Yes, the writer knows that according to section 192 of the constitution of Zimbabwe as read with section 89 of the independence constitution, Roman-Dutch law as imposed by colonial conquest is Zimbabwe’s common law. But it is precisely because of this position that Zimbabwe’s legitimate common law has failed to flourish, being relegated to the status of customary law.
Zimbabwe has ten provinces. Only two of the provinces are metropolitan provinces. The metropolitan provinces themselves have very few people with Caucasian values and mores. The remaining eight provinces are predominately rural with decidedly African values and mores. The overwhelming majority of Zimbabweans are strangers to Roman-Dutch law. The values and mores of the Romans and the Dutch which informed their law, and consequently Roman-Dutch law, are not the same as the values and mores of the majority of Zimbabweans who reside in both rural and urban areas. Yet the dominant civil laws, that is, delict, marriage, divorce, inheritance, succession, devolution of property, and other matters of personal law continue to be dominated by Roman-Dutch law. Zimbabwe’s original common law has failed to develop or evolve in tandem with Zimbabwe’s evolving values and mores, but was and continues to be changed or modified under the prism of Roman-Dutch law.
In this article the writer examines two concepts under Roman-Dutch law which distorted original and superior Zimbabwean common law concepts resulting in the two concepts disempowering African women, and a third concept underpinning liability to compensate for civil wrongs. The three concepts are; (1) “minority” and “majority”; (2) individual ownership of immovable property; (3) delict system of liability based on fault.
Muchechetere JA, as he then was, in dealing with the intention of the legislature in passing the Legal Age of Majority Act, of 1982, (now section 15 of the General Law Amendment Act [Chapter 8:07]), in the case of Magaya v Magaya reported in 1999 (1) ZLR 100 (S), made the following profound statement “On the intention of the legislature in passing the Majority Act, my view is that although it wanted to emancipate women by giving them locus standi and “competencies” in all matters generally, especially under common law, it was never contemplated that the court would interpret the Majority Act so widely that it would give women additional rights which interfered with and distorted some aspects of customary law”. In simple terms, it is Roman-Dutch law which stood in the way of women emancipation more than the so-called customary law. The legislature therefore rescued women mostly from “incompetencies” suffered by them under Roman-Dutch law.
Justice Muchechetere then referred to concepts of “minority” and “majority” as being Roman-Dutch law concepts which were foreign to customary law. Taking marriage as an example, the mother of a young woman being married is entitled to mombe yehumai/inkomo yohlanga. The progeny therefore belongs to her. During the subsistence of her marriage she is also entitled to own property which she acquires through her own personal labour or skills. She is entitled to retain this property at divorce. Upon her death this property is inherited by her maternal relatives. This is what has generally been referred to as maoko/impahla zezandla property. The husband has no right over this property whatsoever.
However, after colonization, this same African woman could not open a bank account nor enter into business agreements, not because of limitations placed by the so-called customary law, but by limitations placed by Roman-Dutch law. The Roman-Dutch law position until 1st January 1929 when it was relaxed by the Married Persons Property Act, Chapter 5:12 was that marriages are in community of property and subject to the marital power (control by the husband). The property of the spouses belonged to both husband and wife, but the husband was the administrator of the joint estate, and was not obliged to give an account to his wife as to how he was handling the estate. The woman under Roman-Dutch law was therefore a minor in so far as the administration of the joint estate was concerned and risked having nothing at divorce as the husband would have by then dissipated the joint estate.
Sadly, our jurisprudence failed to capture the immense significance of the legal right of African women to own their own property in furtherance of women’s rights. It failed to extend the meaning of maoko/impala zezandla property to include putting a monetary value to the skills of looking after a family home whilst the husband exercised his skills at his workplace. Whilst Professor Welshman Ncube says in his book “Family Law In Zimbabwe” at page 171 that before dealing with the property the woman “has to obtain the consent of her maternal ancestral spirits”, it is clear that her husband or husband’s family has no legal right over her property. The beauty of the belief in ancestral spirits, though, is that the woman’s husband and his relatives dare not touch her property because of the fear of ngozi/amadhlozi! Professor Ncube bemoans the difficulty of proving that she worked for and acquired the property in her own right. This is a question of evidence and is no bar to the woman claiming what is hers.
