THE NOTARIAL OFFICE

A notary is a public officer admitted and authorised by the High Court to draft and
attest contracts and other documents of a public [Link] a practicing practitioner
may practice as such. See Elliot, South Africa Notary Practice.

Section 2 of the Deeds registries Act Chapter 20:05 provides

In this Act— “notary public” means a person registered as such in terms of the Legal
Practitioners Act [Chapter27:07]and, in relation to any document executed outside
Zimbabwe, means a person lawfully practicing as suchin the place where the
document was executed.

Section 4 of the Legal Practitioners Act provides for application for registration as
a notary public, (1) Any person who wishes to be registered, whether as a legal
practitioner, or a notary public...Shall make an application to the High Court in the
form and manner prescribed in regulations.(2) An application for registration as (b) a
notary public may be combined with an application for registration as a conveyancer,
andviceversa.

The admission and regulation of Notaries in Zimbabwe is one of the functions of the
High court, Section 5 (2)of the Legal practitioners Act states- Upon application
being made to it in terms of section 4 for registration as a notary public ..., the High
Court may grant the application and direct the Registrar to register the applicant as a
notary public.

A Notary has been described as the eye of the judge and in everything he does, he
must be thoroughly impartial. Every notarial document is a public instrument in which
he must not at all be interested in. He must not benefit himself in a private way by
any act which he performs as a public functionary. As per Buchanan ACJ in
Johnson v Estale Le Grange [1908]25 SC 823.

Given the high respect and esteem granted to a Notary, there are several common
law and statutory duties that [Link] is placed on such qualities as
responsibility, credibility, impartiality,and professional integrity.

1,2 DUTIES AND FUNCTIONS OF A NOTARY PUBLIC

Under Privileges,restrictions and offence in connection with practice S8 of the Legal
Practitioners Act, provides for Privileges of registered legal practitioners practicing
as notaries,(1) Subject to this Act, a registered legal practitioner who is in possession
of a valid practising certificate issued to him may practise the profession of law.(2)
Without derogation from the generality of subsection (1), but subject to this Act—b) a
registered notary public who is in possession of a valid practising certificate issued to
him may execute, attest and authenticate anything which is required to be executed,
attested or authenticated by a notary public;
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Further sec 9 (3) of the Legal practitioners Act makes it an offence for persons other
than Notaries to perform particular acts;It states;

“Subject to any other law, no person other than a registered notary public who is in
possession of a valid practising certificate issued to him shall execute, attest or
authenticate anything which is required to be executed, attested or authenticated by
a notary public”.

The rationale for giving Notariesa monopoly over certain acts is generally to protect
the public. The work that is reserved is regarded as so important that only trained
Notaries can perform it.

DOCUMENNTS WHICH SHOULD BE DRAFTED BY NOTARIES

1) Notarial deed of sale

2) Notarial deed of trust

3) Notarial deed of donation

4) Notarial deed of change of name

6) Notarial deed of servitude

7) Notarial deed in terms of Section 27 of the Deeds registries Act

8) Notarial bonds (over movable property)

9) Ante nuptial contracts

10) Mining contracts

PROFESSIONAL CONDUCT
Because all Notaries are legal practitioners, they are part of and regulated by the
Zimbabwe Law society, who conduct annual accounting audits of Notarial offices,
establish and regulate professional and ethical standards, and can censure or
temporarily suspend Notaries. The Law Society is primarily responsible for
maintaining the standards of the legal profession, and for instituting disciplinary
proceedings against errant members of the profession. Sec 53(c) of the Legal
practitioners Actempowers the law society;

“to define and enforce correct and uniform practice and discipline among legal
practitioners”.

Currently there is no specific and exclusive code to guide Notaries Public in

Zimbabwe when statutes, regulations and official directives fall short. A paper
addressing the importance of the need to have a separate code of conduct for the
office of the notary in the United States of America, read in part;
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 “While many occupations pose professional and ethical norms for their practitioners,
the need for guidelines is particularly acute with persons holding the office of Notary
because of their unusual status as both public and private functionaries. In few
offices is the practitioner more subject to conflicting pressures.

Notaries have primary ethical duties towards:

 The court
The Notary shall, as a government officer and public servant, serve all of the
public in an honest, fair and unbiased [Link] has a duty not to misdirect the
court; the Notary shall not execute a false or incomplete certificate, nor be
involved with any document or transaction that the Notary believes is false,
deceptive or fraudulent
 Their clients and other legal practitioners
Notaries are independent and disinterested; a notary does not represent or act in the
interest of any one party. Instead, under the Dutch legal system, notaries are
required to act impartially on behalf of all parties to a contract or transaction. For
example, when real property is conveyed, notaries act for both the seller and buyer.
They are subject to legal professional privilege and are therefore duty-bound not to
betray client confidentiality,

Duty to act with reasonable diligence

Notaries must apply due diligence to the conduct of their clients’ affairs. They must
acknowledge instructions received, reply promptly to letters and keep their clients
and correspondents informed as to the progress of events.

Inordinate delay in performing work, with resultant actual or potential prejudice to the
client, amounts to professional misconduct.

Conflict of Interest
A notary public is not prohibited from notarizing for relatives or others, unless doing
so would provide a direct financial or beneficial interest to the notary public.
However, care should be exercised if notarizing for a spouse or a domestic partner.

The following situations provide guidelines for when a notary public would have a
direct financial or beneficial interest to a transaction are;

• If a notary public is named, individually, as a principal to a financial transaction.

• If a notary public is named, individually, as any of the following to a real property

transaction: beneficiary, grantor, grantee, mortgagor, mortgagee, trustor, trustee,
vendor, vendee, lessor, or lessee.

A notary public would not have a direct financial or beneficial interest in a transaction
if a notary public is acting in the capacity of an agent, employee, insurer, attorney,
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escrow holder, or lender for a person having a direct financial or beneficial interest in
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the transaction.

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Because a notary is a legal practitioner the same duties of care and competence
expected from an ordinary attorney are of equal application to the former.

In Honey &Blanckenberg v Law 1965 RLR 685 (G) at 691 (1966 (2) SA 43 (R) at
46), Goldin J said:

“An attorney’s liability arises out of contract and his exact duty towards his client
depends on what he is employed to do … In the performance of his duty or mandate,
an attorney holds himself out to his clients as possessing adequate skill, knowledge
and learning for the purpose of conducting all business that he undertakes. If,
therefore, he causes loss or damage to his client owing to a want of such knowledge
as he ought to possess, or the want of such care as he ought to exercise, he is guilty
of negligence giving rise to an action for damages by his client … Where an action is
brought by the client against his attorney for negligence, the [client] must prove that

As highlighted above the general common law ethical standards expected from an
ordinary lawyer apply mutatis mutandis to the specialised notary [Link]
practitioners must be truthful, honest, candid and fair in all their dealings. This is an
all-embracing and inflexible rule.

When considering applications for the registration of notaries, the High Court must
consider whether the applicant is a fit and proper person to be registered. This
means that an applicant must be a person of honesty and reliability. In Hayes v the
Bar Council 1981 ZLR 183 (A) at 199–200 Fieldsend CJ said:

“So far as possible the court must be satisfied that an applicant will be able with
honesty and balance to perform the duties of an advocate to the advantage of
those he is called upon to represent. … In addition, the profession of advocate
and attorney requires the utmost good faith from practitioners and from all
aspirant practitioners … An advocate, whose main duty it will be to represent his
clients before the courts, must be a person in whose reliability and integrity the
court must be able to place complete trust, it always being remembered that an
advocate owes a duty at least as much to the court as to his client. And the
court must be satisfied that he will not be his behaviour do anything to bring the
courts or the profession into disrepute.”
Confidentiality
This goes further than legal practitioner-client privilege. Anything that would be
protected by legal practitioner and client privilege under the law of evidence must be
keptconfidential, but even communications which are not privileged must be kept
confidential unless the client consents to their being disclosed. Confidentiality
extends to any information gained while acting for one’s client.

Even information that has become an open secret (e.g. a sale of immovable property
whose details are documented in the Deeds Registry) must not be divulged without
the client’s consent. Gossiping about matters in hand, even if the client is not
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named, is unethical.

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Even if a legal practitioner has withdrawn from a matter, information divulged to him
by his former client is confidential, even so far as the client’s new legal practitioner is
concerned.

The client’s death does not terminate the need for confidentiality, except in regard to
matters concerning the administration of the client’s estate.

A change of legal practitioners does not terminate the need for confidentiality either.
Without the former client’s consent, the old legal practitioner may not disclose
confidential information without the client’s consent, even for the purpose of putting
the new legal practitioner in the picture regarding the client’s affairs.

Code of ethics and Section 23 of the Legal practitioners Act Cap 27:07 sets out
various forms of unprofessional, dishonourable or unworthy conduct on the part of
legal practitioners. A practitioner must not:

1. Tout or advertise.
2. Contravene the Act or any regulations, rules or by-laws made under it.
3. Withhold any payment of trust money without lawful cause.
4. Enter into a champertous transaction, except as permitted by the Act.
5. Permit anyone who is not a legal practitioner to receive any fee or income in
respect of work restricted to a legal practitioner.
6. Open or maintain an office which is not under continuous personal
supervision of a legal practitioner.
7. Keep books of account for his practice jointly with an unregistered
[Link] anyone who is not a legal practitioner by way of a share
in the profits.
8. Tender in response to an advertisement to perform legal work.1
9. Help an unregistered person recover charges for services by including those
charges in his own bill of costs, without disclosing that fact.
10. Allow his name to appear in an advertisement or letter-head in conjunction
with an unregistered person’s name, giving the impression that he is
associated with that other person in the practice of the profession of law.
11. Place himself under the control of an unregistered person so as to
compromise his professional independence.
12. Levy fees that are lower than the prescribed minimum.
13. Note that the list is not exhaustive: sec 23(2) allows the Council of the
Society or the Disciplinary Tribunal or a court to determine that other types of
conduct constitute unprofessional, dishonourable or unworthy conduct
STATUTORY MISCONDUCT(code of ethics)
Touting and advertising
Legal practitioners may not tout (i.e. solicit for business or pester customers)Law
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Society Cape v Berrangé 2005 (5) SA 160 (C), a practitioner was held guilty of
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touting where he entered into “marketing agreements” with estate agents whereby
he rewarded them for referring conveyancing work to his firm .The argument in
Berrange case is equally applicable for notaries. Nor may they advertise the Law
Society in its guidelines, published in 2000. Provides for exceptions. These may be
summarised:

1. Legal practitioners must conduct themselves in a manner consistent with the

good reputation of the profession. Any publicity must be in good taste with
regard to both content and usage and must not be misleading. Advertising
must not compromise or impair:
 the practitioner’s independence or integrity or duty towards his client;
 the client’s freedom to instruct a legal practitioner of his choice;
 the legal practitioner’s duty to act in the best interests of the client;
 the good repute of the practitioner or the profession;
 the proper standard of the practitioner’s work.
2. A firm’s name and address may appear in bold type in a telephone directory
and also in the yellow pages under the title “legal practitioners”.
3. Business cards can be given only to people who reasonably need to have a
record of the information contained in them.
4. No advertisement may name the firm’s clients, and a practitioner may refer to
a client’s name in the public media only with the client’s written consent.
5. No advertisement may compare the services of the firm with those given by
any other legal practitioners, nor may it refer to a legal practitioner’s success
rate.
6. No advertisement may compare the legal practitioner’s charges with those of
another.
7. No advertisement or publicity may state that a practitioner will undertake
specific kinds of work for a specific charge.
8. An advertisement may state that the legal practitioner undertakes a particular
class of work only if he is able and qualified to do that work competently.
9. An advertisement may state that a firm is a specialist in a particular branch of
the law only if it has the requisite expertise in that branch.
10. A legal practitioner may give interviews to the press and take part in radio or
television broadcasts, and may state his name and the name of his firm. But
he must not refer to the name of a client without the client’s written
permission
Fees and Costs
General principle: making a profit should not be the primary goal of a legal
practitioner. Only reasonable fees are permitted. The Law Society regularly issues
a tariff of fees which should be charged in the absence of the client’s written consent.
The tariff fees can be varied according to:
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1. The complexity of the matter or the difficulty or novelty of the questions

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involved.

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 2. The specialised knowledge, skill or responsibility required of the practitioner.
3. The place where or circumstances in which the business is transacted.
4. The amount or value of the money or property involved.
5. The importance of the matter to the client.
In many cases, the fees vary according to the practitioner’s seniority

Overreaching
This means the extracting of unconscionable, excessive or extortionate fees by a
legal practitioner, through taking undue advantage of a client. 2 Deliberate over-
charging amounts to misconduct and the legal practitioner must avoid manifestly
excessive charging, particularly if the client is ignorant. Exceeding the Law Society’s
current tariff of fees is unprofessional conduct, and the Society is likely to regard any
of more than 30 per cent above the recommended rate as “materially different”.

On the other hand, as was said in Cape Law Society v Luyt 1929 CPD 281:

“[I]f the prospective client is a free agent, if there is no overreaching, no fraud or

duress, no taking advantage of him, then if the client chooses voluntarily to
agree to an extravagant fee, I cannot say that there would be misconduct.”
Overreaching extends to people other than clients. A legal practitioner must not
assist a client to recover from a debtor more than is lawfully due, and thus to
overreach the debtor. For example, collection charges must not be included in an
amount demanded from a debtor when they are not claimable.

More generally, a legal practitioner should not assist a client to act dishonourably,
e.g. by negotiating an unfair contract on his behalf.

Under-charging
This is also unprofessional conduct, because it is regarded as a form of touting for
custom. The Law Society’s tariff of recommended fees is in fact a tariff of minimum
fees.

A legal practitioner must charge adequately and properly for his professional
services unless he or she is acting pro Deo or pro amico.
This is something that must be borne in mind by corporate lawyers. In Law Society
of Zimbabwe v Lake 1988 (1) ZLR 168 (S), a corporate lawyer sought permission to
undertake conveyancing work on behalf of his employer. Conveyancing is work
reserved for conveyancers (then legal practitioners). The court held that he could
not do so. The performance of any “reserved work” (i.e. appearance in court and the
preparatory work that precedes such appearance; notarisingdocuments; and
conveyancing) must be done by independent practitioners, not by employees on
behalf of their employers.

“I think it is a fair proposition that any non-registered person who takes into his
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employ a registered legal practitioner in order that he may practise the

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 profession of law on his behalf poses a potential threat to the professional
independence of the practitioner. The mere fact that the practitioner
subordinates himself as a servant puts his independence in the practice of his
profession in jeopardy.” (p. 180D)
This does not apply to legal practitioners in the employment of the State (p. 177E-F)

NOTARIAL DEED

(DISTINCTION BETWEEN NOTARIAL AND UNDERHAND AGREEMENT)

A notarial deed is defined as meaning a deed attested by a notary public, but does
not include—

(a) a document with a signature which is merely authenticated by a notary public; or

(b) a copy of a document which has been certified as correct by a notary public; see
S2 of Deeds registry Act.

Notarial acts have a high degree of authority and are considered probative instruments,
received as firsthand and primary evidence in court, and thereby accorded high evidentiary
value and executory force, and deemed to be proof of their contents. A notarial instrument
also fixes the date at which its parties are bound without prior delivery and acceptance (as
opposed to a deed or contract under common law) and the data

ADVANTAGES OFNOTARIAL DOCUMENTS

(1)Notary public is an authorized executive that is capable of acting as a consistent,

unprejudiced witness for the signing of significant documents. Moreover, a notary
public also acts as a fair-minded third party for parties intending to enter into a legally
binding agreement

(2)Presumption of regularity;A notary public renders his official duties by marking

documents with his signatures and a distinctive personalized stamp or inked seal.
Further a document that has been witnessed by a notary public has been notarized.
Such document is thereafter considered as authentic and can be used worldwide as
proof of the original. - By certifying the authenticity of the signing parties, a notary
public offers organizations and individuals to enter into contracts as well as carry out
businesses with a reassurance that the notarized and commissioned documents will
be recognized in court, by virtue of being an official act, a presumption of regularity
attaches to the instrument, meaning all prescribed formalities have been carried out,
including the reading over of the instrument.

(3) Notary public is a great way to protect against fraud because it is a requirement
that the signatory of a legal document has to establish his or her identity
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4) The appearer always walks away with an instrument that is self-executing, that is,
it requires no further implementing action to be effective and enforceable, just like a
court order.

5) Notarial instruments cannot be altered or overridden by pre-existing or

subsequent private instruments (instruments under hand, deeds, contracts). In other
words, for example, a notarial will could not be amended or superseded by a non-
notarial codicil or will. They also estop (preclude) the appearer(s) from raising most
defenses for setting aside the instrument, including: (1) non es factum, (2) the
contents of the instrument do not correctly express the appearer's intentions, or (3)
that there are reasons why the instrument should not take effect (ultra vires,
improper execution, etc.).

In short notarised documents have the following status at [Link] instruments, if

prima facie duly executed, are:

 Presumed valid and regular;

 self-authenticating
 probative;
 public;
 self-executing; and
 have a fixed, unalterable effective date (data).

PROTOCOL MINUTES AND COPIES

Minute
It is the original document executed before a Notary Public and which must be
signed by him, the parties to the transaction and the witness.

All minutes must be recorded by the Notary Public in his protocol register and must
be preserved in his protocol.

Protocol
It consists of the original documents which were executed before a Notary Public. It
is a place in which all notarial documents are kept in their order of execution. Only
documents which comply with the definition of a notarial deed and are registrable in
the Deeds Registry must be recorded and kept in the protocol

Protocol Register
It is a book which contains particulars of all documents which are filed in the Notary
Public’s protocol. These particulars are put in alphabetical order.

A Notary Public is obliged to keep all notarial documents in order. This was stated in
Incorporated Law Society v Van Eyk1910 CPD 254 at pg261 wherein Maasdorp
JP said:
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“carelessness in the custody and preservation of deeds is one of the greatest faults a
notary can be guilty of and unless it is rigorously dealt with it would render the office
of a notary wholly worthless.”

Grosse
It is a copy of a minute. It is a re-typed copy of the original document but it does not
provide spaces for the appearers and witnesses to append their signatures. It is
signed by a notary public and ends as follows:

“Signed by the parties and the witnesses in my presence

Notary.”

Authentication and Certification of a document?

Authentication of documents is the process by which a notary public certify the
identity of the signatory of the document by affixing a certificate to the document
which verifies the authenticity of the signature of the person who signed it whereas
certification of a document is where a notary public or commissioner of oaths
confirms that a document is a true copy or a duplication of the original document.

The main difference is that authentication verifies the truthfulness of the signature on
the document and the identity of the person who signed it whilst on the other hand
certification only confirms that the document is a true copy of the original. When
authenticating a document a notary public also verifies the capacity of the person
who signed the document. On the other hand certification only confirms that the
contents of the duplicate are the same as those on the original document. This
means that the contents of an authenticated document can be a legally acceptable
as true while those of a certified document cannot.

When authenticating a document a notary public issues a notarial certificate of

authentication this means that a seal will be placed on the document whereas when
certifying a document he simply stamps and signs.

Certification of documents can be done by both a notary public and a commissioner

of oaths while authentication can only be done by a notary public, as will be shown
later.

Moreover, for authenticated documents the notary public would be required to keep
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an original in his protocol which is known as a minute whereas for certification the
commissioner of oaths is not obliged to keep a copy of the original document
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According to the Hague Convention (Abolishing the Requirement for legalization of
documents 1961), authenticated documents are legally acceptable to be used in
foreign jurisdictions whereas commissioned documents are principally used within
the jurisdiction of certification3, hence the purpose and function of the documents
varies.

Under what circumstances can the Hague Convention be utilized for the
authentication of documents?

The Hague Convention (Abolishing the requirements of legalization of foreign public

documents) specifically provides guidelines as to the procedures for authentication
of documents for foreign use; hence it abolished the traditional requirement of
legalization of documents. Therefore as the convention becomes binding on states
upon acceptanceby the respective state, the answer will seek to provide
requirements to be met first for the convention to apply with equal force for
authentication purposes

When can the Convention be utilized?

It is worth to note that the applicability of the document depends greatly on the
respective state being a signatory to the Convention. Such a prerequisite is
emphasized by the preamble of the Convention which notes that, “The states
signatory to the present Convention…” therefore the Convention would
automatically not apply if a state is not a signatory to the Convention. Moreover,
other states require domestication of International Conventions thus such a
requirement would also be complimentary on the signatory prerequisite s 11B of the
Constitution. In a nutshell the convention would only apply and be recognized if the
state seeking to utilize it is a signatory.

In addition, the recipient foreign State ought also to be a contracting State and
signatory to the Hague Convention in order for the Convention to apply thus
abolishing the traditional requirement of legalization. This is aptly outlined in the
Preamble, and mainly Article 2 which notes that,

“Each Contracting State shall exempt from legalisation documents to which the
present Convention applies and which have to be produced in its territory. For the
purposes of the present Convention, legalisation means only the formality by which
the diplomatic or consular agents of the country in which the document has to be
produced certify the authenticity of the signature, the capacity in which the person
signing the document has acted and, where appropriate, the identity of the seal or
stamp which it bears.”

Therefore, the states ought to be reciprocally signatory to the Convention lest the
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Convention falls away and the traditional legalization procedure applies. In a

nutshell, both States must be signatory to the convention.
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Furthermore, the Hague Convention only applies to a specific group of
publicdocuments as postulated by Article1 of the Convention. Therefore, the
convention does not apply to documents 4 not outlined in Article1 and thus to Article
1 provides that,

“The present Convention shall apply to publicdocuments which have been

executed in the territory of one Contracting State and which have to be produced in
the territory of another Contracting State.

For the purposes of the present Convention, the following are deemed to be public
documents:

a) documents emanating from an authority or an official connected with the courts or

tribunals of the State, including those emanating from a public prosecutor, a clerk of
a court or a process-server ("huissier de justice");

b) administrative documents;

c)notarial acts;

d) official certificates which are placed on documents signed by persons in their

private capacity, such as official certificates recording the registration of a document

or the fact that it was in existence on a certain date and official and notarial
authentications of signatures.

However, the present Convention shall not apply:

a) to documents executed by diplomatic or consular agents;

b) to administrative documents dealing directly with commercial or customs

operations.

In addition, the purpose of the document would also play a significant part in
determining applicability of the Convention. Hence, only public documents to be
used in foreign jurisdictions for administrative purposes like courts, registrations
(legally admissible) would fall under the purview of the Convention. Moreover, the
purpose of the documents ought to totally tally with the objectives of the Convention
as stipulated in various Articles within the Convention.

It is also prudent to appreciate that those only authenticated documents by persons

satisfying Article 6 and 7 respectively would be legally accurate under the
Convention. Therefore, in order for the convention to be utilized, member states as
noted in Para 1 should have appointed agents recognized to authenticate documents
and also able to legally attach “Apostille” and “allonges”. This was also noted in the
Conclusions and Recommendations of the Special Commission on the practical
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operation of the Hague Apostille, Evidence and Service Conventions (28 October-4
Nov 2003)

Conclusively, the Hague Convention requires antecedent requirements like the

above mentioned to be satisfied in order for its operation as far as authentication of
documents is concerned.

procedure followed to administer an Oath in respect of an affidavit.

Before a Commissioner of Oaths administers to any person an oath or affirmation in

respect of an affidavit, he shall ask the deponent:

Whether he knows and understands the contents of the declaration,

Whether he has any objections to taking the prescribed oath, and

Whether he considers the prescribed oath to be binding on his conscience

If the deponent acknowledges that he knows and understands the contents of the
declaration and informs the Commissioner of Oaths that he does not have any
objection to taking the oath and that he considers it to be binding on his conscience,
the Commissioner shall administer the oath by causing the deponent to utter the
words, “I swear that the contents of this declaration are true, so help me God”.

Where the deponent acknowledges that he knows and understands the contents of
the declaration but informs the Commissioner of Oaths that he objects to taking the
oath or that he does not consider it to be binding on his conscience, the
Commissioner administers an affirmation by causing the deponent to utter the words,
“I truly affirm that the contents of this declaration are true”.

The deponent then signs the declaration in the presence of the Commissioner of
Oaths.

Where the deponent cannot write, he shall, in the presence of the Commissioner of
Oaths, affix his mark at the foot of the declaration.

Where the Commissioner of Oaths has any doubt as to the deponent’s inability to
write he shall require the inability to be certified at the foot of the declaration by some
other trustworthy person.

The Commissioner of Oaths then certifies that the deponent has acknowledged that
he knows and understands the contents of the declaration below the deponent’s
signature or mark.
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He shall also state the manner, place and date of taking the declaration.
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The Commissioner of Oaths shall then sign the declaration and print his full name
and address of business below his signature, stating his designation as well.

PROVISIONS OF THE DEEDS REGISTRIES ACT AND REGULATIONS

Deeds Registries Regulations SI 236/2018

PROVISIONS IN REGARD TO THE FOLLOWING

1. Alterations and Interlineations

Regulation 4 provides that such interlineations and Alterations shall be initiated by

the person executing the document and by the attesting witnesses; if there are any.
And if the alteration or interlineations in a document has been attested by a person
who was not the original attestor of the document, the document should be signed by
persons attesting the alteration or interlineations.

Section 10(2) of the Deeds Registries Regulations provides that a Legal Practitioner
shall initial any alternation, addition or interlineations in any document prepared by
him especially those provided for in section 13.

Section 53 states that the Registrar shall refuse to accept for registration any
document other than a notarial deed if such document is not endorsed or initialled as
required by these regulations.

S3(4) states that in any document, any space which has not been used shall be
ruled through.

[Link] in Foreign Language

Regulation 6, the Registrar is empowered to accept for registration documents in
foreign language provided a translation by a competent translator is lodged
therewith. But generally all documents must be in English language.

[Link] and Place of Execution

Section 7 provides that a document tendered for registration or record purposes shall
disclose the place and date of execution unless the Registrar orders otherwise. The
Registrar may dispense withthe requirements of this section if in his opinion the
nature of the document makes it unnecessary to comply with such requirements.

[Link] and Carbon Copies

Regulation 3(3)(a) and (b) states that the Registrar has the discretion to accept a
photographic copy of any document for record purposes only and shall not accept
carbonic copies of any document for registration and filing.
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Regulation 3(1)(b) documents should be written in legible characters using

permanent black or blue ink, is the general position of which section 3(3)(a) and (b)
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are exceptions.

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[Link] of areas of land
Regulation II provides that any area of land described in a document shall be shown
in figures and in hectares to the last four decimal places if it is more than a hectare, if
it is less, insquare metres. There is need to lodge the document with the relevant
diagram endorsed and certified by the Surveyor General.

. The Registrar of deeds may refuse to register a document that has one or
more physical defects in terms of the Deeds Registries Regulations in
SI236/[Link] are some examples;
If the document is not written in the English language and not upon strong white
paper of the international standard paper size A4 (297mm x 210mm) and without a
clear margin of at least 35mm on the left side thereof or if it is written on both sides,
on the right hand side also in terms of section 3 (1) (a)

If it is not written in legible characters and not written using permanent black or blue
black ink or if copying ink is used in terms of section 3 (1) (b).

If the upper half of the first page is not left blank for the purposes of office
endorsements as required by section 3 (2).

If any space which has not been used in the document has not been ruled through
as required by section 3 (4).

Where the document consists of more than one page, if the necessary catchword
has not been written at the bottom of each page. Section 3 (5).

Where a document is expressed in foreign language, if the translation thereof has

not been certified by a person accepted by the registrar as a competent translator.
Section 5

If the writing in the document has been rendered illegible due to faintness or the
folding of the document. Section 5

If the document does not specify the identity of any person mentioned therein in
accordance with the provisions of section 51. Section 8 (1)

If a document adds aliases or assumed names to any name. Section 8 (2)

Where a document refers to a document filed in the deeds registry, if it does not
quote the number and date necessary to identify the filed document. Section 9

Where a document is in favour of a corporate body, if the relevant extract from the
constitution of the body has not been filed of record to show that the transaction
concerned is within the powers which may lawfully be exercised by the body
concerned. Section 12 (1) (b)
15

POWER OF ATTORNEY
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A Notary public is an agent of a principal;therefore we make use of a power of
attorney.

Definition;this is a document in which authority is given to another to act on behalf of

aperson for example to create a notarial deed for a servitude,to sign documents,to
accept a donation etc.

Not only may a notary draw a power of [Link] a power of attorney drawn
by a notary enjoys a particular [Link] grantor of a power of attorney is
competent to prepare a power of attorney on his [Link] a power of attorney is
referred to as an underhand or private power of attorney and is adequate for ordinary
everyday purposes .A power of attorney to pass transfer must however be passed by
an attorney, Conveyancer or a notary.

There are two types of powers of attorney, special power of attorney andgeneral
power of [Link] special power of attorney specific authority is given, for
example to create a collateral notarial bond.

General power of attorney gives general or wider powers to act on behalf of another.

Note however if you are to use the general power of attorney, the original must be
filed together with a copy, one copy will be returned to the agent.

WHAT IS CONTAINED IN A SPECIAL POWER OF ATTORNEY?

(1) The Heading

(2) Grantor; Person giving the authority,she or he is the owner of the property.

Note if it’s a Corporate body there must be proof for example

‘I....duly authorised thereto by resolution of the meeting of board of directors of

Sunshine Limited dated the 27 of November 2013.’

(3) Grantee; Person in whose favour the power of attorney is passed

4Execution clause; Grantor then signs the power of attorney. It depends on where it
has been signed. The following provisions of the Deeds Registry Act apply;

S78 as amended

ATTESTATION OF POWERS OF ATTORNEY

Powers of attorney to pass deeds or to do any act in connection with a deeds

registry shall—

(a) if executed within Zimbabwe, be accepted if executed before a notary public and
witnessed by two witnesses. ;
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(b) if executed outside Zimbabwe, be accepted if authenticated—

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(i) by a legal practitioner, mayor or person holding judicial office; or

(ii) in the case of a country or territory in which Zimbabwe has its own diplomatic or
consular representative, by the head of a Zimbabwean diplomatic mission, the
deputy or acting head of such mission or a counsellor, first, second or third
secretary, consul-general, consul or vice consul.

TERMINATION OF POWER OF ATTORNEY

A power of attorney terminates

1)On execution of the mandate

2)On completion of the period for which the power of attorney was originally granted

3)On the death of the representative

4)On impossibility of execution

5)When the principle is legally in cable of having his own will for example mentally
incapacitated

6)On cancellation of mandate by representative

7)On revocation of the power of attorney by the principal

FUNCTIONS OF COMMISSIONER OF OATHS

Regulated byJUSTICES OF THE PEACE AND COMMISSIONERS OF OATHS ACT

CHAPTER 7:09: Ex Officio Commissioners of Oaths: Designation Notice SI
648/1983:Justices of the Peace and Commissioners of Oaths (General)
Regulations RGN 1205/75

A Commissioner of Oaths is someone who has been given the power to administer
and witness oaths. In order to be valid, an oath must be taken before a
Commissioner of Oaths or a court. An oath is a solemn declaration that a statement
is true, and is often needed notary public. The Commissioner ensures that the oath
is properly administered in accordance with the law.
The person taking the oath is called the deponent or the declarant. Validity of the
document is the deponent's responsibility, not the Commissioner's, as the
Commissioner can only verify that the oath has been administered correctly.

In Zimbabwe the appointment of Commissioners is by the Minister of Justice and

Legal Affairs see S6 of the said Act. By virtue of their office, legal
practitioners(Notaries) and all judicial officers like magistrates are automatic
commissioners of oath,ex officio S7, who do not need to be appointed and, as
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such, entitled to administer oaths.

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Although in the past it was considered unethical for a legal practitioner to charge
foracting as a commissioner of oaths,S10 (2) of the Justices of the Peace and
Commissioners of Oath Act reads:

“Any justice of the peace or commissioner of oath who charges or demands any fee
or reward for doing anything in his capacity as a justice of the peace or
commissioner of oath, as the case may be, shall be guilty of an offence and liable to
a fine not exceeding level seven or to imprisonment for a period not exceeding one
year or both such fine and such imprisonment.”

The Law Society Council has recently ruled that a commissioner of oaths may
charge for certifying copies.

