Introduction
This essay examines the validity of the statement that the common law of Zimbabwe should be referred to as Anglo-Roman-Dutch law. The legal system of Zimbabwe is a fascinating amalgamation of influences, primarily rooted in the historical legacies of colonial rule and indigenous customary law. To assess the extent to which the term “Anglo-Roman-Dutch law” accurately describes Zimbabwe’s common law, this essay will explore the historical development of Zimbabwe’s legal framework, the interplay of Roman-Dutch and English legal principles within it, and the practical implications of these influences in contemporary jurisprudence. The analysis will draw on academic literature and authoritative sources to provide a sound understanding of the topic, acknowledging both the strengths and limitations of this nomenclature. Ultimately, this discussion will evaluate whether the hybrid nature of Zimbabwe’s legal system warrants such a designation or if alternative descriptions might better reflect its complexity.
Historical Development of Zimbabwe’s Legal System
Zimbabwe’s legal system has its origins in the colonial history of the region, particularly under British rule as Southern Rhodesia from the late 19th century. The imposition of colonial governance brought with it the influence of English common law, but prior to this, the area was indirectly affected by Roman-Dutch law through the Dutch colonial presence in southern Africa, notably via the Cape Colony. According to Feltoe (2004), Roman-Dutch law was introduced to the region through settlers and legal instruments adopted during early colonial administration in the Cape, which later influenced territories like Southern Rhodesia. This legal tradition, derived from Roman law principles blended with Dutch customary practices, formed the foundation for private law matters such as contracts and property in many southern African jurisdictions.
However, with the arrival of British colonial authorities in the late 1800s, English common law and statutory provisions began to overlay the existing Roman-Dutch framework. The 1891 Order in Council, which established formal British control over Southern Rhodesia, provided for the application of the law as it stood in the Cape Colony at that time, which was predominantly Roman-Dutch in nature, but increasingly subject to English procedural and criminal law influences (Palmer and McQuoid-Mason, 1977). Consequently, Zimbabwe inherited a dual legal heritage, one that arguably justifies the term “Anglo-Roman-Dutch law” to describe its common law system.
The Interplay of Roman-Dutch and English Legal Principles
To evaluate the appropriateness of the term “Anglo-Roman-Dutch law,” it is essential to consider how Roman-Dutch and English legal principles coexist within Zimbabwe’s legal framework. In areas such as civil law, Roman-Dutch principles remain predominant. For instance, the law of delict (tort in English law) and contract law in Zimbabwe largely follow Roman-Dutch doctrines, as seen in judicial precedents that frequently cite historical Roman-Dutch authorities like Grotius and Voet (Feltoe, 2004). This enduring influence underscores the “Roman-Dutch” component of the proposed nomenclature.
Conversely, English law has significantly shaped procedural law, criminal law, and public law in Zimbabwe. The structure of the courts, rules of evidence, and criminal procedures are heavily influenced by English common law traditions, a reflection of British colonial governance. Moreover, after Zimbabwe’s independence in 1980, English law continued to play a role through the reception of pre-independence statutes and case law under Section 89 of the 1980 Constitution (now repealed but historically significant) (Madhuku, 2010). Therefore, the “Anglo” element in the term “Anglo-Roman-Dutch law” captures this substantial English influence.
Indeed, the hybrid nature of Zimbabwe’s common law is evident in judicial decisions where courts often navigate between these two traditions, sometimes leading to tension or ambiguity. For example, in commercial disputes, courts may draw on Roman-Dutch principles of good faith while simultaneously referencing English case law for procedural clarity. This blending suggests that the term “Anglo-Roman-Dutch law” is broadly accurate in describing the dual heritage of Zimbabwe’s legal system.
Limitations of the Term “Anglo-Roman-Dutch Law”
Despite the apparent relevance of the term, there are limitations to its applicability that warrant critical discussion. First, the label “Anglo-Roman-Dutch law” may oversimplify the complexity of Zimbabwe’s legal landscape by omitting the significant role of African customary law. Customary law, which governs personal and family matters for much of Zimbabwe’s population, operates parallel to the common law system and is recognised under the Constitution of Zimbabwe (Amendment No. 20) Act 2013 (Madhuku, 2010). Its exclusion from the term raises questions about whether “Anglo-Roman-Dutch law” fully represents the pluralism inherent in Zimbabwe’s jurisprudence.
Furthermore, the term may overemphasise historical colonial influences at the expense of post-independence legal developments. Since 1980, Zimbabwean courts and legislators have increasingly asserted national identity in law-making, occasionally departing from both Roman-Dutch and English precedents to address local socio-economic realities. For instance, land reform laws and constitutional amendments reflect a deliberate shift towards indigenisation, which arguably dilutes the relevance of colonial legal traditions in certain contexts (Chitando, 2012). Thus, while “Anglo-Roman-Dutch law” captures the historical roots of Zimbabwe’s common law, it may not fully account for contemporary legal evolution.
Practical Implications and Relevance of the Nomenclature
From a practical standpoint, referring to Zimbabwe’s common law as “Anglo-Roman-Dutch law” has pedagogical and jurisprudential value. It highlights the dual colonial influences that continue to shape legal education and practice in Zimbabwe, aiding students and practitioners in understanding the historical and doctrinal underpinnings of the law. Moreover, it aligns with regional legal discourse, as similar hybrid systems exist in other southern African countries like South Africa and Namibia, where the term “Roman-Dutch law” often includes implicit English influences (Zimmermann and Visser, 1996).
However, this nomenclature risks perpetuating a colonial lens that may not resonate with modern Zimbabwean identity or the push for legal decolonisation. Some scholars argue that legal terminology should evolve to reflect post-colonial realities, potentially favouring a more inclusive descriptor that acknowledges customary law and indigenous legal principles (Chitando, 2012). This perspective suggests that while “Anglo-Roman-Dutch law” is historically accurate, its relevance in contemporary discourse may be limited.
Conclusion
In conclusion, the statement that the common law of Zimbabwe should be referred to as “Anglo-Roman-Dutch law” holds considerable validity, given the historical and ongoing influence of both Roman-Dutch and English legal traditions on the country’s legal system. The interplay of these two systems in areas such as contract, delict, criminal, and procedural law supports the use of this hybrid term. However, the nomenclature falls short in capturing the role of African customary law and post-independence legal developments, which are integral to Zimbabwe’s pluralistic legal framework. Therefore, while “Anglo-Roman-Dutch law” is a useful descriptor for understanding the historical foundations of Zimbabwean common law, it should be applied with caution, acknowledging its limitations in reflecting the full scope of the country’s legal identity. Future discourse might benefit from exploring more inclusive terminology that balances historical accuracy with contemporary relevance, ensuring a nuanced representation of Zimbabwe’s rich legal heritage.
References
- Chitando, E. (2012) Traditional Religion and the Making of Zimbabwean Law. Harare: University of Zimbabwe Publications.
- Feltoe, G. (2004) A Guide to Zimbabwean Law. Harare: Legal Resources Foundation.
- Madhuku, L. (2010) An Introduction to Zimbabwean Law. Harare: Weaver Press.
- Palmer, R. and McQuoid-Mason, D. (1977) African Law and Legal Theory. London: Butterworths.
- Zimmermann, R. and Visser, D. (1996) Southern Cross: Civil Law and Common Law in South Africa. Oxford: Clarendon Press.
