RL IN THE HIGH COURT OF ZAMBIA 2019/HP/0763 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: KENNETH MADUNGWE (Suing as Administrator of the estqtd of the late Elvis Hamawa) st PLAINTIFF ROYD KABWE KASHIMOTO (Suing as Administrator of the estate of the late Isaac Kashimoto} 204 PLAINTIFF AND ALBATROSS MINING LIMITED DEFENDANT BEFORE HON MRS JUSTICE S. KAUNDA NEWA IN CHAMBERS THIS 16% DAY OF OCTOBER, 2019 For the Plaintiffs: Mr A. Mumba and Ms F. Shipopa, Nhari Advocates For the Defendant : Mr S. Bwalya, Solly Patel, Hamir and Lawrence RULING CASES REFERRED TO: Mutambo and five others v The People 1965 ZR 15 Commonwealth Development Corporation v Central African Power Corporation 1968 ZR 70 3. OTK Limited v Amanita Zambiana Limited, Diego Gan-Maria Casilli, Amanita Premium Oils Limited, Amanita Milling Limited 2011 VOL 1ZR170 4. Chief Mwanatete v Innocent Munyika Lushato and Mweene Mutondo 2014/HP/1043 5. Jos Hansen and Soehne Zambia Limited v The Attorney General and another 2019/HP/0431 peR2 LEGISLATION REFERRED TO: 1. The High Court Rules, Chapter 27 of the Laws of Zambia 2. The Rules of the Supreme Court of England, 1999 edition 3. The Evidence Act, Chapter 43 of the Laws of Zambia 4. The Electronic Communications and Transactions Act No 21 of 2009 OTHER WORKS REFERRED TO: 1. Black’s Law Dictionary by Bryan A. Garner 10 Edition by Thomson Reuters, 2009 This is a ruling on an objection raised by Counsel for the plaintiffs to the affidavit filed in support of a notice of motion to raise preliminary issues on points of law, by the defendant on 14% August, 2019, pursuant to Order 14A Rules 1 and 2 as read together with Order 33 Rules 3 and 7 of the Rules of the Supreme Court of England, 1999 edition and Section 13 of the High Court Act, Chapter 27 of the Laws of Zambia. Counsel for the plaintiffs, Mr Mumba, stated that they objected to the affidavit pursuant to Order 5 Rule 21 of the High Court Rules, Chapter 27 of the Laws of Zambia, which provides that objection to evidence may be made at the point that the evidence is being given. Counsel in submission stated that the affidavits sought to be relied on by the defendant constitute hearsay evidence, and that the documents that they seek to exhibit have had no foundation laid. Counsel further stated that they objected to the affidavit in reply, as it was filed without the leave of the court. In arguing the basis of the objection raised, Counsel submitted that paragraphs 7-9 and 17-25 of the affidavit filed in support of the notice to raise preliminary issues on 14% August, 2019 contain hearsay evidence.RB. He noted that paragraph 17 makes reference to what the deponent was told by Clement Hamawa, while paragraph 18 states that the deponent was told by Philimon Kashimoto that the family had not appointed the plaintiffs as administrators. It was argued that the gist of paragraphs 17- 25 of the affidavit is to establish that what the deponent was told was true, and not necessarily to show that the statements were made. He added that this object could be clearly seen in paragraph 23 where the deponent averts to paragraph 22, while paragraph 24 speaks to the value of the estate, and paragraph 25 talks about the advice that the deponent was given by his advocates. Reference was made to the case of Mutambo and five others v The People 1965 ZR 15, and Counsel stated that the hearsay evidence is inadmissible. Still in submission, Counsel stated that the exhibits to the affidavit could not be relied upon by the defendant in relation to the recipients mentioned that they had received the money, as it would be hearsay, as the recipients had not proffered evidence before the court. The exhibits in contention were stated as being PK4’ and ‘PKS’. Counsel went to submit that additionally, no proper foundation had been laid in relation to the said recipients of the payment to show due execution. With regard to the affidavit in reply, the submission was that in the case of Commonwealth Development Corporation v Central African Power Corporation () it was held that a party that wishes to file an affidavit in reply should obtain leave of the court. This Counsel stated is based on the rationale that a party must bring all matters he reasonably anticipates in the first affidavit, and should only file an affidavit in reply with leave of the court. That in the case of Chief Mwanatete v Innocent Munyika Lushato and Mweene Mutondo “, Hon Mr Justice I.C.T.Ra Chali reechoed the holding in the Commonwealth case seen above on the need to obtain leave to file an affidavit in reply. Counsel stated that Hon Mr Justice I.C.T. Chali went further at page R4 to guide that the court should only admit an affidavit in reply in its discretion, if it is shown that the issues to which the affidavit in reply is responding to could not have been reasonably anticipated to be deposed to in the affidavit in opposition. That in casu, there was nothing on the record to show that the defendant had obtained leave of the court