Under S 8 of theAct, commissioners of oaths may not administer oaths in any case
in which regulations prohibit them from doing so or if the commissioner has reason to
believe that the person concerned is unwilling to take an oath. A Commissioner of
oath must ensure that he does not have any interest (material or moral) which is
adverse to his client’s interest.
Section 2(1) of the Justices of the Peace and Commissioners of Oaths
(General) Regulations, 1998 (SI 183 of 1998):

“No justice of the peace of commissioner of oaths shall attest any affidavit
relating to a matter in which he has any interest.”If he has any interest in the
matter to which the affidavit relates [section 2(1) of Justices of the Peace and
Commissioners of Oaths (General) Regulations RGN 1205/75]. Thus, a legal
practitioner may not swear an affidavit in respect of any matter in which his firm
is involved. In the caseof Phillips in re Post and Telecommunications Corp
&Ors HB-109-93 Manyarara AJ held that an opposing affidavit in an application
was to be disregarded because it was attested to by a partner of the firm
representing the party and was therefore invalid. There was no
opposition to the claim which was granted on the merits.
However, a legal practitioner may attest an affidavit in matters in which he is
involved in the following circumstances.
-1. for a record in the Deeds registry relating to a date of birth, nationality,
matrimonial status, amendment of names or lost deeds or documents.
-2 for a record in any office of the State or a city, municipality, town or rural
council, local board or regional authority.
-3. for the Registrar of the High Court or the Clerk of an inferior court for
placing on record any extracts from the Government Gazette or certificates
of appraisement of sworn appraisers. [Section 1 of the Schedule to Justices
of the Peace and Commissioners of Oaths (General) Regulations RGN 1205/
-4. If he has reason to believe that the deponent is unwilling to make an oath
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[section
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8(b) of the Act].

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Duties of a commissioner of oaths
When swearing an affidavit the commissioner of oaths must authenticate the affidavit
by fixing his seal or stamp to it. If he has no stamp or seal he must certify the
affidavitaccordingly [section 8(2) of the Act].
A commissioner of oaths may never attest a document which he knows is false.
A commissioner of oaths may never change a document after it has been sworn
unlessthe deponent swears to the change and any alteration is signed by both the
deponentand the commissioner of oaths.
A commissioner should not authenticate a signature where he has not seen the
signatory sign, see S v Hurle and others 1998 (2) ZLR 42 (H) at 50, and he should
not sign or procure the signature of blank documents, e.g. powers of attorney

Certifying copies of documents

Legal practitioners are frequently asked to certify copies of documents. Strictly
speaking they should only do so as notaries but it is common practice to certify
documents and such documents are widely accepted. When certifying copies the
commissioner of oaths must have sight of the original document and should
endorseon the copy the following words.

“Certified a true copy of the original.

Dated ....
(Name) .......... Commissioner of oaths”
What is the difference between a Commissioner of Oaths and a notary?
Differences
Basically, a notary has more power than a Commissioner of Oaths.A Commissioner
of Oaths cannot verify that a statement is true, simply that the proper procedures
havebeen followed.
Notarization as performed by a notary, is the verification of a document as valid. In
addition, a notary can draw up documents, such as contracts and deeds.
A Notary Public can act as a witness, but a Commissioner cannot notarise anything

SERVITUDE
A servitude is a limited real right which entitles the holder of such right to use or to the
enjoyment of another person's property or to insist that such other person shall refrain from
19

exercising certain rights of ownership over his property which he would have if the servitude
did not exist. A servitude cannot impose the performance of a positive duty on the owner of
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the property.

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LORENTS V MELLE 1978(3)SA1044Tdefines a servitude as a right belonging to one
person in the property of another entitling the former either to exercise some right /benefit in
the property /to refrain the later from exercing one or another of his normal rights of
ownership...it’s an example of a ius in re aliena, it diminishes an owners dominium in a thing
see EXPARTE GELDENHUYS 1926 OPD 155.

Generally onecannot obtain a servitude on his own piece of land ,however if say you are a co-
owner with another, you can acquire a praedial servitude over the servient land seeMOCKE
V BEANFORT WEST MUNICIPALITY1939 CPD 135.

TYPES OF SERVITUDES

PRAEDIAL SERVITUDES(Real servitudes)

A praedial servitude has been defined as a limited real right which confers on its holder in his
capacity as owner of land (dominant tenement) certain entitlements of use and enjoyment
over the land (servient tenement) of another. SeeBrink P.D. Notarial Practice. Pretoria:
University of South Africa, 2007. Pg 146

Personal servitude
A personal servitude is a limited real right which confers on its holder in his personal
capacity certain entitlements of use and enjoyment over the movable or immovable property
of another for a specified period or for the life time of the holder.

No personal servitude of usufruct, usus or habitatio or any transfer or cession thereof

purporting to extend beyond the life time of the person in whose favour it is created shall be
registered. See Section 58 of Deed Registries Act.

It grants holder of the servitude in her capacity as owner of rights (dominant tenement)
certain entitlements of use and enjoyment over the land or movable assets of another (servient
tenement).Therefore,it does not always vest over a piece of land

DISTINCTION BETWEEN PERSONAL AND PRAEDIAL SERVITUDES

The definitions show a clear distinction between praedial and personal servitudes.

Firstly, it must be pointed out that a praedial servitude vests in a person by reason of his
ownership of certain piece of land whereas the vesting of a personal servitude is not
dependent on ownership of certain piece of land by its holder.

For a praedial servitude the two lands must be adjacent and be in close proximity to each
other. It can also be seen that personal servitudes are not limited to immovables but also
apply to movable property.

A praedial servitude relates to two pieces of land. It is constituted in favour of one piece of
land which is called the dominant tenement over another piece of land called the servient
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tenement.5 By contrast, a personal servitude is constituted in favour of an individual on whom
it confers the right to use and enjoyment of another person's property.

A praedial servitude confers a benefit on the dominant tenement and imposes a corresponding
burden on the servient tenement. It is important to note that legal relationships exist between
persons and not things and that the right of servitude can only be exercised by a person and
be enforced against another person. Thus, a praedial servitude is vested in the owner of the
dominant land who is entitled to enforce it against the owner of the servient tenement.

It follows from the above that a praedial servitude is registered against the title deeds of both
the dominant and the servient tenement whereas a personal servitude is only registered
against the title deeds of the servient tenement. Notice must also be taken of the fact that the
reasoning for having a praedial servitude registered against both title deeds is premised on the
reasoning that praedial servitude binds successors in title of both lands, and strictly speaking
personal servitudes can only be registered if they bind the successors in title of the servient
tenement.

The praedial servitude is exercised by the owner of the dominant tenement and his successors
in title against the owner of the servient tenement and his successors in title. Neither the
benefit nor the burden can be detached from the piece of land on which it is conferred and
imposed respectively. The burden and the benefit 'run with the land'. On the other hand, a
personal servitude vests in the holder personally and so it is not transferrable by its holder.
This was articulated in the case of Willoughby's Consolidated Company Ltd v Copthall
Stores Ltd where the court held that the right conferred by a personal servitude is inseparably
attached to the beneficiary. He cannot transmit it to his beneficiary or alienate it and when he
dies, it perishes with him.

However, it seems that some personal rights can by agreement be made perpetual and
transferrable. This mainly relates to mineral rights. It is essential to note that some texts refer
to them as quasi-servitudes or real rights sui generis. The critical point to note is that some
personal servitudes commonly referred to as personal servitudes par excellence, like usus,
habitatio, usufruct, are strictly personal and end with death. This is reinforced by section 59
of the Deeds Registries Act [Chapter 20:05] which provides that the personal rights of
usus, habitatio and usufruct shall not be registrable.

A praedial servitude is indivisible whereas a personal servitude is divisible. For a praedial

servitude this means that the owner of the dominant tenement cannot acquire a servitude only
in favour of his undivided share. For a personal servitude this means that a personal servitude
may be granted in respect of an undivided share in property which is jointly owned.
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 Requirements for preparation and submission of deed of servitude(sec58Deeds registries
Act)
(a) contains a full description of any land against or in favour of which the servitude is to be
registered or endorsed, including the numbers and dates of the title deeds, and the full names
of the grantor and, where practicable, the grantee of the servitude; and

(b)be executed by the owner of the land encumbered by the servitude and the owner of the
land in favour of Which or the person in whose favour the servitude is being created:
Provided that, where the servitude is being created in favour of the public or of all or some of
the owners or occupiers of stands or lots in a township, the registrar may, if in his opinion it
is impracticable for Such persons to execute the deed, dispense with such execution of the
deed; and`

c) be attested by a notary public: Provided that this paragraph shall not apply to a deed of
servitude such as is referred to in section sixty-three if the signature of each person executing
the deed is witnessed by two competent witnesses or by a commissioner of oaths and the
signature of each witness or the commissioner of oaths, as the case may be, has been affixed
thereto in the presence of that person.

(2) Two signed originals or a signed original and a copy certified by notary public shall be
submitted to the Registrar for registration.

Registration of a servitude
Provision under section 57 apply (3) In registering any servitude which is being created in
terms of subsection (1), a registrar shall—

(a) where the servitude is being created in terms of paragraph (a) of subsection (1), endorse
the title deed of—

(i) the land encumbered thereby; and

(ii) any land in favour of which that servitude is being created; or

(b) where the servitude is being created in terms of paragraph (b) of subsection (1) and the
title deed in which the servitude is being created relates to—

(i) the land in favour of which that servitude is being created, endorse the title deed of the
land encumbered thereby; or

(ii) the land encumbered thereby, endorse the title deed of any land in favour of which that
servitude is being created.

Cancellation of registration of servitude

Section 60 provides steps to be taken for different situation;
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(1) Subject to subsections (2) and (3), cancellation of the registration of a servitude in
pursuance of an agreement between the owner of the land encumbered there by and the
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holder of the servitude shall be effected by notarial deed.

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(2) If a servitude is mortgaged or the dominant tenement is mortgaged, the consent in writing
of the holder of the bond to the cancellation of the registration of the servitude shall be
produced to the registrar.

(3) Cancellation of the registration of a personal servitude may, subject to the agreement
constituting the servitude, be effected by lodging with the registrar a written consent by the
holder of that servitude for the cancellation of the servitude.

(4) If for any reason a servitude has lapsed, the registrar shall, on written application by the
owner of the land encumbered thereby, accompanied by proof to his satisfaction of the lapse
of the servitude and by all the deeds Affected thereby, note on such deeds that the servitude
has lapsed.

CHANGE OF NAME
A name change is a legal act recognised in practically all legal systems that allow an
individual to adopt a name different than their birth name. Changing a surname can only be
done by a notary public.

COMMON LAW RELATING TO A CHANGE OF NAME

Under common law, prescribed formalities and technical procedures, to the change of one’s
surname, are non-existent. The common law allows a person to freely change his surname
without any impediments. The classic case of Ex parteHalfsland 1917 CPD 529
at530highlights this proposition. In that case the court stated that the court does not have the
power to authorise a person to change his surname but there is nothing preventing a person
from doing so. A similar decision was reached in M v A and Anor 1981 ZLR 306, wherein
Gubbay J stressed the point that under common law one could change their surname
whenever they thought like it.

A notable example would be in regard to women. Upon marriage the wife may assume her
husband surname. All that is required for her maiden surname to cease and the husband’s
surname to flourish, a woman would begin to call themselves by the surname of their
husbands.

Basically, for one to successfully change a surname under common law all they have to do is
to use that surname, consistently openly and in a non-fraudulent manner

The test was simply that one had to adopt a surname, to the extent that the public
acknowledges him by the new surname and that such surname should not be injurious to
public interests.

In as much as one enjoys unfettered right to change their surname, the situation is not the
same with children, consent of the father was a necessity. A passage in the English case of
23

Re I (OtherwisH)(an Infant)(1992) 3 ALL ER 970 at 971 Buckley J said:-

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“a child of a tender age cannot of their own motion change their surname as this
involves a conscious decision which primary right resides with the father as the natural
guardian.”

The rationale was that a minor is not competent to comprehend the intricacies and
significance/importance in the change of one’s surname.

Because our society is patriarchal, fathers are viewed as the family head bearing enormous
influence on the question of changing a minor’s surname. The case of Y v Y 1973(2)ALL
ER 234 at 235 dealt with a situation whereby the parties had divorced and the wife had been
granted custody, a unilateral decision by the wife to change the surname of the children to
acquire her second husband’s surname was viewed as an infraction on the residual rights of
the father as the natural guardian. It was held that under common law parties could change
their children’s surname anytime and that such change could only be effected if there was
consensus between the parents.

STATUTORY PROVISIONS AND THEIR SIGNIFICANCE

When a name is registered it cannot be changed without proper procedures being followed. It
is a crime to change the information on a birth certificate. A name which is not spelt correctly
can be changed easily. One goes to the Registry and fills in a BD 22 form and an affidavit
stating why the name was not spelt correctly. If the Registrar is satisfied, he /she Will issue a
new document. There is an inherent right to change a surname with very little legal
impediment.

How to change one’s surname:

1)It is done by way of a Notarial Deed of Change of surname drawn by a Notary Public. In
the case of a minor there is need for consent of the guardian S18(3) In case of Children’s Act
requires signature of adopter/guardian S71(1)(b)

2)Registration of Notarial Deed in the Deeds Registry s18(3)(a). The deed is stamped and
returned to the Notary. At this point the deed is examined for compliance with regulations

3)Advertised on the Gazette

A notice is published in the Government gazette showing that a person so changing a

surname it calls for any objections, for example that the change so actuated by malice or
fraud.

A copy of the notice and the notarial deed are taken to the Registrar of births and deaths with
application to effect change of surname on Birth Certificate s18 (3) (b).

The relevance for requiring compliance with statutory provisions is to give legal recognition
to change of surname and its safeguard against fraud promoted by a malafide change of
surname – Notarial deeds are drawn by a notary public whose office is of great public respect
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and regarded as of high esteem. For example notaries public are duty bound to exercise care
and caution in the drafting of notarial deeds.
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 DONATIONS
The term donation refers to an agreement whereby a person gives or promises to give
something to another without receiving, expecting to receive or demanding anything in
consideration. The transaction enriches the donee and not the donor in any way. Donations
are normally divided into two: a donation inter vivos and a donation mortis causa.

DONATION INTERVIVOS
A donation inter vivos is a contract which takes place by mutual consent of the giver, who
divests himself of the thing given in order to transmit the title of it to the donee gratuitously
and the donee who accepts the thing requires a legal title to it. A valid donation inter vivos
requires the intention of the donor immediately to pass title (not necessarily possession to the
donee. It also requires delivery of the property to the donee, which may be actual/physical,
constructive or symbolic. There has to be acceptance by the donee as well which is normally
implied by silence and can only be negated by express rejection. Voet holds that a donation
is inter vivos even where the delivery of the donated res is to take place after the death of the
donor and where the donation is not made in contemplation of death provided acceptance has
to be done well before death.

Importantly, once all requirements are met, a valid gift inter vivos cannot be revoked by the
donor.

DONATION MORTIS CAUSA

A donation mortis causa is a gift made by a person in sickness, who apprehending his
dissolution near, delivers or causes to be delivered, to another the possession of any personal
goods and keep as his own in case of the donor’s decease.

The civil law defines it to be a gift under apprehension of death as when anything is given
upon condition that if the donor dies, the donee shall possess it absolutely or return it if the
donor should survive or should repent of having made the gift or if the done should die before
the donor. A gift in view of death is one which is made in contemplation, fear or peril of
death and with intention that it shall take effect only in case of the death of the giver.

A valid gift mortis requires:- donative intent, delivery, acceptance and additionally the
donor’s anticipation, at the time of the gift, of imminent death, the donor’s actual death. If
the donor recovers, the gift is automatically revoked. Similarly, if the done dies before the
donor, the gift is revoked. And, unlike a gift inter vivos, the donor may always revoke.

Meyers and Others v Rudolph Executors 1918 AD 70at 80.

The gift before she dies, even after the first four requirements above have been satisfied.
Also distinguishing gifts causa mortis is the fact that they must be gifts of personal property,
real property (interests in land, etc) cannot be conveyed by gifts causa mortis.
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N.B. The key difference lies in the gift’s revocability.

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TRUSTS

A trust is created when its founder “hands over or is bound to hand over the control of an
asset which, or the proceeds of which, is to be administered by another (the trustee or
administrator) in his capacity as such for the benefit of some person (the beneficiary) other
than the trustee or for some impersonal object” [The South African Law of Trusts Honoré 3rd
Edition]. In other words there is a separation of ownership, management and enjoyment.

Essential elements of a trust

The essentials of a trust are that the founder intends to create the trust and his intention is
expressed in a form which creates a legal obligation to found the trust. The founder must also
define the trust assets and the trust objects which must be lawful. An obligation must be
placed on the trustee to administer the assets for the benefit of another person or object and
he must be independent and have control over the assets of the trust.

Public nature of a trust

Because the position of a trustee is a public office, the courts have jurisdiction over trusts.
However, courts have very limited powers to vary a trust deed except in the case of necessity
or where the object of the trust has been frustrated. It is for this reason that the trust deed
must be carefully and comprehensively drafted.

Distinction from English law

The law of trusts under English and South African law developed differently. Trusts in
English law were evolved by the Court of Chancery based on equity. The Roman-Dutch law
of trusts developed through stipulation alteri or contracts for the benefit of a third person.
Thus, extreme caution must be exercised in referring to English texts and cases.

Types of trusts
There are many types of trusts and the following list is not exclusive.

1. Statutory trusts such as the Rhodes Trust are established in terms of legislation.

2. Testamentary trusts are those created in a will.

3. Donation trusts are very common in estate planning and when setting up a charitable
institution. They involve the donor in donating assets to be used for the purpose for which the
trust is established.

4. Educational trusts are frequently used to establish a school or to provide scholarships or

bursaries.

5. Debenture trusts are established for the protection of debenture holders where a number of
people lend money to a company and there is a need to control strictly the rights of the
lenders or debenture [Link]
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Parties to a trust
The parties to a trust are the founder or donor, the trustee and the beneficiary who may be a
natural or a juristic person.

If necessary, a court will appoint and may remove a trustee but the Master of the High Court
has no right to appoint or supervise a trustee except in insolvency.

Duties of a trustee
The duties of a trustee under common law are as follows.
1. He must provide security. Many trust deeds dispense with the need to give security.

2. He must take possession of and, where appropriate, acquire ownership of theassets;

3. He must act as a diligens paterfamilias in caring for the trust assets.

4. He must distribute the income and capital of the trust in accordance with its objects.

5. He must act impartially.

6. He must disclose necessary information to the beneficiaries.

7. He must account for his actions.

[Link] to exercise due care and diligence was discussed in de Villiers v James 1996 (2)
ZLR 597 (S)

If a trustee fails in his duties, he may be liable to beneficiaries under the Aquilian action. The
personal right against trustee regards to property sold to innocent third party — damages —
how to be assessed see case of Jolly v Shannon &Anor 1998 (1) ZLR 78 (H)

Powers of a trustee
A trustee has only those powers granted to him in the trust deed. A court has little rightto
interfere except as already discussed.

Variation of a trust
A trust may be varied by the agreement of the founder, trustee and beneficiaries. It may also
be varied by the founder and the trustee before acceptance by the beneficiaries of the benefit
of the trust. In limited circumstances the court may vary a trust. Such circumstances include
necessity, frustration of the trust objects and the need to sell property.

Drafting of trust deeds

A trust deed is a notarial document but it is not necessary to register the trust in the deeds
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office. A trust does not have any implied powers. It stands or falls by the trust deed
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establishing it. Consequently, trust deeds are usually complex documents and different types
of trusts will have different clauses. The following clauses are common to most trust deeds.

The following clauses are relevant to the trustees.

Appointment of the first trustees.; The power to appoint additional trustees either to fill a
vacancy or to increase the; number of trustees.; Control of meetings of the trustees.;
Dispensing with the need to lodge any security.; Resignation or retirement of trustees.;
Remuneration of trustees including professional services, fees and expenses.; Indemnification
of trustees.; Administration of trust funds, eg payment of capital and income to
beneficiaries.;Disposal of trust assets on termination.

Wide interpretation of powers

Generally, it is provided in a trust deed that there will be a wide interpretation of the powers
given to the trustees.

Simple trust
A testator may want to create a trust in his or her will, for example where the beneficiaries
are minors. An administrator must be appointed for the trust, and the will must give the
administrator adequate powers to allow him to carry out the testator’s intentions.

Where the trust is for the benefit of a minor, the testator must consider the age at which the
beneficiary’s capital can be paid over to him. Any age of 18 can be chosen.

Example:

“Should any of my heirs not have attained the age of majority on my death, the
heir’s inheritance shall not vest in him or her but shall devolve upon my
administrator in trust to sell, call in and convert it into money, with power in his
discretion to postpone such sale, calling in or conversion and to invest and
reinvest such moneys in whatever manner and upon whatever security my
administrator in his absolute discretion thinks fit.

My administrator may pay to the guardian of each such heir, or otherwise utilise
the income and, if necessary, the capital of the trust for the maintenance,
education and general advancement in life of the heir until he or she attains the
age of … years.

As each such heir attains the age of … years, my administrator shall pay to him or
her his or her share of the capital and undistributed income, if any, of the trust.

My administrator may borrow for the purpose of the trust such money as he may from time to
time think fit, and my pledge, cede, mortgage or otherwise encumber the assets of the trust as
security for the loan
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The advantages of creating a family trust:

The living trust has lots of advantages due to which it has become so very popular. It should
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be noted that the benefits which stem from a family trust are social and financial. If it passes

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the family control test and makes distribution of the trust income to beneficiaries, then it is
provided with certain tax benefits. Bankruptcy or insolvency and other business misfortunes
can be overcome through protection of personal assets. It is a method to hand over the
family’s assets to future generations. It gives access to favorable tax treatments by ensuring
that all the members can utilize their income tax, it protects the property in trust from
matrimonial disputes and assists in the management of family assets. It has many other
benefits which are procurable only when it is correctly set up. Overally a family trust has
been held advantageous than a standard will, this will be canvassed in greater.

Protects the property from creditors

It has been submitted that when a family trust is established there is transfer of legal
ownership of the property into the name of the trust. This protects the property from being
reclaimed by debt collectors, because if property is a legal property of the trust it cannot be
reclaimed as a personal debt security, unless if it was gifted to the trust during the financial
period to evade the legal sanction. In this context it simply means that such property is even
protected in the event of bankruptcy. In the Australian jurisdiction when assets are placed in
an irrevocable trust they are shielded from creditors and lawsuits. The advantageous aspect
comes on the fact that the settlor whowill be the debtor might be using or dwelling on the
property in the case of a house. It makes the property under trust sacred.

Keeps the property separate from matrimonial property

This is another advantage which is attached to family trusts. The property placed under the
trust is ultimately kept separate from matrimonial property. This is a merit on the basis that in
the event of a divorce, the property in the trust is left untouched. Generally matrimonial
disputes mostly result in the property being distributed unevenly amongst parties. In this
regard a family trust secures the property for beneficiaries without it being tampered with.
Coupled to this, in the situation of the beneficiaries, who might be children, the assets will
not form part of their personal property and therefore cannot be subject to claims by their
partners. Aptly this brings a social benefit which is associated with establishing family trusts.

Tax benefits

Family trusts provides protection against various forms of wealth tax which may be
introduced in the future such as death duties or inheritance tax. Most families use family
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trusts to minimize the inheritance taxes associated with the transfer of wealth from parents to
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children. In the United States, one of the primary tax benefits of a family trust is that

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beneficiaries are not required to pay income tax on income that is distributed from the trust.
Income may be distributed in such a way as to enable all beneficiaries to take advantage of
the tax-free income thresholds. The trust must pay income taxes on undistributed income that
remains after the taxable year. Trustees have the authority to distribute the trust's income to
the maximum number of beneficiaries. They must also consider the beneficiary's ability to
maximize the tax advantages of his marginal tax rate. Beneficiaries are responsible for
settling taxes due on all income, including distributions. In the Australian jurisdiction family
trusts reduce the estate tax liability on the beneficiaries. By establishing the trust as
irrevocable, one can remove assets from his estate thereby lowering its value until the assets
are under the limit required for estate tax exemption. Concisely this protects the property
under trust from all frustrations which are associated with tax law.

Generates income

It is submitted that trustees can make investments in the name of the trust. For instance, a
trust might use some of the property it holds as a bed and breakfast to create income that will
go towards the upkeep of the property. The trust can provide the beneficiaries with income
and /or capital to meet their legitimate cash requirements as they arise. This can protect the
long-term value of family property.

Not easily revocable or altered

Family trusts on this basis are regarded advantageous as compared to standard wills, basing
on their typical simplicity. The powers of the grantor and trustee are normally considered
irrefutable. Generally, a standard will is susceptible to contestation due to the fact that it is
public in nature. The probate process can drag on and costs the beneficiaries considerable
money in legal costs. However, a family trust allows the bypassing of the probate court,
instead the assets are distributed by a successor trustee as provided for in the trust deed. Also,
on the confidential aspect family trusts, unlike standard wills, are not publicly registered and
the details of the family trust arrangement is kept confidential.

EXECUTION AND DRAFTING OF WILLS

Legislation governing; WILLS ACT CHAPTER 6:06

A will is an instrument by which a person makes a disposition of his property to take effect
after his decease and which is in its own nature ambulatory and revocable during his life.

The definition in the Wills Act provides;S2 “will” includes an oral will, a codicil and any
testamentary writing but does not include a document evidencing an ante nuptial contract or
other transaction of a contractual nature.

A will only takes effect after the demise of the testator and as such certain formalities have to
be met to ensure the validity of a will. These formalities are aimed at ensuring that the
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intention of the testator is met. The issue that has sparked controversy in the legal field is
whether the intentions of the testator rather than the formalities of making a will set out in the
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Wills Act should determine the validity of a will. Some scholars are of the view that the

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intention should be upheld over the formalities whilst others argue that the formalities should
be the basis of determining the validity of a will despite the intention of the testator

drafting wills
Wills must be drafted particularly carefully because the testator cannot be asked to clarify his
or her intentions when the will becomes operative. Great care must be taken to ensure that
accurate instructions are obtained and that the client understands the implications of all the
provisions of the will. Clients are often discouraged from drafting their own wills, because of
the problems that arise from poor drafting.

Execution of wills
After drafting a will, client is given an adequate opportunity to study it before it is signed.

It is vital to ensure compliance with the Wills Act regarding the signing of a will. Try to
arrange that the will is signed in your office to ensure that it is done properly.

Formalities of making a Will

Formalities of making a Will: S. 9 Wills Act 1837

There are three main formalities in making a will and it is important that these are followed.
If not, then this testamentary document will not be valid and the deceased’s estate might
likely be distributed under Intestacy Laws.

What are these Formalities?

While the formalities appear to be very basic, the will may be invalid if these are not
followed:

1 The will must be in writing. S 8 (1) (a) Wills Act (Chapter 6:06

The will must either be written in ink or in pencil although it is advisable that ink be used. It
is advisable to avoid using both ink and pencil because this can lead to the belief that the
testator (person making the will) was still undecided about whether the part written in pencil
should be a permanent part of the document or was just deliberative. This can lead to
complications after the death of the testator.

Interestingly enough, the law also provides for unwritten wills known as Privileged Wills.
Privileged wills are wills made informally by a testator who has privileged status. Privileged
status is granted to soldiers, mariners or seamen who are in “active military service”.
Situations where privileged wills may occur is when a soldier, who is mortally wounded in
combat, makes a statement or oral disposition of his property to another person before he
dies.

2 The testator must sign the document. S 8 (1) (b) Wills Act
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Any mark made by the testator on the document validates the will provided that he intended it
to be his signature and that this signature is meant to execute the will. So for example, if the
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testator is illiterate and uses his thumbprint to as his signature to execute the will, the will is
valid.

Normally, the signature must be at the end of the page of the will. There are instances
however, that the signature is not at the bottom of the page but on the side of the page
because there may not be enough space for the signature. There may also be situations when
the testator only gives a partial signature because she/he is weak to complete the signature.
The will shall still be considered valid as long as the testator intended that the mark or the
signature was meant to attest that this was his last will and testament. Where the signature is
not complete or where questions arise as to the way the will was executed or made, external
evidence (e.g. affidavit of due execution) must be given by the attesting witnesses or the
solicitor/legal executive who attended to the execution of the will. The testator (or his
appointee) and the witnesses must sign each page as near as possible to the end of the writing

3 There must be two witnesses to attest to the testator’s signature and to the correct execution
of the will. S 8 (1) (c) Wills Act. The signatures of the testator or his appointee must be made
or acknowledged (by the testator) in the presence of two competent witnesses who are both
present at the same time.i.e the witnesses must see the testator signing or executing the will.
If even one of the two witnesses does not see the actual signing of the will, the will shall be
considered invalid. It is, therefore, very important that the witnesses should be aware of and
see the testator signing the document. It is not necessary for the witnesses to know the
contents of the document. After attesting to and witnessing the signing of the will, the
witnesses must attest the will by signing and acknowledging his signature in the presence of
the testator.

In Janda v Janda 1995 (1) ZLR 375 (S) to satisfy compliance with the formalities when it
comes to signature of witnesses their full signatures are required, not merely initials.

4. Beneficiaries should not be witnesses

The chosen witnesses should not be beneficiaries to the will. If any beneficiary witnesses the
signing of the will, that person will lose whatever gifts or bequests she/he is entitled to under
the will (S15 Wills Act 1837). If a beneficiary witnesses the signing of the will, it does not
make the will [Link] witness must be capable of attesting at the time the will was
executed. A minor can witness a will but not a young child since he/she will not be capable of
understanding the importance of witnessing the will’s executionAnyone over the age of 16
who is competent to be a witness in court, and who can see the testator sign a will, is
competent to be a witness to a will. A blind person will not be an appropriate witness to the
will’s execution. A person who is very drunk or of an unsound mind will also not be capable
of attesting to the will. But remember: a person who benefits under a will cannot be a
witness to that will. If the will is signed by the testator’s appointee it is valid only if, before
the testator’s death, a magistrate, presiding officer, justice of the peace or commissioner of
oaths certifies on the will that he is satisfied as to the testator’s identity and that the will is the
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testator’s will. That person must sign each page. Alternatively, a court may state that the
will is valid (though this will require an application to the court).
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Documents may be annexed or referred to a will to explain or expand on the provisions of the
will, and such document need not be signed and witnessed as a will (sec 14 of the Act)

Essentials of a will
Effect of marriage
A will generally becomes void upon the subsequent marriage of the testator (sec 16(1) of the
Act).

Where the testator’s marriage is annulled or dissolved, any disposition to a former spouse
lapses and any appointment of a former spouse falls away, unless the will clearly indicates
that the testator’s intention was otherwise (sec 17 of the Act). In such a case it is much better
for the testator to make an entirely new will

Revocation clause
This is necessary to make it clear that the testator is revoking any previous wills totally, not
partially:

“I revoke all former wills made by me.”

Nomination of executor
Executors are nominated by the testator and appointed by the Master of the High Court.

It is usual to exempt an executor from providing security. The Master may still require him
to provide security, but not to cover all the assets of the estate — only the liabilities and the
value of the legacies.

As indicated in the checklist above, if a professional person is appointed as executor or

administrator it is a good thing to allow him or her to charge professional fees for work done
in addition to that of executor.

Example 1 (nomination of relative):

“I nominate my wife ABC to be the executrix of my estate, with all the power and
authority that is allowed or required by law, in particular the power of assumption.
I exempt her from providing security for the performance of her duties.”

Example 2 (nomination of professional person):

“I nominate one of the partners for the time being of the firm of …, Legal
Practitioners, of … to be the executor of my estate, with all the power and
authority that is allowed or required by law, in particular the power of
substitution. I exempt him from providing security for the performance of his
duties, and I authorise him to receive from my estate the normal executor’s
commission and the normal fees for any work which he may do in a professional
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capacity.”
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Beneficiaries
Identification of beneficiaries must be clear. Ensuring that their correct names are used and,
if there is likely to be any confusion, identifying them by some distinguishing feature, e.g.
their relationship to the testator or someone else is prudent.

If a bequest is made to a class of person (e.g. the children of a particular person) describing
the class accurately (e.g. “the children of my son A who are alive at my death”).

