)
1996 (1) ZLR 637 (SC)
76 Attorney-General
Nyakabambo v Minister of Justice, Legal & Parliamentary Affairs 1989 (1) ZLR 96 (HC)
1996 (1) ZLR 637 (SC)
Chavunduka &Another v Commissioner of Police & Another 2000(1) ZLR 418 (S)
Raftopoulos NO v Ministry of Justice &Another 2000(1) ZLR 702 (S)
Sithole & Others v Ministry of Justice & Others 2000(1) ZLR 246 (S)
Mushayakarara & Another v Chidyausiku NO &Others 2000(1) ZLR 227 (S)
CHAPTER VIII THE JUDICIARY
79 Judicial authority
Monderwa Farm (Pvt) Ltd v BJB Kirstein (Pvt) Ltd 1993 (2) ZLR 82 (SC)
80 Supreme Court
S v Tekere & Others (1) 1980 ZLR 441
84 Appointment of judges
85 Acting judges
86 Tenure of office of judges
35
Page
688 Remuneration of judges
1996 (1) ZLR 637 (SC)
89 Law to be administered
Marisa & Another v Chikuhwa & Another 1994 (1) ZLR 320 (HC)
CHAPTER IX THE POLICE FORCE
93 Police Force & Commissioner of Police
Commissioner of Police v Rensford & Another 1984 (1) ZLR 202 (SC)
94 Members of Police Force
Commissioner of Police v Wilson 1981 ZLR 451
96 Functions of Police Service Commission
Commissioner of Police v Wilson 1981 ZLR 451
CHAPTER XII
M ISCELLANEOUS PROVISIONS
PART I
General
109 General provisions as to Commissions, etc.
1996 (1) ZLR 637 (SC)
111 Chiefs & Councils of Chiefs
Chipfuyamiti v Nyajina & Another 1992 (2) ZLR 148 (HC)
PART 2
Interpretation
36
113 Interpretation
Page
Nyambirai v National Social Security Authority & Another 1995 (2) ZLR 1 (SC)
1996 (1) ZLR 637 (SC)
Registrar-General & Others v Tsvangirai 2002(1) ZLR 204(S)
Capital Radio (Pvt)Ltd v Broadcasting Authority of Zimbabwe& Others 2003(2) ZLR 236 (S)
114 Supplementary provisions
1996 (1) ZLR 637 (SC)
SCHEDULE 2
S AVINGS IN THE EVENT OF PUBLIC EMERGENCIES
Minister of Home Affairs & Others v Dabengwa & Another 1982 (1) ZLR 236
Holland v Commissioner of Police 1982 (2) ZLR 29 (HC) Minister of Home Affairs v York 1982 (2)
ZLR 48 (SC)
Hickman & Another v Minister of Home Affairs 1983 (1) ZLR 180 (HC)
S v Slatter & Others 1983 (2) ZLR 144 (HC)
Minister of Home Affairs & Another v Dabengwa 1983 (2) ZLR 346
Attorney-General v Slatter & Others 1984 (1) 306 (SC)
Paweni v Minister of State (Security) & Another 1984 (1) ZLR 236 (HC)
Minister of Home Affairs & Another v Austin & Harper 1986 (1) ZLR 240 (SC)
37
Page
SCHEDULE 3
Registrar –general &others v Tsvangirai 2000(1) ZLR 204(S)
Biti &Anor v Ministry of Justice &Another2000(1)ZLR 177(S)
38
Page
2. Interpretation Act
The interpretation act occupies a significant role in our legal framework because of its universal
application to other statutes. This is aptly highlighted in the Acts preamble. According to
Devenish, the preamble is a recitation usually couched in polished and eloquent phraseology,
of the circumstances and reasons which have induced the legislature to enact the statute 26
Therefore the definition sections in interpretation can be gleaned from the preamble of the
statute. This is also true of section 6 of the interpretation act which postulates that;
“The preamble to an enactment and any punctuation in an enactment shall form part of the
enactment and may be used as aids to the construction of the enactment” see A.G v Prince
Ernest Augustus of Hanover27
The definition section of the Act seeks to assist in the allocation, meaning of words to other
statutes. Thus the Act contains a number of provisions and the definition included to assist in
the interpretation of other enactments. Moreover, the definition section provides meanings to
words reasonably expected in various statutes and that would assist in clarity to the law. For
instance the words include and means.
Furthermore, the definition section should be taken as a clear cut provision recognized at law
for interpretation especially to other statutes where reminiscent words are used.
2.1. Gender and Number provisions
Various statutes might relate to men, females or refer to singular words in their construction.
However section 9 of the Act provides that,
Rules as to gender and number
(1) Unless the context otherwise requires, words importing female persons include male persons and juristic persons
and words importing male persons include female persons and juristic persons.
[Subsection amended by Act 9 of 2004]
(2) Words in the singular include the plural and words in the plural include the singular.
According to section 4 of the Act, the provisions of the Act shall extend to every enactment thus
the words imporing masculine gender would also be taken to include females and singular would
include plural
2.3. Date and Commencement section 20

39
Page
26
Page 102
27
Section 20 of the Act provides for the date of commencement of statutory instruments and to
fully outline this aspect it is worth to reproduce the section.
Date of commencement of statutory instruments
(1) Every statutory instrument shall be published in or with or as a supplement to the Gazette and shall come
into operation on the date of its publication unless some other date is fixed by or under the statutory instrument for
the coming into operation thereof.
(Subsection as amended by s. 2 of Act 12/1997)
(2) Where by virtue of any law a statutory instrument comes into operation on the date of its publication in the
Gazette or a statutory instrument is expressed to come into operation on a particular day, such statutory instrument
shall be construed as coming into operation immediately on the expiration of the day preceding the date of such
publication or, as the case may be, such particular day:
Provided that, unless the Act under whose authority the statutory instrument is made expressly provides to the
contrary, where the date of such publication or, as the case may be, such particular day, is the same as that on which
the statutory instrument is made, it shall be construed as coming into operation at the time when it is made or, if a
later time is specified in the statutory instrument, at that later time.
Therefore every statutory instrument should be published and gazzeted according to the Act
thus without gazetting, the law is ultra vires the Act and bad at law as the Statute applies
universally by virtue of section 2. The statutory instrument shall also come into legal operation
on the day of its publication unless another date has been fixed or under the statutory
instrument.
Moreover, section 20(2) notes that upon gazette that statutory instrument shall come into
effect from the preceding date of the gazette. For instance if gazette on the 26 May 1990 then
it would come into effect at midnight thus beginning on 00:01 27 May 1990 unless a particular
date has been provided or applies. However if the date of the publication and the making of the
statutory instrument clash, the date of the making shall prevail28. Therefore statutory
instrument dates of commencement are clearly provided for and gazetting becomes the
genesis to law making.
2.4. Reference to time and distance
PartVIII , Sections 33 and 34
The section localizes time by limiting time to the Zimbabwe Local Stadard time when reference
is made to time, hence +2hours of the Greenwich Mean Time. Furthermore, section 33(2) in
counting the reckoning of time the particular day from which one reckons from shall not be
included in the period. The Act also applies to Court rules be it High, Labour , Magistrates of
Supreme Court rules inter alia. In addition, the last date of reckoning shall be included in the
counting of time as noted in section 33
(3).
40
Page
28
Section 20(2)
Furthermore, as noted in section 33(4), weekends and public holidays are not to be included in
reckoning time, thus if time expires on a weekend or public holiday, the time extends to the
next working day. In addition, section33(6) defines midnight when a day ends, weekends as day
not Saturday, Sunday or public holiday and also month being limited to a calendar month and
also a year without any quantification to a period of twelve months. Section 34 provides that
distance for purposes of any enactment shall be measured in a straight line or on a horizontal
plane.
2.5. Service of Documents
The act acknowledges service of documents by post only if the respective statute permits and
also section 40(1) provides for that as well. Moreover section 40(2) provides scenarios where
service personally would have been done properly where statute would be silent on procedure
in section 40(2)
41
Page
GUARDIANSHIP
3.1.
Section 3 of the Guardianship of Minors Act regulates mainly the guardianship of children born
in wedlock (legally) and upon divorce or living apart. Thus the father reserves the rights of
guardianship although it is exercised in consultation with the mother. Therefore under general
law for legitimate children, the father reserves the right of guardianship regardless of race. This
position subsists even on divorce/ separation if no sole guardianship has been granted.
However confusion still dodges the provisions clarity in light of Dongo v Registrar General
29
(although differentiated passport from juristic acts reserved for the guardian)
3.2. Guardianship, Custody and access rights of non-custodian parent of minor children where
the parents are separated of divorcing- section 4
According to section 3(b) of the Guardian of Minors Act, if sole guardianship has not been
granted, t shall remain with the father. However, according to section 4, upon application of
either parent, the court if satisfied would grant guardianship with or without custody to any
applicant. However, the non-custodian parent if it is the mother has rights to enforce for
custody but it is worth to note that fathers if they are the non custodian parent could apply to
deprive the mother in terms of section 5(3)(b) and (c). De Montile v DeMontile 30
Moreover, upon divorce the custody resolution is centered on the best interest of the child thus
the non custodian parent can challenge custody basing on the best interests of the child
Beckford v Beckford 31. See Section 3, section 5 Customary Law and Local Courts Act, section
10(2)(3) Matrimonial Causes Act, In re Mphosa32 and Ncube v Guni33
Access Relates to the right of a non-custodial parent to see and spend time with his/her child. If
the court does not prohibit access then the non-custodian parents’ rights are implied in terms
of section 6. Therefore, non-custodian parent can enforce the right but the court reserves the
discretion to whittle down the rights. Cruth v Manuel 34
3.3. Sole Guardianship and Sole Custody and its consequences
29
SC6/10
30
HB-20-03
42
31
2006(2)ZLR 377
32
HB115-07
Page
33
HH121-09
34
HH35-08
Sole Guardianship relates to the exclusion of the other parent to the representation on behalf
of the child in juristic acts. Therefore section 4 provides for the requirements to be satisfied for
its granting. For instance the best interests of the child. The effect of guardianship/custody
would seize if parties reconcile and live together again.
Consequences
In terms of section 3(a) and (b) the parent with sole guardianship/custody can by testamentary
disposition appoint any person to be guardian or custodian parent. According to section 3(c)
the father being excluded from guardianship shall not be entitled by testamentary disposition
appoint another as guardian. The sole guardianship excludes joint exercise and thus it is not
lightly granted by the courts.
3.4. Special provisions on custody of minor children upon the separation of the Parents.
Upon separation the mother of a minor shall commence to have sole custody until an order
regulating custody is made in terms of section 4. Moreover, if the father or anyone else
deprives the mother of custody, then she can apply in terms of section 5(2) for restoration of
the status quo.
Furthermore section 3 provides for applications by the mother for the maintenance of the
children from the father and also provides for applications for access by the noncustodial
parent or alteration of custody status based on best interests of the child. The maintenance Act
also applies as provided by section 5(5) and among other powers, the Court has power to
award other third parties custody if parents are unfit and not proper in terms of the law.
3.5. Appointment of Guardians to children without natural guardian.
Section 9 empowers the High Court of Zimbabwe being the upper guardian of children to
appoint when appropriate guardians to children without natural guardians. Moreover the
Master is alos empowered in terms of section 74 of the Administration of Estates Act. Hence
section 9(2) allows interested parties to apply if appropriate if require to be guardians for
children without natural guardians although the procedure requires gazetting in terms of
section 9(3) calling interested parties to oppose. In that respect, the court would then take into
account the best interests of the child in its decision making and if a tutor dative has already
been appointed, the rights of the tutor would override those of the appointed guardian.
Moreover the court can in terms of section 5(6) confirm/vary the procedings and any aggrieved
person can appeal in terms of section 5(8) and (9) to the High Court which is the upper guardian
of all the children.
43
3.6. Enforcement of orders relating to access and custody.

Page
This is mainly regulated by section 7 of the Act. The Act authorizes the use of the police force
and any person specified in the order. Moreover the police officers are empowered to use any
reasonable force to enter, remove the minor from the premises where the minor would be.
Furthermore any person who obstructs the officers shall be in terms of the Act guilty of an
offense in terms of section 7 (3). Lategan v Commissioner of Police35
44
Page
35
4. MAINTANENCE
Generally according to the Blacks Law Dictionary maintenance relates to the financial support given by
one person to another usually paid as a result of a legal separation or divorce. However in our law
maintance also extends to children by their parents for their upkeep. According to the Act, every
magistrates court shall within its area of jurisdiction, be a maintenance court. Moreover, in Zimbabwe,
Magistrates Courts fall either under civil or criminal divisions hence maintance falls under the civil
division. See Hove v Maravanyika
4.2. Dependent and Responsible person
According to the law dependents ought to be maintained by Responsible persons. Therefore it is worth
to define what these terms mean. The definition sections notes that, dependent in relation to a
responsible person, means any person whom that responsible person is legally liable to maintain. On the
other hand responsible person means a person who is legally liable to maintain another. Therefore in
terms of section 4(2) dependent person is the one who can make the claim.
4.3. Making of Maintenance orders
Briefly the process of reaching determinations for a process that culminates by virtue of section 4, 5 is
governed mainly by section 6. Thus the court can make an order as provided in terms of section 6 and
the responsible person ought to be legally liable to maintain and must have been unable to contribute
due to neglect.
Under customary law as noted by section 6(3), spouses and children are also qualified to be maintained
and section 6(4) provided that the court would appreciate inter alia general standard of responsible
persons, numbers to be supported inter alia. Court can also direct employer to pay on behalf of the
Responsible person 6(5). In addition section 6(6) provides other ways of paying that the court can order
to be observed. For instance, payment to the Clerk of Court among other ways.
4.4. Enforcement of Maintanance Orders
The Act is expreesly clear on the procedure to enforce the order by Maintanance Courts in Zimbabwe.
This is provided for in terms of PartIII a nd section 18-25 0f the Act. It is worth to note that for
enforcement just like any other civil judgement, it ought to be registered thus section 18 emphasises
registration of Maintanance orders. According to section 19 it notes that if the one ordered to maintain
neglets the order, the cleck of the Maintanance Court can by summons through a notice inquire on the
default. Moreover, the Act allows transmission of orders to be enforced in other provinces in terms of
section 20 and also orders can alsop be enforced as garnishee orders in terms of section 22 which brings
45
into the arena the application of the Magistrates Court Act(7.10). Thus the clerk would have to take such
steps for the civil enforcement as noted in terms of section 22(2).
Page
Inadition, according to section 23 of the Maintenance Act, failure to comply with a maintenance order is
a criminal offense punishable in terms of section 23 and also in terms of section 24 and can be lead to a
custodial sentence thus remaining in jail. However section 25 outlines the requirements that if satisfied
can lead to being released from jail for instance payment of the accrued maintenance.
4.5. Termination and Variation of Maintenance
The process of termination and variation of maintenance is mainly governed in terms of sections 11 and
12 respectively (also read the section Maintenance law in general for greater details hereafter). Thus an
order in favour of a child would terminate upon grounds provided in section 11(1) (a)-(d) are satisfied
and established in a court of law. Furthermore, as noted in terms of section 11(3), maintenance for a
wife would for instance terminate upon remarriage, divorce inter alia although it is subject to subsection
4 which ought to be satisfied and read together in the interpretation of section 11.
In terms of section 8 variations of orders are available and also in terms of section 11 respectively
although the latter applies for absent persons when orders for maintenance would have been made.
The reproduction of the abovementioned section would assist in clearly explaining the law regulating
variations thus sections 8 and 11 postulate that,
Section 8
Variation or discharge of direction or order
(1) Subject to this section, an application for the variation or discharge of a direction or an order may be
made to a maintenance officer of the maintenance court where the order is for the time being registered in terms of section
eighteen.
(2) An application referred to in subsection (1) shall—
(a) be on affidavit; and
(b) state the grounds upon which the variation or discharge is sought.
(3) Subject to subsections (4) and (5), where an application has been made to him in terms of this section, the
maintenance officer shall cause a notice to be served on all persons affected by the direction or order, as the case may be, to
appear before the maintenance court on a date to be specified in the notice and to show cause why the application should
not be granted.
(4) The maintenance officer shall, if he considers that an application made to him in terms of this section is
frivolous or vexatious—
(a) decline to cause a notice to be served in terms of subsection (3); and

46
(b) refer the application to the maintenance court.

