STUDENT NAME AND NUMBER

Georgina Sitali LLB19216834

Chimwemwe Mtonga LLB19217306

Law of evidence case on public interest immunity

Public interest immunity encompasses that certain information should not be publicized in
court in that if such is revealed, it would be dangerous to the public. it displaces the principle
that all relevant information should be disclosed to the court. 1It plays as an exclusionary rule of
evidence and no secondary evidence can be brought before the court. The following case law
has lain down the interests that a judge must take into consideration to determine when some
evidence should not be submitted in court.

Conway v Rimmer [1968] All E.R. 874

The court stated that there are two kinds of public interest that may conflict these may be:
(1) there is the public interest that harm shall not be done to the nation or the public service
by disclosure of certain documents.
(2) and if there’s is public interest that the administration of justice shall not be frustrated by
withholding of certain documents that must be produced for justice to be done. The brief
facts of the case where that: a probationer police officer was charged and acquitted of theft he
was shortly afterwards told to leave by his police authority. He brought an action for malicious
prosecution against his superintendent. Both parties wished for various documents to be
produced. The Home Secretary certified that he inspected the document and regarded them as
belonging to a certain class which would be injurious to the public interest. Relying on the
previous general rule laid down in Duncan v camel laird that a minister may weigh the
conflicting interest and where it was found conflicting but relevant and admissible evidence
may not be produced in court due to a certain class they belong to or certain content in a
specific document which may be injurious to the public if disclosed.
There are certain instances where the public will be put in harm that no grave character that no
interest public or private can be allowed to prevail over it. Lord Simon in reference to the case
of Duncan v camel Laird2stated that some documents with reference to their class may be kept
secret in that it is necessary for the proper functioning of public service. The court stated that
the certificate of the home secretary did not go further than that, it only stated that the
production of the document of the classes it which it refers to would be injurious to the public
service it did not say what type of injury is to be apprehended. Two questions arose in this case
being that, Whether the court is to have any right to question the finality of a minister’s
certificate and secondly, if it has such a right, how and in what circumstances that right need to
be exercised and to be made effective.
The court further explained that a minister’s certificate may be given on one or two grounds:
either because it would be against public interest to disclose the contents of the particular
document or documents in question or because a document belongs to a particular class of
1
Uglow S , Evidence : Text and Materials (2ed, London Sweet and Maxwell ,2007 ) 240
2
[1942] 1 All E.R. 587
documents which ought to be withheld whether or not there’s anything in the particular
document in question disclosure which would be a danger to the public. The court established
the principle that it is more than necessary that in a doubtful case, the alleged public interest in
concealment should be balanced against the public interest that the administration of justice
should not be frustrated. if the minister who has no duty to balance these two interests says no
more than that in his opinion the public requires concealment and if it was to be accepted as
evidence is that a serious injustice may be done to the parties but also to the due
administration of justice. Lord Reid then established the modern outcome in law in relation to
public interest immunity that the house of lords ought to have decided that the courts have
and are entitled to exercise that power and duty to balance between the public interest as
expressed by the minister to withhold certain documents or other evidence and the public
interest in ensuring the proper administration of justice. But it does not mean that a court
would reject a Minister’s view but full weight must be given in every case and if the Minister’s
reasons are of character which judicial experience is not competent to weigh, the Minister’s
view must prevail but experience has shown that reasons given for withholding whole classes of
documents are not that of character. The court established that cabinet minutes ought not to
be disclosed. If the Ministers reasons are such that a judge can properly weigh them, he must
on the other hand consider what is the probable importance in the case before him of the
documents or other evidence to be withheld. it is best that a judge should view the documents
before ordering production and deciding whether or not the documents out not to be
produced.

Holding
The house of lords agreed that the judges had to regain their control over such issues. They
held that the minister’s certificate was no longer conclusive and the trial judge had residual
power to inspect and to balance the state interest against the public interest in the proper
administration of justice.

In relation to documents belonging to a certain class it has been established in law that
informants are not to disclose certain information in relation to police investigations such was
seen in the case of

Daniel Chizoka Mbandangoma v Attorney – General (1979) Z.R. 45 (H.C.)

