Year: 2021

Intellectual Property Law

Principles of Intellectual Property Law

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Intellectual property is a category of property that includes intangible creations of the human intellect or mind. Intellectual property law is a branch of law that regulates intellectual property rights, registration and enforcement. Intellectual property rights which are recognised by the law include copyright, trade marks, patents, industrial designs, geographical indications, plant breeders rights and integrated circuit lay-out designs. These I.P rights require registration before they can be protected and enforced against third parties. Registration of intellectual property can be done through the Zimbabwe Intellectual Property Office(ZIPO) or African Regional Intellectual Property Organisation (ARIPO) or Madrid International Trademark System (Madrid System. There are principles that governs intellectual property and are as follows.

Principle of Territoriality

Intellectual property rights are territorial meaning a sovereign state has jurisdiction and can deal with issues that occur within its borders. Intellectual property rights are not universal but are limited in their effect to the territory of the sovereign under the laws of which they have been granted. All intellectual property rights are of national character unless their scope extends to encompass a whole region, having been granted in such form. Since territorially rights are independent from one another they can be owned by different persons.

Principle of National Treatment

This entails that members of the International I.P Treaties shall accord to the nationals of other members treatment not less favourable than it accords to its own nationals with regard to the protection of intellectual property.

Principle of Priority

This principle is applicable to intellectual property rights which are protected through registration. It provides that the person who is the first to register their intellectual property rights will have priority over any subsequent claimant to a similar or identical right.

Principle of Independence of Protection

Protection is independent of the existence of protection in the country of origin of the work (principle of independence of protection). If, however, a Contracting state provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection maybe denied once protection in the country of origin ceases.

Principle of Most Favoured Nation

With regard to the protection of I.P, any advantage, favour, privilege or immunity granted by a member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other members.

This article is for general information purposes only , legal advice must be sought in relation to any aspect of the law.

Death certificate

Important Documents You Need To Know About

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The Registrar General is responsible for registering all births and deaths in Zimbabwe as well as issuing birth and death certificates. This article shall focus on the requirements for obtaining a burial order and a death certificate.

Burial Order

A burial order is an important document. A family representative or an authorized undertaker can obtain a burial order for the deceased. The following are required when obtaining a burial order depending on the circumstances of death.

(a) Burial order for a person who has died in a health institution after 24 hours

  • National identity document or valid passport of a close relative
  • Deceased’s national identity document, valid passport or child health care card if deceased is a minor without birth certificate
  • Notice of death forms (BD11 forms) completed by health information assistance or clerks
  • Medical certificate confirming cause of death (BD12 forms), if a person dies in a private medical institution it shall be completed by a medical doctor

(b) Burial Order for a person who has died at home or in a health institution after 24 hours

  • National Identity document or valid passport of a close relative
  • Deceased’s national identity document, valid passport or child health card if deceased is minor with no birth certificate
  • Notice of death forms(BD11) forms completed by Police Officers
  • Form 231 (application for post mortem)

Death Certificate

This is issued by the Registrar General. The following are required

(a)  Registration of death that occurred in hospital

  • Deceased person’s national identity document
  • Death registration form (BD11) duly completed by the hospital or any other prescribed informant
  • A police application for post mortem examination (form 231) duly completed by a pathologist where applicable
  • A medical certificate of the cause of death (form BD12) issued by the doctor who last attended the deceased.
  • Marriage certificate where applicable

(b) Registration of death that occurred outside of hospital

  • Deceased person’s identity document
  • Two competent witnesses (18 years & above) with national identity documents, who were present at time of death or burial
  • A letter from the chief, village head or headman or councillor confirming that the deceased dies in his or her area
  • Clinic document or treatment documentation where possible

This article contains information for general information purposes only, legal advice must be sought in any aspect of the law.

residential or commercial lease agreement

Eviction

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Anyone who owns an immovable property be it a residential or commercial may enter into an agreement called a lease agreement. Any party on agreed obligations and terms for the use and occupation of that certain property for a specified period of time. A lease agreement then creates binding terms between the landlord and the tenant (lessor & leasee). When a tenant breaches any terms of the lease agreement more particularly payment of rentals, the landlord can institute a process called eviction of the tenant from the property. In terms of Section 74 of the Constitution of Zimbabwe no person may be evicted from their home, or have their home demolished, without an order of court made after considering all the relevant circumstances. Hence no one can take the law into their own hands and evict a person who has possession of their property without a court order even if they own the given property. The law governs eviction processes and due process must be followed.

