Winjie Siwale BCom. LLB (Rhodes) LLM.

(UWC-Humboldt)

Evidence & practice – mr lungu

Lecture 1

What is Evidence?

Evidence is the means employed for the purposes of proving an unknown or disputed
fact. It may be judicial or extra-judicial. Judicial evidence is evidence which is used n
trials, or enquiries.

Types of evidence

Oral evidence

Consists of statements made in court by witnesses. Whether they are direct assertions
or assertions of hearsay or whatever category. The medium through which oral
evidence is tendered before the Court is through the medium of a competent witness
through testimony.

Can a deaf person give oral evidence in court? Yes, through sign language
accompanied by an interpreter.

Oral evidence may contain:

• facts in issue – issues disputed between parties and which form the
subject of the decision in the case
• facts relevant to the issue – the facts that are not in issue but lead you to
the facts that are in issue
• facts relevant to the credibility of the witness,
• or the admissibility of an item of evidence.

Two forms of oral evidence:

I. Direct evidence – this consists of either the testimony of the witness who
perceived the fact, or in cases of documentary evidence, the production
of the document which consists the fact.
II. Circumstantial evidence – this is evidence which although not directly
establishing the existence or non-existence of the fact required to be
proved, is admissible in order to enable the court to decide whether the

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fact did or did not exist. The fact to be proved is called factum
probandum and the facts from which it is sought by logical influence to
be proved or disproved are referred to as factum probantia.

David Zulu v the People 1977 ZLR 151 - The appellant was convicted of
the murder of a woman in the course of a sexual assault. The injuries on
her body suggested that she had struggled with her assailant. It was
established that the appellant and deceased had been drinking together
and were seen leaving the bar together. Later on the deceased’s body
was found and when the appellant was located was discovered to have
scratches on his body.
His explanation was that the scratches were cause by flying pieces of
iron at work and this was not rebutted but the trial Court, without any
evidence to support the finding, said that the appellant had protective
clothing and which the iron pieces could not penetrate. The trial Court
then inferred that the scratches were sustained during the struggle with
the deceased.
Held: Chomba JS
“It is palpably clear that the evidence available at the trial was
circumstantial evidence…It is competent for a Court to convict on such
evidence as it is to convict on any other types of admissible evidence.
However there is one weakness peculiar to circumstantial evidence; that
weakness is that by its very nature circumstantial evidence is not direct
proof of a matter at issue but rather it is proof of facts not in issue but
relevant to the facts in issue and from which an inference of the fact in
issue may be drawn…. As Professors Noakes states in the 2nd Edition
of his book An Introduction of Evidence at p. 467:
“The possible defects in circumstantial evidence may…include not only those
which occur in direct evidence such as falsehood, bias or mistake on the part of
witnesses, but also the effect of erroneous inference….”

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It is therefore incumbent on a trial Judge that he should guard against

drawing wrong inferences from the circumstantial evidence at his
disposal before he can feel safe to convict…..The judge …be satisfied
that the circumstantial evidence….attains such a degree of cogency
which can permit only an inference of guilt.”
Appeal Allowed

Saidi Banda v The People 144 of 2015 (SCZ)

There were two gentlemen: the deceased and the accused. The accused
called the deceased saying there is something we need to discuss and
that was the last time the deceased was seen. The wife got worried, but
there was real communication via text between husband and wife. She
tries to call but he doesn’t pick up. The deceased is found dead and
autopsy revealed that he died between the time he was sending
messages. The accused is then found with the deceased’s phone and
could not explain. He was charged and convicted with murder. He
appealed to the Supreme Court who revisited the elements that the
courts should consider when deciding a matter based on circumstantial
evidence. Three stage approach:
• Court must find that the prosecution has established certain basic
facts. Those facts do not have to prove beyond reasonable doubt.
• The court should infer or conclude from a combination of those
established facts that a further fact/s exist.
• The Court must then establish that those further facts implicate
the accused in the manner that point to nothing else but his guilt.

Court goes further to say that circumstantial evidence is better than

direct evidence if applied properly.