The brief facts are that the plaintiff was a party to a civil action against the state applied that a
witness for the defendant be ordered to disclose the identity of a police informer on whose
information the plaintiff was charged with theft by public servant. The defendant objected on
the ground that as matter of public policy the identity of a police informer should not be
disclosed. the objection was that a witness a police officer should not be required to name the
person who supplied the police with information which resulted with the appellant being
arrested and charged with the offence of theft by public servant on the ground that it is policy
to ensure that the identity of police informers will not be disclosed to the public. Relying on the
case of Marks v Beyfus3the court established that public prosecutions were found on public

3
1980 QBD 494
policy they stated that if upon trial the judge was of the opinion that the disclosure of the name
of the informant is necessary or right in order to show the prisoners innocence, then one public
policy conflicts the other hand that which says that innocent man is not to be condemned when
his innocence can prove is the policy that must prevail. but except in that case, this rule of
public policy is not a matter of discretion it is a rule of law and as such should be applied by the
judge at trial who should not treat it as a matter of discretion whether he should the witness to
answer or not. the distinction between these two cases was that the proceedings against the
plaintiff were discontinued before the plaintiff appeared in court but however there was no
diction between police informers the rule is to ensure that the identity of persons providing
information to the police is kept secret and the consequence must remain the same whether or
not a prosecution result.
Privilege: cases on privilege
Privilege deals or looks at the duty of confidentiality and nondisclosure of confidential
communication which imposes protection in relation to the interest of the communicant. The
essence of encouraging these communications is that they maintain a certain relationship.
These relationships are protected because for the benefit of the achievement of justice, public
health and social stability.
THREE RIVERS DIRICT V GOVERNING COMPANY
In this case the courts divided two categories of privilege which are:
1. Legal Advice Privilege
2. Litigation Privilege.
The brief facts of the case are that a Bank anticipated criticism in an ad hoc enquiry which was
called to investigate its handling of a matter that involved a claimant. The claimant sought
disclosure of the documents created when the solicitors advised employees of the Bank in
preparing to present the Bank’s case and the bank now appealed an order granting access,
arguing legal professional privilege. Litigation privilege covers all the documents that are
brought into being for the purpose for litigation. Legal Advice Privilege covers the
communication between lawyers and their clients whereby legal advice is given to them.
The Solicitor has the responsibility of advising his clients on all matters of business which
includes the types of policies and other matters. Whether seeking of advice from or giving of
advice by lawyers does or doesn’t take place in relevant legal context so as to attract legal
advice privilege. In such instances, the Judge should ask whether the advice relates to rights,
liabilities or remedies of the client under either public or private law. If it doesn’t fall under any,
then the legal advice privilege will not apply. This special privilege to communications between
lawyers and their clients is in relation to confidential communications and protection for those
seeking legal advice. In relation to these confidential communication the law requires public
interest of the parties in maintaining confidentiality and administering justice that requires
disclosure of confidential material.
The courts also established that communications between parties or their third parties with the
aim of having information or advice in relation to litigation are privileged but only when certain
conditions are satisfied. These are; the litigation must be in process, the communications that
are made between the parties must be made for the purpose of litigation and the litigation
must be adversarial, not investigative or inquisitorial.
The courts however held that the appeal succeeded and the privilege was revoked.
In the case of Shoprite Holdings Limited v Lewis Nathan and Mosho Practitioners, the 2nd
defendant in this case raised a preliminary issue prior to Rule 19(1) and (2) of The Supreme
Court Rules, Cap 25 of the Laws of Zambia. The question that was raised in the notice was
whether the appeal was properly before the Court in the view of the Plaintiff’s non-compliance
with the provisions of Rule 58(4) h and (i) of the Supreme Court Rules. The State Counsel
submitted that the facts in the affidavits to the effect that the 1 st Defendant was facing other
criminal charges were not in dispute. In fact the affidavits did not contain any factual issues that
were in dispute. There is no dispute that certain material documents, namely summon, an
affidavit in support of the application in support of the application to stay proceedings and an
affidavit in opposition pertaining to the appeal, were omitted from record of appeal. The
plaintiff commenced an action against the defendants over alleged breaches by the defendants
of instructions given to them by the plaintiffs. The plaintiffs were concerned about the manner
the defendants had executed instructions regarding the plaintiff’s shares that were listed on the
Lusaka Stock Exchange (LUSE) both as transfer agents and as resident director of the 1 st plaintiff
company. The 1st plaintiff stole certain sums of money through cheques drawn on the law firm’s
account at certain banks which the money the 1 st defendant had received on account of the 1 st
plaintiff. The allegations against the 1st defendant was that he used the money stolen, which
were proceeds of crime to purchase certain properties. The defendant contended that criminal
proceedings would prejudice their case before the High Court owing to the fact that the
criminal proceedings would dwell greatly on the same evidence and facts to be raised before
the High Court. Therefore, the following are the legal principles from the case. The threshold
for a stay of civil proceedings due to concurrent criminal proceedings is quite high. The integrity
and honor to be exhibited by a legal practitioner does not mean that a legal practitioner should
be deprived of a fair criminal trial by virtue of their profession. The danger that the disclosure of
the defense in the civil action would or might lead to a potential miscarriage of justice in the
criminal proceedings. The discretion would only be exercised where there is real danger of
causing injustice in the criminal proceedings and it would be difficult to see how in putting
forward material to rebut a claimant’s contention that there was no real prospect of his being
able to successfully defend a claim, a defendant would be in any danger of incriminating
himself. And lastly, if there is to be a danger to adverse interference being drawn so that
disclosure of a defense in civil proceedings is unlikely to disadvantage in criminal proceedings.

