Introduction
This essay examines the origins and composition of Zimbabwean common law, seeking to determine whether it is primarily derived from Roman Dutch law or represents a hybrid of Roman Dutch law and English law. Zimbabwe’s legal system, shaped by its colonial history, offers a fascinating case study in the interplay of legal traditions. The discussion will explore the historical foundations of Zimbabwean law, the influence of both Roman Dutch and English legal principles, and the extent to which these traditions have been integrated or adapted in contemporary jurisprudence. By critically evaluating historical developments and legal sources, this essay argues that Zimbabwean common law is fundamentally a mixture of Roman Dutch law and English law, with the former providing the foundational structure and the latter exerting significant influence through colonial administration and legal practice.
Historical Foundations of Zimbabwean Common Law
Zimbabwe’s legal system traces its roots to the colonial period, particularly under British rule as Southern Rhodesia. The foundational legal framework was established through the reception of Roman Dutch law, which was the prevailing system in the Cape Colony of South Africa before British annexation. When the British South Africa Company extended control over Southern Rhodesia in the late 19th century, Roman Dutch law was adopted as the basis of civil law, as confirmed by the Southern Rhodesia Order in Council of 1898 (Guest, 1985). This legal tradition, originating from Roman law and developed in the Netherlands during the 17th and 18th centuries, provided principles governing contracts, property, and delict (tort) that remain influential in Zimbabwe today.
However, the superimposition of British colonial administration introduced English law, particularly in areas of criminal law and procedure. English statutes, case law, and legal practices were often applied by colonial courts, especially where Roman Dutch law was deemed insufficient or where British precedents were more accessible to English-trained judges (Feltoe, 2004). This dual influence laid the groundwork for a hybrid legal system, blending the civil law principles of Roman Dutch law with the common law approaches of English law.
The Influence of English Law on Zimbabwean Jurisprudence
English law has significantly shaped Zimbabwean common law, particularly in criminal law and judicial procedure. The Criminal Procedure and Evidence Act, for instance, draws heavily from English legal traditions, reflecting the procedural norms of British courts during the colonial era (Feltoe, 2004). Moreover, the doctrine of precedent (stare decisis), a hallmark of English common law, was incorporated into Zimbabwean judicial practice, despite Roman Dutch law traditionally placing less emphasis on binding precedents (Guest, 1985). This adoption is evident in the reliance on English case law by Zimbabwean courts, especially in the absence of local precedents during the early colonial period.
Furthermore, English legal education and training dominated among Zimbabwean legal practitioners and judges during and after colonial rule, reinforcing the prominence of English legal principles in practice. Even after independence in 1980, the influence persisted, as English decisions, particularly from the House of Lords (now the UK Supreme Court), were often cited as persuasive authority (Madhuku, 2010). Thus, English law arguably permeates areas of Zimbabwean law beyond mere procedure, influencing substantive legal reasoning and interpretation.
Retention and Adaptation of Roman Dutch Law
Despite the strong presence of English law, Roman Dutch law remains the bedrock of Zimbabwean civil law. Core areas such as contract law, family law, and property law continue to be governed by Roman Dutch principles, often supplemented by local statutes rather than English precedents (Madhuku, 2010). For instance, the law of delict in Zimbabwe closely mirrors Roman Dutch concepts, such as the aquilian action for wrongful acts causing harm, differing from the English tort law approach (Feltoe, 2004). Moreover, post-independence Zimbabwean courts have occasionally sought to reassert Roman Dutch principles in areas where English law had previously dominated, reflecting a conscious effort to preserve this foundational heritage.
However, the application of Roman Dutch law is not without adaptation. Modern Zimbabwean jurisprudence often interprets these principles in light of contemporary needs and societal values, sometimes blending them with English legal doctrines where practical (Guest, 1985). This pragmatic approach underscores the hybrid nature of the system, as neither tradition operates in isolation.
Conclusion
In conclusion, Zimbabwean common law cannot be said to derive solely from Roman Dutch law; rather, it is a complex amalgamation of Roman Dutch and English legal traditions. While Roman Dutch law provides the historical and structural foundation, particularly in civil law, English law has profoundly influenced criminal law, procedure, and judicial practice through colonial legacy and ongoing legal education. The interplay of these systems demonstrates a hybrid legal framework, adapted to Zimbabwe’s unique historical and cultural context. This duality poses challenges for legal coherence but also enriches the system with diverse perspectives. Future research might explore how this hybridity impacts legal reform and the balance between preserving tradition and embracing modernity in Zimbabwean jurisprudence.
References
- Feltoe, G. (2004) A Guide to Zimbabwean Law. Legal Resources Foundation.
- Guest, A. G. (1985) An Introduction to the South African Law of Obligations. Oxford University Press.
- Madhuku, L. (2010) An Introduction to Zimbabwean Law. Weaver Press.
