ZAMBIA Law and Practice Contributed by: Mweshi Banda-Mutuna, Musenge Leah Nkonde and Lumbanya Judah Mulenga, Mweshi Banda & Associates Legal Practitioners
increased numbers of class actions and mass claims being resolved through these mechanisms. Another key trend is that assessment of damages has evolved from using sample plaintiffs in various cat- egories of claims to establish the entitlement of those who are “similarly circumstanced”, to each plaintiff’s entitlement to damages or relief sought being specifi- cally proved. There is an increase in the number of class actions and mass claims involving environmental harm and consequential damages against mines and manufac- turers. In civil proceedings commenced in the High Court, Order VI Rule 1 (1) of the High Court (Amendment Rules), 2020, SI No 58 of 2020 (“SI 58”) places a duty on a plaintiff to disclose the documents intended to be relied on at trial in a list of documents that must accompany the writ of summons and statement of claim, among other documents. The duty to disclose the documents to be relied on at trial has been held by the courts to be mandatory, with the disclosing party required to disclose all documents that are nec- essary to prove their claim. Order XI Rule 1 (1) of SI 58 also makes it mandatory for the defendant to file their defence with, among other documents, a list of docu- ments to be relied on at trial to establish the rebuttals made in a defence. Where an action is commenced in any way other than by writ of summons and statement of claim – such as by way of notice of motion, originating summons or petition – an affidavit may be needed in support of the action in which the documents to be relied on are disclosed and exhibited. There is no mandatory requirement for disclosure of documents to be relied on at trial at commencement of the suit in the Subordinate Court where the claim is an unliquidated claim, as such a matter is com- menced by writ of summons and statement of claim only. Disclosure of documents is done during trial after 8. Evidence 8.1 Disclosure
the litigant has laid a sufficient foundation for their intention to adduce a document. They then disclose the document to the court and other party, and apply for it to form part of their evidence if there is no objec- tion raised by the opposing party. However, where the claim is for a debt or a liquidated amount, the plaintiff has a mandatory obligation to disclose any documents relied upon in commence- ment of the action in the affidavit verifying debt, which is filed together with the default writ of summons. 8.2 Privilege The types of evidentiary privilege recognised in Zam- bia and upon which documents can be withheld from being adduced in court proceedings are as follows: • public policy privilege, which includes privilege state privilege (a general common law privilege); • legal professional privilege, which is protected under the Legal Practitioners’ Act, Chapter 30 of the Laws of Zambia; and • without-prejudice communication exchanged by the parties in an effort to settle the dispute amica- bly either before or during the dispute. Circumstances When Privilege Can Be Waived Privilege arising from public policy is not absolute, as it can be waived in the interest of justice. Legal professional privilege can be waived by the party it is intended to protect or by an order of court pursuant to Rule 29 (4)(e) of the Legal Practitioners’ Practice Rule, SI No 51 of 2002. 8.3 Confidentiality In Zambia, the right to withhold evidence on grounds of confidentiality is recognised for privileged persons, such as lawyers in relation to information provided to them by their clients, doctors in relation to their patients and officials in relation to state secrets. Recognised exceptions to the duty of confidentiality include: • where a judge or magistrate decides that confiden- tiality outweighs the need for evidence; • where justice or public safety requires disclosure; and
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