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(d) The Legal Practitioner Any person accused of committing a crime or any party in a civil matter may be represented by a legal practitioner. An exception to this rule is found in the village and community courts. Until recently, a lawyer was either an advocate or an attorney. Both were legally qualified
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Judicial precedent Judicial precedent (stare decisis) is arguably the second most important source of law in Zimbabwe after legislation. The Latin maxim stare decisis means to stand by the precedents and not disturb settled points of law. Most advanced legal systems all over the world apply the doctrine of judicial precedent to a greater or lesser degree. As Salmond puts it, The importance of judicial precedent has always been a distinguishing characteristic of English law . . . Stare decisis is a good maxim and one to be generally followed but it is conceivable that circumstances may arise which would render it a lesser evil for a court to override its own legal opinion, clearly shown to be wrong, than to indefinitely perpetuate its error and save under the most exceptional circumstances however a court should be bound by its own decisions unless and until they are overruled by a higher tribunal on appeal. To adopt any other rule would impair the dignity of the court, and would introduce a total uncertainty into business transactions and legal proceedings . . . In Zimbabwe the decisions of the Superior Courts (High Court and Supreme Court) are binding on all the lower courts. Where a case is applicable the lower courts do not have any discretion in this respect, the Supreme Court and High Court decisions must be followed even if patently incorrect. The decisions of the Supreme Court are binding on all other
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The common law base of Zimbabwean law is Roman-Dutch law, which is a fusion of Roman law and Dutch customary law. It is a unique brand of law in that its elements may be traced mainly to the writings of Roman-Dutch jurists such as Hugo Grotius, Johannes Voet and van der Linden. Having said this, the Constitution of Zimbabwe implies that the common law of Zimbabwe is Roman-Dutch law to the extent that it was influenced by English law. It must be noted however, that, unlike Roman-Dutch authority which is binding on the courts, English law only has persuasive influence, that is, it is not binding on the courts but may be resorted to where the law is unclear. Therefore, the distinction between judge-made law and persuasive sources of law is that like with legislation (both primary and delegated) both are binding sources (they must be followed where appropriate) whereas with persuasive sources of law (e.g decisions of other jurisdictions) they may be followed where appropriate. Customary law is the final binding source of law. African customary law is a specialised form of law in Zimbabwe. The countrys dual legal system means that, in certain matters, there is the potential application of two different systems of law, general law and customary law, each with different legal consequences. Customary law comes into force where an act has, for some considerable time, been performed in that particular way. Where the state requires obedience to the custom, it is law. This was illustrated in the case of Van Breda v Jacobs (1919), where the court upheld the custom in fishing trade whereby persons involved in fishing could lay a claim to fish in the sea not yet captured in their nets as long as they were in the line of their nets. The custom must be reasonable, proved to have been in existence for a long time, generally recognised and observed by the community and certain, clear and consistent with statute. Customary law, as a source of law is binding on our courts, subject to certain statutory entrenched legal considerations. Having considered the nature and distinction of binding sources of law, it is necessary to consider the nature and distinction of persuasive sources of law. Authoritative texts are the principal persuasive sources of law. The term authoritative texts refers to writings by leading authorities in the field of law. As already noted, books written by Roman-Dutch jurists are binding sources of Roman-Dutch law and are treated as such in the courts. Under the head of authoritative texts fall modern textbooks and scholarly articles and publications. Unlike binding sources of law, these have no inherent authority of their own, but may be regarded as very persuasive sources of law, where neither legislation nor case law are in point; or where they are explaining a legal point, which is not clearly covered in a binding source of law. Into the same category may fall legal judgments from foreign jurisdictions such as South Africa or England. Decisions from South African courts are highly persuasive having regard to the fact that they have a Roman-Dutch law basis. Any worthy system of law is prepared to be influenced by the reasoning on basic legal issues of another i.e legal borrowing. The persuasive nature of an opinion of an author depends, inter alia, on the standing of the author or jurisdiction in the field of law in question, the reputation of the author among judges, the scholarly level of the piece of work involved and the covering nature of the presentation. It can be concluded, therefore, that what distinguishes a binding source of law from a persuasive one is that the former is compelling on the courts, whereas the latter merely
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Community Courts and Primary Courts These courts generally deal with civil matters fully falling within the force of customary law and custom practices. Therefore, clearly, these courts have no criminal jurisdiction. Primary Courts are presided over by a headman in terms of s.11(1) of the Customary Law and Local Courts Act (hereinafter called the Act) and the Community Courts are presided over by chiefs in terms of s.11(2) of the Act. Jurisdiction In terms of s.15 of the Act, a local court shall have jurisdiction to hear, try and determine any civil case in which customary law is applicable where the defendant is normally resident within the area of jurisdiction of the court, the cause of action or any element thereof arising within such area or where the defendant consents to the jurisdiction. In terms of s.16(I) of the Act, local courts have no jurisdiction in any case where the claim is not determinable by customary law. In terms of s.2 of SI 220/2001, SI 30/2002 and SI 29/2002, the court has no jurisdiction where the claim of any article exceeds $40 00000 for chiefs. Like the Magistrates, local courts cannot determine the validity or effect of interpreting a will. Local courts have no jurisdiction whatsoever to dissolve any marriage. However local courts can adjudicate upon marital relationships which, though recognised by customary law, have not been solemnised in terms of the Customary Marriages Act. These are better known as unregistered customary unions. Matters involving the custody or guardianship of minors are not determined by customary law and therefore, it naturally follows that local courts have no jurisdiction. Since maintenance is also governed by the Maintenance Act, only Magistrates Courts are Maintenance Courts and can validly adjudicate maintenance claims. Even the High Court is not a Maintenance Court, but of course can hear the maintenance claim because of its unlimited jurisdiction. However local courts may make various orders under s.17(a)(f) of the Act, for example payment of damages, order specific performance of a contract or order the payment of penal damages where customary law so permits or requires. Interpretation of statutes (a) The Literal Rule In terms of the canons of statutory interpretation, the court will usually begin its interpretation of a statute by applying the literal rule, that is, the words of a statute must be interpreted in their ordinary literal meaning. In construing the statute the object is, of course, to ascertain the intention which the legislature meant to express from the language which it employed. By far the most important rule to guide courts in arriving at that intention is to take the language of the instrument as a whole and when the words are clear and unambiguous, to place upon them their grammatical construction, and to give them their ordinary effect. As was said by the court in Volschenk v Volschenk (1946) The cardinal rule of construction is that words must be given their ordinary effect . . . (b) The Golden Rule The courts will normally seek to ascertain the intention of the legislature from the words of the statute itself. However in practice, the court may find that the literal rule is
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(a) The right to life In Zimbabwe unlike countries like South Africa and European Union member states, the death penalty is a competent criminal sanction for crimes like murder (where there are no extenuating circumstances) and treason. According to the law certain categories of
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