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Citation
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Judgment date
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| December 2012 |
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Applicant’s challenge to Saturday AGMs for infringing conscience and causing creed‑based discrimination was dismissed for lack of hindrance or differential treatment.
Constitutional law – Article 19(1) freedom of conscience – “hindrance” requires positive act, coercion or constraint; Article 23(2) discrimination – requires proof of differential treatment/comparator and causal link to creed; Article 28(1) locus – actual or threatened action in relation to applicant; scheduling of meetings on Sabbath not unlawful absent evidence of coercion or discriminatory purpose.
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30 December 2012 |
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Divorce petition under s9(1)(b) dismissed: respondent’s conduct insufficient to prove irretrievable breakdown.
Matrimonial Causes Act ss 8 & 9(1)(b) — irretrievable breakdown — meaning of "behaved in such a way" — behaviour as acts/omissions affecting marriage — cumulative conduct — objective test applied to this petitioner’s characteristics — standard of proof balance of probabilities — continued cohabitation not conclusive.
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13 December 2012 |
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An acquittal does not alone establish malicious prosecution; plaintiffs must prove lack of reasonable cause and malice.
Malicious prosecution — elements: prosecution, favourable termination, absence of reasonable and probable cause, malice — acquittal not conclusive proof of lack of reasonable and probable cause — pleadings bind parties; new causes not to be raised at submissions.
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13 December 2012 |
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Whether counsel may represent a client adverse to a former client where conflict and confidential information exist.
Legal Practitioners' Practice Rules – conflict of interest – acting against former client – breach of confidence – rules 32(3), 33(1)(f), 33(1)(g), 37(3) – removal of counsel.
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13 December 2012 |
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Carrier vicariously liable for driver’s negligent speeding; insurer’s K30 million credited but plaintiff may recover additional damages.
Road traffic negligence – carrier’s duty to inspect and maintain vehicle – tyre burst defence and inevitable accident – res ipsa loquitur where no explanation given – vicarious liability of owner/employer – insurer payout credited but does not bar further recovery.
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13 December 2012 |
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Court removed a caveat after the respondent failed to justify an interest; compensation claim dismissed for lack of evidence.
Lands and Deeds Registry Act (ss.76, 81, 82) – Removal of caveat – Ex parte proceedings where caveator absent – Burden on caveator to disclose interest – Compensation for malicious caveator requires proof of lack of reasonable cause and damage.
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12 December 2012 |
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Failure to produce required medical certificates justified summary dismissal and employer recovery of erroneously paid wages.
Employment law – absenteeism – summary dismissal in absentia – contractual and collective agreement sick-leave requirements – recovery of erroneously paid wages – notice in lieu.
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3 December 2012 |
| November 2012 |
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Arbitration clause in a separate personal guarantee did not compel stay of mortgage-based proceedings in court.
Arbitration Act s10 – stay of court proceedings – arbitration clause in personal guarantee – separate mortgage deed without arbitration clause – interpretation of securities arising from same transaction.
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27 November 2012 |
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A Mareva injunction requires both a debt due and clear evidence of risk of dissipation; speculative assertions and foreign managers alone are insufficient.
Civil procedure – Mareva injunction – interlocutory freezing orders; Test: debt due and owing and real risk of dissipation; foreign management alone insufficient; necessity of evidential particulars.
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26 November 2012 |
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Whether alleged false sworn statements opposing an injunction amount to contempt warranting committal and leave to appeal.
Contempt of court — false statements in affidavits — distinction between abuse of process and contempt — mens rea and proof beyond reasonable doubt — leave to issue committal proceedings under Order 52.
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24 November 2012 |
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Prosecution failed to prove causation between the accused's slap and death; dying declarations excluded; accused acquitted of murder.
Criminal law – murder — causation — burden of proof; Res gestae/dying declarations — admissibility and risk of concoction; Substitution to lesser offence (manslaughter) — requirements under Criminal Procedure Code s.168/149 and fairness to accused; Post-mortem evidence — surgical emphysema consistent with trauma and evidential limits.
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19 November 2012 |
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Circumstantial evidence and relative-witness testimony did not exclude other reasonable inferences; accused acquitted of murder.
Criminal law – Murder – Circumstantial evidence – Inferences must be the only reasonable conclusion – Suspect witnesses (relatives) and danger of false implication – Post‑mortem reports admissible under s191A; discretion to summon medical officer.