Eviction from residential property

When considering evicting a tenant from a residential property, the owner of the residential property has to take notice of the requirements of the law as provided for in Section 30 of the Rent Regulations S.I. 32/07 and the terms of Agreement of Lease, if any.

Where a tenant is in arrears with their rentals, the Landlord cannot arbitrarily evict such a tenant. The landlord can demand payment of the arrear rentals within a specified time frame failing which the Landlord can terminate the lease agreement. After terminating the lease agreement, the landlord can sue the tenant for eviction, payment of arrears rentals and holding over damages.

Where a landlord requires the property for their own use, the Landlord must give the tenant three months written notice to vacate the premises unless the Agreement of lease provides otherwise. The notice should be in writing for it to be valid. In the event that the tenant refuses to vacate the property and the Landlord institutes eviction proceedings the Landlord will have to produce evidence of the cancellation of the lease agreement.

Eviction from a commercial property

A commercial property is defined in terms of the Commercial Premises (Rent) Regulations SI 676 of 1983. Section 22 of the Commercial Premises (Rent) Regulations provides for the grounds upon which a tenant may be legally evicted. In order for a landlord to evict a commercial tenant the landlord has to prove that he or she reasonably requires the use of the leased premises for his or her own use. A commercial tenant can only be evicted by the court if there are good and sufficient grounds for an eviction order. It will not be enough for a landlord to simply evict the tenant because they want to use it for their own purposes. That would not constitute good and sufficient grounds. The court would want to know the precise use to which the landlord wants intended to put the premises. If that use is found to be illegal or frivolous or, having regard to the owner’s circumstances, unreasonable, the eviction of the ‘tenant will be refused. Our courts have held that the landlord need to do no more than assert his reasons in good faith and then to bring some small measure of evidence to demonstrate the genuineness of his assertion. Thereafter the onus will be upon the Tenant who resists ejectment to bring forward circumstances casting doubt on the genuineness of the lessor’s claim. In other words, the duty lies on the tenant to prove that the Landlord is lying about using the property for his/her own use but wants to put in another tenant instead.

Eviction by employer after termination of contact of employment

The action rei vindicatio is available to an employer who is an owner of a property occupied by a former employee. It is based on the principle that an owner cannot be deprived of his property against his will. The owner is entitled at law to recover the property in question from anyone in possession of it without his or her consent.

If at the time of employment, the employee or former employee was allowed to occupy a property owned by the employer the employer must show that the contract has ended. The claim can be defeated by an employee or former employee who proves that they have a right of retention or some contractual right to retain the property.

The fact that the employee is challenging the dismissal or termination of contract is immaterial because an owner is entitled to vindicate his or her property. The Supreme Court has confirmed a position long held by this court in respect of such matters as in the case of DHL International LOimited vs Madzikanda 2010(1) ZLR 201 (H). It is therefore within an employer’s right to seek the eviction of a former employee from the employer’s premises.

