ZAMBIA Law and Practice Contributed by: Mutembo Nchito, Mable Chakoleka, Chisuwo Hamwela and Dhozinta Mphuka, Nchito & Nchito Advocates
6. Injunctive Relief 6.1 Circumstances of Injunctive Relief Injunctive relief may be awarded where: • there is a serious question to be tried; • there is need to maintain the status quo; • the applicant would suffer irreparable harm that cannot be adequately compensated by damages if the relief is not granted; and • the balance of convenience favours granting the injunction. These principles are derived from the case of Ameri- can Cyanamid v Ethicon Limited 1975 1 ALL ER 504 . The Zambian courts may order an interim injunction, or a perpetual (final) injunction at the conclusion of trial. The Zambian courts also recognise the following types of injunctions. • Mareva injunctions – the courts may grant a freez- ing order to restrain a defendant from disposing of assets pending the determination of a claim, especially where there is a real risk of frustrating the judgment. • Mandatory injunction – an order compelling a party to perform a specific act, such as restoring prop- erty or undoing a wrongful act. • Prohibitory injunction – an order restraining a party from committing or continuing a wrongful act. • Anton Piller Order (search and seizure injunction) – authorises the plaintiff to enter the defendant’s premises to inspect, copy, or seize evidence to prevent its destruction. • Quia Timet injunction – granted to prevent a threat- ened or anticipated wrong before it occurs 6.2 Arrangements for Obtaining Urgent Injunctive Relief A party can obtain urgent injunctive relief by apply- ing for an ex parte interim injunction, the application for which is made by way of ex parte summons, affi- davit or skeleton arguments. Such application must be supported by a certificate of urgency, which must detail the reasons for the urgency of the application. Injunctive relief can be obtained very quickly in urgent
circumstances, even within the same day that the application is filed. There is no formal system for out-of-hours judges, but urgent applications may be heard after court hours if arrangements are made through the court marshals or the judge in charge of the relevant court division. Where an injunction is granted on an ex parte basis, the injunction order must state an inter partes hear- ing date. 6.3 Availability of Injunctive Relief on an Ex Parte Basis See 6.2 Arrangements for Obtaining Urgent Injunc- tive Relief . 6.4 Liability for Damages for the Applicant Every applicant for an interlocutory injunction must provide an undertaking for damages in the injunction order, which undertakes to indemnify the respondent for any loss if it is determined that the injunction order should not have been granted. 6.5 Respondent’s Worldwide Assets and Injunctive Relief An order of injunction made in Zambia cannot be applicable to assets outside Zambia, unless Zambia and the country in which the assets are located have a reciprocal agreement recognising the registration and enforcement of foreign court orders/judgments. 6.6 Third Parties and Injunctive Relief An injunction typically applies to parties to an action. However, its effect can restrain third parties, such as the defendant’s servants or agents who will also be bound by the order. 6.7 Consequences of a Respondent’s Non- Compliance In the event of non-compliance with the terms of an injunction order, the respondent may be held in con- tempt of court and may be subject to committal pro- ceedings which might result in imprisonment and/or any other sanction that the court deems fit.
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