Page
(5) If the maintenance court considers that an application referred to it in terms of subsection (4)—
(a) is frivolous or vexatious, it shall summarily and without holding an inquiry in terms of subsection (6)
order that the application be dismissed; or
(b) is not frivolous or vexatious, it shall direct the maintenance officer to cause a notice to be served in
terms of subsection (3), and subsections (6) to (8) shall thereafter apply and be followed.
(6) On the day specified in the notice referred to in subsection (3) the maintenance court shall inquire into the
application or may refer the inquiry to the maintenance court of the province or district where the person in whose favour
the order or direction, as the case may be, was made, is residing.
(7) If the maintenance court holding an inquiry in terms of subsection (6) is satisfied that—
(a) there are no longer any reasons for the direction or order remaining in force, it may discharge the direction
or order; or
(b) the means or circumstances of any of the parties have altered since the making of the direction or order
or any variation thereof, it may vary the direction or order subject to subsections (3), (4), (5), (6) and (7)
of section six which shall apply, mutatis mutandis, in relation to any such variation; or
(c) the manner in which payments are to be made under the order or direction should be a ltered, it may vary
the order or direction appropriately, subject to subsections (5), (6) and (7) of section six, which shall apply,
mutatis mutandis, in relation to any such variation.
(8) An inquiry referred to in subsection (6) shall be held in the presence of the responsible person or in his
absence upon proof of the service upon him of the notice referred to in subsection (3).
Section 11
Termination of order
(1) Subject to subsection (4), an order made in favour of a child shall, with respect to that child, cease if and
when—
(a) the child dies or is adopted by another person; or
(b) in respect of the marriage between his parents, an order of divorce or judicial separation or decree of
nullity is made which includes an order for the maintenance of the child; or
(c) the child marries; or
(d) subject to subsection (2), the child attains the age of eighteen years.
47
(2) A maintenance court where an order is for the time being registered may, upon an application being made
Page
to it by or on behalf of a child who attains the age of eighteen years and in whose favour an order has been made and upon
due inquiry to which section eight shall apply, mutatis mutandis, extend the order for such period and on such terms as the
maintenance court thinks fit.
(3) Subject to subsection (4), an order made in favour of a wife shall, with respect to the wife, cease if and
when—
(a) the wife dies or remarries; or
(b) an order of divorce or decree of nullity is made in respect of the marriage; or
(c) an order of judicial separation is made which includes an order for the maintenance of the wife.
(4) Where an order has been made in favour of more than one person and the amount due to each person under
the order has not been apportioned, the order shall not cease with respect to any of those persons in circumstances
specified in subsection (1) or (3) but shall remain in force until varied or discharged in accordance with section eight.
MAINTANENCE LAW IN GENERAL36
Parents of a child born out of wedlock have a duty to maintain the child each contribution being
determined by the means of the parties so even though we say a child born out of wedlock has no
father, the biological father once paternity is established is legally liable to maintain the child. On the
other hand, under traditional customary law the father of a child born out of wedlock had no
responsibility to maintain his child unless he obtained custody. We have already discussed the ways in
which the father can get custody. Colonial courts took view that such a father was not
A responsible person for purposes of the Maintenance act. However in terms of Section 6 (3) (b) of the
Maintenance Act: For purposes of determining whether or not a person who is subject to customary law
is legally liable to maintain another person, the court shall regard the parents of the child as being
primarily and jointly responsible for the maintenance of that child until the child turns 18 or becomes
self-supporting. Therefore the parents under customary law are primarily responsible for looking after
the children .Parents have a duty to look after their children both under customary and general law.
Each parent must contribute according to their means. Duty begins as soon as child is born or adopted.
Whilst living together one spouse who feels that the other is not looking after the children whilst parties
are staying together can actually sue for maintenance but in practice this rarely happens. Most women
say that this will be the end of the marriage if they so much as mention that they are going to court to
claim maintenance. If marriage is in community of property duty to maintain children rests on husband
as administrator of the joint estate. If married in community of property mother has a duty to contribute
even single handily if husband has no means and she has means. Under RD law if parents separate, the
one who has custody can apply to court to have the other parent pay maintenance. In Zimbabwe as we
have already dealt with if parents separate, the mother should have sole custody until an order
regulating custody is made. This is in terms of the GUARDIANSHIP OF MINORS ACT. The mother can
48
3636
Greatly acknowledge and appreciate Ms S. Chirawu for the material used in that section, LLB ( S) University of
Page
Zimbabwe Msc IR ( University of Zimbabwe) LLM ( American University, Washington College of Law) PhD (
Candidate)
approach the Children's court (formerly the Juvenile court) for an order that the father pays
maintenance during the time that the mother has custody. If the children’s court orders that the father
must be given custody after he makes an application, then the court can also order the mother to pay
maintenance for the child i.e. to contribute
The Maintenance Court is also empowered to order what is called maintenance pended lite. It relates to
maintenance pending litigation. If a divorce action is instituted, pending the hearing of that action, one
parent may apply for interim custody and maintenance pending the determination of the main divorce
action. This is a temporary remedy meant to ensure that a parent who does not have custody and who is
neglecting his/her duty of contribution towards maintenance made to contribute and also that the
children do not suffer undue hardship until the main divorce matter is heard.
REQUIREMENTS TO SUCEED
 It’s not necessary for the part that is seeking maintenance pendete lite to show that he/has a
reasonable prospect to succeed in the main action unless they are seeking maintenance for
themselves.
 No need to show that there is a prima facie case for divorce if maintenance is sought only for
the children.
 If an order for maintenance already exists, it is not competent to seek maintenance pendete lite.
Proper thing to do is to seek variation of original order.
See: Lindsay vs. Lindsay case
Furthermore, when the final case is heard and a final order is granted, the order for maintenance
pendete lite is discharged and replaced by an order covering the post-divorce period. Divorce does not
end the duty of both parents to look after the children until they turn 18 or become self-supporting
whichever happens first. The sins of the parents are not visited on the children so that if any issue arises
then the best interests of the children is the paramount consideration e.g. if one parent commits
adultery and has custody of the children this does not mean that the innocent spouse should not pay
maintenance. In an application for divorce, judicial separation or nullity of marriage its required to also
making sure that adequate maintenance is provided for the children Section 10 ( 1 ) i.e. court may
require evidence to be heard and section 10 ( 2 ) b to order payment of maintenance – Matrimonial
Causes Act Such sum may be a lump sum or periodic maintenance ( section 7 ( 1 ) and to follow the
guidelines in section 7 ( 4 )- Matrimonial Causes Act . This applies to both customary and general law
marriages. Therefore it is clear that despite a divorce, children are entitled to be maintained by their
own parents each according to their means.
For step children under RD law, no duty on step parent to maintain step child. In terms of section 83 of
the Children's Act step parent has an obligation to maintain step child. In W vs. W Gubbay held that step
49
parent meant the relationship between a man and the child born to the man's wife by another man.
Page
Accordingly for purposes of the act the wife's illegitimate child is a step child and the husband is the step
parent. Step parent does not include step mother so there is no legal duty on the latter to maintain a
step child.
Maintenance is dealt with in terms of the Maintenance Act Cap 5:09. In terms of section 3 of the Act
every magistrate court shall be a maintenance court within its area of jurisdiction for purposes of the act
.However one can still apply to the High Court since it has original jurisdiction although this is
discouraged see: Hove vs. Maravanyika case Responsible person is defined in section 2 of the Act. 40.
According to section 4 ( 2)-dependent or some other person having custody of child e.g. social welfare
officer How is application made : Section 4 ( 1) complaint on oath What does person who is claiming
maintenance have to aver and prove before court makes order: Section 6 ( 2 ) Court has to be satisfied
about these before making a maintenance order. A summons is issued by the maintenance officer
calling upon the respondent i.e. responsible person to appear before the appropriate court on a stated
date and show cause why a maintenance order should not be made against him/her If a maintenance
order is made as part of a divorce order in the High Court, it can be registered with the maintenance
court in terms of Section 18 (2) of the act. The applicant simply takes the original or certified copy of the
High court order to the clerk of court who registers it and allocates a case number. Section 10: Effect of
adultery on a maintenance claim. Most Magistrates make the mistake of holding a trial instead of an
inquiry. Section 13 deals with the procedure and what the court can do. In reality
Because of the volume of work many magistrates do not invoke section. Many maintenance hearings
turn into slinging matches.
MAINTENANCE UNDER CUSTOMARY LAW Before the coming into effect of the customary law and local
courts act, all maintenance claims under customary law were dealt with at the community court. Section
6 (3) deals with who is liable under customary law for maintenance and the parents are primarily
responsible for this.
ARREAR MAINTENANCE In the Musakwa case the Supreme court came to the conclusion that arrear
maintenance was not claimable if there was no prior maintenance order in existence. It is submitted
that the SC ignored section 6 (6) (C) which allows the court to make an award of arrear maintenance. If
there is in existence a maintenance order it can be enforced by any of the ways set out in the act. RD
common law recognized claims for arrear maintenance see Woodhead case and also P vs. C. The
decision in Musakwa was wrong. It has now been overridden in respect of children born in wedlock by
Section 11 (1) of the Matrimonial causes Act. See Maravanyika vs. Hove HOW IS THE MAINTENANCE
ASSESSED? The amount is assessed according to the means of the parties. The parties should be candid
with the court and furnish their income and expenditure. The party who is making the claim furnishes
the court with a list of expenses which is only an estimate. The court shall have regard to the factors set
out in section 6 (4)
The classic case and the leading case is the Gwachiwa vs. Gwachiwa case which has led to what is
50
commonly known as the Gwachiwa formula. This was an arithmetic formula that the court applied.
Gwachiwa formula: Allocate equal shares of income to each parent and half a share to each child. 2
Page
shares for husband, two shares for wife and one share for child to make a total of five shares. So hubby
gets 2/5 wife 2/5 and child 1/5. Practically it works as follows:
of the father's household and the mother's

household. The total gives the total money available per month.
households and one share to each child in each of the two household.
child's share and two shares will represent an adult share.
e mother as maintenance in
order to ensure that the child who is the subject matter of the dispute receives a child's share.
special features which may arise in the case under consideration.
The fault factor should not be taken into account. The Gwachiwa formula is only a starting point and the
maintenance can be adjusted upwards or downwards depending on the circumstances. In some cases it
may not even be suitable as a starting point. Problem that courts face is that many respondents bring
fake pay slips or proof of income and Magistrates do not invoke section 13 and 14. Some complainants
also exaggerate their claims in the belief that the court will reduce the figure anyway so why not claim a
higher figure in the first place. CAN A MAINTENANACE ORDER BE VARIED? Yes it can and this is
provided for in terms of section 8 of the Act. The Matrimonial causes Act also provides in section 9 for
variation, amendment, suspension or rescission of order FOR GOOD CAUSE SHOWN. SEE SMITvs SMIT
The variation in section 8 of the Maintenance act applies to all orders made by the magistrate’s court
and all those from the High Court but registered with the Magistrates court and section 9 of the
Matrimonial causes act applies to all orders made by the High Court and the Magistrates court as part of
divorce orders. The onus is on the applicant to prove that circumstances have changed and that the
interests of the children necessitate a variation and that the respondent has the means an ability to
comply with the variation. Examples of changed circumstances
t of living gone up
upkeep
The applicant must not take on new responsibilities e.g. new wives so as to run away from maintenance
51
payment. 42
Page
Out of wedlock or in terms of an UCLU are covered by the Maintenance Act Section 11.
Maintenance Act and Section 8 Matrimonial Causes Act). See Maeresera and Jesse cases
no age limit is imposed, maintenance order continues until child is self-supporting and does not
necessarily terminate when child turns 18.
EFFECT OF APPEAL AGAINST MAINTENANCE ORDER An appeal does not automatically suspend
operation of order appealed against - Section 27 Maintenance Act: See Nyereyegona case. Also ne can
apply for partial or complete execution. Section 27 does not apply to orders made in the High Court –
Chakras vs. Chakras S -30-02 If appeal allowed court has a discretion on repayment of money already
paid For enforcement of maintenance orders outside Zimbabwe see the Maintenance Orders
(Facilities for enforcement) Act Cases 43
Murimo vs. Tsivai SC 10/86 P vs C 1978 RLR 80 Hora vs Tafamba 1992(2)ZLR 348 Dioniso vs Dioniso
1981 (1) ZLR 118 Muzondo vs Muzondo 1985(2) ZLR 240 Kanis vs Kanis 1974 ( 1) ZLR 129 Pahla vs Pahla
1987 (20 ZLR 70 W vs W 1978RLR 429 Musakwa vs Musakwa SC 11/84 Muchada vs Muchada HH-346-
86 Quickfall vs Swan 1975 (3) SA 82 Edwards vs Chizema 1992(2) ZLR 14 Marufu vs Moyo 1983 ZLR 386
Black vs Black 1987 ( 1) ZLR 133 Webb vs Webb SC 154/86 Daines vs Daines and another 1980 ZLR 141
Wilson vs Wilson 1981 ZLR 21 Burgess vs Benatar 1975 ( 1) SA 782 Mudzingwa vs Mudzingwa 1989 ( 2)
ZLR 182 Chibaya vs Chibaya 1985 ( 2) ZLR 240 Muzoriwa vs Chimowa CS 1/89 Mlambo vs Tshuma SC
3/89 Madonko vs Nkosi SC 9/89 Mutsipa vs Mutsipa SC 76/89 Tshuma vs Sibanda SC 163/89 Cock vs
Cock SC 135/90 Laxma vs Laxman SC 177/90 Mutenhure vs Mutenhure HH-300-90 Maeresera vs
Maeresera 1988 ( 1) ZLR 193 Mafunda vs Mafunda SC 112/92 Nyereyegona vs Marume SC 92/92
Bapata vs Bapata SC 241/92 Gondo vs Gondo SC 235/92 Acutt vs Acutt HC-H-99/92 Foote vs Foote
1984 ( 2) ZLR 28 Smit vs Smit 1994 ( 2) ZLR 149 Mverechena vs Mverechena 1988 ( 1) ZLR 205 Lindsay
vs Lindsay 1992 ( 1) ZLR 323 and 1993 (1) ZLR 195 Taneka vs Taneka 1993 ( 2) ZLR 9 Moyo vs Matsika
1993 ( 1) ZLR 108 Flack vs Flack 1997 ( 1) ZLR 505 Maravanyika vs Hove 1997 ( 2) ZLR 88 Keates vs
Keates 1995 ( 1) ZLR 380 Mandeya vs Mandeya HH-93-08: Plaintiff sought maintenance for herself
pending receipt of her share on the disposal of the matrimonial assets. Held that post divorce
maintenance is based on need. Cormick vs Cormick HH- 15- 2007: Variation, consent paper, agreed
that respondent had no means and applicant could not now be seen to want to claim maintenance
CASES
1. Murimi vs Mchina HH -283-12 : Down ward variation
2. Thorton vs Thorton HH -143-09

52
HOW ARE MAINTENANCE ORDERS ENFORCED ?

Page
- Section 18 ( 1 ) ( 2 ) ( 3 )
- Section 19 and shall be enforceable in any of the ways set out in the
Magistrates court for the enforcement of judgement - writ of execution, contempt of court, garnishee
order , civil imprisonment .
- Section 19 Maintenance Act.
- Section 6 ( 5 ) - direction against employer.
salary of responsible person - Section 7 ( 1 ) of the Maintenance Act
- Tax though takes precedence
e effect of garnishee order - Section 22( 1 ) of the Maintenance Act
- Section 23 –
Employer guilty if fails to comply with direction - Section 24
DISCHARGE AND TERMINATION OF MAINTENANCE ORDERS AND/OR DIRECTIONS
- Section 8 ( 7 ) of
the Maintenance Act
rt and discharged by the Magistrates Court , the order is subject to

automatic review by a judge of the High Court - ( Section 18 ( 4 ) maintenance Act.
maintenance.
- Section 11 of the Maintenance Act. Applies only to orders made by

the Magistrates court and not those from the High Court in terms of the Matrimonial Causes Act which
have been registered . These are covered by section 8 of the Matrimonial Causes Act.
Note that the Matrimonial Causes Act applies to married persons so those children born out of wedlock
or in terms of an UCLU are covered by the Maintenance Act Section 11.
d the child's eighteen years ( See section 11

Maintenance Act and Section 8 Matrimonial Causes Act). See Maeresera and Jesse cases
53
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necessarily terminate when child turns 18.

EFFECT OF APPEAL AGAINST MAINTENANCE ORDER An appeal does not automatically suspend
operation of order appealed against - Section 27 Maintenance Act : See Nyereyegona case . Also ne can
apply for partial or complete execution. Section 27 does not apply to orders made in the High Court –
Chakras vs Chakras S -30-02 If appeal allowed court has a discretion on repayment of money already
paid For enforcement of maintenance orders outside Zimbabwe see the Maintenance Orders
(Facilities for enforcement) Act Cases 43
Murimo vs Tsivai SC 10/86 P vs C 1978 RLR 80 Hora vs Tafamba 1992(2)ZLR 348 Dioniso vs Dioniso
1981 (1) ZLR 118 Muzondo vs Muzondo 1985(2) ZLR 240 Kanis vs Kanis 1974 ( 1) ZLR 129 Pahla vs Pahla
1987 (20 ZLR 70 W vs W 1978RLR 429 Musakwa vs Musakwa SC 11/84 Muchada vs Muchada HH-346-
86 Quickfall vs Swan 1975 (3) SA 82 Edwards vs Chizema 1992(2) ZLR 14 Marufu vs Moyo 1983 ZLR 386
Black vs Black 1987 ( 1) ZLR 133 Webb vs Webb SC 154/86 Daines vs Daines and another 1980 ZLR 141
Wilson vs Wilson 1981 ZLR 21 Burgess vs Benatar 1975 ( 1) SA 782 Mudzingwa vs Mudzingwa 1989 ( 2)
ZLR 182 Chibaya vs Chibaya 1985 ( 2) ZLR 240 Muzoriwa vs Chimowa CS 1/89 Mlambo vs Tshuma SC
3/89 Madonko vs Nkosi SC 9/89 Mutsipa vs Mutsipa SC 76/89 Tshuma vs Sibanda SC 163/89 Cock vs
Cock SC 135/90 Laxma vs Laxman SC 177/90 Mutenhure vs Mutenhure HH-300-90 Maeresera vs
Maeresera 1988 ( 1) ZLR 193 Mafunda vs Mafunda SC 112/92 Nyereyegona vs Marume SC 92/92
Bapata vs Bapata SC 241/92 Gondo vs Gondo SC 235/92 Acutt vs Acutt HC-H-99/92 Foote vs Foote
1984 ( 2) ZLR 28 Smit vs Smit 1994 ( 2) ZLR 149 Mverechena vs Mverechena 1988 ( 1) ZLR 205 Lindsay
vs Lindsay 1992 ( 1) ZLR 323 and 1993 (1) ZLR 195 Taneka vs Taneka 1993 ( 2) ZLR 9 Moyo vs Matsika
1993 ( 1) ZLR 108 Flack vs Flack 1997 ( 1) ZLR 505 Maravanyika vs Hove 1997 ( 2) ZLR 88 Keates vs
Keates 1995 ( 1) ZLR 380 Mandeya vs Mandeya HH-93-08: Plaintiff sought maintenance for herself
pending receipt of her share on the disposal of the matrimonial assets. Held that post divorce
maintenance is based on need. Cormick vs Cormick HH- 15- 2007: Variation, consent paper, agreed
that respondent had no means and applicant could not now be seen to want to claim maintenance
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5. MARRIED PERSONS PROPERIES ACT 5:12
In Zimbabwe there are three types of marriages recognized. This recognition has great bearing
on many aspects like legitimacy of children, distribution of property inter alia. Under this
section we discuss the effect of the Marriages Persons Properties Act on the possession of
marriage property in marriages. However for a greater understanding, it is prudent to generally
discuss marriages and the law.
Types of Marriages
 A monogamous marriage regulated in terms of the Marriages Act 5:11

 Potentially polygamous marriage regulated by the Customary Marriages Act 5:07
 Unregistered Customary Marriages Act which in South Africa is recognized as a marriage
as was noted in Ngwenyama case 2012 474/11 ZASC
In terms of the Marriages Act all Zimbabwean above the legal age are allowed to contract a
marriage in terms of the Marriages Act and it is principally regulated by general law. It permits
only one spouse at a time and it is a criminal offense to breach such conditions. On the other
hand the Customary Marriages Act regulates marriages in terms of customary law and it seeks
to consolidate the dual legal system as enshrined in the Constitution. In addition it is potentially
polygamous. Moreover, the unregistered Customary Union is not fully recognized as a marriage
except for certain limited purposes although section 3(1) of the Customary Marriages Act
appears to be providing otherwise as far as recognition is concerned. It is valid for purpose like
guardianship, status of children, custody, inheritance under customary law, maintenance,
damages for adultery to the husband Carmichael v Moyo, however there cannot be any divorce
since parties are not married to each other.
55
See Katiyo v Standard Chartered Bank

Page
Chinho v Chinho HH96/06
Makova V Makova 1998(2)ZLR82
Makwiramiti v Fidelity Life Assuarance 1998(2)ZLR421
Effect of the Married Persons Properties Act
In Zimbabwe, section 2 of the Act notes that marriages are automatically out of community of
property unless parties signed an ante nuptial contact establishing community in property, as
opposed to the position in South Africa which has a system of marriage that is automatically in
community of property.
Latif v Latif SC49/04, Kung v Kung, Galante v Galante
In terms of section 2 of the Act, marriages entered into after 1 January 1929 are automatically
out of community of property. Thus for those married before January 1929, their status would
be akin to the South African system unless they voluntarily waive their rights through a notarial
deed registered with the Deeds Registry of Zimbabwe. In addition section 4 emphasizes that
spouses intending to waive their rights should specify the property intended to be out of
property and also these developments should be registered to validate the process.
Although the Act does not define marriage, prima facie it appears that unregistered unions or
even registered ones are excluded from the operation of the Act. However a closer reading of
section 7 of Matrimonial Causes Act regulates the distribution of property in all marriages and
unions thus it substantially reduces the Married Persons Properties Act obsolete.
MARRIAGE OUT OF COMMUNITY OF PROPERTY
 Arises automatically when the spouses are non Africans and there is no ante nuptial
contract
56
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 Seems that now because of the repealing of section 13 of the Customary marriages Act,
this now applies also to Africans married under general law as far as movable property is
concerned.
 Each spouse retains his /her property that they brought into the marriage and the
property they each acquired during the marriage.
 Wife is not under the control of her husband. She can enter into contracts, sell her own
property , enter into partnerships and go to court without her husband's help.
 At dissolution of marriage by death or divorce, each spouse retains his or her own
property and court has no power to interfere and alter or adjust the property rights of
spouse using the fairness or equity and justice principle
 A imprudent spouse is prevented from ruining his/her spouse because there is no
community of debts. In reality however most spouses merge their property and allocate
each other responsibilities in running the household. One spouse may be allocated the
responsibility of buying durable good for example so that it becomes a legal fiction at
the end of the day for each to walk away with what they brought into the marriage.
 Some wives stay at home and take care of the family. This role is then considered
unimportant in the out of community realm because their domestic contribution is not
taken into account. There is therefore no equity there
MARRIAGE IN COMMUNITY OF PROPERTY AND PROFIT AND LOSS
 Movable and immovable property ,present and future including debts held jointly and
spouses hold equal shares regardless of their contributions.
 Joint estate falls automatically under administration of husband - has power to
encumber, alienate or deal with property as he sees fit.
 Husband can donate, sell or destroy estate and is not liable in damages to his wife for
any maladministration
 At dissolution by death or divorce, community comes to an end and one half each goes
57
to the spouse in the event divorce and half goes to the heirs of a deceased spouse. BUT
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NOW COURTS CAN DO SO IN TERMS OF THE MATRIMONIAL CAUSES ACT THAT

