A comparative study of the application of limitation periods in the Zambian Courts and Southern Africa
Kasonde, Chisanga Lenka
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The Limitation Act 1939 was adopted for application in the Republic of Zambia by the English Acts (Extent of Application) Act Chapter 11 of the Laws of Zambia. Research on this topic has been initiated based upon a reported case and how the courts handled the provisions of the Act. It becomes evident that the application of the Limitation Act in the Zambian courts brings forward three main problems.Firstly, the fact that no condonation of claims filed late is afforded to the court irrespective of the circumstances of the case, whereas the said condonation is in practise allowed in the lower courts causing inconsistencies in the legal system as the same is not applicable in the higher courts.Secondly, the commencement of the running of limitation periods provided in the Act does not take into consideration the fact that certain damages or injuries suffered are only discoverable after a long period of time usually outside the limitation period stipulated. Such a provision is out-dated and other countries such as South Africa recognise the discoverability principle and limitation periods only begin to run from the date on which the damages were discovered or when one could upon reasonable exercise have discovered the damages. Finally, it is argued that the continued application of the Limitation Act in Zambia is not justified as it does not reflect the spirit of the Zambian society in light of the character of its members. Factors such as culture, poverty and illiteracy that make the law generally incomprehensible to the lay man are further amplified with respect to the comprehension of the existence and operation of limitation periods. The purpose for which limitation periods apply is of great importance and relevance as it promotes the prompt resolution of cases, certainty of the law and public policy reasons. However this ought to be balanced against the background of society in Zambia. By not affording the courts with the inherent authority to condone claims filed late, potential claimants with genuine claims and meritorious reasons for the delay would be unfairly denied justice.In light of the issues raised above, this paper suggests the following for reform:-a) An instruction delivered to the Zambia Law Development Commission directing it to carry out further research into the operation of the Limitation Act with a view to reform the law. This should be carried out by acquiring the opinions of the general public and other relevant stakeholders so as to reflect the spirit of the Zambian society.(b) The reformation of the Limitation Act should specifically reflect the need for condonation to be allowed as well as the recognition of the discoverability principle these being the main issues raised by this paper. (c) The burden of proof in claims concerned with the application of the Limitation Act should remain vested upon the individual alleging that it does not apply. (d) Government should make deliberate efforts in order to raise awareness of the operation of the Limitation Act as its effects once in operation leave the plaintiff without any recourse to other remedies by the courts of law. This is because the Limitation Act affects an array of subjects and is essentially the starting point for litigants once served with a Writ.
- Law