Law and Practice

1. General

1.1 General Characteristics of the Legal System

Zambia has a dual legal system comprising statutory and customary law. The statutory law also
encompasses common law, which applies in default of statute.

Zambia follows an adversarial model in criminal and civil proceedings.

The legal process in Zambia is conducted through written and oral submissions. This applies to trial and
appellate proceedings.

1.2 Court System

The court system in Zambia consists of superior courts, as well as the following courts:

 Subordinate Courts;

 small claims courts;

 local courts; and

 such other courts as may be prescribed by statute.

The superior courts consist of the Supreme Court, the Constitutional Court, the Court of Appeal and
the High Court.

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 further exercises
such other jurisdiction as may be conferred upon it by statute. The jurisdiction of the Constitutional
Court, on the other hand, is both original and appellate but is restricted to constitutional matters. The
Constitutional Court has original jurisdiction in relation to a presidential election petition but enjoys
appellate jurisdiction in relation to parliamentary election petitions. The Court of Appeal was established
by the Constitution in 2016 and has general appellate jurisdiction to hear and determine both civil and
criminal matters from the High Court, as well as appeals from quasi-judicial bodies, as may be prescribed
by statute.

The High Court enjoys original, supervisory and appellate jurisdiction. The appellate jurisdiction is
exercised in relation to appeals from the Subordinate Courts, as well as appeals emanating from decisions
of public bodies or public officials as may be prescribed by law. The High Court, among others, enjoys
original jurisdiction in matters arising from the Bill of Rights, civil claims in excess of ZMW100,000 and
certain prescribed criminal cases.

The High Court has five established divisions, as follows:

  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 Children’s Division – which was established to deal with juvenile-related matters; and

 a General Division – which hears any matters as the court of first instance or appeals from the
Subordinate Courts.

Subordinate Courts

The Subordinate Courts have territorial jurisdiction to hear both civil and criminal matters as the court
of first instance. For civil matters, the jurisdiction is limited to any claim equal to or less than ZMW100,000.
The jurisdiction of the matter is also dependent on the nature of the cause of action; this court has no
jurisdiction to hear divorce matters per se, except when one is appealing from the local court. In criminal
matters, crimes such as treason, murder and aggravated robbery are triable in the High Court.

Local Courts

These courts mainly deal with customary law-related matters. Lawyers have no audience in this court.

Small Claims Courts

These claims mainly deal with claims for less than ZMW10,000. Lawyers have no audience in this court.

1.3 Court Filings and Proceedings

Generally, court proceedings and filings in Zambia are open to the public, except where the law explicitly
provides for confidentiality. In this regard, court filings are available to the public upon payment of a search
fee.

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. In addition, a party is at liberty to make an application to the court for the public to
be excluded from the proceedings and the court if sufficient grounds are advanced that will enable the
application to be granted.

1.4 Legal Representation in Court

The overarching requirement for one to have an audience before the Zambian courts is that one must
have completed and passed the Legal Practitioners Qualifying Exam (LPQE) at the Zambia Institute of
Advanced Legal Education and, thereafter, been admitted to the Zambian Bar to practise law. 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.

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.

Foreign lawyers cannot conduct cases or practise law in the Zambian courts of law unless they are
admitted to the Zambian Bar.

2. Litigation Funding

2.1 Third-Party Litigation Funding

There is no law on third-party funding of litigation in Zambia. In the same vein, there are no prescribed
restrictions on such funding.

2.2 Third-Party Funding: Lawsuits

There is no statutory prescription on third-party funding of litigation.

2.3 Third-Party Funding for Plaintiff and Defendant

There is no statutory prohibition of third-party funding for either a plaintiff or a defendant.

2.4 Minimum and Maximum Amounts of Third-Party Funding

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.

2.5 Types of Costs Considered under Third-Party Funding

This is a matter of agreement between the funder and the parties involved.