to file the affidavit in reply. Counsel also stated that paragraph 5 of that affidavit shows that the defendant ought to have reasonably expected that exhibit PK1’ ought to have been included in the affidavit dated 14% August, 2019. This Counsel argued was because the paragraph states that it reiterates the arguments in the affidavit in support in paragraph 8, and exhibits the recording of conversations with Philimon Kashimoto as proof. Still on the evidence in the affidavit in reply being that which was anticipated, Counsel stated that paragraph 19 of the affidavit in support of the notice of motion states that the deponent had a conversation with Philimon Kashimoto. Therefore, the defendant should have exhibited this evidence to the affidavit in support of the notice of motion, but did not do so for reasons best known to itself. It was also Counsel’s submission that had the defendant applied for leave to file the affidavit in reply, the plaintifis would have had opportunity to respond to it. Counsel's view was that in light of the cases cited, the affidavit in reply should not be admitted into evidence. Further in submission, Counsel stated that the Electronic Communications and Transactions Act No 21RS, of 2009 requires that all communication and data messages can only be laid before the court after certain conditions have been met. In this regard, Section 8 of that Act requires that a person who wishes to produce such data message shows how the data message was originated, the identity of the originator of the message, the authenticity of the message and how it was stored. Furthermore, as a condition precedent, it must be established that the data message in the manner it was generated, stored and communicated was not tampered with. Counsel’s submission was that in this case, the deponent had not established any of the aforesaid requirements, and as such, no proper foundation for its admissibility had been laid, and it should not be admitted into evidence. The case of OTK Limited v Amanita Zambiana Limited, Diego Gan- Maria Casilli, Amanita Premium Oils Limited, Amanita Milling Limited () was relied on, stating that this case considered the admissibility of electronic and data messages. Counsel also stated that exhibit PK1’ attempts to show the truth of the statement that was made to the deponent by Phillimon Kashimoto, but their view was that the document as read with the two affidavits is hearsay evidence. He added that exhibit ‘PK1’ contravenes Section 3 1 (a) of the Evidence Act, Chapter 43 of the Laws of Zambia in that the maker of the statements in the audio, allegedly being Phillimon Kashimoto had not been called as a witness or proffered any evidence before the court. Counsel also stated that the audio is not in the official language, English, and a translation was needed. Counsel prayed that the evidence be rendered inadmissible.R6 In response, Counsel for the defendant stated that the plaintiffs had filed an affidavit in opposition to the notice of motion, in which paragraphs 10,13-23 and 25 expressly indicate the displeasure with the paragraphs that the plaintiffs wish to assail. It was submitted that the plaintiffs had therefore waived their right to object to the said paragraphs by responding to them. In Counsel's view, the appropriate avenue that the plaintiffs should have adopted in seeking to expunge the said paragraphs would have been, firstly to take out a formal application challenging the propriety of including the said paragraphs. Secondly, the plaintifis should have objected without responding to the paragraphs as Order 5 Rule 21 relied upon states that the objection should be made at the time the evidence is sought to be produced. He stated that the objection was belated, and that in the alternative, the court still has discretion to determine the propriety of the paragraphs sought to be impeached together with the main application, as the parties would have their proffered rival positions, as the said practice affords case management, which is at the heart of adjudication of disputes before the courts. To this end, Counsel stated that Hon Mrs Justice R. Chibbabuka adopted such a practice in the case of Jos Hansen and Soehne Zambia Limited v The Attorney General and another , Further in submission, Counsel stated that the plaintiffs appeared disgruntled with the deponent indicating what he perceived through a discussion with Phil mon Kashimoto. It was stated that with greatest respect to Counsel, that could not reasonably be interpreted as constituting hearsay evidence. That if the plaintiffs were disgruntled with the contents or indeed doubted the veracity of what had been reflected, the law providesR7 an avenue by ensuring that a deponent of an affidavit is cross examined as to its contents. However, as the objection had been raised belatedly, the Plaintiffs had waived their rights, and nothing stopped the court from determining the application. Counsel went to submit that a careful consideration