Mediation has even been provided for in the High Court Act and the court on its own volition can order parties to opt for mediation before proceeding for trial. In terms of proceedings, the same are public, save for matters that are confidential, such as under the State Security Act, under which an application can be made for the public to be excluded, and proceedings relating to juveniles. Costs of interim applications or motions are usually paid in the discretion of the court, which means that the court may order that costs be paid forthwith or at the end of the determination of the main matter. If the matter is not commenced within the six-year period, it shall be statute barred. The COVID-19 pandemic has significantly disrupted the operation of courts and hearings, which has brought about a slight change in the way the courts are now resolving matters. The statutory law also encompasses common law, which applies in default of statute. In the case of Musakanya v Attorney General (SCZ Judgment No 18 of 1981) , the Supreme Court held that because a matter of constitutional importance was raised, the losing party was not condemned in costs but, rather, each party was ordered to bear their own costs. The following are the main rules that govern the admission of evidence in the context of the Zambian legal system. An appellant may appeal against the whole or a part of a judgment. A mortgage action is one example of an action that is commenced by way of originating summons. The court is, however, mandated to grant post-judgment interest, and this is awarded at the Bank of Zambia Lending Rate in accordance with the Judgments Act, Chapter 81, of the Laws of Zambia. Since third-party funding is not provided for or prohibited by statute, there is no regulation in terms of the minimum or maximum amount for such funding. the isolation of all suspected and confirmed cases of COVID-19; and. In Zambia, the Constitutional Court, the High Court and the Subordinate Courts have original jurisdiction to hear matters; that is, matters can be commenced in theses courts. The Supreme Court and the Constitutional Court sit at the apex of the Zambian court system, ranking equivalently, although, in terms of jurisdiction, the Supreme Court is the final appellate court in relation to civil and criminal appeals emanating from the Court of Appeal.
The Supreme Court and the High Court are both presided over by the chief justice. The requirement to issue a demand letter prior to commencing an action by way of writ of summons and statement of claim was introduced by the High Court (Amendment) Rules Statutory Instrument No 58 of 2020. The sum awarded is decided on a case-by-case basis.
There are three ways in which service can be conducted; namely, personal service, substituted service and service by post. The Court of Appeal Rules provide that an appeal from a judgment of the court shall be made to the Supreme Court with leave of the Court of Appeal. The following are the subject matters that cannot be referred to arbitration in Zambia: The following are the circumstances through which a party may challenge an arbitral award: Zambian courts will generally enforce an arbitral award rendered by a recognised arbitral institution as a legal, valid and binding submission to the arbitration in accordance with the rules of such recognised arbitral institution if the submission is accepted by the recognised arbitral institution as legal, valid and binding under the forum laws. The court has to ensure that the proceedings are conducted according to the law and procedure. The party disobeying the injunction is liable for contempt and may be fined or sentenced to imprisonment. all arbitral institutions rendering an award under the auspices of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, of 10 June 1958, including the London Court of International Arbitration, the International Chamber of Commerce, the Arbitration Association (Southern Africa) and the Arbitration Foundation of Southern Africa; and. However, the practice has been that the court process will not be accepted by the court registry for filing. A party to proceedings is allowed to amend their documents at any stage during the proceedings before trial. For money judgments, the court also has discretion to grant pre-judgment interest from the date on which the cause of action arose to the date of judgment pursuant to Chapter 74 of the Law Reform (Miscellaneous Provisions) Act. Furthermore, before hearing the evidence of a child, the court must conduct a voire dire. However, for proceedings in the High Court to be commenced by a writ of summons and statement claim, litigants are required to firstly issue a letter of demand that sets out the claim and the circumstances surrounding the claim in detail against the other party before proceeding to file an action in the High Court. The other consideration taken into account by the court is whether a matter raises issues of public interest, in which case the court is not likely to make an award of costs. The notice of appeal and memorandum of appeal shall be entitled in the proceedings from which it is intended to appeal and shall be filed with the Registrar within 30 days after the judgment appealed against. This involves the lawyer calling the witness to clarify on matters that may have arisen during cross-examination. However, in relation to the Supreme Court, the right of audience is limited to an advocate who has practised law for at least three years. It is only admissible if it is given on oath and is corroborated. As proof of delivery of the court documents to the defendant, the plaintiff is required to exhibit an affidavit of service. A mandatory injunction has the effect of directing the doing of a positive act in a bid to correct some omission or restore the prior position by undoing or correcting the wrongful act. a dispute that, in terms of any law, cannot be decided by arbitration; matrimonial matters or any matters incidental; the determination of paternal, maternal or any parentage of a person; and. The Supreme Court further exercises such other jurisdiction as may be conferred upon it by statute. There are no conditions that are usually imposed on the granting of leave to appeal or granting of the actual appeal in the Court of Appeal. This is a process whereby the court enquires as to whether the child understands the nature of an oath and understands the duty of telling the truth. In Zambia, interested parties not named as a plaintiff or defendant are allowed to join a lawsuit upon showing the extent and nature of the interest such person has in the matter.
