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Mabulala & Dembure Legal Practitioners, No. 1 Waterfield Road, Mt Pleasant, Harare (2026)

11/02/2020

Adoption Laws In Zimbabwe.

In Zimbabwe, as a way to ensure a child is not adopted by people with ulterior intentions, adoption requires extensive initial screening and court procedures.

To be eligible to adopt in Zimbabwe, parents should adhere to the Children’s Act (Chapter 5:06) Sections 57 to 75 which provide for the manner in which adoptions are carried out. First, the children’s court appoints a probation officer to act as a Guardian ad Litem of the child whose duty is to safeguard the interests of the child throughout the process of adoption.

The Act provides that no adoption order can be made except with the consent of the Minister of Labour and Social Welfare in all cases where:
The applicant is under the age of 25 years.
The applicant is less than 21 years older than the minor who is to be adopted.
The applicant is not a citizen of Zimbabwe.

In terms of section 59 ( 5 ) an adoption order shall not be made in favour of any applicant who is not resident and domiciled in Zimbabwe or in respect of any minor who is not so resident. Provided that if the applicant and the minor are within the prohibited degrees of consanguinity the order may be made in favour of an applicant who is not resident or domiciled in Zimbabwe.

There are other requirements which need to be fulfilled before an adoption order can be made; unless exceptional circumstances are brought to the attention of the Children’s Court. These requirements, , include that;
no adoption can be made where the sole applicant is a male and the minor is a female.
No order can be made without the consent of every person or body who is a parent or legal guardian of the minor.
No order can be made upon the application of one of two spouses without the consent of the other.
No adoption will be made in favour of any applicant who is not resident and domiciled in Zimbabwe or in respect of a minor who is not so resident.
No adoption order will be made unless the minor has been medically examined and the results are furnished to the court and contents made known to the prospective adopter, .

When adopting, prospective adopters, who could be a couple or an individual, apply for adoption at their local Children’s Court.The Children’s Court then refers the application to the Provincial/District Social Welfare Offices where an officer to deal with the application is identified and referred to the Children’s Court for appointment as Guardian ad Litem.

An initial assessment which includes a home visit is done by the Guardian ad Litem to ascertain suitability of the applicants. Stage four is when police vetting and clearance for prospective adoptive parents will be required as part of the documentation. Whilst all these requests are being sent out and results are being awaited, an assessment of the prospective adoptive parents through home study is done. For local adoptions, the processes are done by the local offices under the Department of Social Welfare and for eligible international applicants, and the Ministry conducts background checks and suitability assessments through the International Social Services. Prospective adoptive parent(s) are placed on the Adoption Waiting List Register. The Guardian ad Litem prepares a Guardian ad Litem Narrative Report to the Children’s Court and proceeds to present it to court.
The Children’s Court issues an adoption Order and sends it direct to the Registrar of Births and Deaths for a birth registration certificate with the adoptive name.

Kindly take note that for a de facto adoption it should take about two months to complete the process.For a none de facto, it should take about three months if a child is available or longer depending on availability of the preferred child,

20/12/2019

Season's Greetings!

03/09/2019

DO YOUR BUSINESS CONTRACTS HAVE A DISPUTE RESOLUTION CLAUSE?

What is Abritation? What are its advantages?

“Arbitration is a process whereby the parties to the dispute enter into a formal agreement that an independent and impartial third party, the arbitrator, chosen directly or indirectly by the parties, will hear both sides of the dispute and make an award which the parties undertake through the agreement to accept as final and binding.”

A good contract should contain a dispute resolution clause. This clause spells out how disputes will be resolved as and when they arise. Most disputes including commercial disputes are referred to courts of law for adjudication. This is inspite of the fact that arbitration is another mechanism which parties can use to resolve disputes. In Zimbabwe, Section 4 (1) of the Arbitration Act (Chapter 7:15) provides that:

“Subject to this section, any dispute which the parties have agreed to submit to arbitration may be determined by arbitration.”

