LINCOLN MAJOGO

  by Lincoln Majogo   The Companies and other Business Entities Act passed in 2020 replaced the Companies Act which had been in force since 1951. Amongst a plethora of revolutionary changes to the manner in which business is carried out in Zimbabwe was legislative rehabilitation of common law principles. The widely celebrated Salomon case solidified the principle of corporate personality which perceives a company as a fictitious person capable of incurring rights and obligations as a natural person. The lottery ticket for this principle lay inside limited liability for directors in that their personal assets cannot be attached when suing a company since the company is a person at law capable of suing and being sued in its own capacity independent of its employees. Whilst the wisdom of the Salomon case is something one cannot ignore, this precedent let loose an army of stray directors who could simply defraud innocent third parties in the name of the company and walk away scot-fr

      LEGAL.                 Introduction The area of judicial activism and restraint remains one of the most contentious topics amongst legal scholars and judges all over the world. Hinged on the doctrine of separation of powers, the judiciary’s traditional role has been confined to interpreting statutes whilst the legislature retains the duty of making laws. In Zimbabwe, like most democracies the law-making role vests with parliament in terms of section 130 of the Constitution.   A question often arises over the role of judges in circumstances where existing laws are unjust. Is a judge justified in departing from precedents (judicial activism) where a law appears patently unjust for instance colonial segregatory laws during the colonial era in Zimbabwe. The risks are of-course manifest as this constitutes an encroachment of the judiciary inside the arena of parliament. Various problems arise from this encroachment, chief amongst them being a violation of democracy as unelected