Zambezia (1982), X (i).ESSAY REVIEWLIMITATIONS OF LEGAL PUBLICATIONSIN ZIMBABWEWHEN LAST REVIEWING legal publications in this country {ante (1977), V, 98-9),I felt obliged to comment on the narrow, static approach employed by legal authorsin Rhodesia. Five years later in Zimbabwe, little has altered fundamentally in thisrespect but there have been some changes for the better.Two of the books now under review are new editions of books originallyreviewed five years ago and there are signs of improvement. The second edition ofSkeet's book on income tax, for example, has been co-authored by ProfessorChristie and his hand is visible in the improved lucidity of the text and in theexegesis of the law.1 A tentative chapter on the new Capital Gains Tax has beenincluded, and the many simple examples on tax calculations will be a help tostudents. As a ready index of the relevant legislation, case law and practice, thebook will also be useful to all concerned with rendering income tax returns inZimbabwe. The book, however, still restricts itself unfortunately to the techni-calities of law and accounting despite its title. Income tax law and its technicalitieswould be placed in a more helpful perspective for both student and practitioneralike if there were some discussion of the role of income tax in raising revenue forthe state, directing the economy and effecting social change. Without a discussionof these issues, it is difficult for the authors to present any contextŠand hencemeaningŠfor the law in this field; nor are they able to offer assistance in bringingcoherence to the subject or in resolving the frequent ambiguities in the rules.Similarly, the second edition of"Zimbabwe Company Law is an improvementin some respects upon the first edition.2 The Tables of cross reference from theZimbabwe Act to South African and British legislation have been recast andbrought up to date. The discussion of a number of topics has been amplified andamended, e.g. directors* duties. But the style of presentation remains that of astudent's crammer, complete with checklists of points and potted case summaries.The authors state in the preface that the book has been written 'with the specificneeds of students in mind' and that 'an attempt has been made to produce a bookwhich will be of some use to practitioners as well'. I doubt that students using thisbook alone could acquire much grasp of company law. There is no attempt toelucidate the need for companies or what role for them the law seeks to provide. Theresult is something like studying anatomy without knowing that legs are used forlocomotion, or ribs for breathing. There is also no attempt to adjust the emphasis inthe book to conditions in Zimbabwe. Thus in the discussion of directors' duties ofgood faith there is no mention of the far-reaching provisions as to disclosure in thePrevention of Corruption Act (Chapter 2). The exposition of the provisions addedto the Companies Act in 1977 for co-operatives is largely a repetition of therelevant sections and there is no discussion on applying these provisions to the'E,E, Skeet and R.H. Christie, Income Tax in Zimbabwe (Salisbury, Chartered Accountants ofZimbabwe Education Trust, 2nd edn, 1982), 162 pp., Z$ 12.00,2M, Tett and N. Chadwick with P. Volpe, Zimbabwe Company Law (Salisbury, The ZimbabweLaw Journal, 2nd edn, 1981), 282 pp., ZS32.OO (p/b ZS20.00).5960ESSAY REVIEWincreasing number and variety of co-operatives emerging in Zimbabwe. Thecomparative tables of equivalent provisions in the South African and Britishlegislation are useful, as is the index to the Companies Act, Table A, and table ofoffences. However, for a grasp of the principles of company law the student wouldbe better advised to turn to Gower (Fourth Edition); it would also be easier on hispocket.Of the new books the best is undoubtedly Christie's successor to Wessels's TheLaw of Contract in South Africa, a work which in its day had a considerableinfluence on the development of contract law in South Africa and in Zimbabwe.3When Wessels wrote some 45 years ago the foundations of contract law in SouthAfrice were not secure. A confusion of principle between English and RomanDutch law was apparent and much remained obscure in Roman Dutch law itself.Wessels's aim was to contribute towards the erection of coherent principles of thelaw of contract in accord with the social ideas of his time.Christie's assumption in his book is that a coherent and principled law ofcontract now exists. His task, as he sees it, is to expound its principles and rules anddraw attention to areas in which it still needs tinkering with. The biggest drawbackto this approach is that it takes a view of the law as static and largely removed fromany socio-economic setting. This creates practical problems for the practitionerand student. Within months of the appearance of a work like Christie's, the lawreports and even the statute book will show new departures and new pre-occupations. Take Christie's exposition on the law governing the right to damagesby one party who has relied upon an untrue statement, made by the other party inentering a contract. Although he surveys the leading cases, starting with the Englishcase of Deny v Peek in 1889, Christie makes no attempt to explain why there hasbeen judicial reluctance to allow a claim where the untrue statement was madenegligently as opposed to fraudulently. Why have judges said you can sue only if youcan prove you were wilfully lied to? Of even more interest, why have judgesincreasingly declared themselves unhappy with this rule? Fraud is difficult to proveagainst someone since it involves proving knowledge that what was said wasuntrue. It is often difficult enough to prove that the statement was untrue, let alonethat the maker of the statement knew it was untrue. It is in this area relating to thebargaining process that new rales and principles are required. Ideas about the limitsto be placed on the bargaining process are changingŠeven in the world of judges.Capitalism may here have an 'unacceptable face'. If Christie could have offeredsome insight into what is happening in this area of the law it would make his bookmore interesting and more useful. The task of the textbook-writer is to illuminate thelaw. It is not enough to say as does Christie in his introduction:I prefer to get on with the job of stating the law as I see it, rememberingthat the judges write the law while the academics write about it. So Idirect the reader's