of the paragraphs under attack, in light of a plethora of judicial pronouncements on hearsay evidence, revealed that the paragraphs do not fall within the category of evidence that is hearsay. As regards the affidavit in reply, Counsel stated that the plaintiffs contended that leave of the court ought to have been obtained before it was filed, and had relied on the case of Commonwealth Development Corporation seen above. Counsel's position was that while they agreed that there is only one High Court in Zambia, this court may only be bound by the decision of another High Court where the facts are not distinguishable. He stated that the two cases relied on by the plaintiffs dealt with injunctions, and that a careful reading of the Commonwealth Development case shows that regard was had to the special nature of injunction applications, which warrant parties to such applications to exercise circumspect and thoroughness when preparing such applications. Counsel submitted that there is no express statutory provision that proscribes the filing of affidavits in reply without the leave of the court. Secondly, the record showed that the defendant was only served the affidavit in opposition on 26 September, 2019 at 16:00 hours, and theRB defendant in ensuring that the application was heard tenuously responded the next day by filing the affidavit in reply. Counsel argued that if the court were to agree that the defendant ought to have sought leave to file the affidavit in reply, there is enough material on the record to show that the two conditions that may influence the court’s discretion to allow an affidavit in reply that was filed without the leave of court, to grace the court’s record, had been met. It was also Counsel’s submission that the issue brought out in the affidavit in reply was important for the determination of the application, and more importantly, at the time the affidavit in reply was settled, the defendant could not have reasonably anticipated the material in the affidavit in opposition. He added that while the defendant conceded that the averments in paragraph 5 of the affidavit in reply were a reiteration of the contents of the affidavit in support of the notice of motion, and could therefore be said to have been anticipated, nevertheless paragraph 7 of the affidavit in reply disputes the plaintiffs assertion that the defendant scolded and intimidated the families of the deceased persons, which could not have been anticipated. That if the plaintiff wished to respond to the affidavit in reply, they would have applied for leave to file an affidavit in rejoinder. On the contents of the compact disk not being authenticated, the position given by Counsel was that they disagreed with that assertion. To support this position, he argued that the OTK case referred to Section 8 of the Electronic Communications and Transactions Act No 21 of 2009, and which section deals with data messages in relation to a trade, profession or a business. Counsel’s view was that the section had been read piecemeal, and the compact disk in issue does not relate to anyRO profession, and its contents do not constitute hearsay, as the deponent made the recording. Further, the affidavit in support of the notice of motion states that deponent had a conversation, and in the affidavit in reply, reference had been made to the audio recordings, and Counsel could not imagine what foundation the plaintiffs alleged had to be met before the compact disk could be admitted in evidence. He went on to submit that in the OTK case objection was raised to the e-mail correspondence on the basis that no proper foundation had been laid. In rejecting the application to expunge the e-mails, Hon Mr Justice N.K. Mutuna had allowed the parties to amend the witness statements so that adequate foundation could be laid. Therefore, the OTK case differed from the case in casu, as the emails were generated in the course of a business, and the manner of their production was through the bundles of documents, as opposed to an affidavit being sworn before a Commissioner for Oaths, verifying the exhibits. Still in submission, Counsel stated that even if the court were to be persuaded by the plaintiffs’ objection, an order to expunge the paragraphs for non-compliance could be made, and they vehemently opposed such an order. That there is still enough material to determine the question in dispute between the parties, which is whether the plaintiffs have locus standi to commence the action. Counsel prayed that the application be dismissed or in the alternative, in the interests of good case management, the main application and the preliminary issue be determined together.R10 Counsel for the plaintiffs in reply stated that Order 5 Rule 21 of the High Court Rules states that an objection may be raised at the time that the evidence is given, which is what they had done. That as such, Counsel was not aware of any authority, and neither had Counsel for the defendant availed the court an