Real Evidence

This consists primarily of the inspection of objects other than documents produced for
examination by the court of fact. In Cross & Takwa they say the following “things are

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an independent species of evidence as their production calls upon the court to reach
conclusions on the basis of their own perception and not that of the witnesses directly
or indirectly reported to it.

Real evidence is not a term that has received a blessing of common judicial usage. It is
clear that it covers the production of material objects for inspection by the Judge, but
obscure how much further the term should be extended.

Secondary Evidence of Real Objects

In exceptional circumstances, the court will accept secondary evidence of real objects
rather than requiring their physical production. Real evidence may be used as a
means of proving facts in issue. It may also be used in an endeavour to establish
relevant facts.

Appearance of Persons

A person’s physical characteristics are frequently included among the possible items
for real evidence, and these may often serve as a vital means of proof. It counts
towards showing and proving real evidence before a court. Bulejcik v R (1996)185 CLR
375

Demeanour of a Witness

If a witness gives his evidence in a forthright way, unperturbed by cross examination,

the court will no doubt be more disposed to believe him than would be the case with
a halting or dodgy witness.

View

A view is an observation that is undertaken out of court during the course of a trial.
When that which is shown to the court at the view, is something that might have been
produced as an exhibit had it been convenient to do so; for instance, as when buses

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are examined in the yard of the court, if it was easy to bring a bus into a court it would
have been brought. [General Omnibus Ltd v Lavell 1901 One Chancellor Division 135],
or when the tribunal visits the place so that witnesses can show where they were
standing at the relevant time [Karamat v R 1956 1 Law England Law reports 415].
Chrismar Hotel v Cavmont Capital Insurance: Chrismar owned a bus used between
Lusaka and Copperbelt. One of the buses was involved in an accident were a number
of people died, colliding with another bus at a narrow bridge. They submitted their
claim from the insurers who almost made the payment, but then got the information
that the person who was driving the bus should not have been driving it. They
stopped the payment and carried out investigations. Chrismar claimed that they be
paid, and a cause of action brought in the HC. Driver of the bus submitted a witness
statement as part of evidence, because the matter was in the Commercial Court. Before
cross examination was conducted, an application for a view was made because the
bus was in the yard. One part of the bus was rid of because of the accident on the
driver’s side. It got into question that the driver stated in his statement that he only
had injuries on his hand. During cross examination, he stated that the people behind
him all had died, which brought into question what he said. – Read both High Court
and Supreme Court judgments.

Documentary Evidence

As in the case of a document, a material object when produced must be proved. In the
absence of an admission, oral evidence to identify the object is necessary.

This is evidence introduced at a trial in the form of documents. A document is any

substance on which writing, figures or symbols are parked [R v Daye 1908 2King Bench
Law Reports 333]. The imprints may include printed material on the substance,
typewritten, engraved or handwritten. Such substance would be regarded as a
document. In the Evidence Act Chapter 33 of the Laws of Zambia, a document is
defined.

How are documents produced in Criminal Court?

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• You first lay a foundation – The witness is asked to describe the features of the
document they want to produce before court giving details of the document.
You then ask the witness, “if the document was shown to you, how would you
identify it?”
• You then get the document and show it to the witness, asking “tell the court
what that document is”
• After the witness has described and identified the document, the document is
marked as “Identified”, i.e. “ID1 or ID2’’. [The witness is then asked who has
been the custodian of the document and whether the person producing it is the
author of the document?]
• The witness is then asked what they would want to do with that document –
the witness would then state that s/he would like the document to be part of
their evidence
• You then show the document to the other party, because the defence must be
given an opportunity to see the document.
• An application is then made that the document form part of evidence
• The defence is then asked whether they have any objection for the document to
be tendered into evidence. There are various reasons for an objection
➢ The person producing is not the author
➢ Custody
➢ Document is not an original
➢ A document was produced from a computer
• Where there is no objection, the document is produced as part of the evidenced
and marked as “P1 or P2’’.

Simulation:

You’re a prosecutor in a matter to do with theft of property. Amongst the evidence

that you have is a video footage which is on a flash stick. How would you present this
evidence before the court for it to be accepted? The footage is secondary documentary
evidence – need to meet the requirements to satisfy the court that it should be
used…lay a foundation as to why secondary evidence should be accepted as evidence

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by the court…if not accepted, can apply for a viewing, for the court to view the original
footage from the actual system. Who is the author? Issue of custody?