Furthermore, the court can, on its own motion, call an expert witness to testify. In Zambia, the law allows one or more plaintiffs to prosecute an action on behalf of a larger group of claimants. The High Court has unlimited civil and criminal jurisdiction and appellate jurisdiction in respect of appeals from the lower courts. The reasoning for this was stated by the Supreme Court in a case in which it was held that while the means by which the evidence was obtained can be questioned, the existence of the evidence itself is a fact and cannot be overlooked. The trial process involves litigants and their legal representatives producing evidence before court to support their respective claims. The court will then reserve its ruling at a date to be advised. Subordinate Courts (Amendment) Act (No.
Such an application can be made by a defendant who has given notice of intention to defend. The exception is where the witness attacks the character of the witness from the other side. In relation to actions under the Fatal Accidents Act, the limitation period is three years.
In the same vein, there are no prescribed restrictions on such funding. The court usually will not grant costs where the matter being litigated upon is novel. These documents are not subject to privilege per se, but they are accorded a level of immunity. Please also refer to 14.1 Proposals for Dispute Resolution Reform regarding court hearings. The interim applications are not limited to case management, but parties are able to obtain remedies such as injunctions, preservation orders and Anton Piller orders. Lawyers have no audience in this court. However, illegally obtained evidence in the form of illegal interception under the Cyber Security and Cyber Crimes Act is not admissible in court. The function of the writ of summons is to inform the defendant of the nature of the plaintiffs claim and cause of action. The legal system in Zambia promotes ADR to a large extent. In addition, a judge of the High Court has power to refer a matter to mediation. The trial process is generally party driven, save for the commercial division of the High Court, which is court driven. The court will grant an order stating that the plaintiff advertises the court process in a newspaper of wide circulation for a given duration. Either party to an action has the option of calling an expert witness or tendering an expert opinion at trial. Zambia has a dual legal system comprising statutory and customary law. Illegally obtained evidence is admissible if it is relevant. Contributed By These departments are Corporate, Finance and Commercial Transactions; Dispute Resolution; Tax and Compliance; and Real Estate and Company Secretarial. In the case of interlocutory applications made on the floor of the court, the court will generally pronounce itself at the hearing but may also reserve its ruling. The last stage is re-examination. The statute of limitation provides that actions that are founded on simple contract or on tort shall not be brought after the expiry of six years from the date on which the cause of action accrued. a Commercial Division which is a fast-track division of the High Court that specifically deals with civil matters that are commercial in nature; an Industrial Relations Division which was established to strictly deal with employment or labour law-related matters; a Family Division which was established to deal with domestic-related issues such as divorce, judicial separation and maintenance; a Childrens Division which was established to deal with juvenile-related matters; and. Foreign lawyers cannot conduct cases or practise law in the Zambian courts of law unless they are admitted to the Zambian Bar. The main institute for arbitration in Zambia is the Chartered Institute of Arbitration Zambia, which promotes ADR by making available to anyone seeking an arbitrator of a certain expertise a list and detailed background of arbitrators from which a party may choose. Lawyers have no audience in this court. The High Court has five established divisions, as follows: The Subordinate Courts have territorial jurisdiction to hear both civil and criminal matters as the court of first instance. Litigants have the right to appeal from judgments of the Subordinate Court to the High Court. As a general rule, the court will usually grant an injunction affecting assets within its jurisdiction. Furthermore, in addition to the specific reliefs sought, successful litigants are also awarded costs. For foreign judgments that originate from countries where Zambia has no reciprocal arrangements, the same are not enforceable by mere registration under statute. This is also the position in relation to matters commenced by originating summons, petitions and originating notice of motion. This notwithstanding, for urgent applications, parties usually demonstrate to the court that the said applications are urgent by accompanying the application with a certificate of urgency. In most instances, class suits are opt-in actions, which essentially means that the court's decision applies to all the plaintiffs and if the matter is dismissed, the plaintiffs cannot pursue further recourse. There are various forms of damages that may be awarded, including special, normal, nominal and punitive damages. Where leave is granted, the appellant shall give notice of appeal in accordance with the Court of Appeal Rules and the order granting leave shall be included in the record of appeal. For civil matters, the jurisdiction is limited to any claim equal to or less than ZMW100,000. One of the common actions commenced by originating notice of motion is judicial review. Confessions are admissible in evidence if they are voluntarily given. This applies to trial and appellate proceedings. However, if there is corroboration of the testimony, then the evidence can properly be admitted into court. There are several remedies that are available to a successful litigant at the full trial stage, and these are dependent on the reliefs sought by a party. Generally, court proceedings and filings in Zambia are open to the public, except where the law explicitly provides for confidentiality. The courts also usually do not grant costs in public interest litigation matters. There are four principal modes of commencing actions in the High Court: The general rule is that all matters are to be commenced by way of writ of summons unless statute provides otherwise. In some instances, leave may not be required, especially where pleadings have not closed. a General Division which hears any matters as the court of first instance or appeals from the Subordinate Courts. The reliefs include perpetual injunction, compensation, court orders, damages, restitution and specific performance. Once this is done and parties comply with the various orders that were given, a status conference is held within 30 days before the commencement of trial. Interest may be granted from the date of commencement of the action to the date of payment; this interest is granted at the Commercial Bank Deposit Lending Rate. These claims mainly deal with claims for less than ZMW10,000. These include a writ of execution, a writ of elegit, a writ of possession, a writ of fieri facias, the issuance of garnishee proceedings and an application for a charging order if the relief granted is in relation to property. In instances where leave to appeal is required, a formal application for leave to appeal has to be made if a judgment or ruling does not deal with the issue of leave to appeal. At this stage, the lawyer calling the witnesses asks the witness questions that help them bring out their side of the story. Conciliation is also common in relation to disputes centred around collective agreements or collective bargaining.