authority that provides that once a party files an affidavit, it is tendered as evidence. He stated that their filing an affidavit in opposition did not entail that they had waived the right to object to the evidence, as the defendant had not tendered the evidence into court. It was also stated that paragraphs 10-21 of the affidavit in support of the notice of motion contain averments which are hearsay, and Counsel also submitted that while Section 8 of the Electronic Communications and Transactions Act No 21 of 2009 states that the data message should be made in the ordinary course of business, the word business is not defined in the Act. He added that assuming the import of the section is that it is trade in the ordinary use of the term, then their submission was that it was made in the ordinary course of trade, as the deponent Peter Kunda, had deposed the affidavit as General Manager of the defendant company. Further, in paragraphs 17-19 of the affidavit in support of the notice of motion, the deponent had deposed that he approached or dealt with the relatives of the plaintiffs and enquired as to why the defendant had been sued. This, Counsel argued is part of the trade or business for a general manager to carry out duties on behalf of the company, which can only act through human agents. Therefore, in that regard, exhibit ‘PK1’ should have complied with Section 8 of the Electronic Communications and Transactions Act No 21 of 2009.R11 It was Counsel’s prayer that the objection be sustained so that the plaintiffs would not be prejudiced, as they may not have opportunity to cross examine the deponent. I have considered the preliminary issue raised. It was brought pursuant to Order 5 Rule 21 of the High Court Rules, Chapter 27 of the Laws of Zambia. The order provides and I quote; “21. In every case, and at every stage thereof, any objection to the reception of evidence by a party affected thereby shall be made at the time the evidence is offered: Provided that the Court may, in its discretion, on appeal, entertain any objection to evidence received in a subordinate court, though not objected to at the time it was offered”. In this matter, the objection is threefold, being; . Paragraphs in the affidavit in support of the notice of motion, in particular, paragraphs 7-9 and 17-25 contain hearsay evidence. 2. The affidavit in reply was filed without obtaining leave of the court. 3. Exhibit ‘CK1’ to the affidavit in reply has not been authenticated in line with Section 8 of the Electronic Communications and Transactions Act No 21 of 2009. Before I proceed to consider the merits of the objections, I will deal with the submission made by Counsel for the defendants that the plaintiffs waived their right to object as they proceeded to file an affidavit in opposition to the notice of motion. The plaintiffs in response stated that Order 5 Rule 21 of the High Court Act states that the objection toR12 evidence shall be made at the time the evidence is offered and they had therefore not waived their right to object. Order 5 of the High Court Rules falls under the part that deals with Evidence. The Order provides for how evidence is taken, the different types of evidence, and how they are produced in court. The part also provides for affidavit evidence, and how it is taken. Rule 11 of Order 5 provides that; “11. Before an affidavit is used in any proceeding for any purpose, the original shall be filed in the Court, and the original or an office copy shall alone be recognised for any purpose by the Court or a Judge”. ‘The defendants argued that the plaintiffs should not have responded to the affidavit filed in support of the notice to raise preliminary issues if they had issues with the paragraphs as alleged. Rather, they should have filed an application to challenge those paragraphs. I have perused the High Court Rules and I have been unable to find any provision relating to when an application to set aside any proceedings for irregularity should be made in relation to interlocutory proceedings. Order 30 Rule 1 of the High Court Rules just states that an application in chambers shall be made by summons. By virtue of Act No 7 of 2011, which amended Section 10 of the High Court Act, Chapter 27 of the Laws of Zambia, in the event of a lacuna in our laws, resort can be had to the Rules of the Supreme Court of England, 1999 edition. Order 2 Rule 1 of the said Rules of the Supreme Court of England provides that;R13 “(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity”. Going by this provision, a party that wishes to set aside any proceedings for irregularity, any step taken in any proceedings or any document, judgment or order should make an application before taking any fresh steps after becoming aware of the irregularity. Therefore, on being served the affidavit in support of the notice to raise preliminary issues, and the plaintiffs becoming aware of the irregularities, they should have filed an application to expunge the said paragraphs. The