Bequests
A beneficiary is entitled to property bequeathed to him free from any liabilities or burdens on
it, unless the will indicates the contrary. So if a will bequeaths a house over which there
exists a bond, the executor must use the residue of the estate to free the house from the bond.
This may not be the testator’s intention

“Thirty-day” clause
This provides for the near-simultaneous death of the testator and the principal beneficiary
(e.g. a testator husband who is killed in the same road accident as his beneficiary wife). It
avoids double death duty. If the clause is not included, where a couple die simultaneously or
within a close time of each other duty is payable on the estate of the first to die and again on
the enhanced estate of the second.

Example:

“If my wife, … , survives me for thirty days or more, then I bequeath the whole of
my estate to her.”

Per stirpes clause

This provides that if a beneficiary predeceases the testator, the children of the beneficiary will
take the beneficiary’s share of the estate, the share being divided equally between the
children.

Example:

“I bequeath the whole of my estate in equal shares to my children. If a child of

mine has predeceased me leaving surviving issue, the issue shall stand in the place
of that child and take per stirpes the child’s share of my estate.”

Conclusion
A conclusion to a will is often as follows:

“Signed at … on the … day of … , 20…, in the presence of the undersigned

witnesses, who signed in my presence and in the presence of each other, all being
present at the same time.”
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NOTARIAL BONDS
A notarial bond is a bond hypothecating movable property of a debtor as security for a debt
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and it is registered in the Deeds Registry office by the Registrar of Deeds

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Notarial bonds are defined as a bond attested by a notary public hypothecating movable
property generally or specially, S 2 of the Deeds Registry [Link], it can be deduced from
the above definition that there are two types of notarial bonds, a general notarial bond and a
special notarial bond. A general notarial bond governed by the common law, hypothecates all
the movable property of a debtor while a special notarial bond is registered over specific
movable property of the debtor.

THEIR DISTNCTION WITH MORTGAGE BONDS

Section 2 of the Deeds Registries Act [Chapter 20:05] defines a mortgage bond as a bond
attested by the Registrar of deeds, hypothecating immovable [Link] definitions of a
mortgage bond and a notarial bond were both stated in the case of The Land and Agricultural
Bank of Southern Rhodesia v Jameson 1970(1) RLR 146.

From these definitions appears two differences, the first one is that a mortgage bond
hypothecates only immovable property while a notarial bond hypothecates movable property.
The second difference is that whilst a notary public attests to a notarial bond, mortgage bonds
are attested to by the Registrar of Deeds. The Registrar can still register the notarial deed but
such registration is not the act that renders it effective, it becomes effective after being
attested to by a notary public. A mortgage bond however becomes effective after registration
in the deeds registry.

Mortgage bonds confer real security in the sense that the debtor cannot alienate the property
so hypothecated without the consent of the mortgagee. The notarial bond however does not
preclude the debtor from alienating the property even without the consent of the bondholder. 6
Unlike with the registration of mortgage bonds, the registration on notarial bonds does not
necessarily signify notice to a third party that such property is hypothecated. Thus the
creditor cannot vindicate from a bona fide third party who has acquired the property.

Another difference comes in the particularity levels of the property clause in both documents.
A mortgage bond can only hypothecate a particular immovable property. This means that the
property in the mortgage bond must be specific. On the other hand a notarial bond can be a
general or a special notarial bond. A special bond hypothecates a specific movable property
and a general notarial bond hypothecates all the movable property of the debtor without
particularly describing the property in question.

It must also be noted that the parties to a mortgage bond are called mortgagor and mortgagee
whilst the parties to a notarial bond are called notarial bond holder and drawer. It is also
critical that a mortgage is noted on the hypothecated property’s title deeds in the deeds
registry whereas that is not applicable to notarial deeds.
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CATEGORIES OF NOTARIAL BONDS
Bonds are categorised with reference to the nature of the relevant cause of debt of the
principal debt issuing the bond. The following are the most important notarial bonds

-Collateral notarial bond

- Notarial surety bond

-Notarial covering bond

-Notarial indemnity covering bond

The following provisions under section 55 of DR Act apply to registration of notarial bonds;

(1) Every notarial bond executed before, on or after the 31st December, 1971, shall be
registered in a deeds registry within the period of three months after the date of its execution
or within such extended period as the court may on application allow.

(2) A signed original for filing in the registry as the registry duplicate, together with two
further originals or grosses or copies of the bond certified by a notary public shall be tendered
for registration. The registrar who registers such bond shall transmit to the registrar in charge
of the other deeds registry one such original, grosse or copy of the bond for registration by
him.

RANKING
Priority under a notarial bond to secure the payment of future debts depends on the date of
the registration of the notarial bond,and not on the date upon which the debt comes into
existence.

Notarial bond over movables

Movables may be mortgaged by a notarial bond which must be registered in the
Deeds .Office within 2 months of the date on which the cause of action arose. General bonds
mortgage movables generally and usually refer to all movables. Special bonds relate to
specific assets such as stock in trade.

The owner may sell or deal in the movables bonded and the security is only effective on his
insolvency. Thus, if a debtor were to dispose of the bonded movables prior to insolvency, the
creditor would be unable to rely on his security to recover his debt.

Cessions
A cession of rights, such as rights under an insurance policy, is made by agreement of the
parties and delivery of the document, if any, which records the right.
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Notice should be given to the debtor, e.g. the issuer of the policy, so as to ensure thatpayment
is made direct to the cedent (the creditor).In terms of section 100 of the Insolvency Act an
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effective cession of book debts,excluding those listed in the section (such as a cession on the

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transfer of a business) must be effected by a notarial deed of cession registered in the deeds
office.

Subsections 98(3) and (4) set out the requirements.

The debtor is entitled to raise against the cessionary any defence to the original debt that he
had against the cedent and thus in many cessions the cessionary requires the cedent to give
some form of indemnity to cater for defences to his claim.

SURETY AND INDEMNITY BONDS

Suretyship is a contract in terms of which one person (the surety) agrees with the creditor of
another (the principal debtor) to perform the obligations due to such creditor by the principal
debtor if and in so far as such principal debtor fails to do so. The surety doesn’t replace the
principal debtor and doesn’t join him as co-debtor but that such surety’s obligation arises
only in the event of the principal debtor’s failure to perform. The debtor remains bound to
the creditor for the principal obligation.

Suretyship is not an independent obligation but is always accessory to a principal valid

obligation; the surety’s obligation is accessory to the obligation of the principal debtor. A
surety contract can only exist when the principal obligation is in existence. Though many
suretyship contracts are concluded almost simultaneously with the creation of a principal
obligation, a suretyship contract maybe concluded for an already existing obligation as well
as future obligations yet to be incurred, provided the obligation doesn’t arise until the
principal obligation has come into existence.

In many security documents, the signatory is called upon to renounce various legal benefits
and he is usually required to state that he understands them. Many lawyers themselves do not
know what they mean: the following is a guide.

RENUNCIATION OF EXCEPTION CLAUSES

When the principal debt is due the creditor can approach either the debtor or the surety – it is
not necessary to claim from the debtor before approaching the surety. The surety has
defences available to him should this occur:

Benefit of excussion (beneficiumordinisseuexcussionis) – the surety may demand that the

creditor proceed first with the debtor to obtain the payment, if necessary by execution upon
his assets before turning to the surety for payment of the debt or that portion thereof as
remains unpaid.

Benefit of division (beneficiumdivisionis) – a co surety who is liable in solidum(for the full

amount) has the right to demand from the creditor that the debt be divided among all the co-
sureties in order that he be held liable for his pro rata share only.

Benefit of cession (beneficiumcedendarumactionum) – where there are two or more sureties

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in respect of one obligation. A co-surety who has paid the principal debt in full may demand
that the creditor cede to him all the rights and securities which such creditor has against the
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principal debtor and other sureties.

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Exceptio non causadebiti
This is translated as “no cause for the debt”. The renunciation relieves the lender from having
to prove that there was a just cause for the debt.

Exceptio de errore calculi and revision of accounts

These two exceptions mean much the same thing. They are usually renounced when the
obligation relates to any matter involving calculations. The debtor should satisfy himself that
the amount has been correctly calculated.

Exceptio non numerataepecuniae

A lender is entitled to repayment of a loan only where it has been received by the borrower.
Where the exception is renounced, the onus is on the borrower to show that he did not receive
the money.

Recourse against the principal debtor - an ex lege obligation is imposed upon the principal
debtor to reimburse the surety to the amount of debt he has paid plus loss suffered or
expenses reasonably incurred

Recourse against co-sureties – a surety who has paid the principal debt is ex lege entitled to
claim proportionately from each co surety his share of the debt

NOTARIAL DEBENTURE BONDS

Debentures
Debentures are acknowledgments of debt issued by companies in respect of loans and give no
security in themselves. They are records of the loan. They may be distinguished from shares
in that the company need not earn a profit before payment of interest is made to a debenture
holder. In addition, they do not give debenture holders any voting rights. Debentures may be
issued to individual debenture holders or, where there is a large loan made by many lenders,
in terms of a debenture trust deed. The lenders who have participated in the loan hold
certificates evidencing the amount lent by each, issued in terms of the debenture trust deed
and their rights are protected by the terms of the deed.

LEASES
Regional Town and Country Planning Act [Chapter 29:12] :Rent Regulations SI
626/82 :Rural Land Act [Chapter 20:18] :Stamp Duties Act [Chapter 23:09]

Essentials of a valid lease

In order to create a valid lease there must be two parties. It is not possible for an owner of
property to lease the property to himself. The subject matter of the lease must be certain and
the lessor must agree to part with possession of the property to the lessee.

The rent must be fixed or ascertainable by independent means and must be paid in money or
fruits.

Registration of leases
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Section 65 of the D R Act provides for registration of leases

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(1) Save where provision to the contrary is made in any enactment, any lease or sub-lease of
land and any

cession of such a lease or sub-lease intended or required to be registered in a deeds registry

shall be executed by notarial deed by the lessor and the lessee or by the lessee and the sub-
lessee or by the cedent and the cessionary, as the case may be.

(2) If the land leased or sub-leased is mortgaged or subject to the rights of anyother person, it
shall be necessary for the purposes of registration of the lease or sub-lease or any cession
thereof to produce the consent of the Legal holder thereof.

The parties’ common law obligations

A sound knowledge of the parties’ common law obligations is essential to the drawing of
good leases. The lessor’s common law obligations are as follows.

Lessor’s common law obligations

The lessor must deliver the property to the lessee and guarantee that the lessee will have quiet
enjoyment. If the lessee’s occupation is disturbed, whether due to the lessor’s default or some
external cause, the lessee is entitled to a remission of the rent.

The lessor must maintain the property and guarantee it against defects. Usually a lease
provides that the lessor will be responsible for structural maintenance but that the lessee will
be responsible for all other maintenance. To this end the lessee usually acknowledges at the
commencement of a lease that the property is in good order. Any damage on termination of
the lease can thus be attributed to the actions of the lessee.

The lessor must pay rates and taxes and other similar outgoings on the property. It is usual in
leases to provide that the lessee will be responsible for electricity, water and telephone
charges.

Lessee’s common law obligations

The lessee’s must pay the rent and take proper care of the property. He must use the property
for the purposes let and return it to the lessor in a proper state of repair. The breach of any of
these obligations would entitle the lessor to cancel the lease and to claim damages.

Additional important clauses

There are a number of important other clauses which should be considered when drawing
leases.

Duration

Under common law the parties may agree that the lease continues for a fixed period or is
periodic. This means that it continues from period to period such as month to month until
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terminated by reasonable notice. If there is no agreement as to the period, the lease is a

periodic one, the period being determined by the dates on which rent is due.
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Renewal

Renewal of the lease is usually provided by way of an option to renew.

Deposit

Leases frequently provide for the payment of a deposit. The purpose of this is to protect the
lessor if the lessee should leave the property in a poor state of repair. The lessor may use the
deposit to pay the cost of making good the property. The lessor must return the deposit to the
tenant if no damage has been caused. In times of high interest rates, it should be expressly
stated that no interest will be paid on the deposit.

Use of the premises

It is usual to restrict the use of the premises. The reason is that the lessor wishes toavoid
possible damage being caused by an inappropriate use. In residential leases it is sometimes
provided that the number of persons who may live on the property is limited.

Alteration of the premises

It is extremely important to a lessor that the lessee does not alter the premises. In residential
leases any alterations are generally prohibited. They may be allowed in rural or commercial
leases but provision for removal on termination should be made.

It may also be necessary to deal with the payment of compensation if the alteration is not
removed.

Inspection of the premises

Leases usually provide that a lessor may inspect the premises to satisfy himself that the lessee
is caring for it properly.

Termination

A lease is terminated in the following circumstances.

1. byeffluxion of time.

2. by notice.

Under this point see Parkview Properties (Pvt) Ltd v Chimbwanda1998 (1) ZLR 408
(H) court decided on notice terminating contract of lease — time within which notice must
be received — eviction of tenant — “good and sufficient grounds for” — held that court
required to exercise value judgment — dominant purpose not to let to persons other than
present tenant — eviction lawful

3. by complete destruction of the property.

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4. by mutual agreement of the parties.

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5. by repudiation by either party of the lease.

In Omarshah v Karasa1996 (1) ZLR 584 (H)the court discussed whether landlord may
terminate lease because he requires premises for his own use.

It is essential to include a comprehensive termination clause in any lease agreement.

Ejectment
In Lincoln Court (Pvt) Ltd v Zimbabwe DistanceCorrespondence Education College
(Pvt) Ltd 1990 (1) ZLR 158 (HC) court dealt with ejectment of statutory tenant,particularly
what constitutedgood and sufficient cause— interests of lessee relevant to date ejectment

Damages for holding over and costs

In order to avoid disputes on termination due to the lessee’s breach it is usual to provide that
after cancellation of the lease any amount paid will be treated as damages for holding over.

The lessee may also be made liable for the lessor’s legal costs incurred as a result of the
breach including sales tax on services, legal practitioner/client costs and collection
commission.

Long leases
Any lease of 10 years or for periods including renewal which total 10 years is a long lease. In
order to be effective against the world a long lease must be notarially executed and recorded
in the deeds office.

If a long lease is for a period of 25 years, transfer duty is payable on the value of the lease.
[See Part V section 19 of the Stamp Duties Act [Chapter 23:09].]

Huurgaatvoorkoop

The huurgaatvoorkoop rule provides that if a lessee is in occupation and the propertyis sold,
the new owner is bound by the terms of the lease. Even if the lessee is not in occupation, an
owner who knows of the lease is bound by it

Sub-letting and assignment

Sub-letting is a grant by a lessee of the whole or a portion of his rights under the lease to
another person (the sub-lessee) for rent. A new contract is created between the lessee and the
sub-lessee but at the same time the contract between the lessor and the lessee continues.

An assignment is a transfer by the lessee to a third person of all his rights andobligations
under the lease so that the third person takes his place in the original agreement between the
lessor and the lessee. The consent of the lessor is thus necessary.

A lessor is anxious not to allow sub-letting and assignment and this is usuallyprohibited in a
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lease agreement.
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 Landlord’s hypothec
As soon as the rent is in arrears the lessor obtains a lien or tacit hypothec over the property of
the lessee, any sub-lessee or goods of third persons who knowingly brought them onto the
leased premises. The lien is for the rent owed to the lessor.

RESIDENTIAL LEASE AGREEMENTS

Residential lease agreements may be for houses or flats and the details of the lease will
depend on which type of property is being leased.

Rent Regulations SI 626/82

In drawing leases for residential properties, it is essential to have a good knowledge of the
Rent Regulations. The regulations apply to most leases of dwellings except where the
property is owned by the State or a statutory authority or for a lease of not more than 6
months during the absence of the lessor.

The regulations provide for the control of rent and the various rent boards are given the
power to determine a fair rental. Reference should be made to Part II of the regulations.

In terms of the regulations, the maximum deposit which may be taken from a lessee is an
amount equal to one month’s rent [section 27(1) (b)].

The regulations also provide for restrictions on the eviction of tenants. No order for eviction
may be obtained where the lessee is paying rent within 7 days of due date and complies with
the terms of the lease unless:

1. the lessee is doing or is likely to do material damage to the dwelling or his behaviour
will cause substantial inconvenience to neighbours; or

2. The lessor has given two month’s written notice that the dwelling is required for his
occupation or that of his parent, child or employee; or

3. The lessor has given two month’s written notice that the dwelling is required
forreconstruction or rebuilding.

It is not permissible to refuse to lease a dwelling on the grounds that a child may reside in it
[section 34].

Rent books or cards must be issued to lessees and included in them shall be the information
listed in the First Schedule, e.g. address of dwelling and parties, rent, etc.

LEASE OF RURAL LAND

In addition to the general comments on leases which have already been made, rural leases are
also affected by the provisions of a number of Acts.

Rural Land Act [Chapter 20:18]

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Section 8 of the Rural Land Act provides that rural land may be leased to a singleindividual
or to a corporate body but not to two or more individuals jointly without the written consent
of the Minister to which authority has been delegated.

Section 9 of the Act provides that no owner or occupier of rural land may permit any person
other than an employee to cultivate any portion of the land unless the portion has been clearly
demarcated by permanent cairns, pegs, etc. In addition, the owner or occupier must keep a
register of any such permits and also a register of permits relating to stock belonging to
another person and which he permits to graze on his land.

Regional Town and Country Planning Act [Chapter 29:12]

Section 39 of the Regional Town and Country Planning Act provides that no person may
enter into an agreement for the lease of any portion of any rural property for a period of 10
years or for the lifetime of the lessee without obtaining a permit as provided in section 40 of
the Act.

Land Acquisition Act [Chapter 20:10]

In terms of section 14 of the Land Acquisition Act the owner of any designated land may not
lease his land except with the prior written consent of the Minister of Lands, Agriculture and
Water Development.

Period

The period of the lease in a rural lease is likely to be for at least one growing season and
usually longer. When acting for lessees it is essential to remember that any crops which are
growing at the end of the lease accrue to the owner.

LEASE OF COMMERCIAL PREMISES

Latimer Manley & Associates (Pvt) Ltd vLaverna Investments (Pvt) Ltd 1990 (1) ZLR
200 (HC) dealt with Commercial Premises (Rent) Regulations 1983 s 3 in the interpretation
of “commercial premises”.

Many types of commercial property may be leased. Examples include shops, offices,
factories, warehouses and so on

Commercial Premises (Rent) Regulations SI 676/83

The Commercial Premises (Rent) Regulations apply to the letting of all commercialpremises
save those leased by the State or municipalities.

Part II of the regulations provides that parties may apply to the appropriate rent board for a
determination of a fair rent and this is usually done where the parties are unable to agree on
the rent.
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Section 22 limits the power of a lessor to evict a tenant where the lease has expired, either by
the effluxion of time or as a result of notice when the lessee pays the rent and complies with
other conditions of the lease.

However, if the court is satisfied that the lessor has good grounds for an order of eviction
other than that the lessee does not wish to pay a higher rent or the lessor wishes to lease the
premises to some other person it may grant an eviction order [section 22(2)].

Increases in rent

Commercial leases frequently provide for annual increases in rent. The amount of the
increase may be stated or the previous year’s rent may be increased by a percentage.

Fire insurance and damage by fire

The lessor usually undertakes to insure the building against damage by fire and the lessee
undertakes not to do anything to increase the risk.

If the building is damaged by fire, it is usually provided that the lease will terminate if there
is total destruction but that in the case of partial destruction there will be an abatement of the
rent while the building is being repaired.

Fixtures and fittings

As the leased premises are to be used for commercial purposes, the lessee is usually permitted
to install fixtures and fittings though he must remove them on termination of the lease and
make good any damage.

Additional clauses

Butterworths’ Encyclopaedia of Forms and Precedents on letting and hiring have good
examples of various types of leases.

1. Where lift services or air conditioning is suspended there is usually a provision that there
will be no reduction of the rent or claim for loss by the lessee.

2. Particularly in multi-story buildings, there is frequently a provision that no heavy articles

will be permitted on the premises. The reason is to limit possible damage to the building.

3. There may be provisions relating to the supply of water and electricity. In times of
shortages, these become more important.

4. Sometimes, it is expressly stated that the lessee will be responsible for the payment of
telephone charges.

5. Where the lessor wishes to ensure that the appearance of the building is of a high standard,
he may impose conditions relating to the display of the lessee’s name and the need to keep
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the premises open during normal business hours. He may also prescribe minimum standards
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to be maintained relating to the cleanliness of the [Link]

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Eviction
In the case of Delco (Pvt) Ltd v Old Mutual Properties (Pvt) Ltd &Anor 1998 (2)
ZLR 130 (S) eviction provisions under Commercial Premises (Rent) Regulations 1983 — s
22(2) — held lessor to have “good and sufficient” for seeking recovery of premises —
meaning of term.

ANTENUPTIAL CONTRACTS
An antenuptial contract is defined as a written contract execute and attested by a [Link]
such a contract two parties who are by law competent to enter into a marriage or a civil union
and who have the intention to enter into a marriage with each other, regulate the matrimonial
property dispensation of the proposed marriage or union, with the main aim of including the
community of property and the community of profits and losses in the proposed marriage or
union.

Given the scope of such contracts it is imperative to discuss the types of marriages in
Zimbabwe.

TYPES OF MARRIAGE IN ZIMBABWE

 Monogamous marriage under the Marriage Act Chapter 5: 11

 Potentially polygnous marriage under the Customary Marriages Act Chapter 5: 07
 Unregistered customary law union

MARRIAGE ACT
 All Zimbabweans competent to marry under this marriage.
 Governed by General Law. Proprietary consequences for Africans used to be
governed by customary law by virtue of section 13 of the Customary marriages act
which has since been repealed by Act 6/97

MARRIAGES ACT

 Marriage can only be between Africans - see definition section

 Governed by customary law unless there are compelling reasons to the contrary
 Potentially polygynous marriage

UNREGISTERED CUSTOMARY LAW UNION

 Invalid marriage except for certain limited purposes. Meets all requirements of an
African marriage except registration - Section 3 ( 1 ) of the customary marriages act
 Valid for the purposes of guardianship, status of children, custody, inheritance under
customary law - Section 3 (5) Customary marriages act. Children born under this
union enjoy the same rights as children born under registered customary law
marriage. For purposes of customary law such children presumed to be legitimate and
falling under the guardianship of their father.
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It would appear that immovable property rights of spouses married under customary law
would be determined as if no marriage took place. Not competent to enter into an ante nuptial
contract since marriage potentially polygynous.

Up to 1929, proprietary consequences governed by Roman Dutch law principles which

stated that all marriages were automatically in community of property unless parties at the
time of the marriage entered into an ante nuptial contract providing that the marriage was out
of community of property.

Position was reversed in 1929 by the Married Persons property Act of 1929 which
provided that all marriages are automatically out of community of property unless parties
enter into an ante nuptial contract creating community of property.( CONTRAST WITH THE
SA POTION WHICH IS THE OPPOSITE).The South African position presumes all
marriages to be in community.

MARRIAGE OUT OF COMMUNITY OF PROPERTY

 Arises automatically when the spouses are non Africans and there is no ante nuptial
contract
 Seems that now because of the repealing of section 13 of the Customary Marriages
Act, this now applies also to Africans married under general law as far as movable
property is concerned.
 Each spouse retains his /her property that they brought into the marriage and the
property they each acquired during the marriage.
 Wife is not under the control of her husband. She can enter into contracts, sell her
own property, enter into partnerships and go to court without her husband's help.
 At dissolution of marriage by death or divorce, each spouse retains his or her own
property and court has no power to interfere and alter or adjust the property rights of
spouse using the fairness or equity and justice principle
 An imprudent spouse is prevented from ruining his/her spouse because there is no
community of debts. In reality however most spouses merge their property and
allocate each other responsibilities in running the household. One spouse may be
allocated the responsibility of buying durable goods for example so that it becomes a
legal fiction at the end of the day for each to walk away with what they brought into
the marriage.
 Some wives stay at home and take care of the family. This role is then considered
unimportant in the out of community realm because their domestic contribution is not
taken into account. There is therefore no equity there.

Matrimonial property rights of spouses are governed by the law of the country where husband
is domiciled at the time of marriage except in cases where there is an ante nuptial contract.

The antenuptial contract has to be registered in the Deeds office to be enforceable against
third [Link] ANTENUPTIAL CONTRACTS ACT [CHAPTER5:01]

S 3 No antenuptial contract valid unless registered and copies filed in Deeds Registry
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(1) No antenuptial contract executed after the 10th June, 1891, shall be valid as against
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any creditor of either of the spouses unless the same is registered in the Deeds

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 Registry in conformity with established law and custom and unless a signed original
of the contract for filing in the Deeds Registry as the registry duplicate together with
two further originals or grosses or copies thereof certified by a notary public are
lodged with the Registrar of Deeds.

For an antenuptial contract to be valid it must be prepared by a notary public See s6

S6; No contract except notarial contracts to be registered unless executed beyond

Zimbabwe
(1) No antenuptial contract executed in Zimbabwe shall be capable of being registered
in Zimbabwe unless ithad been executed before a notary public.

MINING CONTRACTS AND NOTARIAL HYPOTHECATIONS

Legislation
Deeds Registries Act[Chapter 20:05]Mines And Minerals Act[Chapter 21:05]

MINING CONTRACTS
Elliot, in his book South African Notary defines a mining contract as a notarial deed
whereby the holder of a mining title over base metals, precious metals or natural oil grants
rights to another party over that title.

The Mines and Minerals Actdefines a mineral as “any substance occurring naturally in or
on the earth, which has been formed by or subject to a geological process”. Mining is the
process of extracting of those substances from the earth. A mining contract is thus at first
glance an agreement entered into by parties in relation to the extraction of substances
naturally in or on the earth that have been formed by or subject to geological processes.

There is however an important distinction between mining contracts and ordinary commercial
contracts which is of great significance to the notary public. This difference is that most
mining contracts are required to be prepared by a notary public,as appears from Elliot’s
definition above.

In Zimbabwe, the issue of the agreement being notarially executed is a statutory requirement
for the registration of a mining contract by the Mining Commissioner in terms of the Mines
and Minerals Act. A good example of this requirement is found in S275 of the Act which
states that for any application for registration of transfer of a mining location by the Mining
Commissioner must be accompanied by “a duplicate original, grosse or notarially certified
copy of any and every existing agreement affecting or bearing upon the sale, alienation,
exchange or transfer”S275(6) c. The absence of these notarially executed documents is fatal
to any application forthe registration of a right over a mining location or the subsequent
transfer in full or in part of those rights. Contracts not notarially executed would fall into the
category of underhand documents and only create personal rights between the parties.
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Mining contracts are concerned with rights over mining locations, which are defined in the
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Mines and Minerals Act as “a definved area of ground in respect to which mining rights or

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rights in connection with mining have been acquired under this Act or were acquired under
any previous law relating to mines and minerals” S5. Various types of mining contracts exist,
the most common being prospecting contracts, mining leases, options and tribute agreements.

OPTIONS AND TRIBUTE AGREEMENTS RELATING TO MINING LOCATIONS

An option is an offer to sell which remains open during a stipulated period and if it accepted
at any time before the expiration of that period a binding contract comes into existence
between the parties see VanPlasten V Henning 1913AD 82 at [Link] case and subsequent
case law have established the position that an option is a separate contract between the option
grantor and the option holder to keep the option contract open for a particular time interval in
which it must be accepted.. In Hersch v Nel1947(3)SA 695 , the court stated that an option is
an agreement between the giver and the holder of the option by which the giver has bound
himself to sell a certain thing to the holder at the option if the holder should require him to do
so within the time fixed by the option. The giver grants and the holder acquires the right to
buy.

In the realm of mining, options are most prevalent in prospecting contracts. Prospecting
refers to the searching of an area for mineral deposits which are then analysed to determine
whether sufficient quantities are present to warrant mining operations and the most
appropriate method of extraction. A prospecting contract would thus be a contract whereby
one party grants another the right to search for and analyse mineral samples in an area over
which the former has mining title.

In these prospecting contracts, the options that can be included are;

An option to purchase the land including any of the mineral rights;

An option to acquire the minerals;

An option to obtain lease of the mineral rights

As a mining option is a mining contract, the requirement of registration that applies to mining
contracts generally is applicable. Notarially executed options are registerable with the
Registrar of Deeds in terms of s56 of the Deeds Registries Act. Prospecting contracts in
which option contracts are present can also be registered. This is in terms of s278 of the
Mines and Minerals Act. Where an option has been registered in relation to a mining
location, such registration precludes any transfer or abandonment of the mining location as a
whole or part thereof,seeS279 Mines and minerals Act.

Aside from this, the general rules of contract governing option contracts apply. It must be
clear in its language and be a complete contract in itself.

Tribute Agreements
The Mines And Minerals Act defines a tribute agreement as “any agreement or arrangement
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entered into after the 1st July, 1947, whereunder any person has given a tribute, licence,
concession, authority or other right to mine a mining location to a tributor, and includes any
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such agreement or arrangement which was entered into before the 1st July, 1947, and which is

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renewed after such date, and any agreement to alter the terms of a tribute agreement which
has been approved by the Board(Mining Affairs Board) and any agreement to alter the terms
of a tribute agreement which has been approved by the Board and any renewal of a tribute
which has been approved by the Board. S 283 Mines and Minerals Act”

This is in addition to what is provided for in s280 which describes a tribute agreement as an
agreement where a “holder of a registered mining location has agreed in writing to grant a
tribute or any other limited right to work such mining location to any other person”.S280
Mines and minerals Act.

What this means is that a tribute agreement is a contract whereby the owner of land over
which certain mineral rights are vested grants another person the right to enter upon his land
to prospect, mine and remove minerals from the land for his own benefit. This right is granted
for a limited period in return for a consideration to the owner of the rights. This consideration
can be in the form of a lump sum or periodical payments or commission based on output .
See [Link] [Link]

In Durma (Private) Limited v Siziba1996 (2) ZLR 636 Ebrahim J noted that the statutory
definition of a tribute agreement does little to elucidate the nature of a tribute agreement and
it becomes necessary to look at common law. The court in this case made a number of
findings on the nature of a tribute agreement:

In a tribute agreement mineral rights are let by one party(the grantor) to another(the tributor);

It is not a lease of land or minerals, but of the incorporeal right to win minerals from the
ground;

A condition is attached to the agreement that the tributor pays a certain proportion of
proceeds to the mine owner.

Tribute agreements are contracts sui generis, not being contracts of sale or contracts of
hire(leases) at common law, though the principles applied in relation to them are not very
different from those applied in more traditional contracts.

The tributor is given the right to mine the land and win from it as much of the minerals
sought as he can during the period of the tribute and to dispose of the minerals so won for his
own profit.

Tribute agreements do not have to be notarially executed unless they are to be registered.
This requirement of notarial execution is found in s280 of the Mines and Minerals Act
which deals with registration of tribute agreements.

Mining hypothecations
Mining hypothecations are mortgage bonds over mining claims and are registered in terms of
section 259 of the Mines and Minerals Act. They are effected by applying to the Mining
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Commissioner for hypothecation of an interest in a mining location. The application must be

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The Secretary for Mines is obliged to keep a register of hypothecations setting out details of
the parties, the mining location, the amount due and any interest payable. The effect of a
hypothecation is that it is a bar to transfer or abandonment of the mining location. However,
it is not a bar to execution or to transfer of the mining location on insolvency.

BILLS OF EXCHANGE AND PROMISSORY NOTES

Types of Instruments

Constituted from theBills of Exchange ActChapter 14. 02

Promissory Note

Promissory note – This is defined by section 89 as “ an unconditional promise in writing

made by one person to another, signed by the maker, engaging to pay on demand or at a fixed
or determinable future time a sum certain in money to or to the order of a specified person or
to bearer.”

An instrument that fails to comply with this definition will not be a promissory note and not
be negotiable free of equities – it may however be seen as evidence of a contract.

