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The Legal Brief with Dr Innocent Maja

Steps to take when subdividing your property

The process of subdividing your property involves the owner applying for a permit to subdivide the land to a relevant municipal council. Once the subdivision permit is issued, it will contain conditions which the owner has to comply with. The usual conditions are that the owner has to pay some endowment fees to the local planning authority or set aside land in lieu of such payment. The local planning authority will issue you with an Endowment certificate

If conditions stipulated in the permit to subdivide are met, the local planning authority will issue a certificate of compliance. 

Once this is done, you can then approach your lawyer with the following documents for your lawyer to register subdivision transfer:
  1. Diagram Deed for the whole stand
  2. Current Deed (if this is not the diagram deed)
  3. Approved survey diagram in duplicate
  4. Subdivision permit
  5. Endowment Certificate
  6. Compliance Certificate
Dr Innocent Maja
innocent@majasque.com
www.majasque.com

 

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What is competition law? (with contributions from JT Burombo)

Competition law seeks to maintain or promote market competition by regulating anti-competitive conduct by companies. It is known as antitrust law in the United States (US) and the European Union (EU) or as anti-monopoly law (in China and Russia).

Development of Modern Competition Law

Competition law can be traced to the Roman Empire. An early example of competition law can be found in Roman law, where the Lex Julia de Annona was enacted around 50BC to protect grain trade, with heavy fines imposed on anyone directly and deliberately stopping supply ships. In 1889 Canada enacted what is considered the first competition statute of modern times called The Act for the Prevention and Suppression of Combinations formed in Restraint of Trade. A year later the USA enacted what is considered the most famous legal statute on competition law, the Sherman Act of 1890. The Sherman Act sought to prohibit the restriction of competition by large companies that conspired with rivals to fix outputs, prices and market shares. Section 1 of the Act declared unlawful “every contract, in the form of trusts or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” Section 2 of the Act prohibits monopolies or any attempts and conspiracies to monopolize.

Since the 20th century, competition law has become global. The two largest and most influential systems of competition regulation are the US antitrust law and the EU competition law. The substance and practice of competition law varies from jurisdiction to jurisdiction. However, protecting the interests of consumers (consumer welfare) and ensuring that entrepreneurs have an opportunity to compete in a market economy (where decisions relating to investment, production and distribution are based on supply and demand, and the prices of goods and services are determined in a free price system, with little government intervention) are often treated as important objectives. 

Dr Innocent Maja can be contacted on innocent@majasque.com or +2634776306. www.majasque.com

What is a contract?

At law, a contract is a legally enforceable agreement. This simply means that for an agreement to be deemed a contract, it has to satisfy some legal requirements. These include the following:

(a) There should be a valid offer that must be accepted;

(b) The minds of the parties should meet;

(c) The parties must have the intention to be legally bound by the agreement;

(d) The parties should have contractual capacity;

(e) Whatever parties agree on should be within human capacity to perform;

(f) The terms of the agreement must be clear;

(g) The contract may be required to satisfy formalities by the law;

(h) The agreement should be legal.

It is important to note that a contract can be either written or oral. The obvious benefit of a written contract is that it is easy to prove its terms.

Except from a leading Zimbabwean text entitled ‘The Law of contract in Zimbabwe’ by Dr Innocent Maja. You can order your copy for US$50 at innocent@majasque.com or +2634776306 or http://www.majasque.com

Property pledged to secure a debt

There are instances in commercial transactions when we pledge our property to secure a debt. In some cases, we sign agreements that indicate that if we default to pay an installment, ownership of our property will automatically pass to the creditor to settle the debt. This is called pactum commissorium at law (see Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd and Ors,[1]). The question that arises is whether such an arrangement is permissible at law.

At law, a pactum commissorium is illegal and therefore not enforceable at law.[2] Whilst South African Courts have allowed exceptions like fair price to the rule that a pactum commissorium is not enforceable, there are no authorities to suggest that such exceptions are part of our law in Zimbabwe.[3]

Oceaner (Pvt) and Anor v Upperclass Enterprises (Pvt) and Anor,[4] established that Zimbabwean Courts have always been reluctant to enforce such agreements, because it can happen that things of the greatest value are surrendered in payment of a trifling debt, the debtor having agreed to onerous conditions in the hope of avoiding the rigours of the agreement before the day of reckoning came. Such agreements amount to a disproportionate penalty in a contract proscribed by section 4 of the Contractual Penalties Act.[5]

For this reason, Kufandirori v Chipuriro and Ors[6] held emphatically that a creditor cannot simply transfer ownership when the pledger defaults on the debt. The pledger retains ownership of the pledged property until the creditor takes court action for redress.

[1] 2002 (2) ZLR 603 (S).
[2] See Upper Class Enterprises (Pvt) Ltd v Oceaner (Pvt) Ltd and Ors 2002 (2) ZLR 603 (S); Oceaner (Pvt) and Anor v Upperclass Enterprises (Pvt) and Anor 2001 (2) ZLR 130 (H) and Kufandirori v Chipuriro and Ors 2004 (1) ZLR 74 (H).
[3] A pactum commissorium is different from a paratie executie in that in a paratie executie the actual liability is agreed by the parties. For a discussion of the paratie executie see Mandala v Glens Removals & Storage (Zimbabwe) (Pvt) Ltd HH-78-13.
[4] 2001 (2) ZLR 130 (H).
[5] [Chapter 8:04].
[6] 2004 (1) ZLR 74 (H).

This is an Except from a leading Zimbabwean text entitled ‘The Law of contract in Zimbabwe’ by Dr Innocent Maja. You can order your copy for US$50 at innocent@majasque.com or +2634776306 or http://www.majasque.com

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