NLLB1O1

Introduction to Law
Introduction to Law: Description

• The course introduces the law student to the field

of law.
• It provides foundational principles on the nature of
law, the place of law in society, introduces the
court structure and sets the Zimbabwean legal
system.
• The course provides the student with knowledge
on the division of law, law making process and
gives an appraisal of the legal profession.
 OBJECTIVES OF THE COURSE
• The objectives of the course are to:
• Equip students with general knowledge of the subject
of law.
• Provide students with foundational knowledge of law
making.
• Give students an appreciation of the role of law and
lawyers in society.
• Prepare students for the study of law through
imparting basic legal research and reasoning skills.
• Impart knowledge on the key sources of law namely
legislation, common law, custom and authoritative
texts.
 LEARNING OUTCOMES
• At the end of the course candidates should be able to:
• Explain the sources of law including the Constitution,
ordinary Acts of Parliament, common law, custom and
authoritative texts.
• Exhibit essential legal skills such as naming statutes, citing
cases, making references to legal texts, identifying the
ratio decidendi of a case.
• Examine the structure of the Zimbabwean legal system
including the structure and hierarchy of the courts.
• Analyse the role of law and lawyers in society.
• Carry out basic legal research and legal reasoning on any
given set situation.
TEACHING STRATEGIES

• The course will be delivered using a number of

approaches such as:
• Lecturers
• Group discussions
• Case analysis
• Class presentations by individuals and groups
• Question and answer sessions
• Mock hearings
Course Work
• Students will write
• two assignments,
• 1 presentation and
• two in class tests before the final semester exam.
Definitions of Law
• Definitions of law may be classified into five broad
classes:
• Idealistic definition: speaks of JUSTICE – i.e. what is
equitable and good. Thus Salmond states that law
consists of rules recognized and acted on by courts
Emphasis is on the courts of Justice.
• Positivistic definition: Command, duty and sanction
are the three elements of law according to Austin.
• Historical definition: Law is found and not made – it is
a matter of unconscious and organic growth. Law
should always conform to the popular consciousness –
Custom; Legislation is the last stage of law making
according to Savigny.
Sociological definition

• Law is a means of social control. It serves a social

purpose. It is coercive in character. ‘Pound’ thinks of
law as a social institution to satisfy social wants.
• Realistic definition: Nothing but a mechanism of
regulating human conduct in society.
• Harmonious co-operation of its members increases.
• Avoidance of ruin by co-ordinating the divergent
conflicting interests of individuals and of society.
• Enhances the potentialities and viability of the society as a
whole.
Character of Law
• Main Characteristics of Law:
• i) Law presupposes a state.
• ii) The State makes or authorizes to make, or
recognizes or sanctions rules which are called law.
• III) For the rules to be effective there are sanctions
(punishment) behind them.
• Iv) These rules are made to serve some purpose –
social purpose or personal ends of a despot.
• Law = separate rules and principles.
• Law may be: Mandatory, Prohibitive or Permissive.
 Characteristics of Law
• Generally speaking law has the following characteristics:
• 1. It is a set of rules.
• 2. It regulates human conduct
• 3. It is created and maintained by the state.
• 4. It has certain amount of stability, fixity and uniformity.
• 5. It is backed by coercive authority.
• 6. Its violation leads to punishment.
• 7. It is the expression of the will of the people and is
generally written down to give it definiteness.
• 8. It is related to the concept of 'sovereignty' which is the
most important element of state.
 PURPOSE OF LAW IN SOCIETY

❑Maintain law and order – public law

❑Regulate individual relationships - private law
❑Regulate business relationships - private law
❑Protection of interests - private law
❑Protection of rights – both public and private law
❑Limiting the power of the state - public law
Relationship of LAW

AND

Other Aspects
 Law & Morality

• Law is law, regardless of its moral content.

• However, most legal rules are derived from morality. This means
that in such instances, the law is used to enforce morality.
• Morality is the bedrock of law but it is not law. Take, for
example, the following rule: ‘Thou shall not kill’. This is a rule of
morality which also has expression in law.
• There are many immoral things that are not illegal.
• A moral rule is converted into law in three main ways namely:
∙ Legislation
∙ Custom
∙ Judicial interpretation of grey areas
 Law & Justice
• Law is binding, regardless of whether it is just or unjust.
Most legal rules are designed to achieve the ends of
justice. Some laws are not e.g. colonial laws were
discriminatory.
• Law is usually justified on the basis of justice. As
Johannes Voet puts it, ‘The law ought to be just and
reasonable, both in regard to the subject matter, …. and
in its form, preserving equality and binding the citizens
equally’.
• Similarly, the fact that a rule is law does not necessarily
mean that it is just.
• In short justice is fairness.
Law & Politics
• Law and politics are two different concepts.
• Law is legally binding to all members of society while
not all members of society participate in politics.
• However, politics play a huge part in law making
processes. For example, politicians are responsible for
introducing legislation and its ultimate adoption in
parliament.
• Parliament, the law making arm of the state is made up
of politicians and the legislative agenda of a country is
thus driven by politicians and political parties.
• Politics is not law.
 Zimbabwean Legal System
• Zimbabwe is a common law country as opposed to a civil
system. The law is made up of judge made law & R&D
precedents.
• The common law of Zim is made up of two components of
non-statutory law, namely:
• (i) a collection of rules and principles made by judges in
previous cases, and
• (ii) rules and principles contained in that portion of the body
of law called ‘Roman Dutch law’ that is not reflected in any
previous court decision.
• Judicial precedent applies where previous decisions of the
courts are binding.
 Why Roman & Dutch Law
• In countries that were colonized, the colonial power imposed
a Western legal system.
• As a rule, the imposed legal system required the colony to
adopt some specified foreign laws as at the time of the
imposition.
• The ‘common law’ of a colony was therefore made up of two
components:
• (i) the principles of law contained in the foreign law as at the
time of imposition, and
• (ii) law derived from judicial precedent developed after the
date of imposition.
• This was and is the situation in Zimbabwe. See Section 89 of
the old Constitution of Zimbabwe as read with s192 of the
2013 Constitution.
 Sources of Law

•This section deals with sources of law i.e. where

the law is derived from.
•There are a number of sources of law in
Zimbabwe with varying strengths and persuasion.
•Some law sources apply to specific places and
specific people.
Learning Outcomes