In terms of S 89(2) of the Act, a valid note must be indorsed by the maker.
A promissory note remains incomplete until delivery to the payee \ bearer is effected-S 90

Basic Characteristics of a Promissory Note

(i) An unconditional promise
The promise must be unconditional. A distinction must be drawn between a
promise to pay that is conditional upon the performance of an act by the promise,
which is given in consideration of the performance of such an act

(ii) In writing
It is in writing. Important because at the time the promissory note was made there
must have been words spoken between the parties no evidence can be given to
those words where there is a promise in writing

(iii) Signature made by the make

It must be signed by the maker, will be equally binding if its done by his agent

(iv) Intention to pay money

It must be a promise to pay a sum certain in money. The sum payable will be
regarded as sufficiently certain although it is required to be paid with interest or
by stated instalments with or without a provision that upon default in payment of
any instalment the whole shall become due. Where the sum payable is in words
and figures the words prevail in the event of a discrepancy. The inclusion in a
note a pledge, collateral or security with the authority to sell it is permissible
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(v) There should be demand

It must be payable on demand or a determinable future time
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 (vi) Promise made to a specified person \ bearer.
It must be made by one person to another. If there is more than one maker liability
must not be expressed as being alternative or in succession otherwise the
instrument isn’t a note. Reason is that the promise to pay is conditional upon non
payment the other maker or makers. Payment may be promised to more than one
payee. Payee is described as the bearer, this must be done with clarity.

Whenever a Promissory Note is payable on demand and has been endorsed, it must be
presented for payment within a reasonable time of endorsement otherwise the endorser is
discharged (see – sec 90)

NB – Section 90(2) – Test for Reasonable time

- .In terms of sec – 94 the makerof a Promissory note is liable in two respects.
(a) He engages that he will pay it according to its tenor.
(b) The maker is precluded from denying to a holder in due course the existence of the
payee and his then capacity to endorse.
Application for rectification of a promissory note
Rosenfeld v Teakland Sawmills (Pvt) Ltd 1962 R & N 456

Bill of Exchange

Sec 3 (1) a bill of exchange is defined as an unconditional order in writing addressed by one
person to another, signed by the person giving it, requiring the person to whom its addressed
to pay on demand, or at a fixed or determinable future time, a sum certain in money to or to
the order of a specified person or to the bearer.

It differs from a promissory note in that it is not a promise but an order. An imperative order
is required and same essentials as promissory notes. The requirement that the order must be
addressed by one person to another doesn’t prevent the drawer from being the payee to pay
himself but if the drawer and drawee are the same person the holder may treat it either as a
promissory note or a bill of exchange. The main difference between the two is mainly due to
the position of the drawer and drawee of a bill of exchange.

A bill is invalid by reason :

(a) that it is not dated

(b) that it doesn’t specify the value given. See – sec 3(4)

A good example of a bill of exchange is a cheque According to Section 72 a cheque is

defined as a bill of exchange drawn on a banker payable on demand. It is necessary to
distinguish a cheque from the other bills of exchange because it gives special recognition to
the banker who makes it his business to deal in bills, which are to be paid on demand. A
chequebook is issued to a holder of a current account, who deposits money into the bank and
the bank holds the money on behalf of the customer and pays bills on presentation of
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cheques. The duty of the banker is to pay his customer’s cheques but not those that drawn
irregularly. The banker is expected to know the signatures of the customers and bankers who
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in good faith and in the ordinary course of business honours a cheque which unknown to him
was forged is regarded as having paid it in due course. Look at sec 75.

Differences between bills of exchange and promissory notes are:

PROMISORY NOTE BILL OF EXCHANGE

1. It is a promise to pay. It is an order to pay.

2. There are only two parties, the There are three parties, the drawer,
drawer and the payee. the drawee and the payee.
3. There is no necessity for It must be accepted.
acceptance.
4. The maker is primarily liable. The drawer is not primarily liable.
5. It is never drawn in sets. A bill of exchange can be drawn in
sets eg Foreign bills are specially
drawn in sets.
6. Protesting is not necessary after A foreign bill must be protested
dishonour. after dishonour.
7. Noting of dishonour not Notice necessary.
necessary.
8. A promissory note cannot be A bill of exchange can be so drawn
made payable to bearer. provided it is not payable to bearer
on demand.
9. In a promissory note the maker In a bill of exchange the drawer and
cannot pay to himself. the payee may be one person.

Bills and notes are commercial paper and play an important role and, in some respects,
essential role in commercial transactions. They are instruments of payment, credit and
investment

NOTING AND PROTESTING

Noting is whereby the holder of an instrument upon its dishonour by non acceptance or non
payment can cause such dishonour to be noted or recorded by a notary public on the face of
the instrument or on a noting slip (a paper attached to the bill for such purpose). The notary
public does this by making a note on the noting slip of his initials, date and place for noting,
his charges and the reasons for the noting. For the procedure to be valid, notice of dishonour
must be given to the drawer or endorser because if it is not done liability on the instrument
would be discharged. In other words, noting is the making of a minute of the circumstances
of dishonour within the prescribed time limit. The holder after dishonour would take the
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instrument to a notary public who would also present it for acceptance or payment to the
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drawee or endorser. Where the instrument is again dishonoured, the notary public would then
make a noting on it.

On the other hand, protesting is a formal statement in writing made by a notary public under
his hand and official seal at the place of dishonour stating that the referred instrument was
presented to the drawer or endorser but was dishonoured by either non acceptance or non
payment. Tenant’s Notary Manual defines a protest as a formal declaration in writing made
by a notary public at the request of the holder that the instrument has been refused acceptance
or payment and that the holder intends to recover all expenses to which he may be put in
consequence thereof. A protest is a certificate made by the notary public after being presented
with a dishonoured instrument which provides formal proof of the fact and circumstances of
dishonour

The procedures of noting and protesting are a result of dishonour of a negotiable instrument.
An instrument is dishonoured by non acceptance or non payment upon presentment to the
drawee or endorser. Presentment is a pre condition to the liability of a drawee or endorser
which then leads to noting and protest. An instrument is said to be dishonoured by non
payment when it is duly presented for payment and such payment is refused or non
obtainable whereas non acceptance is whereby the drawee or endorser refuses to accept or
acknowledge the instrument. When this happens, the holder then acquires the right of
recourse against the drawer or endorser. To render this right effective, the holder is required
to perform certain statutory duties which are noting and protesting. These are procedures by
which a notary public provides formal evidence of the dishonour of a negotiable instrument.

There are basically two reasons for the noting procedure to be done. Firstly, it is to secure
liability of the drawer or endorser on the instrument. It is a condition stated in s47 of the Bills
of Exchange Act [Chapter 14:02] that failure to give notice of dishonour would discharge the
drawer or endorser from liability on the instrument. Secondly, it is to alert prior parties to the
instrument so that they can take nece4ssary steps pursuant to their rights of recourse against
parties prior to them. Noting must be done within a reasonable time after the dishonour but it
must not be noted not later than the next succeeding business day 7. For the notice to be valid,
it must satisfy the requirements laid down in s48 of the Act. Notice may be dispensed with
where there is waiver or where it is reasonable impossible for it to be given See S49(2) of the
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Act
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A protest must be effected at the place of dishonour not later than the next business day after
the day on which it was dishonoured. It is a procedure which is done to prevent the release
fromliability of the drawer or endorser. All the other requirements for validity applicable to
the notice apply mutatis mutandis to a protest. Thus it was held in the case of Factory
Investments (Pty) Ltd v Record Industries Ltd 8 that waiver of notice of dishonour not only
dispenses with the necessity for such notice to bind the endorser but also to dispenses with
the necessity for protest to bind such endorser. When bringing an action upon a dishonoured
instrument, proof of noting and protest will be sufficient evidence against the drawer or
endorser. Usually, it is mandatory for foreign bills to be protested but it is not considered
absolutely necessary for inland bills to be protested in order to sustain an action.

PROTOCOL NO………………/2020

Notarial Deed

(Pursuant to the provisions of Section 27 of the Deeds Registries Act Chapter 20:05) as
amended

KNOWN ALL MEN WHOM IT MAY CONCERN

THAT on this day of March in the year of our Lord Two Thousand and Twenty
(2020), before me,

JONATHAN TAWONA TSVANGIRAI

of Bulawayo Zimbabwe Legal Practitioner and Notary Public, by lawful authority admitted
and sworn, and in the presence of the subscribing witnesses, personally came and appeared:

2/xxxxxxxxxx….

-2-

xxxxxxxxxxxxxxxxxx

(Born on xxxxxxxxxxxxxxx)

I.D. No. xxxxxxxxxxxxxxxxxxxx

and
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8
Page

54 | P a g e
 xxxxxxxxxxxxxxxxxxxxxxxxxx

(Born on xxxxxxxxxxxxxxxxxxxx)

I.D. No. xxxxxxxxxxxxxxxxxxxxxxxxxxxx

(hereinafter referred to as “the Appearers”)

AND THE APPEARERS DECLARED THAT:

WHEREAS his Principals are the registered owners of certain piece of land situate in the
District of Bulawayo being xxxxxxxxxxxxxxxxxxxxxxxxxxxx measuring
xxxxxxxxxxxxxxhectares held under Deed of Transfer No. xxxxxxx dated
xxxxxxxxxxxxxxxxxx, together with the buildings and erections thereon, consisting of 5
residential Unit Shares commonly referred to as “xxxxxxxxxxxxxxxxxxxxxx and
xxxxxxxxxxxxxxxxxxxxx” as will more fully appear from the Survey Diagram Plan No.
BCG xxxxxxxxxxxxxxx, Survey prepared by the Land Surveyor xxxxxxxxxxxxxxxxxxxxx.
(hereinafter referred to as “the property”)

AND WHEREAS, pursuant to the provisions of Section 27 of the Deeds Registries Act
(Chapter 20:05) as amended, his Principal wish to create undivided shares in the property, to
each of which shall be coupled an exclusive right of occupation of the building representative
of such share, and to hold or sell and transfer such undivided share to each persons as may
wish to purchase the same;

NOW/….

-3-

NOW THEREFORE, IN THE PURSUANCE OF THE PROVISIONS OF SECTION 27

OF THE DEEDS REGISTRIES ACT (CHAPTER 20:05) AS AMENDED, THE SAID
APPEARERS DECLARED THAT THE FOLLOWING TERMS AND CONDITIONS
SHALL APPLY TO THE PROPERTY:-

1. DEFINITION

The following words shall have the following meanings assigned to them for the
55

purposes of this Notarial Deed:

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55 | P a g e
1.1 “Common Property” shall include any portion of land and buildings-shares described
in paragraph 3 hereinafter.
1.2 “Owner” shall mean the person in whose name the undivided share is registered in
the Deeds Registry; provided, however, that where the undivided share has been sold
in terms of a written contract which has been endorsed against the title deed of the
undivided share in the property in terms of the Deeds Registries Act, Chapter 20:05,
then the owner shall be deemed to be the Purchaser thereof to the exclusion of the
registered owner.
1.3 “Person”shall include a natural person or juristic person, a partnership, company,
universitas or any other sui-generis legal entity.
1.4 “Property” shall mean xxxxxxxxxxxxxxxxxxxxxxxxxxmeasuringxxxxxxxxxxxxxx
hectares situate in the District of Bulawayo
1.5 Words in the Singular shall include the plural, and words in the plural shall include
the singular.
2. CREATION OF SHARES

Five undivided shares in the property are hereby created, and each being numbered
consecutively from 1 to 5 for purposes of identification with each number to be
recorded on the title deed to be issued to each owner of an undivided share as
aforesaid, and each share shall have the exclusive right of occupation hereinafter
referred to, and the right to the use and enjoyment of the common property
hereinbefore defined.

4/3/IDENTIFICATION….

-4-

3. IDENTIFICATION OF SHARES

The undivided shares hereby created shall be identified by the numbers hereinafter set
out, and the exclusive right of occupation hereinafter provided for shall correspond
and refer to the building share and, where applicable, the land share set out opposite
the number of each share, and the extent or percentage of the whole property
represented by each share shall be as set out opposite the number thereof, namely:
56

LAND SHARE NO. AREA SHARE PERCENTAGE (%)

(Square Metres)
Page

1 6 196 66.0695

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 2 794 8.4666
3 622 6.6326
4 654 6.9738
5 1 112 11.8575
TOTAL 9 378 100%

4. RIGHTS

The ownership of an undivided share in the property shall confer upon the registered
owner thereof and his successors in title the following rights, subject however to the
provisions of this Notarial Deed and the annexure hereto that it is to say:-

4.1 The exclusive right of occupation to the building on the property which bears
the number of the undivided share and to the land shares as set out in
paragraph 3 hereof. As depicted on survey Plan No. BCG 1141.

4.2 A general right in common with the owners of the undivided shares in the
property to the use and enjoyment of that portion of the property not falling
within land and buildings as shares described in paragraph 3 (Hereinafter
referred to as “Common property” and to the common use of the common
property as herein before defined.

5/As…..

-5-

As will more fully appear from the building location diagram and building share plan
prepared by Land Surveyor .xxxxxxxxxxxxx. Ref: Plan No. BCG
xxxxxxxxxxxx(each of which is hereinafter referred to as “the undivided share”).

5. LIMITATION OF RIGHTS

Notwithstanding the foregoing, the exclusive right of occupation conferred upon the
registered owner of an undivided share shall be limited by and subject to rights in
favour of the owner of the undivided share of the property to:-
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 5.1 make use of the provision for common services cover, under or through the
building and/or land share in respect of which such exclusive right is
conferred, the passage or provision of water, sewerage, drainage, electricity,
gas garbage and other common services, including telephone, wireless and
television services through or by means of any pipes, wires cables or ducts
existing on or under the land or in the building, to the extent to which they are
capable of so being used.

5.2 have reasonable access to the building concerned to the extent necessary in
order to maintain, repair or renew any part of the building or any pipes, wires,
cables or ducts therein or thereunder or thereover; Provided, however that such
rights shall be exercised reasonably and at reasonable times.

6. MANAGEMENT

That the reciprocal rights and obligations of the owners of the undivided shares in the
property, hereby created, between themselves shall be as set out in this Deed and the
Occupation Agreement hereto annexed marked “Annexure B” which shall be
deemed to be incorporated herein as part of this Deed.

6/7/LIABILITY….

-6-

7. LIABILITY FOR EXPENSES AND CHARGES

All rates, taxes, imports, levies and other charges levied against the property by any
authority, and all expenses incurred in the management, maintenance, preservation,
repair, renovation, decoration up keep, insurance, provisions of common services and
amenities or in respect of any other matter or things relating to the property and
improvements thereon shall be paid in accordance with the occupation Agreement
hereto annexed.

8. RIGHT TO DEAL WITH UNDIVIDED SHARE

Subject to the provision and stipulations contained or referred to in this Deed and/or
58

annexure hereto, the registered owner of an undivided share in the property shall have
Page

the unfettered right to sell, donate transfer, let mortgage or otherwise deal with his

58 | P a g e
 undivided share of the property, coupled with exclusive right of occupation of the
dwelling attaching thereto.

9. OBLIGATIONS ON OWNER OF AN UNDIVIDED SHARE

For as long as a person remains the owner of an undivided share in the property, he
shall:-

9.1 Ensure that any invitee, tenant, visitor or person to whom he may grant the
right or privilege of entry or use or occupation or possession of the building or
such share shall observe and comply with all the applicable and relevant
provisions of this Deed and Annexure relating to the property or building.

9.2 Not cede, assign, transfer or make over such share or part thereof or any right,
title or interest therein, without bringing this Deed and its Annexure to the
attention of any prospective acquirers of such undivided share and impress
upon them specifically that any new owner thereof shall be bound by the
provisions of this Deed annexed relating to the property, or building.

7/10/SECTION…

-7-

10. SECTION 64 OF THE DEEDS REGISTRIES ACT, CHAPTER 20:05

That where an undivided share is sold in terms of a written contract endorsed on the
Title Deed of this share or of the property under the provisions of Section 64 of the
Deeds Act, Chapter 20:05, then in Deed and its annexures the word “owner” and
“ownership” shall in relation to that undivided share and to exclusion of the registered
owner thereof and his rights and obligations be taken to refer to the Purchaser of the
undivided share under such contract and his rights and obligations.

11. AMENDMENT

This Notarial Deed may only be varied or amended by a further Notarial Deed or
Deeds, provided that;
59

12.1 the consent of the owners of all undivided shares has been and obtained.
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59 | P a g e
 12.2 any such variation or amendment shall be of no force or effect, until it has
been registered in the Deeds Registry;

12.3 no amendment the effect of which would be to alter the number of undivided
shares in the land concerned which are coupled with an exclusive right of
occupation shall be of any force or effect unless the Director of Physical
Planning has approved the alteration in this number of such shares.

XXXXXXXXXXX/…

-8-

XXXXXXXXXXXXXX and XXXXXXXXXXXXXXXXX

OCCUPATION AGREEMENT

INTERPRETATION

In this document unless the context indicates otherwise:-

a) words defined in the Notarial Deed to which this document is an annexure shall bear
the meaning therein defined;

b) words importing the masculine gender include females;

c) words in the singular include the plural and words in the plural include the singular.

1. RIGHTS, DUTIES AND OBLIGATIONS OF THE OWNERS

The following rights, duties and obligations shall attach to and be exercised and discharged
by the owner of each undivided share, either individually or together, as appropriate, in
relation to the property and the buildings thereon.

1.1 It shall only use the undivided share for such purposes as the City of
Bulawayo may in its absolute discretion permit.
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60 | P a g e
 1.2 From time to time and all times well and substantially to maintain, repair,
decorate to print, clean and keep in good and substantial repair and condition
the interior and exterior of the building on its undivided share and make good
any structural defects, damage, wear and tear or failure which may occur in
the building, roof, and ceiling, of that portion which forms part of its
individual share and the drainage, sewerage and electrical and water systems
therein. In the event that any repairs are
required to wall which is common to two undivided shares as to that portion of
the roof which is above a common wall and in consequence

9/there…

-9-

there is a dispute between two or more owners as to which of them is for

such repairs, then such dispute shall be resolved by a referee in accordance

with the provisions of paragraph 2 thereof.

1.3 Provide a satisfactory water and electricity supply and refuse removal or
disposal system for its own undivided share and pay for any deposits,
connection fees and all other charges levied from time to time for supply of
electricity, water and telephone to its own undivided share.

1.4 To pay and discharge all rates, taxes and other charges levied or which may
from time to time be levied by the City of Bulawayo in respect of the property,
and until such time as such levies are raised separately for each undivided
share the liability of the owners in this regard shall be in the percentages set
out in paragraph 3 of the Notarial Deed.

1.5 Each owner shall ensure that it shall comply with the conditions, limitations or
stipulations imposed by the local authority having jurisdiction in so far as
these relate to the use which the undivided share may be put.
61

1.6 It shall not contravene or permit the contravention or any of the conditions of
Page

title under which share is held or any of provisions of the town planning

61 | P a g e
 scheme applicable to the property and do or permit to be done on the property
anything which may be or cause a nuisance or disturbance, or cause damage to
the other owner of occupiers of the buildings of the neighboring premises.

1.7 At all times to observe and comply in all respects with the provisions and
requirements of any and every enactment (which expression includes any and
every Act of Parliament, statute, ordinance Municipal Bye-Law, rules order
and other regulations already or to be hereafter passed) and every
10/lawful…
-10-
lawful directive or order made by any Government, Department or Local
Authority or other public and/or competent authority so far as they relate to or
effect the property, or thereof.

1.8 The owners of the undivided shares shall insure and keep insured the buildings
on the property against risk or destruction or damage by fire, lightning,
explosion earthquake, storm tempest, flood and such other perils as are
normally covered by such insurance for replacement cost thereof or for such
other amount as the owners may deem necessary or desirable and the liability
for the premiums in respect thereof shall be borne by the owners in the
percentages set out in paragraph 3 of the Notarial Deed and shall be paid
timeously. In the event that there is a dispute as to the replacement cost or any
other matter pertaining to such insurance, then such disputes shall be resolved
by the referee in accordance with the provisions of paragraph2 hereof. In the
event of damage to the buildings or the destruction thereof, the proceeds from
the insurance Policy shall be unused to restore the buildings as near as
possible to their former state. For the avoidance of all doubt it shall be the
responsibility of each owner of an undivided share to take out and maintain
such insurance cover as it may require against the usual insurable risks in
respect of its own movable property and its own expense. An owner of an
undivided share shall not do or permit or suffer to be done in an upon the
62

buildings or any part thereof, any act or thing,which may render the owners
liable to pay in respect of the buildings or any part thereof more than the
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62 | P a g e
 ordinary or present rate or premium for insurance against the risks herein
before described which may render void or voidable any policy or such
insurance against the risks herein before described which may render void or
avoidable any policy or such insurance.

11/1.9/Ensure….

-11-

1.9 Ensure that any occupier, tenant, visitor, invitee or person to whom it may
grant the right or privilege of entry to or use or occupation or possession of the
undivided share shall observe and comply with all the applicable and relevant
terms and conditions of the Notarial Deed and this Occupational Agreement.

1.10 Ensure that any Agreement of Lease which such owner may enter with a
Lessee in terms of which the Lessee is granted the right to occupy such
undivided share shall provide, inter alia:-

1.11 That the Lessee shall at all times comply with the provisions of the Notarial
Deed and of this Occupational Agreement and that should he/she fail to do so
then the owner shall have the right to cancel the lease forthwith.

1.12 That the Lessee is familiar with provisions of the Notarial Deed and of this
occupation agreement and that he shall be subject to the applicable provisions
thereof and the consequences and terms thereof should he fail to comply
therewith in accordance with paragraph 1.9 hereof.

1.13 Not to do, permit or suffer to be done in or upon its undivided share any act or
thing which shall or may cause loss or damage or be or become a nuisance,
annoyance or inconvenience to the other owner or occupier of the neighboring
premises, not permit any sale by public or auction any public meeting to be
held thereon.
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63 | P a g e
 1.14 To carry out in the building on its undivided share any alterations, additions or
improvements which in its opinion may be necessary or desirable to suit its
own requirements or desires provided that in doing so it may not alter or add
to any load bearing part of the building without the consent of any owner of an
undivided share who has a common wall who may not withhold such consent
unreasonably.
12/1.15/The…
-12-
1.15 The owners of shares least common property shall jointly be responsible for
the fulfilment of the obligations of the owners as set out in this Occupation
Agreement in so far as they relate to the common property and any attendant
costs shall be shared by them in proportion to the percentages set out in
paragraph 3 of the Notarial Deed.
2. RELIEF

If at any time any difference or dispute arises between the owners of the undivided
shares as to which of them is responsible for the repair and maintenance of any wall
that is common to their undivided shares or the amount of the rates, taxes and any
other charges levied in respect of each undivided shares or as to any other matter
which is not dealt with in this Occupation Agreement then such difference or dispute
shall be referred to be the agreed upon between them and failing such agreement then
to a referee.

THUS DONE AND EXECUTED AT BULAWAYO, on the day, month and year first
aforementioned and in the presence of the undersigned witnesses and of the Legal
Practitioner and Notary Public.

………………………………

QUOD ATTESTOR

……………………………………………

QUOD ATTESTOR
64

AS WITNESSES
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1…………………………………………

64 | P a g e
2…………………………………………

………………………………………………

NOTARY PUBLIC

PROTOCOL NO. 1/20

NYANDORO EDUCATIONAL TRUST

NOTARIAL DEED OF TRUST

KNOW ALL MEN WHOM IT MAY CONCERN:

That on the 23rd day of July Two Thousand and Twenty-One, before me,

CLAUDIOUS MACHEKA

Notary Public, by lawful authority duly sworn and admitted, residing and practicing at
Harare, Zimbabwe personally came and appeared: -

Mercyline/…

TakudzwaNyandoro
(Born on 17 December 2000)
I.D No. 75-7473251 E 50.
of No. 23 Durant Drive, Borrowdale Brooke, Harare
she being duly authorized to represent
MercylineNyandoro
(hereinafter referred to as the “Founder Member”)
(Born on 10 December 1973)
I.D. No 29-3305059 Z 10.
Of No. 44 Clare Road, London
under a Special Power of Attorney dated the
___________ day of _____________,
65

a signed copy of this is hereto annexed

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and

65 | P a g e
 Merline Nyandoro
(Born on 5 June 1975)
I.D. No 60-299292-Q 40.
Of No 2020 Waterfalls, Harare
and
Mercy Nyandoro
(Born on 6 January 1979)
I.D. No 29-398978 A 20.
Of No 19787 Greendale, Harare

and
Merdeline Nyandoro
(Born on 3 February 1984)
I.D. No 43-354546 R 35
Of No 23636 Eastlea, Harare
(hereinafter referred to as the “Trustees”)

And/….
AND THE APPEARER DECLARED THAT:

WHEREAS the Founder Member is desirous of creating a Trust for the purpose of carrying
out the objects set out in below;

AND WHEREAS the Founder Member and the Trustees are prepared to act as Trustees for
the Trust in order to fulfill the objectives hereinafter set out;

NOW THEREFORE the Appearers articulate as follows;

1. DONATION, CREATION AND NAME OF TRUST

66
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66 | P a g e
 a. The founder member hereby donates to the Trust the sum of US$20 000.00 (Twenty
thousand United States Dollars) which is accepted by the Trustees for the purposes
of establishing the Trust.

b. The Trust hereby created shall;

i) Be called the NYANDORO EDUCATIONAL TRUST (hereinafter referred to

as “The Trust”

ii) Be subject to the Laws of Zimbabwe.

2. DEFINITIONS
In this Deed;
a) Unless the context otherwise indicates

i)Words/…
i) Words importing the singular shall include the plural

ii) Words importing the masculine gender shall include the feminine gender and vice
versa.
3. PURPOSES AND OBJECTS

The purposes and objects of the Trust shall be;

a) To establish, encourage, support, maintain, expand, develop and improve any

initiatives that secure the physical, financial and educational needs of female students
enrolled at CHEBUND HIGH SCHOOL (“the school”)
b) To benefit all female students at Chebund High School with school fees, uniforms and
all ancillary costs.

4. TRUSTEES
67

a) All Zimbabweans and or others are eligible for membership.

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67 | P a g e
 b) The Trust shall be administered by Trustees consisting of not more than twelve and
not less than two Trustees including the Founder Member (hereinafter referred to as
“the Trustees”)
5. CONDITIONS OF APPOINTMENT

The Trustees are hereby appointed subject to the following terms and conditions

a) The Trustees shall be of integrity and capable of contributing towards the objectives
of the Trust either professionally or by physical participation,

b)The/…

b) The Trustees shall hold ordinary meetings quarterly to discuss and take action on
various projects undertaken by the school which will be of benefit to its female
students,
c) The Trustees shall form a disciplinary committee that will maintain discipline and
respect amongst female students at the school, in so far as the objectives of the Trust
are concerned
d) The first Trustees shall be the Appearers who have been appointed as such,
e) The Trustees shall appoint a Chairperson, Executive Secretary and a treasurer,
f) Trustees shall be in office for five (5) years and are eligible for re-appointment,
g) The Trustees shall have the power to do all things appertaining, conducive or
incidental to the objectives of the Trust and, without prejudice to the generality of the
foregoing, the Trustees shall have power to,
h) accept and apply for the purposes of the Trust any donation or bequest of money or
property in accordance with the terms of such donation or bequest provided that such
are in conformity with the purposes of theTrust,
i) To purchase, take lease, or otherwise acquire any property or rights whatsoever,
whether movable or immovable, for cash or on credit, or partly in one way and partly
in the other;
j) receive donor funding and support for the Trust, to open accounts in the name of the
Trust at any bank, building society, post office savings bank and to operate the same
through the agency of the Trust as the Trustees may from time to time determine,
k) to borrow money from commercial Banks, Building Society’s or other financial
68

institutions, if the need arises and to mortgage, pledge or to encumber property of the
Trust to secure such loans;
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68 | P a g e
 l) to invest any monies of the Trust in such investments and securities as the Trustees
may choose and to receive, hold and disburse the funds of the Trust for the fulfillment
of the purposes of the Trust
m) to ask, demand, sue for and recover all debts, goods and effects whatsoever due and
belonging to the trust, to discharge, compromise and settle all claims matters in
dispute relating to the Trust and submit the same to arbitration, to commence,
prosecute, defend and oppose any action or other proceedings at law relating to the
Trust in any court of law,

n) to/….
n) to appoint or employ any officer or staff which the Trustees may consider necessary
for the carrying out of the purposes of the Trust, to assign and regulate their duties, to
pay them suitable remuneration and to dismiss them when appropriate,
o) No remuneration whatsoever, other than necessary out of pocket expenses, shall
be payable to the Trustees for their services in terms hereof which services
shall be regarded as charitable services on the part of the Trustees.

6. GENERAL POWERS OF TRUSTEES

a) to consult and appoint and to remove Legal Practitioners, Accountants and/or
agents;
b) to institute and defend proceedings at law and to proceed to the final
end and determination thereof;
c) to do all such things and to assign, execute and to deliver all such
deeds, documents and papers as may be requisite in the premises or as may
be necessary or incidental to the due administration and control of the Trust Fund;

7. PROCEEDINGS OF TRUSTEES

a) Subject to clause 4b), the Trustees shall have power at any time and from time
to time to appoint such other persons to the office of Trustee as they may think
fit.
b) The Trustees shall meet together for the dispatch of business, adjourn and
69

otherwise regulate their meeting as they see fit.

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69 | P a g e
 c) A quorum at any meeting shall consist of three Trustees being present. The
Chairman or, in his/her absence, the Executive Secretary (see clause 5 e), shall
preside at all meetings of the Trustees. Questions arising at any meeting shall be
decided by majority of votes and in the event of equality of votes the Chairman
or Executor Secretary, as the case may be, shall have a second or casting vote.
If at any meeting neither the Chairman nor the Executive Secretary is present,
the Trustees present shall choose one of those present to be the Chairman of the
meeting.
d) Reasonable notice of any meeting of the Trustees shall be given to each Trustee
and any Trustee may request such a meeting.

e ) In/…
e) In the event that the number of the Trustees is reduced to below two (2), the
remaining Trustee may act for the purposes of appointing a new Trustee or
winding up the Trust Fund in accordance with the provisions of this Deed.
f) The Trustees shall keep written minutes of their meetings and all resolutions
passed by the Trustees shall be duly minuted.
8. ACCOUNTING, RECORD AND PROFESSIONAL SERVICE
a) The Trustees shall ensure that a proper set of books are kept, recording the
financial and other affairs of the Trust.
b) The Trustees shall be entitled to engage the services of professional persons in so
far as such services are deemed to be necessary and desirable for the purposes of
the Trust.
c) An annual set of accounts shall be produced and laid before the Trustees for
confirmation in respect of each calendar year during the subsistence if the Trust
which, should the Founder Members so require, shall be audited by an auditor
appointed by the Trustees. The Trustees shall submit a copy of the said annual
accounts each year to the Zimbabwe Revenue Authority for its perusal.
9. REMOVAL OF TRUSTEES
Any one of the Trustees shall ipso facto vacate office if:
a) he is adjudged insolvent or compounds with his creditors;
b) he is convicted anywhere of theft, fraud, forgery, and is sentenced
70

therefore to imprisonment without the option of a fine of any amount;

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 c) if he resigns as Trustee which he is entitled to do by thirty (30) days written notice
to the other Trustees;
d) if he has been declared by a competent Court to be mentally ill or incapable of
managing his own affairs, or if he is by virtue of relevant legislation, detained as a
patient in any institution;
e) if, in terms of the relevant legislation in Zimbabwe in force from time to time he is
disqualified as a Director of a company or as any other public officer thereof
[Link]/….

10. EXEMPTIONS AND INDEMNITY

a) The Trustees shall be exempt from any obligations to furnish any security for the
due administration of the Trust to the Founder Members or to any person, body or
authority whatever who are hereby directed to dispense with such security.
b) In the professed execution of the trust no Trustees shall be liable for a loss to the
trust arising by reason of any investment made in good faith or for the
negligence of any agent employed in good faith by him or any other Trustee.
c) The Trustees shall be indemnified out of the Trust fund against –
d) all claims and demands of whatsoever nature that may be made upon them arising
out of the exercise or purported exercise, in good faith, of any of the powers
hereby conferred upon them.

11. DISPUTE RESOLUTION

In the event that the Trustees are unable for any reason to reach agreement
between themselves on the exercise of their powers, then such agreement shall be
referred toan arbitratorin terms of the Arbitration Act [Cap. 7:15] of Zimbabwe;
whose decision shall be final.

12. AMENDEMENT OF THE TRUST

The Founder Member and not less than two thirds of the remaining Trustees may by
71

mutual agreement from time to time amend this Trust or any or all of the purposes
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for which the funds of the Trust are to be applied and may declare that in lieu thereof

71 | P a g e
 the funds or any part thereof shall be applied to such other purpose or purposes of a
charitable or public nature as the Founder Member and at least two third of the
remaining Trustees shall think proper.

