ZAMBIA Law and Practice Contributed by: Mweshi Banda-Mutuna, Musenge Leah Nkonde and Lumbanya Judah Mulenga, Mweshi Banda & Associates Legal Practitioners
Contract The remoteness principle
• Award of compensation sought, such as outstand- ing debt, etc. • Damages, which can further be broken down into the following categories: (a) general damages – compensation for harm flowing from the nature of the wrong (eg, pain, suffering or reputational injury, assessed at the court’s discretion); (b) special damages – compensation for specific, provable and quantifiable losses, such as medical bills or lost profits (must be pleaded and proved); (c) aggravated damages – extra compensation in exceptional tort cases to reflect additional injury caused by the defendant’s malice or op- pressive conduct; (d) exemplary (punitive) damages – awarded for egregious or reckless conduct intended for ma- terial gain (requires proof and specific plead- ing); and (e) nominal damages – token award recognising a legal right violation where no actual loss oc- curred. • Specific performance – an equitable remedy com- pelling performance of a contractual obligation, typically for unique items such as land which is not granted if damages suffice. • Restitution – restores money or property where the defendant has been unjustly enriched at the claim- ant’s expense. • Foreclosure of mortgaged property. • Final injunctions – permanent court order restrain- ing a party from committing a wrong (enforceable by contempt). • Declaratory judgments – the court confirms the legal rights or obligations of parties without order- ing payment or action. • Interest on judgments – pre-judgment interest at short-term bank rates, and post-judgment interest up to the Bank of Zambia’s lending rate until pay- ment. 2.8 Damages In both contract and tort, the aim is to restore the claimant to the position they would have been in had the wrong not occurred, while requiring them to miti- gate their loss.
Damages are limited to losses that arise naturally from the breach or were reasonably contemplated by both parties at the time of contracting. Tort Full compensation The court seeks to return the injured party to their pre-tort position. General damages are based on the nature and impact of the wrong, while special damages cover specific, provable losses such as medical bills, repair costs or lost profits, and must be itemised and evidenced. The use of arbitration has increased in the last ten years, with the construction industry favouring its use for dispute resolution, followed by parties to power purchase agreements. 3.2 Restrictions on Use of Arbitration The following matters are specifically barred from being resolved by arbitration: • disputes arising from agreements that are contrary to public policy; • criminal matters; • matrimonial disputes; • paternity and maternity disputes; and • disputes involving the interests of minors such as custody and maintenance. 3.3 Advantages of Arbitration Advantages of the use of arbitration include the fol- lowing: • the speed with which matters are determined; • preservation of continuing relationships between the parties through speed and confidentiality of the process; • providing parties with a choice of arbitrator or tribunal with the relevant expertise required for resolution of the dispute; 3. Arbitration 3.1 Prevalence
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