Litigation 2024 Comparisons

The legal system in Zambia is based on the common law and largely follows an adversarial model in terms of dispute resolution both in civil and criminal proceedings. The Constitution of Zambia, Chapter 1 of the Laws of Zambia as amended by Act No 2 of 2016 (the “Constitution”) provides that the laws of Zambia consist of (a) the Constitution; (b) laws enacted by Parliament; (c) the Statutory Instruments; (d) the Zambian customary laws to the extent that they are consistent with the Constitution; and (e) the laws and statutes which have been extended to Zambia which includes English common law.

Even though courts in Zambia generally employ an adversarial model of dispute resolution, there are certain pieces of legislation such as the Matrimonial Causes Act No 20 of 2007, which empowers the courts, during divorce proceedings, to employ an inquisitorial model in resolving the dispute. 

Further, the legal process in Zambia is conducted both through written and oral submissions. However, it is worth mentioning that the High Court Rules, Chapter 27 of the laws of Zambia (the “High Court Rules”) endows the High Court with jurisdiction to determine the matter based on the written submission (or documents only) where the High Court is of the view that the matter can be determined without necessarily having oral submissions made.

The Constitution of Zambia generally categorises the court structure (or the Zambian judiciary) into two, namely, the superior courts and the following courts:

• subordinate courts;
• small claims courts;
• local courts; and
• courts as prescribed by various pieces of legislation.

The superior courts consist of the following courts:

• the Supreme Court and the Constitutional Court;
• the Court of Appeal; and
• the High Court for Zambia.

It is worth mentioning that the Supreme Court of Zambia and the Constitutional Court of Zambia rank equivalently. Further, the High Court for Zambia has (i) original and unlimited jurisdiction in both civil and criminal matters in Zambia; (ii) appellate and supervisory jurisdiction over matters from the subordinate court; and (iii) jurisdiction to review its own decisions.

Furthermore, the High Court has four divisions which have been organised based on the subject matter, namely: (i) the Industrial and Labour Relations Division; (ii) the Commercial Court; (iii) the Family Court; and (iv) the Children’s Division.

On the other hand, the jurisdiction of the subordinate courts in Zambia is limited to (i) the district in which the dispute occurred; and (ii) in terms of civil matters, the amount of money being claimed. That said, where a particular offence occurred in a particular district in Zambia, it is only the subordinate court established in that district that has the jurisdiction to hear and determine the matter. Further, the subordinate court has jurisdiction to hear and determine claims where the sum of money involved does not exceed ZMW100,000 (or USD4,600 equivalent). Further, all appeals from the subordinate court are heard and determined by the High Court.

The general position is that all court filings and proceedings are open to the public. Therefore, any person is at liberty to conduct a search in the High Court upon paying a prescribed fee, to access court filings. Further, even though all court filings are open to the public, certain applications or proceedings are held in camera and there is provision for sealing of proceedings in order to ensure that the filings are not accessible to members of the public. 

Furthermore, there are certain pieces of legislation that require proceedings to be kept confidential. For instance, the Children’s Code Act No 12 of 2022, prohibits the publication of a child’s identity or any related information about the child where the proceedings in court involve a child. Furthermore, the Arbitration (Court Proceedings) Rules, Statutory Instrument No 75 of 2001 requires that all records, registers and other documents relating to legal proceedings under the Arbitration Act No 19 of 2000 are to be kept confidential and in a place of special security whilst they are in the custody of the High Court.

In order for a person to qualify as a legal representative in Zambia, such a person must be admitted to the Zambian bar by having his name in the roll of legal practitioners and must have a practising certificate. 

Having said the above, foreign lawyers do not have the authority to conduct cases before the Zambian courts.

There are no laws in Zambia that regulate or govern TPF and in particular, there is no prohibition with respect to TPF. 

Please refer to 2.1 Third-Party Litigation Funding.

Please refer to 2.1 Third-Party Litigation Funding.

Please refer to 2.1 Third-Party Litigation Funding.

Please refer to 2.1 Third-Party Litigation Funding.

In Zambia, contingency fees are proscribed by the law. Section 81 (1) (b) of the Legal Practitioners Act, Chapter 30 of the Laws of Zambia as read together with Rule 8 (1) of the Legal Practitioners Practice Rules Statutory Instrument No 51 of 2002, proscribe a legal practitioner from entering into any agreement by which a practitioner retained or employed to prosecute any action, suit or other contentious proceeding stipulates for payment only in the event of success of that action, suit or proceeding.

Please refer to 2.1 Third-Party Litigation Funding.

Rule 1 (1) (d) of the High Court Rules places an obligation on a party intending to commence an action to firstly issue a letter of demand which should be acknowledged by a party intended to be named as a defendant. Further, the letter of demand must be submitted in the High Court together with the originating process at the time of commencing an action.

Further, in employment law-related disputes, Section 85 (3) of the Industrial and Labour Relations Act, Chapter 269 of the laws of Zambia requires a party to exhaust all internal administrative channels in the employer company before commencing an action in the High Court.

