CONVEYANCING
1. What law regulates Powers of Attorney in Zimbabwe?
The Powers of Attorney Act [Chapter 8:09] governs and regulates the issuance and formalities of Powers of Attorney (‘POA’) in Zimbabwe.
2. What is a Power of Attorney?
Learned author P Kanokanga, ‘The China-Africa Joint Arbitration Centre (CAJAC)’ (2022) 16 (1) Pretoria Students Law Review 144 at 159 defined a Power of Attorney (‘POA’) as follows:
“A POA is a legally binding document in terms of which one nominates, constitutes, and appoints, a named party to be his or her lawful attorney and agent, in name, place and stead to conclude certain juristic acts in his or her name. The scope of authority of a POA, includes but is not limited to the authorisation to represent a party in the arbitral proceedings, other legal matters related to the dispute, the power to appoint arbitrators, to revoke and replace arbitrators, the authority to attend any hearings and to make representations, and to agree on the place of arbitration, the place of hearings, and the language of the arbitration.”
3. How many types of Powers of Attorney are recognized in Zimbabwe?
There are two legally recognized types of Powers of Attorney (‘POA’) in Zimbabwe, namely a General Power of Attorney (‘GPOA’) and a Special Power of Attorney (‘SPOA’).
In each case, however, the scope of the agent's authority will depend upon the interpretation of the document from which he / she derives power.
A GPOA, “is nothing more than a bundle or collection of special powers enumerated in one instrument. Yet if there are any general words which appear to govern the whole instrument, the court must so far regard the power as a whole, unless there is something that one or more clauses should be read apart from the rest.” Grobbelaar v Cockcroft 1906 EDC 109 at 113.
Whilst a SPOA, is nothing more than a mandate or special powers authorizing the person appointed by the grantor to do some specific act or business on behalf of the grantor. In Mutemererwa & Another v Tavarwisa & Another HH 160-2004 the court held that
“In casu, the power of attorney nominated and appointed the agent for managing and transacting all the principal’s affairs involving the purchase of the property. There would be no justification for construing it to have authorised him to bring and prosecute legal proceedings. He had no authority to do that.”
Similarly, in Ashley v S.A. Prudential Ltd 1929 (1) TPD 283 at 285 the court held that:
“But in my opinion, where the authority is stated to be ‘to demand and receive the title deeds relating to such transfer’ it cannot be said that bringing legal proceedings to obtain the title deeds is a necessary or usual means of executing the authority to ‘demand and receive’. The institution and prosecution of legal proceedings is an important step which may involve the principal in great expense and I see no justification for holding that where a principal authorises an agent to ‘demand and receive’ a thing, the principal must be taken to have intended to include the authority to bring and prosecute proceedings. There is no reason for construing the word ‘demand’ in a sense other than its ordinary sense which is well understood and means ‘claim’ in other words an extrajudicial demand”
4. Are there any specific requirements for a Power of Attorney to be valid?
In order for a Power of Attorney to be valid in Zimbabwe, same has to be reduced to writing and signed by the principal. The Power of Attorney must also be clear and describe and identify the agent / attorney and the scope of his or her authority.
Although it is not specified in Zimbabwean law, it is common to have a Power of Attorney witnessed by two witnesses above the age of fourteen and who are capable of giving evidence in court. The exception to this is where the Power of Attorney is signed either before a Justice of the Peace i.e., Commissioner of Oaths or a Notary Public.
5. Is a Special Power of Attorney required to litigate in Zimbabwe?
A Special Power of Attorney (‘SPOA’) need not be filed in all instances to institute or defend litigation in Zimbabwe, but the authority to act on behalf of an individual in court by another is required. It is important to note that one cannot rely on a general power of attorney to institute or defend litigation. What is required is a SPOA, as litigation comes with legal expenses and consequences and as such specific authorization is required.
6. How old do I need to be to pass a Power of Attorney in Zimbabwe?
Any person over the age of eighteen (18) years can pass i.e., grant another a Power of Attorney to be his or her lawful attorney and agent, in name, place and stead and to conclude certain juristic acts in his or her name.
7. Can I appoint my spouse, child or close relative as my attorney?
Yes, it is possible to appoint a spouse, child or close relation to be your attorney when drawing up a Power of Attorney in Zimbabwe. It is important to choose someone who you trust. In the event that you do not have a spouse, child or any relatives in Zimbabwe, it is also possible to appoint a duly registered legal practitioner.
8. What authority can be granted to someone in a Power of Attorney in Zimbabwe?
A Power of Attorney (‘POA’) is a legally binding document in terms of which one nominates, constitutes, and appoints another i.e., an agent / attorney to sign or conclude certain transactions when they find themselves unable to personally to do so. In Zimbabwe, there are different types of powers of attorney, including the General Power of Attorney and Special Power of Attorney. The scope of authority depends on the type of power of attorney to be passed in favour of the attorney i.e., it could be specific and limited or it could be broad to include issues such as managing assets and property, to collecting debts and instituting and defending legal proceedings or investment of monies or the management of the financial affairs of an individual in Zimbabwe.
