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Chapter 7:05

Customary Law And Local Courts Act

(Will be amended by the Judicial Service Act [Chapter7:18] (No.10 of 2006) when it comes into operation.) Acts 2/1990, 22/1992 (s. 18), 22/1995; 6/1997 (s. 10); 9/1997 (s. 10) 22/2001 (s. 4), 4/2003); S.I. 158/2004.

ARRANGEMENT OF SECTIONS

PART I

PRELIMINARY Section

  1. Short title.

PART II

CUSTOMARY LAW

  1. Application of customary law.
  2. Interests of children paramount.
  3. Polygamous marriages: recognized.
  4. Marriage: prohibited degrees of relationship.
  5. Different systems of customary law.
  6. Ascertainment of customary law.

PART III

CONSTITUTION OF LOCAL COURTS

  1. Constitution of local courts.
  2. Composition of local courts.
  3. Assessors in local courts.
  4. Appointment of messengers of local courts.
  5. Appointment of clerks of local courts.

PART IV

JURISDICTIONOF LOCAL COURTS

  1. Jurisdiction of local courts.
  2. Limits of jurisdiction of local courts.
  3. Orders that may be made by local courts.
  4. Enforcement of judgments of local courts.

PART V

PROCEDURE IN LOCAL COURTS

  1. Summoning of witnesses, parties, etc.
  2. Procedure in local courts.
  3. Contempt of local courts.
  4. Transfer of cases between local courts.

PART VI

APPEALS AND REVIEWS

  1. Appeals from primary courts.
  2. Appeals from community courts.
  3. Review by magistrates of proceedings of local courts. PART VII

GENERAL

  1. Evidence of proceedings in local courts.
  2. Fines to be paid into Consolidated Revenue Fund.
  3. Adjudication without authority and impersonation.
  4. Designated officer.

AN ACT to provide for the application of customary law in the determination of civil cases; to provide for the constitution and jurisdiction of local courts; to provide for appeals from the decisions of such courts; and to provide for matters connected with or incidental to the foregoing.

[Date of commencement: Parts I, III, IV, V, VI and VII - 12th February, 1992, Part II - 1st November, 1997.]

PART I

PRELIMINARY

                       1    Short title

This Act may be cited as the Customary Law and Local Courts Act [Chapter 7:05].

.

2    Interpretation In this Act—

“chief” means—

  • any person appointed as a chief in term of subsection (1) of section 3 of the Chiefs and Headmen Act [Chapter 29:01];
  • any person appointed as an acting chief in terms of subsection (1) of section 4 of the Chiefs and Headmen Act [Chapter 29:01];

community courtmeans a community court constituted in terms of paragraph (b) of subsection (1) of section ten;

customary lawmeans the customary law of the people of Zimbabwe, or of any section or community of such people, before the 10th June, 1891, as modified and developed since that date;

designated officermeans an officer designated by the Minister in terms of section twenty-nine;

general law of Zimbabwemeans the common law of Zimbabwe and any enactment, and excludes customary law;

headmanmeans any headman, acting headman or deputy headman appointed in terms of section 8 of the Chiefs and Headmen Act [Chapter 29:01];

local courtmeans a primary court or community court;

Ministermeans the Minister of Justice, Legal and Parliamentary Affairs or any other Minister to whom the President may, from time to time, assign the administration of this Act;

primary courtmeans a primary court constituted in terms of paragraph (a) of subsection (1) of section ten; provincemeans a province created in terms of section 3 of the Magistrates Court Act [Chapter 7:10]; Secretarymeans the Secretary of the Ministry for which the Minister is responsible. PART II

CUSTOMARY LAW

                       3    Application of customary law

(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires— (a) customary law shall apply in any civil case where—

  • the parties have expressly agreed that it should apply; or
  • regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed it should apply; or
  • regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;

(b) the general law of Zimbabwe shall apply in all other cases.

(2) For the purposes of paragraph (a) of subsection (1)—

“surrounding circumstances”, in relation to a case, shall, without limiting the expression, include— (a)     the mode of life of the parties;

  • the subject matter of the case;
  • the understanding by the parties of the provisions of customary law or the general law of Zimbabwe, as the case may be, which apply to the case;
  • the relative closeness of the case and the parties to the customary law or the general law of Zimbabwe, as the case may be.

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