13. DURATION OF TRUST

The Trust shall have perpetual existence but may at any time be wound up or
dissolved on a unanimous Resolution of at least two-thirds of the Trustees, at a meeting
of which personal notice has been given to each of them.
THUS/….

THUS DONE AND SIGNED AT HARARE, ZIMBABWE AFORESAID ON

THE DATE AFOREWRITTEN IN MY PRESENCE AND BEFORE ME THE
UNDERSIGNED NOTARY PUBLIC.

AS WITNESS:

1. ………………………………
……………………………………
2. ……………………………… Takudzwa Nyandoro on behalf of Mercyline
Nyandoro

AS WITNESS:

1. ……………………………..
……………………………………
……
2. ……………………………… Merline Nyandoro

AS WITNESS:

3. ……………………………..
……………………………………
……
4. ……………………………… Mercy Nyandoro
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72 | P a g e
AS WITNESS:

1. …………………………………
……………………………………
……
2. ……………………………….. Merdeline Nyandoro

.................................................

CLAUDIOUS MACHEKA

NOTARY PUBLIC/LEGAL PRACTITIONER

Question 2

What is a trust?

A trust is a fiduciary relationship in which one party, known as a trustor, gives another party,
the trustee, the right to hold title to property or assets for the benefit of a third party, the
beneficiary. Trusts are established to provide legal protection for the trustor’s assets, to make
sure those assets are distributed according to the wishes of the trustor, and to save time,
reduce paperwork and, in some cases, avoid or reduce inheritance or estate taxes.

Different types of trusts in Zimbabwe

i. Testamentary trusts are those created in a will.

This type of trust comes into existence when a person, known as the testator states
in his will (and last testament) that he leaves or bequeaths property to a trustee so
that that trustee can administer the property for a specified beneficiary or
beneficiaries. A trust created in accordance with the provisions of a will is called a
trust mortis causa and it becomes operational after the death of the testator.

ii. Educational trusts are frequently used to establish schools or to provide

scholarships or bursaries.

iii. Donation trusts are very common in estate planning and when setting up a
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charitable institution. They involve the donor in donating assets to be used for the
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purpose for which the trust is established.

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 iv. Debenture trusts are established for the protection of debenture holders where a
number of people lend money to a company and there is need to control strictly
the rights of the lenders.

v. Statutory trusts are established in terms of legislation.

vi. Revocable trust refers to a trust that can be changed at any stage of the trustor’s
lifetime. This may be influenced by several factors such as divorce, change in
mind or the need to acquire or dispose of assets.

vii. Irrevocable trust is a trust that cannot be altered once established. In other words,
once the trustor donates to the trust he/she cannot reverse that act. An irrevocable
trust is most desirable as it cannot be easily altered and contains assets that have
been permanently removed from the trustor’s possession.

viii. Inter-vivos trust is a written document in which a person’s assets are provided as a
trust for the individual’s use and benefit during his/her lifetime. Such assets can
only be transferred by a successor trustee to the beneficiaries upon the trustor’s
death.

ix. Family trust.

Advantages of a family trust.

i. Protects the property from creditors:

It has been shown that when a family trust is established there is transfer of legal
ownership of the property into the name of the trust. This protects the property
from being reclaimed by debt collectors. This is because when a property is a
legal property of a trust it cannot be reclaimed as a personal debt security, unless
if it was gifted to the trust during the financial period to evade the legal sanction.
The property is protected in the event of bankruptcy as it is a separate legal
persona.

ii. Keeps the property separate from matrimonial property:

The property that is placed under a trust is ultimately kept separate from
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matrimonial property. This is an advantage on the basis that it ensures that in the
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event of a divorce, the property in the trust is left untouched. Matrimonial disputes

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 usually result in property being distributed unevenly amongst parties and thus a
family trust secures the property for beneficiaries. Also the assets do not form part
of the beneficiaries’ personal property hence it cannot be subject to claims by their
partners. This brings a social benefit associated with establishing family trusts.

iii. Tax benefits: it is not subject to payment of taxes.

Family trusts provide protection against various forms of wealth tax which may be
introduced in the future such death duties or inheritance tax. Beneficiaries are not
required to pay income tax on income that is distributed from the trust.

iv. Generates income:

Trustees can make investments in the name of the trust. The trust can provide the
beneficiaries with the income or the capital to meet up their cash requirements as
they arise. This can protect the long term value of family property.

v. Not easily revocable or altered:

The powers of the grantor and trustee are normally considered irrefutable. Family
trusts, unlike standard wills, are not publicly registered and the details of the
family trust arrangement is kept confidential.
DEED OF DONATION
Made and Entered into by and between:

Jerry Chinamatira
(Born on 8thJune 1968)
I.D. No. 22-138494 M40
Of No. 7686 Greendale, Harare
Cell +263 778 909 978
(Hereinafter referred to as “the Donor”)

And

Moses Chinamatira
(Born on 10th October 1992)
I.D. No. 63-869096 J 40
Of No. 2345 Budiriro 1, Harare
Cell: +263 783 645 689
(Hereinafter referred to as “the Donee”)
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WHEREAS the Donor is the registered owner and holder of title of certain piece of land
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situate in the District of HARARE being stand number 1876Mufakose Townshipmeasuring

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800square metresheld under Deed of Transfer No. 8990/2000 dated 25 April 2000[A
painted brick structure under concrete roof tiles comprising of 2 bedrooms, kitchen. lounge,
cum-dining, bathroom and toilet]; valued atZW$ 300 000.00(Three Hundred
ThousandZimbabwean Dollars);

NOW THEREFORE these present witness that the Donor hereby donates and the
Doneehereby accepts the above mentioned properties under the following terms and
conditions:-

1.
The Donor hereby donatesintervivos the property to the Doneewith considerationto the values
listed above.
2.
The property has been donated voetstoots (as it is).

3/The….

3.
The Donor warrants that the property has no mortgage or any caveats and it is under no
imminent threat from any attachment in execution, sale in execution or any litigation
involving dispute over ownership or otherwise of the immovable property.

4.
The Donee acknowledges that he has made himself fully acquainted with the property,
itsnature, extent, boundaries and locality is satisfied with its condition.

5.
The Donor hereby guarantees and warrants that the immovable propertyhe has donated was
never sold to anyone else, and its ownership is not a matter in dispute or pending in any Court
of law.
6.
The Donor hereby guarantees and warrants that in the event of hisincapacitation, his Agent,
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attorney, nominees proxie, executor or administrator of his estate, the curator of his affairs,
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will sign all transfer papers, necessary in effecting change of ownership in the

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Donee’sfavour, and would obtain and furnish any information or documents and effect any
payment due from the Donor.

7.
The Donee shall pay costs of transfer and the stamp duty thereon and other charges that may
be levied, within 30 days of being asked to do so by MessrsMugotaLegal Practitioners who
will be assisting with the transfers.
8.
In the event of any breach and litigation the High Court Harare must have jurisdiction to
preside over such matter and successful party shall be entitled to costs on an attorney and
client scale, collection commission as per the Law Society tariff and interest at the
commercial prime lending rate.
9/ The….

9.
The costs of this Deed of Donation shall be borne by the Donor.
10.
The agreement constitutes the entire agreement between the parties and no additions,
amendments or alterations shall be of any force or effect UNLESS and until reduced to
writing and signed by all parties concerned.

THUS DONE AND SIGNED BY THE DONOR AT HARARE ON THIS 12 th DAY

OF SEPTEMBER 2021

…………………………….………….
JERRY CHINAMATIRA
(Donor)
WITNESS:

1……….……………………
2…………………………….

THUS DONE AND SIGNED BY THE DONEE AT HARARE ON THIS 12th DAY OF
SEPTEMBER 2021
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….…………….……………………….………….
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MOSES CHINAMATIRA

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 (Donee)
WITNESS:

1……….……………………
2…………………………….

QUOD ATTESTOR

...........................................
CLAUDIOUS MACHEKA
NOTARY PUBLIC
Deed of Donation
Made and Entered into by and between:

xxxxxxxxxxxxxxxxxxxxxxxx
Born on xxxxxxxxxxxxxxxxxxxxx
I.D. No. xxxxxxxxxxxxxxxxxxxxx
and
xxxxxxxxxxxxxxxxxxxxxxxxx
(Born on xxxxxxxxxxxxxxxxxxxxx)
I.D. No. xxxxxxxxxxxxxxxxxxxxxxxx
Of No. xxxxxxxxxxxxxxxxxxxxxxxx
Cellxxxxxxxxxxxxxxx
(Hereinafter referred to as “the Donors”)

and

xxxxxxxxxxxxxxxxxxxxxxxxxxxx
Registration No. xxxxxxxxxxxxxxxxxxxxxxxxxx
Represented by virtue of a Resolution dated ………November 2018 by
xxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Born on xxxxxxxxxxxxxxxxxxxxxxxxxxx
I.D. No. xxxxxxxxxxxxxxxxxxxxxxxxxxxx
Of No. xxxxxxxxxxxxxxxxxxxxxxx
Cell: xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(Hereinafter referred to as “the Donee”)

WHEREAS the Donors are the registered owners and holders of title of certain pieces of
land situate in the District of xxxxxxxxxx being xxxxxxxxxxxxxxxxxxxxxxxxxmeasuring
xxxxxxxxxxxxxxxxsquare metresheld under Deed of Transfer No. xxxxxx dated
xxxxxxxxxxxx;[A painted brick structure under concrete roof tiles comprising of 3
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bedrooms, kitchen. lounge, cum-dining, bathroom and toilet]; valued atZW$000.00

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(XXXXXXXXXXX Zimbabawean Dollars);

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NOW THEREFORE these present witness that the Donorshereby donate and the
Doneehereby accepts the above mentioned properties under the following terms and
conditions:-

1/The…
1.
The Donors hereby donateintervivos the properties to the Doneewith considerationto the
values listed above.
2.
The properties have been donated voetstoots (as they are).

3.
The Donors warrants that the properties have no mortgage or any caveats and they are under
no imminent threat from any attachment in execution, sale in execution or any litigation
involving dispute over ownership or otherwise of the immovable property.

4.
The Donee acknowledges that he/she has made himself/herself fully acquainted with the
properties, their nature, extent, boundaries and locality is satisfied with their condition.

5.
The Donors hereby guarantee and warrant that the immovable propertiesthey have donated
were never sold to anyone else, and its ownership is not a matter in dispute or pending in any
Court of law.
6.
The Donors hereby guarantee and warrant that in the event of their incapacitation, their
Agents, attorneys, nominees proxies, executors or administrators of their estates, the curator
of their affairs, will sign all transfer papers, necessary in effecting change of ownership in the
Donee’s favour, and would obtain and furnish any information or documents and effect any
payment due from the Donors.
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7.
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The Donee shall pay costs of transfer and the stamp duty thereon and other charges that may
be levied, within 30 days of being asked to do so by Messrsxxxxxxxxxxxxxxlegal
practitioners who will be assisting with the transfers.
8/In…
8.
In the event of any breach and litigation the High Court Bulawayo must have jurisdiction to
preside over such matter and successful party shall be entitled to costs on an attorney and
client scale, collection commission as per the Law Society tariff and interest at the
commercial prime lending rate.
9.
The costs of this Deed of Donation shall be borne by the Donors.

10.
The agreement constitutes the entire agreement between the parties and no additions,
amendments or alterations shall be of any force or effect UNLESS and until reduced to
writing and signed by all parties concerned.

THUS DONE AND SIGNED BY THE DONORS AT BULAWAYO ON THIS DAY

OF NOVEMBER 2018
…………………………….………….
xxxxxxxxxxxxxxxxxxxxxxxx

…………………………….………….
xxxxxxxxxxxxxxxxxxxxxxxxxxx
(Donors)
WITNESS:

1……….……………………
2…………………………….

THUS DONE AND SIGNED BY THE DONEE AT BULAWAYO ON THIS DAY

OF NOVEMBER 2018
….…………….……………………….………….
xxxxxxxxxxxxxxxxxxxxxxxxxxx
Represented byxxxxxxxxxxxxxxx
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(Donee)
WITNESS:
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1……….……………………
2…………………………….
a. What is the difference between a donation intervivos and a donation mortis
causa?

A donation intervivos is a contract which takes place by mutual consent of the giver who
divests himself of the thing given in order to transmit title of it to the donee gratuitously and
the donee who accepts the thing requires legal title to it. On the other hand, a donation mortis
causa is a donation that is made by a sick person who is contemplating his dissolution near,
delivers or causes to be delivered, to another the possession of any personal goods and keep
as his own in the case of the donor’s death.

Furthermore, a donation intervivos takes effect during the lifetime of the donor and the donor
must have the intention to immediately pass title to the donee whereas donation mortis causa
takes effect upon the actual death of the donor.

In addition to that, the gifts that can be conveyed by donation mortis causa are personal
properties whereas both personal and real properties like interests in land can be conveyed by
donation intervivos.

Generally, a donation intervivos is irrevocable once all the requirements have been met. On
the other hand, if the donor recovers the donation is automatically revoked and it can be
revoked anytime by the donor.

In the event that the donor does not die in the donation mortis causa, the donation is
automatically revoked.

PROTOCOL NO.

XXXXXXXXXXXXXX TRUST

NOTARIAL DEED OF TRUST

KNOW ALL MEN WHOM IT MAY CONCERN:

That on the day of Two Thousand and

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Twenty, before me,

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JONATHAN TAWONA TSVANGIRAI

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 Notary Public, by lawful authority duly sworn and
admitted, residing and practicing at Bulawayo, Zimbabwe
personally came and appeared:-

XXXXXXXXXX/……

XXXXXXXXXXXXXXXXXXXXXXXXXXX
(Born on XXXXXXXXXXXXXX)
I.D. No…………………………………….
Of No…………………………………….., Bulawayo
and
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(Born on XXXXXXXXXXXXXX)
I.D. No…………………………………….
Of No…………………………………….., Bulawayo
and
XXXXXXXXXXXXXXXXXXXXXXXXXXX
(Born on XXXXXXXXXXXXXX)
I.D. No…………………………………….
Of No…………………………………….., Bulawayo
(hereinafter referred to as the “Trustees”)

AND THE APPEARER DECLARED THAT:

WHEREAS the Founder Member is desirous of creating a Trust for

the purpose of carrying out the objects set out in full;

AND WHEREAS the Founder Member and Trustees are prepared to

act as Trustees for the Trust in order to fulfill the
objectives hereinafter set out;
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NOW THEREFORE the Appearer’s articulate as follows;

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 1/Donation…

1. DONATION, CREATION AND NAME OF TRUST

a. The founder member hereby donates to the Trust the sum of

U.S$5 000.00 (Five thousand United States Dollars) which
is accepted by the Trustees for the purposes of
establishing the Trust.

b. The Trust hereby created shall;

i) Be called the BOUNCE BACK TRUST (hereinafter referred

to as “The Trust”

ii) Be subject to the Laws of Zimbabwe.

2. DEFINITIONS
In this Deed;

a) Unless the context otherwise indicates

i) Words importing the singular shall include the plural

ii) Words importing the masculine gender shall include the

feminine gender and vice versa.
3. PURPOSES AND OBJECTS

The purposes and objects of the Trust shall be;

a) To engage the community at large, business professionals

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and the entire population in creative community

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development projects such as;

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 i)The…
i) The resuscitation of local Council Facilities and
structures

ii) Environmental Issues

iii) Building and construction

With the initial main focus being the resuscitation and

improvement of the dilapidated condition of the Centenary Park
in Bulawayo.

b) To carry out field projects, education programs and

workshops when necessary on different arrears so as to
enable people to access information and knowledge on
various local heritage in and around Bulawayo.

c) To clear, repair and or reconstruct in certain areas of

the City with consent of the City of Bulawayo first
having been obtained. Once again with the main focus
initially being put on the resuscitation and maintenance
of the Centenary Park.

d) Once the Centenary Park has been restored and or

renovated focus shall be given to other areas in the
community which need to be resuscitated and restored to
its initial condition and if necessary with improvement.

e) To encourage the local community with focus on the

children our up and coming generation to take care of and
appreciate our local heritage and the history attached to
it and to inspire and encourage the children and the
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community at large to become “better citizens.”

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f)/To…

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 f) To influence and create awareness of the state of our
city and educate the community on their responsibilities
in terms of the importance of the conservation of our
local heritage and so on.
4. TRUSTEES

a) Zimbabweans and or others are invited to membership.

b) The Trust shall be administered by Trustees consisting of

not more than twelve and not less than two Trustees
including the Founder Member (hereinafter referred to as
“the Trustees”)

c) The Trustees shall be of integrity and capable of

contributing towards the required development either
professionally or by physical participation.

d) The Trustees shall hold ordinary meetings quarterly to

discuss and take action on various projects undertaken by
the organization.

e) The Trustees shall form a disciplinary committee that

will maintain discipline and respect in the organization.

f) The first Trustees shall be the Appearer’s who have been

appointed as such

g) The Trustees shall appoint a Chairperson Executive

Secretary and a treasurer

h) Trustees shall be in office for five (5) years and are

eligible for re-appointment.
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i)/The…
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i) The Trustees shall have the power to do all things

85 | P a g e
 appertaining, conducive or incidental to the purposes of
the Trust and without prejudice to the generality of the
foregoing Trustees shall have power to,
ii) accept and apply for the purposes of the Trust any
donation or bequest of moneyor property in accordance
with the terms of such donation or bequest provided that
such are in conformity with the purposes of the present
Trust,
iii) To purchase, take lease, or otherwise acquire any
property or rights whatsoever, whether movable or
immovable, for cash or on credit, or partly in one way
and partly in the other;
iv) receive donor funding and support for the Trust,
to open accounts at any bank, building society, post
office savings bank and to operate the same through the
agency of the Trust as the Trustees may from time to
time determine,
v) to borrow money from commercial Banks, Building
Society’s or other financial institutions, if the need
arises and to mortgage, pledge or to encumber property
of the Trust to secure such loans;
vi) to invest any monies of the Trust in such investments
and securities as the Trustees may choose and to
receive, hold and disburse the funds of the Trust for
the fulfillment of the purposes of the Trust
vii) to ask, demand, sue for and recover all debts, goods
and effects whatsoever due and belonging to the trust,
to discharge, compromise and settle all claims
matters in dispute relating to the Trust and submit the
sameto arbitration, to commence, prosecute, defend and
oppose any action or other proceedings at law
relating to the Trust in any court and to relinquish
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the same,
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 vii) to appoint or employ any officer or staff which the
Trustees may consider necessary for the
carrying out of the purposes of the Trust, to
assign and regulate their duties and to pay
them a suitable remuneration and to dismiss them,

viii) to subscribe for, take or otherwise acquire and

hold capital shares, stock, debentures or
other securities of any other Trust, person or
company having a purpose similar to that of
the Trust and to acquire and undertake the
whole or any part of the assets or liabilities
of such Trust, person or accompany,

ix) to indemnify all or any of the Trustees out of the

funds of the Trust against any loss occasioned
by the bona fide exercise of their power or
performance of their duties recited in this
Deed,

x) to do anything that the Trustees may deem necessary

for the attainment of the objects of the Trust,

5. PROCEEDINGS OF TRUSTEES

a) The Trustees shall have power at any time and from

time to time to appoint such other persons to
the office of Trustee as they may think fit.

b) The Trustees shall meet together for the dispatch of

business, adjourn and otherwise regulate their
meeting as they see fit.
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c)/A…
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 c) A quorum at any meeting shall consist of three
Trustees being present. The Chairman or, in
his absence, the Vice Chairman, shall preside
at all meetings of the Trustees. Questions
arising at any meeting shall be decided by
majority of votes and in the event of equality
of votes the Chairman of the meeting shall have a
second or casting vote. If at any meeting
neither the Chairman nor the Vice Chairman is present,
the Trustees present shall choose one of those
present to be the Chairman of the meeting.

d) Reasonable notice of any meeting of the Trustees

shall be given to each Trustee and any Trustee can
request such a meeting.

e) In the event that the number of the Trustees is

reduced to below two (2), the remaining Trustee
may act for the purposes of appointing a new
Trustee or winding up the Trust Fund in
accordance with the provisions of this
Deed.

f) The Trustees shall keep written minutes of their

meetings and all resolutions passed by the
Trustees shall be duly minuted.

6 VACATION OF OFFICE
a) A Trustee shall cease to act;
i) if he resigns as Trustee which he is entitled to do
by thirty (30) days written notice to the other
Trustees;
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ii) if he has been convicted in Zimbabwe or elsewhere of

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any offence in which dishonesty is an element

88 | P a g e
or of any offence for which dishonesty is an
element or of any offence for which he has been
sentenced to imprisonment without the option
of a fine;

iii) if his estate is sequestrated;

iv) if he has been declared by a competent Court to be

mentally ill or incapable of managing his own
affairs, or if he is by virtue of relevant legislation,
detained as a patient in any institution;
v) if, in terms of the relevant legislation in Zimbabwe
in force from time to time he is disqualified
as a Director of a company or as any other
public officer thereof

7. REMUNERATION OF TRUSTEES
The Trustees are entitled to remuneration for their
service at a rate they deem equitable taking into account
special services rendered to the Trust or any other party
having regard to the professional status of each Trustees
who shall be entitled to remuneration for any professional
services rendered irrespective of the fact that he may be
a Trustee.

8. ACCOUNTING, RECORD AND PROFESSIONAL SERVICE

a) The Trustees shall ensure that a proper set of books
are kept, recording the financial and other
affairs of the Trust.
b) The Trustees shall be entitled to engage the
services of professional persons in so far as such
services are deemed to be necessary and desirable for
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the purposes of the Trust.

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c)An…

89 | P a g e
 c) An annual set of accounts shall be produced and laid
before the Trustees for confirmation in respect
of each calendar year during the subsistence if
the Trust which, should the Founder Members so
require, shall be audited by an auditor appointed by
the Trustees. The Trustees shall submit a copy of
the said annual accounts each year to the
Zimbabwe Revenue Authority for its perusal.

9. EXEMPTIONS AND INDEMNITY

a) The Trustees shall be exempt from any obligations to

furnish any security for the due administration
of the Trust to the Founder Members or to any person,
body or authority whatever who are hereby directed to
dispense with such security.

b) In the professed execution of the trust no Trustees

shall be liable for a loss to the trust arising
by reason of any improper investment made in good
faith or for the negligence or fraud of any
agent employed by him or any other Trustee.

c) The Trustees shall be indemnified out of the Trust

fund against –

d) all claims and demands of whatsoever nature that may

be made upon them arising out of the exercise
or purported exercise of any of the powers
hereby conferred upon them.

10/Amendement…
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10. AMENDEMENT OF THE TRUST

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 The Founder Members and not less than 2/3 of the Board
Trustees may by mutual agreement from time to time amend
this Trust or any or all of the purposes for which the
funds of the Trust are to be applied and may declare that
in lieu thereof the funds or any part thereof shall be
applied to such other purpose or purposes of a charitable
or public nature as the Founder Member or the majority of
the Trustees shall think proper.

11. DISSOLUTION OF THE TRUST

The Trust may be dissolved at any time on the authority

of a resolution of the Board of Trustees passed by not less
than 2/3 of the majority of the Trustees at meeting
called for such a purpose. If on dissolution remains any
surplus funds or property after all debts and liabilities of
the Trust have been discharged such surplus shall be paid out
to any organization similar to that of the Trust, at the
discretion of the Trustees.

THUS/…

THUS DONE AND SIGNED AT BULAWAYO, ZIMBABWE AFORESAID ON

THE DATE AFOREWRITTEN IN MY PRESENCE AND BEFORE ME THE
UNDERSIGNED NOTARY PUBLIC.
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Page

AS WITNESS:

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 1. …………………………………………………
…………………………………………
2. ……………………………………………….. XXXXXXXXXXXXXXX

AS WITNESS:

1. …………………………………………………

…………………………………………
2. ……………………………………………….. XXXXXXXXXXXXXXX

AS WITNESS:

1. …………………………………………………

…………………………………………
2. ……………………………………………… XXXXXXXXXXXXXXXXXXXXXX

2019

Question 1

He Ensures That Solemnities Are Done Thus The Documents

Executed By A Notary Are Different From Others

b) i) see the hard copy given to you.

ii)) One can revoke a donation inter vivos in the following circumstances:

 insolvency of the donor

 gross ingratitude of a serious nature shown by the donee

 non compliance with the conditions

This can be done any time before acceptance

c)i) Minute
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This is the original act passed by a notary public in the presence of the
parties, the competent witnesses and the notary public.
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ii) Protocol

This is a safe and secure place where the minutes done by the notary are
kept and filed in a chronological order. It can be a cabinet, a locker or a
desk drawer even.

Iii) Protocolregister

This is a book where records of minutes done and executed by the notary
are entered and recorded in chronological order. It states the title, the
protocol number and the date of execution

Iv )Grosse

This is a copy of the original minute passed by a notary public but is not a
photocopy. It is a duplicate of the original signed by the notary and does
not have to be signed by the Appearer and the witnesses.

v) Notarialdeed

According to section 2 of the Deeds Registries Act, it is defined as a

document that is prepared, attested and executed by a notary public and
registered in the deeds registry.

QUESTION 2

a) a)I) Promissory note

It is defined in terms of section 89 of the Bills of Exchange Act as an

unconditional promise in writing made by one person to another
promising to pay upon demand or at a fixed, or determinable future date
a certain sum of money to the order of a specified person or to bearer.

The role of the notary is to note and protest it in the event of dishonour,
default or non-payment. The notary may also be required to prepare a
promissory note.

ii)see attachment on mining contracts

iii) Noting and protesting

This is the process whereby a notary public once presented with a

dishonoured bill presents it again to the debtor for payment. If the bill is
dishonoured again, the notary public prepares a noting slip whereby he
notes that the bill has been dishonoured, the place of dishonour and the
reasons for the dishonour thereof. The noting slip is attached to the
dishonoured bill. The notary would then initial the bill and mark it with the
date and a reference to the register or protocol in which a copy of the bill
and of the particulars contained in the noting slip are contained. The role
of the notary is to prepare the noting slip to thedishonoured bill.
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Protesting
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This is whereby the notary public at the instance of the bill holder
prepares a formal declaration for presentation to the drawer that a bill of
exchange has been refused acceptance or payment or has been
dishonoured, the reasons for the dishonour, the name of the person at
whose request the bill is being protested, and the date and place of
protest or dishonour, and that the holder intends to recover all expenses
to which he may be put in consequence thereof. See section 50 (5) of the
Bills of exchange Act

The role of the notary public in this case is to prepare the protest
and present it.

iv) Mining contracts-see attachment on mining contracts

v) options and tribute agreements relating to mining locations-

see attachment on mining contracts

b)the effect of renouncing each of the exceptions in a notarial

bond is that the party so renouncing them cannot later on rely on
them as a defence.

c)i) bond given solely in security for any payment due to the public
revenue

ii) Bond given by any officer in respect of the discharge of his official
duties

d) SAME AS IN QUESTION 2D OF JUNE 2010

e) Amendment of notarial deed in terms of section 27 of the DRA

Any amendment the effect of which would be to alter the original number
of undivided shares in land originally created with an exclusive right of
occupation unless the land concerned has been further sub divided in
terms of the regional town and country planning act or any other
enactment would not be permissible.

f) SAME AS IN QUESTION 2F OF JUNE 2010

QUESTION 3

a)a)

i) see attached deed of lease

ii)same as in conveyancing

iii) Three copies are prepared, one for the Deeds registry Harare and the
other for the deeds registry Bulawayo and the other being the copy for the
client.
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iv) In Harare because the property in question is situate within the

province as per the schedule to the deeds registries act.
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94 | P a g e
b)see the ante nuptial contract hereto attached

QUESTION 4

a)

i) See deed of change of name of a minor attached and substitute names

ii) see the consent attached.

iii) See advertisement attached for a minor and substitute names

2010 (2)

QUESTION 1

a) Same answer as at june 2010

b) Authentication of documents is the process by which a notary public
certify the identity of the signatory of the document by affixing a
certificate to the document which verifies the authenticity of the
signature of the person who signed it whereas certification of a
document is where a notary public or commissioner of oaths
confirms that a document is a true copy or a duplication of the
original document.

ii)One can revoke a donation inter vivos in the following circumstances:

 insolvency of the donor

 gross ingratitude of a serious nature shown by the donee
 non compliance with the conditions

This can be done any time before acceptance

i) Minute

This is the original act passed by a notary public in the presence of the
parties, the competent witnesses and the notary public.

ii) Protocol

This is a safe and secure place where the minutes done by the notary are
kept and filed in a chronological order. It can be a cabinet, a locker or a
desk drawer even.

Iii) Protocol register

This is a book where records of minutes done and executed by the notary
are entered and recorded in chronological order. It states the title, the
protocol number and the date of execution
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This is a copy of the original minute passed by a notary public but is not a
photocopy. It is a duplicate of the original signed by the notary and does
not have to be signed by the Appearer and the witnesses.

v) Notarial deed

According to section 2 of the Deeds Registries Act, it is defined as a

document that is prepared, attested and executed by a notary public and
registered in the deeds registry.

c) “exclusive right of occupation”, in relation to an undivided share in a

piece of land in an urban area, means the right of the owner of that
undivided share to occupy, to the exclusion of every other owner of
an undivided share in the land concerned, a specific building or part
of any building on the land concerned, either with or without any
area of ground;

QUESTION 2

a)same as question 2(a) of June 2012

b)i)attest-to solemnly declare verbally or in writing that a particular

document or testimony about an event is a true and accurate
representation of the facts; to bear witness to. To formally certify by a
signature that the signer has been present at the execution of a particular
writing so as to rebut any potential challenges to its authenticity.

ii)execute-To complete; to make; to sign; to perform; to do; to carry out

according to its terms; to fulfill the command or purpose of. To perform all
necessary formalities, as to make and sign a contract, or sign and deliver
a note.

iii)lodgement- means submitting the documents to the Registrar of deeds.

iv) Notarial mortgage- this is a mortgage bond that is notarially executed

v)praedial servitude- Praedial servitudes were real rights exercised by the

owner of an immovable thing in respect of the immovable thing of
another. These rights accrued to the owner in his capacity as owner of
the dominant tenement.

vi) serviant tenement(see previous paper)

vii) parateexecutie(see previous paper)

vii) usufruct- The oldest personal servitude and a right to use and enjoy
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another’s thing without altering its character. It was a way of providing

maintenance of a wife
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ix)protocol(see previous paper)

x)duty of care- The responsibility or the legalobligation of a person or

organization to avoidacts or omissions (which can be reasonably foreseen)
to be likely to cause harm to others.

xi) law society- the governing body for the legal profession
xii) commissioner of oaths- a person registered as such in terms of the
commissioners of oaths act to certify legal documents

xiii) special power of attorney- power of attorney that specifically states

what has to be done by the person given power to act it is not generally
as the general power of attorney

xiv) civilitermodo -in a reasonable way

in relation to servitudes meant exercise of a servitude in a a reasonable

manner in order to encumber the servient tenement as little as possible
and not cause the owner of the servient tenement unnecessary
inconvenience.

xv)underhand- refers to any document drafted by a person other than a

notary public.

xvi) intervivos trust- a trust created by a writing (declaration of trust)

which commences at that time, while the creator (called a trustor or
settlor) is alive, sometimes called a "living trust." The property is then
placed in trust with a trustee (often the trustor during his/her lifetime) and
distribution will take place according to the terms of the trust---possibly
both during the trustor's lifetime and then upon the trustor's death. This is
different from a testamentary trust which is created by the terms of a will
and places some assets from the dead person's estate in a trust to exist
from the date of death and until fully distributed

QUESTION 3

a)section 71- If it is expressly provided in—

(a) a registered lease of land; or
(b) a registered deed creating or evidencing a servitude;
that it shall lapse upon the happening of certain events, the registrar
shall, upon written application accompanied by an affidavit by the lessor
or grantor of the registered right, as the case may be, that those events
have happened, cancel the registration of the lease or servitude:
Provided that—
(i) if the address of the lessee or grantee is stated in the registered
document, or the address or any change thereof has been notified to the
registrar, notice shall be given to such lessee or grantee by the applicant
by prepaid registered letter that cancellation of the registration of the
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document is sought on the ground of the happening of certain events

mentioned therein and that unless written objection to the cancellation
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specifying the grounds of objection is lodged with the registrar within one

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month, if the address is in Zimbabwe, or within three months or such
further period as the registrar may in special circumstances determine, if
the address is outside Zimbabwe, application will be made to the registrar
for cancellation of the registration of the said document;
(ii) if the address of the lessee or grantee is not stated in the document or
has not been notified to the registrar as aforesaid, the applicant shall
publish the notice aforesaid once in the Gazette and twice in a newspaper
published in the district in which the land in question is situated (or if
there be no such newspaper then in any newspaper circulating in such
district) and in a newspaper (to be indicated by the registrar) circulating in
the district of the lessee’s or grantee’s last known address which shall be
disclosed by the applicant in an affidavit;
(iii) if any objection is lodged which, in the registrar’s opinion, discloses
reasonable grounds for refusing cancellation of the registration, he shall
not cancel it until the objection is withdrawn or falls away or cancellation
is ordered by the court;
(iv) if any of the rights to be cancelled are mortgaged, notice in writing
shall be given by the applicant by prepaid registered letter to the
mortgagee of the intention to cancel such rights, before the cancellation is
effected.

b)i) the trustees in a trust are described as their names appear in the
deed of trust and their trust name

ii) a partnership is described in the individual names of the partners

followed by the term trading in partnership as….

iii)a public company is described by its name as it appears in its

incorporation certificate

iv)an administrator of an estate is described by his authority as it appears

in the letters of administration.

v) a co-operative society is described with its name appearing in its

registration certificate in terms of the relevant law.

c) SEE THE DRAFTED NOTARIAL DEED OF TRUST

d) a) SEE DRAFT bond Attached

b) Same as in conveyancing

c) Three copies are prepared, one for the Deeds registry Harare and the
other for the deeds registry Bulawayo and the other being the copy for the
client.

d) In Harare because the property in question is situate within the

province as per the schedule to the deeds registries act.
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QUESTION 4
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a)i) See deed of change of name of a minor attached and substitute
names

ii) see the consent attached.

iii) See advertisement attached for a minor and substitute names

QUESTION 1

a) The respondent’s council deliberated and resolved that if the applicant

would undertake any of the activities mentioned above, he would be
guilty of unprofessional conduct. The basis for the decision was that the
Legal Practitioners Act (Chapter 27:07) declared such activities
unprofessional in the respondent’s circumstances and in any event, the
respondent’s Council was entitled to declare such activities as constituting
unprofessional conduct. This did not go down well with the applicant, thus
resulting in the present application.

