Author: nnlaw

Fault factor in divorce

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A number of people have been asking if initiating divorce proceedings will not affect their proprietary rights and whether or not the court’s decision will be against the guilty party if a party in a divorce matter is the one who caused the divorce. I have decided to share with you colleagues on the fault factor in divorce.

Before the coming of the Matrimonial Causes Act of 1985, divorce laws in Zimbabwe were based on the fault factor. Grounds for divorce then were adultery, cruelity, insanity as well as long term imprisonment. Since 1985 Zimbabwe adopted a “no-fault” divorce. This is a divorce based on “irreconcilable differences” or an “irretrievable break-down” of the marriage which signifies that there is no hope for reconciliation of marriage. Section 4 of the Matrimonial Causes Act [Chapter 5:13]  recognises only 2 grounds for divorce and it reads, “A marriage may be dissolved by a decree of divorce by an appropriate court only on two grounds of “irretrievable break-down of the marriage” and “incurable mental illness or continuous unconsciousness” of one of the parties to the marriage. According to section 5 of the Matrimonial Causes Act [Chapter 5:13], “an appropriate court may grant a decree of divorce on the grounds of irretrievable break-down of the marriage if it is satisfied that the marriage relationship between the parties have broken down to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between them”. Where the parties are agreed that the marriage has broken down, it is not necessary for the court to enquire into the cause of the breakdown as divorce is now based on the no fault concept”. Even though the courts seem to have moved from the issue of digging into fault or guilt, such factors are now only taken as guidelines that a marriage has irretrievably broken down.

What this means put simply is that, when parties go to court over a divorce matter there is no need to tell the court what led to the divorce or whose fault it was that led to the divorce. This is so because such fault or misconduct of either spouse will not be taken into account in deciding whether or not to grant divorce and who will get what. The fact is that most marriages fail due to the fault of either party but this should not be used to penalise such party e.g. in diminishing such parties share of getting a certain share of the matrimonial property due to the fact that he or she caused the divorce or was at fault.

CHILDREN’S RIGHTS IN ZIMBABWE

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CHILDREN’S RIGHTS IN ZIMBABWE, AN ANALYSIS OF HOW THE STATE SEEKS TO PROTECT CHILDRENS’S RIGHTS.

This Article explores children’s rights as enshrined in the Constitution of Zimbabwe Amendment (No 20) Act of 2013. Zimbabwe has prioritized children’s rights, it adopted the Convention on the Rights of the Child and various laws have been passed in the recent years which protect children.

Before Amendment (No 20) of 2013 children’s rights were not set out in the Constitution of Zimbabwe. With Amendment (No 20) of 2013 we see children’s rights being set out in the superior law of the land. Children’s rights are now set out in section 19 of the Constitution. Section 19 (1) clearly sets out that the State must adopt policies and measures to ensure that in matters relating to children, the best interests of the children concerned are paramount. In section 19 (2) the State has undertaken to ensure that children enjoy family or parental care, or appropriate care when removed from the family environment , have shelter and basic nutrition , health care and social services, are protected from maltreatment, neglect or any form of abuse and have access to appropriate education and training .

Section 19 (3) of the Constitution which deals with child labour also compels the state to take appropriate legislation measures to protect children from exploitative labour practices and to ensure that children are not required or permitted to perform work or provide services that are inappropriate for the children’s age or place at risk the children’s age, the children’s well-being, education, physical or mental health or spiritual, moral and social development. With Section 19 (3) we see the State fighting against acts such as human trafficking and child prostitution were children are abused in order to obtain income to support families. In Africa we have high cases of child headed families were children are forced to support each other, this is because of the increasing rates of HIV/ AIDS.

If we take a look at our Maintenance law which is one of the most controversial topics to most men in Zimbabwe the State has protected children. The Maintenance Act [Chapter 5:09] has brought up so many changes which protect children, both parents have a duty to maintain their children. Under traditional customary law a father of a child who was born out of wedlock had no duty at all to maintain his child, in shona they said “ gomba harina mwana” this meant that even if a man impregnates a woman after the child was born the man had no duty to maintain his child. Nowadays maintenance has extended beyond formal recognized links to those who have created a relationship by reproduction for example if a married man impregnates his girlfriend and is sued for maintenance, whilst the man is legally liable to maintain the child that does not mean that both the married man and girlfriend are husband and wife. In Zimbabwe a child is supported up until he or she turns 18 years of age or becomes self-supporting.

In Zimbabwe a mother of a child born out of wedlock is entitled to recover lying in expenses from the father of the child these include maternity home and medical expenses, maternity clothing and clothes for the child as well as food. The expenses can only be claimed after the birth of the child this means that those who engage in illicit sexual intercourse risk children being fathered upon them.

Upon divorce or judicial separation children are protected from the conflicts between their parents. When a decree of divorce or judicial separation is granted by the High Court of Zimbabwe the court looks at the best interests of the child. Although custody is vested naturally by mothers, custody can also be granted to the father after taking into account the best interests of the child which are provided in section 4 of the Guardianship of Minors Act [Chapter 5:08]. The court looks at the age of the child, health, sex, educational and religious needs, social and financial position of the parties, character of parents, temperament, past behavior of parent to child. A parent who leads an immoral life is deprived of custody and a parent who travels a lot is deprived of custody too because children need the attention of parents and they need to be brought up under a good and religious background. A non-custodian parent is also granted access in terms of section 6 of the said Act this is meant to keep the natural bond between the child and the parent.

The Child Abduction Act [Chapter 5:05] which is international in nature is meant to safeguard the removal of children when a custodian parent wants to leave another country with the child. When parties fail to agree the High Court of Zimbabwe makes that decision for the parents since it is the upper guardian of the minor child. The Hague Convention on the Civil Aspects of International Child Abduction was adopted in Zimbabwe by virtue of Child Abduction Act.