PRODUCTION OF DOCUMENTS IN CIVIL MATTERS

In a matter commenced by Writ of Summons, when pleadings are closed, the court
will issue orders for directions outlining to the parties what they ought to do. Amongst
the directions that the court will give is that the parties will prepare a list of documents
that the parties intend to rely on at trial. Once those documents have been exchanged,
the parties will carry on inspection of the documents, and once they agree will prepare
bundles of documents (containing documents that you intend to rely on at trial) which
are then filed into court. When the matter comes up at trial, a party cannot produce a
document other than what was in the bundle of documents. However, a party can file
a supplementary list of documents into court and subsequently file a supplementary
bundle of documents where a party wants to produce a document that was not
contained in the bundle of documents filed.

How do you refer a witness to a document that has been filed? The general practice is
that the witness will be led in the evidence to discuss or describe the document that
the lawyer would want the witness to bring to the attention of the court. This is usually
done through examination in chief.

A matter commenced before the Commercial Court, however, when a witness is about
to testify, other than the witness statement that the witness is relying on, the witness
is usually asked if there is any other document that the witness has brought to court.
the witness will point to their bundle of documents and request that it be admitted
into evidence at that particular court. This is because the order for evidence in a
normal trial is examination in chief, cross examination, then re-examination, but in the
commercial court the witness prepares a witness statement as their evidence which is
regarded as examination in chief, so you go straight into cross examination. Therefore,

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it is always prudent to tell the court that you will rely on your bundle of documents if
you have prepared one so that it can be admitted into evidence.

TYPES OF DOCUMENTS

There are two types: private and public documents.

Private documents are documents which are not official, public, or judicial. A person
intending to rely on the words used in this kind of document must adduce primary
evidence of its contents. Primary evidence means that the evidence must be in its
original form. Read MacDonald v E 1852 11 CB 930 and R v Polly Trinity Hull 1872 7
B&C 611.; George Bianca v The People. There are exceptions to the rule of adducing
primary evidence:

• When the original is in the possession or control of the opponent of the party
wishing to rely on that document. For instance, somebody is dismissed from
employment and decides to sue the lawyer and the document that he has is a
copy of the document (maybe a company document). How is he going to
produce it and satisfy the court to produce a copy? He can compel the other
party to produce the document before court by way of a Notice to Produce and
indicate which document you what the other party to produce before court.
• When the document is in possession of stranger who lawfully refuses to come
to court or to produce it before court even after being served with a subpoena
destecum. E.g. people who enjoy diplomatic immunity who are not answerable
to the government
• When the original cannot be found after a due search – can rely on secondary
evidence
• When though it is known to be in existence, the production of the original is for
practical purposes impossible. E.g. in the RB abuse of office case concerning the
procurement of oil from Nigeria. It was alleged that a letter was written from
one President to the other. During a police search in his house, the police officer
came across a copy of the alleged letter which raised suspicion. The police

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officer who found the letter was giving evidence that he found the letter which
had a State House letterhead and a signature of the President which the witness
alluded to when asked how he would identify the letter if he saw it. DPP gave
a copy of the letter to the witness who acknowledged that that is the letter he
found and asked what he would like to do. He said he would like to produce it
as evidence but there was an objection because it was not the original copy and
a foundation had not been laid. Through examination it became clear that the
person in possession of the original could not come before court.
• When the document is computer generated

Proof of due Execution of Private Documents

Hand in hand with the rule requiring primary evidence of documents to be made, is
the requirement of proof of due execution. The general rule in both criminal and civil
proceedings is that a document is only admissible in evidence upon proof of due
execution. Sec 3 of the evidence Act states:

“(3) For the purposes of this section, a statement in a document shall not be deemed
to have been made by a person unless the document or the material part thereof was
written, made or produced by him with his own hand, or was signed or initialed by
him or otherwise recognised by him in writing as one for the accuracy of which he is
responsible.”

How do you prove due execution?