The English Limitations Act of 1939 (the “English Limitation Act”) as amended by the Section 3 of the Law Reform (Limitation of Actions) Act, Chapter 72 of the Laws of Zambia provides that actions founded in tort must be commenced within three years of the date of accrual of the cause of action, whereas those matters founded in contract must be brought within a period of six years from the date of accrual of the cause of action.

Further, it is worth mentioning that where there has been fraud or concealment in the matter, time cannot begin to run until the party intending to bring an action has discovered the fraud or the mistake, as the case may be, or could, with reasonable diligence, have discovered it.

Further, the Fatal Accidents Act provides for a limitation period of three years for actions founded under the Act. In addition, various statutes provide for limitation periods in respect of certain actions. For example, a Judicial Review action must be commenced within three months of the decision sought to be impugned. On the other hand, an action under the Industrial and Labour Relations Act must be commenced within 90 days from the date of exhausting the administrative channels available to the complainant, whereas an action to set aside an arbitral award must be commenced within 90 days from the date of the award.

For a defendant to be subject to a suit, the court must have requisite authority or jurisdiction to hear and decide a case involving that defendant. The requirements will vary depending on the type of case, whether it is a criminal or civil matter, as well as the quantum or nature of the claim.

The High Court for Zambia has original and unlimited jurisdiction in terms of the matters it can hear for acts or omissions done within the borders of the Republic of Zambia. For instance, the Penal Code, Chapter 87 of the Laws of Zambia provides that the jurisdiction of the courts of Zambia for the purposes of the Penal Code extends to every place within Zambia. Furthermore, Section 7 of the Penal Code provides that Zambian courts have jurisdiction over Zambian citizens who do acts outside Zambia which, if done within Zambia, would be an offence.

The general rule is that the mode of commencement of a particular action or matter as well as the nature of the documents required to be filed varies from case to case depending on the piece of legislation regulating the matter.

In the subordinate court, liquidated actions are commenced by filing a Default Writ of Summons and an Affidavit in Support. Further, where the claim is unliquidated, a party is required to file a Writ of Summons.

Further, in the Industrial and Relations Division of the High Court, actions are commenced by filing a Notice of Complaint and an Affidavit in Support. Furthermore, in the Principal and Commercial Divisions of the High Court, the general position is that all actions must be commenced by filing the Writ of Summons, Statement of Claim, List of Witnesses, List of Documents and a Letter of Demand. However, where a particular statute guides or requires a party to commence a particular action through a different mode, then such a party must follow the procedure as guided by the statute. For example, the Rent Act, Chapter 206 of the Laws of Zambia requires a party intending to bring an action or complaint under the Rent Act to commence the same using an originating notice of motion.

In the Family Division of the High Court, a party intending to commence an action for either judicial separation or divorce is required to commence the same by way of a petition and affidavit verifying petition.

Furthermore, parties are allowed to amend the court documents at any time during the course of the proceedings before judgment has been given provided leave of the High Court has been obtained. Generally, parties are allowed to amend the Writ of Summons and Statement of Claim at the early stages of the matter and before pleadings are deemed to be closed without leave of the High Court. Subsequently, all amendments to court documents are made with leave of the court.

It is the responsibility of the plaintiff or a party that has brought a claim to file and serve their claim on the defendant. A party that has been sued is informed of the court process through service of court documents.

The general rule, according to Order X Rule 1 (1) of the High Court Rules is that service of court documents must be by way of personal service on the defendant. In line with Order X Rule 6, personal service occurs where the court documents are delivered to the defendant. If or where personal service is not possible, Order X Rule 3 of the High Court Rules allows a party to obtain an order from the High Court to serve the documents by way of substituted service through placement of an advertisement in the media or any other electronic means.

Further, where the defendant is a company, the Companies Act No 10 of 2017 places an obligation on the plaintiff to serve the documents on the registered office address of the company or personally serve the director or company secretary of the company.

Further, a party resident outside the Zambian jurisdiction can be sued in Zambia. However, in terms of Order X, Rule 16 of the High Court Rules, a plaintiff intending to sue a party outside jurisdiction is required to apply in the High Court for permission to issue for service the originating court process outside the Zambian jurisdiction.

Where a lawsuit has not been defended, a party that has brought a claim upon proving to the High Court that service was properly effected on the defendant may either (i) where the claim is for a liquidated amount, enter Judgment in Default of Appearance and Defence; or (ii) where the claim is for other relief like declarations, proceed to trial in the absence of the defendant and is required to prove their claims to the required standard before the High Court notwithstanding the absence of the defence from the defendant.

The law in Zambia does allow for representative or class or collective action. Order XIV of the High Court Rules provides for representative and class actions. A person is at liberty to opt in or opt out of a class or representative action.

The law in Zambia does not place an obligation on legal practitioners to provide a cost estimate of potential litigation. However, the legal practitioner and their client are at liberty to agree on a cost estimate for a potential litigation. 