PROVIDES AN EQUITABLE RE-ALLOCATION OF COMMUNITY ASSETS AT THE TIME OF
DIVORCE. Marital power highly prejudicial to women See : Chiromo vs Katsidzira 1981
ZLR 418
DISPOSING OF PROPERTY DURING SUBSITENCE OF MARRIAGE
Semwayo and another vs Chatara and another HB -48-07: Wife cannot stop husband from
disposing of immovable property registered in his own name unless she proves connivance.
See also Muswore vs Makanza Magurenje vs Maposa ; Wife sold house to a 3rd party
whilst on separation. Husband could have sale set aside by showing that wife had sold
property to defeat his rights.
cases
Sperling vs Sperling 1975 ( 3) SA 707
Frankel s Estate and another vs the Master 1950 ( 1) SA 220
Brown vs Brown 1921 AD 478
Chapendama vs Chapendama 1998 ( 2) ZLR 18 – Tacit universal partnership used
Mashingaidze vs Mashingaidze 1995 (1) ZLR 219 – Need to plead a cause of action properly
Mtuda vs Ndudzo HH – 103-00 : Tacit universal partnership – requirements set out-unjust enrichment
used
Matibiri vs Kumire 2000(1) ZLR 492: Claim of universal partnership dismissed
Chapeyama vs Matende and another
Jengwa vs Jengwa
Mashingaidze vs Mugomba
Marange vs Chiroodza
Feremba vs Matika
Ntini vs Masuku
Muchapondwa vs Madake
Goncalves vs Rodrigues : Contrast – women who are co-habiting seem to have better rights
58
Nyamwanza vs Masiiwa HC -95-2000

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6. COMPANY ACT (Chapter 24:03)
The Companies in Zimbabwe are greatly regulated by the Companies Act and mainly its
application to Companies is provided in section 4 which emphasizes on the applicability of the
Act to even companies that were created before 1 April 1952. For companies that would have
existed before 1 April 1952, the Act is deemed to apply and all the procedures in the Company
must be done in accordance with the Companies Act (24:03)
8.1. Share Capital37
Authorized share capital
The critical issue here is that the authorized share capital of the company is already fully issued
and therefore no new shares can be issued in the company unless the authorized share capital
is increased. Section 87 of the Act allows a company to increase its share capital by special
resolution and s.89 requires the company to give notice to the Registrar of any increase in the
share capital of the company within one month after the passing of the special resolution.
Section 133 provides that a special resolution requires a majority of not less than 75% of such
members entitled to vote as are present in person or by proxy at a general meeting of which
not less than 21 days notice has been given, specifying the intention to propose the resolution
as a special resolution and at which members holding an aggregate of not less than 25% of the
total votes of the company are present in person or by proxy. A shorter notice period is
permitted provided that this is agreed by a majority of members entitled to attend and vote at
the meeting and holding not less than 95% of the total votes of all the members or by all the
members.
Chronologically the steps to be taken are as follows:
. A general meeting will be convened to pass a special resolution authorizing the increase in the
company. share capital. At this meeting the members will also pass an ordinary resolution
giving the directors their approval to the issue of the new shares.
. The Secretary will draw up a timetable for the work to be done.
. A Board meeting will be convened to approve a draft circular to shareholders advising them of
the rights offer. A rights issue is an issue of new shares to existing shareholders in proportion to
the number of shares they already hold. Once the authorized share capital of the company has
59
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been increased, existing shareholders will be advised of the proposed rights issue and given a
certain period within which to exercise their option to take up new shares.
. Since Green Valley Enterprises is a public company, the Stock Exchange will have to be
notified.
. The offer documents, comprising letters of allocation and forms of acceptance and
renunciation will be sent out.
. After the offer closes, a board meeting will be called to make a formal allotment of shares.
. The share certificates will then be prepared and sent to shareholders.
. A return of allotments in form CR2 will be lodged with the Registrar of Companies within one
month by the Board formal allotment resolution.
. The register of allotments must be updated in terms of s.71.
. Finally the nominal value of the share is $8·00 each but they are being issued to members at
$10·00 each. In other words, the shares are being issued at a premium and the provisions
relating to the share premium account (sec. 74) apply.
Section 74(1) reads as follows:
If a company issues shares at a premium whether for cash or otherwise, a sum equal to the
aggregate amount or value of the premiums on those shares shall be transferred to an
account called .the share premium account. and provisions of this Act relating to the
reduction of a company.s share capital shall apply except as provided in this section as if the
share premium account were part of its paid-up capital..
Types of share capital
Shares are basically divided into four different classes, namely ordinary shares, preference
shares, redeemable preference shares and deferred shares. Ordinary shares, as the name
implies, constitute the residuary class in which everything is vested after the special rights of
other classes, if any, have been satisfied.
They confer a right to the equity in the company. As a form of company security, ordinary
shares are the riskiest and it is for this reason that they are referred to as .equities. or .risk
capital. Ordinary shareholders bear the risk that payment is postponed until a dividend is
declared and after the payment of preference shareholders. This remains the same even when
regarding the repayment of capital. Ordinary shares are not fixed and where the company is
60
doing well they may be paid the residuary distributable profit, divided proportionally by
ordinary shareholders. Dividend percentage. This is the same with the repayment of capital or
Page
where the company is distributing the remaining capital or assets.

However, this is only possible where preference shareholders do not have a right to participate
in the surplus assets. Ordinary shareholders normally comprise the bulk of company.s shares. In
most cases they are the majority and participate in most of the decision making within the
company and are better placed in exercising their right to vote. They overally have control over
the running of the company. It is usually spelt out in the Company.s Articles of Association that
whenever a fresh issue of shares is made, these should be offered to ordinary shareholders,
usually at a lower price than outsiders.
Preference Shares:
These confer on holders, preference over other classes of shareholders in respect of either
dividends, repayment of capital or both. Preference shares include a right to receive dividends
of specified, or of a fixed, rate of dividend. An example would be 10% of their nominal value of
profits each year before any dividend may be paid out to holders of ordinary shares. Preference
shares are cumulative unless the articles or terms of issue state otherwise. This means that if
the company cannot pay a dividend in one year the arrears must be carried forward to future
years. If preference shares are non-cumulative and the company cannot pay the dividend, the
arrears are not carried forward and so the preference shareholder will not receive a dividend
for that year. Preference shareholders have a right to sue, for payment of dividend from the
available profits where the Articles of Association specifically confer this right and thus would
be contractually binding. Unless the articles provide to the contrary, preference shares carry
the same voting rights as other shares. However, preference shareholders. voting rights are
usually restricted to specified circumstances which directly affect them for example when the
right of preference shareholders are being varied.
In Liquidation, preference shareholders do not automatically have a right to prior return of their
capital. If the articles are silent preference shareholders and ordinary shareholders rank
equally.
Redeemable Preference Shares
Section 76(1) of the Companies Act [Chapter 24:03] gives the company powers to issue
redeemable shares of any class provided that the articles so allow and also provided that the
shares are fully paid for. Redemption of shares must be effected out of profits of the company
which would otherwise be available for dividend or out of proceeds of the fresh issue of shares
made for the purposes of redemption. In most cases, the terms of redemption of redeemable
shares must be prescribed by the articles or to be determined as provided in those articles i.e.
how the company would buy back its own shares. Where the company is being wound up, the
redemption or purchase may be enforced against the company unless the redemption or
purchase was for a date later than that of commencement of winding up or the company could
not, before the winding up is completed, have lawfully paid a dividend to shareholders of an
amount equal to that of the costs of the redemption or purchase. In a case where the company
is being wound-up, all other creditors must be paid first and then shareholders who hold
61
preferential shares before payment of amounts which are liable to be paid out for a
Page
redemption or purchase of shares; per s.110 of the Insolvency Act [Chapter 6:04]. Deferred
Shares/Founders Shares: These are shares which the holder rights are deferred until the claims
of other classes of shares are satisfied. Sometimes this class of shares is accepted by the sellers
or vendors of business as part considerations for the sale. Deferred/founders shares have the
same relationship with ordinary shares that ordinary shares have with preference shares. A
significant amount of risk is attached to these shares given that they rank below ordinary
shares. However, this risk investment is often rewarded by a large share of surplus profits
assets after the ordinary shareholders have been paid their minimum dividend or repaid their
capital on a winding-up or a reduction of share capital. Such shareholders often enjoy
disproportionally large voting rights as compared to ordinary shareholders.
It should be noted, however, that the rights which may be enjoyed by these shareholders is a
matter to be determined from the document under which the shares are issued.
Capital maintenance
The Companies Act [Chapter 24:03] contains a number of provisions which are meant to
preserve the share capital structure of the company. The general principle is that a company
must maintain its capital, it cannot give money which has been contributed by the shareholders
back to those same people and there are a number of strict rules which seek to maintain
adherence to that principle. If such money is returned to shareholders, except in a few specific
and clearly defined situations, then it becomes an unlawful reduction of share capital. Some of
the rules which are designed to preserve the share capital structure of a company are the
following:
(a) Prohibition of financial assistance by the company for the purchase of its own or its holding
company.s shares (s.73) It is unlawful for the company to give whether directly or indirectly,
whether by means of a loan, guarantee, the provision of security or otherwise any financial
assistance for the purpose of buying shares in the company or where the company is a
subsidiary company in its holding company unless:
(i) such assistance is given in accordance with a special resolution of the company;
(ii) the company.s assets exceed its liabilities and it is able to pay its debts as they become due
in the ordinary course of its business.
(b) The Share Premium Account (s.74)
If a company issues shares at a premium whether for cash or otherwise, a sum equal to the
aggregate amount or value of the premiums on those shares shall be transferred to an account
called the .share premium account.. The share premium account cannot be used anyhow and in
terms of the Act, its use is restricted to the following (among others):
(i) in paying up unissued shares to be allotted to the company.s members, directors, employees
or to a trustee for such persons, as fully paid bonus shares or
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(ii) in writing off the company.s preliminary expenses or the expenses of or the commission
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paid or discount allowed on any issue of shares or debentures of the company.

(c) Power to Issue Shares at a Discount
Whilst it is permissible for a company to issue shares at a discount of a class already issued, this
has to be done in accordance with strictly laid down criteria which is as follows:
(i) the issue of the shares at a discount must be authorised by special resolution of the company
and must be sanctioned by the court and
(ii) the special resolution must specify the maximum rates of discount at which the shares are
to be issued.
(d) Prohibition of Loans to Directors (s.177)
It shall not be lawful for a company to make a loan to any person who is its director or a
director of its holding company unless:
(i) the company.s ordinary business includes the lending of money or the giving of guarantees in
connection with loans made by other persons to anything done by the company in the ordinary
course of that business or
(ii) where the company is a non-subsidiary company and the consent of members holding at
least nine-tenths of the issued share capital has been secured.
(e) Payment of Dividends
As a way of preserving the share capital structure the Companies Act makes it clear (Article 16)
that .No dividend shall be paid otherwise than out of profits .Even if a company makes profits,
shareholders are not automatically entitled to a dividend until and unless the directors have
declared one. Members in general meeting cannot outride or veto a decision of the Board of
Directors over matters pertaining to a declaration of a dividend. Ultimately the provisions cited
above are meant to ensure that as far as possible, the share capital structure of the company, is
not unlawfully interfered with.
Increase share capital
(i) The initial decision to increase the share capital of the company will have been taken at a
Board Meeting by the Board of Directors. The matter is then referred to members in a general
meeting of the company. If it is agreed that the share capital of the company be increased, the
notice of increase in share capital is then submitted to the Registrar of Companies. The meeting
which preceded the submission of the notice to the Registrar was probably an Extraordinary
General Meeting at which all the registered members of the company were eligible to attend.
(ii) The meeting would have been held in terms of s.126 of the Companies Act. Theoretically the
meeting could have been an Annual General Meeting convened in terms of s.125 of the Act
although this is highly unlikely.
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(iii) A special resolution to increase the share capital was passed in terms of s.89 as read with
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s.133 of the Companies Act, Chapter 24:03.

(iv) The resolution should be passed by a majority of not less than 75% of such members
entitled to vote as are present in person or by proxy at a general meeting of which not less than
21 days notice has been given. Members holding not less than 25% of the total votes of the
company are required to be present in person or by proxy
New share certificates and the documents required
The manner in which shares are transferred is laid down in the Articles of the company. The
general rule is that shares are freely transferable in the manner prescribed by the Articles, and
the Board of Directors accordingly has no discretion to refuse to register a bona fide transfer. In
brief, the procedure is that a written instrument of transfer must be delivered to the company
(s.99). The transfer form contains the names and addresses of the transferor and transferee
and their signatures, the number of shares to be transferred and the price payable (if any). The
first thing that is required is the original share certificate bearing the name of the deceased.
This must be accompanied by a transfer form signed by Mr Brown in his capacity as executor of
the estate. Before allowing an executor to deal with the shares of a deceased member, the
transfer secretary must satisfy himself that the person claiming the right is properly entitled to
do so. Thus, unless Mr Brown has obtained the consent of the Master of the High Court and has
been issued with Letters of Administration, he does not have authority to act in this matter. In
terms of s.102 of the
Companies Act, transfer of the shares of a deceased person by the executor is as valid as if he
himself had been a member. In terms of articles 30 and 31 of Table A, the heirs must elect
whether they personally wish to be registered as the holders of the shares or whether to
nominate some other person. If they elect to be registered themselves, they must send to the
company written notice of their decision.
Once all the relevant documents have been presented to the company secretary, the old share
certificates will be cancelled and new certificates will be issued in the names of the heirs. The
company is obliged to issue new share certificates within two months after the transfer
document has been completed (s.103). Each share is distinguished by its appropriate number
(s.98). The share certificate must be signed by either two directors or by one director and the
secretary (s.104). The register of members must be updated accordingly.
Posting share certificates
An offer is an unconditional declaration by the offeror of his intention to conclude a contract

and the offer must comply with the following requirements. It must be:
(a) clear and unambiguous
(b) complete
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(c) communicated to the offeree