Section 4 (2) of the aforesaid Act provides that, the following matters shall not be capable of determination by arbitration:

An Agreement that is contrary to public policy; or
A dispute which, in terms of any law, may not be determined by arbitration, or
A criminal case; or
A matrimonial cause or a matter relating to status, unless the High Court gives leave for it to be determined by arbitration, or
A matter affecting the interests of a minor or an individual under a legal disability, unless the High Court gives leave for it to be determined by arbitration, or
A matter concerning a consumer contract as defined in the Consumer Contracts Act (Chapter 8:03) unless the consumer has by separate agreement agreed thereto.
Why you should consider arbitration?

Arbitrator / Judge
In Arbitration the parties can choose an Arbitrator of their choice taking into account the nature of the dispute and the expertise of the Arbitrator. This is a huge advantage over litigation where the parties have no right to choose the Magistrate or Judge who will determine the dispute. The Magistrate or Judge is assigned to the case without any input from the parties.

Confidentiality
The arbitration process is private whilst litigation takes place in a public courtroom.

Time Frames
In litigation the time frames within which the parties must file their pleadings are set for the parties by the court rules whereas in arbitration the parties can set for themselves the time frames within which documents are to be filed. The parties can with the consent of the arbitrator fix the date when the Arbitration hearing takes place.

Formality
Litigation is formal. The parties must strictly follow the Court Rules and Procedure; Arbitration on the other hand is informal.

Time
Arbitration generally provides a speedier resolution of disputes than litigation.

Hostility
The parties in Arbitration proceedings are not as hostile to each other as are the parties in litigation proceedings.

Costs
Unless the parties choose to have the dispute determined by a panel number of Arbitrators, arbitration generally tends to be emotionally and financially cheaper than litigation.

Appeal
The appeal process in litigation delays the finality of adjudication. In arbitration, the Arbitrator’s Award is final and binding with a limited right of appeal

05/07/2019

What can be compensated for in a car accident claim? What is the procedure?

Establishing blame

When an accident occurs there is need to establish its cause. Triggers of accidents are many and varied, but ultimately it comes down to the conduct and state of the drivers and what they could have done to avoid or prevent the accident. Road and weather conditions may be poor.

Tyres may burst, animals may just emerge onto the road, brakes may fail, motorists may fall ill or even lose consciousness while driving. Anything at all can happen, some situations are avoidable and some are unavoidable. Whichever way the cause of any accident has to be established to know what happened and apportion liability.

If the drivers are still alive and neither or any of them admits liability the matter will have to go for trial in a criminal court to establish liability in terms of the Road Traffic Act. One of the drivers will have infringed the rules and committed an offence. Driving offences are listed in Part III of the Act.

General offences include licence misdemeanours such as driving without a licence or falsifying information and driving whilst under a prohibition from driving.

More serious offences which contribute to accidents are exceeding speed limits, driving without due care and attention or reasonable consideration for others, negligent or dangerous driving, reckless driving, driving with prohibited concentration of blood, driving while under the influence of alcohol or drugs or both.

Other offences which will not necessarily contribute to an accident, but which impact on the general poor driving culture include forgery of documents, licence plates, licences, unlawful contact with or use of vehicles, throwing of articles at or from vehicles and interference with drivers.

Criminal trials to establish liability for any one of the driving offences which may have led to an accident happen at Magistrates Courts. The prosecutor represents the State because an infringement of any one of the road rules that leads to an accident is a crime against the State.

The driver against whom the fault is alleged and denies the charge has to defend himself. They can be represented by a lawyer or act for themselves. It is the prosecutor’s duty to establish the driver’s fault beyond a reasonable doubt.

This means the driver must be found guilty of reckless driving, driving without due care or speeding or any of the named offenses which directly caused the accident. If there is a death the driver will most likely be found guilty of culpable homicide because of their negligent or reckless driving.

They may not have intended to kill anyone but their actions will have resulted in death and loss of human life. If found guilty the driver is convicted and will have a criminal record. They may be imprisoned or fined or have a community service sentence imposed on them. The fine is paid to the State if the driver is found guilty. Hence, there is need to explore civil remedies for seeking compensation.

Compensation

Accident victims may well choose to sue the alleged perpetrator of the accident that caused loss of life or property and injury. Drivers can be sued in a civil court even if they gave been prosecuted in a criminal court.