•At the end of this unit candidates should be

able to:
•1. Identify the main sources of law.
•2. Analyse sources of law for their
importance.
•3. Resolve conflicts in the sources of law.
 Legislature
• These are laws which are promulgated through the two
houses of representatives that is the House of Assembly &
Senate.
• Bills pass through the two houses before the president
signs them into law.
• Laws made by parliament are commonly referred to as
statute law/acts of parliament.
• These laws are invariably written laws.
• The Legislature is free to change the law as they deem fit
subject only to the constitution in a constitutional
democracy.
 Constitution
• This is a body of the basic rules and principles by which a
society has resolved to govern itself or regulate its affairs.
• It contains the agreed contents of the political system. It sets
out the basic structure of government. A Constitution may be
written or unwritten.
• In terms of the law of Zimbabwe, the Constitution is the
supreme law in Zimbabwe: meaning all statutes, conduct,
customs, common law have to comply with it.
• S2 of the constitution reads “This constitution is the supreme
law of Zimbabwe and any law, practice, custom or conduct
inconsistent with it is invalid to the extent of its inconsistency”
• The constitutional court has power to declare any conduct or
law unconstitutional.
 CUSTOMARY LAW
• Custom emanates from customs. A custom is a rule established by usage
which acquires the force of law because it is generally followed.
• There are two types of custom:
• General custom, which applies in such fields of law as banking,
commercial law, international trade law and so on.
• African customary law, which regulates the life of indigenous Africans.
• It must be certain, reasonable, long established and uniformly observed
by the community.
• See the case of Van Breda v Jacobs & ors 1921 AD 330.The plaintiffs who
were fishermen set their nets after identifying a shoal of fish coming that
direction. A secondst
group of fishermennd then cast their nets a few meters
away from the 1 group’s lines. The 2 group caught all the fish and the
first group sued for damages on the basis that there was a custom
followed by fishermen to the effect that on a free beach once one set
their lines to catch fish seen traveling on the coast, no other fishermen
could set their line in front of it within a reasonable distance from it. It
was held that such a custom existed. It was reasonable and certain and 11
witnesses testified that it had been strictly observed for at least 45 years.
Plaintiffs claim succeeded.
• In Zimbabwe the payment of bride price (lobola) is a good example of a
legally binding custom.
 African customary law
• African customary law is a specialized form of law in
Zimbabwe.
• Zimbabwe has a dual legal system, being comprised of
general law (common law and statute) and African
customary law. This means that in certain matters, there is a
potential application of two different systems of law with
different legal consequences.
• Whether or not customary law applies in a particular case is
governed by the provisions of the Customary Law and Local
Courts Act (Chapter 7:05). In terms of this Act, customary
law applies under two circumstances, namely:
• Where the provisions of a relevant statute say so.
• In the absence of a relevant statute, by applying the ‘choice
of law formula’ in Section 3 of the Act.
• The best example was the old Section 13 (now repealed) of
the Customary Marriages Act (Chapter 5:07) that provided
that the property rights of Africans were not to be decided
in terms of custom.
 LOCAL AUTHORITIES AND BOARDS
• Local governing authorities are authorized by the
enabling acts of parliament to enact their by-laws for
administrative purposes.
• See the Urban Councils Act or the RDC Act
• These may regulate issues like construction, municipal
police, vending, building bye laws and planning rules.
• These powers are controlled by parliament itself and by
the courts.
• S36 of the Interpretation Act requires that delegated
legislation must be placed before parliament 30 days
after publication of the legislation.
• Courts require that such laws be intra-vires, follow
procedures, be certain and be consistent with the
general law.
 ROMAN DUTCH LAW
• In terms of the constitution of Zimbabwe the
Roman-Dutch law in force in the colony of the Cape of
Good Hope on the 10th June 1891 as modified shall
apply in Zimbabwe.
• See s192 of the constitution as read with s89 of the old
constitution.
• It is worthy noting that the parliament can repeal the
operation of R&D in certain instances such in:
• Criminal Law (Codification and Reform) act section 3
repeals its application in criminal law.
• The Labour Act does the same in many respects.
• Consumer Protection Act in certain consumer contracts.
 PRESIDENT
•The constitution and an act of parliament
gives the president power to enact
temporary laws.
•The Presidential (Temporary Powers)
Measures Act mandates the president to
enact temporary laws to deal or avert any
situation of emergency.
•Such law has a life span of 6 months.
•The law lapses after 6 months.
 COMMON LAW
•This is unwritten law evolved from Roman
Dutch precedents. It is found in text books,
judicial writings and other writings.
•In the course of deciding disputes before them
the courts make pronouncements of the law.
• It is only the superior courts’ precedents that
are binding and taken as the position of the
law. Such exposition of the law stand until such
position has been changed by the legislature of
by another decision of the court
 INTERNATIONAL TREATIES AND
CONVENTIONS
• Zimbabwe is a member of various international
organizations such as the UN which creates treaties
and conventions.
• Once the same has been signed by the president and
ratified by parliament as required by the constitution it
becomes part of our law.
• Examples include the Paris Convention, the African
Charter for People’s Rights and TRIPS Agreement .
• Zim has a dualist system which requires the
international instruments to go through a dual process
for its adoption locally. Other countries follows a
monist system where upon signature of the
international instrument it becomes binding at home.
TEXT BOOKS

•Celebrated authors are taken as

another source of law in their writings.
•In Zimbabwe Prof Feltoe is an example
in media law, criminal law and
administrative law.
Divisions/Classification of Law

• Learning Outcomes
• At the end of the unit candidates must be able to;
• State the main branches of law
• Explain the differences between the various
departments of law.
• Examine scenarios related to the categorisation of
law.
How many pigeon holes can you
think of ?
 Written law
• This is codified law. These are rules that have been
reduced to writing i.e. are contained in a formal document
e.g. the Constitution of Zimbabwe, Acts of Parliament,
Delegated Legislation, International treaties etc.
• Unwritten law
• These are rules of law that are not contained in any formal
document.
• The existence of such rules must be proved. E.g. African
Customary law & Common law. In general written law
prevails over unwritten law.
 Municipal/ National law
• This refers to rules of law that are applicable within a particular
country or state.
• This is national/state law. It regulates the relations between
citizens inter se (amongst themselves) as well as between the
citizens and the state.
• It originates from parliament, customary and other practices.
International law
• This is a body of rules that generally regulates the relations
between countries or states and other international persons e.g.
intergovernmental organisations such as the United Nations.
• It originates from international treaties or conventions, general
principles and customary practices of states.
 Public law
• It consists of those fields or branches of law in which the state
has a direct interest as the sovereign.
• It is concerned with the Constitution and functions of the
various organizations of government including local
authorities, their relations with each other and the citizenry.
• Public law includes: Criminal Law, Constitutional Law,
Administrative Law.
• Public Law asserts state sovereignty.
• Private law
• It consists of those branches of law in which the state has no
direct interests as the state sovereign.
• It is concerned with the legal relationships between persons in
ordinary transactions e.g.
• Law of contract
• Law of property
• Law of succession
 Substantive law
• It consists of legal principles/rules themselves as opposed to the
procedure on how to apply them. It defines the rights and duties of the
parties and prescribes the remedies applicable.
• Substantive law defines principles of law e.g. all persons below the age
of 18 are minors in terms of the law of contract. These applies in all
legal fields. Under the law of property for example there is a principle
that one cannot transfer a better right than he or she possesses.

•Procedural law
• This is adjectival law. It consists of the steps or guiding principles or rules
of practice to be complied with in the administration of justice or in the
application of substantive law. For example:
• Civil Procedure
• The Criminal Code
 Criminal law
• This is the law of crimes. A crime is an act or omission
committed or omitted in violation of public law e.g. murder,
treason, theft, e.t.c.
• All crimes are created by parliament through statutes
• A person who is alleged to have committed a crime is referred
to as a suspect.
• As a general rule, suspects are arrested by the state through
the police at the instigation of the complainant. After the
arrest, the suspect is charged in an independent and impartial
court of law whereupon he becomes the accused.
• Criminal cases are generally prosecuted by the state through
the office of the Prosecutor General (PG) hence they are
framed as State vs Accused E.g. S v Kachipare
Punishment
• The sentence may take the form of:-
• 1. Imprisonment
• 2. Fine
• 3. Community service
• 4. Capital punishment
• 5. Conditional or unconditional discharge
 Civil law
• It is concerned with the rights and duties of persons i.e.
individuals and corporations.
• Branches of civil law include:-
• Law of contract
• Law of Delict
• Law of property
• When a person’s civil or private rights are violated, he is
said to have a cause of action. Examples of causes of
action:
• Breach of contract
• Defamation
• Assault
 Plaintiff v Defendant
• It is the duty of the plaintiff to prove his allegations against
the defendant. This means that the burden of proof is borne
by the plaintiff.
• The standard of proof in civil cases is on a balance of
probabilities or on a preponderance of probabilities i.e. the
court must be satisfied that it is more probable than
improbable than the plaintiff’s allegations are true.
• If the plaintiff proves his allegations by evidence, he wins the
case and is awarded judgment which may take the form of:-
• 1. Damages (monetary compensation)
• 2. Interdict
• 3. Specific performance
 CONTRAST BETWEEN CIVIL AND
CRIMINAL LAW