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19 November 2012 |
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Recent possession and reliable single-witness ID sustained conviction; unfair identification parade required acquittal of co-accused.
Criminal law – aggravated robbery; identification evidence – fairness of identification parade; single-witness identification; doctrine of recent possession; destroyed exhibits and secondary evidence; amendment of information; judicial notice.
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19 November 2012 |
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Assault causing bowel perforation and septicaemic shock amounted to manslaughter; malice aforethought for murder was not proved.
Criminal law – murder v manslaughter; causation – assault leading to perforated bowel and septicaemic shock; expert medical opinion and its weight; novus actus interveniens and medical treatment; credibility of eyewitness evidence.
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19 November 2012 |
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1st accused convicted of murder; provocation, self-defence and duress rejected; 2nd accused acquitted for lack of participation.
Criminal law – Murder – Provocation (adultery/confession) – sudden loss of self-control – Self-defence – necessity and proportionality of force – Duress not a defence to murder – Common purpose (s.22) – Circumstantial evidence and leading police to exhibits as indicia of knowledge.
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19 November 2012 |
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Affidavits by counsel containing hearsay and deficient particulars are inadmissible; alleged fresh evidence failed the Order 39 fresh‑evidence test.
Civil procedure — admissibility of affidavits — advocates swearing contentious/hearsay evidence — compliance with Order 5 rules 17–18; Review (Order 39) — fresh evidence test: materiality, discovery after judgment, and diligence; Third‑party proceedings — indemnity claims inappropriate absent counter‑claim; Stay of execution — not established.
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12 November 2012 |
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Accused declared unfit to plead but prosecution proved murder; court ordered detention during the President's pleasure.
Criminal law – fitness to plead – insanity – section 161(2) and section 167 Criminal Procedure Code – leading evidence despite unfitness – transferred malice – detention during President’s pleasure – Mbaye precedent.
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12 November 2012 |
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Accused convicted of murder with extenuating circumstances; intoxication and witchcraft belief mitigatory, not exculpatory.
Criminal law – Murder – Malice aforethought inferred from weapon, injuries and conduct – Identification by relatives corroborated by postmortem – Intoxication not negating mens rea but a mitigating circumstance; belief in witchcraft mitigatory only.
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12 November 2012 |
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Accused part of mob that killed two people; identification and postmortems proved murder; witchcraft belief extenuating.
Criminal law – murder: elements (death, unlawfulness, malice, causation) – identification and corroboration by postmortem – circumstantial evidence and joint liability – belief in witchcraft as extenuating circumstance.
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11 November 2012 |
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The accused convicted of murder on eyewitness ID and common purpose; belief in witchcraft found extenuating.
Criminal law – Murder: proof of death, unlawfulness and malice aforethought; identification evidence and reliance on a single identifying witness; common purpose liability in mob assaults; belief in witchcraft/'kikondo' as extenuating circumstance.
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11 November 2012 |
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Whether a house bought by the respondent was a gift or a repayable loan; court found it a gift.
Intestate succession; title disputes; gift versus repayable purchase; proof of fraud/forgery; cancellation of certificate of title; repayment of rentals; credibility and laches.
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1 November 2012 |
| October 2012 |
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A joinder application failed because proposed plaintiffs had not given the written consent required under procedural rules.
Procedure — Joinder of parties; Order 14 r.5 High Court Act; White Book (Supreme Court Practice 1999) only supplements domestic procedure; Order 15 r.6(4) — written consent required to add a plaintiff; procedural service and locus to oppose.
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24 October 2012 |
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Application to stay offering of land refused as substantive relief amounted to a prohibited injunction against the State.
Administrative law; stay of execution; State Proceedings Act s18; injunctions against the State; discretion to grant stay; requirement to show good cause; adequacy of damages.
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22 October 2012 |
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An appellant's claim of an equivocal plea failed where particulars and admissions showed an unequivocal guilty plea.
Criminal law – guilty plea – equivocal plea – requirement to put every ingredient to unrepresented accused – permit/licence interchangeability – Zambia Wildlife Act sections 76 and 100.
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18 October 2012 |
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Local authority’s unauthorized offer letters gave rise to refundable payments and a duty to recommend plaintiffs to the Commissioner of Lands.
Local government — State land allocation — Local authority issuing offer letters outside Commissioner of Lands’ powers — Illegality defence — Specific performance inappropriate where alienation power vested in Commissioner — Damages and administrative recommendation as remedy.