Instead of being progressive, our jurisprudence focused on refusing to recognize unregistered marriages between indigenous Zimbabweans, and in the process called their marriages “unions” and bastardized the children born in such marriages. When the “union” breaks down the courts struggle to protect the woman’s proprietary interests because this is not a marriage. But if the husband dies without leaving a Will, upon death it is a marriage! If the woman was the first wife and the husband marries another wife under the Marriage Act, Chapter 5:11, the Chapter 5:11 marriage, upon death, is protected in that the second wife is considered a wife under customary law! However, if the second wife was married in an unregistered customary law marriage, the first having a Chapter 5:11 marriage, upon death, the second marriage is not a marriage! This circus is clearly unjust and needs urgent rationalization.
Secondly, the concept of individual ownership of immovable property under Roman-Dutch and English law also wreaked havoc to indigenous laws of inheritance. Under the original Zimbabwean common law there was no concept of individual ownership of immovable property – no concept of title deeds. Land belonged to the people. The Chief or King administered it on behalf of the people. By some twist of colonial logic meant to justify the illegal seizure of Zimbabwean land, the Privy Council of Britain ruled in the case of In re Southern Rhodesia 1919 AC 211 that Lobengula had a personal right to the land and when he was defeated by Cecil John Rhodes’ gangsters, and subsequently died, Zimbabwe became res nullius (it had no owner), and was up for grabs and hence the British were entitled to take it for themselves – they found it!
This type of warped legal reasoning solidified into a tragic approach to inheritance and succession laws with regards to immovable property. Prior to the 1997 amendment to the Administration of Estates Act, Chapter 6:01, an heir under the so-called customary law was allowed to inherit immovable property left by the deceased in his personal capacity. Thus, if a husband died leaving a house in which his widow and dependents were residing, the eldest son would inherit the house in his personal name. He was entitled to deal with the immovable property as he pleased, even selling it, provided he found alternative accommodation for the family left by the deceased. In reality many widows and children found themselves homeless as heirs sold these houses. The heir could bequeath the immovable property to any person of his choice. Or if he died without a Will, the immovable property would be inherited by his widow and children, leaving the first widow and her children at the mercy of the heir’s heirs. Even if he made a Will, there was no guarantee that he would bequeath the house to his mother (the widow) or any of his siblings.
Roman-Dutch law jurisprudence was more concerned with advancing individualistic ownership of immovable property, rather than advance the concept of the heir inheriting property for the benefit of the deceased’s family. An heir had an obligation to support the family of the deceased from the property left by the deceased. He had no right to appropriate the property to himself. Consequently transferring immovable property to his personal name destroyed the objective of inheritance under Zimbabwe’s original common law. The heir’s estate was enhanced by the immovable property which he inherited in his personal name, more particularly in that upon his death the immovable property would be inherited by his own family rather than his late father’s widow and children. This was not the intention under the so-called customary law. The intention was for the heir to administer the property for the benefit of the family left by the deceased.
The injustice of the colonial jurisprudence was corrected by Act 6 of 1997 which repealed and substituted section 68 of the Administration of Estates Act, which now provides that the heir inherits only the person’s name, the tsvimbo/intonga, and traditional items which pass to an heir. The matrimonial home and household effects go to the widow. The widow also shares the net estate with the children. This is consistent with the purpose of inheritance under the so-called customary law, that the heir assumed the status of the deceased to continue with the obligation of supporting the deceased’s family using the deceased’s estate. Now the estate is distributed among the deceased’s family members, not the colonial distortion of inheritance laws introduced by Roman-Dutch law and English law which unjustly enriched the heir at the expense of the majority of the deceased’s surviving family members.