Handwriting and signature may be proved by the following methods:

1. Evidence of the writer;

2. Evidence of a witness who has acquired knowledge of the writing in some way;
e.g. frequently corresponding with the writer and knowing his handwriting
3. Evidence of the witness who saw the document being signed
4. Comparison of the document in dispute with others proved to be genuine
5. Admission by the party against whom the document is tendered.

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We have said that the general rule in both criminal and civil matters that a document
is only admissible in its primary form and upon proof of due execution. How then
can you prove documents that are generated from computers?

[ALWAYS A QUESTION ON SECTIONS 2.4,7, 8, 10 AND 11, 56 OF CAP 21 OF 2009

(COMMUNICATIONS AND – ALWAYS ASKED IN THE EXAM BUT NEVER
TAUGHT IN CLASS]

OTK V AMANITA ZAMBIANA 2011 -to be discussed in the next class.- judge tried to
give an interpretation of the various sections in the Act

Look at what the definition of data in the Act is. Email is also defined in the
Interpretations Act as a date message, which brings it within the ambit of data
messages.

Section 8 of the Act, the admissibility of a data message is described.

Take a close look at section 10 of the said Act.

Look at section 12 of the Act.

This Act brings in another exception to the primary evidence rule.

JUDICIAL NOTICE

A court may take judicial notice of certain facts that are so notorious that no formal
evidence is necessary [Mwape v The People 1976 ZLR 160; Herbert Chankobe v The People
1977 ZLR 126].

Usually the court will take judicial notice of:

1. Matters of common knowledge

2. Acts of Parliament
3. Statutory Instruments

Read further on this on your own.

PRESUMPTIONS
A presumption can be defined as a conclusion which may or must be drawn until the
contrary is proved. Sometimes a presumption only arises if some basic fact is first

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proved, sometimes it arises in all cases without proof of any particular fact. The effect
of presumptions is to establish a fact without any complete proof and no evidence is
required of a fact which is presumed in a party’s favour. E.g. basic presumption of
innocence; presumption of legitimacy – until you prove that your son who looks like
your son, that is your son.

Presumptions operate in two views:

1. Once a presumption is countered, it disappears like a bursting bubble. When

the court finds you guilty the presumption of innocence disappears. Thus, if
the opponent establishes a prima facie case to disprove the presumed fact, the
presumption disappears, and the case is determined on the evidence before the
court without reference to the presumption.
2. Proof of particular facts imposes on the opponent the legal burden of
disproving the presumed facts and thus, the court must make finding that the
presumed fact is true unless sufficient rebutting evidence is adduced. If
sufficient evidence to rebut is adduced, the court must find the presumption to
be untrue.

A rebuttable Presumption of law

Also known as conclusive presumptions. These are not presumptions in the general
sense, but rather these are rules of substantive law. No evidence is admissible to rebut
them except proof that the basic facts underlying and giving rise to the presumptions
are not true. E.g. every one of us is presumed to know the law; Section 14 of the Penal
Code provides that no child under the age of 12 is capable of having carnal knowledge.

It is important to note that the characteristics of a true presumption is that it is subject

to rebuttal. The two classes of such presumptions are:

1. Those that do not depend upon the basic fact. These include:
a) Presumption of innocence
b) Presumption of innocence in favour of a child between the age of 8 and 14;
presumed to be dolii incapax. This presumption is rebuttable upon proof of

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mischievous discretion. That is if it can be proved or shown that the child

knew that what he was doing was wrong at the time he was doing it.
c) The presumption of sanity. That every person accused of a crime is
presumed to be sane until the contrary is proved [section 11 of the PC]. The
operation of this presumption is to cast a burden on the accused to show
that he is not fully responsible for his acts as a normal person.
2. Those that that depend upon proof of a basic fact

In many cases, upon proof of a basic fact, the law prescribes what other facts
shall be inferred in the absence of further evidence. In other cases, upon proof
of a basic fact, the law allows but does not require other facts to be inferred in
the absence of further evidence. Examples include: presumption of marriage.
A prima facie presumption in favour of the validity of the marriage is raised by
proof of either of the two sets of the circumstances:

a) That the parties went through an apparent regular ceremony of marriage

and afterward lived together as man and wife;
b) That the parties cohabited and were treated as married by those that knew
them.

