Answers BUSINESS LAW AND ACCOUNTING CONTROL STUDY PACK

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        When we discuss sources of law we are referring to where our laws originate. A law has to come from somewhere before it can be recognized as such and we should thus engage into an investigation of the tool of a law. In this discussion it is emphasized that the sources of law in Zimbabwean and South African law are basically the same. 1.1.1 CUSTOM Custom may be defined as those habits or usual practices of behavior observed by individuals in a society. There are social customs, which are rules of conduct - in any society. These are social customs which are rules of conduct – in any society. Those things, which we have always held to be rules of our own societies although they are not written in any book of law. Thus for example it is a custom practiced by all Shona speaking that the first son would inherit the name and a title of a dead father. Custom or the usual practices are the basic source where our customary law comes from. Thus most African law before the coming of whites was based on custom i.e. the practice of the people, which they regarded as law. One important aspect in custom is that it may differ amongst different ethnic groups but that does not mean that it is not uniform. At least it is uniform in that group of people where it applies. Sub-species or another branch of custom followed by different people in their trades or professions bur are written anywhere. Thus all doctors or accountants may develop a practice in their field which is followed and known by all doctors or accountants but not written anywhere. The courts are prepared to accept that or custom as Law. In our courts custom or trade usage is now being now recognized as law provided a number of requirements are to be satisfied by this custom / trade usage. These are: 1. Reasonableness Obviously for any custom / trade usage to be recognized as law it should be a reasonable custom and the test of Reasonableness is objective (This will be expanded under law of delict). 2. Long – established For a custom to be binding as law it should be shown that it has been established over along period of time. 3. Uniformly observed A custom should be uniformly followed by the people to whom it applies. 4. It should be certain This means that it should be clear and not always changing. In a certain case Van Breda Jacobs 1921 AD 330 the plaintiff (one sues another) sued another where there was a custom of first come first pull amongst fishermen of False Bay in the Cape. Thus he who came first would set his lines for fishing nets and no one was allowed to set their own nets nearer to the first fishermen. The defendant (one being 5 sued) came and spread his nets near the plaintiff and was sued. The defence by the defendant was that there was no law, which prohibited him from fishing near the firstfisherman. The court ruled that there was a custom, which was known by all fishermen in the area, and which was certain and this custom was binding as if it is a law. Lower courts in Zimbabwe usually administer customary law although the appeals can be heard in the high courts. 1.1.2. LEGISLATION This is undoubtedly the most important source of law in any country. Legislation refers to the laws that are made by the law making body of a country and in most countries it is the Parliament. Parliament is constituted by members of parliament whop are elected by the general population to represent them in the process of law making. The law so made thus should reflect the wishes of the people. Legislation can actually override any other source of law. Laws passed by Parliament are called Acts of Parliament for example the Consumer Contracts Act or Customary Law and Local Courts Act Chapter 7:05 for an Act of a Parliament to be passed it is first made as a proposal in Parliament, called a Bill and if it is voted by the majority it will then be made law after being signed by the President. Parliament cannot fill in the flesh needed in the Acts so that they usually provide the broad skeleton and the Act itself empowers other individuals or bodies to fill in the flesh. Thus an Act of parliament is called an enabling Act if it enables other lower groups to make other laws. The laws made by such groups are called Subsidiary Legislation and examples are statutory instruments, Regulations, by laws etc made by ministers or local authorities like City of Harare. The umbrella term for both legislation emanating from Parliament and subsidiary legislation is statutory law. A minister who is empowered to make a law by an Act of Parliament cannot make a law, which exceeds the powers he is given. This law is beyond his powers and is therefore Ultra Vires. An Act of Parliament will cease to be law if it is: i) Repealed (cancelled) by Parliament especially where a new law is passed. ii) Where another Act which opposes the previous one is passed without repealing the earlier one, this earlier one is said to have been implied repealed. iii) If the time period set for the Act has passed. This is in situations where the Act state that it shall operate for a specified period and thereafter comes to an end. 1.1.3. JUDICIAL PRECEDENCE / CASE LAW / JUDGE MADE LAW In a democratic society there is what is called separation of powers. This means that powers of government should be divided amongst different state organs to prevent dictatorship or Mobutuism. Thus the one who makes a law is not the one who should ensure that the law is followed and the one who ensures that it is followed is not the one who presides over a dispute of the law if it arises. This means the parliament shall make