Zimbabwe’s legal system is based on Roman Dutch law. Contracts for the design or carrying out of building works are governed by common law. The relevant local authorities have powers to designate the design and carrying out of building works in their jurisdictions. The local authorities have stipulated building standards through model building by-laws which parties must incorporate in their agreements for the design or carrying out of building works.
Last modified 12 Jun 2024
Before an engineering or building contractor starts work, they require consents and approvals from certain offices or departments. All engineers in Zimbabwe must be registered with the Engineering Council of Zimbabwe under the terms of the Engineering Council Act [Chapter 27:22] before they can perform any works.
Projects require the following approvals, which may be obtained by the contractor or the owner:
Last modified 12 Jun 2024
Health and safety rules are guided by a number of statutes. The main acts to be observed in terms of health and safety in construction works are the Labour Act [Chapter 28.01], the National Social Security Authority Act [Chapter 17.04], Factories and Works Act [Chapter 14.08] Environmental Management Act [Chapter 20:27], the Pneumoconiosis Act [Chapter 15:08].
There are also some specific rules that govern the use of land and buildings, depending on the nature of the structure and the permitted use of the land. An example would be restrictions on the use of land and water in the vicinity of aerodromes. In general, local authorities have adopted the Model Use and Occupation of Land and Buildings By-laws while city councils have adopted Public Health By-laws which regulate the permitted uses of land and buildings within their jurisdiction.
Last modified 12 Jun 2024
Environmental protection issues are provided for in the Environmental Management Act [Chapter 20.27]. The Environmental Management Agency (EMA) does however take the lead role in ensuring that individuals and companies comply with this legislation.
The Environmental Management (Effluents and Solid Waste Disposal) Regulations, 2007 regulates the disposal of effluent and solid waste and provides for the procedure in the event of accidental spillages.
In terms of the Environmental Management Act [Chapter 20:27] and the Environmental Management (Environmental Impact Assessment & Ecosystems Protection) Regulations, SI 7 of 2007, housing developments, and commercial industrial plants, tourist resorts and recreational developments among other developments require an Environmental Impact Assessment to be conducted by EMA.
Last modified 12 Jun 2024
The construction of infrastructure to support a new development is ordinarily permitted in a permit issued by the local authority. The local authority would state the minimum specifications of the infrastructure or the need for approvals from the relevant utility that governs the infrastructure. For new roads and sewers the city council or rural district council, whichever is applicable, would authorize this, while electricity supply would be authorized by the Zimbabwe Electricity Transmission and Distribution Company. Water connections would be approved by the Zimbabwe National Water Authority.
Last modified 12 Jun 2024
Although there is no mandatory requirement to that effect, the parties would need to ensure that they incorporate the necessary approvals from the local authority into their agreements. The terms and conditions of engagement are usually governed by contract, and they therefore tend to vary in each case. The common law fiduciary duties of a contractor therefore apply. These include but are not limited to:
When engaging in construction on behalf of a procuring authority, the Public Procurement and Disposal of Public Assets Act [Chapter 22:23], and The Public Procurement and Disposal of Public Assets Regulations of 2018 provide for the minimum standards applicable in construction contracts with procuring authorities.
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The Construction Industry Federation of Zimbabwe (CIFoZ) is the construction industry association and it has established the National Joint Practice Committee (NJPC) Standard Contracts 2000. These contracts are based on FIDIC Contracts and have been approved by FIDIC.
Last modified 12 Jun 2024
The parties to a construction contract are the employer and the contractor. The structure may vary depending on the required works. Commercial structures usually involve the following parties:
Last modified 12 Jun 2024
Ordinarily, the contractor will not bear the risk associated with design. The quality and standards applicable to construction works is in accordance with industry norms. The contractor will thus bear risks related to the quality of workmanship.
Force majeure is applicable in such contracts and the parties would need to agree on what constitutes a force majeure event depending on their preferences.
Last modified 12 Jun 2024
Public-private partnerships (PPPs) are encouraged by the government and have been identified as the key driver to infrastructural development in the governments various work programmes. The recently enacted Zimbabwe Investment Development Agency Act [Chapter 14:37] (ZIDA Act) which repealed the Joint Ventures Act [Chapter 22:22] (JV Act) has provided a structure to regulate the growing concept of public-private partnerships in Zimbabwe.
The legislation has now aligned Zimbabwe to the regional trends of the African continent where regulation of Public-private partnerships has already been implemented. In its essence, the ZIDA Act regulates the agreements between public entities and the private sector in so far as it relates to the ‘design, construction, development, operation or delivery of a new infrastructure, asset, facility or service or the rehabilitation, modernization, expansion, operation, delivery or management of an existing infrastructure, asset, facility or service.’
The ZIDA Act clearly defines the types of PPP projects that would be regulated by it, namely: Build and Transfer (BOT), Build, Lease and Transfer (BLT), Build, Operate and Transfer (BOT), Build, Own and Operate (BOO), Build, Own Operate and Transfer (BOOT), Build, Transfer and Operate (BTO), Contract, Add and Operate (CAO), Develop, Operate and Transfer (DOT), Rehabilitate, Own and Transfer (ROT), Rehabilitate, Own and Operate (ROO), Build, Own, Operate and Maintain, Lease Management Contract, Management Contract, Service Contract, Contract for Services, Supply, Operate and Transfer.
In terms of the ZIDA Act, a public entity intending on entering a PPP needs to comply with the following steps:
Cabinet approves or rejects the proposal, fully or provisionally.
