Faculty of Law

Department of Public Law

NAME

NDHLOVU BRIGHT BONGANI

REG NUMBER

R164843M

MODULE CODE

LB103

MODULE NAME
LAW

HISTORY OF ROMAN-DUTCH

YEAR

LEVEL:

2016

1.1

QUESTION
GIVE A DETAILED ACCOUNT ON SUBSTANCE AND CONTENT
OF COMMON LAW IN ZIMBABWE [30 MARKS]

GIVE A DETAILED ACCOUNT ON THE SUBSTANCE AND CONTENT OF COMMON

LAW IN ZIMBABWE [30 MARKS]
KEYWORDS DEFINITION
SUBSTANCE:

The real physical matter of which a thing consists

CONTENT:

everything that is included and held in something

COMMON LAW: unwritten law established by following earlier judicial decision

QUESTION OVERVIEW
This question requires one to review the physical matter and everything that is included and held
in unwritten law of Zimbabwe. This suggests that there are many components that form the
common law in Zimbabwe. These components are largely Roman-Dutch law and English law
with traces of Germanic Customs and International law. Therefore this essay will expatiate on
how did these components conjugate and blend to form what is now known as Common law in
Zimbabwe. This essay will go further and explicate how the plural or hybrid law still applies to
present day Zimbabwe.
ESSAY
Zimbabwe has recognized the common law since its existence in the country. The Lancaster
House Constitution of Zimbabwe of 1980 did regard the subsistence of common law. Also the
effective Constitution of Zimbabwe Amendment (No. 20) 2013 recognizes existence of common
law and appreciates its application. Common law is a portion of the law which is not derived
from legislation and emanates from a collection of principles made by judges in the course of
resolving issues brought before the courts. The law is applicable to all people of a given society
regardless of race, tribe, sex, level of education and background.1 The common law of Zimbabwe
is largely Roman-Dutch law with English grafting with traces of Germanic customs and
International law and it is subjected to further modification. This essay will explain how the
antithetical laws synthesized to become substance and content of common law in Zimbabwe.
1 Madhuku L. (2010) An Introduction to Zimbabwean law Weaver Press Harare

This will be done through tracing how did Roman law conjugate with Dutch customs and how
did the dual law arrive at the Cape of Good Hope. It will be elucidated how in the Cape Colony
English law joined the blend. This essay will also dilate how the plural law was imposed on
Zimbabwe. In this essay it will also be proven that the Hybrid law is still the substance and
content of common law of Zimbabwe.
Pre-colonial societies of Zimbabwe were dominated by feudal chiefs who controlled large tracts
of land. The laws of pre-colonial Zimbabwe were to govern social and political relations based
on feudal dominance. The political and judicial administrations were carried out by kings and
their indunas and there was no separation of power. The one drawback of social and legal
progress was that these were pre-literate societies. This meant that there was no systematic
recording of laws rather the only source of law was oral tradition.
In 1889 a group of private British persons from South Africa under the leadership of Cecil John
Rhodes approached King Lobengula of the Ndebele. This eventually led to the signing of the
Rudd Concession in which Lobengula is said to have agreed to grant Rhodes and his people,
The exclusive charge over all metals and minerals situated and contained in my kingdoms and
principalities together with the full power to do all things that they may deem necessary to win
and procure the same. This was then taken to mean that Rhodes had been given the right to
exercise some governmental control to enable his group to exercise the rights granted by the
Rudd Concession. Finding it very difficult to apply unsystematic African Customary law in the
territory the colonists looked for a systematic legal system.
On the 10th June 1891 the British High Commissioner at the Cape issued a proclamation setting
out the exercise of judicial power by establishing various magistrates courts in Mashonaland and
also ordered the application of the law applying at the Cape on that day.2 The question arises
which law was applied on the Cape of Good Hope? This one can be easily tackled by saying it
was largely Roman-Dutch law with substantial English law grafting. There still arises another
question from this unsatisfactory answer, how did these different types of law blend and how did
they arrive in South Africa? Therefore the next stage in this essay will be to answer these
questions.