The applicant in essence is seeking an Order declaring his intentions to

discharge the full duties of a conveyancer as aforestated, whilst he is in
the employ of the company lawful. He also seeks this court to compel the
Law Society to allow him to proceed with his stated intentions.

In this regard, the issues for consideration are two, i.e:

1. Whether or not applicant’s intentions to

discharge the full duties of a conveyancer as
aforestated, whilst he is in the full time
employment of the company amounts to
unprofessional, dishonourable or unworthy
conduct, in terms of the Legal Practitioners
Act (Chapter 27:07).
2. Whether or not the Council of the Society can
lawfully declare applicant’s intentions to
discharge the full duties of a conveyancer as
aforestated, whilst he is in the full time
employment of the company, to be
tantamount to unprofessional, dishonourable
or unworthy conduct, notwithstanding the
absence of an express provision in the Legal
Practitioners Act (Chapter 27:07) which
outlaws applicant’s intentions.

The first inquiry, i.e. whether or not applicant’s intentions are in

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contravention of the express provisions of the Legal Practitioners Act

(Chapter 27:07)(hereinafter referred to as “the Act”) will be determined
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by exploring the express provisions of the Legal Practitioners Act as the
starting point and subsequently with the aid of germane case law.

The Legal Practitioners Act, stipulates in Section 8(c) that, ”a

registered conveyancer who is in possession of a valid practising
certificate issued to him may prepare any document for registration in
a Deeds Registry or for attestation or execution by a registrar of deeds”
and Section 9 (4) of the same Act also states that ” Subject to any other
law, no person other than a registered conveyancer who is in
possession of a valid practising certificate issued to him shall, for
or in expectation of any fee, commission, gain or reward, prepare any
document for registration in a Deeds Registry or for attestation or
execution by a registrar of deeds.”

It is apparent from the above stated provisions of the Legal Practitioners

Act, that the basic requirements for one to lawfully conduct and discharge
the duties of a conveyancer are registration as a conveyancer and
possession of a valid practising certificate. Section 2 of the Act, also
underscores the fact that no registered legal practitioner can practice as1
such, or as a notary public and/or conveyancer without a valid practising
certificate.

This therefore means that, in terms of the Act, in order for the applicant to
be able to discharge the duties of a conveyancer, he must not only prove
that he is a duly registered legal practitioner and convenyancer but also
that he is in possession of a valid practising certificate authorizing him to
act as such.

Counsel for the Applicant in his submissions contended that, the valid
practising certificate is essentially incidental to the remedies sought by
the applicant, as granting of the application sought would logically entail
an Order compelling the Respondent to effect all requirements to enable
the applicant to discharge the duties of a conveyancer.

This was denied by the Respondent’s counsel, who argued that

registration and certification by the Law Society was meant to safeguard
the integrity of the legal profession and professional independence of the
registered legal practitioner. Counsel for the Respondent further argued
that the Respondent was legally empowered by the Legal Practitioners Act
to, among other things, provide controls, restrictions and safeguards upon
the activities of those registered as legal practitioners who choose to
practise and enjoy the privileges granted by the [Link] for
Respondent further submitted that Section 23(1) of the Act is meant to
prevent and extinguish dishonourable and unprofessional conduct within
the practice of law; and that this is all Respondent was doing in the
present case.
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It is trite law that in order for the applicant to practise as a legal

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practitioner and conveyancer, he should be in possession of a valid

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practising certificate as specified by the Act. However what is of
importance for the purposes of this application is to look at whether or not
applicant’s intention to practise as a conveyancer given his employment
with the company falls foul of the Act and whether the Respondents have
a legal basis for refusing the applicant permission to practise as a
conveyancer on behalf of the company.

The major reasons proffered by the Respondent for refusing to allow the
applicant to conduct and discharge the duties of a conveyancer, are firstly
that, by virtue of the fact that the applicant is employed full time by the
company his professional independence is bound to be compromised by
the need to please his paymasters. Secondly that, the applicant as an
employee of the company is bound to share the proceeds from his
convenyancing activities with persons who are not legal practitioners
contrary to the dictates ofSection 11 (4) of the Act.

It is apparent from Section 11(4) and Section 23(1)(i) of the Act that the
legal practitioner and/or conveyancer is barred from sharing profits with
persons who are not legal practitioners and also in terms of Section 23(1)
(n) a legal practitioner and/or conveyancer should not engage in a
contract with an unregistered person, ”the effect of which is to place
the legal practitioner under such control on the part of the
unregistered person as may interfere with his professional
independence.”

The professional independence of a legal practitioner is the cornerstone of

the legal profession. This can be seen in Rule 3 of the International
Bar Association (IBA) International Code of Ethics which states that
“Lawyers shall preserve independence...Lawyers shall not engage in any
other business or occupation if by doing so they may cease to be
independent.”This sacrosanct tenet stems from the fact that the legal
profession, and, indeed the practise of a conveyancer is a profession and
not a business. As aptly put by R.J. Gerber in Lawyers, Courts and
Professionalism (1989) Greenwood Press, New York, p.11,
”Professions and businesses have traditionally contrasted. The
professional is seen as oriented not to personal profit but to disinterested
tasks...professionalism involves limitation on the aggressive pursuit of
self-interest. Professionals surbodinate their financial interests to the
interests of the public, especially to people who need help.”

The practice in both the South African and the Zimbabwean courts has
been to frown upon the infringement of individual legal practitioner’s
independence in the exercise of his profession. See for example, the cases
of Piennarand Others v Incorporated Law Society (1902) TS at
page 16, Exparte Masterson 1974 (2) RLR ,Law Society of
Zimbabwe v Lake 1988(1) ZLR 168 (S). These cases, among others,
emphasize the importance courts attach to legal professional
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independence.

It is common cause that he who pays the piper calls the tune. And it is
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trite law that an employee is duty bound to subordinate himself to his

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[Link] v CT Bowring & Associates (Pvt) Ltd 1987 (1)
ZLR 206 (S) Gubbay JA (as he then was) held that a worker has a duty
to obey lawful orders given by the employer.

It should be noted that this duty is codified in ss4(b) of S.I 15 of 2006,

which allows dismissal of a worker guilty of ‘wilful disobedience’. At
common law this duty of subordination has been held to be ‘the hallmark
of the employment relationship’. Thus, the duty of subordination is not of
a persuasive character but is peremptoryand obligatory; it is non-
discretionary. A contract of employment by its very nature is calculated to
impair the independence of the employee and place him underthe control
of his employer.

In Law Society of Zimbabwe v Lake (supra) at p180 Gubbay JA had

this to say

“...i think it is a fair proposition that any non-registered person who takes
into his employ a registered legal practitioner in order that he may
practise the profession of law on his behalf poses a potential threat to the
professional independence of the practitioner. The mere fact that the
practitioner subordinates himself as a servant puts his independence in
the practice of his profession in jeopardy...”

The above view was considered as good law and supported by

Manyarara J in S V Sanford 1989(3) ZLR 233(SC)at 232.

Otto Kahn-Freud, a leading pluralist scholar thus described the contract

of employment as : “ a relation between a bearer of power and one who is
not a bearer of power. In its inception it is an act of submission, in its
operation it is a condition of subordination, however much the submission
and the subordination may be concealed by that indispensable figment of
the legal mind known as ‘contract of employment” (cited in Gwisai M,
Labour and Employment Law in Zimbabwe p.14)

In Blismas v Dardagan 1950 SR 234 the leaerned judge commenting

on supervision and control in the employment relationship said ‘it is the
essence of a contract of a master and servant that the servant should
submit to the direction of his employer and obey his employer’s
instructions not only in the things he has to do but as to the time and
manner in which he has to do them”

In Ready Mixed Concrete v Minister of Pensions [1968] All ER 433

(Q.B.D) at 441 cited in S V Lyons Brooke Bond 1981 ZLR 384 at
391MacKenna J,commenting on the master servant relationship in
employment contracts said :-
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“Control includes the power of deciding the thing to be done, the way in
which it shall be done, the means to be employed in doing it, the time
when, and the place where it shall be done.
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With regards to the practice of law it is not only the likelihood of active
interference that must be guarded against but also any temptation to
succumb to such [Link] practitioner is under an
unending temptation during the course of his employment to show himself
up in good light with his employer so as to earn his goodwill. There is thus
a temptation to bend the rules wherever opportunity avails itself in order
to achieve that. It is this insidious temptation that the legislature sought
to exterminate.

In the present matter the degree of control exercised upon the registered
legal practitioner by his employer is absolute. A contract of employment
such as one in existence gives rise to a straightforward master servant
relationship. The tenure of the employee is generally dependant on the
individual employee performance. Such a contract, by its very nature,
constitutes an insidious temptation to the legal practitioner who is a party
to it to act in a manner inconsistent with his professional independence.
This was clearly stated in De Villiers &Anor v McIntyre NO 1921 AD
425 at 461:

“The same reasons apply with greater force where an attorney

enters the service of a layman in respect of professional work. He
automatically parts with his independence by engaging to practice
his profession for the benefit and at the behest of his employer.”

As regards the facts of this case, what is to be further determined by this

court, in light of established precedents and the Act, is whether the
practice of Conveyancing, the motive which applicant seeks to undertake
on behalf of his employer,would result in the sharing of profits with
unregistered persons and compromise the applicant’s professional
independence as proscribed by the Act and thus as amounting
tounprofessional, dishonourable or unworthy conduct. As commercial
company, the applicant’s employer was an unregistered person in terms
of the Act. This view was supported by Manyarara J in S V Sanford (supra)

In the South African context, in Piennar and Others v Incorporated

Law Society 1902 TS 121 , a distinction was drawn between attorneys
and notaries on the one hand and Conveyancers on the other; and it was
laid down that while attorneys and notaries could not practice the
profession of law on behalf of their employers, Conveyancers were
specifically excluded from that disability the meaning being that no
control over his professional work could be exercised nor any benefit
derived from the employer. See Innes CJ’s averments in the DeVilliers
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and Another V McIntyre case (supra).

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The main questions to be posed in this case revolve around
whether or not there is loss of professional independence in the
light of sec 23(1)(n) of the Act and whether or not the legal
practitioner engages in his professional duties such that his fees
are not shared with unregistered persons in terms of sec 23(1)(f).
Section 23(1) enumerates acts which constitute unprofessional,
dishonourable and unworthy conduct.

The case of Law Society of Zimbabwe v Lake 1988 (1) ZLR 168
(S)appears to be on all fours in substance with the facts of this case. In
that case, the Supreme Court had to deal with an appeal by the Law
Society. Mr Lake, a registered legal practitioner and conveyancer had
been granted the permission to act as a conveyancer for his employer, a
company, through a judgment of the High Court by Ebrahim J (as he then
was). The court a quo however had refused him an order to appear in
court on behalf of the company.

One of the arguments in that case by Mr Campbell, for the Law Society,
was that it did not matter whether the legal practitioner was a
conveyancer or notary as long as he or she practised “the profession of
law” in terms of section 8 of the Legal Practitioners Act since the Legal
Practitioners Act had repealed the Notaries and Conveyancers Act in
1981. This view can find no fault from our standpoint, since the South
African approach is argumentatively distinguishable from that in this
country hence not applicable.

While it has been suggested that since the registration of deeds is subject
to the scrutiny by the registrar and his officials, records are open to
inspection thereby constituting independent checks which would not be
such as to assail or beset the practitioner’s independence [p476E-J of the
judgment by Ebrahim J (as he then was) in Lake v Law Society of
Zimbabwe 1987 (2) SA 459 (ZH)].The Supreme Court shot down this
reasoning on the premise that what matters is the threat to an individual
practitioner’s independence.

Section 5 and 6 of the Deed Registries Act (ch 20:05) is to the effect
that though no longer considered as a judicial officer in the strict sense,
the registrar still retains the functions of a “judex” before whom transfer
takes place and in relation to his duties; acts in a semi-judicial capacity.
By the same token, legal practitioners who appear before the registrar
enjoy the status of functionaries in semi-judicial proceedings. They are
therefore relied upon to act with utmost integrity. Gubbay JA (as he
then was) in the Lake case, at page 178 thus made a useful
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pronouncement which is indeed applicable to this case;

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“...legal practitioners who appear before the Registrar [i.e. conveyancers]
enjoy the status of functionaries in semi-judicial proceedings. They are
relied upon to act with utmost integrity.”
From the foregoing it is therefore evident that a degree of independence
is required for conveyancers in their Conveyancing practice.

As so succinctly put in Jones, Conveyancing in South Africa, 3rd ed.,

p15
“...a Registrar in his examination of deeds and documents must of
necessity hold a kind of court at which conveyancers argue the merits in
light of the law and decide whether or not to enforce the application.” See
also Rosenberg v Dry’s Executors and Ors 1911 AD 679 in which
DeVilliers CJ stated at p687 that the Registrar of Deeds is the judex
before whom transfer takes place and registration constitutes the
authentic mark of such transaction. In Transvaal Consolidated Land
and Exploration Company Ltd v Registrar of Companies 1910 TPD
1247, at p 1263, DeVilliers JP (as he then was) also stated that “no
costs would be awarded against the Registrar of Deeds if an application is
made against him because he acts in a semi-judicial capacity and it is in
the interests of the state that he should be vigilant.” These cases
therefore highlight that the Registrar of Deeds acts in a semi-judicial
capacity in the execution of his duties.

In casu, it is my view that applicant’s professional independence can be

subjected to serious inroads at the expense of not only the profession, but
also his duty of good faith to his clients and even his duty to sustain the
law. I am therefore persuaded by the Law Society’s contention that to
allow applicant to undertake professional legal work in the manner he
suggests amounts to unprofessional, dishonourable or unworthyconduct
as stipulated undersection 23(1)(n) of the Act, has substance.
The second inquiry, concerning whether or not the Council of the Society
can lawfully declare applicant’s intentions to discharge the full duties of a
conveyancer as aforestated, whilst he is in the full time employment of
the company, to be tantamount to unprofessional, dishonourable or
unworthy conduct, notwithstanding the absence of an express provision in
the Legal Practitioners Act (Chapter 27:07) which outlaws applicant’s
intentions, essentially falls away, as there are express statutory provisions
which prescribe the applicant’s intentions as amounting to
unprofessional, dishonourable or unworthy [Link], in terms
of Section 23(2) of the Legal Practitioners Act, the Law Society as
the vanguard of the legal profession is empowered in terms of Section
23(2)(a) to prescribe ”in by-laws further acts which shall constitute
unprofessional, dishonourable or unworthy conduct on the part of a
registered legal practitioner, notary public or conveyancer.” In the
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absence of such by-laws, Section 23(2)(b) also empowers the Council of

the Society, the Disciplinary Tribunal or a court to determine what
constitutes unprofessional, dishonourable or unworthy conduct on the part
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of a registered legal practitioner, notary public or conveyancer.

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In addition, the courts possess the general rights of the Roman Dutch
courts to regulate the conduct of practitioners and to prescribe the
general lines in which they shall be permitted to exercise the privileges
conferred upon [Link] the exercise of its oversight role, the court must
however not act arbitrarily but on legitimate grounds (per Solomon JA in
the case of DeVilliers and Anorv McIntyre NO 1921 AD ). In the
present case, there is a solid basis for the court to make a determination,
in the provisions of the Legal Practitioners Act (ch 27:07), particularly
section 23(1) (i) and (n).

In this regard, I can see no ground for granting the application or the order
[Link] application will therefore be dismissed with costs.

b)i) a servitude is a detachment of some of the rights of ownership of

some particular property and the conferring of the same upon some other
person.

ii) Section 57 states that a servitude in perpetuity or for a limited period

may, subject to subsections
(2), (3) and (4), be created—
(a) by a deed prepared in accordance with section fifty-nine; or
(b) in a deed of grant or transfer of land where it encumbers—
(i) the land transferred; or
(ii) other land of which the transferor is the owner in favour of the land
transferred.

c)

 The obligation to live together as man and wife.

 The obligation to live with each other in a reasonable and proper
manner so as not to make such living together impossible or
unsupportive
 An undertaking by one spouse to adopt the religion of the other
 No referral of marital issues to arbitration
 The power of the wife to bind the husband for household necessities

QUESTION 2

b) I) Promissory note
It is defined in terms of section 89 of the Bills of Exchange Act as an
unconditional promise in writing made by one person to another
promising to pay upon demand or at a fixed, or determinable future
date a certain sum of money to the order of a specified person or to
bearer.
The role of the notary is to note and protest it in the event of
dishonour, default or non-payment. The notary may also be required
to prepare a promissory note.
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ii)see attachment on mining contracts

iii) Noting and protesting

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This is the process whereby a notary public once presented with a
dishonoured bill presents it again to the debtor for payment. If the bill is
dishonoured again, the notary public prepares a noting slip whereby he
notes that the bill has been dishonoured, the place of dishonour and the
reasons for the dishonour thereof. The noting slip is attached to the
dishonoured bill. The notary would then initial the bill and mark it with the
date and a reference to the register or protocol in which a copy of the bill
and of the particulars contained in the noting slip are contained. The role
of the notary is to prepare the noting slip to thedishonoured bill.

Protesting

This is whereby the notary public at the instance of the bill holder
prepares a formal declaration for presentation to the drawer that a bill of
exchange has been refused acceptance or payment or has been
dishonoured , the reasons for the dishonour, the name of the person at
whose request the bill is being protested, and the date and place of
protest or dishonour, and that the holder intends to recover all expenses
to which he may be put in consequence thereof. See section 50 (5) of the
Bills of Exchange Act.

The role of the notary public in this case is to prepare the protest and
present it.

iv) Mining contracts- see attachment on mining contracts

v)options and tribute agreements relating to mining locations- see

attachment on mining contracts

c) Amendment of notarial deed in terms of section 27 of the DRA

Any amendment the effect of which would be to alter the original number
of undivided shares in land originally created with an exclusive right of
occupation unless the land concerned has been further sub divided in
terms of the regional town and country planning act or any other
enactment would not be permissible.

d) i) bond given solely in security for any payment due to the public
revenue

ii) Bond given by any officer in respect of the discharge of his official
duties

d) Notarial bonds offer very precarious security

Definition

A notarial bond is a special form of security hypothecating movable

property as security for a debt.
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1. Does not transfer possession which remains in the hands of the

debtor unlike with a pledge
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 2. The assets can be alienated, donated, sold without knowledge of
creditor
3. There is no proof of encumbrance unlike a caveat in the case of a
mortgage bond
4. There is no “notice” to the world to desist from dealing in
encumbered property unlike with a mortgage bond where the
caveat on the title deeds act as constructive notice and a bar
against alienation of the property.
5. The asset may depreciate in value through use, wear and tear and
may end up not being sufficient to secure the debt.
6. It ranks lower than other forms of security such as mortgage bonds
7. The debtor can register another notarial bond over the same
property despite the fact that another bond already exists against
that property. In the event of litigation the second bondholder
stands to lose.
8. The debtor can sell the property to an innocent third party and the
creditor will not be able to claim against the innocent party unless if
he had prior knowledge of the encumbrance. See Mayer v Botha
&Anor 1982 1 SA 47
9. It confers personal rights which are enforceable against the two
parties instead of real rights which are enforceable against the
whole world. See Ex parte Marcus 1902 TH 87
10. It does not protect the property against execution in judicial
proceedings as movables are executed on first.
11. The rights under a notarial bond do not exceed beyond the
lifetime of the holder as compared to real rights which extend
further.
12. Unlike a pledge, the bondholder has no right to claim delivery
or possession of bonded articles during the solvency of the debtor.

e) In terms of section 55 of the DRA, A notarial bond shall be registered

within a period of 3 months after the date of its execution or within such a
period as the court upon application may allow

f) A Notice for the cancellation of a mortgage bond is placed on the

government gazette and a newspaper circulating in the area of its
publication whereas that of a notarial bond is placed on the government
gazette only.

QUESTION 3

a)i) see attached deed of lease

ii)same as in conveyancing

iii) Three copies are prepared, one for the Deeds registry Harare and the
other for the deeds registry Bulawayo and the other being the copy for the
108

client.

iv) In Harare because the property in question is situate within the

Page

province as per the schedule to the deeds registries act.

108 | P a g e
b) Deed of trust is attached. Substitute the names.

QUESTION 4

a)i) See deed of change of name of a minor attached and substitute

names

ii) see the consent attached.

iii) See advertisement attached for a minor and substitute names

2011

QUESTION 1.

The notary public has to ensure compliance with the following solemnities

1. He has to check the identity of the appearer and may request additional proof
thereof such as identity documents
2. He has to ensure that the appearer has the capacity to appear and depose of the
document in question
3. He also has to ensure that the appearer has the proper authority to act and may
require additional confirmation to that effect e.g. power of attorney, affidavits,
company resolutions
4. He has to confirm that the signature of the person appearing before him is indeed
his signature.
5. He has to ensure the presence of the requisite witnesses
6. He has to confirm the capacity of the witnesses
7. He has to cross check and confirm the facts deposed in the documents presented
before him
8. He has to ensure that the party appearing before him understands the process he is
undertaking and its legal effect
9. He has to confirm that the appearer understands the contents of the document,
their import and effect.
10. If he is certifying copies of documents, the notary has to have sight of the original.
11. He has to explain the contents to the appearer if he does not understand it.
12. He has to explain the oath and its import or effect to the appearer if he doesn’t
understand it
13. He has to administer the oath in the prescribed form to the appearer
14. He has to ensure that the appearer signs the document in the presence of the
witnesses
15. He has to ensure that the witnesses sign the document in his presence of the
appearers
16. He has to affix his stamp or seal on the document as proof that the document was
indeed executed before him.

2012
109

QUESTION 1
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109 | P a g e
a)The notary public has to ensure compliance with the following
solemnities

a) He has to check the identity of the appearer and may request

additional proof thereof such as identity documents
b) He has to ensure that the appearer has the capacity to appear and
depose of the document in question
c) He also has to ensure that the appearer has the proper authority to
act and may require additional confirmation to that effect e.g. power
of attorney, affidavits, company resolutions
d) He has to confirm that the signature of the person appearing before
him is indeed his signature.
e) He has to ensure the presence of the requisite witnesses
f) He has to confirm the capacity of the witnesses
g) He has to cross check and confirm the facts deposed in the
documents presented before him
h) He has to ensure that the party appearing before him understands
the process he is undertaking and its legal effect
i) He has to confirm that the appearer understands the contents of the
document, their import and effect.
j) If he is certifying copies of documents, the notary has to have sight
of the original.
k) He has to explain the contents to the appearer if he does not
understand it.
l) He has to explain the oath and its import or effect to the appearer if
he doesn’t understand it
m) He has to administer the oath in the prescribed form to the appearer
n) He has to ensure that the appearer signs the document in the
presence of the witnesses
o) He has to ensure that the witnesses sign the document in his
presence
p) He has to affix his stamp or seal on the document as proof that the
document was indeed executed before him.

b) For a person to be registered as a notary public, he has to:

1. Be a holder of a bachelor of laws degree from a recognized

institution
2. Must have undergone and passed a course in notarial practice,
3. Must be a fit and proper person see IN RE CHIKWECHE, HAYES V THE
BAR COUNCIL
4. Must make an application for registration supported by relevant
documents to the high court
5. Must make an application for a practicing certificate from the law
society
110

6. [‘;Must abide by section 13 of the LPA as well as the Law Society

7. Comply with Regulations
Page

c) Same answer as at nov 2010

110 | P a g e
QUESTION 2

b)i)pactumantichresis

This term is used in civil law to refer to a contract by which a creditor

acquires the right of taking the revenues of the immovable property given
to him in pledge on certain conditions. The proceeds from the property
would be deducted from the interest and later from the principal debt
annually.

An antichresis is a contract for security between the debtor and his

creditor, a transfer of possession of the pledged real property from the
debtor to the creditor, including the fruits or rent income there from in lieu
of payments on the loan, including interest for any such time provided for
in the contract. According to Silberberg and Schoeman9, for the
mortgagee to use and enjoy the fruits of the pledged property, there must
be a legally binding agreement that the fruits of the property shall go to
the creditor for interest on the principal sum until the debt is fully paid.
The creditor does not become the owner of the real property. In other
words, it is the pledge of real property as a security of the debt.

ii) Servient tenement

This refers to the land over which the dominant tenement exercises the
servitude or limited real right by a person other than the owner.

iii)parate execute

This refers to the right of a creditor to use self help if the debtor
defaults in payment. Using parateexecutie, the creditor can execute on
the debtor’s property without a court order.

iv)pactumcommissorium

A pactumcommisorium (lexcommisoria) is a clause in terms of which it is

agreed that ownership of the property in question is transferred to the
mortgagee by the debtor on non payment of the principal debt regardless
of the debt or the value of the property. Such stipulation means that the
creditor will be able to acquire ownership of the property given as such
security without need of public sale or foreclosure required by law.

v)civilitermodo-

In relation to servitudes meant exercise of a servitude ina reasonable

manner in order to encumber the servient tenement as little as possible
and not cause the owner of the servient tenement unnecessary
inconvenience.
111

c) same answer as for question 2d in june 2010

QUESTION 3
Page

9
Klein and Borraine, Silberberg and Schoeman’s the law of property, 3rd Edition

111 | P a g e
a)section 71- If it is expressly provided in—
(a) a registered lease of land; or
(b) a registered deed creating or evidencing a servitude;
that it shall lapse upon the happening of certain events, the registrar
shall, upon written application accompanied by an affidavit by the lessor
or grantor of the registered right, as the case may be, that those events
have happened, cancel the registration of the lease or servitude:

Provided that—

(i) if the address of the lessee or grantee is stated in the registered

document, or the address or any change thereof has been notified to the
registrar, notice shall be given to such lessee or grantee by the applicant
by prepaid registered letter that cancellation of the registration of the
document is sought on the ground of the happening of certain events
mentioned therein and that unless written objection to the cancellation
specifying the grounds of objection is lodged with the registrar within one
month, if the address is in Zimbabwe, or within three months or such
further period as the registrar may in special circumstances determine, if
the address is outside Zimbabwe, application will be made to the registrar
for cancellation of the registration of the said document;
(ii) if the address of the lessee or grantee is not stated in the document or
has not been notified to the registrar as aforesaid, the applicant shall
publish the notice aforesaid once in the Gazette and twice in a newspaper
published in the district in which the land in question is situated (or if
there be no such newspaper then in any newspaper circulating in such
district) and in a newspaper (to be indicated by the registrar) circulating in
the district of the lessee’s or grantee’s last known address which shall be
disclosed by the applicant in an affidavit;
(iii) if any objection is lodged which, in the registrar’s opinion, discloses
reasonable grounds for refusing cancellation of the registration, he shall
not cancel it until the objection is withdrawn or falls away or cancellation
is ordered by the court;
(iv) if any of the rights to be cancelled are mortgaged, notice in writing
shall be given by the applicant by prepaid registered letter to the
mortgagee of the intention to cancel such rights, before the cancellation is
effected.

b)i) the trustees in a trust are described as their names appear in the
deed of trust and their trust name

ii) a partnership is described in the individual names of the partners

followed by the term trading in partnership as….

iii)a public company is described by its name as it appears in its

incorporation certificate
112

iv)an administrator of an estate is described by his authority as it appears

in the letters of administration.
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112 | P a g e
v) a co-operative society is described with its name appearing in its
registration certificate in terms of the relevant law.

1. A and B concluded a Notarial Deed of Servitude of Habitatio in terms of which B

has the right to live in the farm house on the farm property for a period of 5 years.
The deed is registered against A’s Title Deed and the period of 5 years has elapsed.
Advise A how the Deed of Servitude can be cancelled and explain to him what
proviso is contained in the Act in regard thereto. [6]
In terms of section 60(4) of the Deeds Registries Act relating to cancellation of
registration of servitudes, if for any reason a servitude has lapsed, the registrar shall, on
written application by the owner of the land encumbered thereby, accompanied by
proof to his satisfaction of the lapse of the servitude and by all the deeds affected
thereby, note on such deeds that the servitude has lapsed.

As such the deed of servitude registered against A’s title deed can be cancelled by A
making an application to the registrar, with proof of the lapse of the servitude and all
the deeds affected thereby, including his title deed for cancellation of the deed of
servitude.

Amendment of notarial deed in terms of section 27 of the DRA

S27(3)Any amendment the effect of which would be to alter the original number of
undivided shares in land originally created with an exclusive right of occupation unless:

(a) the owner of each such share has consented to the alteration in the number of such
shares; and
(b) the Director of Physical Planning has approved the alteration in the number of such
shares.;

1. Briefly explain the steps to be taken for one to have a right of admission as a
Notary Public in Zimbabwe. [3 marks]

For a person to be registered as a notary public, he has to

8. Be a holder of a bachelor of laws degree from a recognised

institution
9. Must have undergone and passed a course in notarial practice,
10. Must be a fit and proper person see IN RE CHIKWECHE, HAYES
V THE BAR COUNCIL
11. Must make an application for registration supported by
relevant documents to the high court
12. Must make an application for a practising certificate frm the
law society
113

13. Must abide by section 13 of the LPA as well as the Law Society

Briefly explain the steps to be taken for one to have the right of admission as a NP in
Page

Zimbabwe.