Civil Criminal

Nature Rights and duties Wrongs against society as a

of individuals to whole
each other
Person Initiating Plaintiff or person Either federal, state, or local
Action injured prosecutor

Burden of Proof Preponderance/ Beyond a reasonable doubt

in Trial Balance of
probabilities
Result sought Money damages Death in some countries, fine
or compensation or imprisonment
 General law versus customary law
• General Law is made up of statute law and common law,
whereas customary law refers to African customary law.
• Customary law only applies to Africans as defined in the
Interpretation Act (Chapter 1:01).
• Customs of Europeans in Zimbabwe do not constitute
customary law.
• An ‘African’ is defined as ‘any member of the aboriginal
tribes or races of Africa and the islands adjacent thereto,
including Madagascar and Zanzibar or any person who has
the blood of such tribes or races and who lives as a
member of an aboriginal native community.’
Law Making Process
• By the end of this lesson candidates should be able
to:
• Identify the main organs of the state in Zimbabwe
• Explain how laws are made by parliament
• Identify delegated legislation
 Introduction
• Every society has rules that define the structures of the
state and spell out their powers. These rules may be written
or unwritten, or a combination of both.
• A totality of these rules make up what is called the
Constitution of a country. The law emanating from such
rules is called constitutional law.
• The rules defining the structure and powers of
governmental organs are embodied in a Constitution.
• Constitutional law utilizes the principle of separation of
powers. In its classical sense, this principle of separation of
powers requires that, as a guarantee for the liberty of the
individual, political power should not be concentrated in
one individual or organ of government.
• It requires that governmental functions be separated into
three different groups and each be performed by different
persons.
 The law-makers- Parliament
• A principal function of the state is that of making laws for
the proper ordering of society. The popular conception of
governance is that of making laws to be observed in and by
the community.
• This important function of the state is allocated to the
legislature, which in Zimbabwe consists of Parliament and
the president.
• Parliament is composed of two chambers: the House of
Assembly (Lower House) and the Senate (Upper House).
• Legislation must pass through two stages. First, it must be
passed by the requisite majority in both houses of
Parliament.
• Second, once it has been passed by Parliament, it should be
assented to by the president before it becomes law.
Parliament cont’d
• This second stage makes the president very much
part of the legislature in Zimbabwe. The president
is a separate organ from Parliament, but he has the
power to accept or reject laws that it has passed.
• This state of affairs essentially allows the executive
(the Cabinet) to have a final say on the law-making
process.
Leadership of the House of
Assembly
• The House of Assembly is presided over by the Speaker, who is
elected by members at their first sitting. He/she cannot vote in the
passing of laws. Even a person who is not a member of the House of
Assembly may be elected a Speaker provided he/she has been a
member of Parliament before and meets the qualifications for
election to the House of Assembly.
• However, only a member of the House of Assembly qualifies to be
elected Deputy Speaker. If a member of the House of Assembly is
elected Speaker, he/she shall cease to be a member and his/her
seat shall become vacant and a by-election called.
• The Senate is presided over by the president of the Senate, who is
also elected by members at their first sitting. As with the House of
Assembly, even a person who is not a member of the Senate may
be elected as president of the Senate, provided he/she has been a
member of Parliament before and meets the qualifications for
election to the Senate.
• If a Senator is elected as president of the Senate, he/she shall cease
to be a Senator and his/her seat shall become vacant and a
by-election called.
 Oversight Functions
• Apart from its law-making functions, Parliament also has
the power to supervise the executive arm of government
by, among other things, criticizing government policies.
• Through this role, Parliament has the power to institute
investigations into any activity of the state and to publicize
its findings.
• The most important manifestation of this power is the
‘question and answer’ session in Parliament.
• The answers given in Parliament are essentially for the
benefit of the public.
 The executive
• The executive arm of government is composed of the
president, the Cabinet, and all law enforcement
agencies of the state, namely, the police, the military
and the prison service.
• The ultimate authority of the executive functions of the
state is vested in the president, who exercises most of
his functions through the Cabinet.
• The president is elected for a five-year term by all
registered voters.
• The president can only serve a maximum of two terms
as president of Zimbabwe. He/she has sole power to
appoint and dismiss Vice Presidents and Ministers; to
dissolve Parliament.
Functions of the Executive
• The role of the executive arm of government is to
implement laws made by Parliament and to run the
affairs of the state.
• The executive also has the responsibility to initiate
and implement policy, and in that regard it is
empowered to propose laws for consideration by
Parliament.
• The executive also implement and enforce policy
direction, laws and executive authority e.g. directs
and instructs security arms of the state.
 The judiciary
• The judiciary is the third arm of the state and is
required to be independent in the discharge of their
duties.
• The function of the judiciary is to interpret the law. If
the executive and/or the legislature is/are not happy
with a certain interpretation of the law by the courts,
the only way out is to seek a change to the law rather
than disregard the interpretation and argue that it is
wrong.
• The power to interpret the law lies only with the
judiciary.
• The courts (CCZ) adjudicates on the constitutionality of
Acts of Parliament, custom and conduct of any other
organs or the public.
 Judiciary cont’d

• This power of the CCZ to determine the

constitutionality of Acts of Parliament puts an
independent judiciary in a secure position to exert
checks and balances on the powers of the executive
and the legislature.
• However, by a proper amendment of laws, Parliament
can nullify certain decisions of the courts.
• To maintain judge’s independence, the Constitution
has a number of measures in place such security of
tenure, public appointments and independence from
political activity.
Other Organs of Note
• There are other organs of note such as the:
• Attorney General – who is the legal advisor of
government and is part of the executive.
• The Comptroller and Auditor-General is a public
officer appointed by the president to examine and
audit all government accounts at least once every
year.
• The Prosecutor General who is responsible for
prosecuting criminal offences.
• The constitution also create 5 independent
commissions to ensure that citizens enjoy the rights
 Law Making Process in Parliament

• The power to make law is known as the legislative

authority. In Zimbabwe it is vested in the Legislature, which
includes the President.
• The Legislative authority (power to make law) grants to the
Legislature the following powers:
• a) to amend the Constitution by passing constitutional
amendments.
• b) to make, amend, repeal, revise any law.
• c) to confer or grant law making powers to a subordinate
body or authority.
 Pre-bill stage
• This is the stage leading to the finalization 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 manifestos, government
departments, commissions of enquiry, parliamentary
portfolio committees, pressure groups and responses 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 the Government to consult.
• Consultations are carried out at the Government’s
discretion.
 Gazetting of bills
• The Government Gazette is the official publication of
the Government of Zimbabwe. It is the legal medium
through which the Government informs the public
about its legal instruments.
• Except for constitutional bills, the Constitution does
not require that a bill be gazetted before it is
introduced in Parliament. The text of such a bill must
be published in the Government Gazette not less than
30 days before it is introduced in Parliament.
• For all other bills, the Standing Orders require that
they be published in the gazette at least 14 days
before being introduced in Parliament. This
requirement, however, may be waived and the bill
introduced without being gazetted.
 Passage of bills in Parliament
• As Parliament has two houses, a bill must be introduced in and
passed by both to become law. The same stages are followed
by each house.
• In general, the process in one house must be completed before
the bill is introduced in the second house.
• Except for a type of bill known as a ‘Money Bill’, which may
only originate in the House of Assembly, a bill may originate in
either house.
• First Reading:
• Bills can be introduced by members of the National Assembly
or members of Senate, Ministers, Deputy Ministers and the
Vice President.
• At this first reading stage, the Bill is presented to Parliament.
No comprehensive reading or debating is done. A Member of
Parliament gives notice that he needs permission from the
House to present/introduce the Bill in the House.
 Parliamentary Processes
• Once the permission is granted, the member brings copies of the
Bill to clerks in Parliament. The clerks read the title of the Bill.
Once this is done, the first reading is done.
• A Bill to amend the Constitution may only be presented for
debate to Parliament after the Speaker gives ninety days’ notice
in the Government Gazette stating the exact terms of the Bill.
• The second stage is when the Bill is submitted to a committee
made up of legally qualified members of Parliament. This
committee scrutinises the Bill and considers whether the Bill is
consistent with the Constitution.
• The PLC can make a finding that the Bill is consistent with the
Constitution. It can also make a finding that the Bill contravenes
the Constitution, and if it does so, it produces what is called an
adverse report.
• Parliament can ignore the adverse report and choose to proceed
with the Bill as if it is consistent with the Constitution.
 Second Reading
• After the PLC, the Bill is presented in Parliament by the
sponsoring Minister. In practice, the Minister lays out
the purpose and the principles upon which the Bill is
founded, and these are debated.
• The debate is not on individual provisions of the Bill.
Parliamentary Portfolio Committees also present their
reports on the Bill at this stage.
• The Committee Stage
• At this stage, the Bill is scrutinised clause by clause by a
special parliamentary committee.
• Where there is no such committee, the whole of
Parliament can sit as a special committee and debate
the Bill provision by provision. Amendments are also
proposed at this stage.
 The Report Stage
• A report on the Bill is made by the Special Committee to
the whole Parliament, with the proposed amendments
as well.
• If Parliament had sat House at the Committee stage, this
stage is a formality. However, if not, this stage allows full
House to debate and discuss the Bill as well as proposed
amendments.
• Referral to the PLC
• The PLC has a chance at this stage to consider the
constitutionality of any amendments done to the Bill.
 Third Reading

