ZAMBIA Law and Practice Contributed by: Mutembo Nchito, Mable Chakoleka, Chisuwo Hamwela and Dhozinta Mphuka, Nchito & Nchito Advocates
5. Discovery 5.1 Discovery and Civil Cases
the laws of Zambia), and the Evidence Act (Chapter 43 of the laws of Zambia), the Evidence (Bankers’ Books) Act (Chapter 44 of the laws of Zambia), case law and English law principles. In civil lawsuits, such discovery is by way of list of documents and inspection of documents, and, subse- quently, the filing of a bundle of documents. In criminal matters, documents are produced before the court at trial and formally admitted by way of oral application for their admission. 5.4 Alternatives to Discovery Mechanisms See 5.3 Discovery in This Jurisdiction for discovery mechanisms in Zambia. 5.5 Legal Privilege Zambia recognises the concept of legal privilege. For privilege to apply, such information must be obtained either: • for the purpose of seeking legal advice; or • in connection with advice relating to actual or con- templated litigation. In Zambia, legal professional privilege covers advice given by both private practitioners and in-house coun- sel. 5.6 Rules Disallowing Disclosure of a Document Unless protected by legal professional privilege, other documents may be subject to disclosure:
Discovery is available in civil cases. legally, civil tri- als should not be conducted by way of ambush and there must be full disclosure of documents relevant to the case. Procedure for Discovery The court will issue orders for directions, which will provide timelines on the steps to be taken under the discovery process as follows. • Parties are required to file a list of documents at the time of filing their pleadings. • Inspection of documents should be carried out before filing of the bundle of documents. • Parties are required to file their bundles of docu- ments after inspection. The court may also order a party to produce specific documents upon applica- tion by a party to the court. • Witness testimony is filed through the preparation of written witness statements (which are later sub- ject to cross examination at trial). Limitations Discovery is limited to what is relevant to fair disposal of the case. Additionally, documents that are protect- ed by legal professional privilege and other statutory exemptions are excluded. 5.2 Discovery and Third Parties The court can order a third party to produce spe- cific documents (this is by way of a subpoena duc- es tecum). The party seeking the admission of the documents must apply to the court for an order to compel the third party to produce the documents sought. Upon assessing the application, if the court is satisfied, it will issue the subpoena duces tecum. Non-compliance may lead to contempt proceedings against the third party. 5.3 Discovery in This Jurisdiction Parties are required to disclose all documents relevant to the issues in dispute, except those that are protect- ed by legal professional privilege, or another eviden- tiary exclusionary rule. The rules governing disclosure are contained in the High Court Rules (Chapter 27 of
• by court order; • by consent; or • under a requirement of statutory law.
Courts may limit disclosure of documents containing trade secrets, as well as documents that are obtained under a duty of confidentiality if disclosure would breach that duty. However, this is not an automatic protection, but one that parties must justify.
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