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(d) made with the intention that it will serve as an offer that it may be accepted and that
a valid contract will result there from. From our case law it is clear that an advertisement (as in
this case) is merely an invitation to do business (to treat) and not a firm offer.
In Crawley v R (1909) Smith J ruled as follows:the mere fact that a tradesman advertises the
price at which he sells goods, does not appear to me to be an offer to any member of the public
to enter the shop and purchase goods nor do I think that a contract is constituted when any
member of the public comes in and tenders the price mentioned in the advertisement. It seems
to me to amount simply to an announcement of his intention to sell at the price he advertises . .
It is clear from the facts of the case that Adolf is the offeror and Egoli Mines Limited is the
offeree who is at liberty either to accept or reject the offer. If an offer is made by post and
acceptance also takes place postally a contract comes into being at the place where and at the
time when the letter of acceptance is posted.
In the case of Cape Explosives Works Ltd v SA Oil and Fat Industries Ltd (1921) the court
ruledthat the expedition theory is to be applied in the case of postal contracts .where in the
ordinary course the post office is used as the channel of communication, and a written offer is
made, the offer becomes a contract on the posting of the letter of acceptance.. Kotze J based
his judgment on practical considerations because the applications of the expedition theory
gives rise to fewer problems. Where an effective postal system exists, there is a reasonable
level of certainty that a letter which is properly posted will reach its destination.
The decision that the expedition theory applies to postal contracts was ratified by the appeal
court in Kergeulen Sealing and Whaling Company Ltd v CIR (1939) and is now generally
accepted as the ruling principle in our law. It is now clear that with postal contracts, the
expedition theory applies and the contract comes into existence where and when the letter of
acceptance is posted unless the offeror expressly states that he required notice of the
acceptance.
It is also settled law that the offer may therefore not be withdrawn after the letter of
acceptance has been posted even if the offeror has no knowledge of the posting (A to Z Bazaars
v Minister of Agriculture (1942).
Principles governing the payment of dividends in a company.
A dividend is a share in the profits of a company. The manner in which profits are to be divided
is determined by the articles of the company. The articles may provide for the declaration of
dividends by the company in a general meeting with the right of directors to pay such interim
dividends as are justified by the profits of the company or they may authorise the directors to
declare dividends without reference to a general meeting.
Usually the articles prescribe that no dividend may be paid otherwise than out of profits. It is
now settled law both in terms of the common law and statutory law that dividends may not be
paid out of capital even if the memorandum or articles purport to authorise payment because
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such payment would constitute an illegal or unauthorised reduction of capital. Article 116 of
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Table A of the Companies Act Chapter 23.04 says .no dividend shall be paid, otherwise than out
of profits . Whilst the company in general meeting may declare dividends, no dividend shall
exceed the amount recommended by the directors (Article 114, Table A). Thus, while the
shareholders can vote to reduce the amount of the dividend, they cannot vote to increase it.
The directors may before recommending any dividend set aside out of the profits of the
company such sums as they think proper as a reserve or reserves which shall, at the discretion
of the directors be applicable for any purpose to which the profits of the company may be
properly applied and pending such application, may, at their discretion either be employed in
the business of the company or be invested in such investments, other than shares of the
company as the directors may from time to time think fit.
In the case of Buenos Aires Great Southern Railway Company Ltd v Preston after incurring
heavy losses on its trading account for several years, a company made profits in one year
sufficient to pay the full dividends on preference shares. The directors however considered that
it would be unwise to pay such dividends and decided to transfer the profits to reserve. The
court held that they had power to do so and that the preference sharesholders were not
entitled
to claim their dividends. Romer J made the following observation: .having regard to the articles
it is clear that the dividends on the ordinary capital were payable only out of the net profit of
the company in the sense that the powers of the company or the board to carry profits to
reserve override the rights of the shareholders to dividend. The procedure would be that the
board would consider the profits of the company on the one hand and its requirements as to
maintenance and so on, on the other. Having decided the amount of profit, if any, which was
available the directors would make the necessary recommendation to the company and the
company would consider the matter .
Whilst it is true to say that dividends are declared at the sole discretion of the directors and
that shareholders cannot insist on the company declaring a dividend, once a dividend is
declared a company becomes indebted to its shareholders in the amounts of their dividends.
However such dividends are debts which bear no interest against the company. This is as a
result of article 122 of Table A which states that no dividend shall bear interest against the
company.
Whilst the legal position is that dividends may only be paid out of profits it is also clear that if
the directors have, without negligence, formed the bona fide belief that the company has
earned sufficient profits to pay a dividend when in fact it has not, no liability will accrue to
them. On the other hand, if they were negligent in declaring a dividend, they can be held liable.
Finally, the directors may deduct from any dividend payable to any member all sums of money,
if any, presently payable by him to the company on account of calls or otherwise in relation to
the shares of the company.
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Dividends declaration
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Dividend is paid to a member of a company as opposed to interest which is paid to its
debenture-holder. Thus there are two fundamental distinctions between interest and dividend.
In the first place they are payable out of different funds, interest being payable out of any of
the company.s monies, while dividend is payable only out of profits. On the other hand interest
is a debt while a dividend is not a debt until it is declared.
There are a number of propositions which together will tell us what, in law, constitutes profits
and these are:
(i) provided trading profits have been made, a dividend may be declared out of them without
making good losses of fixed capital; Verner v General and Commercial Investment Co Ltd (1894)
2 Ch. 239.
(ii) losses of circulating capital, however, must first be made good before a dividend is declared,
Verner.s case (above).
(iii) provided that the dividend can be declared out of the trading profit for that particular year,
or out of other distributable funds, trading losses incurred in previous years can be disregarded.
(iv) revenue reserves, that is, profits which have not been distributed but retained by the
company, possibly to maintain the dividend over a difficult trading period, may lawfully be used
for dividends.
(v) a dividend may be declared out of a realised profit on a fixed asset because, although this is
not a trading profit, it is still profit. It is not, however, lawful to use a realised profit on a single
asset for dividend purposes unless the company.s whole financial position is sound, Foster v
New Trinidad Lake Asphalt Co. Ltd (1901) 1 Ch. 209.
The above rules apply subject to the company.s articles which often restrict the payment of
dividends further. Thus they may stipulate that dividends may only be paid out of .trading
profits. or .the profits of the business.. Under the articles of most companies, it is the company
which declares the dividend, but the directors recommend its amount. The articles usually
provide that the dividend shall not exceed the amount recommended by the directors and
article 114 of Table A does this, so that while the shareholders can reduce the amount of the
dividend, they cannot increase it. Unless the company takes advantage of s.85 (c) of the
Companies Act and inserts a clause similar to TableA, article 118, in its articles, dividends are
declared either as a percentage based on the nominal value of the shares, or, less frequently, as
a specific sum per share.
Once declared by the company, the dividend becomes a speciality debt due to the members
but the period of limitation is twelve years. Sometimes the articles authorise the directors to
pay interim dividends to the members, that is, dividends which are paid in between two annual
general meetings, usually six months after the final dividend. Transfer of shares in a private
company to someone outside the company.
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Generally shares are personal property and are transferable subject to any restrictions
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contained in them. Although it is not clear from the facts of the case whether Nhapitapi
Investments (Pvt) Ltd has such restrictions in its articles of association in practice, most private
companies (if not all) invariably restrict transfer of shares. Indeed s.33 of the Companies Act
which defines the term .private company. says that
(1) The expression .private company. means a company other than a co-operative company,
which by its articles restricts the right to transfer its shares. In this case it is safe to assume that
the articles of Nhapitapi Investments restrict the right to transfer shares. Where the articles of
a company restrict transfers, then a transfer must be submitted to an approved person by the
board of directors.
Thus any decision to sanction a transfer must be made by the directors. Article 24 of Table A of
the Companies Act, Chapter 24:03 says that the directors may decline to register the transfer of
a share, not being a fully paid share, to a person of whom they do not approve and they may
also decline to register the transfer of a share on which the company has a lien. The power to
refuse to register a transfer can be challenged only on the ground that it was exercised in bad
faith.
(Re Coalport China Company (1895).
If a company refuses to register a transfer of any shares or debentures the company shall,
within two months after the date on which the transfer was lodged with the company, send to
the transferor and the transferee notice of the refusal. If default is made in complying with this
particular requirement, the company and every officer of the company who is in default shall
be guilty of an offence and liable to a default fine.
The directors may also refuse to sanction a transfer if there is a pre-emption clause in the
articles of the company as is normally the case. A pre-emption clause or the right of first refusal
entails that when a member of a private company wishes to sell his shares, he must, under the
provision in the articles first offer them to the members of the company before he offers them
to an outsider.
Share certificates
In terms of s.104 of the Companies Act a share certificate under common seal is only primafacie
evidence of title to the security. This means four things:
(i) that other evidence may be brought forward to show that it is incorrect or has become
invalid by reason of subsequent events;
(ii) that a share certificate is not a negotiable instrument because its transfer from one person
to another does not affect the ownership of the shares. That can only be done by effecting an
instrument of transfer which must be completed and lodged with the company and approved
by the directors;
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(iii) the share certificate is just a statement by the company that, at the moment when it was
issued, the person named on it was the legal owner of the shares specified in it and that those
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shares are paid up to the extent stated;

(iv) that .estopped. is not a principle of substantive law but that it is a rule of evidence which
prevents a person from denying the legal implication of his conduct. When we say a company is
.estopped., this means that it is prohibited from denying (as against a person who has
innocently relied on a share certificate), that the certificate is a correct copy of the relevant
particulars in its register, in terms of s.104 of the Companies Act.
However, this principle does not apply in the following situations:
(i) when the certificate is a forgery;
(ii) when it has been issued without authority; and
(iii) when the person claiming on it has not relied upon it (as in the case of a transferee who
fails to obtain the certificate or other evidence at the time of transfer).
Private Business Corporation Act (Chap. 24:11)
It is true to say that the Private Business Corporation Act (Chap. 24:11) was introduced four
years ago because it was thought that the Companies Act (Chap. 24:03) was too detailed and
complicated and therefore not suitable for less sophisticated organisations which operate in
the form of partnership.
The Private Business Corporation Act, in an attempt to achieve the above object, makes a
private business corporation, on registration, a juristic person distinct from its members. In
other words, it acquires a corporate status, but there is no need to appoint directors or draw up
the founding documents like the memorandum and articles of association. These documents
are replaced by a statement called .incorporation statement. and as such it abolishes the ultra
vires doctrine. This is because, on registration, the business becomes a corporate body with all
the powers of a natural person without limitations as normally set out in the company.s
founding documents. In such cases, unlike the registration of a company, there is no need to
specify in the incorporation statement the objects of the business (corporation).A private
business corporation is not allowed to issue shares and instead each member is to hold an
interest in the corporation which will be recorded as a percentage in the incorporation
statement. In the event of the winding up of the corporation, a member will be entitled to a
share in the assets of the corporation in proportion to his percentage. His liabilities will be
measured likewise.
There is no requirement in the Private Business Corporation Act that the corporation must
publish or submit accounts to the Registrar of Companies. This is so although each corporation
is required to appoint, in terms of s.85, an accounting officer (not an auditor) in order to
maintain accounting records. An ordinary book-keeper will qualify as an accounting officer.
There is also no requirement in the said Act that every corporation, once registered, must hold
annual general meetings. It was felt by the Law Development Commission that this was an
unnecessary formality. It should be noted, however, that the Private Business Corporation Act
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did not completely achieve its objective. The complicated provisions, in terms of s.56 of the
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Companies Act in respect of winding up a company, judicial management and the removal of
defunct companies from the register, still apply to corporations. No doubt, the complicated
company law doctrines, for example, the rule in Foss v Harbottle 1883 will still also apply to
corporations.
8.2. DIRECTORS, LIABILITY AND DUTIES
Appointment and resignation of Directors
The procedure for appointing and removing directors is invariably governed by the company.s
articles of association. If Table A has been adopted, articles 90-98 specify the formalities for
electing directors and in terms of article 96 the directors shall have power at any time and from
time to time to appoint any person to be a director, either to fill a casual vacancy or as an
addition to the existing directors. At a Board meeting the outgoing director would tender his
resignation and, the Company Secretary, would note the resignation in the minutes. At the
same time the directors would decide at a Board meeting to invite the incoming director to fill
the seat vacated by the outgoing director and this decision would be recorded in the minutes.
The Secretary would delete the outgoing director.s name and details from the Register of
Directors and Secretaries and insert the incoming director.s particulars in terms of s.187 of the
Companies Act. The Secretary would be obliged to complete a CR14 form advising the
Registrar of Companies within one month of the change. At the same time the company.s
letterheads and other printed stationery should reflect the new changes.
The Secretary should send a letter to the incoming director, the new board member
congratulating him upon his appointment and enclosing a copy of the company.s memorandum
and articles of association. The new director should also be reminded that he is required to give
notice of interest that he may have in contracts involving the company as per s.186 of the Act. If
the new director is to be signatory on one or more of the company.s bank accounts, his details
and specimen signatures should be sent to the bank.
The fiduciary duty of directors
A director owes the company a number of common law and statutory obligations.
The duties of a director can conveniently and usefully be broken down into the following
categories.
(1) fiduciary duties
(2) the duty to exercise powers .bona fide in the company.s interest.
(3) the duty not to make .secret profits.
(4) the duty not to have personal interest conflicting with those of the company
(5) the duty to disclose
(6) the duty of care and skill
(7) the duty to act intra vires the company.s statutes (memorandum and articles of
association)
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At common law a director is subject to certain fiduciary duties which require him to exercise his
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powers bona fide and for the benefit of the company. A person possesses fiduciary duties when
he is in a position of trust or occupying a position of power and confidence with respect to
another person such that he is obliged by law to act solely in the interest of that other person.s
rights which he is to protect. It cannot be doubted that directors occupy a position of trust or as
is usually stated, a fiduciary position towards the company similar in some respects to that of
an agent entrusted with the control and management of the money or effects of another
person.
The fiduciary duties are owed to the company and to the company alone and not necessarily to
individual shareholders (Pergamon Press Ltd v Maxwell).
The fiduciary duty of directors in respect of the shareholders is akin to the duty owed by the
trustees to their beneficiaries and thus the fiduciary duty can conveniently be broken down into
two parts:
(1) the directors must act bona fide for the benefit of the company and not for an ulterior
motive
and
(2) the director must refrain from embarking upon an act which will lead to a conflict of his
interests with those of the company. Roodpoort Limited Main Rep v Du Toit (1928)
An important consequence of the relationship between a director and his company is the
director.s duty to exhibit utmost good faith in his dealings with the company. He must refrain
from placing himself in a position where his own interests clash with those of the company and
he must never take an improper advantage of his position by acquiring for himself assets or
opportunities that rightly belong to the company. In Robinson v Randfontein Estates Gold
Mining Company Ltd (1921).
The Managing Director of a company using information he acquired in the course of his official
duties bought immovable property worth £60 000, which the company was interested in
acquiring and using a front immediately resold it to the company for £275 000.000. The court
held that the plaintiff company was entitled to claim from the defendant the profit of £215
000.00 made by him on this transaction. Innes CJ said
where one man stands to another in a position of confidence involving a duty to protect the
interests of that other he is not allowed to make a secret profit at the other.s expense or place
himself in a position where his interests conflict with his duty.
In Magnus Diamond Mining Syndicate v Macdonald and Hawthorne (1909), the defendant
while directors and managers of a company acquired information as to the value of certain
diamondiferous property. They thereupon purchased the property in competition with the
company without disclosing their intention to the company. The court decided that the
defendants were obliged to transfer the property to the company and to account to it for
profits already received. The court made the following observation that .it is the duty of all
agents including directors of companies to conduct the affairs of their principal in theinterests
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of the principal and not for their own benefit.

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One of the major statutory duties of the directors is the duty to disclose his interest in contracts
(where he has either a beneficial direct or indirect interest) between a director and his
company. Section 186(1) of the Companies Act Chapter 24:03 says that .it shall be the duty of a
director of a company who is in any way whether directly or indirectly interested in a contract
or proposed contract with the company to declare the nature and full extent of his interest at a
meeting of the directors of the company..
In the case of Aberdeen Railway Company v Blaikie Bros (1854) the defendant company
entered into a contract to purchase a quantity of chairs from the plaintiff partnership. At the
time that the contract was concluded, a director of the company was a member of the
partnership. The court held that the company was entitled to avoid the contract.
Persons prohibited from being directors

The Companies Act disqualifies certain parties from holding the position of either director or
auditor of the company.
Directors
Section 173 specifies who may not be a director and any of the following persons shall be
disqualified from being appointed a director of a company (a) a body corporate, for the reason
that the work of a company director requires the personal
involvement of the director.
(b) a minor or any other person under legal disability
(c) save with the leave of the court an unrehabilitated insolvent
(d) save with the leave of the court any person who has at any time been convicted, whether in
Zimbabwe or elsewhere, of theft, fraud, forgery or uttering a forged document or perjury and
has
been sentenced therefore to serve a term of imprisonment without the option of a fine or to a
fine exceeding one hundred dollars. In the case of Oliver John Tengende v the Registrar of
Companies (1988) Manyarara JA of the Supreme Court of Zimbabwe cited with approval the
case of Ex parte Boland (1967), the headnote to which says:
.The object of section 150(1)(d) (now section 173(1)(d)) is that the management of companies
should not be in the
hands of unscrupulous or disreputable men ... A director.s position involves trust and section
173 (1)(d) is meant to weed out persons who from their past conduct are likely to breach that
trust.
The fiduciary duties of directors are:
(i) to exercise their powers for the purposes for which they were conferred and bona
fide for the benefit of the company as a whole; and
(ii) (ii) not to put themselves in a position in which their duties to the company and
personal interests may conflict: Hindle v John Cotton Ltd 1919. At common law
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the directors of a company were always freely permitted to hold and deal in the
shares of their company. The only sanction which the common law imposed was
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to make actionable the use of certain confidential information belonging to the

company (such as trade secrets). The reason why the common law imposed no
clear prohibition on the use of inside information in share dealings stemmed
largely from the decision in Percival v Wright 1902 which has been followed
consistently by our courts, Pretorious v Natal South Sea Investments Trust Ltd
1965.
In Percival v Wright the court held that there was no duty on the part of a director, who was
invited by a member to buy shares, to disclose to the member the fact that negotiations were
in progress for the sale of the company.s undertaking at a price representing more per share
than
that asked by the member. The basis of this conclusion is that while a director owes a fiduciary
duty to the company, he owes no such duty to individual members.
Subsequently in the case of Allen v Hyatt 1914 the courts did recognise special but very limited
Circumstances in which a duty might be owed by directors to individual shareholders. In this
case the directors had profited through share purchase from members. The directors were held
accountable to them because they had purported to act as agents for the members by inducing
the latter to give them purchase options over each member.s shares, supposedly to facilitate a
proposed amalgamation.
8.3. PROTECTION OF MINORITIES
The majority rule position in relation to a company.s governance is as captured by the Foss v
Harbottle principle. The rule of law known as the Foss v Harbottle rule has resulted from the
refusal of the court to interfere with the management of the company at the instance of
minority shareholders who for one reason or the other are dissatisfied with the conduct of the
company affairs by the majority or by the board of directors. The Foss v Harbottle principle
was first clearly articulated in 1843 in the case from which it takes its name and it has since
spawned an immense volume of case law and legal literature.
In practical business terms it is generally the directors who run the company and make business
decisions but the general meeting of the company is the ultimate authority of the company.
Major decisions regarding the structure and fate of the company such as alterations in the
memorandum or articles, increase and reductions of capital, change of name, variations of
shareholders. rights, disposal of the undertaking or major assets of the company, compromises,
amalgamation and reconstructions and the voluntary winding up of the company have to be
taken or approved by the majority in many instances by way of special resolution.
The majority rule concept applies also where a wrong is done to the company. The rule is that
where a wrong is done to the company, for example by its directors failing to fulfill their duties
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it is the company alone, through its majority that can sue for the injury inflicted.
The proper plaintiff is thus the company itself. Individual members cannot sue even though
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their shares have fallen in value because of the wrong done to the company. The power to
decide whether to use in the company.s name is usually delegated to the directors by the
articles but should they decline to sue a general meeting of the company may resolve that an
action shall be instituted.
In Foss v Harbottle (1943) an action was brought by two shareholders in a company on behalf
of themselves and all other shareholders except the defendants who were the directors and
promoters of the company to which they had sold the company at an undisclosed profit. The
action was dismissed because the shareholders were not the proper plaintiffs. The company
itself was the proper plaintiff unless the act complained of was ultra vires.
In the case of Edwards v Halliwell Jenkins L.J summarised the position in a very lucid manner
and two of the propositions that he underlined bear repeating. These are:
1. The proper plaintiff in an action in respect of a wrong alleged to be done to a company is
prima facie the company itself.
2. Where the alleged wrong is a transaction which might be made binding on the company and
on all its members by a simple majority of the members, no individual member of the company
is allowed to maintain an action in respect of that matter because if the majority confirms the
transaction, the question falls away or if the majority challenges the transaction, there is no
valid reason why the company should not sue. In terms of the current law there are limitations
which exist on the majority rule principle. In appropriate cases (where justice so demands) the
courts will depart from the majority rule principle.
There is no room for the operation of the rule if the alleged wrong is ultra vires the
memorandum or articles of association of the company. This clearly seems to be the intention
of the legislature despite the existence of section 10 of the Companies Act which modifies the
operation of the ultra vires rule in Zimbabwean law. Section 10(2)(a) entitles a member to bring
proceedings to restrain the company from making or entering into any transaction which
exceeds its objects.
There is also no room for the operation of the rule if the transactions complained of could be
validly done or sanctioned only by a special resolution or the like because a simple majority
cannot confirm a transaction which requires the concurrence of a greater majority. There are
many sections of the Act that require prescribed majorities, not a mere simple majority (For
example s. 20, 25, 75, 78, 242 etc). In certain cases, the authority of the courts is required. For
example s.91 which relates to variation of rights attaching to shares and s.92 which makes
reduction of share capital subject to both confirmation by the court and a special resolution.
One of the most important common law exceptions to the majority rule principle applies where
what has been done amounts to fraud and the wrongdoers themselves are the controlling
majority. In that case the rule is relaxed in favour of the aggrieved minority who are allowed to
bring a minority shareholders. action on behalf of themselves and all others. The practical
reason for this is that if they were denied that right, their grievance would never reach the
74
courts because the wrongdoers themselves, being in control, would not allow the company to
sue.
Page
In cases like this, the law was clearly stated in Cooks v Deeks 1916 by the Privy Council. This is
a case where the plaintiff, on behalf of himself and other minority shareholders, sued the
directors of the company. The plaintiff claimed a declaration that the respondents were
trustees of the company of the benefit of a contract made between the respondents and
another company for construction work. It appeared that the respondents, while acting on
behalf of the
company in negotiating the contract, actually made it for themselves and not for the company.
By their votes as holders of three quarters of the issued share capital, they subsequently
passed a resolution at a general meeting declaring that the company had no interest in the
contract. The court held that the contract belonged, in equity, to the company, and the
directors could not validly use their voting powers to vest the contract in themselves, in fraud
of the minority. The court went on to say that in cases of breach of duty of this sort, the rule in
Foss v Harbottle (supra) did not bar the plaintiffs claim
8.4. WINDING UP
This refers to the termination or dissolution of the affairs of a company thus terminating
separate legal personality. This can be done in two stages
1. Management is handed to a liquidator who assembles all the Company assets and pays
off its debts and gives balance to all the shareholders.
2. Therefore liquidator takes formal steep of dissolving the company thus terminating legal
personality as a company
Winding up can be through compulsory winding up in terms of section 207 or voluntary winding
up whereby the court itself passes a special resolution to that effect. Winding up of a company
is largely an administration process which must be executed by relevant persons.
Grounds for winding up by the court (compulsory winding up) is regulated by section 206 of the
Act which provides that, A company may be wound up by the court—
(a) if the company has by special resolution resolved that the company be wound up by the court;
(b) if default is made in lodging the statutory report or in holding the statutory meeting;
(c) if the company does not commence its business within a year from its incorporation or suspends its
business for a whole year;
(d) if the company ceases to have any members;
(e) if seventy-five per centum of the paid-up share capital of the company has been lost or has become
useless for the business of the company;
(f) if the company is unable to pay its debts;
(g) if the court is of opinion that it is just and equitable that the company should be wound up.
The last ground is a very popular reason for winding up since it covers a wide range of situations
See
Ibrahimi v Westbord Galleries and others38
Starbon v Nyamutamba 1985(2)ZLR320
Mazongororo Paper Convertors v Mazongororo Sales PvT Ltd SC45/87
Tasiyana v Zvipani Enterprises Pvt Ltd HC314/87
75
R.E Langham v Skiting ring 1877(5)CHD669