•At this stage, the House votes to accept or reject the Bill. In
practice, the Bill is not read or debated at this stage. Only
members who gave notice that they shall debate the Bill can
have a chance of debating further.
•For ordinary Bill to pass, a simple majority of all members
present, and voting is needed. For Bills to amend the
Constitution, a two-thirds majority is needed for the Bill to
pass.
•A Bill to amend provisions of the Declaration of Rights must
be referred to a national referendum and be approved by a
majority of voters. Once approved, the President must
assent and sign into law.
 Transmission of Bills to the other House

▪ A Bill that originated in the National Assembly and was

passed by that House must be submitted to the Senate
to undergo similar processes and procedures.
▪ The same applies with Bills that originate from the
Senate; such Bills have to undergo similar procedures
in the National Assembly.
▪ A Bill received from one House must be transmitted to
the other House without delay. The receiving House
must debate and discuss the Bill, and has power to
reject, or pass the Bill with or without amendments.
▪ A House that amends a Bill submitted to it must return
the Bill, with amendments to the originating House.
The originating House can accept, reject or amend any
or all the amendments.
 Transmission of the Bill cont’d

▪ Where the Bill has been amended by the originating

House, the other House must withdraw their own
amendments or agree to the amendments made by
the originating House.
▪ Where the National Assembly and Senate disagree
on a Bill’s amendments, the Bill must be presented
to the President for assent and signature in the form
it was when it was passed by the National Assembly.
 Presidential assent

• The last and final stage in the legislative process is the

signing of the Bill by the President. Once this is done, the Bill
is now official law and is called an ‘Act of Parliament’.
• This law must then be gazetted in the Gvt Gazette for it to
become effective.
• The Legislature and the President:
• The President is part of Parliament mainly;
• a) Assenting to Bills and signing them section 131 (5)).
• b) assenting to Constitutional Bills (section 328 (6) (b)
• c) Section 140 deals with the Presidential addresses to
Parliament, answering of questions on any issue, or
transmitting any messages
 The effect of Parliament’s failure to
follow specified procedures
• Should Parliament attempt to pass a bill contrary to
the procedures examined above, the law is that the
resultant Act is invalid and the courts are empowered
to intervene and declare the Act of no force or effect.
• Biti and the MDC v Minister of Justice Legal and
Parliamentary Affairs provides a good example. The
applicants challenged the General Laws Amendment
Act (Act No. 2 of 2002) and sought to have it declared
illegal and of no force or effect as it had introduced
far-reaching and controversial changes to the Electoral
Act ahead of the 2002 Presidential elections.
 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
in each case by the relevant Act of Parliament (the ‘enabling
Act’ or ‘parent Act’).
• The Constitution of Zimbabwe allows Parliament to delegate
its law-making powers. It makes it clear that the legislature is
empowered to confer legislative functions on any person or
authority.
 Delegated Legislation
• The system of delegated legislation is subject to two
controls, namely:
• 1. Delegated legislation, like any other legislation,
must be consistent with the Constitution, i.e., it must
be intra vires the Constitution.
• 2. It must be consistent with the parent Act, i.e., not
ultra vires the enabling Act.
• Some statutes require the statutory instruments to be
laid before Parliament.
• The PLC is required to examine every statutory
instrument published in the Gazette with a view to
determining if it is consistent with the Constitution.
 Challenges of Delegated Legislation
• If it presents an adverse report on a statutory instrument, the
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 PLC’s opinion, the clerk of Parliament shall report to the
president, who shall repeal the provision forthwith. Any such
resolution must be made within 21 sitting days after the
Senate resolves to accept an adverse opinion of the PLC.
• Issues with Delegate Legislation
• The system of delegated legislation has been criticized for
giving the executive too much power, something that 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.
 Learning Outcomes

• At the end of this unit students should be able to:

• State the civil and criminal courts in Zimbabwe
• Explain the role of civil and criminal courts
• Analyse situations and apply the law in relation to
court jurisdictions
• Outline the hierarchy of the courts in Zimbabwe
 Introduction
• Courts are classified into two broad categories, namely,
criminal courts and civil courts.
• Civil courts in turn are divided into two groups: ordinary
civil courts and specialized courts.
• There is specific legislation that prescribes the
composition and jurisdiction of each court e.g. the High
Court Act and Magistrate Court Act.
• On the other hand the jurisdiction of a court refers to its
powers and the matters over which it has competence
and also determines its position in the structure of the
courts, particularly how it relates to other courts.
 Criminal Courts

• There are three main criminal courts in Zimbabwe,

namely, the Magistrates Court, the High Court and the
Supreme Court. Five other ‘courts’ exercise specialized
criminal jurisdiction. These are:
• The Children’s Courts,
• Courts-Martial,
• Police Boards of Officers,
• Prison Boards of Officers and
• Parliament sitting as a court
• The above 3 courts also serve as the main civil courts.
There are other specialised civil courts such as the
Labour, Admin, Electoral, Fiscal, intellectual Property,
and Constitutional courts
 Specialist Courts