The law in Zambia allows a party to make interim applications/motions before trial or a substantive hearing of the claim before the High Court. The nature of the interim motion may vary from a case management issue to the determination of the matter on its merits without necessarily conducting full trial. For example, Order 14A of the White Book entitles the High Court on its own motion or upon an application by a party to determine points of law which have the effect of disposing of the matter or part thereof where the High Court is of the view that such a matter can be determined without conducting the full trial.

Zambian law has enabling provisions for early judgment. The High Court Rules make provision for a plaintiff or claimant to apply for judgment on admission if the defence filed by a defendant discloses some admissions, or if the plaintiff or claimant is in possession of correspondence in which the defendant admits the claim which is the subject of the originating process. In addition, where an action does not disclose a cause of action, a defendant is at liberty to make an application for striking out of the originating process. Further, the court rules allow for determination or disposal of a matter on a point of law or construction of documents.

In Zambia, dispositive applications are available to all the parties to a suit. The following are some of the commonly applied for dispositive applications.

• Application for determination of the matter on points of law and judgment – this application can be made before trial or the hearing of the substantive matter or at any stage of the matter. The application may dispose of the whole claim or part of it by granting the remedies sought in the action, or dismiss the claim.
• Application for dismissal of a matter for lack of jurisdiction by the court to determine the matter – the position of the law in Zambia is that that jurisdiction is everything and where there is no jurisdiction the court cannot grant any relief. Therefore, in circumstances where a party believes that the court lacks jurisdiction to hear and determine a matter, such a party may make an application for the court to dismiss the matter for lack of jurisdiction.
• Application for default judgment – a party to a suit commenced by writ of summons (and is for liquidated amounts) may make an application to the court for a default judgment when the other party to the suit does not enter appearance before court and file a defence within the time allowed.
• Application to dismiss matter for want of prosecution – a defendant may make this application for the court to dismiss an action where there has been an inexcusable and inordinate delay in the way the plaintiff carries out the proceedings.
• Application to enter judgment on admission – this application is made before the High Court where a party has made unequivocal and unconditional admissions to the claimant regarding the claims before the High Court.

Generally, the court in Zambia has the discretion to add, substitute, or remove a party from proceedings. The court may join a party on its own motion, or upon an application by the parties to a suit, or any interested party seeking to be joined to a lawsuit.

For a party to be joined to the proceedings, it must be shown that such a party either has an interest in the matter or may be affected by the result or outcome of the matter.

A defendant may make an application for an order that the plaintiff should pay a sum of money as security for the defendant’s costs.

Application for security for costs is made by summons in chambers. Before an application is made to the court, a written request should be sent to the plaintiff asking them to give security in a reasonable sum. This application is granted in circumstances where it appears to the court that:

• the plaintiff is ordinarily resident out of the jurisdiction;
• the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that they will be unable to pay the cost of the defendant if ordered to do so;
• the plaintiff’s address is not stated in the writ or other originating process or is incorrectly stated therein; or
• the plaintiff has changed their address during the course of the proceedings with a view of evading the consequences of the litigation.

The decision to award costs for an interim application or in the matter is at the discretion of the court. Generally, costs for interim applications or motions are awarded to a successful party. However, the court has the discretion to not grant costs to either party. In addition, the court may also order that the costs will be in the cause, meaning the costs of the interim application will be tied to the outcome of the main matter. 

The timeframe within which an application is determined varies depending on different factors, among others, calendar of the court and the nature of the application. Further, a party can request that an application/motion be dealt with on an urgent basis by filing a certificate of urgency together with the application.

Save for urgent applications such as injunctions and stay applications, the High Court Rules allow the High Court to render a ruling on an interim application or motion within 90 days from the date of the conclusion of the hearing.

The High Court Rules as read together with the White Book provide for discovery in civil cases. Discovery is a process where a party interacts with the other party to establish the kind of documentary evidence that exists relevant to the case. The High Court, through a plethora of various decisions, defines the term “discovery” as “…the process by which parties to a civil cause or matter are enabled to obtain, within certain defined limits full information of the existence and the contents of all relevant documents relative to the matters in question between them. The process of the discovery of documents operates generally in three successive stages, namely:

• the disclosure in writing by one party to the other of all the documents which they have or have had in their possession, custody or power relating to the matters in question in the proceedings;
• the inspection of the documents disclosed, other than those for which privilege from or other objection to production is properly claimed or raised; and
• the production of the documents disclosed either for inspection by the opposite party or to the court”.

In Zambia, discovery is generally through a list of documents. This means each party to the proceedings makes a list of documents that it intends to introduce in court to prove its claim. The list of documents is required to be prepared and filed into court together with the originating process. Further, and in exceptional circumstances, a party may conduct discovery through interrogatories. This is where a party prepares a list of questions and sends it to the other parties to the proceedings as part of the discovery process.

Further, and to curb costs for the discovery and inspection of documents, parties to the proceedings are at liberty to waive the process of discovery and inspection and must obtain an order of court to that effect.