Act, Chapter 72 of the Laws of Zambia, and the Limitation Act of the United Kingdom of 1939 are the principal pieces of legislation providing for limitation periods with respect to civil suits. The local courts are only concerned with cases of customary law and very minor criminal matters. In this regard, court filings are available to the public upon payment of a search fee. An application to join proceedings will be heard before hearing any other issue in the matter. As the name suggests, the idea is for the court to be informed of the status of the matter vis--vis the issues agreed upon at the scheduling conference. The subordinate courts are magistrates courts and have limited jurisdiction in civil and criminal cases. In view of this, the court will consider whether the party claiming costs has proved their case, and whether they did anything wrong in the action or conduct of it. In practice, service entails that the party initiating the litigation must bring the legal process to the attention of the opposing party. there is some other compelling reason for the appeal to be heard. Expert witnesses are called for the sole purpose of giving expert opinions. A party outside jurisdiction can be sued provided the subject matter of the action is within Zambia. A party that makes a confession can object to its admission into evidence if the confession was not voluntarily given.
Interim motions or applications are heard and determined through written applications; however, in certain circumstances, they can be raised orally before court. However, certain motions can be raised on the floor of the court and the party will be allowed to orally make its case. This was cured by the amendment of the High Court Rules by virtue of Statutory Instrument No 58 of 2020. In relation to appeals from the Court of Appeal to the Supreme Court, the appeals are not by way of right and a party should show that it is a matter of public importance for leave to appeal to the Supreme Court to be granted. This opens up the option for the other side to bring out the bad character of the witness in question. An injunction is generally granted against a party to the proceedings. Thereafter, the court will make its determination and grant a ruling on the issue that has been raised. the production of the documents disclosed for inspection by the opposite party and the actual inspection of the documents disclosed. The main reason for awarding damages is to put the claimant in a position that they were in before the contract was entered into in the case where a contractual claim is being made. However, the litigants administer the discovery process. When awarding damages, the court is guided by the principles of causation and remoteness of damages. Thereafter, parties file written submissions in support of the whole case. The process of examining witnesses involves three stages. In addition, the Fatal Accidents Act also provides a limitation period within which actions under the Act must be commenced. Judges of the Supreme Court and High Court are appointed by the President on the advice of the Judicial Service Commission, subject to ratification by the National Assembly. The court will generally reserve judgement for a later date in matters that are contested. The requirement for a legal representative to represent a party in the Supreme Court, the Constitutional Court, the Court of Appeal, the High Court and the Subordinate Courts is that they should be an advocate admitted to the Zambian Bar. In Zambia, when making an application for an injunction, the party applying makes an undertaking to pay any damages that may be suffered by the other party as a result of the injunction that was obtained. There is no requirement for a legal practitioner to provide clients with an estimate of costs of the potential litigation prior to taking on an instruction, but there is a requirement for there to be an agreement on the fees payable by the client from the onset. Discovery of documents does not extend to third parties and is limited to the parties of the proceedings, unless a third party is ordered by court by way of subpoena to provide certain documents. However, an injunction, once granted, is binding not only on the party in the proceedings but also against the agents and servants of such party. Mulenga Mundashi Legal Practitioners The second stage involves cross-examination. The originating summons is accompanied by an affidavit and skeleton arguments. The process of the discovery of documents operates generally in two stages: The taking of witness testimony does not form part of the discovery process in Zambia; however, witness statements do form part of the evidence to be relied on during trial. However, there is no express requirement for court approval for a settlement, except for court-annexed mediation, in which a settlement order is mandatory. the closure of any premises that pose a public health threat linked to COVID-19. 