plaintiffs having filed an affidavit in opposition, they therefore waived the right to object to the paragraphs in the affidavit that they deem are hearsay. However, as the affidavit in opposition especially paragraphs 17-20 address the issues of hearsay in the affidavit in support of the notice of motion, I will not rule on the issue of hearsay, but will instead consider it when the notice to raise preliminary issues is heard. Coming to the second issue, which relates to the need for the defendant to have obtained leave to file the affidavit in reply, the plaintiffs relied on the case of Commonwealth Development Corporation v Central African Power Corporation @ where it was stated that; “In the present action there has, if anything, been a superabundance of affidavit evidence. Not only was there the statutory affidavit in support of the application filed by theR14 plaintiff and a later affidavit filed by John Guy Chance, dealing with the stamp duty claim, but no less than four affidavits filed by the defendant in opposition, the first alone, sworn by Mr Peter Goatly, exhibiting, in addition to the usual exhibits, two further affidavits. This means that I had, in effect, before me, six affidavits sworn in support of the defendant's case. As I pointed out in the course of the hearing, the practice on application of this sort is, in general, to limit the number of affidavits - usually to one affidavit in opposition, which the defendant is entitled to put in as of right, and, with leave, one affidavit in reply on behalf of the plaintify”. This position was reiterated in the Chief Mwanatete case cited by the plaintiffs. As rightly argued by the defendant, the High Court rules do not expressly impose a blanket ban on the filing of affidavits in reply, but the practice has been that an affidavit in support is filed, as is an affidavit in opposition, and an affidavit in reply with leave of the court. Further, any extra affidavits sought to be filed, must be filed with the leave of the court. The rationale for obtaining leave of the court to file an affidavit in reply as can be seen from the Chief Mwanatete case is that the party in the first affidavit should include all the facts that are relevant to their case, and that an affidavit in reply will only be allowed where the affidavit in opposition raises issues that could not have been reasonably anticipated. The affidavit in reply in this matter was filed without the leave of the court, and Counsel for the defendant argued that the Commonwealth Development case and the Chief Mwanatete cases dealt withRs injunctions which require parties to exercise thoroughness when preparing them, and are therefore distinguishable from this case. While I agree that parties must take care when drafting injunction applications, my view is that principles relating to the drafting of affidavits are of universal application, and therefore any party to an application must in the first affidavit include alll the facts relevant to their case. They should not wait for the opposing party to raise issues that they themselves anticipated, and only address those issues in an affidavit in reply. That said, a perusal of the affidavit in reply filed on 27 September, 2019 shows that it reiterates the contents of affidavit in support of the notice of motion, and refers to the audio recording exhibited as ‘KMRKK1’ to the affidavit, as evidence that the deceased’s family were engaged in conversation on diverse occasions. The affidavit in support of the notice of motion makes reference to the said conversations, and if anything, the recording should have been exhibited to that affidavit. This brings me to the third issue, which is that the audio recording does not comply with Section 8 of the Electronic Communications Transactions Act No 21 of 2009. The basis of the objection is that the audio recording has not been authenticated. The case of OTK Limited v Amanita Zambiana Limited, Diego Gan-Maria Casilli, Amanita Premium Oils Limited, Amanita Milling Limited © was relied on to support the position. In that case, the defendants took out an application for directions pursuant to Order 25 Rule 1 and Order 72 Rule 8 of the Supreme Court Practice, 1999, before trial in the matter at the commercial list then, hadR16 started. The basis of taking out the application was that the plaintiff filed its bundle of documents on 15th January, 2009, which bundle contained, inter alia, e-mails purportedly exchanged by it and the first defendant's representative. The defendants objected to the production of the said e-mails into evidence on the ground that they had not undergone the normal procedure of a foundation being laid before their production into evidence. Further that, the e-mails had not been authenticated, and in the absence of the plaintiff showing that the integrity of the purported e-mails was maintained, the defendants would be unfairly prejudiced, and the defendant's requested for the exclusion of the alleged e-mails from