The court may, in its discretion, on the application of any of the parties to any suit or proceeding, compel any other party to allow the applicant to inspect all or any documents in the custody or under the control of such other party relative to such suit and, if necessary, take examined copies of the same.

Please refer to 5.1 Discovery and Civil Cases. The general position is that all documents relevant for the determination of the matter must be subject to the discovery process and subsequent production into court by the parties having custody of the documents. However, a party may refrain from producing a particular document in its custody on the basis the document contains privileged information.

Further, the duty to disclose documents in the proceedings is an ongoing obligation until the matter is disposed of. If, after discovery, further documents become available, there is an obligation on the party to disclose. It is not allowed to produce a document in court without giving the other party an opportunity to investigate the document by ambush or by surprise.

The legal system in Zambia provides for discovery mechanisms. Please refer to 5.1 Discovery and Civil Cases.

Zambian law recognises the concept of legal privilege and a party can object to the discovery of certain documents on the basis of legal privilege. The Supreme Court had the opportunity of pronouncing itself on the principle of legal privilege as it relates to in-house counsel in the case of Access Financial Services Limited & Access Leasing Limited & The Implementations Of The Liquidation Schedule (By Bank Of Zambia) Appeal No 104 of 2013. In this case, the issue was whether or not the legal issue contained in an internal memo from the assistant bank secretary to the deputy governors and acting human resource advising against disciplinary action against an employee who was capable of “spilling the beans” if dismissed was privileged information. The Supreme Court held that “it would not be in public interest to allow the Appellant, a public institution, to purposefully refrain from disciplining an officer to adduce evidence which would assist the Respondents in proving their allegation of mismanagement of the liquidation process”.

There are rules that allow a party to the proceedings not to disclose certain documents or information. The following rules stem from English common law principles as well as various other pieces.

• Documents or information which are regarded as prejudicial to the safety or interests of the Republic of Zambia under the State Security Act, Chapter 111 of the laws of Zambia.
• Statements or documents exchanged which are marked as being “without prejudice basis”.
• Legal privilege and public policy considerations.
• Communication between spouses on the basis of unity in person and interest.

An injunction is an order of the court either compelling a party to take a certain step or steps (mandatory injunction) or restraining a party from taking a specified step or steps (prohibitory). An injunction is therefore an order directing a party, and occasionally, a non-party, to perform a certain act or refrain from performing a certain act in connection with ongoing litigation. The essential nature or character of an injunction is that it is a temporary measure to maintain or preserve the status quo pending determination of the disputed rights at trial.

The power to grant interim injunctions is at the discretion of the court, and this should be exercised reasonably, equitably, and judiciously. The exercise of the discretion is based on sound legal principles. The following are the general principles and guidelines which will be taken into consideration before an injunction is granted.

• The first question to be addressed is whether an applicant has raised a serious question, deserved to be determined at trial. That is to say, the claim must not be frivolous or vexatious. If the claim is frivolous or vexatious, the interim injunction will be refused at the outset.
• If the applicant has established a serious question to be tried, the court will then consider whether the applicant will be adequately compensated by an award of damages. If an applicant can be adequately compensated with an award of damages, the interim injunction application ought to fail, however meritorious the claim may be.
• If there is doubt as to the adequacy of damages and the ability of the defendant to pay them if the applicant were to succeed at trial, the court will then proceed to the next stage, and consider the balance of convenience.
• The balance of convenience test may be expressed in terms of whether the risk of injustice if the interim injunction is refused, outweighs the risk of injustice if the injunction is granted.
• Where the balance of convenience is evenly balanced, the court will generally take such measures as may be necessary to preserve the status quo by granting an injunction.
• It is worth mentioning that there are various injunctions that may be granted in Zambia. Some of these are quia timet injunction, mareva injunction and anti-suit injunctions.

In urgent circumstances, a party seeking for an injunction is encouraged to make the application on ex parte basis with a certificate of urgency. Such an application may be granted within hours or a period up to seven days depending on the judge’s calendar.

Injunctive relief is available on an ex parte basis with or without an inter-partes hearing depending on the nature of the case. A party seeking an injunction is at liberty to make its application on an ex parte basis. The High Court in the case of Edward Jack Shamwana v Levy Mwanawasa (1994) S.J 93 (H.C) had the opportunity of pronouncing itself on ex parte applications as follows.

“Ex parte injunctions… are for cases of real urgency where there has been a true impossibility of giving notice to the opponent. What is more, the material that is placed before the court on an ex parte application for an injunction should disclose, at first glance or prima facie, a strong case on the merits for the possible grant of an interlocutory injunction once an inter partes hearing takes place. I make no apology for holding the very firm view that any judge faced with an ex parte application for an injunction is duty bound to critically examine and not gloss over such application and to be satisfied that the situation revealed justifies an order on an urgent basis pending an inter parte hearing shortly thereafter on a date to be specified preferably in the ex parte order, in terms of the practice direction recently issued by me on the subject.”