2 ibid

Netherlands had been a Roman Colony for over Five hundred years. The Romans had authority
over many institutions like administration in their colonies. Even though, the Romans did not
enforce their laws and customs over their conquered states but Hahlo and Kahn notes that:
In conformity with their usual practice in dealing with conquered territories, the Romans did not
attempt to force Roman law and institutions on their new subjects. Five hundred years of Roman
rule could not however, fail to leave their impression on laws of the Germanic tribes. The
superstructure of government and administration was Roman. Roman garrison towns were
founded and large Roman country estates established. Roman civil servants, officers and
businessmen constituted the ruling class. As labour tenants on Roman estates, as domestic
servants in Roman households, as soldiers in the Roman army and clerks in Roman business
firms the members of the subjects races picked up the ideas of their masters and took them back
to their tribes. The history of the late Roman Empire was characterized by the Romanization of
the provinces and by the barbarization of Rome.3
This shows that Roman law gradually infiltrated and assimilated into Dutch legal system. The
German tribes in Netherlands continued to use their customs and where their customs had gaps
thus casus omisus; they applied Roman law especially on trade law, family law and contract law.
The scientific nature of Roman law made it easily for Dutch citizens to adopt it.
What is known as Dutch law it includes the Germanic law. After 476 AD a powerful Frankish
kingdom was established in what was formerly Roman Gaul. These Franks codified their law in
writing with the influence of Roman law, previously it was held in the memory of designated
individuals who acted as judges in confrontations and meted out justice according to customary
rote, based on careful memorization of precedent. Therefore as in Netherlands there where many
Germanic tribes they applied this law and most probably it left its traces on the Dutch law which
was blended with Roman law to form what Simon Van Leeuwen on his book title of 17th century
termed Roman-Dutch law (Roomsch-HollandschRecht). Having found out how did the RomanDutch law was formed the next stage is to review how did it arrive at the Cape of Good Hope.
In April 1652 Jan van Riebeeck came to the Cape of Good Hope as a representative of the Dutch
East India Company, in order to establish a refreshment base for ships to and from the east. The
3 Hahlo H, R and Kahn, E (1968) The South African Legal System and Background Juta and
Company, Cape Town

company conducted its business under a charter granted by the States General of the Republic of
the United Netherlands. Upon settlement on Cape grounds Van Riebeeck had contact with the
native people who were of Nguni origin among others. These indigenous people applied
customary law and this was the basis for the regulation of their societal relations and conduct. It
should be taken into consideration that though this customary law was applied in their day to day
life, it was of no use to the commercial sector of Dutch life as it only provided answers to local
marriages and barter trade. Thus it is clear that these shortcomings of the customary law
necessitated the implementation of the Roman Dutch law by the Dutch settlers as the customary
law was generally weak in terms of commerce and trade.
When the English took over the Cape Colony in 1795, after defeating the Boers in Anglo-Dutch
War the law they found existing was Roman-Dutch law which had been brought to the Cape by
the Dutch. The English did not overhaul the existing legal system; however, their own English
law principles took a deep hold in certain areas such as evidence. This infiltration of English law
into the then existing Roman-Dutch law was in many respects inevitable and welcomed such that
it greatly influenced the law at the Cape which was deficient in certain aspects. Yet, in some
areas like family law English law did not penetrate deeply.
English law did not replace Roman-Dutch law as the common law of the Cape; instead it became
fused with it to create a hybrid legal system. The rule of English law enunciated in Calvin and
Campbell v. Hall was that the laws of a conquered country continue in force until they are
altered by the conqueror.4 At one stage English officials were quite eager to adopt English law
and discard of the Roman-Dutch law at the Cape but this innovation never materialized.
However, English law did penetrate the Roman-Dutch system and this was done in three ways.
The first was through express enactments, for example, early Cape statutes on companies,
negotiable instruments and insolvency were based on the corresponding English legislation.
According to Van der Merwe and Du Plessis when the English arrived at the Cape they appointed
a two men commission to enquire into the affairs of the colony inter alia the legal system and
make recommendations for whatever changes they deemed necessary.5 The hitherto common law
at the Cape had many gaps or casus omisus, for example the expositions by the various Roman4 Campbell v Hall (1774) cowper 98 ER 1045
5 C.G Merwe , J.E Du Plessis Introduction to the law of South Africa (2014) Aspen Publisher,
New York

Dutch jurists were sometimes contradictory such as those of H. De Groot (1583-1645) and
Arnold Vinnius (1588-1657) and descriptions of crimes were often vague. As such English law
was actually welcomed as it addressed some of the missing elements of the Roman-Dutch law at
the Cape.
The British High Commissioners declaration of 1891 meant that the law which was to be
applied at Southern Rhodesia which is present day Zimbabwe was what can be referred to as
Anglo-Roman-Dutch law a combination of English law, Roman law and Dutch law. B. Dube
(2014) alludes that the ten years of Federation of Rhodesia and Nyasaland from 1953 to 1963 did
not change the common law in Zimbabwe rather it increased the texture of English law in it.6 The
1965 Southern Rhodesia Constitutional Order just modified the 1961 constitution but it did not
change the common law applied in Zimbabwe as it did not change the judiciary system. When
Zimbabwe gained independence the effective constitution became Lancaster House Constitution
of 1980. Section 89 of this constitution reads:
Subject to the provisions of any law for the time being in force in Zimbabwe relating to the
application of African customary law, the law to be administered by the Supreme Court, High
Court, and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in
the Colony of the Cape of Good Hope on the 10th June 1891, as modified by subsequent
legislation having in Zimbabwe the force of law.
This section on its own ensured that substance and content of Zimbabwean common law was like
as it was during colonial era thus it contained Roman-Dutch law and English law.
Also Section 82 of Lancaster House Constitution of 1980 made it clear that the common law in
Zimbabwe must be the hybrid law, the Anglo-Roman-Dutch law. As in clarified as to person who
was eligible to be appointed a judge it said:
a)He is or has been a judge of a court having unlimited jurisdiction in civil or criminal matters in
a country in which the common law is Roman-Dutch or English, and English is an official
language; or
b) He is and has been for not less than seven years, whether continuously or not, qualified to
6 B. Dube Roman-Dutch and English Common law: The Indispensable law in Zimbabwe Afro
Asian Journal Of Social Sciences Volume V No. 4 Quarter IV 2014 ISSN 2229 5313