A civil court may make its own findings and deal with the matter independently as it deems fit. It may well apportion blame where the criminal court gave an acquittal. The civil court will adjudicate the matter on a balance of probabilities wherein the criminal court would have adjudicated on a strict liability to establish guilt beyond a reasonable doubt.

Victims can pursue claims to compensate them the losses they incurred as a result of the accident. The costs people usually sue and claim for are medical bills, transport costs, vehicle repairs, vehicle hire costs among others. It is very important to keep all receipts in order to prove a claim for compensation.

Other compensation sought can be for the pain, loss, shock and suffering incurred. Victims can also sue for loss of income if the accident prevented them from going to work and earning the anticipated income claimed.

Accidents are very costly in terms of actual money spent in trying to fix things and get life back to normal. There are medical costs incurred apart from the trauma and life shattering changes in the event of a death or a serious injury.

A claim for maintenance for dependants can be made in the case of the accidental death of a bread winner. Where possible and worthwhile costs and losses incurred should be pursued. However loss of life is unquantifiable as life is irreplaceable.

11/06/2019

Do want to change Your Name Legally?

People have different reasons for wanting to change their names. The most common reason is to assume their paternal surname and drop their mother’s surname. Women commonly change their surnames to assume their husband’s family name. Some people may simply no longer wish to be called Learnmore, Hopless, Regret or Nhamo anymore or other such uniquely Zimbabwean name. More commonly and bizarrely these days are spiritual reasons where people decide their family name is jinxed. Therefore to them if they drop their surname boundless blessings that are locked up somewhere will be unleashed upon the new identity. Names can be changed by renaming or deleting a name or altering a spelling. Whatever the reason it is allowed and is possible without need to convince anyone or make a special court application.

What is the procedure?
A Notarial Deed of Change of Name has to be executed and registered in the Deeds Registry Office. Lawyers and Notaries Publics assist in that. It is advisable to change names formally to enable them to be officially recognised. The new name(s) will then be effected on all official documents such as passports, national identity cards and driver’s licences, academic and medical records amongst others. A birth certificate can only be changed upon re-registration of the birth as shall be discussed below. Names are public acts with legal consequences so any changes have to be publicly informed. The notice of intention to change a name will have to be advertised and published in the Government Gazette which is published every Friday. It is also customary to place the same notice in a newspaper that circulates in the associated area. This maximises the chances of third parties who have with dealings with that person to know and be guided to take appropriate measures if necessary.

Re-registration
A Notarial Deed of Change of Name is not the only way to change a name. People who want to use their father’s surnames do not need to do that provided the father cooperates in the process. They can obtain a new birth certificate if the father consents to having his details inserted if they were absent when the birth was registered. Re-registration is similar to the original birth registration because the father of the child has to declare or acknowledge paternity. Re –registration of birth can be done at any age. What only matters is the consent and voluntary participation of the biological father where such acknowledgment or presence was previously unavailable. The father and child may attend at the Registrar Generals office together and notify of the intention to re-register the birth. Forms can also be collected in exchange for a modest fee and the father will depose to an affidavit or paternity no matter the age of the child. It is a fairly simple and inexpensive process and certainly cheaper than executing a Notarial Deed of Change of Name.

Do married women have to change their surnames?
No that is not a legal requirement and was never a legal requirement save for a directive issued by the Registrar General sometime in the 80’s. The directive operated for years and became customary and was a condition for married women to register the birth of their children born in wedlock. The directive was revoked in 2011 after constitutional challenges. Since then married women have been free to keep their maiden names if they wish to do so.

And after divorce?
If a divorced woman wants to continue using her married name she can do so until she dies or remarries or whatever she decides to do. There is no legal requirement for her to revert to her maiden surname just as much as there is no requirement for her to assume it in the first place. Apart from personal choice and other considerations it is extremely expensive and understandably inconvenient to go to the passport office, banks, service providers and other places after every divorce telling everyone you changed your name- again.

23/05/2019

ROELINE GOOSEN First Applicant

08/05/2019

What is the the transfer process for an immovable property in Zimbabwe?
Do you want to buy or sell an immovable property?