In practice, the court has the discretion to change an ex parte application to an inter partes one if it is of the view that there is no real urgency in the matter meriting the making of an application for an injunction ex parte.

An applicant can be held liable for damages suffered by the respondent, if the respondent successfully later discharges the injunction. Further, it is a condition for obtaining an injunction that an applicant must give (unless the court orders otherwise) an undertaking to the court to pay any damages that may be sustained by the respondent by virtue of the injunction obtained on an ex parte basis. The undertaking is a promise to pay the response compensation if the applicant later fails to establish their right to the interim injunction.

Injunctive relief may be granted against worldwide assets of the respondent. This nature of injunctive is referred to as a mareva injunction.

Further, despite the High Court having jurisdiction to grant injunctive relief that may extend to assets outside the Zambian jurisdiction, the ability of the party to enforce such injunctive relief is dependent on the local laws or jurisdiction where the assets are located.

The general position is that injunctive relief cannot be obtained against a person that is not a party to the proceedings. However, there are instances where injunctive relief can be obtained against agents or representatives of a party to the proceedings.

In Zambia, a party that fails to comply with an order of the court including an injunction order may be cited for contempt of court. The jurisdiction is intended for two distinct purposes. First to enforce obedience to court orders and second to safeguard the court’s authority and protect the administration of justice from improper interference and abuse.

In Zambia, the court exercises control over the trial proceedings, which do not involve oral arguments but are restricted to witness/expert examination of the facts as pleaded by the parties. This involves examination in chief, cross-examination and re-examination, as well as expert witnesses who provide expert evidence.

The trial proceedings are adversarial in nature and a judge is permitted to ask questions that are free from partiality. However, the questions asked should not be such that the judge seeks to insert themselves into the substantive questioning carried out by counsel.

Upon the conclusion of the examination of the witnesses, counsel may be invited to present oral arguments or file written submissions, after which the court proceeds to render its judgment.

Final submissions in the mater involve addressing the facts as outlined during trial and the written legal arguments to support their case.

Once a party commences an action in Zambia and a defendant enters appearance and files a defence, a party that has been allocated a matter is required to issue orders for directions within 30 days from the date of filing of the defence by the defendant.

The purpose of the orders for directions is for the judge to give guidance to the parties on the timelines for filing documents in the proceedings as well as the date for a scheduling conference or trial. Further, the judge is at liberty to issue another date for a status conference for purposes of ensuring compliance on the part of the parties with the orders for directions and their readiness for trial.

Jury trials are not available in Zambia. 

Various English common law rules of admission of evidence apply in Zambia. The following are some examples:

• the rule against hearsay evidence applies. The general position against hearsay evidence is that oral or written statements made by persons other than the witness statement cannot be admitted in evidence;
• opinion evidence is not admissible unless such an opinion is given by an expert;
• the best evidence rule and the extrinsic or parole evidence rules apply. According to the best evidence rule the courts prefer the best evidence or the original evidence unless it could not be located by a party with due diligence or search. Further, according to the parole evidence rule, evidence which contradicts the contents of an agreed upon document, is inadmissible; and
• documents or statements excluded from being admitted into evidence by virtue of a particular piece of legislation. For example, The Authentication of Documents Act, Chapter 75 of the laws of Zambia renders all documents that have been signed outside Zambia and have not been authenticated in accordance with the Act as being inadmissible in court as against third parties. Further, according to Section 8(1) of the National Assembly (Powers and Privileges) Act, Chapter 12 of the laws of Zambia, the proceedings of the National Assembly cannot be used as evidence in court. Evidence that is obtained contrary to the provisions of the Cyber Security and Cyber Crimes Act No 2 of 2021, as well as Electronic Communications and Transactions Act No 4 of 2021, is inadmissible in criminal proceedings without leave of court.

Expert testimony is permitted at trial. Further, the parties are at liberty to introduce expert testimony at trial provided such evidence/testimony has been subject to the discovery process. Furthermore, the High Court, in exceptional circumstances (and usually at the instance of a party to the proceedings), has the power to compel an expert witness to give expert testimony at trial.

In accordance with Order 38 Rule 36 of the White Book, expert evidence will only be permitted in the following circumstances:

• once the parties seek leave from court to produce the expert evidence;
• if all the parties agree to the production of such evidence; or
• where the court has given a direction that it may produced as evidence.

All trial proceedings are heard in open court and to that extent are open to the public. However, matters that are required to be heard in chambers, as envisaged under Order XXX, Rule 1 of the High Court Rules, are not open to the public.

The Rules of Court permit a judge to intervene during trial for purposes of case management and clarifications of certain issues in the proceedings. This should be done through questions that are not biased or serving the interest of one party.

Further, Order XXXVI Rule 1 of the High Court Rules grants a judge discretion to give a judgment immediately after a hearing or adjourn the matter for delivery of the judgment to a later date. The law does not prescribe any particular circumstances that may inform the judge to deliver judgment immediately or adjourn to a later date.