attention to the cases, and if he wants a secondopinion he will gain more from reading them in the original than myimperfect representation of them.R58.95.3R.H. Christie, The Law of Contract in South Africa (Durban, Butterworths, 1981), 575 pp.,A.H.N. EASTWOOD61Such an observation may apply to last year's law but will not apply to next year'slaw. Since the publication of Christie's book, the pressure for change has foundexpression in the field of negligent misstatement inducing a contract. In Kern Trust(Edms)Bpk v Hurter 1981 (3) SALR 607, twojudges in the Cape have recognizedthat there can be a claim for damages where only negligence without any element offraud is proved. It is enough to prove what the maker of the untrue statement oughtto have known without proving what was actually in his mind. The judgment in thiscontains a useful survey of developments in the field in a number of countries,including legislative action in Britain to bring reluctant judges into line, a surveyabsent from Christie's book.There are also many areas ignored by Christie. No attention is given tocustomary law, the rules governing its interaction with Roman Dutch law, and itsdevelopment. The title he gives to his book after all is The Law of Contract inSouth Africa, but in the section on capacity to contract, for instance, there is noreference to the complex of rales governing the contractual capacity of Africanwomen. Is this omission because the matter is not discussed in the Roman Dutchauthorities, the English Law Reports and only rarely in the South African LawReports? Perhaps there are other reasons, for we find that problems in other areasalso are ignored. The abuses of standard form contracts are discussed perfunctorily.The myth of 'freedom of contract' and the realities of bargaining power are notdiscussed at all.Nevertheless, Christie has a lucid and very readable style. Within theconfines of his approach he is able to introduce into his text a great number ofreferences to decided cases without detracting from the flow of his presentation. Henot only defines terms, but explains them and his explanations are concise andhelpful.A new book on Contract by Volpe aims to be a 'crammer' for law students whohave no access to law reports.4 It is printed on newsprint with a standard typewriterface. There are no footnotes and no index. It is not an easy book to read and I shouldthink even more difficult to learn from. The law is presented as a list of rules. Theseare then elaborated in point form and illustrated with brief examples from decidedcases. There is little attempt to offer explanations of terms employed. No attempt ismade to give any account of the development of the law, of problems in the field, oreven to suggest that the law plays apart in social life. Like Christie, Volpe makes noreference to customary law, in particular ignoring the capacity of African women tocontract. Is this not part of the law of Zimbabwe*? Also the text is sometimesmuddled. At page 108, the duties of disclosure by directors in a company areconfused with the duty of disclosure in contract in general. At page 9 the rule shouldbe that silence amounts to acceptance only if in law there is no duty to speak.A new introductory text on the legislation of Zimbabwe by Redgment is aimedat first-year law students.5 The author writes in a chatty style and succeeds inpresenting an outline for beginners of the formal structure and concepts in theexisting legal system in Zimbabwe and the terms currently used by lawyers to4P. Volpe, The Commercial Law of Zimbabwe: Contract (Salisbury, Zimbabwe Law Journal,1980), 221 pp., Z$ 10.00.5J. Redgment, Introduction to the Legal System of Zimbabwe (Salisbury, The Author, 2ndedn,1981), 81 pp., Z$8.00.62ESSAY REVIEWdescribe It. Redgment attempts nothing penetrating, but his readers will not bemisled into concluding that the law in Zimbabwe is cut and dried. There arefrequent hints at problems and conflicting approaches. Sometimes, however, Msstyle becomes silly. In the opening paragraph, law is equated to a mother telling herchild not to touch a hot stove. Apparently the sanction is a spanking. This is slightlymore interesting as an attitude towards child-rearing practices and rather lesshelpful as a hint at the nature of law. Students will find this book more helpful toread before deciding to study law rather than in preparing for examinations.Storry's book on criminal practice is designed as a handbook for legalpractitioners who do not have ready recourse to a library, or even to othertextbooks, the statutes or law reports.6 The idea is a good one, and the book covers asurprisingly comprehensive field and has been carefully prepared. The majordrawback is that in the field of criminal practice, the details of the law changefrequently at the instance both of the legislature and of the courts. The practitionerwho relies on a work designed to replace use of the relevant statutes and law reportswill soon find himself out of date. What would meet this difficulty would be a looseleaf edition and a page replacement service to cover the inevitable changes inpractice and procedures that arise. In this form the book would be very useful topractitioners.Whatever the limitations of all these books, by legal practitioners inZimbabwe, the only book under review written and published outside the country isinfinitely worse. Mittlebeeler's African Custom and Western Law has little to sayabout African Custom or Western Law.7 It is anecdotal in its approach: theprincipal sources being a seemingly random selection of court reports. These aresummarized, often unclearly, with little attempt to extract any principle. It is notsurprising that the author makes no attempt to construct any thesis from theseanecdotes. All this is a pity because it would be not only interesting but of use to thepolicy makers to have a clear exposition of the crucial differences and foundationsof those differences between customary and Western law in Zimbabwe and how theareas of conflict between them have emerged and with what result. Mittlebeeler'sbook suggests little in the field other than a few sources that might be tapped byother researchers.Parliament of ZimbabweA.H.N. EASTWOOD6 J.G. Stonry, Rhoiesian Criminal Practice (Salisbury. Rhodesian Law Journal, 1978), 446 pp.,ZS22.50.7E.V, Mittlebeeler, African Custom and Western Law: The Development of the RhodesianCriminal Law for Africans (New York, Africana Publishing, 1976), 248 pp., US$25.50.