laws, the executive i.e. the police shall ensure that the law is followed and the judges shall adjudicate over a dispute. If we have the same person making, enforcing and 6 adjudication then it is easy to create Mobutuism and Hitlerism which s commonly called dictatorship. Despite this separation of powers, it is now widely being accepted that although judge’s role is to interpret the law not to make it, they are in practice making law. This is true for example where the words used in an Act of Parliament have got a number of meanings. The judge may end up using any one of the meanings, which was not even the intention of the parliament when it passed the law. In difficult cases, which do not fit well into the Acts, the judge has to pass a judgment so he would attribute his own understanding. These hard cases are called penumbra cases and a typical example is a case called Madzimbamuto V Ladneburke. 1.1.4. COMMON LAW The Common Law of Zimbabwe is that law which does not have its origins in Zimbabwe. South Africa and Zimbabwe have the same common law. This is the law that was brought in from outside by settlers and in both countries we apply the Roman and Dutch law. One may be left wandering why we apply Roman and Dutch law in these countries not English colonies. The reason is essentially historical. The first White person to arrive at the Cape in 1652 was Jan Van Rees Berg and he was a Dutch. He brought with him the law of the Holland. But by the time he brought the law of Holland one would glean that even in Holland their laws had largely been fused with Roman law, which was regarded then as the most civilized society. So in essence the Dutch settlers brought an already fused system of law called Roman Dutch law. In most areas the Dutch uprooted most of the African laws, which they regarded as barbaric and uncivilized but most importantly, because they brought that African laws which were largely customary would interfere with their political and economic endeavors. Later when the English came they found an already established and developed system of law and they found no reason to uproot it so they left the Roman Dutch law intact. Some authors call common law that law, which is common to everyone e.g. that one, should not steal is common to everyone. (IT is suggested that the most appropriate way is say common law is the law imposed from outside although some of the laws were already similar to those already there in Africa). The Zimbabwe Constitution stipulates the Common law applicable in Zimbabwe. It states that (In Section 89) the law which was applicable at the Cape of Good Hope on 10 June 1890 shall be law applicable in Zimbabwe subject to subsequent amendments and variations. It is important however to realize English law models that other areas in Zimbabwe and South African law. The basic reason as Bampton and Drury Introduction to Business law notes is that when the English came in 1806 at the Cape they wanted to keep laws which were already there but since they were now the rulers that at times imposed their own English laws in few areas because they could not apply Roman and Dutch laws which 7 they did not understand. Thus for example Bampton and Drury notes that most of the Criminal pr0ocedure was changed from Roman and Dutch Law to English Law. In commercial and Company Law were also a number of English principles for the same reason as above but this should not lead us to confusion since our Zimbabwean and South African law is basically Roman and Dutch. As interesting example of a case, which is difficult, to interpret is if an Act says “ It shall be an offence to drink liquor in a public place”. The accused opens his bottle and before drinking he is arrested. He defence will be that “ it is not an offense to open in a public place to drink ”. How will the charges interpret this is difficult so they may make law in the process. When we talk of the case law we are thus referring to judge – made law. Decisions, which are made Superior Courts of a country like the High Court of Zimbabwe and the Supreme Court, are binding on all subsequent cases of the same nature. Thus if the Supreme Court rules that a person is not obliged to carry a national I.D. it means if one is arrested for not carrying it will simply refer to previous judgment of the Supreme Court. Thus by the doctrine of stare decis, the courts, if confronted with a new case, they have to follow the decisions of the superior court in a case similar to the one before them for example, it was held in one case that n awarding a divorce and distributing the property of the spouses the court should not have serious regard as to who caused the divorce because it is not relevant. So in any case involving divorce and distribution of property we have refer to this case. The doctrine of stare decis states that the decided cases should stay. This means they should not be constantly changed because it will result uncertainty of law. The facts of a previous case may not exactly be same with the one before the judge so the judge may decide to take only the reasoning behind a previous decision and apply that reasoning to new facts before him. This is called Ratio Dicidenti An Obiter Dictum in a judgment is something which is not central but which is said in passing or is just included incidentally. For example in a divorce case a judge may talk of custody of minor children even though in that particular case there may be no children. It means it is just something he comes across in passing a judgment Decisions of inferior courts are not binding on any court e.g. decisions of magistrate courts are not to be followed. Practically, decisions of superior courts Hi