practice as a legal practitionerI) in Zimbabwe

II) in a country in which the common law is Roman-Dutch and English is an official language; or
III) If he is a citizen of Zimbabwe, in a country in which the common law is English and English
is an official language.7
After all the discussion of the history of existence of Roman-Dutch law and English law it is then
crucial for one now to review how then these long lived laws in Zimbabwe still form the
substance and content of common law of present day Zimbabwe. In 2013 Zimbabwe adopted a
new constitution known as The Constitution of Zimbabwe Amendment (No. 20) 2013. The
question is did this constitution dismiss the hybrid common law of Zimbabwe?
Sections 177 (1) (a), 178 (1) (a) and 179 (1) (a) in describing qualifications of judges of
Constitutional court, judges of Supreme Court, and judges of High Court, Labour Court and
administrative Court respectively they all read:
He or she has been a judge of a court with unlimited jurisdiction in civil or criminal matters in a
country in which the common law is Roman-Dutch or English and English is an officially
recognized language;8
Common law being unwritten law known by the judges these sections of the effective
constitutions make it clear that the common law applicable to Zimbabwe is the hybrid law which
was applied before the commencement of this constitution. The common law (lex non scripta) is
held in the hearts of judges therefore the requirements for someone to be appointed a judge at
any court of Zimbabwe shows that the substance and content of common law of Zimbabwe is
Roman law Dutch law and English law.
Having proven how Roman-Dutch law, English law and traces of Germanic customs are still the
contained in common law of Zimbabwe there remains International law excluded. In the New
Constitution in Section 46 (c) it is stated that when interpreting chapter 4 of the constitution
courts must take into account International law and all treaties and convections to which
Zimbabwe is a party;9 This suggests that on top of the Anglo-Roman-Dutch common law judges
7 Lancaster House Constitution of Zimbabwe 1980
8Constitution of Zimbabwe Amendment (No. 20) 2013
9 ibid

must add International law. Therefore the substance and content of Zimbabwean common law
includes International law. Even though Section 2 (1) of The Constitution of Zimbabwe sets out
that this Constitution is the supreme law of Zimbabwe and any law, practice custom or conduct
inconsistent with it is invalid to the extent of inconsistency.10 This means that International law
can only be applied when it is intra-vires to the Constitution hence it is of small portion in
Zimbabwe common law.
Section 3 of the Criminal Law (Codification and Reform) Act (Chapter 9:23) provides that:
The non-statutory Roman-Dutch criminal law in force at the Colony of the Cape of Good Hope
on the 10th June, 1891, as subsequently modified in Zimbabwe, shall no longer apply within
Zimbabwe to the extent that this Code expressly or impliedly enacts, re-enacts, amends,
modifies, or repeals that law.11
Considering this, one may argue that common law (non-statutory law) of Zimbabwe no longer
has any components of Roman law or Dutch law or English law. However the supremacy of the
constitution as provided by its section 2 (1) nullifies this provision. This provision would be
valid if it was found in the constitution of Zimbabwe therefore it does not affect the substance
and content of common law in Zimbabwe.
In conclusion, the substance and content of common law in Zimbabwe is largely Roman-Dutch
law with English grafting and contains some traces of Germanic customs and International law.
The fusion and blending of these happened in different places. The Constitution of Zimbabwe
Amendment (No. 20) 2013 also affirms that the common law of Zimbabwe should be AngloRoman-Dutch through the qualifications required for someone to be appointed a judge. Therefore
substance and content of common law in Zimbabwe is largely Roman-Dutch with English
grafting.

10 ibid
11 Criminal law (Codification and Reform Act)

Bibliography

1. Madhuku L. (2010) An Introduction to Zimbabwean law Weaver Press Harare

2. Hahlo H, R and Kahn, E (1968) The South African Legal System and Background Juta and
Company, Cape Town
3. Campbell v Hall (1774) cowper 98ER1045
4. G Merwe , J.E Du Plessis (2014) Introduction to the law of South Africa Aspen Publisher,
New York
5. B. Dube (2014) Roman-Dutch and English Common law: The Indispensable law in
Zimbabwe Afro Asian Journal Of Social Sciences Volume V No. 4 Quarter IV 2014 ISSN
2229 5313
6. Lancaster House Constitution of Zimbabwe 1980
7. Constitution of Zimbabwe Amendment (No. 20) 2013
8. Criminal law (Codification and Reform Act)