Page
38
1973AC387
7. ADMINSTRATION OF ESTATES ACT 6:01
7.1. The office of the Master, appointment and removal of Executors and the Estates
of Deceased persons
Office of Master
The Master of the High Court occupies quasi-judicial duties in as much as deceased estates
and estates of minors are concerned. According to section 2 of the Administration of
Estates Act, the Master is defined as the Master of High Court as refered to in paragraph (a)
of subsection 1 of section 3 or any other person perfoming his functions in terms of
subsection 2 of that section. Moreover section 3 establishes the office of the Master and
also the other complimentary staff including Deputy Registras, Assistants etc. the office is a
public office and thus forms part of the Public Service. The Minister is empowered to assign
his surbodinates to perform in terms of section 3(2). According to section 4, any document
to be lodged with the Master must satisfy the respective section 4(2).
Futhermore the functions of the Master are not only confined to the Adminstration of
Estaes Act but also relevant to other Acts such as the Guardianship of Minors Act inter alia
as he can assist the Court in the realization of the interests of the Children. In Katsande v
Katsande39 the court held that,
“ The masters office needed to be more aware of the serious duties and responsibilities
it has in deceased estates. Section 120 of the Act enjoins the Master to make an inquiry
in order to be satisfied that the request being made would be to the advantage to the
persons interested in the estate to sell the property. Due inquiry requires the Master
takes active or positive steps to verify the contends of the application before granding
the consent. In cases where minors are beneficiaries, it may be necessary to appoint a
curator ad litem to ensure that the interests of the minors and protected…”
76
Page
39
HH113/10
Therefore the very same duties that Judges abide to also apply to the office of the Master
because his functions are very much akin to the Judges in as far as making binding
decisions are concerned. The master also in terms of section 96 can undertake taxing duties
in respect of estates especially payment to executors in respect of deceased estates
therefore he ought be imparial, fair and objective raising the bar of intergrity always.
Appointment of Executors and Removal
Nothing can be accomplished up until an executor has been appointed thus Executors are
appointed in terms of letters of administration as noted in section 23 and these can be
based on a will by the deceased or in terms of an appointment when it relates to an
intestate estate. Executors therefore are the administrators of estates as they assist the
Master in the fair administration of the estates. They are ethically bound by the rules in
terms of the Estates Administrators Act which governs their activities. Their appointment
is provided in section 25 of the Administrator of Estates which provides that,
Appointment of executor
(1) When any person has died without having by any valid will or codicil appointed any person to be his
executor, or where any person duly appointed to be the executor of any deceased person has predeceased
him or refuses or becomes incapacitated to act as such, or within such reasonable time as the Master
considers sufficient,neglects or fails to obtain letters of administration, then and in every such case the
Master shall cause to be published in the Gazette, and in such other manner as to him seems fit, a notice
calling upon the surviving spouse,if any, and the next of kin, legatees and creditors of the deceased to attend
at his office, at the time therein specified, to see letters of administration granted to such person or persons
as may then be appointed by him executor or executors, to the estate of such deceased person.
(2) When it appears to the Master necessary or expedient so to do, he may in such notice call upon such
persons as aforesaid to attend before any magistrate, at such time and place as may be appointed, for the
purpose of proposing some person or persons to be by such magistrate recommended to the Master as fit
and proper to be by him appointed executor or executors.
(3) The Master shall at the meeting so to be held at his office, or upon receiving the report of such
magistrate,appoint such person or persons as to him seems fit and proper to be executor or executors of the
estate of the deceased, and shall grant letters of administration accordingly, unless it appears to him
77
necessary or expedient to postpone such appointment and to call another, or other such meeting or
Page
meetings, as aforesaid:
Provided that when it appears to the satisfaction of the Master that the estate of any deceased person as is
hereinbefore mentioned is manifestly insolvent, then and in every such case it shall not be necessary for him
to take any such proceedings as aforesaid for the appointment of an executor or executors.
However the appointment of executor shall not be necessary if an estate is insolvent in
terms of sections 25(3). Moreover, sections 27, 28, and 29 also relate to the appointments
of Executors and they are to be appointed in terms of the law lest the appointment can be
challenged if some disparities are involved.
The executors are not sovereign and unremovable thus they can be removed from their
appointments if the fail to properly undertake their tasks. According to section 29A, the
Master can also remove executors if had been appointed and but not eligible in terms of
section 29A requirements of his appointment as noted in section 29A. Section 29A provides
that
Disqualification from appointment as executor in certain cases

The Master shall not grant letters of administration to a person in terms of section twenty-five, twenty-seven or
twenty-nine unless that person is
(a) registered under the Estate Administrators Act [Chapter 27:20]; or
(b) a surviving spouse or next of kin of the deceased person concerned.
According to Katsande v Katsande40 it notes that, “An executor is required to act with
utmost good faith and to ensure that everything is done for the benefit of the beneficiaries.
Here, in terms of s52 of the Adminstrators of Estates Act, the first respondent was appointed
in terms of a valid will and thus was bound to act in terms of the law and provisions of that
will. There was no ambiguity at all in the clauses relating to the two houses. The first
respondent had no authority to sell the first house; the second house could only be sold for
purposes of meeting outstanding debts, if any…”
“Where an executor lamentably fails to perform his duties according to the mandate given,
there can be no good reason why he should remain in the office. It is proper that he be
removed from that office forthwith.”
78
Page
40
ibid
The position of the executor is a fiduciary position and must be reserved as such and this
was noted in Clarkson v Gelb41. Moreover if the executor is removed he remains liable for
acts of maladministration in terms of section 117.
The executor must be made party to actions against the state of the deceased and this was
noted in Klepman v Law Union and Rock Insuarance 1957(1)SA 309 and therefore only
the Executor can pepresent the estate as was noted in Nyati v Min of Bantu42. Futhermore
the executor in his official capacity ought to realize and pursue assets of the estate as was
noted in Alcock v Swarts SC167/91 and in doing so he must wind up the estate as soon as
possible and also keep a separate account of the estates from his personal account. See Ex
P Huelin and Ex Parte Steele respectively43
In a nutshell, the executor upon satisfaction that has failed to honour the dutied entrusted
on him can be removed forthwith either by the Court or by the Master of the High Court in
respect to either deceased estates or estates of minor children
See Masubey v The Master HH91-93 application
De Haast v Drummond SC122/90 revocation
Anderson v Anderson Executors 1920 TPD 67 security
Section 38 lodging of an inventory, 39 penalties, 40 independent valuations, 41 preserve

intergrity and estate, section 41 as read with section 10 of Deceased Persons Family
Maintanance Act Once the executor has collected the estate together and ascertained who
the creditors are and provided for their claims the next task is to provide for the
distribution of the estate among the beneficiaries either testate or intestate, or as can
happen a partially testate and partially intestate succession can take place. In the event of
such occurring the testate distribution precedes and is independent of the intestate
distribution. In Re Mc Gillivrays Will 1943 WLD 29.
79
41
1981(1)SA288
Page
42
1978(3)SA 224
43
1959(4)SA and 1949(2)SA 157
7.2. Estates of minors and persons under curatorship
Minors are greatly treasured and the Master in terms of section 70 can confirm to any
appointments of tutors made by the father or mother of a minor and the Master can also
confirm the appointment only if the tutor is qualified in terms of the law and also resident
in Zimbabwe thus insane, prodigal tutors are not eligible for appointment. According to
section 73 the tutor ought to provide for some security in order to perform his duties as
expected. Moreover a tutor dative can also be appointed if no one is available to take care
of the childs estate.
Section 75 provides that the High Court can intervene in the process of appointment and
confirmation as it is the Upper Guardian of the Minor Children in Zimbabwe. Futhermore
section 76 provides for the duties and functions of the Tutor and also section 78 regulates
the process of Revocation of the appointments of the Tutors upon satisfaction that their
appointment was not done in accordance with the law.
See sections 83 and 84 which deals with the Removal of the TUTOR
9.3. Distribution of Estates of persons governed by Customary Law
According to section 68G the law applicable in respect of estates like customary estates or
general law are determined in terms of Customary Law and Local Courts Act section 3 and
if there is a disagreement as to the law applicable the aggrieved party can apply to the
Master in order for the dispute to be resolved. It is worth to note that in terms of the Act
marriage under Part IIIA of the Act shall be construed valid under the law if no other
marriage in terms of Marriages Act is available. Moreover, it terms of section 68A
customary law would be applicable if it bound the deceased at the time of death.
Executors in customary law estates are appointed in terms of section 68B and if the
relatives do not agree to an appointment the Master is empowered to appoint another
person but ought to be registered in terms of the Estates Adminstrators Act or being a
80
relative of the deceased. Moreover, the functions and duties of the executor are provided
Page
for under section 68B(a) and (b) and includes discharging creditors claims and
administering or safeguarding the estate in terms of customary law. It is worth to note that
the Adminstration of Estates Act as it now governs customary law, the previous position
before the amalgamation wwas based on several acts like the Customary Law and Local
Courts Act, Customary Marriages Act inter alia. However the Admistration Act harmonises
the law relating to the administration.
Furthermore, an heir as defined in the Act under customary law can also inherit the
customary articles for instance the tsvimbo or intonga and also the executor can draft a
inheritance plan which as postulated in section 68D includes:
the conservation and application of the net estate for the benefit of the beneficiaries;
the distribution of all or any part of the net estate to the beneficiaries;
the sale or disposal of any property of the net estate for the benefit of the
beneficiaries;
the maintenance of any beneficiary
In addition, the appointment of the executor must be confirmed by the Master and the
process of appointment requires wide consultation. If the Master is satisfied that all had
been complied with he will approve the plan and the executor would implement it justly.
According to section 68F the Master reserves resolution of disputes powers and also in
terms of sectiion68G the Customary Law and Local Courts Act 7:05 would apply in the
administration of the estate. Menial estates are excluded from the application of the Act if
do not satisfy the monetary limit provided.
Magistrates or other appointed people can function in the place of the Master of the High
Court provided has been appointed by the Minister but the right to appeal on the decisions
of the Master whether in his capacity or by another representative is bestowed on the High
Court which can either confirm vary among other ways to exercise its powers provided the
appael ia made in accordance with the law.
81
Page
See
Immovable property
Komo and Leboho v Holmes 1935 S.R 86
S 7 Customary Law Application Act
Africans married under civil law

Duma v Madidi 1918 S.R 559
S13 Customary Marriages Act but now affected by
Majawo v Chogugudza SC 142-92
Foreign marriages
Bennet N.O v Master of the High Court 1986 (1) ZLR 127
Mazula v Kapolo SC 84/94
Interpretations of Who is heir at customary law

Vareta v Vareta SC 126-90
Moyo v Moyo 1990 (2) ZLR 81
Mwazozo v Mwazozo SC 121/94
Chihowa v Mangwende SC 84/87
Murisa v Murisa SC 41/92,
Magaya v Magaya SC 210/98
Mahlangu v Khumalo SC 46/99
Mazani v Mazani SC48/98
Line of Succession
Madzimbganyama v Ndambakuwa SC 50/93
Ascertainment of relevant customary law

Matambo v Matambo 1969 (3) SA 717.
Mandondo v Mkushi 1985 2 ZLR 198
The duty of the magistrate in terms of s68(2)

Antonio V Antonio SC 139/91
Murape v Murape SC 32/93
82
Page
Capacity in which heir inherits and Duty of heir
Seva and others v Dzuda SC 131/92
Masango v Masango SC 66/86
Mbwadzawo v Mude SC 237-95
Mbawala & Anor v Mashonganyika & Ors S-95-96.
Muroyiwa v Muroyiwa & Registrar of Deeds SC11/99
Claims re contributions
See dicta in Antonio v Antonio and Murape v Murape supra
Masimirembwa No. in re Est. Chipembere v Chipembere HH-22-95
Issues governed by semi autonomous social fields

Municipal Housing
Nyoka v Nyoka HH 101/94
Zichawo v Zichawo and City of Harare HH 116/94
Insurance policies
(UCLU)Chawanda v ZIMNAT Insurance
Katiyo v Standard Chartered Bank HH39 /94
The Deceased Persons Family Maintenance Act.
83
Page
10. DESEASED ESTATES SUCCESSION ACT (Chapter
6:02)
The Act was mainly created to regulate the administration of Estates of spouses who die
intestate and this is expressly noted in the preamble of the Act which provides that, AN ACT to
amend the law relating to estates of deceased persons. Moreover, the Act also has been created to
correct historical tendencies by relatives of individuals who prey on the inheritance that would have been
left. This was noted mainly in the recent case of Chimhowa case44by Chiweshe J.P.
Moreover, the Act greatly regulates the estates of deceased persons who die intestate and the release and
acquisition of their properties by their spouses. This is provided for in section 3 which notes that the
surviving spouses of marriages whether in or out of community of property would acquire properties of
their departed spouses subject to section 4.
Furthermore the Act regulates properties of deceased members who die either wholly or partly intestate.
Intestate relates to passing on without a will and this applies both to customary and also general law. In
addition, the Act should be read together with other statutes that govern the administration of estates.
Thus the Act provides that,
CHAPTER 6:02
DECEASED ESTATES SUCCESSION ACT
Acts 26/1873, 23/1874, 14/1929, 26/1954, 18/1977, 13/1987; 6/1997
ARRANGEMENT OF SECTIONS
PART I
PRELIMINARY
Section
1. Short title.
PART II
ASPECTS OF INTESTATE SUCCESSION
2. Interpretation in Part II.
3. Entitlement of spouse of deceased who does intestate.
3A, Inheritance of matrimonial home and household effects.
4. Articles of peculiar sentimental value.
5. Agreement on alternative division or direction to sell property devolving in undivided shares.
6. Specified amount.
PART III
MISCELLANEOUS
7. No legitimate portion to be claimed of right.
8. Heir not entitled to deduct any portion under Falcidian and Trebellianic Laws.
9. Lex Hac Edictali repealed.
10. Inheritance ab intestato unaffected.
11. Community of property unaffected.
84
AN ACT to amend the law relating to estates of deceased persons.

Page
44
[Date of commencement: 21st June, 1929 (Part II)
10th June, 1891 (Part III)]
PART I
PRELIMINARY
1 Short title
This Act may be cited as the Deceased Estates Succession Act [Chapter 6:02].
PART II
ASPECTS OF INTESTATE SUCCESSION
2 Interpretation in Part II
In this Part—
“specified amount” means the appropriate amount specified by the Minister of Justice, Legal and
Parliamentary
Affairs in terms of section six.
3 Entitlement of spouse of deceased who dies intestate
Subject to section four, the surviving spouse of every person who, on or after the 1st April, 1977, dies either
wholly or partly intestate is hereby declared to be an intestate heir of the deceased spouse according to the
following
rules—
(a) if the spouses were married in community of property and if the deceased spouse leaves any descendant
who is entitled to succeed ab intestato, the surviving spouse shall—
(i) be entitled to receive from the free residue of the joint estate, as his or her sole property, the
household goods and effects in such estate;
(ii) succeed in respect of the remaining free residue of the deceased spouse’s share of the joint estate
to the extent of a child’s share or to so much as, together with the surviving spouse’s share in the
joint estate, does not exceed the specified amount, whichever is the greater;
(b) if the spouses were married out of community of property and the deceased spouse leaves any descendant
who is entitled to succeed ab intestato, the surviving spouse of such person shall—
(i) be entitled to receive from the free residue of the deceased spouse’s estate, as his or her sole
property, the household goods and effects in such estate;
(ii) succeed in respect of the remaining free residue of the deceased spouse’s estate to the extent of a
child’s share or to so much as does not exceed the specified amount, whichever is the greater;
(c) if the spouses were married in or out of community of property and the deceased spouse leaves no
descendant who is entitled to succeed ab intestato but leaves a parent or a brother or sister, whether of
the full or half blood, who is entitled so to succeed, the surviving spouse shall—
(i) be entitled to receive from the free residue of the joint estate or the deceased spouse’s estate, as
the case may be, as his or her sole property, the household goods and effects in such estate;
(ii) succeed in respect of the remaining free residue of the deceased spouse’s share of the joint estate
or the deceased spouse’s estate, as the case may be, to the extent of a half share or to so much as
does not exceed the specified amount, whichever is the greater;
(d) in any case not covered by paragraph (a), (b) or (c), the surviving spouse shall be the sole intestate heir.
3A Inheritance of matrimonial home and household effects
The surviving spouse of every person who, on or after the 1st November, 1997, dies wholly or partly intestate
shall be entitled to receive from the free residue of the estate
(a) the house or other domestic premises in which the spouses or the surviving spouse, as the case may be,
lived immediately before the person’s death; and
(b) the household goods and effects which, immediately before the person’s death, were used in relation to
the house or domestic premises referred to in paragraph (a);
where such house, premises, goods and effects form part of the deceased person’s estate.
4 Articles of peculiar sentimental value
The entitlement of the surviving spouse in terms of section three to the household goods and effects of his or
85
her deceased spouse shall not apply in relation to any property which devolved upon the deceased spouse by
inheritance from the estate of an ancestor and which has peculiar sentimental value to any other person or
Page
persons
who, but for section three, would have been entitled upon intestacy of the deceased spouse to some interest in
such property.
5 Agreement on alternative division or direction to sell property devolving in undivided
shares
(1) Where as a result of a distribution in intestacy any property devolves upon any heirs in undivided
shares—
(a) the heirs may agree upon an alternative division of the property, and such agreement shall be binding on
the executor;
(b) any one or more or all of them may direct in writing that he wishes or they wish, as the case may be, the
property to be sold and the proceeds divided amongst the heirs, and such direction shall be binding on
the executor and all the heirs.
(2) Where any heir referred to in subsection (1) is a minor or a person under curatorship, the Master may, after
consultation with the guardian, tutor or curator of the heir concerned—
(a) consent on behalf of that heir to any agreement referred to in paragraph (a) of subsection (1);
(b) give a direction in writing on behalf of that heir in terms of paragraph (b) of subsection (1).
6 Specified amount
The Minister of Justice, Legal and Parliamentary Affairs shall, by notice in a statutory instrument, specify an
amount for the purposes of section three and—
(a) in so doing, may specify different amounts for different paragraphs;
(b) may at any time, by notice in a statutory instrument, amend or replace any such notice.
PART III
MISCELLANEOUS
7 No legitimate portion to be claimed of right
No legitimate portion shall be claimable of right by any one out of the estate of any person.
8 Heir not entitled to deduct any portion under Falcidian and Trebellianic Laws
In no case shall any heir of any deceased person be entitled to deduct out of the estate of the deceased person
any portion under or by virtue of the laws known respectively as the Falcidian and the Trebellianic Laws,
which,
but for such laws respectively, such heir would not be entitled to claim or deduct.
9 Lex Hac Edictali repealed
The sixth law of the ninth title of the fifth book of the Codes of Justinian, commencing with the words “Hac
Edictali”, and commonly called or known as the Law or Lex Hac Edictali, is hereby declared to be of no force
or
effect in Zimbabwe.
10 Inheritance ab intestato unaffected
Nothing in this Part shall affect or alter the laws of Zimbabwe regarding inheritance ab intestato.
11 Community of property unaffected
Nothing in this Part shall extend to or alter or affect the laws of Zimbabwe regarding community of property
between spouses.
See also45:
1. Lee. An Introduction to Roman - Dutch Law 351-55.

