Section
25 of the Civil Evidence Act [Chapter
8:01] requires that expert evidence be led to prove to the
court the applicable foreign law as the court cannot take judicial
notice of foreign law. It provides as follows;
“(1)
A court shall not take judicial notice of the law of any foreign
country or territory, nor shall ...
Section
25 of the Civil Evidence Act [Chapter
8:01] requires that expert evidence be led to prove to the
court the applicable foreign law as the court cannot take judicial
notice of foreign law. It provides as follows;
“(1)
A court shall not take judicial notice of the law of any foreign
country or territory, nor shall it presume that the law of any such
country or territory is the same as the law of Zimbabwe.
(2)
Any person who, in the opinion of the court, is suitably qualified to
do so on account of his knowledge or experience shall be competent to
give expert evidence as to the law of any foreign country or
territory, whether or not he has acted or is entitled to act as a
legal practitioner in that country or territory.
(3)
In considering any issue as to the law of any foreign country or
territory, a court may have regard to -
(a)
Any finding or decision purportedly
made or given in any court of record in that country or territory,
where the finding or decision is reported or recorded in citable
form; and
(b)
Any written law of that country or territory; and
(c)
Any decision given by the High Court or the Supreme Court as to the
law of that country or territory.
(4)
The law of any foreign country or territory shall be taken to be in
accordance with a finding or decision mentioned in paragraph (a)
of subsection (3) unless the finding or decision conflicts with
another such finding or decision on the same question.
(5)
For the purposes of paragraph (a)
of subsection (3), a finding or decision shall be taken to be
reported or recorded in citable form only if it is reported or
recorded in writing in a report, transcript or other document which,
if the report, transcript or document had been prepared in connection
with legal proceedings in Zimbabwe, could be cited as an authority in
legal proceedings in Zimbabwe.”
The
section is clear on the court not being allowed to take judicial
notice of foreign law. It also does not allow the court to presume
that foreign law is the same as Zimbabwean law. Subsection 2
prescribes how foreign law should be proven through the evidence of a
witness who is an expert on that foreign law. In considering any
issue as to the law of a foreign country or territory the court can,
in terms of subsections 3, 4 and 5, have regard to;
(a)
Authoritative, citable, reported or recorded decisions of the courts
of that country whose decisions do not conflict with another such
finding or decision on the same question.
(b)
Written law (i.e statute law) of that country.
(c)
Zimbabwean High Court or Supreme Court decisions on what the law of
the country in issue is. This refers to proof, through precedents by
Zimbabwean superior Courts, on the foreign law in question.