Last modified 12 Jun 2024
The application of fixed price contracts is as agreed by the parties. Fixed price contracts are therefore possible and are common.
Last modified 12 Jun 2024
Employers in Zimbabwe are expected to have employer liability insurance in place. The building contractors and any other party to the works who is an employer is therefore expected to have employers’ liability insurance.
Contractors will also be expected to take out public liability insurance during the construction period to cover injuries to persons other than employees and damage to property.
It is prudent to obtain insurance on the works, however the type of insurance put in place depends largely on the nature of the construction site. The most common insurance policy for major construction sites would be the construction all-risk policy that provides cover for the entire project.
Last modified 12 Jun 2024
The security documents used to secure a project vary considerably depending on the nature and purpose of the construction works as well as the zone in which the construction takes place. The common position is that, in commercial arrangements, the contractor would ordinarily be expected to issue a performance guarantee or a performance bond from a third-party surety or alternatively a bank or parent guarantee is used extensively. The type of security undertaken is subject to agreement between the employer and the contractor.
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Payment to contractors are regulated by the unique agreement between the parties. Thus payments depend on sources of finance and the agreement between the contracting parties.
Last modified 12 Jun 2024
It is very common to agree on a fixed date for completion of the works. Penalties are usually imposed before the contract is signed, so that both parties are aware of possible repercussions.
Last modified 12 Jun 2024
Variations are normally dealt with in the construction contract agreed between the parties, which will prescribe the scope and nature of the allowable variations as well as the procedure to be adopted where a variation to the works is requested. Should the contract not address variations to the works, the parties would need to agree in writing, in keeping with the contract’s non-variation clause. To the extent that the variations are within the scope of any authorised plans or permits from the local authority or other such inspector, these variations will require the aforementioned persons’ approval.
Last modified 12 Jun 2024
A local authority would give final approval and a certificate of occupation in respect of residential, commercial and industrial zones, based on a structural certificate, given by the construction engineer, that signals that the building is complete and suitable for use. In addition to this, the parties would ordinarily agree to appoint a person to certify the successful completion of the project before the contract is even signed.
Last modified 12 Jun 2024
The ordinary period of prescription is three years under the terms of the Prescription Act [Chapter 08:11]. A period of prescription may be waived by the parties to an agreement.
Last modified 12 Jun 2024
The common law provisions in relation to damages and liability would be applicable in this instance in the absence of an agreement between parties. The standard agreements, that is, the National Joint Practice Committee (NJPC) Standard Contracts 2000 would normally provide for defects liability of the contractor.
Last modified 12 Jun 2024
In terms of the common law the architect or the engineer would be held liable for structural flaws or problems with the building (latent defect liability), however, the extent of his liability can be limited contractually. There is no general liability extending to members of the public or the end users of a completed development. The standard applicable is therefore the issuance of warranties by the designers and contractors to the owner for an agreed period of time.
Last modified 12 Jun 2024
The parties that are not parties to the construction contract may be given security in different ways. Banks and other lenders ordinarily require to register some form of bond over the property itself, that is a Mortgage Bond or a Notarial General Covering Bond for movables. Tenants may likewise register their long leases in terms of the Deeds Registries Act [Chapter 20:05]. Purchasers would secure their interests possibly through a conditional cession by the owner. The security is generally captured in the agreements with the third parties and may at times be incorporated in the structure off the transaction such as by taking insurance.
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Complaints relating to engineers may first be submitted to the Engineering Council of Zimbabwe. As there is no specialist court dealing with construction issues, claims for smaller amounts of money may be dealt with at the Magistrates’ Court whilst the High Court deals with claims for larger amounts. Appeals are to the Supreme Court are possible. The establishment of a commercial court, which will be a specialist division of the High Court is currently under way. Further, rather than approaching the courts, parties may also nominate to use arbitration procedures.
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Commercial disputes are ordinarily referred to the Commercial Arbitration Centre in Harare, or recently, the African Institute of Mediation and Arbitration (IAMA). This process is faster and the decision of the arbitrator is final and binding. Review of the decision of the arbitrator may be made to the High Court on public policy grounds or procedural grounds as set out in the Arbitration Act [Chapter 7:15]. The Arbitration Act does not provide for appeals.
Last modified 12 Jun 2024
Complaints relating to engineers may first be submitted to the Engineering Council of Zimbabwe. Construction disputes are not obligated by the law to go through Alternative Dispute Resolution, although in most cases parties prefer them over all other means due to the speedy nature in which arbitration matters are dealt with. Additionally, parties may wish to appoint specialist arbitrators, and this would not be possible within the formal court process.
Last modified 12 Jun 2024
What type of legislation exists dealing with environmental issues affecting building works and with promoting sustainable developments?
Environmental protection issues are provided for in the Environmental Management Act [Chapter 20.27]. The Environmental Management Agency (EMA) does however take the lead role in ensuring that individuals and companies comply with this legislation.
The Environmental Management (Effluents and Solid Waste Disposal) Regulations, 2007 regulates the disposal of effluent and solid waste and provides for the procedure in the event of accidental spillages.
In terms of the Environmental Management Act [Chapter 20:27] and the Environmental Management (Environmental Impact Assessment & Ecosystems Protection) Regulations, SI 7 of 2007, housing developments, and commercial industrial plants, tourist resorts and recreational developments among other developments require an Environmental Impact Assessment to be conducted by EMA.
Last modified 12 Jun 2024