evidence in the interests of justice. Hon Mr Justice N.K Mutuna as he then was, noted as follows in that matter; “The application before me is an interlocutory application which arises from the defendants’ notice to object to documents filed on 4th September, 2009. It comes in the wake of failure by the parties to convene for inspection of documents, at which stage the defendants would have raised the objection. It has become common practice now for counsel to ignore or neglect to inspect documents, and proceed straight to filing bundles of documents. This is what happened in this case and the practice is not only wrong, but is frowned upon by the Courts. Further, the fact that the parties have deliberately ignored taking certain steps set out in the order for directions, does not take away a party's right to object to certain documents that are included in the bundleR17 of documents. I therefore find that the defendants are on firm ground in moving this motion at this stage of the proceedings, and for the purpose it is sought to achieve”. It is clear from that case that the defendants took out the application because there was no discovery and inspection that was done in that matter before the plaintiff proceeded to file the bundle of documents. ‘That because that was not done, the defendants had a right to object to the documents in the bundles even at that stage. In this matter, the audio recording has been exhibited to the affidavit in reply. Objection to the audio can made at the time that evidence is being tendered, which is at the point that the application is sought to be argued, as in this case. Further, it is contained in an affidavit in reply that was filed without the leave of court, and it should have been exhibited to the affidavit in support of the notice of motion where all the facts relevant to the matter should have been disclosed. The objection to audio recording is that it has not met the requirements of Section 8 of the Electronic Communications and Transactions Act No 21 of 2009. Section 2 of the Electronic Communications and Transactions Act No 21 of 2009 defines a data message as; “data message” means data generated, sent, received or stored by electronic means and includes- (aja voice, where the voice is used in an automated transaction; and (b) a stored record;”R18 Section 2 of the Evidence Act Chapter 43 of the Laws of Zambia defines a document as; “"document" includes any device by means of which information is recorded or stored, and books, maps, plans and drawings;” The Electronic Communications and Transactions Act No 21 of 2009 does not define a document, but rather defines a data message in Section 2 of the Act. Going by the two definitions, an audio recording is both a document and a data message, as it stores information. Section 3 of the Evidence Act, Chapter 43 of the Laws of Zambia provides for the admissibility of documentary evidence in civil matters. It states that; “3, (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied, that is to say: (a) if the maker of the statement either- had personal knowledge of the matters dealt with by the statement; or (ti) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, orR19 might reasonably be supposed to have, personal knowledge of those matters; and (b) if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Zambia and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success. (2) In any civil proceedings, the court may, at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence- (b) notwithstanding that the maker of the statement is available but is not called as a witness; (c) notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or as the court may approve, as the case may be.R20 (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. (4) For the purposes of deciding whether or not a statement is admissible as evidence by virtue of the foregoing provisions, the court may draw any reasonable inference from the form or contents of the documents in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a medical practitioner, and, where the proceedings are with the aid of assessors, the court may in its discretion reject the statement notwithstanding that the requirements of this section are satisfied with respect thereto, if for any reason it appears to it to be inexpedient in the interests of justice that the statement should be admitted.” Going by the above provisions, documentary evidence in civil matters as a general rule must be presented in its original form. However, subsection 2 of the said section allows for the production of copies of the documents for expediency. Section 7 of the Electronic Communications and Transactions Act with regard to data messages states that; “7, (1) Where a law requires information to be presented or retained in its original form, that requirement shall be met by a data message if-Rat (a)the integrity of the information from the time when it was first generated in its final form as a data message, or