The duration of the proceedings from commencement through to trial varies from case to case depending on:

• the availability of the judge; and
• the nature of interlocutory applications that have been made in the proceedings.

The general position is that a judge of the Commercial Division of the High Court is required to summon the parties for a scheduling conference within 14 days from the date of the defendant entering appearance and filing its defence. During the scheduling conference, the judge issues the orders for directions directing the parties on the timeframes within which to file documents in the matter.

Similarly, the judge of the Principal Division of the High Court is required to summon the parties for a scheduling conference within 30 days from the date of entering appearance and filing defence. Further, the parties are required to prepare and exchange a scheduling brief within seven days prior to the date of the scheduling conference.

The timeframe from commencement to trial in the High Court may range from six months to three years. Further, the time for the trial may range from one day to three days depending on the number of witnesses and the availability of the judge, as well as the parties to the proceedings. Furthermore, the High Court is required to deliver:

• a ruling within 90 days from the date of hearing of the application; and
• a judgment within 180 days from the date of conclusion of trial.

There is no obligation on the parties to the proceedings to seek approval of court before settling a lawsuit. That said, parties to the proceedings may opt to have an out-of-court settlement of the matter, execute a settlement agreement and in that case the plaintiff may proceed to either withdraw or discontinue the proceedings.

However, where the parties require a consent order or judgment from the High Court to settle the matter, in that case, the High Court judge must append or approve the terms of the settlement.

The settlement of a lawsuit can remain confidential provided the terms of the settlement are not reduced in a consent order or judgment that is subsequently filed into court. Court proceedings are generally open to the public. Therefore, where parties require to keep the terms of their settlement of the court proceedings confidential, the parties must execute a settlement agreement and the plaintiff may either discontinue or withdraw the proceedings before the High Court.

Settlement agreements are, for all intents and purposes, regarded as a contract between the parties. That being said, where a party intends to enforce the terms of a settlement agreement, they are required to commence court process for an order to either (i) compel the other party to specifically perform its obligations under the settlement agreement; and/or (ii) claim damages for breach of the terms of the settlement agreement. In the event that a settlement agreement is in the form of a consent order or judgment, then it can be enforced in the same manner as any judgment can be enforced.

Further and for the sake of clarity, a settlement agreement (as opposed to a consent order or judgment) is not an order of court, therefore, it cannot be enforced in the same manner as a judgment of the court.

A settlement agreement is regarded, for all intents and purposes, as a contract between the parties. Therefore, a settlement agreement may be set aside upon proof that the same was signed through (i) fraud; (ii) mistake; and/or (iii) misrepresentation. A consent judgment can also be set aside on the same grounds that vitiate a contract, and this is done by commencing a fresh action.

The awards available to a successful litigant are restricted to those that were pleaded in the originating process and specifically proven. Therefore, the general position of the law is that a party cannot be entitled to a relief that was never pleaded or proven at trial.

Please note, however, that a successful litigant may be entitled to various remedies; among others, an order for damages, an order for specific performance of the contract, injunctive relief and declarations.

In Zambia, the principles of English common law regulate the award of damages. The general position is that a party is only entitled to compensatory damages, that is, damages aimed at restoring a party to the position they had been in but for the breach.

The position taken by the Zambian courts is that damages in the law of contract are awarded for the purpose of putting the innocent party in the position that they would have been had the contractual obligations been performed. An injured party or a claimant cannot get more damages than the extent of their loss.

However, there are instances where a court may award punitive damages to a party provided they are specifically pleaded and proved at trial. Punitive damages are sparingly awarded in Zambia but will be awarded if the defendant acts in contumelious disregard of the rights of the claimant.

Further, there are no rules that limit or regulate the payment of damages in contract-related disputes. The guiding principle is that a party should be brought to a position they would have been in had it not been for the breach. It is for that reason that once the High Court makes an order awarding general unliquidated damages, the parties are then referred to assessment of the damages.

In employment-related disputes, courts in Zambia have established that the damages that may be awarded may range from one month’s worth of salary to 42 months’ worth of damages or salary.

A successful party may be awarded pre-judgment interest on the period before judgment is entered based on the contract rate. In default of the contractual rate of interest, Section 4 of the Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the laws of Zambia entitles the High Court to award a rate of interest it thinks fit on any debt or damages awarded by the High Court in respect of pre-judgment interest.

Section 2 of the Judgement Act Chapter 81 of the laws of Zambia endows the High Court with jurisdiction to award post-judgment interest at any rate, provided it does not exceed the current Bank of Zambia lending rate from the date of the judgment until payment of the full judgment debt.

Judgments delivered by the High Court may be enforced in various ways depending on the relief that has been awarded in the judgment. The following are some of the ways in which a judgment of the High Court may be enforced.