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16 October 2012 |
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Ex-parte injunction discharged where plaintiff lacked proprietary interest in employer house and failed to show irreparable harm.
Interlocutory injunction — ex-parte injunction — employer-provided housing — proprietary interest; offer to purchase; irreparable injury; damages adequate remedy; failure to prosecute; Order 3 Rule 2.
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11 October 2012 |
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Court granted interim attachment of a vehicle where the defendants risked evading satisfaction of a monetary judgment.
Interim attachment (Order 26) - requirement of intent to obstruct or delay execution - removal/disposal of property from jurisdiction - failure to furnish security - risk posed by foreign defendants - attachment pending final judgment.
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10 October 2012 |
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The plaintiff's driver was found negligent; plaintiff's claim and insurer claim dismissed; defendants' counterclaim succeeds.
Road traffic accidents – negligent overtaking v. failure to keep proper lookout – causation and liability; Evidence – credibility of independent eyewitnesses and weight of police reports; Civil standard of proof distinct from criminal acquittal; Insurance indemnity – insurer liable only after insured’s liability established; Res ipsa loquitur and burden of proof.
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10 October 2012 |
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Proceedings were a nullity where companies appeared in person without leave and the Subordinate Court lacked consent to hear a title dispute.
Civil procedure – Corporations must be represented by an advocate unless court grants leave – Order 5 Rule 6
Subordinate Courts – jurisdiction over title disputes requires parties' consent – section 23 Subordinate Courts Act. Procedural irregularity renders proceedings a nullity
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8 October 2012 |
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A fresh action after an earlier dismissed, unrestored claim is not multiplicity or abuse of process; appeal dismissed with costs.
Civil procedure – multiplicity of actions – when dismissed action not restored – no multiplicity if earlier action is dead and not on active cause list; forum shopping; abuse of process.
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4 October 2012 |
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Child’s identification, corroborative witnesses and medical report sufficiently upheld defilement conviction; failure to call doctor not fatal.
Criminal law – Defilement – Single identifying witness (child) – requirement to eliminate mistaken identity – corroboration of unsworn child testimony by medical report and witness evidence – admissibility and sufficiency of medical report where doctor not called – alibi; burden to particularise for investigation.
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4 October 2012 |
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Applicant failed to show clear right or irreparable harm; court refused interim injunction and preserved status quo.
Interlocutory injunctions — requirement of clear right or real prospect of success and irreparable harm — balance of convenience and preservation of status quo — expungement of offending affidavit paragraphs (Order 5 Rule 15).
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3 October 2012 |
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Accused acquitted where prosecution failed to establish a prima facie case of dangerous driving due to poor investigation and unreliable expert evidence.
Road Traffic Act s161(1) — dangerous driving; no case to answer; prima facie evidence; requirement for reliable expert evidence on speed; necessity of 'real' evidence (sketch, measurements, tyre, photographs); overloading and tyre puncture as special defence; dereliction of investigative duty.
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2 October 2012 |
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Whether the sale was conditional (retaining title) or an innocent purchaser acquired good title to the generator.
Sale of goods – conditional sale v unconditional sale – passing of property; contra proferentem; Sale of Goods Act ss.5,18,21,22; market overt and good faith purchaser; waiver/acceptance of non‑conforming goods; seller’s remedy for price.
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2 October 2012 |
| September 2012 |
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Forfeiture of third‑party property requires evidence of ownership or complicity; without it, forfeiture is unlawful.
Criminal law — Forfeiture of property under ZAWA Act s.139 — Limits on forfeiture where third party claims legal ownership — Need for evidence before inferring third‑party complicity — Right to be heard and State’s stance on forfeiture.
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30 September 2012 |
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Whether eyewitness identification, parade procedures and recovered sim-card evidence proved the accused’s liability for multiple aggravated robberies.
Criminal law – aggravated robbery and assault – eyewitness identification – identification parade – reliability of identification; circumstantial recovery of sim-card evidence linking stolen phones; credibility and weight of victim testimony regarding perceived police identity and weapons.
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27 September 2012 |
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Two accused convicted of murder by strangulation with extenuating circumstances; a third acquitted for non-participation.
Criminal law – Murder – Elements: death, unlawful act, malice aforethought, causation – Strangulation established by post-mortem – Corroboration of detainee witness – Suicide vs homicide – Acquittal of non-participating co-accused.
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16 September 2012 |
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Whether a landlord may terminate tenancy or raise rent for "change of use" without complying with the Rent Act.
