Nyamukondiwa Fidelicy (May 2017)

nhanyams@yahoo.com

ROMAN DUTCH LAW IN ZIMBABWE

The history of the development of the Roman Dutch law can be traced back to

the medieval Roman law. Roman Dutch law managed to survive the taste of time

and developed from an archaic to a systematic state .It evolved in the Roman

Empire and existed in the Netherlands province of Holland from the 15th to the

early 19th century and was carried by Dutch colonists to the Cape of Good Hope

. From the Cape of Good Hope, Roman Dutch law found its way into Zimbabwe

and subsequently became a foundation of the modern Zimbabwean law

Roman Dutch Law, according to Madhuku L (2010)1is a fusion of Roman law

and medieval Dutch law. . Roman law was the law of the city of Rome and

subsequently of the Roman Empire. Dutch Law was the law of the Netherlands

ad was chiefly of a Germanic origin. Madhuku argues that the term ‘Roman

Dutch law’ was devised by a seventeenth-century Dutch jurist, Simon Van

1
Madhuku L (2010) An Introduction to Zimbabwean Law,Waiver Press,Harare,Zimbabwe
Leeuwen, who used it as the title of his main book, Roomsch Hollandsch Recht,

which was published in 1664 in Holland

The development of Roman Dutch law dates back to the Medieval Roman law.

Roman Law comprises more than a thousand years of jurisprudence which

developed in different phases. The development can be traced back to the era of

early Roman law (753 BC – 250 BC), which according to Hans J(1951)2 was the

period of ius civile. The following phase was the Preclassical period of Roman

Law (250BC - ) 27BC, The Classical phase of Roman law (27BC – AD284) and the

Postclassical phase of Roman law (AD 284 - AD565). Paul du Plesis3 argues that

this is phase when the amount of legislation significantly. Put differently, the

development of Roman Law can be classified into four periods, viz; the

mornachy period (753BC – 509BC),the republic(509BC–27BC), the

principate(27BC–AD284) and the Dominate(AD284 – AD 476) .

2
Hans J(1951) Roman Law: An Historical Introduction, University of Oklahama Press, Oklahama USA
3
Paul du Plesis(2015) Borkowski's Textbook on Roman Law, 5th edition,Oxford University Press,Oxford, United
Kingdom

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A class struggle that emerged between the patricians and the plebeians during

the Mornachy period influenced the advancement of the legal system within

Rome. Religion and law was intertwined. Consequently, the religious rules and

customary laws that existed were no longer sufficient to regulate society.

Roberts P(2002)4 asserts that the legal system started taking shape towards the

end of the Mornachy period and in 509BC, the autocratic King Tarquinius

Superbus was expelled by the Romans. The expulsion marked the end of

Mornachy era and benchmarked the beginning of the Republic.

During the Republic, Rome grew from a small society to an empire. Territorial

expansion in the second century BC changed the face of Italy from small farming

holdings to large estates with slave labour.5 Consequently, Roman law

developed from a primitive to a complex system of law. The development was

chiefly influenced by The law of the Twelve Tables which was enacted in

450BC,the activities of the praetor and the work of the jurists. The jurists played

4
Roberts P(2002) Excel HSC Ancient History: Book 1 ,Pascal Press, NSW, Australia
5
Dr Eamonn G Hall( ) An Introduction to Roman Law and its Contribution to the World
www.notaryinstitute.ie
3
a major role in the development of Roman legal science. The praetor was the

administrator of justice. He determined and published the civil procedure.

According to T. Corey Brennan,6 “ The praetor involved himself directly in the

first stage (in iure) where he defined the legal issue in contention and appoints a

juror (iudex) and to render the actual judgement in the second stage (apud

iudicem)..”

The law of the twelve tables immunised the class struggle between the

plebeians and the patriacians. The law of the twelve tables marked the evolution

of legal teaching. Wessels J 7 contends that the law of the twelve created

certainty and also marked the fundamental distinction between rules of law and

of religion.The law of the twelve tables greatly immunised the class struggle

between the plebeians and the patriacians. The law of the twelve tables marked

the evolution of legal teaching. Wessels J 8 contends that the law of the twelve

created certainty and also marked the fundamental distinction between rules of

6
T. Corey Brennan(2000)The Praetorship in the Roman Republic: Volume 1: Origins to 122 BC, Oxford
University Press,Oxford, United Kingdom
7
Wessels J 2005W History of the Roman Dutch Law The Law Book Exchange, Ltd, New Jersey,USA
8
Ibid Note 7

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law and of religion. The law of contract and e the law of obligation applicable in

the present day Zimbabwean law can be traced back to the Twelve Tables9

The roman empire further expanded and what followed was the Principate

era(27BC-284 AD). The most important contributions to legal development

during the Principate were made by the jurists and emperors. The jurists

contributed greatly to legal development during the Principate.They continued

to give legal advice, did legal teachn, interpreted the law, assisted clients in

courts and in drafting of legal documents. They wrote legal textbooks and this

developed legal science. Emperial legislation became a dominating branch of

law. The emperor published edicts and made rulings in the capacity of a judge.

