Introduction
This essay explores the origins and composition of Zimbabwean common law, addressing whether it is primarily derived from Roman-Dutch law or constitutes a mixture of Roman-Dutch and English legal traditions. Understanding the historical and legal foundations of Zimbabwean law is essential, as it reflects the country’s colonial past and its subsequent legal evolution. The analysis will examine the historical context of Roman-Dutch law’s introduction, the influence of English law during British colonial rule, and the interplay of these systems in shaping modern Zimbabwean jurisprudence. Ultimately, this essay argues that Zimbabwean common law is best understood as a hybrid, blending Roman-Dutch principles as its foundational base with significant English law influences.
Historical Context of Roman-Dutch Law in Zimbabwe
Roman-Dutch law, a legal system originating from the amalgamation of Roman law and customary Dutch practices, was introduced to Southern Africa through Dutch colonial expansion. In the Cape Colony, established in 1652, Roman-Dutch law became the foundation of civil law (Van der Merwe and Du Plessis, 2004). When the British assumed control of the Cape in 1806, they largely retained Roman-Dutch law as the basis for private law, a practice that extended to territories like Southern Rhodesia (now Zimbabwe) during later colonial expansions. The 1891 Order-in-Council, which established British jurisdiction over Southern Rhodesia, explicitly mandated that Roman-Dutch law, as it existed in the Cape Colony, would serve as the common law framework (Feltoe, 2004). This historical adoption confirms Roman-Dutch law as the bedrock of Zimbabwean legal principles, particularly in areas such as contract, property, and family law.
English Law Influences During Colonial Rule
Despite the formal adoption of Roman-Dutch law, British colonial administration introduced significant English law influences in Southern Rhodesia. From the late 19th century, English legal principles were integrated through legislation, judicial precedents, and procedural norms, especially in public law and criminal justice. For instance, English common law and equity principles often guided judicial decisions in the absence of specific Roman-Dutch precedents (Feltoe, 2004). Furthermore, statutes based on English models, such as those governing criminal procedure and evidence, were enacted, embedding English legal traditions into the system. This dual influence created a legal landscape where English law often supplemented or even overshadowed Roman-Dutch principles in certain domains, arguably reflecting the practical needs of colonial governance rather than a deliberate legal synthesis.
Modern Zimbabwean Jurisprudence: A Hybrid System?
In contemporary Zimbabwe, the common law exhibits clear characteristics of a hybrid system. While Roman-Dutch law remains the theoretical foundation, as affirmed in the Constitution of Zimbabwe (2013), English law continues to exert influence through inherited statutes and judicial reasoning. For example, in commercial law, English precedents are frequently cited due to their extensive development and accessibility (Hahlo and Kahn, 1968). However, Zimbabwean courts have also sought to assert the primacy of Roman-Dutch principles in areas like delict, demonstrating a nuanced balance. This hybridity is not without challenges; legal practitioners often face uncertainty when determining applicable principles in conflicting scenarios. Nevertheless, this blend arguably enriches Zimbabwean law by providing flexibility and adaptability to modern legal issues, even if it occasionally complicates judicial interpretation.
Conclusion
In conclusion, Zimbabwean common law cannot be viewed solely as a derivative of Roman-Dutch law; rather, it is a mixture of Roman-Dutch and English legal traditions. The historical imposition of Roman-Dutch law provided the initial framework, but British colonial rule introduced enduring English law influences that persist in modern jurisprudence. This hybrid nature, while sometimes contentious, offers a dynamic legal system capable of addressing diverse societal needs. Future research might explore how Zimbabwean courts can further harmonise these influences to enhance legal clarity, ensuring that the common law evolves in line with national identity and contemporary demands.
References
- Feltoe, G. (2004) A Guide to Zimbabwean Law. Legal Resources Foundation.
- Hahlo, H.R. and Kahn, E. (1968) The South African Legal System and Its Background. Juta & Co.
- Van der Merwe, C.G. and Du Plessis, J.E. (2004) Introduction to the Law of South Africa. Kluwer Law International.