• Specialist courts only deal with areas that have been

deemed by Parliament to require a ‘special court’. In
other words, a specialist court deals with a specific
issue.
• A common example of a specialist court is the Labour
Court, which deals with labour disputes only. Other
important examples of specialist courts are the Income
Tax Court and the Administrative Court.
 CONSTITUTIONAL COURT
• This is a court which has jurisdiction in all
constitutional matters. See section 167 of the
Constitution.
• It is presided over by the Chief Justice with six other
judges. All judges are required to hear presidential
petitions and cases involving the bill of rights. See
section 166 of the Constitution.
• Other cases can be heard by any three judges of the
court.
• It has no jurisdiction in any other matters. It serves
as a court of referral or of first instance.
 The Supreme Court of Appeal
•The Supreme Court serves as the court of final
appeal for civil and criminal matters from all the
lower courts.
•It has dual appeal jurisdiction in criminal and
civil cases.
•As an Appellate court it sits with any three
judges of the court.
•Refer to s168 and 169 of the Constitution.
 HIGH COURT
• This is a court of inherent jurisdiction in all matters save for
constitutional matters.
• It has no limitation both in civil and criminal matters.
• It also applies both civil and customary laws.
• It is presided by a judge as a court of first instance and two judges
for appeals and reviews.
• When it is dealing with criminal matters the judge sits with two
assessors. An appeal from the High court goes to the Supreme
Court.
• For criminal cases it handles the most serious cases such as
murder, treason and serious frauds.
• See s170 and 171 of the Constitution as well as the High Court
Act.
 LABOUR COURT
• This is a specialized civil court handling labour disputes
only.
• It is a creature of the Labour Act. It is presided over by a
judge called a President.
• It is created to deal with matters of employment or labour
law only.
• It serves as a court of appeal or a court of first instance.
• An appeal against its decision which must be on points of
law lies with the Supreme Court.
 ADMINISTRATIVE COURT
• This is another specialized civil court with no jurisdiction
to entertain criminal cases.
• It is a court of first instance in administrative issues and
also serves as appeal court against decisions of boards and
tribunals.
• Its set up in terms of s173 of the Constitution.
• It handles cases like planning appeals, change of land use
disputes, water rights disputes and the like.
• It is presided over by a judge called a president.
 MAGISTRATE COURT
• It is a creature of the statute and has no inherent jurisdiction. It is
presided over by the Magistrate and applies both civil (customary
and general law) as well as criminal jurisdiction.
• It is set up by s174(a) of the constitution.
• It has jurisdiction over criminal matters as well as civil matters to
the extent so allowed by the Magistrate Court Act.
• It also serves as appeal court against the civil decisions of the
community court.
• Appeals against its decisions are filed with the High Court.
 Criminal Jurisdiction
• The jurisdiction of a Magistrates Court is determined by three
aspects; the territory where the crime takes place; the nature
of the crime and the punishment that may be imposed.
• Regarding territory, a Magistrates Court has no jurisdiction
over common law crimes committed outside Zimbabwe. For
crimes committed in Zimbabwe, the general rule is that a
Magistrates Court only has jurisdiction over offences
occurring in the region or province in which it is established.
• A Magistrates Court has jurisdiction over all crimes except
treason, murder and any statutory offence for which the
death sentence is mandatory.
• Only a regional magistrate can try rape cases. The jurisdiction
of Magistrates Courts regarding possible punishment
depends on the level of the magistrate presiding over the
court.
 Civil jurisdiction of Magistrates
• The general rule is that a Magistrates Court only has jurisdiction in
a civil case if:
• (i) the amount claimed does not exceed its prescribed monetary
limit of jurisdiction and
• (ii) either the defendant resides, carries on business, or is
employed within the province where the court is situated, or the
cause of action arose wholly within the province.
• The monetary limit of the court is adjusted from time to time.
• In terms of s14 the Magistrates Court has no jurisdiction to deal
with:
• disputes in respect of the validity or interpretation of a written
will;
• the status of a person’s mental capacity
• Dissolution of a civil marriage among others.
• A magistrate in a civil case sits alone in the case.
 COMMUNITY COURT

• It is headed by the chief and only applies customary law.

• It is recognized by s174(b) of the constitution of Zim.
• It has no jurisdiction in criminal matters.
• An appeal against its decision lies with the Magistrate court.
Local Court
• The head man presides over it and only applies customary law.
• S174 (b) of the constitution recognizes these courts.
• Appeals from the court lie with the community court. It has no
jurisdiction in criminal matters.
• An Act of parliament sets its procedure and powers
 Why Local Courts?
• The main reason for the existence of these customary
law courts is to provide ordinary people in rural areas
with a justice system that is consistent with African
custom and values.
• A large number of ordinary Zimbabweans regulate their
lives in accordance with customary law.
• The court can only apply customary law and nothing
else. The local court is not permitted to adjudicate
particular disputes (even when determinable by
customary law) such as dissolution of customary
marriages.
 Small Claims Court

• A person who has a small claim to make against another

is saved the inconvenience and delay of approaching the
ordinary courts by being able to approach the Small
Claims Courts.
• These courts are established in terms of the Small
Claims Court Act (Chapter 7:12).
• The power to establish a Small Claims Court in any
province is given to the Minister of Justice, Legal and
Parliamentary Affairs.
Legal Practitioners
• Learning Outcomes
• By the end of this lesson students should be able to:
• Explain the various roles that Lawyers can take in
society.
• State the basic ethical duties of lawyers as they
practice law
• Distinguish the judicial function as well as the
representative function of lawyers.
Introduction

• In Zimbabwe, the legal profession is no longer divided

into two branches. It may therefore be described as a
‘fused’ profession.
• Prior to 1981, the profession was divided into two
branches: attorneys and advocates. Attorneys dealt
directly with the members of the public as clients
while advocates were not permitted to do so.
• All lawyers entitled to practice the profession of law
fall into the category of ‘legal practitioner’. Every
registered legal practitioner has a right of audience in
any court in which persons are entitled by law to legal
representation.
 Admission as a legal practitioner
• In order to practise law in Zimbabwe one must be registered.
Section 5 of the Legal Practitioners Act sets out six requirements
for admission as a legal practitioner.
• An applicant for registration must: Comply with the formalities
prescribed by law and possess educational qualifications
prescribed.
• There are two sets of educational qualifications:
• 1. Possession of a designated legal qualification.
• 2. Passing or being exempted from professional examinations.
• An applicant must also be a ‘fit and proper person’. This
expression was explained by the Supreme Court in In re
Chikweche.
• To be entitled to practice as a principal, a legal practitioner must
have been employed as a legal assistant for not less than 36
months. They must also have participated in practical legal
training after registration.
 Judges
• Judges occupy the judicial function of the state.
• The process of appointment of judges is a key factor in
guaranteeing the independence of the judiciary. See for
example s164 of the constitution which reiterates that
fact.
• S165 provides the principles under which the judiciary
must be guided. These include that justice must be
available to all, justice must not be delayed and that
they must safeguard human rights.
• The appointment process is provided in s180 of the
constitution. The appointment is done by the president
subject to the advice of the Judicial Services
Commission. The process must be open and involve the
public through public interviews.
 Judges cont’d
• The qualifications of judges is specified in s177 to 179 of the
constitution. This process demands that senior, competent
and qualified lawyers are appointed to the bench.
• The JSC is set up in terms of 189 of the constitution and has
up to 13 members most of whom are appointed by the
president. Only 6 or so can be said to be independent.
• Judges can be removed from office through misconduct.
S187 establishes a process of holding “disciplinary”
proceedings for judges. See Benjamin Paradza v The
Minister of Justice, Legal and Parliamentary Affairs & Others
SC 46/03SC 46/03.
• The main weakness of the process is that there are no
checks and balances in the whole process. The president has
immense powers.
 Magistrates
• S174 (c) of the constitution gives provision for the
establishment of other courts and tribunals subordinate to
the High Court. One such court is the magistrate court.
• The section makes it clear that magistrates are part of the
judiciary in the Zimbabwe. This changes the position where
magistrates were for a long time under the civil service.
• They are part of the Judicial Services Commission. Qualified
lawyers and sometimes non-qualified lawyers can become
part of the magistracy in Zimbabwe.
• Soon after independence diploma holders could become
magistrates. The trend nowadays is for trained lawyers from
local and regional universities to be employed in the service.
 Prosecutors