113 | P a g e
For a person to be registered as a notary public, he has to

1. Be a holder of a bachelor of laws degree from a recognised institution

2. Must have undergone and passed a course in notarial practice,
3. Must be a fit and proper person see IN RE CHIKWECHE, HAYES V THE BAR COUNCIL
4. Must make an application for registration supported by relevant documents to the
high court
5. Must make an application for a practising certificate from the law society
6. Must abide by section 13 of the LPA as well as the Law Society Regulations

1. Can a Notarial Bond

a. Be passed in favour of more than one mortgagee where the mortgagee’s shares
are ranked differently in order of preference,
b. Be ceded to more than one cessionary.
c. Have a substitution of debtor registered in respect thereof. (3)

a. Where there are two or more mortgagees no ranking can be stipulated with
regard to the amounts due to the respective mortgagees. Separate bonds are
necessary if the cause of debt differs in respect of each mortgagee. As such, a
notarial bond cannot be passed in favour of more than one mortgagee where the
mortgagee’s shares are ranked differently in order of preference.
b. Notarial bonds can be ceded by the holder to any other person or persons and
such cessions will be registered on production to the registrar of an authority in
duplicate signed by the holder or his duly authorised agent and duly witnessed.
The deed of cession must set forth the causa of the cession
c. In terms of section 5 of the Deeds Registers, one of the duties of the Registrar of
Deeds is to accept such documents, so yes, they can be registered.

2. Can you pass a Notarial Bond in favour of an individual in his/her capacity as agent
of a principal? (1)
In terms of section 48 (1) of the Deeds Registries Act, no notarial bond shall be passed
in favour of any person as an agent of a principal. As such, you cannot pass a notarial
bond in favour of an individual in his capacity as agent of the principle.

1. Can you register a Notarial Deed of Personal Servitude of Usus in perpetuity? (1)
In terms of section 59 of the Deeds Registries Act, no personal servitude ,of not only
usus, but also of usufruct and habitatio purporting to extend beyond the lifetime of the
person in whose favour it is created shall be registered. As such, you cannot register a
notarial deed of personal servitude in perpetuity.
9. Distinguish the following:-

(a) Define a Real and a Personal Right then write a brief note on each of themusing
examples to illustrate the points made. (10)
114

(b) The law distinguishes two categories of rights in our law, that
is, personal rights and real rights.
Page

114 | P a g e
This distinction is significant in that different legal consequences flow from
these two categories of rights. Whilst section 2 of the Deeds Registries
Act10 defines a real right as a right that becomes real upon registration, it
is also notable that there are some personal rights which are registrable,
with some becoming real whilst others remain personal notwithstanding
the registration. This brings out the confusion between these two classes
of rights. Thus, in practice the distinction is important in the context of the
registrability of real rights in the deeds office. Therefore the question of
the distinction between the two is a controversial issue which has been
the subject of doctrinal debate because the distinction is so thin and
sometime not so clear. However, what is clear is that there is no one
explanation and description of what a real or personal right is. Flowing
from this, the definition of the two and their differences have been
attempted through case law, theories and legislation. This answer seeks
to explain these differences.

THEORIES
At the centre of distinguishing these rights are two major theories namely
the personalist theory and the classical theory.

The Personalist theory

The personalist theory derives its name from the fact that it places
emphasis on the person against whom a particular right operates. In the
words of Mhishi M.L11, “the personalist theory is so called because it
makes the person against whom the right operates the subject
determining the distinction between real and personal rights.” 12The theory
is therefore founded on the basis of the question as to who can enforce
his right and against who.

According to the personalist theory the holder of a real right has a right to
a thing which, as a general rule, is enforceable against all other persons
that is, against any person who seeks to deal with the thing to which a
real right relatesin any manner which is inconsistent to the exercise of the
holder’s power to control it.13 Real rights therefore belong to a category of
rights known as absolute rights. Absolute because it entitles the holder to
enforce it against all other persons without reference to any obligations.

On the other hand according to this theory, a personal right is perceived

as only relative in that it can only be enforced against a particular person
or group of persons based on some obligation. According to Silberberg a
personal right is “enforceable against a particular person or association of
individuals on the basis of a special legal relationship, such as a contract,
the commission of a delict or some other good and sufficient cause.” 14 A

10
Chapter 20:05
115

11
A Guide to the Law and Practice of Conveyancing in Zimbabwe
12
Supra, @ p 14
Page

13
Silberberg @ p52
14
Supra,

115 | P a g e
personal right is thus a right from a person by a person claiming
something or restraining him from doing something.

Thus, according to the personalist theory a real right is absolute in the

sense that it prevails against the whole world, whereas a personal right is
relative in that the sense that it is only enforceable against a particular
person namely the other party to the obligation. 15

The Classical Theory

In terms of this theory real and personal rights differ on the object of the
right. Real rights according to this theory are primarily concerned with the
relationship between a person and a thing. Personal rights on the other
hand are concerned with the relationship between or amongst persons. In
other words while a real right gives rise to the power of control over a
thing, a personal right only entitlement to claim against a particular
person who owes an obligation.

In light of the above there is no general consensus among the various

jurists as to the legal difference between real and personal rights. In the
words of one author, the distinction “is hard to define.” 16 As such judicial
developments have resulted in the advancement of a judicial approach to
try and distinguish the two rights due to the unsatisfactory explanations of
the theories mentioned hereinbefore.

Judicial Approach
The courts have attempted to make a distinction between the two rights
by applying two concepts. The first concept is that of the intention of the
person creating the right. If the intention was to bind the owner of the
property in his capacity as owner and not merely in his personal capacity
then the court is inclined that a real right was intended. This approach
was considered in Nel v Commissioner for Inland Revenue17

The second concept is the subtraction from the dominium test. In deciding
whether a particular right is a real right the court will look at the nature or
the condition of the right. The right must be such that its registration
results in “a subtraction from the dominium” or “diminution of ownership”
or be a “burden on the land/property….” Put differently, the right must
diminish or reduce the owner’s right over his thing. This test was clearly
adumbrated in the leading case of Ex parte Geldenhuys18. De Villiers
JP said:

“One has to look not so much to the right, but to the correlative
obligation. If that obligation is a burden upon the land, a subtraction from
the dominium, the corresponding right is real and registrable; if it is not
such an obligation, but merely an obligation binding on some person or
116

15
Silberberg, supra
16
Mhishi M.L, supra, @p 15
Page

17
1960(1) SA 227
18
1926 OPD 155

116 | P a g e
other, the corresponding right is a personal right, or a right in personam,
and it cannot as a rule be registered”19

Legislature
The legislature is also seen to recognize the difference between real and
personal rights. Section 2 of the Deed Registries Act 20 provides that a real
right means a right which becomes real upon registration. What can be
deduced from this definition is that it is only a real right that is capable of
registration and personal rights, by implication, cannot be registered. The
definition thus takes into account that there are certain personal rights
which can, upon registration, become real rights. In Registrar of Deeds
(Transvaal) v the Ferreira Deep Ltd21DE Villiers CJ remarked obiter:
“That personal rights, jura in personam are not capable of
registration is a truism. The definition of such rights excludes
their registration. But that does not apply to the class of
personal rights which are known as jura in
personamadaemacquirendam… this class of rights … is personal
until registration, when it is converted into a real right by such
registration.”

If a personal right is capable of becoming a real right on registration, it

does bind successors in title and is capable of being made a charge not on
the person but on the property. As such personal rights ancillary to
registrable real rights are registrable.

From a statutory point of view therefore, the general rule is that personal
rights cannot be registered. However, there are some exceptions because
of some immemorial practice and custom. These exceptions do not make
them real rights. They remain personal between the parties concerned
and these are the rights of usufruct, habitation, and usus. These personal
rights are registrable.22

After all has been said and done, the distinction between a real and
personal right can be summarized as follows: A personal right is
enforceable against the owner while a real right is enforceable against the
owner of the property and against his successors in title. Therefore if the
right is ineffective against successors in title it is a personal right and
cannot be registered.23

According to Jones, a right is real when it entitles the holder thereof to

vindicate or enforce it for himself, it being good against the whole world. 24
It is a right which cannot be contested. Registered ownership, servitudes,
long leases and mortgagee’s rights under a mortgage bond and so forth
19
See also Lorenta v Melle 1978 (3) SA 1044
20
Chapter 20;05
117

21
xxxxxx
22
See Mhishi, supra, @ p17, see also section 59 Deeds Registries Act, supra
Page

23
Mhishi supra, @ p16
24
@ p207

117 | P a g e
are example. The sum total of all real rights in land is absolute ownership
entitling the owner to use, possess, alienate and even destroy what he
owns. On the other hand a personal right entitles a person to retain from
another something or act or even that he should refrain from doing an act.
That right is enforceable against the debtor only. It thus can be deduced
that the remediesflowing from these rights differ.

The differences between the two rights can also be understood with
regards to the object of the right. If the primary object of a right is a thing
then that right is more likely to be real rather than personal right. In
contradistinction, the primary object of a personal right is in general the
performance by another particular party.

Additionally, the subject matter of these rights differs. The subject matter
of a real right should be control or power overa thing. A personal right
gives rise to the right to demand performance of an obligation.
Further, the distinction can also be gleaned from the origin of the rights.
Personal rights originate from an obligation. Usually they arise ex
contractu. They are personal in nature. On the other hand real rights
originate from juristic facts. Another issue is that real rights generally are
given preference in cases of insolvency.

Finally, transfer of real rights is generally accompanied by a certain

measure of publicity. In the case of transfer of immovable property
registration is necessary. Possession in case I movable property creates a
presumption of ownership. This meant to ensure that the whole world
knows,or can be presumed to know, that a particular person has a right in
a particular thing.25 The rationale being that real rights affect third parties

In the final analysis, it is apparent from the foregoing that the legal
difference between real and personal rights cannot be established with
certainty. This is demonstrated by the fact that much ink has been spilt by
legal writers the world over trying to account for this distinction. Be that
as it may, practice has come up with ways in which the difference
between these classes of rights can be determined. These include looking
at who is affected by the right, the subject matter of the right, issue of
registrabilty, obligations and the like. As such what can be advised when
dealing with real and personal rights is to take into consideration the
totality of facts and effects of the right before a conclusion is reached as
to whether a right is real or personal. The difference between these rights
is therefore to be found in the general rule that real rights are registrable
while personal ones are not and that a real right is adequately protected
by its registration.
3. Describe and distinguish the main characteristics of
a. General and Special Notarial Bonds
b. Surety and Collateral Bonds (10)
118
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25
Wille, 261J

118 | P a g e
A notarial bond is a bond hypothecating movable property of a debtor as security for a
debt and it is registered in the Deeds Registry office by the Registrar of Deeds. In terms
of sec 2 of the Act, they are defined as a bond attested by a notary public hypothecating
movable property generally or [Link], there are two types of notarial bonds, a
general notarial bond and a special notarial bond. A general notarial bond, governed by
the common law, hypothecates all the movable property of a debtor while a special
notarial bond is registered over specific movable property of the debtor. They are
usually lodged in triplicate.

Collateral notarial bonds

To constitute an auxiliary collateral bond the following test must be satisfied. There
must be in existence a previously executed and duly stamped bond for the same debt.
The bond must secure a whole or a portion of the same debt or obligationas that
secured by the previous debt. The debtor must be the same. The creditor must be the
same or must hold by cession from the creditor under the previous bond. No bond can
be treated as collateral if it is for a larger amount than the principal bond to which it is
intended to be auxiliary. A bond is held to be previously made if it is signed by the
obligor either prior to or simultaneously with the auxiliary, collateral or substituted
bond. An auxiliary or collateral bond should be drawn in such a way that it contains:

In practice there are two types of Surety Mortgage Bonds.A Surety Bond which is passed
in respect of a debt secured by a registered Mortgage Bond and a Surety Bond passed
for a debt which is not secured by registered Bond.A Surety Bond is a Bond where there
is an existing Bond and someone will be saying I will stand as surety if the debtor does
not fulfil their obligations, or, under an underwritten Bond where although the debtor
owes the creditor money, he has no property to secure the indebtedness and another
party; the surety, provides their property instead.

Suretyship is a contract in terms of which one person (the surety) agrees with the
creditor of another (the principal debtor) to perform the obligations due to such
creditor by the principal debtor if and in so far as such principal debtor fails to do
so. The surety doesn’t replace the principal debtor and doesn’t join him as co-
debtor but that such surety’s obligation arises only in the event of the principal
debtor’s failure to perform. The debtor remains bound to the creditor for the
principal obligation.

Suretyship is not an independent obligation but is always accessory to a principal valid

obligation; the surety’s obligation is accessory to the obligation of the principal debtor.
A surety contract can only exist when the principal obligation is in existence. Though
many suretyship contracts are concluded almost simultaneously with the creation of a
principal obligation, a suretyship contract maybe concluded for an already existing
obligation as well as future obligations yet to be incurred, provided the obligation
doesn’t arise until the principal obligation has come into existence.

Describe in detail what you believe is the significance of having a document

executed notarially. (8)
119

QUESTION: WHAT IS THE SIGNIFICANCE OF HAVING A DOCUMENT EXECUTED

NOTARIALLY?
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119 | P a g e
INTRODUCTION
The office of the notary public is attached with great importance and documents
executed by a notary public are regarded highly. The significance of having documents
notarially executed flows from the high nature of the office and duties of the notary
public, thus it is imperative in trying to ascertain the significance of a notarially
executed document, we first have a look at the office and the duties of a notary public.

A notary public is in terms of section 2 of the Deeds Registries Act 26, “ a person
registered as such in terms of the Legal Practitioners Act ( Chapter 27:07) and in
relation to any document executed outside Zimbabwe, it means a person lawfully
practicing as such in the place where the document was executed”. From this
definition, it can be observed that a notary public is a legal practitioner and as such, an
officer of the court. The duties of a notary public include drawing and attesting
contracts and documents as well as authenticating public acts. The great significance
attached to notarially executed documents stems from the above mentioned status and
duties of a notary public.

Where a document is executed notarially, it signifies that the notary public checked and
is responsible for the accuracy of the information in the certificate. A notarial act comes
into existence if the document is executed notarially and this would be shown by a seal
or stamp of the Notary Public. A document that is executed notarially can be valid for
use in foreign countries.

There is a tradition of honesty and reliability attached to the office of the notary public.
Legal Practitioners and notaries take oaths of allegiance to Zimbabwe promising to be
honest, candid, fair and truthful in the execution of their duties. This was reiterated in
the South African case of Incorporated Law Society Transvaal v Kuyper27 where the
court said that ‘The office of a notary is not only of very great antiquity but one of the
highest importance and responsibility…the greatest confidence and trust is reposed in
any document by a notary. A notarial deed seems to me to be a document of such great
moment that one may call it a solemn document, all solemnities should be observed’.
This tradition of honesty and reliability therefore makes notarially executed documents
important.

A notary public is a specialist in the field28, private individuals may well be skilled
draftsmen but the public has no guarantee as to their ability and trustworthiness.
Notarial documents are regarded as being different from documents signed by ordinary
legal practitioners or any other person trusted with the responsibility of executing
documents. The duties of a notary public involve administering oaths and declarations,
authentication of legal acts, certifying acts, attesting to and acknowledging acts. In
taking oaths, a notary public ascertains the truth regarding the material statements
contained in that document. Attestation, on the other hand, regards to the signing of a
document by a witnesses’ signature. Certification is more or less like attestation but in
certification the notary public would have the intention of ascertaining the truth of a
fact that has been put before him. This shows that there is more expected from a
120

notarial public than any other ordinary legal practitioner.

26
CHAPTER 20:05
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27
1925 TPD 780 TPD
28
Honey and Blanckenberg v Law 1966 (2) SA 43 (R)

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A person is admitted to the office only after the court is satisfied that he is a fit and
proper person to hold the office of a notary public and that he has sound knowledge of
his duties29. A notary public is therefore different from ordinary legal practitioners and
as such, documents that are notarially executed are held in high regard. This was
reiterated in the case of Incorporated Law Society v Swan30wherein it was stated that
because of the fact that a notary public is specially appointed as such by the court; great
significance is attached to notarially executed documents.

A document that is executed notarially is accepted as evidence without need for further
proof31. The very act of notarization is neither empty nor meaningless, but is burdened
with public interest. The public is protected in that not everyone can be a notary public.
This is highlighted in section 9 of the Legal Practitioners Act which states that only
registered notaries public may execute, attest or authenticate documents. This makes it
a closed profession, the rationale being to protect the public. The act of notarization
converts a private document into a public document. The courts and the public must be
able to rely upon the acknowledgement executed by a notary public, thus in the case of
Transvaal Land Bank v The Registrar of Deeds 32 it was stated that ‘a notarial
document is significant in the sense that it is by law entitled to fulfill faith and credit
upon its face.’ As such, a notary public must avoid the use of ambiguous language since a
notarial document cannot be amended by private document.

Notaries are not only appointed by the courts but they always remain subject to the
control and discipline of the court and they may be removed from the office at any time.
They are given certain special privileges and in return the court insists on the highest
possible degree of good faith in all work undertaken and such a standard of good
conduct and behavior as will testify to the fitness of the practitioner for the position of
trust in which he has been placed. Elliot, in his book, The South African Notaries33, states
that a notary public is expected to continuously conduct himself in a manner that befits
of an office taken highly by the courts, thus great significance is placed on notarially
executed by men of highest character.

The accuracy of notarial documents is guaranteed because failure to prepare an

accurate document by a notary attracts civil liability. The notary public would be liable
to damages for professional negligence to any person who may suffer as a result thereof.
In the case of Cape of Good Hope v Fisher34the court held that a notary who does not
use reasonable skill in the exercise of his calling or draws a document which is not legal,
may be held liable for damages to any person who may suffer as a result thereof. This
effectively means that the notary public will exercise due diligence and care in executing
notarial documents. By so doing the public interest is greatly protected by the document
executed notarially.

29
Section 8, Legal Practitioners Act
30
1911 CPD 874
121

31
Elliot South African Notary
32
1906 TS 59
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33
Elliot supra
34
4/SC 368

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A document that is executed before a notary public carries the presumption of
regularity that is every statement contained therein is true and all proper solemnities
have been observed by the notary public, which presumption can only be rebutted by
clear proof of the contrary. This point was laid down in a plethora of cases like Silver
Garbus& Co (Pty) Ltd v Teichertand Gades Assignees v Weijer35. Private individuals
may well be skilled draftsmen but the public has no guarantee as to their ability,
trustworthiness and reliability. This serves to show that documents executed notarially
are of great importance.

The importance of having a document executed notarially is that the position of a notary
public is a very responsible one. In some countries even today such as Australia, Canada
just to mention but a few, the number of notaries is strictly limited, and notaries are
only appointed from the highest ranks of the profession and have to be men of the
highest character. In Incorporated Law Society v Kantor36 it was stated that it was no
answer for a notary public who issues an incorrect certificate to say that he relied on
the assurance of his or her clerk that the matter was in order or on the assurance of an
attorney who is not a notary public. A notarial certificate value comes from the fact that
it is given by a notary public and if the notary public issues an incorrect certificate the
court cannot consider the matter lightly.

International recognition is one of the important aspects as well. A notarially executed

document is also regarded internationally as a document of high esteem. Notarial
practice is concerned with the certification and verification of a document that will be
used in other countries of the world for clients who have business or property or who
are involved in litigation in foreign courts. Thus such certified and verified documents
are significant because inter alia, the notary public mainly acts as an impartial and
legally trained witness to authenticate and certify the execution of documents required
or intended for use outside Zimbabwe. A good illustration here is a power of attorney
which when notarially executed even outside Zimbabwe can easily be accepted as
conferring power on the person so identified in the document. Another scenario
happens when dealing with general or underhand documents as these are not accepted
in evidence in foreign countries. This point brings out the significance of having a
document notarially executed.

Documents executed by a notary public are of great importance and of such nature that
the protection of the public has to be put first. This protection can only be found in
highly skilled and responsible people in the form of notary publics. The courts
continued monitoring of the notaries public ensures that the high standards expected of
the holders of such an important office are not compromised. Equally, the Law Society
of Zimbabwe plays an important role in this regard. It is these attributes of notaries
public that makes documents that are notarially executed fulfill faith and credit upon
their face, not only in Zimbabwe, but even internationally.

CONCLUSION
Notarial instruments, if prima facie duly executed are:
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 Presumed valid and regular

 Self-authenticating
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35
1954 (2)SA 98
36
1917 AD 463

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  Probative
 Public
 Self-executing
 Have a fixed, unalterable effective data.

Thus the presumptions attached to notarial instruments are mainly regularity and
probativity. The former in that by virtue of being an official act, a presumption of
regularity attaches to the notarial document. This means that all prescribed formalities
have been carried out including the reading over of the document.

Probative in that a notarial document is self-authenticating and probative, that is,

admissible to prove the truth of its contents, and all the notaries narrations of fact are
considered first hand evidence of any fact witnessed or verified by the notary.

The secondary effects

Notarial documents cannot be altered or overridden by pre-existing or subsequent
private documents. For example, a notarial will cannot be amended or superseded by a
non-notarial codicil or will.

They also estop the appearer from raising most defences for setting aside the document
including that the contents of then instrument do not express the appearer’s intentions
and that there are reasons why the instrument should not take effect or its ultra vires.

a. Notary public is an authorized executive that is capable of acting as a consistent,

unprejudiced witness for the signing of significant documents. Moreover, a
notary public also acts as a fair-minded third party for parties intending to enter
into a legally binding agreement
b. Notary public is a great way to protect against fraud because it is a requirement
that the signatory of a legal document has to establish his or her identity
c. The appearer always walks away with an instrument that is self-executing, that
is, it requires no further implementing action to be effective and enforceable, just
like a court order.
d. Notarial instruments cannot be altered or overridden by pre-existing or
subsequent private instruments (instruments under hand, deeds, and contracts).
In other words, for example, a notarial will could not be amended or superseded
by a non-notarial codicil or will. They also estop (preclude) the appearer(s) from
raising most defenses for setting aside the instrument, including: (1) non es
factum, (2) the contents of the instrument do not correctly express the
appearer's intentions, or (3) that there are reasons why the instrument should
not take effect (ultra vires, improper execution, etc.).
In short notarised documents have the following status at law. Notarial instruments, if
prima facie duly executed, are:

- Presumed valid and regular;

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- self-authenticating
- probative;
- public;
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- self-executing; and

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 - have a fixed, unalterable effective date (data).
- A notary is admitted to the office only after the court is satisfied that he is a fit
and proper person.
- The document has a seal.
- Guarantees safety of the public documents in that they are kept in a protocol.
Also, the facility of making copies is easy.
- There has been judicial remarks to that effect

1. Describe the procedure you would follow to administer an oath in respect of an

Affidavit. (2)
Procedure followed to administer an Oath in respect of an affidavit

Before a Commissioner of Oaths administers to any person an oath or affirmation in

respect of an affidavit, he shall ask the deponent:

a. his identity and capacity

b. Whether he knows and understands the contents of the declaration,
c. Whether he has any objections to taking the prescribed oath, and
d. Whether he considers the prescribed oath to be binding on his conscience
If the deponent acknowledges that he knows and understands the contents of the
declaration and informs the Commissioner of Oaths that he does not have any objection
to taking the oath and that he considers it to be binding on his conscience, the
Commissioner shall administer the oath by causing the deponent to utter the words, “I
swear that the contents of this declaration are true, so help me God”.

Where the deponent acknowledges that he knows and understands the contents of the
declaration but informs the Commissioner of Oaths that he objects to taking the oath or
that he does not consider it to be binding on his conscience, the Commissioner
administers an affirmation by causing the deponent to utter the words, “I truly affirm
that the contents of this declaration are true”.

1. Explain the common law relating to the change of a person’s surname and the
relevance and significance of the statutory provisions bearing on the matter. [5]
Under common law, prescribed formalities and technical procedures, to the change of
one’s surname, are non-existent. The common law allows a person to freely change his
surname without any impediments. The classic case of Ex parte Halfsland 1917 CPD
529 at530 highlights this proposition. In that case the court stated that the court does
not have the power to authorise a person to change his surname but there is nothing
preventing a person from doing so. A similar decision was reached in M v A and Anor
1981 ZLR 306, wherein Gubbay J stressed the point that under common law one could
change their surname whenever they thought like it.

A notable example would be in regard to women. Upon marriage the wife may assume
her husband surname. All that is required for her maiden surname to cease and the
husband’s surname to flourish, a woman would begin to call themselves by the surname
124

of their [Link], for one to successfully change a surname under common

law all they have to do is to use that surname, consistently openly and in a non-
fraudulent manner. The test was simply that one had to adopt a surname, to the extent
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that the public acknowledges him by the new surname and that such surname should
not be injurious to public interests.

When a name is registered it cannot be changed without proper procedures being

followed. It is a crime to change the information on a birth certificate. A name which is
not spelt correctly can be changed easily. One goes to the Registry and fills in a BD 22
form and an affidavit stating why the name was not spelt correctly. If the Registrar is
satisfied, he /she w ublic an inherent right to change a surname with very little legal
[Link] to change one’s surname:It is done by way of a Notarial Deed of
Change of surname drawn by a Notary Public. In the case of a minor there is need for
consent of the guardian S18(3)??? In case of adoption Children’s Act requires signature
of adopter/guardian S71(1)(b). Registration of Notarial Deed in the Deeds Registry
s18(3)(a)???. The deed is stamped and returned to the Notary. At this point the deed is
examined for compliance with regulations. Advertised on the Gazette: A notice is
published in the Government gazette showing that a person so changing a surname it
calls for any objections, for example that the change so actuated by malice or fraud. A
copy of the notice and the notarial deed are taken to the Registrar of Births with
application to effect change of surname on Birth Certificate s18 (3) (b).

The relevance for requiring compliance with statutory provisions is to give legal
recognition to change of surname and its safeguard against fraud promoted by a
malafide change of surname – Notarial deeds are drawn by a notary public whose office
is of great public respect and regarded as of high esteem. For example notaries public
are duty bound to exercise care and caution in the drafting of notaries deeds.

1. Explain the meaning of the following words in Notarial Practice

a. Protocol register
b. Notarial deed

a. All minutes must be retained by the notary, filed in due order of date in a book
called a ‘protocol’ and registered in the notary’s ‘protocol register’. The protocol
register is a book which contains particulars of all documents which are filed in
the Notary Public’s protocol
b. A notarial deed is defined in the Deeds Registries Act [Chapter 20:05] as a deed
attested by a notary public, but does not include—
i. a document with a signature which is merely authenticated by a notary
public; or
ii. a copy of a document which has been certified as correct by a notary
public

10. Explain whether a tribute contract relating to a mining location must be

notarially executed. Where should such a contract be registered? [3]
In terms of the provisions under part xvii of the Mines and Minerals Act, a tribute
agreement relating to a mining location must be notarially executed and should be
125

registered at the mining commissioner’s office where a register is kept

1. “Firstly a notary public ought to be a person of trust andfidelity, secondly a person of

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some worth and dignity andthirdly a person well instructed in the business of

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 aNotary”, [Ayliffe, Parergon, 1726].Discuss the above statement paying particular
regard to aNotary Public’s functions, ethics, obligations andpractices. (15)

i. The court: The Notary shall, as a government officer and public servant, serve
all of the public in an honest, fair and unbiased manner. He has a duty not to
misdirect the court; the Notary shall not execute a false or incomplete
certificate, nor be involved with any document or transaction that the Notary
believes is false, deceptive or fraudulent
ii. Their clients and other legal practitioners: Notaries are independent and
disinterested; a notary does not represent or act in the interest of any one
party. Instead, under the Dutch legal system, notaries are required to act
impartially on behalf of all parties to a contract or transaction. For example,
when real property is conveyed, notaries act for both the seller and buyer.
They are subject to legal professional privilege and are therefore duty-bound
not to betray client confidentiality,
Duty to act with reasonable diligence

Notaries must apply due diligence to the conduct of their clients’ affairs. They must
acknowledge instructions received, reply promptly to letters and keep their clients and
correspondents informed as to the progress of events. Inordinate delay in performing
work, with resultant actual or potential prejudice to the client, amounts to professional
misconduct.

Conflict of Interest

A notary public is not prohibited from notarizing for relatives or others, unless doing so
would provide a direct financial or beneficial interest to the notary public. However care
should be exercised if notarizing for a spouse or a domestic partner. The following
situations provide guidelines for when a notary public would have a direct financial or
beneficial interest to a transaction are;

- If a notary public is named, individually, as a principal to a financial transaction.

- If a notary public is named, individually, as any of the following to a real property
transaction: beneficiary, grantor, grantee, mortgagor, mortgagee, trustor, trustee,
vendor, vendee, lessor, or lessee.
A notary public would not have a direct financial or beneficial interest in a transaction if
a notary public is acting in the capacity of an agent, employee, insurer, attorney, escrow
holder, or lender for a person having a direct financial or beneficial interest in the
transaction.

Because a notary is a legal practitioner, the same duties of care and competence
expected from an ordinary attorney are of equal application to the former. See Honey
&Blanckenberg v Law 1965 RLR 685 (G) at 691 (1966 (2) SA 43 (R) at 46) (summary).
The general common law ethical standards expected from an ordinary lawyer apply
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mutatis mutandis to the specialised notary public. Legal practitioners must be truthful,
honest, candid and fair in all their dealings. This is an all-embracing and inflexible rule.
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When considering applications for the registration of notaries, the High Court must
consider whether the applicant is a fit and proper person to be registered. This means
that an applicant must be a person of honesty and reliability. See, Hayes v the Bar
Council 1981 ZLR 183 (A) at 199–200 (summary)

Confidentiality

This goes further than legal practitioner-client privilege. Anything that would be
protected by legal practitioner and client privilege under the law of evidence must be
kept confidential, but even communications which are not privileged must be kept
confidential unless the client consents to their being disclosed. Confidentiality extends
to any information gained while acting for one’s client. Even information that has
become an open secret (e.g. a sale of immovable property whose details are
documented in the Deeds Registry) must not be divulged without the client’s consent.
Gossiping about matters in hand, even if the client is not named, is unethical.

Even if a legal practitioner has withdrawn from a matter, information divulged to him
by his former client is confidential, even so far as the client’s new legal practitioner is
concerned. The client’s death does not terminate the need for confidentiality, except in
regard to matters concerning the administration of the client’s estate. A change of legal
practitioners does not terminate the need for confidentiality either. Without the former
client’s consent, the old legal practitioner may not disclose confidential information
without the client’s consent, even for the purpose of putting the new legal practitioner
in the picture regarding the client’s affairs.

Section 23 of LP Act Cap 27:07 sets out various forms of unprofessional, dishonourable
or unworthy conduct on the part of legal practitioners.

Fees and Costs

General principle: making a profit should not be the primary goal of a legal practitioner.
Only reasonable fees are permitted. The Law Society regularly issues a tariff of fees
which should be charged in the absence of the client’s written consent.

Overreaching

This means the extracting of unconscionable, excessive or extortionate fees by a legal

practitioner, through taking undue advantage of a client.2 Deliberate over-charging
amounts to misconduct and the legal practitioner must avoid manifestly excessive
charging, particularly if the client is ignorant. Exceeding the Law Society’s current tariff
of fees is unprofessional conduct, and the Society is likely to regard any of more than 30
per cent above the recommended rate as “materially different”.

On the other hand, as was said in Cape Law Society v Luyt 1929 CPD 281:

“[I]f the prospective client is a free agent, if there is no overreaching, no fraud or duress,
no taking advantage of him, then if the client chooses voluntarily to agree to an
extravagant fee, I cannot say that there would be misconduct.”
127

Overreaching extends to people other than clients. A legal practitioner must not assist a
client to recover from a debtor more than is lawfully due, and thus to overreach the
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debtor. For example, collection charges must not be included in an amount demanded
from a debtor when they are not claimable.

More generally, a legal practitioner should not assist a client to act dishonourably, e.g.
by negotiating an unfair contract on his behalf.

Under-charging

This is also unprofessional conduct, because it is regarded as a form of touting for

custom. The Law Society’s tariff of recommended fees is in fact a tariff of minimum fees.

A legal practitioner must charge adequately and properly for his professional services
unless he or she is acting pro Deo or pro amico.

This is something that must be borne in mind by corporate lawyers. In Law Society of
Zimbabwe v Lake 1988 (1) ZLR 168 (S), a corporate lawyer sought permission to
undertake conveyancing work on behalf of his employer. Conveyancing is work
reserved for conveyancers (then legal practitioners). The court held that he could not do
so. The performance of any “reserved work” (i.e. appearance in court and the
preparatory work that precedes such appearance; notarising documents; and
conveyancing) must be done by independent practitioners, not by employees on behalf
of their employers.