2.6 Contingency Fees

Under Zambian law, the Legal Practitioners’ Practice Rules Statutory Instrument No 51 of 2002 (the
"Practice Rules") prohibits the charging of contingency fees. Rule (8)1 of the Practice Rules provides that
a practitioner shall not, in respect of any claim arising from death or personal injury, enter into an
arrangement for the introduction of clients with or act in association with any person, not being a
practitioner whose business is to make, support or prosecute, whether by action or otherwise, any claim
arising from death or personal injury and who in the course of such business solicits or receives
contingency fees in respect of such a claim. The Zambian courts have also pronounced regarding the fact
that the charging of contingency fees is illegal in litigation.

2.7 Time Limit for Obtaining Third-Party Funding

There are no time limits on when third-party funding should be obtained.

3. Initiating a Lawsuit
3.1 Rules on Pre-action Conduct

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.

There are no specific pre-action suits in relation to commencement of an action in the Constitutional
Court and the Subordinate Courts. 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 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 law does not provide a penalty for failure to issue a demand letter. However, the practice has been
that the court process will not be accepted by the court registry for filing. The Court of Appeal has
recently held that it is not fatal for a court action to be filed without issuing a demand letter. There is yet
to be a pronouncement by the Supreme Court regarding the possible sanctions that should visit a litigant
who commences an action without issuing a demand letter.

There is no requirement for the defendant in a matter to respond to a pre-action demand letter.

3.2 Statutes of Limitations

Under Zambian law, the Law Reform (Limitation of Actions, Etc.) 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. In addition, the Fatal Accidents Act also provides a limitation
period within which actions under the Act must be commenced.

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. This means that
an aggrieved party is required to commence an action for personal injury or breach of contract within six
years from the occurrence of the event. If the matter is not commenced within the six-year period, it shall
be statute barred. The limitation period for actions for recovery of land or actions based on specialty is
12 years. In relation to actions under the Fatal Accidents Act, the limitation period is three years.

The limitation period is triggered at the point when the plaintiff becomes aware of the facts upon which
an action can be founded.

3.3 Jurisdictional Requirements for a Defendant

The jurisdictional requirement is not specific to a defendant but rather is a question of whether, firstly, a
court has the requisite jurisdiction to hear the action. In relation to defendants, there are no general
jurisdictional requirements, save for a few categories of people who may not be sued on account of
enjoying immunity.

3.4 Initial Complaint

There are four principal modes of commencing actions in the High Court:
  writ of summons;

 originating summons;

 petition; and

 originating notice of motion.

Writ of Summons

The general rule is that all matters are to be commenced by way of writ of summons unless statute
provides otherwise. A writ of summons constitutes the legal process that initiates the action against a
defendant. The function of the writ of summons is to inform the defendant of the nature of the plaintiff’s
claim and cause of action. A writ of summons is accompanied by a statement of claim, list of witnesses,
evidence of the letter of demand and a list and description of the documents to be relied on at trial.

Originating Summons

This is the mode of commencement for actions that are required to be disposed of in chambers. The
originating summons is accompanied by an affidavit and skeleton arguments. A mortgage action is one
example of an action that is commenced by way of originating summons.

Petition

A petition is used in cases where a statute or the law expressly provides that a litigant use this mode of
commencement. A petition is often used to commence constitutional matters, election challenges,
company matters and matrimonial causes.

Originating Notice of Motion

This is used where a statute provides that proceedings may be commenced by an application but does not
provide for the specific procedure to be used. One of the common actions commenced by originating
notice of motion is judicial review.

Amendment of Documents

A party to proceedings is allowed to amend their documents at any stage during the proceedings before
trial. To amend their documents, a party is required to apply to the court for amendment and once the
application for leave to amend is granted, the documents can be amended. In some instances, leave may
not be required, especially where pleadings have not closed.

3.5 Rules of Service

The procedure for informing a party that they have been sued is by serving the court process on the said
party. In practice, service entails that the party initiating the litigation must bring the legal process to the
attention of the opposing party. There are three ways in which service can be conducted; namely, personal
service, substituted service and service by post.
Service by post requires the plaintiff to send the originating process to the defendant via postal services.
As proof of delivery of the court documents to the defendant, the plaintiff is required to exhibit an affidavit
of service.