2. Dengu-Zvobgo et al Inheritance in Zimbabwe, Law Customs and Practices [WLSA) 1994.
3. Stewart J. and Ncube W. The legal And Cultural Framework of Successsion on Zimbabwe WLSA
working Paper NO. 6 1992.
4. Stewart J. Inheritance In Zimbabwe: The Quiet Revolution WLSA Working Paper No. 5 1992.
5. Stewart J.- A Tale of Three Families In A Changing World, Legal Forum Vol 3 No .1 1991 p. 3-9.
6. Stewart et al "The Legal Situation of Women in Zimbabwe" in The Legal Situation of Women in
Southern Africa Stewart & Armstrong Eds (Harare, UZ. 1990) 165
86
7. Stewart J - "Who Gets the Money? Some Aspects of Testate and Intestate Succession In
Page
45
UZ Elearning site/notes
Zimbabwe.
8. The Dependants Live On: Protection of Deceased Estates And Maintenannce Claims Against
Deceased Estates Zimbabwe Law Review 1989-90 pp 85-124
9. Sibanda A. Willls ! Are They The Solution to the problem in African Succession in WLSA Working
Paper No. 5 1992 p101-110
10. Munangati N. Testate Succession: Is it Adequately Utilised WLSA Working Paper No. 5 1992 p
111-124
11. Stewart J. Case Note on Donald v Master of the High Court Legal Forum Vol 3 No.1 1991 p38-45
12. Stewart J. Coping With the Muddle: Choice of law in Intestate Succession in Post Independence
Zimbabwe Legal Forum Vol 2 No. 2 1990 p12-19
13. Chakanetsa C. Intestate Succession to the Matri Estate Case Study of The Current Problem WLSA
Working Paper No. 5 1992 p88-100
14. A Shenje. The Forgotten Victims? African Widows and their Use of the Provisions of the
Deceased Persons Family Maintenance Act WLSA Working Paper No. 5 1992 p 53-69
15. Mukonoweshuro E. Some Good news Mixed With Some Bad News in WLSA Working Paper No. 5
1992 p70-87
16. Stewart J. Playing the Game in Armstrong and Ncube Eds, Women and Law in Southern Africa
(Harare, ZPH, 1987) 85-101
17. Stewart J. A Widows Lot 1983-84 Zimbabwe Law Review p 72-84
18. Cheater A. Investigating Women's Rights and Social Entitlements: Some Suggestions From Social
Anthropology Perspectives on Research Methodology, WLSA, 1990)
19 Venia Magaya’s Sacrifice: A Case of Custom Gone Awry WLSA 2001
20 A Long Road to Justice: Women & Law in Zimbabwe: Review Commissioned by UNFFPA – T
Jhamba & George Mhlanga 2002
THE INSOLVENCY ACT CHAPTER 6:04
a. Voluntary sequestration and the procedure followed.
 An insolvent debtor, his agent or the person in whom the administration of the estate is
vested of a deceased insolvent debtor or of an insolvent debtor who is incapable of
managing his own affairs may make a petition for the acceptance of the surrender of
the estate of the debtor to the high court in terms of section 3 (1)
 The petition is mandated to include a statement of the debtor’s affairs in terms of

section 3 (4).
 The petition’s copy and the additional statement of affairs must be served on the
Master of the High Court prior to the hearing of the petition.
 In terms of section 4, if the High Court is satisfied that prima facie there are available
asserts sufficient to cater for the costs of sequestration and that the estate of the
debtor is insolvent it may grant an order for provisional sequestration and issue a rule
87
nisi calling upon interested persons to appear and show cause why the debtor’s estate
should not be fully sequestrated.
Page
 Section 5 provides that the rule nisi must be published in the Gazette and in a
newspaper circulating in the district where the debtor resides or resided, if he is
deceased or where the debtor was a trader, in the district of the debtor’s principal
business operation.
 In terms of section 6, on the return day of the rule nisi if the court is satisfied that
section 5 has been complied with and that the provisions of section 4 have been
satisfied as well, it may grant an order placing the estate under sequestration.
If there is no appearance on the return date of the rule nisi it may be extended or be discharged.
b. Compulsory sequestration and the procedure to be followed.
 An act of insolvency is committed if any of the acts mentioned in section 11 is carried

out or occurs.
 In terms of section 12 a petition to the High Court for sequestration of an insolvent

debtor’s estate by a creditor who has a liquidated claim of not less than a prescribed
amount or two or more creditors with liquidated claims in the aggregate for not less
than the prescribed amount or the agent of the creditor(s).
 The case of Jackson v Rothmans of Pall Mall Zimbabwe (Pvt) Ltd 1993 (2) ZLR 156 (S) sets
out the requirement of a liquidated claim.
 Section 12 (3) provides that the petition should specify the amount, cause and nature of
the claim in question, whether or not the petitioner holds any security for his claim and,
if so, the nature and value of the security and the alleged act of insolvency committed
by the debtor or the allegation that the debtor is insolvent. This means that the
petitioner ought to prove their claim clearly by setting out the abovementioned
specifications. These factors must be confirmed by an affidavit as required by section 12
(4). This affidavit and a copy of the petition must be lodged with the Master before the
hearing of the petition.
 The petitioner must also obtain a certificate of security confirming that the creditor has
provided security for the costs of sequestration and the costs for the administration of
the estate until a trustee has been appointed.
 Section 12 (7) provides that if the allegation that the debtor is insolvent is the sole
reason for the petition then a copy of the petition must be served on the debtor.
 Section 12 (10) provides for the orders that may be made upon the hearing of the
petition, the High Court may dismiss the petition, postpone the hearing or make such
other order in the matter as in the circumstances appears to it to be just.
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 The High Court may only grant a provisional order for sequestration of it is satisfied that
there is a prima facie indication that the debtor has committed an act of insolvency or is
insolvent and that there is reason to believe that it will be to the advantage of creditors
of the debtor if his estate is sequestrated and the petitioner has a claim against the
debtor to the extent referred to in subsection (1) of section twelve. See the case of Bank
of Credit and Commerce Zimbabwe Ltd v Mbidzo 1987 (2) ZLR 190 (H).
 Where an order for provisional sequestration is granted the court should also issue a
rule nisi requesting the debtor to appear on the return date and show cause why his
estate should not be finally sequestrated. A copy of the rule nisi must be published in
the Gazette and in a newspaper circulating in the district where the debtor resides or
resided, if he is deceased or where the debtor was a trader, in the district of the
debtor’s principal business operation. The court may also anticipate the return date of
the rule nisi for the purpose of discharging the final sequestration of the estate provided
a twenty four hour notice is given to the petitioner. This is provided for in section 14 and
15
c. The effects of sequestration.
 The immediate effects of sequestration are to;
1. Divest the insolvent of his estate, vesting it in the Master until the appointment of a
trustee, and upon the subsequent appointment, in the trustee.
2. To stay any civil proceedings against the insolvent except for personally beneficial
proceedings by or against the insolvent.
3. Stay any execution of judgment against the insolvent unless the High Court directs
otherwise except where the judgment is for the execution of immovable property
and a sale has been conducted and approved by the Sheriff in terms of the rules of
the court.
4. Where the insolvent is under civil imprisonment, to entitle him to immediate

release.
5. In terms of section 24, the property or proceeds which the Sheriff holds under a writ
of attachment belonging to a spouse of the insolvent becomes vested in the Master
until the appointment of a trustee and upon the appointment of the trustee, the
property is treated as if it were the property of the insolvent estate.
Section 25 grants a right for application to the High Court by the abovestated spouse that the property
or any part thereof be temporarily excluded from vwsting in the Master. The High Court must satisfied
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that the spouse will make satisfactory arrangements to protect the interests of the estate of the
insolvent estate, that the spouse is carrying out business as a separate trader and is likely to suffer
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prejudice through immediate vesting in the Master.

The trustee in whom the spouse is vested should not release any such property unless he gives a notice
of intention to do so to the spouse of the insolvent and to the spouse’s creditors
In terms of section 28 and 29 the spouse and the creditors may apply for the release of the spouse’s
property from being vested in the trustee or to stay the realisation of such or its distribution.
6. In terms of section 34, any satisfaction of any obligation which was due or which
arose before sequestration of the estate shall be void if made to the insolvent after
sequestration unless the debtor proves that it was made in good faith and without
knowledge of the sequestration
7. That a person is insolvent does not preclude them from entering into a contract.
However, the insolvent cannot enter into any contract without the written consent
of the trustee where his estate is likely to be adversely affected. Section 35 (2)
8. An insolvent may still pursue a profession or employment provided that he may not
not be employed, without the trustee’s written consent, in any capacity in the
business of a trader who is a general dealer or a manufacturer, in terms of section
35 (3).
9. In terms of section 35 (6) an insolvent is obliged to keep a detailed record of all

assets and income received from whatever source and of all disbursements made by
him, to afford the trustee access to the records he keeps for the purpose of
inspection at all reasonable times, if required, to transmit to the trustee in the first
week of every month a statement of all the assets and income received by him and
all disbursements made by him during the preceding month, if required, to produce
to the trustee reasonable vouchers in support of any item in the records kept by him
and of any expenditure made or incurred.
10. The trustee is entitled to the monies received or to be received by the insolvent in
the course of his profession, occupation or employment which will not be necessary
for the support of those dependent upon him. This entitlement may be made
known to the employer of the insolvent who shall pay the remuneration to the
trustee within 30 days of receipt of such notice. This provision operates even where
the State is the employer. Section 35 (8), (9).
11. An insolvent may sue or be sued in his own name and this shall be of no bearing to
the estate under sequestration as provided by section 35 (10).
12. In terms of section 35 11 an insolvent person may recover any pension he may be
entitled to for his own benefit. He may also recover for his own benefit any
compensation for any loss or damage which he may have suffered by reason of any
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defamation or personal injury but may not proceed against the trustee for malicious
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prosecution or defamation without leave of the High Court.

13. In terms of section 37 if it appears to the Master that the value of all the movable
property of the estate under sequestration does not exceed the prescribed amount
and that it is in the interests of the creditors that such property be sold, he may
direct a sale to be made. However, the sale of any such property shall be subject to
any existing right of preference.
14. Where an insolvent alienates property acquired after the sequestration of his estate
without the trustee’s consent then such alienation is rendered valid if the person to
whom it was alienated proves that he was unaware or had no reason to suspect that
the estate of the insolvent was under sequestration.
d. The appointment and removal of trustees. Section 72.
 Upon the granting of a sequestration order, the court or Master may appoint a
provisions trustee who is intended to hold the office until the appointment of the
trustee.
 The provisional trustee shall tender security to the satisfaction of the Master for the
proper performance of his duties.
 A provisional trustee shall have the same powers and the duties of a trustee. However,
he shall not bring or defend any legal proceedings relating to the insolvent estate except
with the authority of the High Court. He shall not sell any property of the insolvent
estate except on terms and conditions as may be specified by the High Court.
Section 73. Election of trustee
 At the first meeting of the creditors they may elect one or two trustees. The elected
trustee shall be the person who would have obtained the majority in number and value
of the votes of creditors entitled to vote who would have voted at such meeting.
In the event that no person has obtained the majority referred to above then the person who would
have obtained a majority of votes in number, when no other person has obtained a majority of votes in
value, or has obtained a majority of votes in value, when no other person has obtained a majority of
votes in number, shall be deemed to be elected sole trustee in terms of section 73 (4).
In terms of section 73 (5), If one person has obtained a majority of votes in value and another person a
majority of votes in number, both such persons shall be deemed to be elected trustees and, if either
person declines joint trusteeship, the other shall be deemed to be elected sole trustee.
 The elected trustee provides the Master with sufficient security and the Master
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appoints his as trustee.

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 If no trustee is elected at the meeting, the Master or the insolvent with the consent of
the Master, may apply at the cost of the estate to the High Court by petition to set aside
the sequestration.
 Section 74 (1) provides that only persons registered in terms of the Estates
Administrators Act can be elected to be trustees. Subsection 2 thereto specifies persons
disqualified from being elected or appointed as trustees.
 In terms of section 75 (2), where no trustee is elected at the first meeting of the
creditors and the estate of the insolvent is vested in a provisional trustee, if the
provisional trustee provides additional security as may be required by the Master, he
may be appointed as the trustee.
If the insolvent estate is not vested in a provisional estate the Master may appoint a person as trustee
who shall provide such security as the Master may consider sufficient and will be appointed as trustee.
 Upon appointment the Master delivers a certificate of appointment and the trustee
notifies of his appointment and address in the Gazette as provided for by section 75 (4)
and (5).
 When two trustees have been appointed they shall jointly perform their functions and
they shall be jointly and severally liable for their acts. In the case of disagreement
between the two, the matter shall be referred to the master who will then determine
the question or give directions for the determination thereof in terms of section 75 (6).
 In terms of section 76 (1), the Master may decline to appoint a trustee if the person who
has been elected was either nor properly elected or, is disqualified in terms of section
74 or fails to give security or should not, in the Master’s opinion, be appointed as the
trustee. In such circumstances the Master should provide a written notice citing reasons
for his declination.
Where the Master has declined as such, subsection 2 provides that he shall convene a meeting of
creditors in order to elect another person as trustee which meeting shall be deemed to be a
continuation of the first meeting of the creditors.
 If the master declines to appoint the person elected at such second meeting then he
may, and upon the personhe proposes to appoint as trustee providing such security as
the Master considers sufficient, appoint such person as trustee in terms of section 76
(7).
 As provided by section 77, the office of the trustee shall become vacant if; the insolvent
estate has been sequestrated,
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 if an order is issued relating to his mental disorder or if he is declared incapable

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of managing his own affairs,

 if he is convicted of any offence and sentenced to serve any term of
imprisonment without the option of a fine or,
 if he is convicted of theft, fraud, forgery, uttering a forged document or perjury

or,
 if his registration under the Estates Administrators Act is either cancelled or

suspended.
 In terms of section 78, the High Court may disqualify a person from being a trustee or
remove a person from the office of trustee upon the application of any interested
person on any of the grounds specified under subsection 2
 In terms of section 79 the Master may remove a trustee from office for any of the
following reasons;
a) that he was not qualified for election or appointment as trustee or that his election or
appointment was for any other reason illegal or that he has become disqualified from
election or appointment as a trustee or has been authorized, specially or under a
general power of attorney, to vote for or on behalf of a creditor at a meeting of
creditors of the insolvent estate of which he is the trustee and has acted or purported
to act under such special authority or general power of attorney; or
b) that he has failed to perform satisfactorily any duty imposed upon him by this Act or to
comply with a lawful demand of the Master; or
c) that he is mentally or physically incapable of performing satisfactorily his duties as

trustee; or
d) that the majority, reckoned in number and in value, of creditors entitled to vote at a
meeting of creditors have requested him in writing to do so; or
e) that, in his opinion, the trustee is no longer suitable to be the trustee of the estate
concerned.
 The Master may also permit, at the trustee’s request, that the latter may be relieved of
his office upon conditions as the Master may think fit to impose and subject to his giving
such notice of his intention to resign in terms of section 80
 In the event of a vacancy in the office of the trustee of an insolvent estate for any
reason, the Master may convene a meeting of creditors of the estate for the purpose of
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electing a new trustee or trustees.