With the Children’s Act [Chapter 5:06] the children’s court was established, provisions for the protection, welfare and supervision of children and juveniles as well as certain institutions and institutes for the reception and custody of children were established. The same Act also deals with issues of adoption of minors. Before the Children’s Act came into effect an adopted child could get married to the adopted parent if the child was over 18 years, nowadays marriage between an adopted parent and child is prohibited.

Criminal law has protected children against sexual offences that might be committed against them. Various acts of crimes are defined in Criminal Law (Codification and Reform) Act [Chapter 9:07] which attract heavy fines and custodial sentences. Section 87 of the Code states that anyone who allows a child to be a prostitute commits a crime, section 70 of the Code also penalizes adults who have sexual intercourse with minors or who perform indecent assaults on young people. It is not a defence that a young child consented to the act because at law children cannot consent to sexual acts. Section 49 of the Code also protects the right to life as enshrined in the Constitution anyone who within six months of the birth of her child and causes its death intentionally or by conduct realizes that there is a real risk to the child’s life shall be guilty of infanticide, abortion too is also prohibited. Section 94 of the Code also protects the rights of the girl child, any female custodian who hands over a young girl who is under the age of 18 as compensation of the death of a relative of another person known as kuripa ngozi and for a debt or obligation commits a crime. Although the State has made it an offence to have sexual intercourse or indecent acts with children offences such as rape, sodomy and indecent assault continue being committed by adults. The right to education and the right to health of children are still being violated due to religious grounds for example apostolic sects.

In conclusion the State has played a great role in the protection of children’s rights in Zimbabwe.

THE LAW BEHIND 3 MONTH’S NOTICE OF TERMINATION OF A CONTRACT IN ZIMBABWE.

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THE LAW BEHIND 3 MONTH’S NOTICE OF TERMINATION OF A CONTRACT IN ZIMBABWE. AN ANALYSIS OF THE LABOUR ACT [CHAPTER 28:08] AND THE LABOUR AMMENDMENT BILL NUMBER 7 OF 2015

On 17 July 2015 when the Supreme Court of Zimbabwe handed down the judgment of Don Nyamande & Kingstone Donga v Zuva Petroleum (Private) Limited Case No: SC 43/15 there were reports of dismissal of employees by a large number of companies thus creating controversy in the public. Some wholesale dismissals arose because of a misreading of the judgment, members of public misread the judgment and did not understand the principles raised before the Supreme Court of Zimbabwe.

A number of companies dismissed employees under the impression that the employer had a right to terminate an employee’s contract on notice in all circumstances. Section 12 (4)(a) of the Labour Act [ Chapter 28:01] provided that notice of termination of a contract of employment to be given by either party shall be 3 months’ notice in a contract without a limit of time or a contract for a period of 2 years or more. In terms of the law it simply meant that either party had a right to notify the other party that it was going to terminate a contract without a limit of time to the other party.

In the Don Nyamande v Zuva Petroleum case the Supreme Court simply affirmed what had been pronounced in its previous judgments that the right to terminate on notice is available to the employer in certain circumstances. The Supreme Court of Zimbabwe did not introduce any new principle of law. The issue that was determined by the court in the Don Nyamande case was whether or not the common law right to terminate an employment relationship on notice was still part of our law. In terms of the law the employer did not have a reason to show cause to the employee why the contract was being terminated on notice. If the basis for the termination of an employee’s contract is misconduct on the part of the employee the relevant disciplinary procedure is applicable to the employee. An employer may use its Code of Conduct for that particular industry. If the company does not have a Code of Conduct then the employer will have to abide by the provisions set in the Labour (National Employment Code of Conduct) Regulations of 2006.

If the basis for termination of an employment contract by an employer is ill health the employer is obliged to follow the termination procedure provided in section 14 of the Labour Act [ Chapter 28:01]. If the basis for the termination is that an employee has reached retirement age the employer is obliged to follow the relevant retirement procedures.

The position of the law on 3 months’ notice termination has since changed with the passing of the labour bill amendment number 7 of 2015. The bill was passed in order to amend the Labour Act [Chapter 28:01]. In terms of Clause 4 of the labour bill number 7 of 2015 no employer shall terminate a contract of employment on notice unless if the termination is in terms of an employment code, or in the absence of an employment code, in terms of the model code made under section 101 (9) or the employer and the employee mutually agree in writing to the termination of the contract or the employee was engaged for a period of fixed duration or for the performance of some specific service or pursuant to retrenchment , in accordance with section 12 C of the labour Act. The employer cannot terminate an employee by simply giving a 3 months’ notice. The employer has to give an employee notice of his or her intention to retrench to the works council for the undertaking or if there is no works council established for the undertaking or if a majority of the employees concerned agree to such a course, to the employment council established for the undertaking or industry. If there is no work’s council or employment council notice is given to the Retrenchment Board. The employer has to give the work’s council, employment council or the Retrenchment Board the details of the employee whom the employer wishes to retrench and of the reasons of the proposed retrenchment and send a copy of the notice to the Retrenchment Board.

An employee who has been retrenched in terms of the Labour bill number 7 of 2015 is entitled to a minimum retrenchment package of not less than one month’s salary or wages for every two years of service as an employee. The retrenchment package shall be paid by an employer to the employee as loss of employment. If the employee alleges financial incapacity and the consequent inability to pay the minimum retrenchment package timeously or at all, the employer shall apply in writing to be exempted from paying the full retrenchment package or any part of it to the employment council established for the undertaking or industry or if there is no employment council for the undertaking concerned, to the Retrenchment Board which shall respond within 14 days of receiving the notice.