otherwise, has passed the assessment specified under subsection (2); and (b)that information is capable of being displayed or produced to the person to whom it is to be presented. (2) For the purposes of paragraph (a) of subsection (1), the integrity of any information shall be assessed- (c) by considering whether the information has remained complete and unaltered, except for the addition of any endorsement and any change which arises in the normal course of communication, storage and display; (d)in the light of the purpose for which the information was generated; and (e) having regard to all other relevant circumstances.” Section 8 of the Act provides that; “8, (1) In any legal proceedings, the rules of evidence shall not be applied so as to deny the admissibility of a data message in evidence- (a)on the mere grounds that it is constituted by a data message; (b)if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original formR22 (2) Information in the form of a data message shall be given due evidential weight. (3) In assessing the evidential weight of a data message, regard shall be had to- (c) the reliability of the manner in which the data message was generated, stored or communicated; (d) the reliability of the manner in which the integrity of the data message was maintained; (e) the manner in which its originator was identified; and (f) any other relevant factor. (4) A data message made by a person in the ordinary course of business, or a copy or printout of, or an extract from, the data message certified to be correct by an officer in the service of such person, shall on its mere production in any civil, criminal, administrative or disciplinary proceedings under any law, the rules of a self-regulatory organization or any other law, be admissible in evidence against any person and rebuttable proof of the facts contained in such record, copy, printout or extract”. As can be seen from the provisions of Section 7 of the Electronic Communications and Transactions Act No 21 of 2009, an original data message shall only be produced in proceedings where the law requires, and it sets out the requirements that need to be satisfied for such data to be admissible. However, Section 8 of that Act allows for secondary dataR23 messages to be admissible in evidence if it is the best evidence that can be obtained, and how such evidence is authenticated. The audio recording has been exhibited to an affidavit in reply. It is trite that in interlocutory proceedings, secondary evidence is admissible. Therefore, the audio recording would be admissible if the requirements under Section 8 of the Act have been met. A perusal of the affidavit in reply shows that it does depose to any of the elements that are required in order to lay foundation for the audio’s admission in evidence. Therefore, the requirements have not been met. The defendant also argued that Section 8 refers to a data message that is generated during the ordinary course of business, but the Act does not define the word business. Indeed, a perusal of the Act shows that the words “ordinary course of business” are not defined. Black’s Law Dictionary by Bryan A. Garner 10% Edition by Thomson Reuters, 2009 defines course of business as; “The normal routine in managing a trade or business”. Going by that definition, the deponent of the affidavit, Peter Kunda as General Manager of the defendant company, which is an artificial person and acts through its agents, communicated with the plaintiffs’ relatives in the ordinary course of the company’s business. As such, the data message which he is said to have recorded falls within the scope of Section 8 of the Electronic Communications and Transactions Act No 21 of 2009. The recording not having been authenticated, it is hereby expunged from the affidavit. I had earlier alluded to the fact that the affidavit in reply should only contain those issues that were not anticipated to be contained in theR24 affidavit in opposition. The issues of conversations that the deponent had with the plaintiffs’ relatives are canvassed in the affidavit in support of the notice of motion, and the audio recording if it was sought to be exhibited thereto, should have been, and it was not something that was not reasonably anticipated to be included in the affidavit in opposition. While I have discretion to allow the defendants to file an affidavit laying proper foundation to the audio recording, and exhibit it to the affidavit, it would not be appropriate to do so in this case, as this is evidence that should have been exhibited to the affidavit in support of the notice of motion in the first place. In sum, the affidavit in reply is expunged from the record, as it does not meet the requirements to enable it be filed. The matter shall come up for the hearing of the preliminary issue on 29% October, 2019 at 11:00 hours. Costs shall be in the cause and leave to appeal is granted. DATED AT LUSAKA THIS 16‘ DAY OF OCTOBER, 2019 —_ favnds S. KAUNDA NEWA HIGH COURT JUDGE