THE ESTATE AGENT
From the onset it is prudent for a seller to engage a reputable estate agent. Before engaging an estate agent it is important to verify with the Estates Agents Council of Zimbabwe whether such an agent is or would be registered. An Estate agent is a person or firm of persons who have an excellent understanding of property markets inclusive of knowledge with respect to selling and or letting (managing) of commercial, industrial or residential properties on behalf of individuals or corporates. Estate agents negotiate on behalf of the seller with potential purchasers and also market the property, arrange viewings and see to the signing of the Sale Agreement. Estate agents are usually available throughout the entire process and assist both sellers and purchasers where need be. The seller will be responsible for the payment of the Estate Agents Commission which unless the parties agree otherwise is 5% of the purchase price of the property. Sellers can also sell their property privately and attend to the process without the assistance of an Estate Agent thereby saving on Estate Agents Commission.
THE TRANSFERRING ATTORNEY/CONVEYANCER
The process by which the Purchaser takes transfer is called conveyancing. The person (a lawyer) who does the conveyancing is called a conveyancer. Unless the parties agree otherwise, the Conveyancer is appointed by the seller to attend to the transfer process. The conveyancer attends to the transfer of the property from the seller to the purchaser and ensures that there is compliance with the terms and conditions of the Sale Agreement. The purchaser is responsible for the payment of the costs relating to the transfer of the property such as Conveyancing fees plus stamp duty.
THE BOND ATTORNEY
A bond is a loan of money to the Purchaser by a financial institution to enable him to pay the purchase price of the property, on security of the property purchased. The bond records that if the Purchaser fails to make bond repayments, the financial institution would be entitled to sell the property to recover the money it has lent. Should the Purchaser apply for a Mortgage bond to finance the payment of the purchase price the bond attorney attends to the registration of the bond. The bond attorney will be appointed by the relevant financial institution. The purchaser will be responsible for the payment of the bond registration fees.
THE BOND CANCELLATION ATTORNEY
Should the Seller owe money to the financial in respect of the bond, due to the borrowing of monies to procure same, then the seller has to request the bond holder to issue a cancellation instruction to an attorney. The cancellation attorney must obtain the original title deed to the property from the bond holder who will be holding same as security. The bond cancellation attorney then attends to the cancellation of the bond simultaneously with the registration of the transfer and the new bond, if applicable. The seller is responsible for the payment of the cancellation attorney’s costs.
THE PROCESS
The Contract Of Sale The sale of immovable property has to be reduced to writing in the form of an Agreement of Sale and be signed by both the seller and the purchaser to constitute a valid and binding agreement. It is advisable for both parties to get a legal opinion on the Sale Agreement before signing same. The signed contract is forwarded to the conveyancer who peruses the contract and makes note of all requirements and special arrangements to be made prior to the registration of the immovable property. Preparing The Transfer Documents The conveyancer requests the required documentation from the seller and the purchaser, for example, their identity documents, the original Title Deed etc. Once these documents have been received the conveyancer can then draw up the transfer documents such as the Power of Attorney, the Seller’s Declaration and the Purchaser’s Declaration whereafter the seller and purchaser will sign the documents in the presence of the conveyancer.
Obtaining a Rates Clearance Certificate-: The conveyancer applies for a rates clearance certificate from the relevant municipality which municipality will advise on the amount payable. The municipality normally asks for payment of any arrear rates plus payment of three months in advance to ensure that no moneys are outstanding at the date of registration. The Deeds Office will not register a transfer if the rates clearance certificate has expired. The seller is responsible for the payment of the rates and taxes in advance. Obtaining a Levy Clearance Certificate: Where a sectional title unit is being sold the conveyancer will request levy clearance figures from the Body Corporate. The process is similar to requesting a rates clearance certificate and both certificates are required. The seller is similarly responsible for the payment of the levies to obtain the certificate. Capital Gains Tax Sellers have to pay capital gains tax on a property when it is sold. A capital gain (or loss) is the difference between the base cost of an asset and net selling price upon the disposal of the property. In other words it is a lax levied on the capital gain that arises from the disposal of an immovable property. Thus the seller, unless exempted, is in terms of the Capital Gains Tax Act (Chapter 23:01) required to pay Capital Gains Tax and obtain from the Zimbabwe Revenue Authority (Zimra) a Capital Gains Tax Clearance Certificate which certificate is part of the documents the Conveyancer lodges with the Deeds Office. Lodgment & Registration The conveyancer is now ready to lodge the transfer documents in the Deeds Registry. Should a new bond be registered over the property or an existing bond be cancelled the documents will be lodged at the Deeds Office simultaneously with the transfer documents are examined in the Deeds Office by qualified examiners. The process takes not more than ten working days. When the Deeds Office is satisfied with the accuracy of the documents, the transfer is then registered.
Paying Out Of Proceeds-: A Purchaser who agrees to have the entire purchase price released to the Seller before registration of transfer exposes himself to serious risk. It is advisable that the purchase price be held in Trust by the Conveyancer pending transfer. After registration the conveyancer has to ensure that the proceeds are reconciled and paid out correctly. If there was a bond registered over the property the outstanding amount as required by the bondholder is settled in full. The conveyancer pays the commission due to the estate agent (if applicable) and pays out the balance of the proceeds to the seller