Rent Act – statutory tenants – notice to terminate – change of use not a ground under Rent Act – notice void ab initio; landlord’s repair obligations; determination of Standard Rent by Registered Valuation Surveyor under statutory formula; interim continuation of existing rent; valuation procedure and effective date.
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11 September 2012 |
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Admission to police of negligence is admissible, but an insurer’s stated assessed amount in defence is not an admission for judgment on admission.
Evidence – Admissibility of admissions of negligence given to police in civil proceedings; Civil procedure – Whether insurer's stated assessed amount in defence constitutes admission for judgment on admission; Insurance law – Principle of indemnity and measurement of motor vehicle loss.
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10 September 2012 |
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Court ordered valuation of sold matrimonial assets, awarded compensation and one-third of the farm to the respondent.
Family law – distribution of matrimonial property on divorce – beneficial interest in assets acquired during marriage – valuation of assets sold prior to distribution – fictitious gifts to children – assessment and lump-sum compensation – Matrimonial Causes Act s.55 (formerly s.24).
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4 September 2012 |
| August 2012 |
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Interim injunction refused where newly‑incorporated companies lacked goodwill and damages were an adequate remedy.
Company names – Interim injunction – Passing off – Goodwill and reputation – Adequacy of damages – Registrar’s discretion under s.37 Companies Act – American Cynamid principles.
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26 August 2012 |
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Interim injunction discharged where plaintiff failed to show irreparable harm and damages would adequately compensate any loss.
Interim injunction — American Cyanamid principles — whether product is a "breast milk substitute" under SI No. 48/2006 — adequacy of damages and balance of convenience — injunctions and State (s.16 State Proceedings Act).
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26 August 2012 |
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Petition challenging TV closure barred by res judicata; prior final judgment forecloses relitigation.
Res judicata — prior final judgment on merits; privity of parties; abandonment of review/appeal renders judgment final; abuse of process; competency of State Advocate to depose affidavit.
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16 August 2012 |
| July 2012 |
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Bus driver and employer found negligent; awards made for pain, loss of expectation of life, medical and funeral expenses.
Road traffic accident; negligence; duty of care to passengers; vicarious liability of employer for driver; damages for personal injury and loss of expectation of life; special damages; interest and costs.
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16 July 2012 |
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Consent order settling judgment debt binds parties; writ of fieri facias enforcing alleged omitted entitlements set aside.
Civil procedure – consent order – parties bound by clear consent settlements – enforcement by writ of fieri facias – irregularity – proper remedy to challenge or recover omitted entitlements is fresh action; costs and bailiff’s fees.
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12 July 2012 |
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The court held that section 17(3) imposes a mandatory three‑month bar and a Deputy Registrar lacked jurisdiction to extend time or grant the stay.
Arbitration law — section 17(3) Arbitration Act — mandatory three‑month limitation to set aside award; jurisdiction — Rule 23(1) requires application to a Judge; stays — Rule 20(2) creates automatic suspension of execution on application to set aside registration.
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8 July 2012 |
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Whether the receiver or the respondent company is liable for contracts entered during receivership.
Companies Act s114 – receiver's personal liability for contracts; receivership – receiver's locus standi; agency – principal liability after receivership; joinder/misjoinder of receiver; third-party remedies against receiver.
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3 July 2012 |
| June 2012 |
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Petitioner failed to prove alleged ferrying, bribery and intimidation to the high standard required; election upheld.
Electoral law — election petition — standard of proof higher than balance of probabilities; allegations of ferrying voters, bribery (bicycles, food), intimidation and collection of voter/NRC details; evidence must link malpractice to candidate or agent; donations outside campaign window may be legitimate philanthropy.
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28 June 2012 |
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A letter of award subject to contract finalization under the Public Procurement Act did not constitute a binding contract.
Public Procurement Act — formation of contract — letter of award versus formal written contract (ss. 52, 54, 55); requirement of concluded bargain; partial performance; specific performance inappropriate where performance impossible.
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28 June 2012 |
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Whether a written sale contract may be set aside for alleged misrepresentation and to challenge registered title under s.34.
Contract law – parol evidence rule – written contract of sale prevails over extrinsic claims; Misrepresentation and fraud – burden to prove; Lands and Deeds Registry Act s.34 – protection of registered proprietor absent proven fraud; Registration irregularities do not automatically vitiate a valid sale.
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24 June 2012 |