Substituted service is used in instances where the defendant’s whereabouts are unknown, or the defendant
is avoiding service. The court will grant an order stating that the plaintiff advertises the court process in a
newspaper of wide circulation for a given duration.

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 party outside jurisdiction can be sued provided the subject matter of the action is within Zambia. Once
a plaintiff commences an action against a defendant that is outside Zambia, they must apply for leave from
the court to have the originating process served outside the jurisdiction. Once the originating process has
been served, the defendant is given 42 days to respond to the originating process and file their defence.

3.6 Failure to Respond

In a case where the action is commenced by writ of summons and a defendant fails to respond to a lawsuit
within the period prescribed by the law, then the plaintiff can proceed to enter judgment in default of
appearance and defence against the defendant for liquidated claims.

Where declaratory reliefs are being sought, the matter will proceed to a trial, notwithstanding that the
defendant has not responded to the court process. This is also the position in relation to matters
commenced by originating summons, petitions and originating notice of motion.

3.7 Representative or Collective Actions

In Zambia, the law allows one or more plaintiffs to prosecute an action on behalf of a larger group of
claimants. 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.

3.8 Requirements for Cost Estimate

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.

4. Pre-trial Proceedings

4.1 Interim Applications/Motions

There is provision for interim applications to be made by parties prior to the substantive hearing. 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.

4.2 Early Judgment Applications

A party to an action may apply for an early judgment by way of a default judgment, summary judgment,
interlocutory judgment or judgment on admission on all or some of the issues in the matter.

A party may apply for the other party’s case to be struck out before trial on account of failure to disclose
a cause of action, abuse of court process, the matter being statute barred or, indeed, any other point of
law. Applications for striking out or dismissal of the matter on a point of law can be raised at any point in
the proceedings.

4.3 Dispositive Motions

An application can be made to dismiss a matter on a point of law. Such an application can be made by a
defendant who has given notice of intention to defend. The application will be made by motion or
summons, and the plaintiff is given an opportunity to be heard on the motion, after which the court will
render a decision either dismissing the action altogether or dismissing the motion.

4.4 Requirements for Interested Parties to Join a Lawsuit

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. The application is made by
way of summons and a supporting affidavit that highlights the nature of the interest in the matter. An
application to join proceedings will be heard before hearing any other issue in the matter. An interested
party can be joined to the proceedings even after judgment.

4.5 Applications for Security for Defendant’s Costs

The law makes provision for a defendant to make an application for security for costs. 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.

4.6 Costs of Interim Applications/Motions

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.
It is the practice of courts in Zambia to order costs in interim applications but the same are only payable
at the end of the determination of the main matter.

4.7 Application/Motion Timeframe

In terms of the law, courts are generally mandated to dispose of interlocutory application or motions
quite quickly. Upon hearing an interlocutory application, the courts have 90 days to render a ruling.

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. Depending on the
urgency of the matter – for instance, in the case of an injunction – it can be determined within a few hours
or days on an ex parte basis before an inter partes hearing.

5. Discovery

5.1 Discovery and Civil Cases

Discovery is available in civil cases and the process of discovery has been codified in the High Court Act.
Discovery is by way of a list of documents and inspection of the documents by the parties to the
proceedings.

The process of the discovery of documents operates generally in two stages:

 the disclosure in writing by one party to the other of all the documents that they have, or have
had, in their possession, custody or power relating to the matters in question in the proceedings;
and

 the production of the documents disclosed for inspection by the opposite party and the actual
inspection of the documents disclosed.

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.

Discovery is ordered by the court by orders for direction given by the court stating when discovery
should take place. However, the litigants administer the discovery process.

Parties are at liberty through consent to limit the scope and/or costs of discovery, because parties are
allowed to agree to dispense with, or limit, the discovery of documents that they would otherwise be
required to make to each other.

5.2 Discovery and Third Parties

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.