• Prosecutors are now employed by the National

Prosecuting Authority (NPA). See s258 and 259 of the
constitution.
• Just as magistrates, prosecutors can be qualified lawyers
or non-qualified lawyers. Some police or army personnel
have worked as prosecutors in the courts.
• As a key cog in the administration of criminal justice
prosecutors are required to be independent (s260 of the
constitution) and are not subject to the control of anyone
in the course of their work.
• This does not mean that the NPA or the PG cannot be sued
for something he has done in the course of his duties. See
Mudisi & Ors v Tomana & Ors HH-121-12, the argument
was out rightly scoffed by the court as “an astounding
contention” which would make the AG a law unto himself.
 Attorney-General’s office
• The Attorney General’s office is the government’s legal
counsels who handle all civil litigation, advice, drafting
of statutes and any other legal services for the state.
• The office is set up in terms of s114 of the constitution
of Zimbabwe.
• The AG is appointed by the president and holds the
same qualifications as a judge of the High Court. This
means he or she must be a senior lawyer.
• The AG attends parliament and cabinet but he or she
has no vote in matters before the houses. In
parliament, the AG however, can speak but lacks a vote.
The AG can be removed from office by the president.
Unlike judges the AG belongs to the executive arm of
government.
 Professional Ethics of the Legal
Profession
• The legal profession is a profession in the sense that it has
the following characteristics that are generally regarded
as defining a profession:
• It has a governing body with powers of control and
discipline.
• There is some register or record of membership.
• There is restriction of admission to those with the
required standard of special skills, education and training.
• There is voluntary submission by members to standards
of ethical conduct beyond those required of the ordinary
citizen by law.
• The duty to clients is paramount. See Madhuku, p. 84,
Bailey and Gunn (1996), p. 113.
 Ethical Duties of Legal Practitioners

• Principles that have to be followed by a professional

legal practitioner include:
• Integrity
• It refers to the character of the legal practitioner. The
legal practitioner should be one who is of
unquestionable morals, honest, trustworthy and
forthright.
• Professional Independence
• This refers to the ability of the legal practitioner to do his
work without following any instructions from the client
or any other person for any reason.
 Confidentiality
• This is the duty of secrecy. It is the duty not to divulge to
third parties any information that has been received by the
legal practitioner in his capacity as such or to use such
information in any way for any other purpose without the
consent of the client or express authority of the law.
• Professional Competence
• Means that for a person to render professional services as a
legal practitioner he must have attained the professional
ability to do so i.e. he must inter alia have the necessary
qualifications after having gone through a prescribed course
of study.
• A person who has fulfilled the requirements of the Legal
Practitioner’s Act in relation to qualifications is deemed to
be professionally competent.
Outline of Court Procedures

• Learning Outcomes
• The learning outcomes of this lesson are:
• Explain the general civil procedures from case
inception to finalisation
• Explain the general criminal trial procedures
• Compare and contrast civil and criminal trials
 Introduction
• In litigation understanding and meeting procedural
rules is essential for the success or failure of the
litigation process.
• This section will address the key criminal and civil
processes that are necessary to presenting a case
before the court.
• The presentation is in summary form and is meant to
provide a background to the issues.
 Civil Procedure
• Adversarial versus inquisitorial procedure
• An inquisitorial procedure is one in which the judge takes
an active role in ascertaining the facts from the parties,
going so far as to do a great deal of questioning of
witnesses, deciding which witnesses are to be called and
determining the manner in which the trial is to proceed.
This is common in the civil system.
• The adversarial procedure is one in which the court is
merely an impartial umpire or referee, leaving the
proceedings entirely in the hands of the parties. The
system is based on the understanding that there are two
adversaries in every dispute: one contending for one thing
and the other rejecting it.
• The court only interferes in the proceedings to enforce the
rules of evidence and procedure; otherwise its duty is to
decide at the end, which of the two sides has been
successful.
Commencing an Action

• Court papers are called pleadings.

• The first stage is the Pleading stage where the plaintiff
prepares and files summons in court.
• In turn the defendant files a notice of defence and his
defence/plea. The claim (summons and particulars of
claim) contain 3 things
• a. A short statement of the grounds for jurisdiction.
• b. A short and plain statement of the facts necessary
to show that the plaintiff is entitled to relief.
• c. A statement of the remedy the plaintiff is seeking.
 Service of Summons
• After the claim is filed, the Messenger of Court or Sheriff serves
the summons on the defendant. The summons:
• a. notifies defendant that process has been issued and that if he
so wishes he must prepare an answer to the claim.
• b. The summons informs the defendant that failure to answer
will result in a judgment by default for the plaintiff.
• Defence to the Claim
• The defendant files an appearance to defend (which is a notice
that he intends to contest the claim filed against him).
• Thereafter, he needs to file an answer whether he admits the
statements or allegations set out in the summons or denies
them and sets out any defences that the defendant may have to
the claim.
• If the claim is admitted, a judgment will be entered in favour of
the plaintiff. If the defendant denies the allegations, the matter
will go for trial.
 Possible Dismissal and Judgment
before Trial
• A motion for summary Judgment may be made if the
plaintiff feels that the defendant has no defence to the
claim.
• This procedure may be used when no facts are disputed
by the defendant, and only questions of law are at
issue.
• It is also useful where there is a liquid document to
vouch for the claim such as a dishonoured cheque.
• The defendant may after filing his or her defence file an
application to dismiss the claim if he is of the view that
the claim has no chance of succeeding if brought for
trial. This is where the defendant has a clear defence to
the claim e.g. proof of full payment in a claim for
payment
 Discovery

• Before a trial begins, the parties will want to gather

information about the case. This is called "discovery."
• Each side is required to inform the court and the other side
the witnesses or evidence they are going to rely on at the
trial.
• In essence a list of the documentary and other evidence is
prepared filed and served on the other side. Normally
documents or evidence not disclosed in the notice of
discovery may not be used during the trial of the case.
• PRETRIAL HEARINGS
• Either party may request a pre-trial hearing. The purpose of
the pre-trial hearing is to identify the matters that are in
dispute and to plan the course of the trial. The process may
also see the parties to settling their dispute at that stage.
 THE TRIAL
• Opening Statements
• At the start of the hearing both attorneys are allowed to make
an opening statement concerning the facts to be proved.
• Calling Witnesses
• After the opening statements, each side gets to call its
witnesses. Normally the plaintiff is the one who calls their
witnesses first followed by the defendant.
• Direct Examination
• In this case, the plaintiff has the burden of proving his facts are
correct. He will therefore call and question the first witness.

• In this examination the plaintiff or his attorney pose questions

that will allow the witness to tell their story. As an example “can
you tell the court what happened on 20 January 2022, or on the
date the accident occurred” This examination is call "direct
examination."
 Cross Examination
• Once the plaintiff has finished his questions to the
witness, it is then the turn of the defendant to ask the
witness questions. This is called "cross examination."
• Unlike with direct examination, in cross examination
even leading questions are permitted. An example of
a leading question is “you saw defendant assaulting
Brian”.
• The idea in cross-exam is to discredit the witness if
possible.
 Judgement before defendant has
testified
• At the conclusion of plaintiff's case, the defendant
may move for a judgement. This is called absolution at
the instance. Such a verdict will be issued if the
plaintiff has failed to prove his case. Such requests are
rarely granted.
• See Kadungure v Pervaiz HH 822-22, NRZ
CONTRIBUTORY PENSION FUND v MUGADZA TRADING
& TRANSPORT t/a CHASE WATER SERVICE & Anor HB
182/18
• Defendant is put to his defence
• The procedure is the same as stated with plaintiff
above (i.e. direct examination, and cross examination.
 Closing Arguments
• After both sides have rested their case, the attorneys
present a closing argument.
• This is a statement that summarises the evidence that
has been given in the case and proposes an outcome
of the case.
• The next stage is then the verdict/judgement in the
case. Normally after the hearing the court require
time to consider the case and come up with a
judgement.
• Hence, the matter is postponed to a given day or
without a given day. The parties will be advised when
the court is ready with its judgement. Judgement is
read in open court.
 Enforcement of judgment
• A civil judgment may be enforced by any one of the following
methods:
Execution of property
• A warrant/writ of execution may be issued against both
movable and immovable property. Execution is done by
messenger of court (Mag Crt, or the Sheriff or Deputy Sheriff for
High Court).
Garnishee order
• This order may be made against any debt due or to become due
to the judgment debtor. It is usually against salaries or wages of
the debtor.
Civil imprisonment
• This means imprisoning a debtor as a means of compelling
him/her to satisfy the judgment. It is not a punishment for a
debt but a method to compel compliance.
• You can also proceed by way of contempt of court proceedings
to enforce the judgement.
 Appeals
• A dissatisfied party may appeal the judgement to a
superior court e.g. from the Magistrate court to the
High Court.
• Appeals courts do not hear evidence afresh. The
appeals court decision is based on the record and the
briefs.
• The appellate court may reverse, affirm or modify a
judgment.
Application procedure
• The steps in the application procedure are as follows:
• 1. Application supported by a founding affidavit
which must present facts and evidence.
• 2. Opposition plus respondent’s opposing affidavit.
• The respondent must state the fact of his/her
opposition to the application and support it with an
opposing affidavit. Evidence and response to every
allegation made.
• 3. Applicant’s answering affidavit.
• The applicant may file a further affidavit that
answers issues raised by the respondent, with
particular focus on facts disputed by the latter.
Heads of argument