04/03/2019

The essentials of a contract of employment

A contract of employment is an agreement entered into between an employer and an employee at the time the employee is hired that outlines the exact nature of their business relationship, specifically what compensation the employee will receive in exchange for specific work performed. It is an oral or written, express or implied agreement specifying terms and conditions under which a person consents to perform certain duties as directed and controlled by an employer in return for an agreed upon wage or salary.

Whether stated or not in the contract, both the employee and the employer owe the duty of mutual confidence and trust, and to make only lawful and reasonable demands on each other. Every employee is under the obligation to carry assigned duties, or the employer’s instructions to the best of his or her abilities.

The employer is under the obligation to protect the employee from harm or injury, and make fair compensation for any loss or damage resulting from any job-related accident or facilitate the same.

Employment contracts take many different forms. All employees at a company may be asked to sign the same form contract or each employee may have a contract with the employer that is applicable just to his or her employment agreement.

An employer and an employee may simply have an oral agreement regarding the kind of work the employee will do, for how long, and at what rate of pay.

Sometimes there is no written or oral agreement but the behaviour of the employer and the employee can be viewed as an implied employment contract. These are all legal arrangements in terms of the Labour Act Chapter 28:01, section 12(1) which clearly states that . . . “every person who is employed by or working for any other person and receiving or entitled to receive any remuneration in respect of such employment or work shall be deemed to be under a contract of employment with that other person, whether such contract is reduced to writing or not”.

The agreement must comply with the general formalities or features of a contract at common law as was ruled in Southampton Assurance Company of Zimbabwe v Mutuma 1990 (1) ZLR. Offer and acceptance are the first stages in establishing an agreement that may form a legally binding contract. The terms that will bind the parties are included here.

Offer is an expression on willingness to be bound on terms. Terms established by the offeror here – and only those included at this stage form part of the contract. The party(ies) to whom the offer has been made communicates a full and unconditional acceptance of the terms of the offer, Monteiro v Wankie Colliery Co Ltd HH-100-95.

The offer has to express the willingness of a party to enter a bargain or a contract. The offer usually has a date until it is valid. However, if the date is not present, then it is valid until accepted or rejected. Once rejected, the offer is not valid any more.

Parties to any employment contract should have the legal capacity to act. Legal capacity refers to the ability to perform valid juristic acts. Any person above the age of 18 can enter into a contract but there are certain persons who, in the eyes of the law have limited legal capacity and which in a way prevents or limit them from entering into contracts. Such person includes minors, insolvents, mentally ill, drunkard, prohibited immigrant or specified persons.

General content and variation terms are essential. In terms of the Act section 12, the following details should be contained in any employment contract: a) the name and address of the employer; (b) the period of time, if limited, for which the employee is engaged;(c) the terms of probation, if any; (d) the terms of any employment code; (e) particulars of the employee’s remuneration, its manner of calculation and the intervals at which it will be paid; (f) particulars of the benefits receivable in the event of sickness or pregnancy; (g) hours of work; (h) particulars of any bonus or incentive production scheme; (i) particulars of vacation leave and vacation pay; (j) particulars of any other benefits provided under the contract of employment.