5.3 Discovery in this Jurisdiction

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.

5.4 Alternatives to Discovery Mechanisms

There is no applicable information in this jurisdiction.

5.5 Legal Privilege

Zambian law generally recognises the concept of legal privilege and the concept extends to both external
and in-house counsel.

5.6 Rules Disallowing Disclosure of a Document

Zambian law provides for rules that disallow the disclosure of certain documents. Order 24 Rule 5 (35)
of the Rules of the Supreme Court, which the courts in Zambia rely on in cases where there is a lacuna,
provide that documents can be excluded from disclosure based on the fact that their disclosure would be
injurious to public interests. These documents are not subject to privilege per se, but they are accorded
a level of immunity.
6. Injunctive Relief

6.1 Circumstances of Injunctive Relief

The following are circumstances in which an injunction may be granted in Zambia:

 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

 where there is a prima facie case with high prospects of success on the part of the applicant.

The following are some of the key injunctive relieves in Zambia.

Interlocutory Injunction

An interlocutory injunction is appropriate for the preservation or restoration of a particular situation

pending trial.

Prohibitory Injunction

A prohibitory injunction has the effect of forbidding the commission or continuance of an act.

Mandatory Injunction

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.

Mareva Injunction

A Mareva injunction stops a party from disposing or transferring their assets and operates like an asset-
freezing injunction.

6.2 Arrangements for Obtaining Urgent Injunctive Relief

Please refer to 4.7 Application/Motion Timeframe.

6.3 Availability of Injunctive Relief on an Ex Parte Basis

An application for an injunction can be made and heard on an ex parte basis if the said application is urgent.
Thereafter, the injunction can be granted; however, the law in Zambia provides that if any application is
heard ex parte, an inter partes hearing date should be given, on which the court will hear both parties and
decide on whether to sustain the injunction that was granted earlier or to withdraw it.

6.4 Liability for Damages for the Applicant

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. In
view of this, an applicant can be held liable for damages suffered by the respondent if the respondent
successfully discharges the injunction and shows that they actually suffered damages as a result of the
injunction.

The applicant is usually not asked to provide security; however, the applicant is required to make an
undertaking for damages and once the other party illustrates that it suffered damage, the applicant is liable
in respect of the damage caused by the injunction.

6.5 Respondent’s Worldwide Assets and Injunctive Relief

As a general rule, the court will usually grant an injunction affecting assets within its jurisdiction. However,
where a Mareva injunction is granted, it may be granted so as to have effect on property outside the
jurisdiction of the court.

6.6 Third Parties and Injunctive Relief

An injunction is generally granted against a party to the proceedings. 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.

6.7 Consequences of a Respondent’s Non-compliance

The failure to comply with an injunction amounts to contempt of court because the party would be
disobeying an order of the court. The party disobeying the injunction is liable for contempt and may be
fined or sentenced to imprisonment.

7. Trials and Hearings

7.1 Trial Proceedings

The trial process is generally party driven, save for the commercial division of the High Court, which is
court driven. The trial process involves litigants and their legal representatives producing evidence before
court to support their respective claims. This is done by calling witnesses to testify in aid of a litigant’s
case, the examination of the said witnesses and production of other evidence, including actual objects.
Thereafter, parties file written submissions in support of the whole case. The process of examining
witnesses involves three stages.

 The first involves examination in chief. At this stage, the lawyer calling the witnesses asks the
witness questions that help them bring out their side of the story. This aspect is dealt with by
producing written witness statements.

 The second stage involves cross-examination. At this point, the lawyer from the other side asks
the witness a series of questions emanating from the examination in chief.
  The last stage is re-examination. This involves the lawyer calling the witness to clarify on matters
that may have arisen during cross-examination.

Once all the witnesses have been examined, the court will invite the parties to file written submissions
that the court will also consider when preparing its judgment. Depending on the complexity of the matter,
expert witnesses or examination may be at hearings/trial.