• These are written legal arguments supported by

legal authorities. They must be filed with the court
before the oral arguments given at the hearing.
• 5. Hearing to present oral arguments.
• A hearing is either held in open court or in the
judges’ chambers to enable the parties to present
oral arguments, if they so wish.
• 6. Judgment.
• The application is either dismissed or granted.
Criminal Proceedings

• Introduction
• Criminal proceedings are preceded by securing the
presence of the accused.
• There are three main methods of securing the presence
of the accused, namely, arrest, summons and extradition.
• The summons process applies where the accused is
notified (summoned) to appear in court and appears on
his own while extradition applies if the accused is in a
foreign land at the time of his arrest.
• Countries have bilateral arrangements that can be used
to extradite accused persons from one place to the
other. See the Extradition Act (Chapter 9:08).
 Bail
• Where a person has been arrested and detained pending trial,
he/she may be released on bail. Bail may also be granted after
conviction pending appeal.
• The trial process
• The onus of proof in a criminal case is on the state, which is
required to prove all the elements of the offence ‘beyond
reasonable doubt’.
• The PG or a public prosecutor may withdraw charges at any
time before plea, but he/she may re-institute proceedings at a
later stage.
• However, once the accused has pleaded, he/she is entitled to
be either acquitted or found guilty. Should the Attorney
General withdraw charges after plea, the accused is entitled to a
verdict of acquittal.
• In the normal course of events, every criminal trial takes place in
open court in the presence of the accused. But this can be
waived for good reason e.g. misbehaviour of the accused.
The accused’s entering of plea

• A plea is the accused’s answer to the charge. When

the charge is put to the accused, he/she must enter
a plea immediately.
• The normal procedure is for the accused to plead
personally, even where he/she is represented by a
legal practitioner.
• The two main pleas are ‘Guilty’ and ‘Not Guilty’.
Other pleas may also be entered.
 Outline of the State’s case

• The prosecutor addresses the court on the nature of the

state case and the material facts on which it is based. The
recommended approach is to outline the evidence of
each state witness and setting out the order in which the
state proposes to lead its evidence.
• Outline of the defence
• This is only necessary for a trial in a Magistrates Court. In
the High Court, the normal practice is for the accused to
supply the Attorney General with a written outline of
his/her defence before the opening of the trial in court.
• In a Magistrates Court, this outline must be given after
the state’s outline and before the leading of the evidence
of the state. In it, the accused is expected to outline the
nature of his/her defence and the material facts on which
it is based.
 Evidence-in-chief
• This involves the prosecutor leading evidence from state
witnesses.
• It is the prosecutor’s discretion to choose which witnesses
to call to support the state’s case.
• In general, witnesses are expected to adhere to the
statement he/she made to the police
• Cross-examination
• The purpose of cross-examination is to extract from the
witness that which may discredit his/her evidence or
otherwise reduce its value.
• This is done by questioning the witness. Except where the
accused person is not legally represented, the failure to
cross-examine a witness is, in general, taken as
acceptance of the witness’s evidence.
 Re-examination
• This involves the prosecutor putting questions to the witness in order to
reinforce his/her evidence on points where the cross-examination may
have watered it down.
• The re-examination must only deal with matters arising from the
cross-examination.
• Closing of the State case
• After the prosecutor has led evidence from all the state witnesses, the
state case is closed.
• Application for discharge of the accused at the close of the state case
(optional)
• At the close of the state case, the court has discretion to return a verdict
of not guilty and discharge the accused person if:
• (i) There is no evidence to prove an essential element of the offence Or:
• (ii) Given the evidence led, no reasonable court might convict Or:
• (iii) The evidence available is so manifestly unreliable that no reasonable
court could safely act on it.
• The latter may be made pursuant to an application made by the accused
or the court may act on its own accord (ex mero motu).
 Defence case
• If the accused is not discharged at the close of the
state case, he/she must be brought forward on
his/her defence.
• It is mandatory for the accused himself/herself to be
questioned by the prosecutor and the court. This
means that even where the accused chooses not to
give evidence, he/she is still liable to be questioned.
Adverse inferences may be drawn against the
accused where he/she refuses to answer questions.
• The defence case is conducted in the same way as
the prosecution case: evidence is led through
witnesses who give evidence-in-chief and are
cross-examined and re-examined
 Close of the defence case

• After leading evidence from defence witnesses, the

defence team closes its case.
• Addresses by both sides
• Each side is entitled to address the court
summarizing its case and focusing on key issues. If
the court refuses to allow the accused to address it,
the conviction may be set aside.
• Verdict
• The verdict is either one of guilty or not guilty. A
guilty verdict must only be returned if the court is
satisfied beyond reasonable doubt that the accused
is guilty.
 Addresses on sentence:
mitigation/aggravation
• If a verdict of guilty is pronounced, the next issue is the passing of an
appropriate sentence. Each side is given an opportunity to address
the court on the appropriate sentence.
• The general rule is that the prosecutor makes his/her address first.
The duty of the prosecutor is to assist the court in passing an
appropriate sentence, and not necessarily to see to it that the
accused is heavily punished. In the addresses, note must be taken of
‘aggravating’ and ‘mitigating’ factors.
• Sentence
• The appropriate sentence is determined and pronounced by the
court.
• The law requires that all sentences, except in the few situations
where the trial is in camera, i.e., closed to the public, be pronounced
in an open court.
• The forms of sentence which may be passed are cautions or
reprimands; fines; recognisances; community service;
imprisonment; corporal punishment; and death.
 LEGAL AID