Eviction by a new owner when property is sold

The Roman Dutch Law concept of huur gaat voor koop governs this circumstance. This simply means that hire takes precedence over sale. The doctrine was defined in Genna-Wae Properties (Pty) Ltd vs MedioTromics (Natal) (Pty) 1994 (1) SA 106. In simpler terms this concept means that where the seller entered in a lease agreement prior to the sale the tenant is protected from eviction where the property is sold to a third party. The tenant is entitled to remain in occupation of the property until his or her lease expires. The tenant and new landlord must abide by the terms of the lease agreement. It is a requirement that the tenant should abide by all the terms of the contact and continue to pay his rentals to the new owner failing to do so amounts to a breach. Where the tenant fails to pay rentals agreed to with the previous owner, he commits a breach and he is liable to the new owner. The new owner only has an obligation to adhere to the lease agreement if the tenant is willing to pay rentals. A tenant wishing to rely on the concept should show that he or she entered into the lease agreement with the previous owner before the sale. For a tenant to benefit from the lease, the lease should not have been fraudulently entered into or entered into in bad faith. He/she must also show that the new owner was aware of the lease agreement and bought the property with the knowledge of the lease agreement. Eviction from commercial premises

Statutory tenant

A statutory tenant is one whose continued occupation of the landlord’s premises after the expiry of the lease agreement, either by the effluxion of time, or on due notice of termination having been given, is by operation of the law, that law being the rent regulations.  The courts have defined statutory tenancy as the legal relationship borne out of a lease that has expired either by the effluxion of time or in consequence of notice duly given by the lessor in which the lessee however continues to pay the rent due, within seven days of due date, and performs the other conditions of the lease

For a statutory tenant to be recognized as such, he or she must satisfy the requirements of section 23 which provides that,

“A lessee who, by virtue of section 22, retains possession of any commercial premises shall, so long as he retains possession, observe and be entitled to the benefit of all the terms and conditions of the original contract of lease, so far as the same are consistent with the provisions of these regulations, and shall be entitled to give up possession of the premises only on giving such notice as would have been required under the contract of lease or, if no notice would have been so required, on giving reasonable notice: Provided that, notwithstanding anything contained in the contract of lease, a lessor who obtains an order for recovery of possession of the premises or for the ejectment of a lessee retaining possession as aforesaid shall not be required to give any notice to vacate to the lessee.”

What this means is that, the statutory tenant must continue to pay the rent due within seven days of the due date, and perform all the other conditions of the expired lease. The tenant tacitly continues with the old lease without expressing that in writing.  However, the tenant can still be evicted if the landlord proves to the court that he has “good and sufficient grounds” for wanting back the premises as per Section 22 of the regulations

Good and sufficient grounds Eviction from commercial premises 

For a landlord to legally evict a statutory tenant, there must be good and sufficient grounds for doing so. In determining what constitutes good and sufficient grounds, the courts have to balance the interests of both parties. After the tenant has given the grounds for ejectment, the onus is on the tenant to cast doubt on the grounds provided by the landlord. For example: If A (landlord) asserts that he wants to eject B (tenant) so as to sell the premises to someone who wishes to use the premises, the onus is upon B to dispute the reason given by A. However, each case is decided on its own merits.

There is also need for the landlord to back his assertions with a ‘small measure’ of evidence to support the genuineness of the assertion. It is after this that the tenant will have the onus to prove that the landlord is lying and that either he wants to use the premises for his own use or the tenant has refused an increase on rent. The landlord cannot eject a tenant merely because he or she has refused rent increment or that the he or she wants to lease the property to another person. These are admissible and strong reasons which a tenant facing eviction can use against the landlord.

Breach of contract that leads to Eviction from commercial premises

A landlord and a tenant are bound by the terms of their contract. If a fixed period is agreed, earlier termination will not be possible unless there has been a breach by the tenant. If the tenant breaches any provision of the lease agreement, the landlord may also use that as a ground for eviction. If a landlord wants to evict a tenant using breach of contract as a ground, he or she must do so immediately after the tenant has breached the provisions of the contract. held that where a tenant makes a late payment of rent the landlord must as soon as possible before the next month’s rent is due cancel the agreement. Acceptance of subsequent late payments can be deemed as condoning the breach. Eviction from commercial premises

Due process must be followed during eviction so as to avoid injustice on the part of the tenant. If the eviction is pursuant to a breach of contract, the landlord must first cancel the lease agreement and give the tenant notice to vacate the premises. The notice must conform to the instrument under which it is issued.