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e. Liquidation and distribution accounts and contributions by creditors.
 In terms of section 118, within six months following the appointment of a trustee, he
must lodge with the Master a liquidation account setting out the amounts received and
expended by him and a plan of distribution of the proceeds of the estate available for
payment to creditors. If the proceeds are insufficient to cover the costs of sequestration
the trustee must frame a plan of contribution, apportioning the liability of the deficiency
among creditors who are liable to contribute. Where the trustee has carried out
business on behalf of the estate he must prepare, in addition to the liquidation account,
a trading account setting out various details relating to the business in terms of section
122.
In practice, a bank reconciliation statement is invariably also drawn up.46
 In terms of section 120, the Master, if he opines that funds at hand with the trustee
ought to be distributed among the creditors whilst the trustee has not yet lodged with
the Master a distribution plan within the first six months of appointment, he may direct
him to lodge a plan for the distribution of those funds.
Liquidation account. Section 121
The liquidation account must contain an accurate record of all the moneys received and disbursed by
the trustee other than in the course of business carried out on behalf of the insolvent estate.
It must be accompanied by the trustee’s bank statement and by vouchers in support of the receipts and
disbursements.
If the account is not the final liquidation account, it should set out all the property still unrealized, all
outstanding debts due to the estate and stating out the reasons why that property has not been realized
or debts not collected.
Where the estate of a partnership is under sequestration then separate accounts shall be framed in the
estate of the partnership and in the estate of each member of the partnership whose estate is under
sequestration.
The distribution plan, Section 123
This shows how the proceeds of the assets in the estate are distributed. The Act requires a distribution
plan to show in parallel columns under separate headings;
(a) every claim or the part of every claim against the estate which is secured; and
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46
(b) every claim or the part of every claim which is entitled to enjoy a preference in the free residue of
the estate in terms of this Act; and
(c) every claim or the part of every claim against the estate not referred to in paragraph (a) or (b); and
(d) the amount awarded under the plan and under any previous plan of distribution to every creditor of
the estate; and
(e) the deficiency in respect of each claim against the estate;
The Contribution plan, Section 124
Where the proceeds of the secured assets are insufficient to pay the expenses, costs and charges
specified in section 100, the outstanding costs must be paid by the creditors whose claims are secured
by the assets, each being liable on a pro rata basis.
Where there are insufficient funds in the free residue to meet the costs of sequestration, the shortfall
must be made good by concurrent creditors and by secured creditors who would have been entitled to
share in the free residue. These concurrent creditors must contribute on proportion to the amounts of
their respective claims and secured creditors in proportion to the amounts by which they would have
ranked against the free residue subject to the proviso of section 117.
A plan of distribution must show in parallel columns each claim in respect of which the claiming creditor
is liable to contribute and the amount which he is liable to contribute and it should make provision for
all such contributories in accordance with section 117.
Rehabilitation of insolvents
The insolvency of a debtor is brought to an end through rehabilitation. This may take place by the lapse
of time prescribed but the debtor may apply to the court for rehabilitation before the end of the expiry
date.
An insolvent who has been awarded a certificate for the acceptance of a composition offer in terms of
section 136 (6) may apply to the high court for an order for his rehabilitation provided he gives a three
week notice of his intention to make the application in the gazette and to the trustee
Other insolvent persons apart from the ones specified in section 136 (6) may apply for rehabilitation in
terms of section 141 (2).
In terms of section 141 (4) after the confirmation of a distribution plan by the Master, the insolvent may
apply for rehabilitation after satisfying the three week notice condition.
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Not less than three weeks before making an application for the rehabilitation to the High Court an
insolvent must furnish to the register security for such amount as may be prescribed for the payment of
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costs of any person who may oppose the rehabilitation and be awarded costs by the High Court.
The application for rehabilitation. Section 143
An application for rehabilitation is made to the High Court supported by an affidavit containing an
averment that the applicant has made a complete surrender of his estate and has not promised any
benefit whatsoever to any person or entered into any secret agreement with intent to induce his trustee
or any creditor to oppose the rehabilitation and also a statement of his assets, liabilities and earnings at
the date of the application.
The affidavit must also state the matters in section 143 (b) (i)-(vii). The Master, the trustee and any
creditor or any other person interested in the estate may oppose the application in terms of section 144
(1).
The rehabilitation of an insolvent lies solely within the discretion of the court. However, the discretion
must be exercised judicially and not arbitrarily. Ex Parte Phillips 1938 CPD 381 at 384.
The High Court may; refuse the application or postpone the hearing of the application where it requires
further information for the proper exercise of its discretion-Ex Parte Isaacs 1952 (4) 128, rehabilitate the
insolvent on such conditions as it may think fit to impose or order the applicant to pay the costs of any
opposition to the application if it is satisfied that the opposition is not vexatious.
In terms of section 144 (3), among the conditions that may be attached to an order for rehabilitation,
the court may require the insolvent to consent to judgment being entered against him for the payment
of the unsatisfied balance of the debt which was, or could have been proved against his estate. In such a
case execution cannot be issued on the judgment except with leave of the High Court and on proof that
the insolvent has acquired property or income which is available for the payment of his debts.
The effects of rehabilitation-Section 146
The rehabilitation of an insolvent has the effect of putting an end to the sequestration, discharging the
debts of the insolvent which were due or which had arisen before sequestration and not out of any
fraud on his part, relieving the insolvent of every disability resulting from sequestration.
However, rehabilitation does not affect the rights of the trustee or creditors under a composition, the
powers or duties of the Master or trustee with regards to a composition, the right of the trustee or
creditors to any part of the estate which has not been distributed by the trustee, the liability of a surety
for the insolvent or the liability of any person to pay any penalty or suffer any punishment under the
Act.
THE PRESCRIPTION ACT, [CHAPTER 8.11]
Acquisitive Prescription
The operation if acquisitive prescription is dependent upon time and the uninterrupted possession of an
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item. Section 4 provides that a person becomes, by means of prescription, the owner of a thing which he
has possessed
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openly and as if he were the owner thereof for—
(a) an uninterrupted period of thirty years; or
(b) a period which, together with any periods for which such thing was so possessed by his predecessors
in title, constitutes an uninterrupted period of thirty years
Section 5 further provides that the involuntary loss of possession of an item does not interrupt the
operation of prescription provided possession is regained at any time by means of legal proceedings
instituted within six months after such loss for the purpose of regaining possession or if possession is
lawfully regained in any other way within one year of such loss.
The prescription of debts
The prescription of a debt is when the indebtedness of one person to another is regarded by law as
inactionable upon the expiry of a prescribed length of time. This implies that the creditor will not
ordinarily be capable of instituting proceedings against the debtor for the satisfaction of the
indebtedness. The prescription of debts is mainly governed by part IV of the act. Section 14 provides
that a debt shall be extinguished by prescription after the lapse of the period which in terms of the
relevant enactment applies in respect of the prescription of such debt. This shows that the prescription
of debts is not solely governed by this act but other enactments may provide for the prescription od
debts relative to them.
In terms of subsection (2), a subsidiary debt which arose from a principal debt or a debt which is
dependent upon a principal debt shall be extinguished by the prescription of the principal debt.
However, subsection (3) provides that;
(a) payment by the debtor of a debt after it has been extinguished by prescription in terms of this
section shall be deemed to be payment of the debt;
(b) an agreement made by the debtor to pay a debt after the debt has been extinguished by prescription
shall be enforceable; whether or not the debtor knew at the time that he made the payment or the
agreement that the debt had been extinguished by prescription.
The periodical prescription of debts is provided by section 15 of the Act which provides as follows;
The period of prescription of a debt shall be—
(a) thirty years, in the case of—
(i) a debt secured by mortgage bond;
(ii) a judgment debt;

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(iii) a debt in respect of taxation imposed or levied by or under any enactment;

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(iv) a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar
charge or consideration payable in connection with the exploitation of or the right to win minerals or
other substances;
(b) fifteen years, in the case of a debt owed to the State and arising out of an advance or loan of money
or a sale or lease of land by the State to the debtor unless a longer period applies in respect of the debt
concerned in terms of paragraph (a);
(c) six years in the case of—
(i) a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract;
(ii) a debt owed to the State; unless a longer period applies in respect of the debt concerned in terms of
paragraph (a) or (b);
(d) except where any enactment provides otherwise, three years, in the case of any other debt.
When prescription begins to run
Section 16 provides that prescription begins to run as soon as a debt is due. However, in the instance
where a debtor wilfully prevents his creditor from becoming aware of the existence of a debt,
prescription is considered not to be running until the creditor becomes aware of the existence of the
debt.
Secondly, a debt is considered not to be due until the creditor becomes aware of the identity of the
debtor and of the facts from which the debt arises:
Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he
could have acquired knowledge thereof by exercising reasonable care.
Additionally, in terms of section 19, the running of prescription is interrupted by an express or tacit
acknowledgment of liability by the debtor.
Further, if the running of prescription is interrupted by the express or tacit acknowledgment of liability
by the debtor, prescription commences to run afresh—
(a) from the date on which the interruption takes place; or
(b) if at the time of the interruption or at any time thereafter the parties postpone the due date of the
debt, from the date upon which the debt again becomes due.
The provisions of section 17 provide for circumstances where the completion of prescription is delayed.
Judicial interruption of prescription

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In terms of section 7 of the Act, the running of prescription is interrupted by the service on the
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possessor of the thing in question of any process whereby any person claims ownership in that thing.
Process in the Act id defined as referring to and including a petition, a notice of motion, a rule nisi or any
document whereby legal proceedings are commenced.
However, interruption of prescription by service of service shall lapse, and the running of prescription
shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question
does not successfully prosecute his claim under the process in question to final judgment or successfully
prosecutes his claim under the process in question to final judgment, but abandons the judgment or the
judgment is set aside.
As provided by section 7 (4), if the running of prescription is interrupted in terms of subsection (2), a
new period of prescription commences to run, if at all, only on the date on which final judgment is given.
THE SHOP LICENSES ACT, [CHAPTER 14.17]
An application for a new licence is submitted to the licensing authority within whose licensing the
premises or vending machine or machines in respect of which the licence is sought, is or are situated.
In terms of section 16 the application shall be accompanied by the prescribed fee, documents, plans and
specifications that may be prescribed, proof that the provisions of any other enactment relating to the
trade or business for which the licence is required, proof that the notices required in terms of section 14
have been made.
Section 14 requires that an applicant should publish in a newspaper circulating in the licensing area of
the licensing authority to which the application will be made, two notices of his intention to make the
concerned application. The first publication of the notice shall not be more than 42 days or less than 28
days before the date of the meeting at which the application is to be heard and the second publication
shall be not less than 7 or more than 14 days after the first publication.
In terms of section 15, any person who wishes to object to the issues of a new license in respect of
which a notice of intention to apply has been given shall, not later than 7 days of the last publication of
the notice, give notice in writing to the licensing authority of his intention to oppose the application and
shall state the grounds upon which the objection is based.
A licensing authority is empowered by section 19 on its own motion to take notice of any matter or
thing whatsoever which in its own opinion would be an objection to the granting of any application for a
new license though no objection has been made thereto by any other person.
The licensing authority is obliged to inform the applicant of such objection giving written grounds for
such objection and should adjourn further consideration of the application for a period of not less than 4
days to allow the applicant to reply to the objection
At the hearing of an application, the applicant or an objector or a person who has submitted a report in
terms of section 17 (1) shall be entitled to appear before the licensing authority in person or
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represented by a legal practitioner or some duly authorized representative thereof. These may give
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evidence, call witnesses and cross examine any witness called by any other party or by the licensing
authority.
Non- appearance of the applicant shall not be a ground for the refusal or dismissal of an application.
Section 20 of the Act sets out the decisions that may be made by the licensing authority. It may
unconditionally grant the application, or grant the application subject to a condition, restriction or
requirement, or grant the application on condition that the applicant takes such steps, whether before
or after the issue of the licence as may be specified by the licensing authority and within such period as
may be specified by the licensing authority or within such extension of that period as may be granted by
the licensing authority, to provide for or to remedy any matter, situation, condition or thing the absence
or existence of which would otherwise be a ground for refusal of the application in terms of subsection
(2). It may also grant the application on the condition that the applicant takes such steps as may be
specified by the licensing authority, whether before or after the issue of the licence and within such
period as may be specified by the licensing authority or within such extension of that period as may be
granted by the licensing authority, to erect, add to or alter any building or structure, or refuse the
application on any of the grounds specified in subsection 2, or postpone its consideration and decision
for such period it may deem fit in order to inspect the premises concerned or to have them inspected or
to make or cause any further investigation to be made in relation thereto or for any other reason.
The consideration of an application for a new licence shall be made within forty-five days of the day for
which notice in terms of section fourteen has been given unless, at the request of the applicant, the
hearing or determination of the application has been postponed for any longer period.
As soon as possible after its decision on an application for the issue of a new licence, the licensing
authority should notify in writing the applicant and each or any objector, as the case may be, of such
decision and the date thereof.
In terms of section 20 (4), if a licensing authority has refused an application for the issue of a new
licence, no further application by the same applicant for the same type of trade or business and, where
applicable, in respect of the same premises, shall be made within a period of six months from the date
of such refusal unless the ground for the refusal has in the meantime been removed.
THE LEGAL PRACTITIONERS ACT, [CHAPTER 27.07]
The Privileges of a Legal Practitioner
The practice of the law being a monopoly of legal practitioners, they are in return accorded number of
privileges which flow with the profession.
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Section 8 of the Act provides that;

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a. A legal practitioner who is in possession of a valid practicing certificate shall have the right of
audience in any court in which persons are entitled by law to legal representation.
b. A registered notary public who is in possession of a valid practicing certificate may execute,
attest and authenticate anything which is required to be executed, attested or authenticated by
a notary public.
c. A registered conveyancer in possession of a valid practicing certificate may prepare any

document for registration in a deeds registry or for attestation or execution by a register of
deeds.
The Act proscribes the practice of any of the above by any other person who is not a registered legal
practitioner, notary public or conveyancer who is in possession of a valid practicing certificate. In other
words, the practice of the law is made a reserve of the abovestated persons.
Practicing certificate and the prohibition from practicing without such certificates
Section 12 provides that no registered legal practitioner shall practice, whether as such or as a notary
public or conveyancer, directly or indirectly, by himself or in partnership or association with any other
person, except in accordance with the terms and conditions of a valid practicing certificate issued to
him.
This points out that the act of registration as a legal practitioner, notary public or conveyancer is not
enough if one is to practice the profession of the law. There is need to obtain a valid practicing
certificate and to abide by its terms and conditions in one’s practice of the profession.
However, the proviso to section 12 sets out that a person who is in the full time employment of the
State, in relation to things done in the course of his employment, or a person who holds a residential
exemption certificate, in relation to the matter the residential exemption certificate was granted or a
person who is in the full employment of the Zimbabwe Revenue Authority established by section 3 of
the Revenue Authority Act [Chapter 23.11] and who performs services for ZIMRA as a legal practitioner,
in relation to things done in the course of his employment shall be exempted from the requirement of
obtaining a practicing certificate.
A practicing certificate can either be full or limited. A full practicing certificate allows its holder to
practice fully as a legal practitioner and, if he has the necessary qualifications, as a conveyancer and
notary public. A limited practicing certificate is issued subject to conditions as provided by section 77 (1)
and allows practice with such conditions as may be set out.
Trust accounts and annual audits
Section 14 of the Act stipulates that a registered legal practitioner shall keep proper books of account
101
containing particulars and information of moneys received, held or paid by him for on account of any
other person, and moneys deposited by him in his trust accounts and interest paid on moneys deposited
Page
in a trust account.
In terms of section 13, every registered legal practitioner who holds or receives any moneys for or on
behalf of another in his capacity as a legal practitioner, notary public or conveyancer or as an executor,
administrator or trustee should open and keep a current account at a bank as a separate account in
which he shall deposit all such moneys.
Such legal practitioner may also additionally open and keep a trust account bearing interest at a bank or
building society or with an institution approved by the Council of the Society for such purposes.
In terms of section 13 (5), the trust account so opened must indicate that it has been opened in terms of
either subsection 1 or 2.
The interest on the moneys deposited in the account shall be paid by the registered legal practitioner
concerned to the Law Society Compensation Fund in the manner and at the time prescribed by the By-
laws less such portion which is prescribed by the Council which the legal practitioner may retain as
compensation for the operating and auditing of such trust account.
In terms of by-law 5, a trust account withdrawal should be made upon seven days’ notice.
Before commencing practice on his own, a legal practitioner must satisfy the Secretary of the Law
Society that an auditor has explained to him how to operate a proper accounting system in respect of
his trust accounts as required by by-law 71C.
It must be ensured that a legal practitioner’s own funds must be kept separate from his trust accounts.
In terms of by-law 70F, a legal practitioner must deposit trust funds promptly into the trust bank
account either on the same day of receipt or on the next reasonably possible banking day.
The moneys deposited into trust accounts must strictly be used for the purposes they were intended by
the legal practitioner’s clients. A legal practitioner must account to his client in writing for all money
deposited and withdrawn from the accounts without delay.
It is an act of professional misconduct for a legal practitioner to withhold payment of trust money
without lawful cause in terms of section 23 (1) of the Act. As set out in the case of Chizikani v Law
Society of Zimbabwe47, if the conduct of the legal practitioner amounts to theft then the normal penalty
is cancellation of his registration for such conduct amounts to undermining the relationship between
client and legal practitioner.
The trust accounts must be written up at least once a month and balanced every three months. Every
month a practitioner must record the balance standing to the credit of each client in his accounts in
terms of by-law 70B (2).
Discipline and the powers of the disciplinary tribunal