Section 12 (3) of the Act further stipulates that, a contract of employment that does not specify its duration or date of termination, other than a contract for casual work or seasonal work or for the performance of some specific service, shall be deemed to be a contract without limit of time: Provided that a casual worker shall be deemed to have become an employee on a contract of employment without limit of time on the day that his period of engagement with a particular employer exceeds a total of six weeks in any four consecutive months.

Section 12 (4) also provide for notice clauses to be included in terms of termination as follows and I quote: “Except where a longer period of notice has been provided for under a contract of employment or in any relevant enactment, and subject to subsections (5), (6) and (7), notice of termination of the contract of employment to be given by either party shall be — (a) three months in the case of a contract without limit of time or a contract for a period of two years or more; (b) two months in the case of a contract for a period of one year or more but less than two years; (c) one month in the case of a contract for a period of six months or more but less than one year; (d) two weeks in the case of a contract for a period of three months or more but less than six months; (e) one day in the case of a contract for a period of less than three months or in the case of casual work or seasonal work”.

In terms of the Act, the contract is required to spell out the terms of probation and any other general issues related or connected to employment.
Basically, it must be lawful and must not be in any way violates statutes, public policy or morality. In Mutandiro v PTC – HH-43-01, an agreement to ignore the labour laws of the land was held invalid as was an agreement tainted by corruption in Babbage & Galloway v Electroreps S-241-95 (Gwisai, Labour and Employment Law in Zimbabwe 2006).

Consideration-

This is the bargain element of the contract, also known as “the price of a promise”. A simple contract may be a bad bargain, but it must be a bargain to be enforceable. “Legal relations” means that the parties view the agreement as a legally enforceable contract and a breach of the contract could result in a remedy being sought.

Intention

The parties must intend that the agreement is to establish a legally binding contract rather than simply a social/domestic arrangement.
Certainty

The terms of the contact must be clear and certain and not vague or ambiguous on the essential features – Carthew Gabriel and Fox and Carney (Pvt) Ltd 1978 (1) SA 598 (RAD).

Absence of critical information on critical issues such as remuneration may render contracts invalid, unless this could be reasonably inferred. In addition to the above, performance is also critical.

The contract must be physically and lawfully capable of performance. A contract whereby one can employ someone to perform dirty work like stealing cars on his behalf is capable of performance physically but unlawful.

Conclusively, a contract of employment should carry the following elements:
a) Offer: There must be a definite, clearly stated offer to do something;
b) Acceptance: Only what is offered can be accepted.

This means that the offer must be accepted exactly as offered without conditions. If any new terms are suggested this is regarded as a counter offer which can be accepted or rejected. There can be many offers and counter offers before there is an agreement.

It is not important who makes the final offer, it is the acceptance of that offer that brings the negotiations to an end by establishing the terms and conditions of the contract;

c) Intention of legal consequences: A contract requires that the parties intend to enter into a legally binding agreement. That is, the parties entering into the contract must intend to create legal relations and must understand that the agreement can be enforced by law.
The intention to create legal relations is presumed, so the contract doesn’t have to expressly state that you understand and intend legal consequences to follow, and finally;

d) Consideration: In order for a contract to be binding it must be supported by valuable consideration. That is to say, one party promises to do something in return for a promise from the other party to provide a benefit of value (the consideration).

Consideration is what each party gives to the other as the agreed price for the other’s promises. Usually the consideration is the payment of money but it need not be; it can be anything of value including the promise not to do something, or to refrain from exercising some right.

ARTICLE BY' Taurai Musakaruka

Disclaimer: We do not accept any liability for any damages or losses suffered as a result of actions taken based on information contained herein. The information contained herein does not serve as alternative to legal advice.

Mabulala & Dembure Legal Practitioners

11/02/2020

20/12/2019

03/09/2019

05/07/2019

11/06/2019

23/05/2019

08/05/2019

04/03/2019

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