Legitimacy

It is presumed that a child proved to have been born during lawful wedlock is
legitimate. This presumption can only be displaced by strong, distinct, satisfactory,
and conclusive evidence that no sexual intercourse took place between the husband
and the wife at any time when by such intercourse the husband could by the laws of
nature be the father of such a child. This presumption applies even if the husband and
wife are living apart.

Presumption of death

This presumption may be made of a person if he is missing for a continuance period

of not less than 7 years. For this to be proved:

a) There must be proof that there are people who would be likely to have heard
of him during that period;

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b) That these people never heard from him and

c) That all due inquiries have been made appropriate to the circumstances.

CORROBORATION

Corroboration is independent evidence which supports the evidence of a witness in

the material particular. Nsofu v The People 1973 ZLR 287; Iris Mukonde v The People SCZ
Selected Judgment No. 11 of 2011.

General rule: in both civil and criminal cases is that the court may act on testimony of
one witness. There are however, occasions where the need for Corroboration must be
considered by the court. The reason is that experience has shown that in certain types
of cases or with respect to certain types of witnesses, it is dangerous to convict in the
absence of Corroboration. In the case of R v Baskerville 1916 2 kings Bench p.658, Lord
Redding said on page 678 that “we hold that evidence in Corroboration must be
independent testimony which affects the accused by connecting or tending to connect
him with the crime. In other words, it may be evidence which implicates him; that is
to say, which confirms in some material particular not only that the crime has been
committed but also that the accused committed it.” Read also Shamwana v The People
1985 ZLR 41.

Corroboration demanded by statute

Can a judgment be set aside in a situation where corroboration is required but the court goes
ahead and convicts on the evidence of once person?

• Perjury – section 107 of the Penal Code

• Procuration – section 140 of the PC
• Evidence of a child – section 122 of the Juveniles Act [See case on abuse of child;
read High Court judgment; Fred Mwewa v The People 1978 ZLR 277
• Affiliation proceedings - Legitimacy Act

The court has to warn itself before convicting in certain instances were corroboration
is necessary:

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1. The first of such categories are sexual offences. These are offences of
the heart and could be inspired by spite, sexual frustration etc. In
rape cases the alleged act of sexual intercourse by the accused and
the question of consent by the complainant sometimes depends
entirely upon the Word of the victim against that of the accused.
Ackson Zimba v The People 1980 ZLR; Katebe v The People 1975 ZLR 13
discusses this issue very well.
2. The second category of where the court has to warn itself is that of
evidence of accomplices. [difference between an accomplice and co-
accused; an accomplice can be a co-accused but a co-accused cannot
be an accomplice]. The court is under a legal duty to warn itself on
the need for such evidence to be corroborated although it may
convict on the evidence of an accomplice alone. Most of the times an
accomplice has an interest to save and can be turned into a state
witness. and Others v The People 1975 ZLR 275; Machobane v The People
1972 ZLR; Emmanuel Phiri and Others v The People 1978 ZLR
3. Evidence of children - sworn evidence of children of tender age
requires corroboration provided for under sec 122 in the Juveniles
Act. [read the Juveniles Act]. Corroboration of a child’s evidence is
only with respect to proceedings in a criminal matter and not a civil
matter. Can a child corroborate the evidence of a fellow child? Read
the case of Brenda Mutamula Tembo v The People 2018

Exam Revision

Always marry your answers with authorities.

He never repeats the subject in questions.

Question 1

Three issues:

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• Circumstantial evidence – define circumstantial evidence with reference to case

law, e.g. Saidi Banda which gives the structured approach. Then relate the law
to the facts
• View – who is supposed to be present? All the parties must be present if it is to
be regarded as a view. If a party is not present consent must be given. The
witness has to replicate what the testimony was before court [R v Tamasho]
• Production of documents in a criminal matter – give a description as to what
laying of a foundation is…

Question 2

Had to write a ruling; put heading ruling

Issue: whether email evidence is admissible

• Why it is admissible and how is it admissible?