9. Do I have to register my Power of Attorney with any authority in Zimbabwe?
No. There is no legal requirement for the registration of Powers of Attorney (‘POA’) in Zimbabwe.
10. Can a Power of Attorney be terminated in Zimbabwe?
Yes. A principal, that is the grantor of a Power of Attorney (‘POA’) can revoke i.e., terminate the authority / mandate he or she would have conferred on an agent in Zimbabwe whether the agent had commenced to act on it or not.
11. If someone’s Mental Health is questionable can they sign a Power of Attorney?
When a person who has made a Power of Attorney is no longer of sound mind i.e., lacks legal capacity to understand the nature, purpose and consequences of his or her actions by reason of mental incapacitation, the Power of Attorney cannot be relied upon. Neither can such Power of Attorney if it had been granted before be relied on. It becomes invalid due to the grantor’s mental health deterioration.
12. What is the duration of a Power of Attorney in Zimbabwe?
Under Zimbabwean law, a Power of Attorney (‘POA’) is valid until it is dissolved by revocation by the grantor i.e., the principal. A POA can be terminated by the grantor at any time, whether the attorney / agent has commenced to act on it or not, and whether or not it has been expressly or impliedly agreed that the authority will be revocable. It is also important to note that the authority conferred on an attorney in a POA can also come to an end when the grantor becomes incapacitated or dies.
13. Is a Power of Attorney valid after death in Zimbabwe?
In Zimbabwe, a Power of Attorney (‘POA’) is extinguished upon death of the principal i.e., the person who granted the authority. The affairs of a deceased person after death are dealt with by an Executor / Executrix who is issued with Letters of Administration by the Master of the High Court of Zimbabwe. Resultantly, a POA is not valid after the death of its grantor in Zimbabwe.
14. Does a Power of Attorney need to be notarized in Zimbabwe?
If the grantor of a Power of Attorney is within Zimbabwe, his or her Power of Attorney can simply be signed before a Justice of the Peace / Commissioner of Oaths. However, where the grantor of the Power of Attorney is outside of Zimbabwe in order for the Power of Attorney to be valid in Zimbabwe, it has to be attested by the signature and seal of a Notary Public.
15. Lasting Power of Attorney in Zimbabwe?
The concept of a Lasting Power of Attorney (‘LPA’), also known as an Enduring Power of Attorney (‘EPA’) which is in essence a special type of Power of Attorney (‘POA’) which allows its grantor to choose someone to act on their behalf and make decisions if they lose their mental capacity does not exist in Zimbabwe.
16. What is the alternative of a Lasting Power of Attorney (LPA) in Zimbabwe?
In Zimbabwe, the Lasting Power of Attorney (‘LPA’), also known as an Enduring Power of Attorney (‘EPA’) does not exist. However, this does not mean that the law does not provide recourse. In terms of common law, a close relative to a patient, which means any of the following persons—(a) the patient’s grandparent, parent, brother, sister, child or grandchild, whether such relationship arises through blood or adoption; (b) the patient’s step-grandparent, step-parent, step-brother, step-sister, step-child or step-grandchild; (c)where the patient is married, his spouse or his spouse’s grand-parent, parent, brother or sister can make a chamber application for the appointment of a curator person for the care and administration of a patient’s estate.
17. Do I lose control of my assets i.e., money and property once I sign a Power of Attorney?
No, not at all as a Power of Attorney (‘POA’) is simply authority to another person to conclude juristic acts in one’s name or on one’s behalf.
18. What is a Power of Attorney to Pass Transfer?
A Power of Attorney to Pass Transfer is authority / mandate which a Seller (or his / her agent appointed through a Special Power of Attorney) signs authorizing a Conveyancer i.e., a transferring lawyer to appear before the Registrar of Deeds and to register the transfer of an immovable property from the Seller to a Purchaser in the Deeds Office.
In Scapelox Trading (Pvt) Ltd v Mashangwa Family Trust & Others 2014 (1) ZLR 229 (H) 233 – 234, it was held that: “It is trite that a conveyancer represents the seller and as such the practice in this jurisdiction is that the seller chooses a conveyancer of his choice to transfer the property from the seller to the purchaser. It is for this simple reason that it is the seller who gives a power of attorney to the conveyancer to pass transfer to the purchaser. The pre-amble to a deed of transfer generally states that the property has been sold and that the conveyancer, as the attorney of the seller, does transfer the property to the new owner, the purchaser. If the purchaser would choose the conveyancer, how would such conveyancer transfer the property from the seller without being an attorney of the seller?”
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