He made legal opinions

By AD 284,emperors had became autocratic;they were nolonger chosen by the

people. This was the Dominate era. This was the post classical era of Roman law

and it was characterised by the decline of classical Roman legal science10. The

emperial laws were issued in such quantities by each successive emperor that
9
Ibid,note 2

10
Ibid Note 4

5
they soon became an unmanageable and contradictory mass of legislation. Most

laws had been outdated. It was then that Justinian(Flavius Justinianus),who the

emperor of the Eastern Roman empire from AD527 – AD 565 came up with an

idea was to reunite the Roman empire and to restore it to its former glory.

Justinian ordered his chief jurists to extract the best and most reliable sections

of the earlier Roman texts for inclusion under appropriate headings in a Digest.

Justinian also

directed his jurists to prepare a textbook for law students called Justinian’s

Institutes which was completed by 533 AD. The following year Justinian’s jurists
completed a final version of all the Imperial statutes known as the Codex. After

the Codex, the Novellae which consisted of new imperial legislation was

published. The later, The digest, The Justinian Institutes and Codex were

collectively known as the corpus uris civilis.

Madhuku L11 asserts that It was easy to access Roman law because it had been
compiled into one encyclopaedic collection called Corpus Juris Civilis in AD
533by Emperor Justinian.Consequently, Roman law became a pure legal system
which was now capable of being taught by jurists. The main principles of Roman
11
Ibid Note 1

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law were carried by Dutch traders and commanders to the area they would visit.
At the beginning of the twelveth century a law school was established in
Bologna in Italy. The school consisted of a group of jurists called the Glossators.
These jurists restored the Roman law and spread it in Italy and other parts in
Europe . They started to study law on a scientific basis and this was the yardstick
jurisprudence .The glossators played a fundamental role in the early reception
of Roman law in Western Europe. Another group known as the post glossators
reacted against the glossators and further developed Roman law and influenced
its reception

Roman law was formally received in German and Netherlands states where it
was formally acknowledged as it was a better law and of necessity and
desirability. One explanation for the ‘reception’ of Roman law, according to
Professor Alan Watson12 is related to the concept of’ legal borrowing’ which
entails that when lawyers and courts seek a solution and none is available within
their own system, the thinking lawyer can find a precedent elsewhere. Under the
legal borrowing concept Netherland states absorbed and adopted the
rules,principles and the institutions of Roman law.It is crucial to note that
Because of trade and association, some elements of Roman law was received
unnoticed in a process known as infiltration

12
Allan Watson(1985) , The Evolution of Law, The Johns Hopkins University Press, Baltimore, USA

7
The Dutch Jurists in Holland developed remarkable interest in the Roman legal
system and referred to Roman law in their legal work, hence subsequently
taking it as part of their law. The Dutch Legal science wasmerged with Roman
law in the High Courts, indicating the preeminence of Roman law in Netherlands
. By the Second half of the 17th century, Roman Law had became very prominent
in the Netherlands to the extent of the development of a fused legal system
known as the Roman Dutch law as coined by the Dutch Jurist Simon Simon Van
Leeuwen.13

In 1652, Jan van Riebeeck and his fellow Dutch settlers settled the Cape of Good
Hope in South Africa.They brought with them, and introduced, the law as it
applied at that time in Holland. The law applicable was Roman Dutch law which
was contained in judicial decisions and published treatises14 .The British took
over the Cape and brought with them some English law. In 1872, the governor of
the Cape made a proclamation which became known as the First Charter of
Justice .and it resulted in the adultrarion of Roman Dutch law with the English
law that had been brought .The British empire expanded and Zimbabwe was
colonized.
In 1891 . The British High Commissioner made a proclamation t that the law that
was to be applied in the then present day of Zimbabwe was to be the law that
was applicable and in force at the Colony of the Cape of Good Hope on the 10TH
13
Note 1 above

14
Note 1 above

8
June 1891 as subsequently modified .The law applicable at the Cape of Good
Hope on the 10th June 1891 was largely Roman-Dutch common law, heavily
fused with English common law. Consequently Roman dutch Law paved its way
into Zimbabwe.

From 1891 up to 1980, the common law applicable in Zimbabwe was the law
applicable at the Cape of Good Hope as at the 10th June 1891. Zimbabwe
attained its independence from the British colonial oppression in april 1980.
What followed was the adoption of the Lancaster House Constitution . In terms
of Section 89 of the constitution the law to be administered by the courts in
Zimbabwe shall be the law in force in the Colony of the Cape of Good Hope on
the 10th June 1891, as modified by subsequent legislation. This entails that
Zimbabwe unanimously adopted Roman Dutch law as the foundation of its legal
system. The applicability of both Roman-Dutch law and English law was further
buttressed in the Lancaster House Constitution in terms of the requirements for
appointment of judges, in terms of Section 82(1), which prescribed that for a
person to be eligible to be appointed a judge must be or must have been been a
judge of a court j in a country in which the common law is Roman-Dutch or
English.