7.2 Case Management Hearings

Interim motions or applications are heard and determined through written applications; however, in
certain circumstances, they can be raised orally before court. These applications can be made ex parte or
inter partes. Where the application is ex parte, the court only hears the party making the application,
whereas when the application is inter partes, each party will make submissions; that is, in support of the
application and against it by the other party.

At the hearing of an inter partes application, the party making the application presents its case. This is
followed by the opposing party making its submission in opposition to the relief being sought. The court
will then reserve its ruling at a date to be advised.

However, certain motions can be raised on the floor of the court and the party will be allowed to orally
make its case. The court then asks the other party if they wish to object to the granting of the application
being made. Thereafter, the court will make its determination and grant a ruling on the issue that has been
raised.

Once a matter has been commenced, the Rules of the High Court provide for the occasion of a scheduling
conference, at which the parties agree on a timeline for the conduct of the case at hand. 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.

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. As the name suggests, the idea is for the court to be
informed of the status of the matter vis-à-vis the issues agreed upon at the scheduling conference. The
court also has occasion to deal with any matters arising that need to be dispensed with before the
commencement of trial.

If there is no progress for a period of 60 days after a matter has been commenced, the court has the
power to dismiss such an action for want of prosecution.

7.3 Jury Trials in Civil Cases

Not applicable in this jurisdiction.

7.4 Rules that Govern Admission of Evidence

The following are the main rules that govern the admission of evidence in the context of the Zambian
legal system.

Hearsay
As a general rule, hearsay evidence is not admissible. 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. It is only admissible if and
when the object of admitting the evidence is to merely show to the court that the statement was made.

Confessions

Confessions are admissible in evidence if they are voluntarily given. A party that makes a confession can
object to its admission into evidence if the confession was not voluntarily given.

Children

The evidence of a child below the age of 14 is inadmissible, as a general rule. It is only admissible if it is
given on oath and is corroborated. Furthermore, before hearing the evidence of a child, the court must
conduct a voire dire. 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.

Suspect Witnesses

The evidence of a suspect witness is inadmissible on account of the inherent interest that the witness has,
which is mostly adverse to the accused. However, if there is corroboration of the testimony, then the
evidence can properly be admitted into court.

Evidence of Character

The bad character of a witness cannot be adduced in court. The exception is where the witness attacks
the character of the witness from the other side. This opens up the option for the other side to bring out
the bad character of the witness in question.

Illegally Obtained Evidence

Illegally obtained evidence is admissible if it is relevant. 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. However, illegally
obtained evidence in the form of illegal interception under the Cyber Security and Cyber Crimes Act is
not admissible in court.

7.5 Expert Testimony

Expert witnesses are called for the sole purpose of giving expert opinions. They can tender their evidence
orally in court or through a report. Either party to an action has the option of calling an expert witness
or tendering an expert opinion at trial.

Furthermore, the court can, on its own motion, call an expert witness to testify. 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.

7.6 Extent to Which Hearings Are Open to the Public

Please refer to 1.3 Court Filings and Proceedings.

7.7 Level of Intervention by a Judge

The role of the judge during trial is mainly directional. The court has to ensure that the proceedings are
conducted according to the law and procedure. The court also ensures that the parties and/or witnesses
do not deviate from the matters at hand.

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. Also, where the party being sued concedes to all the
allegations levelled against them, it is not uncommon for the judge to pronounce judgment at the hearing.

The court will generally reserve judgement for a later date in matters that are contested. The idea is for
the court to analyse the facts and all the submissions and evidence presented by either party before it can
make its final decision on the merits of the matter.

7.8 General Timeframes for Proceedings

It was not uncommon for disputes to go on for years before the delivery of a final judgment in the matter,
because the law did not set out a statutory limit on the duration of commercial disputes.

This was cured by the amendment of the High Court Rules by virtue of Statutory Instrument No 58 of
2020. 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.

8. Settlement

8.1 Court Approval

Parties are free to have ex curia settlement discussions and once they have reached an agreement, they
are free to settle by way of a consent order or consent judgment, to be signed by the court. However,
there is no express requirement for court approval for a settlement, except for court-annexed mediation,
in which a settlement order is mandatory.