Thirdly, one of the most profound differences between Roman-Dutch law and the original Zimbabwe’s common law is in respect of the philosophical approach to liability for civil wrongs (delict). Examples of civil wrongs common to both laws are defamation, rape, murder, arson, incest, adultery, harm caused by animals, seduction, assault. It is important to note that criminal wrongs like murder, rape, arson, assault also give rise to civil wrongs as the victim directly suffers loss or damages and is therefore entitled to compensation.
Under Roman-Dutch law the wronged person must prove fault on the part of the wrongdoer. If there is no proof of fault, then the wrongdoer is not liable to compensate the wronged party. Fault is in the form of actually intending to cause injury, harm or loss, or it is derived from negligence of the wrongdoer. The only exception where fault is not required is in respect of harm caused by animals. On the other hand, under the original Zimbabwean common law, liability for civil wrongs is based on causation, not on fault. Fault only acts to increase the quantum of damages.
The major shortcoming of the fault based Roman-Dutch system is that it places the burden to prove that the wrongdoer was at fault on the wronged party. It is the wronged party who has to allege fault, prove it, otherwise the claim fails. New delicts like harm caused by defective products, accidents on the roads, accidents at the workplace, and accidents in general, are difficult to prove and more often leave the injured party without compensation. According to Professor G. Feltoe, in his book A Guide to the Zimbabwean Law of the Delict, 4th edition, at page 162 “In recent years, the fault system of compensation has come under increasing attack in developed countries and a number of countries have introduced or are considering the introduction of a variety of no fault schemes, either State run or operated through private insurance.”. Professor G. Feltoe then quotes varies authors who criticize the system of liability based on fault (including Roman-Dutch law) as being “a lottery because in many cases the inherent vagueness of the negligence concept makes the outcome in delict cases unpredictable. The concept of fault is especially nebulous, inaccurate and difficult to prove in motor collision cases.”. The writer submits that the above statement applies with equal force to harm caused by defects in products and to accidents generally.
The ingredients of a no fault system already exists in Zimbabwe’s original common law. It is there for Zimbabwe to develop and improve it, rather than continue with the ruinous Roman-Dutch law fault based liability system.
With regards to delicts arising out of criminal conduct, that is in cases such as murder, rape, theft, robbery, arson, Roman-Dutch law has a clear distinction between crime and delict, whereas under Zimbabwe’s original common law there was little distinction between crime and delict. Although Roman-Dutch criminal law is no longer part of Zimbabwe’s criminal law, the codified Zimbabwean criminal law is very much a replica of the Roman-Dutch criminal law and emphasizes punishing the offender rather than compensating the victim. Zimbabwe’s original common law emphasized compensating the victim rather than punishing the wrongdoer. These differences in approach have far reaching consequences on the victim of the crime. Emphasis on compensation means that the victim does not suffer loss or the loss is at least mitigated by partial recovery with very little expense being incurred by the victim. On the other hand, emphasis on punishment more often leaves the victim wondering why he/she reported the matter to the authorities, as the trial procedure generally does not result in the awarding of compensation to the victim, but the punishment of the offender.
Whilst Zimbabwe’s criminal procedure laws allow a court to make an award of compensation in a criminal matter, the scope remains limited, the victim is generally ignorant of his/her right, to compensation, and the courts place too much emphasis on punishment. The victims end up approaching civil courts for compensation. The processes at the civil courts are expensive, laborious, and of course proving fault on the part of the wrongdoer is an uphill task. Remedies which come after lengthy litigation are usually worthless.
In conclusion the writer submits that the lesson to learn about legal systems is that charity begins at home, and foreign legal systems only help to enhance a legal system which is consistent with the values and mores of a particular country. To replace a country’s entire legal system with a foreign one is equivalent to replacing its people’s values and mores, for although society is governed by law, law is derived from people’s values and mores. So it’s values and mores first, then laws are crafted to serve those values and mores. People do not serve law. Law serves the people. Roman-Dutch law should not have been allowed to supplant the Zimbabwe’s original common law, more so after independence. Only progressive elements of it should have been allowed to continue. But it is never too late to do the right thing.
By Godwills Masimirembwa
Zimbabwe Institute of Legal Studies