• Section 8(1) of the Act – an email is not mentioned in this section; it mentions a
data message – what is the definition of a data message? Correspond that
definition with an email; an email is defined as a data message as per section 2
• Section 8(2) – admissible provided that it is the best available evidence even if
not in its original form
• OTK v Amanita Zambiana – explains when and how foundation is supposed to
be laid when dealing with admissibility of email evidence

Question 3

Issue: Production of secondary evidence

• Instances when it can be produced before court

• George Bienga v The People outlines when secondary evidence can be adduced
and admissible before the court
• Can talk about authentication and relate it to secondary evidence – (only two
marks)

Question 4

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Issues: whether the Notice to Produce could be produced or whether the documents
in the notice to produce could be admitted

• What is a notice to produce

• How are documents in a civil trial produced
• Order for directions; discovery, inspection, preparation of bundles

CHARACTER EVIDENCE

The character of a person in simple terms means his reputation. In some cases
however, reputation may bear little relation to true character. What this therefore
means in practice, is that it is not always possible to confine character evidence to
reputation. Therefore, in different circumstances, evidence affecting a person’s
character matched relate to reputation or to character in a wider sense or to
convictions. As a general rule, character evidence is excluded, is not admissible. In
civil proceedings, character of parties to litigation is often irrelevant and inadmissible.
So whether a plaintiff is a saint or a sinner, the issue of his character is irrelevant and
ordinarily he will not be allowed to assert his virtuous character before the court. This
means that you can be sued by a prisoner as long as his character is not an issue in the
matter. The character of a defendant in civil proceedings is not usually in issue or
relevant. The same principle applies.

General rule: The fact that a defendant in civil proceedings has been convicted of a
criminal offence cannot normally be adduced as evidence for the plaintiff.

A rare exception will occur where the Plaintiff’s action for tort involves the allegation
of a felony committed against him by the defendant.

In criminal matters, the character of an accused person may sometimes be introduced

at his trial by either side. If character is restricted to reputation, the first step may be
taken by the defence who assert the good character of the accused but then the
prosecution may attempt to prove his bad character.

How do you think the accused can adduce evidence of his good character if the state
of proceedings is with the state? During cross-examination of the prosecution
witnesses.
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Good Character Evidence

Evidence of good character may be given by witnesses for the prosecution in cross-
examination or by witnesses called by the defence and by the accused.

What’s the difference between the defence and the accused? Defence refers to the
lawyer while the accused refers to the party.

Read page 157 of Ndulo Book and read the case of R v Rowton cited in the book.

Bad Character Evidence

Subject to numerous exceptions, it is not permissible for the prosecution to adduce

evidence showing or tending to show the bad character of the accused. This rule
covers evidence of previous convictions.

For exceptions see section 157 of the CPC and read the case of R v Butterwasser
1Kingbench 1948 p.4.

Character of Witnesses

Bad character of witnesses is admissible. Part of or all of cross-examination might be

spent discrediting him. This is called cross-examination as to credit.

Rupiah Banda case – one of the strategies adopted was to see and try to understand
the witnesses called by the State so as to test their credibility.

HEARSAY EVIDENCE

Oral or written statements made by persons other than the witness who is testifying
are termed as hearsay evidence.

It is NB to note that evidence of a statement made to a witness by a person who is not

himself called as a witness may or may not be hearsay. It is hearsay and inadmissible
if the essence of the evidence is to establish the truth of what is contained in the
statement. It is not hearsay and is admissible when it is proposed to establish by the
evidence not the truth of the statement but the fact that the statement was made.

Why is hearsay not admissible?

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a) The court will have no opportunity to examine the demeanour of that

person who made the statement.
b) The original author of the statement was not even on oath when he made
that statement
c) There would be no opportunity for the opponent to test that statement
through cross-examination. Read the case of Mutambo v the People 1965
ZLR 15.

CR Holdings Ltd v Mary Musonda and Others – SCZ judgement! Read the reasoning of
the court to exclude both police reports.

Exceptions to hearsay:

1. Evidence Act - section 3

2. Res gestae – evidence forming part of the story. Would include spontaneous
declarations, exclamations and utterances. The three conditions for
admissibility include:
i) An occurrence sufficiently startling to produce a spontaneous and
unreflecting statement
ii) There must be an absence of time to fabricate that statement
iii) The statement must relate to the circumstances of the occurrence

Read the case of The People v John Ng’uni.