4 of 2018). This is done by calling witnesses to testify in aid of a litigants case, the examination of the said witnesses and production of other evidence, including actual objects. Depending on the complexity of the matter, expert witnesses or examination may be at hearings/trial. MMLP is one of Zambias most sophisticated full-service law firms, which operates through four broad departments, under which specific practice areas fall and teams are constituted based on the expertise of the personnel. the award is against public policy or was obtained through fraud, duress or misrepresentation. MMLP has over the years become a firm of choice for the corporate world and a link to the Zambian market for several multinational corporate entities across Africa and the world. any matter affecting a minor or any person of legal incapacity. An application can be made to dismiss a matter on a point of law. This application is usually made where the plaintiff resides out of jurisdiction or there is reason to believe that a plaintiff will be unable to pay the costs when, or if, the defendant is successful. Therefore, judicial review acts as a public law control mechanism, meaning only bodies that are public in nature can be brought before the courts of law by way of judicial review. A settlement agreement in the form of a consent judgment is enforced in the same manner as any other court judgments are enforced. An appellant may appeal against the whole or a part of a judgment, which entails that those new issues that were not explored at first instance cannot be raised on appeal, as the appeal will focus on a part or the whole of the judgment of the court of first instance. The procedure for informing a party that they have been sued is by serving the court process on the said party. The mediation proceedings are court annexed and conducted by a court-chosen mediator. It is hearsay and inadmissible if the object of admitting the evidence is for the court to rely on the truth contained in the statement. Please refer to 1.3 Court Filings and Proceedings. Please refer to 4.7 Application/Motion Timeframe. Plot 11058, First Floor, Zimbabwe HouseHaile Selassie Avenue, Long AcresP.O Box 34072LusakaZambia. These courts mainly deal with customary law-related matters. The legal process in Zambia is conducted through written and oral submissions. There is no requirement for the defendant in a matter to respond to a pre-action demand letter.
The Zambian courts have also pronounced regarding the fact that the charging of contingency fees is illegal in litigation. Consolidated version of Act 36 of 1933 as amended last by Act 5 of 1995. In constitutional matters, parties will usually bear their own costs. There is provision for interim applications to be made by parties prior to the substantive hearing. The law makes provision for a defendant to make an application for security for costs. The law now states that judgment must be passed within 180 days from the date the parties file their final submissions, while a ruling must be delivered within 90 days after the conclusion of the hearing. Examples of such instances are in the Subordinate Courts when an inquest is being conducted, and experts are called to tender evidence as the court enquires into the cause of death. However, where a Mareva injunction is granted, it may be granted so as to have effect on property outside the jurisdiction of the court. Damages are awarded on a case-by-case basis and it is the court's duty to ascertain how much should be paid in damages. At the hearing of an inter partes application, the party making the application presents its case. Damages are also meant to compensate the claimant for losses that they suffered at the instance of the other party. According to Zambian law, the documents that need to be disclosed during discovery are the documents that relate to matters in question in the action. For this reason, for special damages and normal damages, the court will not grant a claimant in excess of what they may have expended in addition to the inconvenience suffered. The Supreme Court is the constitutional court and the final court of appeal. where damages would not be an adequate remedy; in any suit in which it is shown, by the applicant and to the satisfaction of the court or a judge, that any property that is in dispute in the suit is in danger of being wasted, damaged or alienated by any party to the suit; where the rights of the applicant suffer the risk of continued infringement; in any suit for restraining the defendant from the committal of any breach of contract or other injury, and whether the same can be accompanied by any claim for damages or not; and. Appeals from Judgment of the High Court Court of Appeal. Service of court process on the defendant is solely the responsibility of the plaintiff in civil matters; however, in criminal matters, service is the responsibility of court officials. A prohibitory injunction has the effect of forbidding the commission or continuance of an act. Judges have tenure of office until they retire.
The Court of Appeal has recently held that it is not fatal for a court action to be filed without issuing a demand letter. The parties agree on the dates for discovery and inspection of documents, filing and exchange of bundle of documents and witness statements; a date for a status conference to be held; and the date for trial. Where declaratory reliefs are being sought, the matter will proceed to a trial, notwithstanding that the defendant has not responded to the court process. The bad character of a witness cannot be adduced in court. The limitation period for actions for recovery of land or actions based on specialty is 12 years. The court also ensures that the parties and/or witnesses do not deviate from the matters at hand. The relevant law that guides the conduct of arbitrations and the recognition or enforcement of arbitral awards in Zambia is the Arbitration Act No 19 of 2000 (the Arbitration Act). However, where parties cannot agree on the sum of costs, taxation proceedings are commenced to ascertain how much is payable. Costs are determined on the amount a party actually spent in litigation, including legal fees, court fees and expenses. Applications for striking out or dismissal of the matter on a point of law can be raised at any point in the proceedings.