8.2 Settlement of Lawsuits and Confidentiality

Further to 8.1 Court Approval, once the settlement has been reached and the consent order is signed,
it has the same effect as a judgment, which may be open to the public through a search on the court
record at the Court Registry.

8.3 Enforcement of Settlement Agreements

A settlement agreement in the form of a consent judgment is enforced in the same manner as any other
court judgments are enforced. A settlement agreement not reduced to a consent judgment is enforced
by way of commencing an action against the party who fails to honour the settlement agreement.

8.4 Setting Aside Settlement Agreements

A settlement agreement is essentially an agreement and can be set aside upon proof of a vitiating factor
such as a mistake, duress or misrepresentation that was present at the time of setting and executing the
agreement. The process of setting aside the settlement agreement involves commencing an action for that
purpose.

9. Damages and Judgment

9.1 Awards Available to the Successful Litigant

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. The reliefs include perpetual injunction, compensation, court
orders, damages, restitution and specific performance.

Furthermore, in addition to the specific reliefs sought, successful litigants are also awarded costs.
However, the courts have the discretion as to whether to award costs, although the general principle of
law is that a successful litigant should be granted costs. The court usually will not grant costs where the
matter being litigated upon is novel. The courts also usually do not grant costs in public interest litigation
matters.

In constitutional matters, parties will usually bear their own costs. In the case of Musakanya v Attorney
General (SCZ Judgment No 18 of 1981) [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.

9.2 Rules Regarding Damages

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. However, for a claim for special damages, as long as the same have been specifically
pleaded and proved, the court will normally grant the damages as prayed. In a case of unliquidated damages,
once they are awarded by the Court, the damages are then assessed by the Court so as to quantify the
damages. When awarding damages, the court is guided by the principles of causation and remoteness of
damages.

There are various forms of damages that may be awarded, including special, normal, nominal and punitive
damages. 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. Damages are
also meant to compensate the claimant for losses that they suffered at the instance of the other party.

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.

In the case of nominal damages, these are usually granted where it is clear there has been a breach of
contract but the claimant is unable to show what loss they suffered, therefore the court grants a nominal
sum.

However, for punitive damages, the court grants this as a way to punish the offending party and it is for
this reason that the sums are usually high and the court is not limited to a maximum. The sum awarded is
decided on a case-by-case basis.

9.3 Pre- and Post-Judgment Interest

When a litigant who prayed for interest has successfully prosecuted its case and obtained judgment in its
favour, pre- and post-judgment interest may be granted by the court. 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. 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.

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.

9.4 Enforcement Mechanisms of a Domestic Judgment

There are various means through which a successful litigant can enforce a domestic judgment depending
on the reliefs granted. 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.

9.5 Enforcement of a Judgment from a Foreign Country

The Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the Laws of Zambia (the “Foreign
Judgments Act”), regulates the enforcement of foreign judgments in Zambia. The Foreign Judgments Act
permits enforcement by registration where there are reciprocal arrangements between Zambia and a
foreign country. Currently, Zambia only has reciprocal arrangements that extend to the Gilbert and Ellice
Islands Colony and the British Solomon Islands Protectorate.

For foreign judgments that originate from countries where Zambia has no reciprocal arrangements, the
same are not enforceable by mere registration under statute.

In cases where a judgment is not enforceable under the Foreign Judgments Act, the judgment may be
enforced under common law by means of commencing a fresh action before the Zambian High Court
with the foreign judgment as the cause of action.

10. Appeal

10.1 Levels of Appeal or Review to a Litigation

Appeals

Litigants have the right to appeal from judgments of the Subordinate Court to the High Court. This is the
same for final judgments of the High Court – a litigant has the right to appeal to the Court of Appeal –
however, for rulings of interlocutory applications, leave to appeal must be granted by the High Court,
which can be renewed in the Court of Appeal before a party proceeds to appeal to the Court of Appeal.