• Writ of Fieri Facias, in which a sheriff can seize and sell movable property for the recovery of a default amount. This is provided by Order XLI of both the Subordinate Court Rules and the High Court Rules.
• Writ of Elegit, in which a judgment creditor can obtain proceeds from a judgment debtor’s immovable property, such as land.
• Garnishee proceedings, in which a judgment creditor can obtain money due to them from a third party rather than from the judgment debtor.
• Writ of Sequestration, in which property may be removed from the possession of a judgment debtor until compliance with the court order. This is provided for in Order 46 Rule 5(1) of the White Book.
• Writ of Delivery, in which a judgment creditor will recover goods or their assessed value as provided for by Order 45 Rule 4 of the White Book.

In order to enforce a judgment from a foreign country, the foreign country must have a reciprocity arrangement with the Republic of Zambia for enforcement of judgments as envisaged under the Foreign Judgments (Reciprocal Enforcement) Act, Chapter 76 of the laws of Zambia (the “Foreign Judgments Act”). Section 3 of the Foreign Judgments Act requires that the judgment should be registered. However, the judgment can only be registered if, in addition to reciprocity:

• it is final and conclusive;
• there is payable thereunder a sum not being a sum payable in respect of taxes or other charges of a like nature in respect to a fine or penalty; and
• the judgment is given after the commencement of the order directing that this part shall extend to that foreign country.

Once the judgment is registered, a party can enforce it in the same manner domestic judgments are enforced.

A litigant to proceedings before the local courts in Zambia is entitled to appeal against the ruling or decision of the local court to the Magistrate’s Court. Appeals from the local courts to the magistrate courts are heard de novo. The basis for this position is that local courts are not courts of record.

Further, a litigant to proceedings before the subordinate court is entitled to appeal to the High Court. Appeals from the subordinate court to the High Court are appeals on the record. This means that parties to the proceedings are not at liberty to adduce fresh evidence that was not before the subordinate court unless in exceptional circumstances. A person dissatisfied with a decision of the High Court can appeal to the Court of Appeal, but with leave of the High Court or the Court of Appeal.

Furthermore, in relation to proceedings that are commenced in the High Court, the appeal lies to the Court of Appeal. Appeals from the High Court to the Court of Appeal are also appeals on the record. A party intending to appeal against a ruling of the High Court to the Court of Appeal is required to obtain leave of the High Court before filing an appeal in the Court of Appeal.

Similarly, a litigant to proceedings before the Court of Appeal may (with leave of the Court of Appeal, which leave is granted in special circumstances) appeal to the Supreme Court, which is the final appellate court in Zambia.

Further, and in relation to the powers of review, Article 134 of the Constitution of Zambia empowers the High Court with jurisdiction to review its own decisions as prescribed whereas the Subordinate Courts Act also empowers the subordinate court or magistrate court with the power to review its own decisions.

The threshold for allowing an appeal to a higher court varies depending on the appellate court. Appeals from the local courts to the Magistrate’s Courts, Magistrate’s Court to the High Court, as well as High Court to the Court of Appeal are as a matter of right and are awarded primarily on the basis that the appeal has reasonable prospects of success.

However, where a party intends to appeal to the Supreme Court against a judgment of the Court of Appeal, the threshold for allowing such an appeal is quite high and requires a party to prove any of the following:

• the appeal raises a point of law of public importance;
• it is desirable and in the public interest that an appeal by the person convicted should be determined by the Supreme Court;
• the appeal would have a reasonable prospect of success; or
• there is some other compelling reason for the appeal to be heard.

The general position is that a party intending to appeal to a higher court is required to file a Notice of Appeal and Memorandum of Appeal. Further, a party intending to appeal against the judgment of the lower court has 30 days from the date of the decision within which to appeal.

When dealing with appeals from the Court of Appeal to the Supreme Court, the law requires that a party must obtain leave of the Court of Appeal before filing an appeal in the Supreme Court. That said, where a judgment of the Court of Appeal has been delivered, a party intending to appeal against such a judgment is required file a notice of motion for leave to appeal to the Supreme Court before the Court of Appeal within 14 days from the date of the judgment. Once leave has been granted, a party has 14 days from the date of the grant of the leave within which to file the Notice of Appeal and Memorandum of Appeal in the Supreme Court.

Save for appeals from the Local Court to the Magistrate’s Court, appeals from the Magistrate’s Court to the High Court, High Court to the Court of Appeal and Court of Appeal to the Supreme Court are appeals on the record. This means that the appellate court is not at liberty to re-hear the witnesses or admit new evidence that was not explored in the lower court unless in special circumstances.

The court hearing an application for leave to file an appeal in the higher court is endowed with jurisdiction to impose conditions on granting leave to appeal. For example, the High Court may allow a party to appeal on specific grounds that it reasonably believes meet the threshold for granting leave to appeal and dismiss the rest of the grounds that may have been proposed by a party to the proceedings. 

The general powers of an appellate court after a hearing are as follows:

• confirm, vary, amend, or set aside the judgment appealed against or give judgment as the case may require; and
• if it appears to the court that a new trial should be held, set aside the judgment appealed against and order that a new trial be held.

The primary responsibility for paying the costs of litigation falls on the litigant. However, at the conclusion of the matter, and subject to an order of costs made by the court, a losing party to an action is required to re-imburse the successful party with the costs of the litigation.

