Year: 2022

Constitutional Rights Of Arrested Or Detained Persons – Section 50

Posted by nnlaw on April 15, 2022 with 0 Comment

1. Section 50(1) of the Constitution provides that a person arrested or detained must:

be informed at the time of arrest of the reason for the arrest;
be permitted, without delay—
at the expense of the State, to contact their spouse or partner, or a relative or legal practitioner, or anyone else of their choice; and
at their own expense, to consult in private with a legal practitioner and a medical practitioner of their choice, and must be informed of this right promptly;
be treated humanely and with respect for their inherent dignity;
be released unconditionally or on reasonable conditions, pending a charge or trial, unless there are compelling reasons justifying their continued detention; and
must be permitted to challenge the lawfulness of the arrest in person before a court and must be released promptly if the arrest is unlawful.

2. Section 50(4) provides that a person who is arrested or detained for an alleged offence has the right—

to remain silent;
to be informed promptly of their right to remain silent and of the consequences of remaining silent and of not remaining silent;
not to be compelled to make any confession or admission; and
at the first court appearance after being arrested, to be charged or to be informed of the reason why their detention should continue, or to be released.

3. Section 50(5) provides that a person who is detained, including a sentenced prisoner, has the right—

to be informed promptly of the reason for their being detained;
at their own expense, to consult in private with a legal practitioner of their choice, and to be informed of this right promptly;
to communicate with, and be visited by a spouse or partner, a relative, the person’s chosen religious counselor, the person’s chosen legal practitioner, the person’s chosen medical practitioner and subject to reasonable restrictions imposed for the proper administration of prisons or places of detention, anyone else of the person’s choice;
to conditions of detention that are consistent with human dignity, including the opportunity for physical exercise and the provision, at State expense, of adequate accommodation, ablution facilities, personal hygiene, nutrition, appropriate reading material and medical treatment;
to challenge the lawfulness of their detention in person before a court and, if the detention is unlawful, to be released promptly.

Insurance Law Terms to Know

Posted by nnlaw on April 13, 2022 with 0 Comment

Insurance:

It is defined as a precautionary measure against risk. It takes the form of a contract between an insurer and insured person. The contract relates to the transfer of specific risks in exchange for the payment of consideration known as a premium.

Insurance contract:

The case of Lake v Reinsurance Co Ltd is the locus classicus for insurance contracts and defines such as “a contract between an insurer and an insured whereby the insurer undertakes in return for the payment of a premium to render to the insured a sum of money or its equivalent on the happening of a specified uncertain future event in which the insured has an interest”. In the case of Lucena v Crawfort Insurance is defined as a contract by which the one party in consideration of a price paid to him adequate to the risk becomes security to the other that he shall not suffer loss, damage or prejudice by the perils specified to certain things which may be exposed to them. Reinecke defines it as an agreement between the insurer and the insured of and undertaking to perform premised upon the payment of a certain sum determined by the insurer in exchange for the assumption of risk on behalf of the insured.

Consumer:

These are people or organisations that purchase products or services. The term also refers to hiring goods and services. Simply put consumers utilise goods and services for their benefit.

Consumer contract:

In terms of the Consumer Protection Act it is a contract for the sale or supply of goods or services or both, in which the seller or supplier is dealing in the course of business and the purchaser or user is not, but does not include-

a contract for the sale, letting or hire of immovable property or
contract of employment

The definition above was also given in the case of Radar Holdings v Eagle Insurance

Consumer protection:

A well-known author Churchill articulated that consumer protection consumer protection is associated with client education, legal compliance to statutory guidelines and a comprehensive system of assessing and resolving consumer grievances.

Subrogation: This is where one party (the insurer) exercises their rights to pursue a third party in relation to a claim usually on the basis that the insurance company has indemnified the insured in respect of the specified uncertain future event that would have been caused by a third party. The insurance company then takes steps recover the money that the insurer would have paid out to their insured client.

Estate Planning in Zimbabwe

Posted by nnlaw on April 10, 2022 with 0 Comment

The landmark case of Chigwada v Chigwada has yet again set the clock back for married women, mostly. The institution of marriage in Zimbabwe has been put under bad spotlight as the issue of spousal disinheritance has been brought to the fore. The Supreme Court has set the legal position straight and dealt with the confusion within the judiciary on the matter, as seen through the numerous conflicting High court cases discussed below. Section 71(2) of the Constitution highlights ones right to own property, which will be explored in this article.

THE JUDICIARY’S STANCE IN REGARD TO TESTAMENTARY DISPOSITION

Prior to this case there was no uniform approach to such matters with each judge passing a decision that contradicted the others. One may look at the Deceased Estates Succession Act, Section 3A which provides,

3. Inheritance of matrimonial home and household effects the surviving spouse of every person who, on or after the date of commencement of the Administration of Estates Amendment Act, 1997, dies wholly or partly intestate shall be entitled to receive from the free residue of the estate —
(a) the house or other domestic premises in which the spouses or the surviving spouse, as the case may be, lived immediately before the person’s death;
and
(b) the household goods and effects which, immediately before the person’s death, were used in relation to the house or domestic premises referred to in paragraph (a)where such house, premises, goods and effects form part of the deceased person’s estate.

It can be interpreted from the above, that one cannot disinherit their spouse. In the 2013 case of Chimbari NO v Madzima and Ors it was found that a spouse could not disinherit their significant other in terms of Section 5(3)(a) of the Will Act. However, The Wills Act provides for freedom of testation; and this interpretation was preferred in the 2016 matter of Roche v Middleton where it was held that a spouse could do as they please with their property. The Chigwada case has cleared any spousal inheritance related confusion by highlighting that real rights trump personal rights that a spouse has over property not in their names.

EFFECTS OF THE CASE

The case has set the precedent that a spouse, through a valid Will, may dictate whatever they wish regarding their property, including disinheriting their spouse.

SOLUTIONS

Married people, especially wives, are encouraged to heed the clarion call to safeguard their interests in matrimonial property. Given that a spouse can legally disinherit the other through a Will, spouses are encouraged to both own shares in the property to avoid exclusion from inheritance upon the death of the other.

The issue of estate planning comes into play, where spouses should consider their rights as well as those of their children and other dependents. The setting up of Family Trusts is a good way to safeguard such property interests, especially immovable property. It should be noted that an advantage of this is that the Courts are hesitant to interfere with property held in Trust, such property is usually excluded from legal battles and even divorce proceedings. Estate planning is encouraged, and couples are advised to also consider drafting joint Wills, to prevent any unwarranted surprises on the death of a spouse. It is concluded that investing in Estate Planning is crucial and cannot be over emphasised. Women are especially encouraged to be more proactive when it comes to the acquisition and registration of property rights to ensure that on the day of reckoning they will not be found wanting. When it comes to Estate Planning, you are better safe than sorry. Pause and ponder on these questions – “Have you thought about your inheritance?”, “Do you have a Will?” “Have you set up a family Trust?” If you have answered no to any of these, the best time to change to a yes is now!

The article has been produced for information purposes only – get in touch with us for assistance.