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. The application for leave is firstly made before the Court of Appeal and, if denied, can be
renewed in the Supreme Court.

Judicial Review
Judicial review confers supervisory powers on the High Court to judicially review administrative functions
of the executive and the legislative powers of Parliament. 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.

The courts in Zambia have stated that the remedy of judicial review is concerned not with the merits of
the decision, but with the decision-making process itself and that the purpose of judicial review is to
ensure that the individual is given fair treatment by the authority to which they have been subjected.

10.2 Rules Concerning Appeals of Judgments

Appeals from Judgment of the High Court – Court of Appeal

Appeals from the High Court to the Court of Appeal are generally as of right, save for specific instances
where leave to appeal is required. 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.

Where leave to appeal is granted, the litigant then proceeds to file the appeal.

Where leave to appeal is refused by the High Court, an application for leave to appeal can be relaunched
before a single judge of the Court of Appeal, and eventually to the full court in the event that a single
judge of the Court of Appeal refuses to grant leave.

Appeal from Judgment of Court of Appeal – Appeal to Supreme Court

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. Leave to appeal to the Supreme Court may be granted
or refused by the court without formal application, at the time when judgment is given, and in that event,
the judgment shall record that leave has been granted or refused accordingly.

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.

Furthermore, the Court of Appeal Rules provide that where leave to appeal is refused by the court, an
application for leave to appeal may be made to the Supreme Court.

10.3 Procedure for Taking an Appeal

A person desiring to appeal to the Court of Appeal shall give notice of appeal in accordance with the
Court of Appeal Rules Act No 7 of 2016 (the “Court of Appeal Rules”). An appellant may appeal against
the whole or a part of a judgment.

The notice of appeal shall therefore state whether the whole or part only, and what part, of the judgment
is appealed against. The names and addresses of the persons intended to be served with the notice of
appeal shall be stated in the notice of appeal. 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.
The appellant is required to file 21 hard copies of the notice of appeal and memorandum of appeal. A
notice of appeal, together with the memorandum, shall be lodged and served, within a period of 14 days,
on all parties, directly after which the matter shall be allocated and thereafter a date of hearing
communicated to the parties.

10.4 Issues Considered by the Appeal Court at an Appeal

The appellate court looks at matters of fact or law that were not considered at first instance. 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.

10.5 Court-Imposed Conditions on Granting an Appeal

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. However, in relation to the Supreme Court, there are certain
conditions that must be met before leave to appeal is granted:

 the appeal raises a point of law of public importance;

 it is desirable and in the public interest that the appeal be determined by the Supreme Court;

 the appeal would have reasonable prospects of success; or

 there is some other compelling reason for the appeal to be heard.

However, in relation to the actual appeal, no conditions are usually set.

10.6 Powers of the Appellate Court after an Appeal Hearing

The appellate court may, on the hearing of an appeal in a civil matter, confirm, vary, amend or set aside
the judgment appealed against or give judgment, as the case may require. In relation to criminal appeals,
the appellate court shall quash the conviction if it allows an appeal against a criminal conviction, and direct
a judgment and verdict of acquittal to be entered or, if the interest of justice so requires, order a new
trial.

11. Costs

11.1 Responsibility for Paying the Costs of Litigation

The losing party is generally responsible for the costs of the successful party in litigation. Costs are,
however, awarded at the discretion of the court; though, more often than not, they follow the event.
There is an exception in relation to the Industrial Relations Division of the High Court, where costs will
not be awarded unless a party is guilty of impropriety in relation to the conduct of the case.

Costs are determined on the amount a party actually spent in litigation, including legal fees, court fees and
expenses.
The court will usually grant costs and allow the parties to agree on a reasonable fee. However, where
parties cannot agree on the sum of costs, taxation proceedings are commenced to ascertain how much is
payable.

11.2 Factors Considered when Awarding Costs

In awarding costs, the courts have guided that the general principle is that costs should follow the event
unless the successful party did anything wrong in the action or conduct of the case.

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. 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.