3. Dying declarations – read up on this. Is there any difference between res gestae
and a dying declaration?

TRIAL WITHIN A TRIAL

OPINION EVIDENCE

PRIVILEGE EVIDENCE

What is privilege?

The right someone enjoys not to communicate information given to them. E.g. catholic
confession – the priest is under no obligation to reveal information confessed to him.

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Any information communicated before parliament is privileged. Any testimony a

party gives in court is privileged and cannot be used outside court.

Professional Privilege

This is the privilege that s enjoyed in a lawyer-client relationship. Under this privilege,
a client cannot be compelled, a lawyer will not be allowed except with the consent of
the client to disclose any communication or to produce any documents passing
between them in their professional confidence. Professional privilege is for the client
and not for the lawyer.

When litigation is pending, communication between the lawyer and the prospective
witnesses are privileged. As are reports by experts, that assist the lawyer decide
whether and how a claim should be pursued or resisted.

Privilege is in two stages:

Pre-litigation – when someone comes to see you in your office and tell you about their
case.

You cannot get instruction from one client and tomorrow represent the defendant in
the matter if the client is the plaintiff. You cannot also have a potential witness and
then they disclose the information you discussed to the other side.

Privilege falls away the moment it falls into the hands of a third party.

Without Prejudice Communication

What is without prejudice and what is its purpose? Its communication exchanged
between parties either through their advocates or directly for the purposes of reaching
an ex curia settlement. Usually marked “without prejudice”. However, if a document
is not marked as such but the language adopted in the letter is of a nature of trying to
reach a settlement, the letter will be regarded as without prejudice.

Without prejudice is generally inadmissible, it cannot be produced before court, if a

party is intending by so producing the letter to show to the court that the other party
has admitted any liability if that where the case.

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A letter without prejudice may be admitted if the sole purpose is only to show that
there was such communication as between the parties.

Extrinsic Evidence Case: Premesh Bahai Meghan Patel v Rephidim Institute Limited 2011
1 ZLR

TRIAL ADVOCACY

Broadly, this is the process that is involved in dealing with matters in a court room:
how you present a case, how you handle yourself and the basic rules applicable in any
trial situation.

Court Room Etiquette

How do you address the judge in open court, whether male or female? My Lord, My
Lady. In Chambers – Judge.

When you are dressed inappropriately in a court room, the judge will “not see you”,
basically telling you that you are not dressed appropriately.

The Right to Begin

This pertains to the right to begin presenting a case.

Who has the right to begin in a criminal matter? The state, whether a plea of guilty or
not guilty.

In a civil matter, the Plaintiff has the right to begin.

The judge comes in, the court rises, when the judge sits then everyone else sits. The
Marshal calls the case. The Judge then calls for appearances – calling on the parties to
identify themselves.

What should happen when counsel on the other side doesn’t know what is meant by
appearances and does not identify themselves? The forgotten counsel has a right to
out him/herself on record, to be done the moment the other lawyer finishes. Putting
oneself on record is the first thing that is to be done in the court room. You wont be
objecting but will merely be rising.

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The plaintiff, prosecutor or their respective advocates open every case. In civil cases,
the Plaintiff has the right to begin if he bears the evidential burden on any issue raised
by the pleadings including quantum of damages. See Mercer v Whall 1845 5 QB 447.

Objections in a Court Room

Only one person should be standing at any given time in a court room.

How are objections made? You rise with authority and follow it up with the reasons
why you are objecting. When the person with the objection gets up, the person who
has the flow must sit and give way to the objection to be heard. The other person then
responds saying something like I don’t think that was a leading question, or I concede.
The person who raises the objection has the last say. Keep it short and sweet, don’t
say too much. So, can merely say “I live it to the court”.

PS: obliged is not an answer, it doesn’t mean yes or no. It’s is an acknowledgment.

EXAMINATION OF WITNESSES

There are three stages of examination of witnesses: Examination in chief, Cross-

examination, and Re-examination.