“I think it is a fair proposition that any non-registered person who takes into his employ
a registered legal practitioner in order that he may practise the profession of law on his
behalf poses a potential threat to the professional independence of the practitioner. The
mere fact that the practitioner subordinates himself as a servant puts his independence
in the practice of his profession in jeopardy.” (p. 180D)

This does not apply to legal practitioners in the employment of the State (p. 177E-F)

Judicial remarks

These are judge made remarks concerning the conduct of notaries. See Law Society v
Kuyt where it was stated that the greatest trust in reposed in the notary public in regard
to the almost solemnness of the documents they prepare. In Johnson v Estate La Grange
it was stated that you must be impartial and should not benefit in any facet or have an
interest as a notary.

Knowledge of duties

It is assumed that the notary public has the knowledge of the law in general. That is an
advantage of the notarially prepared documents as well.

Conduct of LPs and notaries

Because of the LPA and Law Society By-laws, the public can report errant LPs and NPs.

Jurisdiction of NP
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The whole of Zimbabwe

Carelessness
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There is presumption of truthfulness of documents and the solemnities observed.
Carelessness is imputed on the NP where documents are revoked or disregarded or
considered inadequate

Language

The NPP is required to use language which he is able to understand and is care and
capable of proper interpretation

Reading and explanation

You should read and explain to the client what it means. Resist clients who insist on just
signing

Blanks

Do not leave blank spaces, they should be ruled through. It is serious misconduct to
have those.

Witnesses.

Make sure that the witnesses are present and are competent. What is a competent
witness.

the significance of the office of the NP which arise from the advantages of the office are

A person who has been admitted has a NP is such a fit and proper person and has the
required knowledge. The person remains under the control and discipline of the courts.
There is tradition of honesty and reliability attached to the office which is upheld
worldwide. The NP who does not use reasonable skill or draws an illegal document can
be held liable for damages. There is a presumption of truth and proper solemnities.

The original act is the minute, signed by the NP and parties and kept in a protocol.

1. Give three advantages of registering a family trust [3]

The advantages of creating a family trust
If it passes the family control test and makes distribution of the trust income to
beneficiaries, then it is provided with certain tax benefits. Bankruptcy or insolvency and
other business misfortunes can be overcome through protection of personal assets. It is
a method to hand over the family’s assets to future generations. It gives access to
favourable tax treatments by ensuring that all the members can utilize their income tax.
It protects the property in trust from matrimonial disputes and assists in the
management of family assets. It has many other benefits which are procurable only
when it is correctly set up. Overall a family trust has been held advantageous than a
standard will, this will be canvassed in greater detail below.

Protects the property from creditors

129

When a family trust is established there is transfer of legal ownership of the property
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into the name of the trust. This protects the property from being reclaimed by debt
collectors, because if property is a legal property of the trust it cannot be reclaimed as a
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personal debt security, unless if it was gifted to the trust during the financial period to
evade the legal sanction. In this context it simply means that such property is even
protected in the event of bankruptcy. The advantageous aspect comes on the fact that
the settlor who will be the debtor might be using or dwelling on the property in the case
of a house.

Keeps the property separate from matrimonial property

The property placed under the trust is kept separate from matrimonial property and, in
the event of a divorce, the property in the trust is left untouched. Generally matrimonial
disputes mostly result in the property being distributed unevenly amongst parties. In
this regard a family trust secures the property for beneficiaries without it being
tampered with. Coupled to this, in the situation of the beneficiaries, who might be
children, the assets will not form part of their personal property and therefore cannot
be subject to claims by their partners.

Tax benefits

Family trusts provides protection against various forms of wealth tax as death duties or
inheritance tax. Assets that increase a person’s estate is divested from him through trust
and death duty payable on the estate is less. Most families use family trusts to minimize
the inheritance taxes associated with the transfer of wealth from parents to children.
Income may be distributed in such a way as to enable all beneficiaries to take advantage
of the tax-free income thresholds. The trust must pay income taxes on undistributed
income that remains after the taxable year. Trustees have the authority to distribute the
trust's income to the maximum number of beneficiaries. They must also consider the
beneficiary's ability to maximize the tax advantages of his marginal tax rate.
Beneficiaries are responsible for settling taxes due on all income, including
distributions.

Generates income
Trustees can make investments in the name of the trust. For instance a trust might use
some of the property it holds as a bed and breakfast to create income that will go
towards the upkeep of the property. The trust can provide the beneficiaries with income
and /or capital to meet their legitimate cash requirements as they arise. This can
protect the long term value of family property.

Not easily revocable or altered

Family trusts on this basis are regarded advantageous as compared to standard wills,
basing on their typical simplicity. The powers of the grantor and trustee are normally
considered irrefutable. Generally a standard will is susceptible to contestation due to
the fact that it is public in nature. The probate process can drag on and costs the
beneficiaries considerable money in legal costs. However a family trust allows the
bypassing of the probate court, instead the assets are distributed by a successor trustee
as provided for in the trust deed. Also on the confidential aspect family trusts, unlike
standard wills, are not publicly registered and the details of the family trust
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arrangement is kept confidential.

- Less tax charges

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- Generates income

130 | P a g e
 - It is a contract
- Offers more security than a will that is subject to contestation
- Confidentiality
- Cannot be easily altered
- Estate duty is reduced
- Ensures proper administration of the estate
- Protects the beneficiaries from themselves
- The trustees are people with specialised technical skills which will benefit the
beneficiaries
.
2. How do you describe a natural person in a Notarial Document? [1]
A natural person is described by their full name and surname in addition to their date of
birth and I.D Number in a notarial document

3. How does the Deeds Registries Act define a ‘Notarial Deed’? [3]

A notarial deed is defined in section 2 of the Deeds Registries Act [Chapter 20:05] as a
deed attested by a notary public, but does not include—

a. a document with a signature which is merely authenticated by a notary public; or

b. a copy of a document which has been certified as correct by a notary public;

4. How many copies of the notarial deed (Trust) do you lodge and why? [2 marks]

There shall be three copies. One for the deeds office in Harare, the other in
Bulawayo and the other one for the parties

1. How should a power of attorney to pass a Notarial Bond be authenticated if

executed inside Zimbabwe?[3]
78 Attestation of powers of attorney

Powers of attorney to pass deeds or to do any act in connection with a deeds registry shall—

(a) if executed within Zimbabwe, be accepted if witnessed by two competent witnesses or

by a justice of the peace or commissioner of oaths and the signature of each such witness,
the justice of the peace or commissioner of oaths, as the case may be, has been affixed
thereto in the presence of the person executing it;

5. How would you describe the following Mortgagees in a Notarial Bond:-

a. The Trustees in a Trust
b. A Partnership
c. A Public Company
d. Administrator of an Estate
e. A Co-operative Society [5]
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trust as per its Trust Deed

In a partnership, the full names of the partners and their dates of birth must be provided
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when transferring property. This is followed by the words:

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"...associated together in partnership" or
".... carrying on business in partnership under the name Bloggs and Bloggs"
company is described by its full name as it appears on its certificate of incorporation,
society or cooperative by its constitution.
a. In their capacity as trustees for the time being of Kanyemba Trust___, and
authorised by virtue of the trust, an extract of the copy which is filed in my protocol
b. Carrying on business in partnership under the name Bloggs and Bloggs ___and
authorised by virtue of the Partnership agreement, a copy of which is file in my
protocol
c. In his capacity as director of Lever Bros Private Limited, ___and authorised by virtue
of a company resolution dated ___, a copy of which is filed in my protocol
d. In his capacity as executor dative (or testamentary) for the estate of ___ and
appointed in terms of letters of administration issues by the Master of the High
Court
e. In his capacity as director of JendeKufa Co-Operative Society and authorised in terms
of meeting of the council dated___, a copy of which is filed in my protocol

2. How would you express the area of a piece of land in a Notarial Deed of servitude
of Habitatio? (1)
In terms of regulation 11(4) of the Deeds Regulations, in any document in which a
servitude is described, or defined the information shall be expressed in metric measure
and, if so required by the registrar, it shall be supported by a certificate issued by the
Surveyor-General.

3. In what order should a “minute” be filed in the “protocol”? (2)

The original act passed before a notary is called the ‘minute’. It must be signed by him,
the parties and the witnesses. All minutes must be retained by the notary, filed in due
order of date in a book called a ‘protocol’ and registered in the notary’s ‘protocol
register’

1. In what respects do you consider that the law relating to the change of a person’s
surname could be reformed and replaced by a better system to the advantage of
the less privileged members of our society. [5]
The reforms and replacements suggested are aimed at curtailing the
financial burden that dogs the indigent who wished to change their
names. The reforms include, the introduction of electronic processes of
change of name, decentralisation of the Deeds Offices, removal of
monopoly granted to notaries in change of name processes, creation of
forums that dispense information relating to change of name process and
widening the means of publication of notices.

1. In what way do Notarial bonds offer lesser security than Pledges? Why then are
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they being registered in some cases more than Mortgage bonds? Discuss in
detail[10]
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Pledge

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Corporeal or incorporeal movable property of a pledgor (the debtor or surety in terms of a
valid principal debt), given to a creditor in pledge as real security for the payment of the
debt, grants the pledgee (creditor) a limited real right to the property as security until the
principal debt has been paid in full. The general principles governing mortgage apply to a
pledge of movables in every respect. Accordingly there must be a valid principal obligation
which the pledge is intended to secure equally the pledge cannot be created by agreement
alone. The agreement must be accompanied by delivery of the article to the pledgee.

Agreement between the pledgor and the pledgee

The pledge object

Only movable property can be delivered to the pledgee. It can be single object or a
collection with incorporeal property such as shares also allowed. The fruits of the object also
form part of the pledge.

Delivery

In order to establish and retain security in the form of a limited real right to the pledgor’s
property, the object must be delivered to the pledgee and controlled by him. The
recognised methods are real delivery (traditiovera) and delivery with the short hand
(traditiobrevimanu). Constitutumpossessorium is not a recognised method since the
property remains in the control of the owner and can mislead other creditors of the owner
to their detriment

To overcome this problem, the parties often represent the pledge as a simulated contract of
sale, which would cause injury to the other creditors of the pledgor . However, these are
regarded as void by the courts. As such, the agreement to create a pledge will be carefully
scrutinised by the court to ensure it does disguise the transaction designed to remove assets
from the pledgor’s possession to the detriment of his creditors, either for his own benefit or
to confer on a particular creditor an undue preference.

It happens often that parties resort to a sale coupled with, for example, a lease-back, or a
resale at the same price – while the true intention is to acquire the benefit of a pledge, the
court will refuse to give effect to such simulation transactions. Whether the true intention of
the party, i.e. to create a pledge, will be given effect to, depends on whether or not
requirement for a pledge, including the requirement that the debtor must have divested
himself of the control of the thing has been complied with.

In the case of Cholwick v Penny (1887) 5 EDC 270, a debtor “sold” and delivered his
furniture to a creditor on condition that he has the right to re-purchase it as soon as he was
in the financial position to do. It was held that it was a pledge. The same result was reached
in Payne v Yates (1892) 9 SC 494 where the property of the debtor was in the position of the
3rd party to when it was alleged to have been “sold”, whereas on a proper analysis of the
facts, it has only been pledged. In both these cases the creditors were treated as pledgees
despite the fact that the legal nature of the transaction has been disguised. So summarily, a
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contract of pledge without delivery of the object is not enough to establish pledge as a
limited real right in respect of the property
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First, the introduction of electronic processes of change of name. On this
point constructive lessons can be borrowed from other jurisdictions such
as the United States. In the United States one fills in forms of details
relating to his current names, social security number, identification
number and the purported change of name. The change of name
document will be emailed back to the individual, sealed by a notary, who
can then print it if he requires a hard copy. It is submitted that electronic
lodgements in the Deeds Office and applications to the Registrar General
will be much more expedient as far as time and financial resources are
concerned. Facilities that will need to be established in particular a
computerised system at the Registrar’s Office, the requisite software and
hardware that will be utilised. There is also a concomitant responsibility
for the educating of personnel and the Registrar’s office in the use of a
new system.

The second suggestion is that of decentralising the Deeds Offices and

those of the Registrar Offices. At the moment there are only two Deeds
Offices in Zimbabwe, one in Harare and the other in Bulawayo. The main
contention against limited offices is that individuals who live in the
outskirts would find it quite difficult to access these offices transport costs
being one of the main problem. Again because the offices are congested
there is poor administrative systems at such offices see for example the
lamentable situation at ‘Makombe’. The South African system of Deeds
Offices in almost every province is commendable and again in this regard
lessons can be learnt.

Removal of monopoly enjoyed by notaries in change of name processes.

The Law Society tariff prescribes $150 - $225 as fee for drafting of a
notarial deed. This amount can be elevated by a margin of 30%. Again a
notary public is a legal practitioner and as such a consultation fee might
be charged. Unlike in the Zimbabwean scenario it is not a requirement
that a Notarial Deed of change of name be executed before a notary
public, it can be done by various organisations such as the legal room.
These organisations have proven to be cheaper than approaching a legal
practitioner. The paper also concedes that legal practitioners are highly
skilled and can bear responsibility for their actions, it is suggested that the
arguments against the removal of the monopoly currently enjoyed by
legal practitioners is not agent or as convincing as those in favour.

Additional creation of forums that dispense information concerning

change of name processes would obviously go a long way in as far as
helping the indigent is concerned. In the United States there are websites
which deal with name change processes where information relating to the
process is posted.

Lastly widening means of publication notices would be a welcome reform.

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At the moment publications are carried out in the Gazette. It is submitted

that the gazette is not well read in remote areas where a number of
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underprivileged individuals are located. Publications on other wide read

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papers such as the Herald, Newsday or even H-metro would go a long way
in reaching the underprivileged.

In sum, the common law relating to change of name of a person’s

surname allows a person to freely change their name with very few legal
impediments, all that was required was consistent use of the new
surname openly and in a manner consistent with other people’s rights. It
was however fraught with weaknesses e.g it could be abused to
perpetuate fraudulent activities. Statute law under the Births and Deaths
Registration Act provides a panacea to the likely abuse under common
law, by the introduction of a notary public in the process, requirements of
publication and a well-defined system presented under the Births and
Deaths Registration Act. Suggestions have also been made in regards to
the inherent weaknesses of the statutory provisions, the reforms are
aimed at reducing the financial plight of the underprivileged members of
our society.

1. “In Zimbabwe all Notaries Public are Legal Practitioners butnot all Legal Practitioners
are Notaries Public.”Explain.(2)
This is because in terms of the legal practitioners Act in order for one to become a Legal
Practitioner, they have to undertake the requisite training, in this case the LLB degree
programme, whilst for notary public, in addition to having undergone that training, the
person must have done a special course called notarial practice.

1. Is it necessary for a Notary Public to put a seal on Notarial documents executed

before her? Explain your answer. [1]
It is not necessary to affix a seal on a notarial document in general unless the document is to
be used internationally

1. Is it necessary to deliver a servitude? Answer Yes or No and briefly explain your

answer in 3 to 4 lines. (4)
A servitude, like all other real rights has to be delivered to the holder to render it a real
right. Delivery is effected by registration in the deeds office. An unregistered servitude
which has been acquired by agreement, though binding between the contracting parties,
does not vest legal title to the servitude in the dominant owner, and as such, if dominant
owner desires to alienate his property, together with his right of servitude, the latter
cannot be transmitted to the purchaser until the servitude is registered against the
servient tenement and in favour of the dominant tenement.

1. Is ranking of Notarial bonds permissible? (1)

If there are 2 duly registered notarial bonds, the bond registered first, whether general
or special, will be preferred over the later bond. The date of execution does not affect
the position and as such, ranking is permissible within that context.
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1. Is the register of Deeds obliged to register Waivers of Preference in respect of

registered Notarial Bonds, whether registered or about to be registered? [1]
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In terms of section 5 (l), the registrar of deeds is obliged to register waivers of
preference in respect of registered notarial bonds in favour of other bonds, whether
registered or about to be registered.

1. Is the registrar obliged to register a hypothecation of a lease which is movable? [1]

In terms of section 68 DA, no hypothecation of a lease or sub-lease shall be registered in
a deeds registry unless such hypothecation is effected by means of—a notarial bond, if
the lease or sub-lease is not immovable property

1. Is the registrar of Deeds obliged to register antenuptial contracts [1]

In terms of section 5 (m) of the Deeds Registries Act, the registrar is obliged to register ante-
nuptial contracts

2. List any four essential elements that are necessary for a valid trust to be created.
(4)
a. The essentials of a trust are that the founder intends to create the trust and
b. his intention is expressed in a form which creates a legal obligation to found the
trust.
c. The founder must also define the trust assets and the trust objects which must be
lawful.
d. An obligation must be placed on the trustee to administer the assets for the
benefit of another person or object and
e. he must be independent and have control over the assets of the trust.

6. List any four physical defects that Registrar of Deeds could invoke to justify a
refusal to register a Document. .... . (2)

- If the document is not written in the English language and not upon strong white
paper of the international standard paper size A4 (297mm x 210mm) and
without a clear margin of at least 35mm on the left side thereof or if it is written
on both sides, on the right hand side also in terms of section 3 (1) (a)
- If it is not written in legible characters and not written using permanent black or
blue black ink or if copying ink is used in terms of section 3 (1) (b).
- If the upper half of the first page is not left blank for the purposes of office
endorsements as required by section 3 (2).
- If any space which has not been used in the document has not been ruled
through as required by section 3 (4).
- Where the document consists of more than one page, if the necessary catchword
has not been written at the bottom of each page. Section 3 (5).
- Where a document is expressed in foreign language, if the translation thereof has
not been certified by a person accepted by the registrar as a competent
translator. Section 5
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- If the writing in the document has been rendered illegible due to faintness or the
folding of the document. Section 6
- If the document does not specify the identity of any person mentioned therein in
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accordance with the provisions of section 51. Section 8 (1)

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 - If a document adds aliases or assumed names to any name. Section 8 (2)
- Where a document refers to a document filed in the deeds registry, if it does not
quote the number and date necessary to identify the filed document. Section 9
- Where a document is in favour of a corporate body, if the relevant extract from
the constitution of the body has not been filed of record to show that the
transaction concerned is within the powers which may lawfully be exercised by
the body concerned. Section 12 (1) (b)

2. Lizzy Lazy, a friend of yours from Law School, sends you an affidavit made by her
through her messenger for your signature as a Commissioner of Oaths. What do
you do? Explain your answer. (3)

A commissioner should not authenticate a signature where he has not seen the
signatory sign, see S v Hurle and others 1998 (2) ZLR 42 (H) at 50, and he should not
sign or procure the signature of blank documents, e.g. powers of attorney

Mining Location

In terms of the mines and minerals Act “mining location” means a defined area of ground in
respect to which mining rights, or rights in connectionwith mining, have been acquired
under this Act or which were acquired under any previous law relatingto mines and minerals
and which were held immediately before the 1st November, 1961;

Mining contracts

According to Elliot in his book South African Notary a mining contract is a notarial deed
where the holder of a mining title over base metals, precious metals or natural oil grants
rights to another party over the title.

Options and relating to mining locations

An option is an offer to sell which remains open during a stipulated period and if it accepted
at any time before the expiration of that period a binding contract comes into existence
between the parties see VanPlasten V Henning 1913AD 82 at 98. This case and subsequent
case law have established the position that an option is a separate contract between the
option grantor and the option holder to keep the option contract open for a particular time
interval in which it must be accepted. . In Hersch v Nel1947(3)SA 695 , the court stated that
an option is an agreement between the giver and the holder of the option by which the
giver has bound himself to sell a certain thing to the holder at the option if the holder
should require him to do so within the time fixed by the option. The giver grants and the
holder acquires the right to buy.
137

In the realm of mining, options are most prevalent in prospecting contracts. Prospecting
refers to the searching of an area for mineral deposits which are then analysed to determine
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whether sufficient quantities are present to warrant mining operations and the most

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appropriate method of extraction. A prospecting contract would thus be a contract whereby
one party grants another the right to search for and analyse mineral samples in an area over
which the former has mining title.

In these prospecting contracts, the options that can be included are those stated in
Badenhorst Mining and Minerals:

An option to purchase the land including any of the mineral rights;

An option to acquire the minerals;

An option to obtain lease of the mineral rights

As a mining option is a mining contract, the requirement of registration that applies to

mining contracts generally is applicable. Notarially executed options are registerable with
the Registrar of Deeds in terms of s56 of the Deeds Registries Act. Prospecting contracts in
which option contracts are present can also be registered. This is in terms of s278 of the
Mines and Minerals Act. Where an option has been registered in relation to a mining
location, such registration precludes any transfer or abandonment of the mining location as
a whole or part thereof, see S279 Mines and minerals Act.

Aside from this, the general rules of contract governing option contracts apply. It must be
clear in its language and be a complete contract in itself.

Hypothecation of mining claims

Mining hypothecations are mortgage bonds over mining claims and are registered in terms
of section 259 of the Mines and Minerals Act. They are effected by applying to the Mining
Commissioner for hypothecation of an interest in a mining location. The application must be
accompanied by Notarially certified copies of the agreement giving rise to the
hypothecation.

The Secretary for Mines is obliged to keep a register of hypothecations setting out details of
the parties, the mining location, the amount due and any interest payable. The effect of a
hypothecation is that it is a bar to transfer or abandonment of the mining location.
However, it is not a bar to execution or to transfer of the mining location on insolvency.

Tribute agreements

The Mines And Minerals Act defines a tribute agreement as “any agreement or
arrangement entered into after the 1 st July, 1947, whereunder any person has given a
tribute, licence, concession, authority or other right to mine a mining location to a tributor,
and includes any such agreement or arrangement which was entered into before the 1 st July,
1947, and which is renewed after such date, and any agreement to alter the terms of a
tribute agreement which has been approved by the Board(Mining Affairs Board) and
any agreement to alter the terms of a tribute agreement which has been
approved by the Board and any renewal of a tribute which has been approved by the Board.
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S 283 Mines and Minerals Act”

This is in addition to what is provided for in s280 which describes a tribute agreement as an
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agreement where a “holder of a registered mining location has agreed in writing to grant a

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tribute or any other limited right to work such mining location to any other person”.S280
Mines and minerals Act.

What this means is that a tribute agreement is a contract whereby the owner of land over
which certain mineral rights are vested grants another person the right to enter upon his
land to prospect, mine and remove minerals from the land for his own benefit. This right is
granted for a limited period in return for a consideration to the owner of the rights. This
consideration can be in the form of a lump sum or periodical payments or commission
based on [Link] [Link]

In Durma (Private) Limited v Siziba1996 (2) ZLR 636 Ebrahim J noted that the statutory
definition of a tribute agreement does little to elucidate the nature of a tribute agreement
and it becomes necessary to look at common law. The court in this case made a number of
findings on the nature of a tribute agreement:

In a tribute agreement mineral rights are let by one party (the grantor) to another (the
tributor);

It is not a lease of land or minerals, but of the incorporeal right to win minerals from the
ground;

A condition is attached to the agreement that the tributor pays a certain proportion of
proceeds to the mine owner.

Tribute agreements are contracts sui generis, not being contracts of sale or contracts of hire
(leases) at common law, though the principles applied in relation to them are not very
different from those applied in more traditional contracts.

The tributor is given the right to mine the land and win from it as much of the minerals
sought as he can during the period of the tribute and to dispose of the minerals so won for
his own profit.

Tribute agreements do not have to be notarially executed unless they are to be registered.
This requirement of notarial execution is found in s280 of the Mines and Minerals Act which
deals with registration of tribute agreements.

Notarial bonds offer very precarious security

Definition

A notarial bond is a special form of security hypothecating movable property as security for
a debt.

1. Does not transfer possession which remains in the hands of the debtor unlike with a
pledge
2. The assets can be alienated, donated, sold without knowledge of creditor
3. There is no proof of encumberance unlike a caveat in the case of a mortgage bond
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4. There is no “notice” to the world to desist from dealing in encumbered property

unlike with a mortgage bond where the caveat on the title deeds act as constructive
notice and a bar against alienation of the property.
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 5. The asset may depreciate in value through use, wear and tear and may end up not
being sufficient to secure the debt.
6. It ranks lower than other forms of security such as mortgage bonds
7. The debtor can register another notarial bond over the same property despite the
fact that another bond already exists against that property. In the event of litigation
the second bondholder stands to lose.
8. The debtor can sell the property to an innocent third party and the creditor will not
be able to claim against the innocent party unless if he had prior knowledge of the
encumbrance. See Mayer v Botha &Anor 1982 1 SA 47
9. It confers personal rights which are enforceable against the two parties instead of
real rights which are enforceable against the whole world. See exparte Marcus 1902
TH 87
10. It does not protect the property against execution in judicial proceedings as
movables are executed on first.
11. The rights under a notarial bond do not exceed beyond the lifetime of the holder as
compared to real rights which extend further.
12. Unlike a pledge, the bondholder has no right to claim delivery or possession of
bonded articles during the solvency of the debtor.

Protocol No…………………….

NOTARIAL DEED OF SERVITUDE OF

RIGHT OF WAY
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KNOW ALL MEN WHOM IT MAY CONCERN
THAT on this 27th day of 2016 in the year of our Lord, Two thousand
andSixteen (2016) before me,

KUNDAYI KANYEMBA
Notary Public by lawful authority duly sworn and admitted, practicing at
Harare, Zimbabwe and in the presence of the subscribing witnesses,
personally came and appeared.

NYASHA ALUWIN

He being duly authorized thereto under and by virtue of a Special

Resolution passed at a meeting held at Harare on the 27th day of
March 2013 by the Directors of:

NUANETSI RANCH (PVT) LTD

(hereinafter called the Grantor)
and

JOHN EASYWAY MONEYBAYS

(Born 1 January 1980)
(hereinafter called the Grantee)

AND THE APPEARERS q.q DECLARED THAT WHEREAS: -

(A) The Grantor is the registered owner of CERTAIN PIECE OF

LAND SITUATE IN THE DISTRICT OF NUANETSI CALLED
NUANETSI RANCH 461 OF LOT 35A MARANDELAS
MEASURING 313, 65 HECTARES

Held under Deed of Transfer Reg. No. 4088/78 passed In favour of

NUANETSI RANCH Private limited on the 15th November 1978.

(the said piece of land being hereinafter referred to as “the

Ranch”)

(B) The Grantor has allowed the Grantee a right of way within the
hereinafter mentioned servitude area
(C) The basis of this Notarial Deed of Servitude is the written
agreement between the NyashaAluwin Ian Dow and John Easyway
Moneybags dated the 24th day of March 2016
(D) The right of way shall be for the Grantee and his successors in
title to the said Ranchand he shall have the right for himself, his
staff or workers, relatives, associates servants, and friends to use
the right of way
(E) Hereinafter wherever the term “Grantor” is so used, it shall also
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be construed to mean where appropriate the Grantor, his assigns

and heirs in title
Hereinafter/…..
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 (F) Hereinafter whatever the term “Grantee” is so used, it shall also
be construed to mean where appropriate, the Grantee, his assigns
and heirs in title.

NOW THEREFORE THE APPEARER q.q DECLARED THAT the Grantee,

who is the registered owner of Stand 460 Marandellas 11 of Lot 35A
marandellas measuring 200 Hectares held by it under Deed of Transfer
No. 1930/88 issued on the 25th March 1988, its order, assigns and
successors in title shall have a perpetual right of way servitude on, over,
in, under and in respect of the servitude area subject to the following
conditions:

1. Servitude shall consist of the right of the Grantee:-

(a) To pass through using the

(b) To transport its goods
(c) To use which manner of transportation
(d) To drive its livestock through the way

2. The rights exercised by the Grantee in respect of the servitude area shall be
exercised at his sole expense and in exercising them the Grantee shall not
act in a manner which will unreasonably interfere with or disturb the
Grantor or cause the Grantor either directly or indirectly any harm or
damage other than is essential to enable the Grantee to enjoy the use and
benefit of his rights.
3. Servitude Area

(A)
The servitude area shall comprise an area of 7 metres in width
going along from the northen side of Little England Farm to the
South End in a straight path all the way to the boundary with
stand 460.
7. Interpretation
The power of interpretation should any dispute arise shall vest with the
Grantee

8. If any damage is caused to the by the Grantor within or outside the

servitude area, the Grantee shall be entitled to recover from the Grantor
thecosts of repairing the damage and, without prejudice to the generality
of the aforegoing, the Grantor shall not tamper with the borehole, pump,
fittings, water pipes and any other related equipment without seeking the
consent of the Grantee since this may ultimately be injurious to the
borehole.

9. All costs and charges in connection with the negotiation, execution

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and
registration of this Servitude shall be borne and paid for by the Grantee.
10. This Notarial Deed shall be registered against Title Deeds for Stand
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 460 and Stand 461 Mount Pleasant Township 11 of Lot 35A Mount
Pleasant and the Grantee shall pay all costs in effecting registration.
AND THE APPEARER q.q FURTHER DECLARES on behalf of the
Grantee to hereby accept in so far as it may be necessary, the benefits of
the Servitude subject to the terms and conditions aforementioned.

THUS DONE AND EXECUTED AT HARARE on the day, month and year
first aforewritten in the presence of the undersigned witnesses and of me,
the Legal Practitioner/Notary Public.

AS WITNESSES

(1) _________________________ _______________________

APPEARER q.q THEGRANTOR

(2) ________________________________

_______________________________

APPEARER q.q THE GRANTEE

QUOD ATTESTOR

_________________________________
___LEGAL
PRACTITIONER/NOTARY
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PUBLIC
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 PROTOCOL NO…
55/2016……

NOTARIAL COLLATERAL BOND

KNOW ALL MEN WHOM IT MAY CONCERN

THAT on this 18th day of May in the year of our Lord, Two thousand and
Sixteen (2016) before me,

KUNDAYI KANYEMBA

Notary Public by lawful authority duly sworn and admitted, practising at

HARARE, Zimbabwe and in the presence of the subscribing witnesses,
personally came and appeared:

SHAKA ZULU

(born 1 January 1980)

144

Herein refereed to as the Mortgagor

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AND THE APPEARER DECLARED that

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WHEREAS the Mortgagoris truly and lawfully indebted and held and firmly
bound unto and on behalf of

ABC (Private) Limited

a financial institution duly incorporated in terms of the laws of Zimbabwe

(hereinafter referred to as “the Mortgagee”) its order, successors and
assigns in the sum of $200 000 (TWO HUNDRED THOUSAND DOLLARS)
(hereinafter referred to as “the Capital sum”) arising from and being
money lent and advanced, together with interest thereon at the rate of 10
percent per annum from the 1st day of January 2017,

AND, as security for which indebtedness Mortgage Bond No 56/2015

(hereinafter referred to as “the principal bond”) was registered in the
Deeds Registry at HARARE on the 1 of January 2014 over the property
thereby specially hypothecated.

AND the said Mortgagor requires the indebtedness of the Mortgagee

under the principal bond to be further secured by the hypothecation of the
undermentioned property as collateral security

AND the Mortgagor has agreed to comply with the aforesaid requirements
of the Mortgagee

NOW therefore the Mortgagor further declared under renunciation of the

benefit of all the legal exceptions non numerate pecuniae, non
causadebiti, errore calculi, revision of accounts, no value received, and all
other exceptions which might or could be taken by the Mortgagor at law
or in equity to or in respect of the payment of the Capital sum or any part
thereof, with the full force, meaning and effect whereof the Mortgagor be
fully acquainted, to bind the Mortgagor to pay to the Mortgagee the
Capital Sum, together with interest on the said Capital Sum and the
Financial Indebtedness and other amounts due and payable;

AND for securing payment of the said Capital sum, the financial
indebtedness and all interest and other sums payable, the Mortgagor on
his behalf hereby declared to bind generally his person and all his
movable property of every description and wherever situate both such as
he is at present or may in future become possessed of without any
exception, submitting it all and the choice thereof to constraint and
execution as the law directs.

And the Mortgagor further declared that this Collateral Bond shall be
subject to all the terms and conditions set out in the principal bond as
fully and effectually as if the same had been inserted herein and to the
special condition that upon payment and discharge of all obligations
under the principal bond this bond shall be null and void but shall
otherwise be and remain in full force, virtue and effect.
145

THUS DONE AND EXECUTED by the donee at HARARE on the day,

month and year aforewritten in the presence of the undersigned witnesses
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and of me the notary public aforenamed.

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As witnesses: 1…………………………
………………………………

(‘MORTAGOR’)

2………………………..

QUOD ATTESTOR

……………………………

NOTARY PUBLIC

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