It is evident that Roman Dutch law has developed from a primitive stage to the

present day Zimbabwe.Its applicability in Zimbabwe was recently echoed in the

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dicta of CHEDA J inre Bawden v Ndebele And Anor HB 110-1115 where the

learned judge had this to say, “The correct legal position in our law and indeed

the Roman Dutch- Law is that the only cases in which a defendant has as of
right, entitled to claim a joinder of a third party is where the third party has a
joint financial interest or proprietary interest,...” The same concept which was
applied by our Zimbabwean Judge in the year 2011 can be traced back to the

writings of jurists in the primitive stages of Roman law development centuries

ago.

In 2013, Zimbabwe adopted a new and an arguably native driven Constitution16

which is breathing life in the present day. Section 192 sanctions that The law to

be administered by the courts of Zimbabwe is the law that was in force on the

effective date, as subsequently modified. The law that was in force was the law

that applicable in terms of Section 89 of the Lanchester House Constitution. Put

differently, Section 192 resurrects the applicability of Roman Dutch Law in

15
JOHN BAWDEN V THULANI NDEBELE AND ANOR (Case No. HC2006/08) [2011] ZWBHC 110
(15 September 2011); [ http://www.zimlii.org/zw (accessed on 6/05/17)]
16
Constitution of Zimbabwe Amendment (No.20) Act, 2013,

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Zimbabwe. Furthermore , Section 176 of the new Constitution confers power on

superior courts to develop the common law. It therefore follows that the

common law that the courts are invited to develop is the one that was applicable

at the Colony of the Cape of Good Hope on the10th June 1891, as subsequently

modified. This common law is mainly Roman Dutch Law. The new Constitution

also resurrected the provision that for one to be qualified as a judge he or she

must have been a judge of a court with unlimited jurisdiction in civil or criminal

matters in a country in which the common law is Roman-Dutch or English . This

illustrates that Judges in Zimbabwe are still guided by the Roman Dutch

common law background, which they are empowered to administer, modify and

develop.

Madhuku L17 explains that ever since 10 June 1891 there have been countless

judicial decisions explaining our common law . Most recently; In the 2017 case

of S V Kambasha And Anor, MUSHORE J sitting at High Court of

Zimbabwe(Harare) referred to Roman Dutch Commonly law in interpreting and

explaining the provisions of Theft of trust property. He coined that “Our system

17
Note 1

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of law (Roman-Dutch) relating to theft of trust money is derived from the
Transkeain Penal Code. Section 183 OF THE NATIVE TERRITORIES
(TRANSKEAIN) PENAL CODE ACT NO. 24 of 1886 reads:.....”18 . This shows that
the interpretation used in the 18th Century, is still applicable in this 20th Century

here in Zimbabwe. The 18th century undoubtedly evolved from the writings of

the roman jurists centuries ago. The illustration consequently explains how

Roman Dutch law has gradually developed from its archaic stages to the present

day Zimbabwe.

Roman-Dutch law developed in the Netherlands through the reception of

Roman law and its synthesis with Germanic customary law, feudal law and

canon law. It was introduced at the Cape of Good Hope by Dutch settlers from

the middle of the seventeenth century. The British occupied the Cape of Good

Hope in 1906 and English law coalesced with Roman Dutch law. The British

further colonised Zimbabwe and the subsequent result was the spilling of
18
THE STATE V BRIAN TARISAI KAMBASHA AND HEMINGWORTH CARTWRIGHT (PVT) LTD

CA 270/15 HH 36-17 [ http://www.zimlii.org/zw

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Roman Dutch Law into the country. The Constitution of Zimbabwe Amendment

(No.20) Act, 2013 resurrected the application and development of Roman Dutch

common law in the modern Zimbabwe.

REFERENCES
1. Madhuku Lovemore (2010) An Introduction to Zimbabwean Law,Waiver Press,Harare,Zimbabwe

2. Hans Julius(1951) Roman Law: An Historical Introduction, University of Oklahama Press, Oklahama USA

3. Paul du Plesis(2015) Borkowski's Textbook on Roman Law, 5th edition,Oxford University Press,Oxford, United Kingdom

4. Roberts Peter(2002) Excel HSC Ancient History: Book 1 ,Pascal Press, NSW, Australia

5. T. Corey Brennan(2000)The Praetorship in the Roman Republic: Volume 1: Origins to 122 BC, Oxford University
Press,Oxford, United Kingdom

6. Wessels Joahneese (2005) History of the Roman Dutch Law The Law Book Exchange, Ltd, New Jersey,USA

7. Allan Watson(1985) , The Evolution of Law, The Johns Hopkins University Press, Baltimore, USA

8. Constitution of Zimbabwe Amendment (No.20) Act, 2013,

9. www.notaryinstitute.ie Dr Eamonn G Hall( 2000) An Introduction to Roman Law and its Contribution to the World
10. http://www.zimlii.org/zw

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