Further, a losing party who has been ordered to pay costs may either agree to pay costs as demanded by the prevailing party or reject the same. In the case of a rejection, the losing party is required to commence taxation proceedings against the losing party. During the taxation proceedings, the prevailing party is required to prove the costs necessarily incurred in the course of the litigation.

The general position is that costs are awarded to the successful litigant in the proceedings. However, when making an order as to costs, the court may still consider the conduct of the parties to the proceedings as well as the nature of the issues that were raised in the proceedings. In constitutional matters, for example, courts rarely condemn the losing party to costs. In the same vein, the Industrial Relations Division of the High Court will not grant costs against a party unless the party is guilty of misconduct in the conduct of the proceedings.

Interest is awarded on costs. Section 2 of the Judgment Act endows the High Court with jurisdiction to award interest on costs at any rate, provided it does not exceed the current Bank of Zambia lending rate.

In Zambia, ADR has gained recognition and acceptance as an effective approach for resolving conflicts outside of the conventional court system in Zambia. ADR methods are valued for their capacity to ease the burden on the courts, lower the expenses and time typically linked with litigation, and enhance the efficiency of dispute resolution. ADR mechanisms are seen as valuable tools to foster more accessible and swift resolution of disputes.

There are generally three most popular ADR mechanisms in Zambia, namely conciliation, arbitration and mediation. These forms of ADR are regulated by various pieces of legislation.

Conciliation of collective disputes in the labour and employment sector is provided for by the Industrial and Labour Relations Act, Chapter 269 of the Laws of Zambia. 

Further, the High Court Rules allow parties to settle their disputes through Court Annexed Mediation or arbitration. In the Industrial Relations Division of the High Court, a matter is first referred to mediation and will only proceed to trial if the parties fail to reach a settlement. Further, arbitration is principally regulated by the Arbitration Act No 19 of 2000.  In addition, certain statutes like the Law Association of Zambia Act, Chapter 31 of the laws of Zambia and the Public Procurement Act No 8 of 2020 provide for arbitration as a mode of settling disputes arising therefrom.

Please refer to 12.1 Views of ADR Within the Country.

In Zambia, there is principally one functional ADR institution called the Chartered Institute of Arbitrators – Zambian Branch (CIArb). The CIArb Zambian Branch is well organised and offers various training opportunities, as well as accreditation in an effort to promote arbitration in Zambia.

The laws governing arbitration in Zambia are, among others, the following:

• The Arbitration Act No 19 of 2000;
• The Arbitration (Court Proceedings) Rules, Statutory Instrument No 75 of 2001; and
• The Arbitration (Code of Conduct and Standards) Regulations, Statutory Instrument No 12 of 2000.

The following matters are not capable of determination by arbitration:

• an agreement that is contrary to public policy;
• a dispute which, in terms of any law, may not be determined by arbitration;
• a criminal matter or proceeding except insofar as permitted by written law or unless the court grants leave for the matter or proceeding to be determined by arbitration;
• a matrimonial cause;
• a matter incidental to a matrimonial cause, unless the court grants leave for the matter to be determined by arbitration;
• the determination of paternity, maternity or parentage of a person; or
• a matter affecting the interests of a minor or an individual under a legal incapacity, unless the minor or individual is represented by a competent person.

Section 17 of the Arbitration Act entitles a party to make an application to set aside an arbitral award, which can be set aside under the following circumstances:

• one of the parties to the arbitration agreement was under some legal incapacity;
• the agreement itself is not valid under the law chosen by the parties or, if not specified, under Zambian law;
• the party seeking to set aside the award was not properly notified of the appointment of an arbitrator or the arbitration proceedings, or they were unable to present their case;
• the award deals with a dispute not contemplated by, or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decision on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside;
• the composition of the arbitral tribunal or the arbitration process did not follow the parties’ agreement or, in the absence of such agreement, did not comply with Zambian law or the law of the arbitration’s location; or
• the award is not yet binding on the parties, or it has been invalidated or suspended by a court in the country where it was made.

Further, the court may also set aside an arbitral award if it finds that:

• the subject matter of the dispute cannot be settled through arbitration under Zambian law;
• the award goes against public policy; or
• the making of the award was influenced or tainted by fraud, corruption or misrepresentation.

An arbitral award, regardless of the country in which it was rendered, is considered legally binding and can be recognised as such. To obtain this recognition and make an arbitral award enforceable in Zambia, a party is required to register the arbitral award by making an application in the High Court for the registration of the same. The application for registration of an arbitral award is required to exhibit the following:

• the original award, duly authenticated, or a certified copy of the award;
• the original arbitration agreement, duly authenticated, or a certified copy of the agreement; or
• if the award or agreement is not in the official language of the relevant jurisdiction, the party must supply a certified translation of these documents into the official language.

There have been proposals to repeal and replace the Arbitration Act in Zambia. However, the proposals are still in their infancy and various stakeholders are currently being engaged.