102
Section 23 of the Act provides for acts which are considered to be strictly unprofessional, dishonourable
or unworthy on the part of a legal practitioner. In terms of section 53 (c) of the Act, the Law Society is
Page
47
charged with the responsibility to define and enforce correct and uniform practice and discipline among
legal practioners.
This position obtains because the practice of the law is an honourable and noble profession. For these
reasons the Law Society has established a Disciplinary Committee which carries out investigations into
allegations of unprofessional conduct whether committed by registered legal practitioners or legal
assistants who are undergoing practical training prior to being registered.
Aggrieved persons who seek to register their dissatisfaction about the conduct of a legal practitioner or
legal assistant lodge a complaint with the secretary of the society. The secretary then calls the
implicated legal practitioner or assistant to answer to the complaint within 14 dayd in writing.
If the secretary, after considering the written submissions, thinks there is substance in the complaint, or
if the complainant insists on further action, the secretary must refer the matter to the Disciplinary
Committee in terms of by-law 61.
On another note, if the secretary learns of possible misconduct on the legal practitioner’s part, he may
write to the practitioner or the assistant concerned and call on him to reply to the allegations in writing
within 14 days. It should be noted that an unreasonable failure to reply when called upon to do so by
the secretary is unprofessional conduct in terms of by-law 65.
Upon receipt of the forwarded complaint to it, the Disciplinary Committee conducts an investigation
into the allegations and must decide whether or not the evidence discloses a prima facie case of
unprofessional conduct. In carrying out its investigations the Disciplinary Committee may call upon the
practitioner or assistant concerned to provide answers in the form of books or records. Unreasonable
failure to reply to these demands by the Disciplinary Committee amounts to unprofessional conduct in
terms of by-law 65.
After conducting investigations the Disciplinary Committee then refers the matter to the Council of the
Society together with its findings and recommendations on further course of action.
By-law 63 provides for the possible courses of action that may be taken by the Council.
Where the Council considers that further investigation is a necessity before it takes its ultimate decision,
it refers the matter back to the Disciplinary Committee for further investigations or any other directions
it may see fit to recommend.
If it considers that a prima facie case of unprofessional conduct has not been disclosed, it directs the
secretary to advice complainant and the legal practitioner or assistant of its findings.
Where it is satisfied that a prima facie case of unprofessional conduct has been disclosed and that the
legal practitioner or assistant has been afforded the reasonable opportunity to respond, it may
103
adjudicate the matter itself and may admonish the legal practitioner or assistant or it may refer the
matter to the Disciplinary Tribunal.
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The Disciplinary Tribunal
The reference to the Disciplinary tribunal must be in writing, signed on behalf of the Law Society setting
out the allegations of unprofessional conduct against the legal practitioner or assistant concerned.
It must contain a summary of the evidence sufficient to inform the practitioner or assistant of the
material facts relied upon by the society. It must be filled with the registrar of the High Court.
The Disciplinary Tribunal is established in terms of section 24 of the Act. It is composed of the
Chairperson and two other persons. The Chairperson should be an active judge or a retired one who
selects the other two persons from a panel of names recommended by the Council.
Upon reference of a matter to it, the Disciplinary Tribunal may hold an inquiry into the matter or decide
not to hold any inquiry and chose to get the Registrar to serve the application on the legal practitioner
or assistant asking him to file a counter statement in terms of section 4 of the Legal Practitioners
Disciplinary Tribunal Regulations, within 21 days. The decision of the Disciplinary Tribunal not to hold
any inquiry may not be appealed against.
The Society and the respondent have the right to appear before the Disciplinary Tribunal either in
person or with legal representation as provided by section 10.
Whilst the views of the society may be persuasive before the tribunal, they are not binding upon the
tribunal. See the case of Cape Law Society v Berrange 2005 (5) SA 160 (C). The Disciplinary Tribunal has
the authority to summon witnesses, to take evidence on oath or by affidavit in terms of section 11 (5),
or to examine books and documents in terms of section 27 of the Act.
The nature of the matter before the tribunal determines the threshold of proof required. Where the
reference is of a criminal nature such as the misappropriation of trust funds, the law society must prove
its case beyond a reasonable doubt. Likewise, where the matter is more on the civil side, the burden is
on a balance of probabilities. See Pitluk v Law Society of Rhodesia 1974 (2) RLR 245 (A).
In terms of section 28 (1), where the Disciplinary Tribunal is satisfied that a legal practitioner or assistant
is guilty of unprofessional conduct it may;
 Direct that his name should be deleted from the appropriate register
 Suspend him
 Impose conditions on his practice
 Order him to pay a penalty of up to level 6 which is payable to the Law Society Compensation
Fund
104
 Censure him
Page
 Caution him, and in terms of section 28 (2), if the proceedings were against a legal assistant, it
may additionally prohibit his registration as a practitioner either indefinitely or for a specified
period.
The Disciplinary Tribunal must notify the Society and the Registrar of the High Court of its decisions and
if the Chairperson may direct the registrar to cause them to be published. The decision for the deletion
of a practitioner from the register or suspension from practice must strictly be published by the
Registrar.
The Labour Act, [Chapter 28.01]
The primary solution to labour disputes and unfair labour practices should be set up at the workplace.
An employer is obliged to set up structures which are composed of employer and employees
representatives, aimed at presiding and deciding over labour disputes and unfair labour practices at
workplaces.
Various workplaces have their own codes of conduct which set out the duties, responsibilities and rights
of the employee flowing from the employer-employee relationship.
In the absence of a workplace code of conduct which regulates the solution of disputes, an employer is
obliged to have resort to the Labour (National Employment Code of Conduct) Regulations, 2006, SI 15 of
2006 which provides for a dispute resolution procedure in section 6 which provides as follows;
(1) Where an employer has good cause to believe that an employee has committed a misconduct
mentioned in section 4, the employer may suspend such employee with or without pay and benefits and
shall forthwith serve the employee with a letter of suspension with reasons and grounds of suspension.
(2) Upon serving the employee with the suspension letter in terms of subsection (1), the employer shall,
within 14 working days investigate the matter and conduct a hearing into the alleged misconduct of th
employee and, may, according to the circumstances of the case—
(a) serve a notice, in writing, on the employee concerned terminating his or her contract or employment,
if the grounds for his or her suspension are proved to his or her satisfaction; or
(b) serve a notice, in writing, on the employee concerned removing the suspension and reinstating such
employee if the grounds for suspension are not proved.
(3) A determination or order served in terms of subsection 2(b) shall provide for backpay and benefits
from the time of the summary suspension.
105
In terms of section 8 of the regulations, an employer may have an appeals structure to which a
displeased person may appeal. The appeals officer should dispose of the appeal within 14 working days
from the date of the receipt of the appeal.
Page
Section 8 (5) provides that where a party is displeased with the outcome of the appeal, they may refer
the matter to a Labour Officer or an Employment Council Agent within seven working days of the receipt
of the decision. The Labour Officer or an Employment Council Agent to whom the dispute has been
referred should deal with the matter in the manner provided by section 93 of the Labour Act.
In terms of section 93 of the Act, the Labour officer to whom the labour dispute or unfair labour practice
has been referred or where it comes to his attention shall attempt to settle it by means of conciliation.
The Labour Officer takes the role of conciliator and brings the parties to try and solve the dispute by
reaching a settlement amongst themselves. The process of conciliation should take a maximum of 30
days to settle the matter but parties may agree to extend the period beyond the 30 days in terms of
section 93.
Where the labour officer, in his capacity as a conciliator manages to settle the dispute or unfair labour
practice he records the settlement in writing.
Where he fails to settle the matter he shall issue a certificate of no settlement to the parties signifying
that the parties have failed to reach an agreement to settle the matter.
In terms of section 93 (5), after issuing a certificate of no settlement the labour officer shall refer the
matter to compulsory arbitration where thw dispute is one of interest and the parries are engaged in an
essential service. He may also refer the dispute to compulsory arbitration where the parties to the
dispute agree to do so or where the dispute or unfair labour practice is one of right.
Section 98 (2) provides that the Arbitration Act shall apply to a dispute referred to compulsory
arbitration.
Upon referring a matter to compulsory arbitration, the labour officer determines the arbitrator’s terms
of reference after consultation with the parties to the dispute setting out the issues that should be
determined by the arbitrator.
In terms of section 98 (5), in referring a dispute to compulsory arbitration, the labour officer shall
appoint an arbitrator who, as provided by section 98 (9), shall have the same powers as the Labour
Court upon determining a matter.
Section 98 (13) provides that at the conclusion of the arbitration proceedings the arbitrator shall submit
sufficient copies of his arbitral award to each of the parties affected by it.
In terms of section 98 (14), a party to whom an arbitral award relates may submit for registration the
copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have
had jurisdiction to make an order corresponding to the award had the matter been determined by it, or,
if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.
106
The registration of the award in terms of subsection 14 gives the award the effect of a civil judgment of
the appropriate court for the purposes of enforcement.
Page
An appeal against the award of the arbitrator is made in terms of Rule 15 of the Labour Court Rules,
2006 and the procedure to be followed is specified thereunder. The appeal should be made within 21
days of receipt of the decision or award to be appealed against.
Rule 14 provides for applications to the Labour Court for the determination of matters where a
certificate of no settlement would have been issued and the parties referred the matter to the Labour
court in terms of section 89 (2) (b, c). the application should be made within 21 days of receipt of the
certificate of no settlement or the expiry of 30 days from the non issue of a certificate of no settlement
by the Labour officer. Rule 14 provides for the procedure that should be followed upon such application.
Review procedures of the proceedings is provided for by rule 16 of the rules.
THE MATRIMONIAL CAUSES ACT, [CHAPTER 5.13]
Additional jurisdiction of the High Court in divorce matters
In granting a decree of divorce the high court has the power to order redistribution of matrimonial
property, to decide on guardianship and custody of children and maintenance.
The provision of additional jurisdiction is operative upon the condition that the wife is the plaintiff or
applicant—
(a) if the wife has been deserted by her husband and, immediately before the desertion, the husband was
domiciled in Zimbabwe, notwithstanding that the husband has changed his domicile since the desertion;
or
(b) if the marriage was celebrated in Zimbabwe and the wife has resided in Zimbabwe for a period of at
least two years immediately before the date of commencement of the action and is still so residing,
notwithstanding that the husband has never been domiciled in Zimbabwe; or
(c) if at the date of commencement of the action the wife is a citizen of Zimbabwe and, immediately
before that date, she has been ordinarily resident in Zimbabwe for a period of not less than two years
and is still so residing.
(2) The High Court shall, in an action referred to in subsection (1), have jurisdiction to entertain any
counterclaim made by the husband which arises out of the marriage.
Irretrievable breakdown as the only ground for divorce

107
The introduction of the matrimonial causes act modernized and unified the law on divorce. Under the
act it does not matter whether a marriage is in terms of the The Marriages Act or the Marriage Act. The
grounds for divorce are now the same in either case. The Act did away with the ‘fault’ or ‘guilt’ principle
Page
which, as demonstrated by Ncube, had become archaic and irrelevant to the expectations of modern
society. In the past a party who was responsible for the breakdown of the marriage could not
successfully sue for divorce if the innocent party opposed the divorce proceedings. The Act introduced
the principle of “irretrievable breakdown” so that it does not matter anymore whether the person who
is seeking divorce is the guilty or innocent party. As long as they can prove that the marriage has
irretrievably broken down they can successfully sue for divorce.
Section 4 of the Act provides that a marriage may be dissolved by a decree of divorce by an appropriate
court only on the grounds of irretrievable break-down of the marriage if it is satisfied that the marriage
relationship between the parties has broken down to such an extent that there is no reasonable
prospect of the restoration of a normal marriage relationship between them or on the grounds of
incurable mental illness or continuous unconsciousness of one of the parties to the marriage.
The provision makes it clear that only the grounds specified in the Act are to be considered. In the case
of Takafuma v Takafuma 1994 (2) ZLR 103 (S) the court pointed out that the courts are reluctant to delve
into the general issue of marital misconduct. Once it is found that the marriage has irretrievably broken
down, it is neither helpful nor proper to apportion blame for the brakedown. However the question of
misconduct may be properly be taken into account in deciding whether a spouse should be granted
custody of children. It was held thst in its overall effort to order a fair division of assets or of
maintenance, the court may permit consideration of the conduct of the parties to effect the final order
to the extent to which it would be just.
Division of matrimonial assets
Matrimonial property rights of spouses upon divorce are governed by the provisions of the matrimonial
causes Act. The Act applies to registered marriages only. The Act empowers a court to make an
equitable division of matrimonial property following a divorce. Divorce matters in respect of the
Marriage Act are dealt with by the High Court only whereas the Magistrates Court has powers to deal
with divorce and other ancillary matters in respect of marriages under the Customary Marriages Act.
The phrase appropriate court as used in the matrimonial causes act is defined in section 2 as meaning;
(a) the High Court, in relation to any marriage;
(b) a magistrates court, in relation to any marriage entered into in accordance with customary law;
“marriage” includes a marriage solemnized in term of the Customary Marriages Act *Chapter 5:07+.
Section 7 of the Act provides guidelines for the guidelines for the Court in apportioning and distributing
matrimonial property.
The relevant factors that the court takes into consideration include;
(a) the income-earning capacity, assets and other financial resources which each spouse and child has or
108
is likely to have in the foreseeable future;

Page
(b) the financial needs, obligations and responsibilities which each spouse and child has or is likely to
have in the foreseeable future;
(c) the standard of living of the family, including the manner in which any child was being educated or
trained or expected to be educated or trained;
(d) the age and physical and mental condition of each spouse and child;
(e) the direct or indirect contribution made by each spouse to the family, including contributions made by
looking after the home and caring for the family and any other domestic duties;
(f) the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which
such spouse or child will lose as a result of the dissolution of the marriage;
(g) the duration of the marriage
In terms of section 7 (3) (a), items which are of particular sentimental value to one of the spouses shall
be excluded from the property to be distributed.
Recognition of certain divorce decrees and other orders
this is governed by section 12 of the act which provides that;
(1) An appropriate court may recognize the validity of any decree or order of divorce, judicial separation
or nullity of marriage made in any country in any case in which the husband was not domiciled in that
country if—
(a) it is satisfied that the law of that country contains provisions which correspond substantially to the
relevant provisions of section three; or
(b) the President has, by proclamation in a statutory instrument, declared that the laws of that country
contain provisions which correspond substantially to the relevant provisions of section three.
(2) No proclamation shall be issued in terms of paragraph (b) of subsection (1) unless the President is
satisfied that adequate provision is made under the law of the country concerned for the recognition by
the courts of that country of the decrees and orders made under section three in any case in which the
husband is not domiciled in Zimbabwe.
(3) The President may at any time revoke any proclamation issued in terms of paragraph (b) of
subsection (1).
THE WILLS ACT, [CHAPTER 6.06]
The application of the Act

109
Page
Section 3 of the Act provides for the application of the Act. The Act is said said to be applicable to wills
made on or after the 1st of January 1988. Section 3 (2) provides that in relation to wills made before the
1st of January 1988, the Act shall apply to;
(a) the power of the testator to make any provision, disposition or direction in any such will; and
(b) the amendment, revocation, revival, rectification, theft, concealment or destruction of any such will,
where the amendment, revocation, revival, rectification, theft, concealment or destruction is done on or
after the 1st January, 1988; and
(c) the acceptance in terms of section ten, eleven or twelve of any such will which, if it had been made on
or after the 1st January, 1988, would have been valid as a soldiers will, a will made during an epidemic or
an oral will; and
(d) the effect upon any such will of the testator’s marriage or of the dissolution or annulment of his
marriage, where the marriage or the dissolution or annulment thereof, as the case may be, took place on
or after the 1st January, 1988; and
(e) the effect upon any such will of the birth, legitimation or adoption of a child, where the birth,
legitimation or adoption took place on or after the 1st January, 1988; and
(f) the application of foreign law to determine the formal validity of any such will, where the testator is
alive on the 1st January, l988.
17.2. Capacity to make a will.
Every person who is of or over the age of sixteen years has the capacity to make a will a will unless at
the time of making the will he is mentally incapable of appreciating the nature and effects of his act.
Section 4 (2) provides that the fact that a person has been interdicted as a prodigal shall not invalidate
any will that he made before he was so interdicted or any will that he makes whilst he is so interdicted.
However, this is subject to the extent that the will shows signs of prodigality in the disposition of his
estate.
Section 3 provides that a minor or any person with or suffering from legal disability who is competent to
make a will shall not require the authority or assistance of any other person in doing so.
Section 4 provides for the imposing of a burden of proof on the person alleging that the testator was not
competent when that will was made.
Capacity to benefit under a will.
This is provided for in terms of section 6 of the Act which provides that any person, whether born or
110
unborn, natural or juristic and whatever his legal capacity, may receive a benefit conferred by or in
terms of a will.
Page
Subsection 2 goes on to provide for persons who are disqualified from benefiting under a will as follows;
(2) Subject to this section and to any other enactment, the following persons shall not be capable of
receiving any benefit conferred by or in terms of a will—
(a) any person who signs the will as a witness to the making thereof or as a witness to the making of any
amendment in the will;
(b) any person who, in accordance with paragraph (b) of subsection (1) of section eight or paragraph (a)
of subsection (2) of section nine, signs the will or any amendment in the will in the testator’s presence
and at his direction;
(c) any person who, on behalf of the testator or at his direction, personally writes out the will or any part
of it that confers a benefit upon him;
(d) any magistrate, presiding officer of a community court, justice of the peace, commissioner of oaths or
designated official who has certified the will in terms of subsection (2) of section eight or who has
certified any amendment in the will in terms of subsection (3) of section nine;
(e) where the testator was a minor or under a legal disability at the time the will was made, any person
who at that time was—
(i) a guardian of the testator, other than a parent; or
(ii) a curator, trustee or administrator of the testator; as the case may be;
(f) any person who, when the will was made or amended, as the case may be, was a spouse or child of a
person incapable of receiving a benefit under the will by virtue of paragraph (a), (b), (c), (d) or (e);
(g) any person who claims the benefit through a person incapable of receiving the benefit under the will
by virtue of paragraph (a), (b), (c), (d), (e) or (f);
(h) any person who, through fraud, duress or undue influence, has—
(i) caused the testator to make the will or to insert therein the provision conferring the benefit upon him;
or
(ii) prevented or attempted to prevent the testator from altering the will or making a new will;
(i) any person who unlawfully destroys or conceals a will made by the testator or a copy of such a will;
(j) any person who has unlawfully and intentionally killed—
(i) the testator; or
(ii) any person from whom the testator has inherited the benefit concerned, where such other person and
111
the testator were married to each other or were parent and child; or
(iii) any other person through whom his claim to the benefit derives;
Page
(k) any person who, in some way other than by causing the death of a person, has by his unlawful and
intentional act or omission directly caused the benefit to be conferred upon him.
Competent witnesses.
Section 7 of the act provides that any person who is or over the age of sixteen years; and is competent
to give evidence in a court of law, and is physically capable of seeing a testator sign his will or
acknowledge his signature on a will shall be competent to witness the signing of a will or the
acknowledging of a signature on a will for the purposes of the Act.
Amendments of wills.
This is provided for in terms of section 9 of the Act which provides for the formalities that should be
followed in order for a legally valid amendment to be effected to a will. These formalities are in the
form of signature and witnesses.
The testator should sign and there should be witnesses to that effect in terms of section 8 of the Act.
Section 9 (1) (b) provides for the definition of a signature and in other circumstances where a signature
is said to have been effected.
Further, section 9 (5) provides that where an amendment in a will completely obliterates, renders
illegible, excises or destroys any words or part of the will, it shall be presumed, unless the contrary is
proved, that the testator intended to revoke those words or that part, as the case may be.
The formalities of making wills
Section 8 (1) provides that a will shall not be valid unless it is in writing and the testator, or some other
person in his presence and at his direction, signs each page of the will as closely as may be to the end of
the writing on the page concerned; and each signature is made or acknowledged by the testator in the
presence of two or more competent witnesses present at the same time and each competent witness
either signs each page of the will or acknowledges his signature on each page of the will in the presence
of the testator and of the other witness.
However, this is subject to the provisions of section 8 (3) which provides that section 8 (1) shall not
apply to soldiers’ wills, wills made during epidemics or oral wills and also subject to subsection 5 which
creates and confers a discretion on the part of the Master to accept a will which did not comply with the
requirements of section 8 (1) but which to his satisfaction represent the intention of the testator. The
Master can exercise his discretion and accept the will for the purpose of the Administration of Estates
Act even though it does not comply with the formalities. See the case of Mashakada and Others v The
Master of the High Court.
112
Effect of subsequent marriage on a will.
This is governed by section 116 of the Act which provides that a will shall become void upon the
Page
subsequent marriage of the testator.

This is only a general rule that has exceptions to it. Section 16 (2) provides that a joint will shall not
become void upon the subsequent marriage of the testator to the extent that the will effects a massing
of the estate or any property of the joint testators and if the surviving testator has accepted some
benefit under the will before his subsequent marriage.
Section 16 (3) provides that a will made by a man who is married under a system permitting polygamy
shall not become void if, while still so married to one or more wives, he marries another wife.
Section 16 (5) provides further that a will shall not become void upon the subsequent marriage of the
testator to the extent that the will disposes of property which would not have gone to the spouse or
issue of the subsequent marriage of the testator had died intestate.
Rectification of wills.
This is provided for in terms section 20 of the Act. Subsection 1 provides that if an appropriate court is
satisfied that a will is so expressed that it fails to carry out the testator’s intention, in consequence of a
clerical error or a failure to understand the testator’s instructions or a failure on the part of the testator
to appreciate the effect of the words used in the will, the court may order that the will be rectified by
the insertion, deletion or substitution of any words so as to carry out the testator’s intentions.
113
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COUNCIL FOR LEGAL EDUCATION

STATUTE LAW SYLLABUS

1.1 The Constitution as the supreme law of Zimbabwe

9.1. Voluntary and compulsory sequestration and the procedures to be

9.2. The effects of sequestration

9.3. The appointment and removal of trustees

9.4. Liquidation and distribution accounts and contributions by creditors

9.5. Rehabilitation of insolvents

10 The prescription Act Chapter 8.11 78

11 The Shop licences Act Chapter 14.17 80

12 The Legal Practitioners Act 82

12.1. The privileges of Legal Practitioners

12.2. Practicing certificates and prohibition of practicing without certificates

12.3 Trust accounts and annual audits

12.4. Discipline and the power of the Disciplinary Tribunal

13 The Labour Act Chapter 28.01 86

14 The Matrimonial Causes Act 88

14.1. Additional jurisdiction of the High Court

14.2. Irretrievable breakdown as the only ground for divorce

14.3. Division of matrimonial assets

14.4. Recognition of certain divorce decrees and orders

15 The Wills Act Chapter 6.06 91

15.1. The application of the Act

15.2. The capacity to make a will

15.3. The capacity to benefit under a will

15.4. Competent witnesses

15.5. Amendments to wills

15.6. The formalities of making a will

15.7. The effects of subsequent marriage on a will

15.8. The rectification of wills

Peremptory: S V Takaendesa3, S V Rufaro Hotel 4

Compare with section 2 of the COPAC Draft 2013

1.2. Ultra vires legislation and common law to the constitution

1.3. Sources of law

Chihowa 1987(1) ZLR356

Conclusively, the development, appreciation of customary law as faced resistance as it is

1.4. Citizenship law

repealed the dual citizen provision by section 2 of SI1/1983.

1.5. Declaration of Rights (derogations)

Zimbabwe’s bill of rights is in Chapter 3 of the constitution. It stretches from Section 11 to

Right to personal liberty

Law Making Process

Law making-up Parliament

PASSAGE OF BILLS IN PARLIAMENT

2. Reference to Parliamentary Legal Committee

Transmission to the other house

If the committee presents an adverse report on a statutory instrument, that report is

However, the system may be defended on the following grounds:

hazardous drugs – so it makes sense to leave it to the experts [Labour legislations)

9 Powers of Parliament in relation to citizenship

Chirwa v Registrar-General 1993 (1) ZLR 1 (HC)

Todd v Registrar-General & Anor 2002(1) ZLR 407(S)

Registrar-General v Todd 2003(1) ZLR 104(S)

CHAPTER III THE

11 Fundamental rights & freedoms of the individual

Hewlett v Minister of Finance & Another 1981 ZLR 571 (AD)

In re Munhumeso & Others v 1994 (1) ZLR 49 (SC)

12 Protection of right to life