Examination in Chief

It is the process which lawyers will use to bring out the facts in issue or relevant in
issue to their client’s case. The purpose is to tell your side of the story.

After the witness has taken oath, you then ask the name; age; address; occupation…

What is a leading question? A question that has a pre-determined answer.

This is where the plaintiff, defendant, prosecutor or accused offers direct evidence

Leading questions are not permissible in examination in chief. A leading question is

one which either:

a) Suggests the answer desired or

b) Assumes the existence of disputed facts

Exceptions to Leading questions

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Cross-Examination

After Examination in chief has been exhausted in a matter, the other party has a right
to cross-examine the witnesses.

Essence and object of Cross-examination

1. To weaken, qualify or destroy the case of the opponent

2. To establish the party’s own case by means of the opponent’s witnesses

You find during cross-examination to find the inconsistencies being given in evidence.
Advocacy before a court is not necessarily about the truth, its about your ability to
convince the court to agree with your reasoning. The worst thing you can do in trying
to achieve this is:

1. Mislead the court

2. Lie to the court.

The only way the court will know what the case is about is when you have an elaborate
and extensive examination in chief.

There are certain elements that one has to look into if you’re going to have effective
cross-examination of a witness. You need to start preparing for cross-examination
from the time you get your documents because you know the case from the pleadings.

1. You need to have knowledge of the law – what are the elements necessary to
prove the case?
2. What are the facts saying?
3. Where is the weakest point of the witness’ evidence?

Chrismar Hotel v Cavmont – the court was able to say that the driver was lying. The
People v Rupiah Banda – note what the court said about the inconsistencies in the
witness’ statements.

After you’ve weakened the other side’s story, you can now go towards looking at the
credibility of the witness – can the court believe this witness? should the court believe
what this witness is saying?

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Witnesses that are difficult to deal with

1. You need to have control of a witness. You need to know what the other party
is doing I order to effectively cross-examine, investigate if you have to.
Witness statements in the Commercial Court are examination in chief given to
you in writing. So, you prepare for cross examination based on the witness
statement.
2. The manner in which you ask your questions. Your questions should have
clarity and asked in plain language. The questions should be short. If your
question is in reference to a document, make sure that the witness has sight of
that document and make sure its relevant to your question.
Unless it is absolutely necessary, NEVER ask a witness in cross-examination
Why. This is because you give the witness leeway to say anything and they’ll
say something you didn’t expect.
3. Know when to stop asking questions.
4. Never ask a question in cross-examination whose answer you do not know or
expect. You should know 70-90% what the witness is going to say. You should
have a plan, aware of what you want to get out of that witness.
5. You can ask leading questions in cross-examination. It’s a good thing because
you are going to show a particular story to the court; it’s a bad thing when the
court doesn’t record what you’re saying. The courts do not write question and
answer only what the witness is saying.
6. Cross examine the witness when or if there is need for cross examination. Its
not necessary at times. Failure to cross examine when you’re supposed to cross
examine means that the evidence that has been tendered before court will be
taken as the truth.

Re-examination

After a witness has been cross-examined, the party calling that witness will have a
right to re-examine that witness.

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The purpose of re-examination will be to try and clarify some of the issues that where
raised in cross-examination. Re-examination is confined only to the issues raised in
cross-examination and the lawyer cannot ask any leading questions in re-examination.

In re-examination can you refer the witness to page 1 of 3 of a document? The court
can rely on any document in the bundle of document even if you did not rely on it
yourself because it would have already been produced before court.

Where there has been no cross examination there can be no re-examination.

A collateral question is one that does not necessarily have an impact on the case but
may have one in future.

If someone gives evidence in chief and they die before cross-examination what
happens to their evidence? The evidence will be admitted but the court will take into
consideration the weight of the evidence because it was no tested by cross-
examination.

Exam

Always a question on Competence and Compellability. Mushaiko case.

Revision

• Identify what legal issue/s arising from the question.

• Discuss the position of the law in regard to that legal issue. E.g. corroboration
– definition
• There could be a question on circumstantial, corroboration, confession,
• Usually 4 issues in the compulsory question, 1 issue in the other questions
• Kabwe Transport case

Pay attention to difference between res gestae and dying declaration.

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