11.3 Interest Awarded on Costs

The courts have not been known to make awards of interest on costs.

12. Alternative Dispute Resolution (ADR)

12.1 Views of ADR within the Country

Alternative dispute resolution (ADR) mechanisms are highly encouraged by the judicial system and the
general public has begun to be more open and receptible to ADR methods than the traditional litigation
as they have proven to be faster and thereby cost effective as compared to litigation. In this regard, the
High Court Act makes provision for court-annexed mediation. In addition, a judge of the High Court has
power to refer a matter to mediation.

The most common ADR methods in Zambia are mediation and arbitration. Conciliation is also common
in relation to disputes centred around collective agreements or collective bargaining.

12.2 ADR within the Legal System

The legal system in Zambia promotes ADR to a large extent. 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. The mediation proceedings are court annexed and conducted by a court-chosen mediator.

There are, however, no sanctions for refusing ADR as ADR is taken to be conducted at the will of the
parties; therefore, if they do not agree, they cannot be sanctioned for doing so.

12.3 ADR Institutions

Zambian institutions offering and promoting ADR in Zambia are relatively well organised. As stated under
12.2 ADR within the Legal System, mediation and the whole procedure has been provided in statute,
thereby making it an orderly process.

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.
13. Arbitration

13.1 Laws Regarding the Conduct of Arbitration

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”).

The Arbitration Act clearly provides that parties are at liberty to decide to also place reliance on the High
Court Rules and the Rules of the Supreme Court for procedural guidance during arbitration proceedings.

13.2 Subject Matters Not Referred to Arbitration

The following are the subject matters that cannot be referred to arbitration in Zambia:

 an agreement contrary to public policy;

 a dispute that, in terms of any law, cannot be decided by arbitration;

 criminal matters;

 matrimonial matters or any matters incidental;

 the determination of paternal, maternal or any parentage of a person; and

 any matter affecting a minor or any person of legal incapacity.

13.3 Circumstances to Challenge an Arbitral Award

The following are the circumstances through which a party may challenge an arbitral award:

 when the award deals with a dispute not contemplated or falling within the issues that were
handed over for determination;

 when the composition of the arbitral tribunal or arbitral procedure was not in accordance with
the parties' agreement or an act or law;

 if the party claims that they were under some incapacity; or

 the award is against public policy or was obtained through fraud, duress or misrepresentation.

13.4 Procedure for Enforcing Domestic and Foreign Arbitration

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.

Arbitral awards will be enforced by the Zambian courts if rendered by:

  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

 Zambian institutions such as the Law Association of Zambia; the Chartered Institute of
Arbitrators, Zambia Branch; etc.

14. Outlook and COVID-19

14.1 Proposals for Dispute Resolution Reform

The judiciary of the Republic of Zambia promulgated guidelines considering COVID-19 that reduced
physical court hearings. Notably, the judiciary is now amenable to conducting trials via electronic means
and encourages electronic service of court documents where possible.

Where there is a physical hearing, the guidelines have prescribed a maximum of 20 minutes for each party
if invited to make oral submissions.

14.2 Impact of COVID-19

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. As alluded to in 14.1
Proposals for Dispute Resolution Reform, during the peak of the pandemic there have usually been
physical court closures and postponement of arbitral and trial hearings. Thus, this has been retrogressive
on the Zambian adversarial system.

The Zambian government has not passed any legislation or issued orders suspending the operation of
limitation periods; however, it has issued two statutory instruments (the “SIs”) pursuant to the Public
Health Act, Chapter 295 of the Laws of Zambia, to designate COVID-19 as a notifiable disease and the
government has further provided additional regulations to facilitate the management and control of
COVID-19, such as only allowing a maximum of one hour for people to gather where there are several
people or a group gathered in one place for meetings and other events.

The SIs have mandated:

 the isolation of all suspected and confirmed cases of COVID-19; and

 the closure of any premises that pose a public health threat linked to COVID-19.

Please also refer to 14.1 Proposals for Dispute Resolution Reform regarding court hearings.