• Introduction
• Legal aid refers to a system of providing legal services to
persons who are unable to afford to pay fees for such
services. This arises in a world in which the cost of legal
services is, without exception, very high.
• Whether or not the state should provide legal aid is a
controversial issue. It raises key political questions such
as whether or not the state has any obligation towards
the poor.
• Today, legal aid is almost universally regarded as an
aspect of access to Justice. This approach suggests that
there exists a right to the provision of legal aid in the
corpus of civil and political rights.
 Rationale for Legal Aid
• The rationale for the provision of legal aid in each era is linked
closely to the social political and legal philosophy of the
time.
• Within the rights discourse, it is recognized that no
meaningful development can ensue without the simultaneous
availability of access to legal services that can be utilized to
enforce all generations of rights and thus ensure the
empowerment of all persons in society.
• The concept of access to justice has attained the status of a
right in society today as it promotes the establishment of a
legal culture that contributes to development processes.
• In the case of Africa, legal aid must be considered as a
necessity, given the origination of the criminal justice system
and the context of operation, characterized by low levels of
literacy, high incidences of poverty and a sizeable distance
between the criminal justice system and its users.
 Legal Aid Prior to the Legal Aid Act
• Prior to the new Act on legal aid, the aid that was there was very
limited. In civil cases there was the informa pauperis system in civil
cases and the pro-deo system in criminal cases.
• However, this was mostly available in serious cases hence it applied
mainly to those that were appearing in the High Court and not in
the magistrate courts. On paper the support was also available in
the Magistrate court but with limited application.
• The Legal Assistance and Representation Act (Chapter 9:13)
provided for criminal proceedings legal aid. It applied to
appearance in the Supreme Court or the High Court at the request
of the court.
• It provided for two schemes of criminal legal aid: (i) at the instance
of the court and (ii) on the initiative of the Attorney General.
• In civil cases a magistrate could order that court processes for an
indigent person to sue as a ‘’pauper’. Papers could be served
without the need for him or her to pay messenger court fees. See
order 5 of the Magistrate Court Civil Rules. This meant this process
benefitted the very poor members of society and excluded a lot
who could otherwise deserve to get assistance.
 The new system of legal aid
• The new system of legal aid is provided for in terms of
the Legal Aid Act (Chap 7:16). The Act repealed the Legal
Assistance and Representation Act (Chapter 9:13).
• Its long title states that its aim is ‘to provide for the
granting of legal aid to indigent persons’.
• The Legal Aid Act (Chap 7:16) establishes a Legal Aid
Directorate consisting of a director and law officers.
• The functions of the Legal Aid Directorate (LAD) are to
provide legal aid to eligible persons and to do all things
necessary to promote the provision of legal aid.
 How does one Qualify for Legal
Aid?
• To qualify for legal aid, an applicant must satisfy that:
• he/she has insufficient means to obtain the services of
a legal practitioner on his own account;
• he/she has reasonable grounds for initiating, carrying
on, defending or being a party to the proceedings for
which he applies for legal aid; and
• he/she is in need or would benefit from the legal aid
services provided in terms of the Act.
• In assessing the means of an applicant for purposes of
determining whether or not he/she has ‘insufficient
means’, the Director is required to take into account
the income and property of the applicant.
 Ppty excluded from assessing
Means
• dwelling house;
• necessary beds, bedding and clothing;
• necessary furniture;
• tools and implements for his/her trade or occupation; and
• food and drink necessary to meet the needs of
himself/herself and members of his/her family for one
month.
• The application for legal aid must be made on the
prescribed form.
• The form requires the applicant to provide a set of details
that includes their marital status, particulars of any
dependent children, their occupation and salary (if any),
the particulars of any movable property and the nature of
the legal problem in issue.
 Deciding on an Application
• On receipt of an application, the Director is obliged to
consider it and either grant or reject it.
• Even where the applicant is qualified the Director may
only grant legal aid if also satisfied that ‘the resources of
the Directorate and the Legal Aid Fund will be sufficient
to provide the legal aid required’.
• The Act requires the Director to make his/her decision
expeditiously.
• Section 11 (2) leaves it to the discretion of the Director as
to whether or not, in a given case, the legal service
provided is legal advice only, legal advice and
representation in court, or only representation in court.
Legal aid is provided by Law Officers in the employ of the
state.
 Other Situations
• Legal aid can also be granted in terms of Section 10 of the
Legal Aid Act, where it is at the instigation of a judge or
magistrate or Attorney General.
• This is so in situations where civil or criminal proceedings are
in progress or are anticipated and the judge or magistrate or
Attorney General forms the view that ‘it is desirable in the
interests of justice that legal aid should be provided to a
person who is or will be a party to the proceedings’.
• In such cases, the judge or magistrate or Attorney General
makes a recommendation to the Director for the granting of
legal aid.
• The Director is not bound by any such recommendation,
he/she is obliged ‘forthwith’ to assess the means of the
person concerned according to protocol.
 Funding of Legal Aid
• The Act created a Legal Aid Fund for the purposes of
funding legal aid. This fund consists of monies
appropriated for the purpose by Parliament and
other contributions arising from the provisions of
Section 15 and 16 of the Act.
• In terms of Section 15, a person who has been granted
legal aid may be required to contribute to the cost to
the extent which ‘in the opinion of the Director, is just
and reasonable having regard to the means of the
person concerned’.
• In terms of Section 16, the Director is empowered to
deduct an amount that is prescribed from any
damages awarded to an aided person by a court.
• What are the challenging issues in the above scheme?
 Issues on the Legal Framework
• First, the Legal Aid Directorate is simply a department in the
Ministry of Justice. Its director and the law officers are part of
the Public Service and as such the director reports to the
Permanent Secretary of the Ministry of justice. Such an
arrangement makes the legal aid process neither independent
nor impartial.
• Countries that take the provision of legal aid seriously create
independent statutory bodies, for example, the Legal Aid
Board of South Africa and the Legal Services Commission of
England and Wales.
• Secondly, the criteria for eligibility for legal aid is problematic,
viz “insufficient means”.
• Thirdly, the availability of legal aid is, in every case, subject to
the requirement that ‘the resources … be sufficient to
provide the legal aid required’. In the absence of resources
by the state, no legal aid can be provided.
 Issues cont’d
• Fourthly, not only is access to legal aid tricky but there
is also little public information dissemination on this
subject.
• Zimbabwe’s legal aid scheme does not provide
sufficient scope for such services as the provision of
legal advice in civil matters or the all-important
presence of a lawyer during questioning by the police
in criminal matters.
• It appears that the philosophy of the Legal Aid Act is
that legal aid is all about legal representation in court.
South African Legal Aid System
• The Constitution of South Africa provides that
everyone who is detained, including every sentenced
prisoner, has a right to choose and to consult with a
legal practitioner, and to be informed of this right
promptly (section 35(2)(b)).
• Such a right does include a legal practitioner assigned
to the detained person by the State, at its expense,
especially if injustice would otherwise result.
• It is upon that basis that South Africa has achieved
progress towards implementation of a National Legal
Aid Strategy. The strategy is implemented through a
Legal Aid, an autonomous statutory body established
by the Legal Aid Act of 1969.
Approaches used to Provide Legal
Aid
• The Board adopted a four-pronged approach,
including the operation of justice centres, cooperation
agreements, impact legislation and a national legal aid
internship programme.
• Justice centres are one-stop centres for legal aid
clients. The centres incorporate the different
constituents of the legal aid scheme under one
umbrella, including qualified public defenders, law
clinics and interns.
• The centres employ salaried legal practitioners whose
entire focus is on service to the poor. Cases may be
referred to private lawyers if the centre lacks the
professional competence to handle the case.
 Cooperation Agreements
• Cooperation agreements are specifically made with NGOs capable of
delivering legal services. These also include public-interest law firms,
independently funded clinics and paralegal advice offices.
• Board activities are dictated by rules that are incorporated in the Legal
Aid Guide.
• Under the Guide, legal aid is to be administered under the supervision
of the Director of Legal Aid, who is an officer of the Board.
• Under the National Legal Aid Internship Programme,- law clinics
provide free legal services to the needy. Qualified legal staff represent
clients in the Courts of Judicature in both criminal and civil matters.
• Law clinics funded by the Legal Aid Board employ supervised law
graduate interns as public defenders in the district criminal courts and
a restricted number of civil cases.
• Approximately 3,000 law graduates are trained annually by the South
African law schools
 Internships

• State-funded internship programmes tap into the country’s

vast under-utilized human resources and thus contribute to
Government service provision in a number of keyways.
• First, in countries requiring law graduates to undergo
internships in law firms before admission to practice, such
interns can play a valuable role by providing legal aid services
as public defenders in district courts.
• Second, legal services can be offered at reasonable cost to
indigent members of the public.
• Third, interns who may otherwise not be able to gain access to
the legal profession are provided with placements, practical
training and an opportunity to serve the community
 Impact Legislation
• Under impact legislation and progressive policies, the
Government of South Africa has developed a policy paper
towards recognition of paralegals in providing access to
justice.
• The policy provides recognition of services of advice
offices and seeks to link paralegals into the integrated
justice system, while they retain their independence.
• From the law clinics and advice centres appropriate cases
for impact litigation are picked. Normally situations
affecting many people in society.