Heuff v Mbewe (1965) Z.R 111 (S.C)

The brief facts were that the accused, Mbewe, was prosecuted for libel contrary to section 191 of the
penal code. The accused in his capacity as Acting General Secretary of the National Union of Commercial
and industrial Workers published a defamatory matter in a letter to the permanent secretary to the
minister of labour and social development, the General Manager chilanga, the Lusaka Area Secretary of
the Union, and the Unions Branch secretary at Chilanga. The permanent secretary was subpoenaed to
produce the letter and other correspondence in court by the prosecutor. As a result, the Minister of
Labour and Social Social development filed an affidavit claiming state privilege and therefore objecting
to the production of the letter and other documents listed in his affidavit. However, the state had no
interest in the process now.
In this case, the Court's found that the objection of a minister should not be conclusive making
reference to the case of Grosvenor Hotel,4the objection should be taken in on good faith or that there
are reasonable grounds for thinking that the production of the documents contradicts the interest of the
public and if not, the court can override the objection and order production. The court can also call for
the documents ought to be produced where state privilege is claimed and inspect them to see that
indeed reasonable grounds for withholding them exists. The minister should justify his objection with
reasons by describing the nature of the document and why it should not be disclosed so that the court
can assess his claim as provided in the Wednesbury Corporation v Ministry of Housing and Local
Government case.5 The case also provides that no documents are admissible for inspection either on
discovery or at trial when an objection is taken by the minister that the disclosure of the documents is
contrary to public policy.Privilege is applicable to the state and private individuals possession of the
document. The court also found that no secondary evidence is admissible where privilege is upheld.
In this case, the court upheld the ministers claim for state privilege notwithstanding the fact that the
ruling may or may not prevent justice being done between the two parties to the case but that the need
to protect the interests of the country is Paramount to the other interests involved in this case.
Mpongwe Farms Limited v Dar Farms Limited.
Brief facts were that the defendant seeked to expunge a document which was a letter from the bundle
of documents relied upon by a third party on the ground that the document is privileged and can not be
relied upon. The application for non disclosure was supported by an affidavit. The issue in this case was
whether or not the letter was privileged and if so whether or not it can be used by the Second third
party. The privilege that is sought to be invoked by the defendant's application is legal advice privilege.
Legal advise privilege is necessary because it protects communications between clients and lawyers
from the possibility of scrutiny from others.The principles emanating from this case is that the essence
of legal advice privilege is that it protects communication between a client and their lawyer which are
part of the continuum of giving and obtaining legal advice. There can be no privilege without
confidentiality. Therefore, if a privileged document has lost its confidence, there can be no privilege.
Confidential communications between a lawyer and their clients are privileged.
privileged documents are protected from unauthorized use even though it passes to a third party where
it passed through mistake. however, if it was willfully sent to a third party, then it cannot be protected
hence loss of confidentiality affecting privilege. With regards to whether or not the document was
privileged, the court ruled that the letter was privileged due to the fact that it was a
communication between a client and a lawyer
BANK OF ZAMBIA V ACCESS FINIANCIAL BANK SERVICES
This was an appeal from the ruling of the High Court. The main matter related to the
implementation of a liquidation schedule for Access Financial Services Limited and Access
Limited Bank of Zambia. The Applicants were the Access Financial while the Respondents were
Bank of Zambia. The Appellants application, before the Court was that certain documents
should be expunged from the Respondent’s information protected by the Legal Professional
Privilege. IMKAC 3 and 4 contained legal advice from the office of the Assistant Bank Secretary
to the Deputy Governor Administration and the Acting Director-Human Resources respectively.
The legal advice related to disciplinary charges that had been brought against the Liquidation
Manager of Access Financial Services Limited and Access Leasing Limited. The charges arose
from an internal audit report, generated by the internal audit department of the appellant

4
[1964] 3 All E.R.354
5
[1965] 1 W.L.R 261.
which revealed a number of irregularities in the liquidation process of Access Financial and
Access Limiting Limited.
The following are the legal principles. The Professional Legal Privilege protection which is
granted in the public interest to secure the due administration of justice is displaced when a
higher public interest requires it. Counsel that is employed in Government bodies should not
enjoy benefits of Legal Professional Privilege but that they must guard pressure to dispense
dishonest and improper advice because they have a higher public interest to serve. Where
communication would be within the protection of Legal Professional Privilege had been made
in furtherance of a fraudulent design, a person was not entitled to assert legal professional
privilege as a ground for refusing to disclose those communications in circumstances where the
party seeking disclosure was able to establish a strong prima facie of fraud. The Court could
however, be very slow to deprive a party of the important protection of legal privilege on an
interlocutory application and would judge each case on the facts, striking a balance between
the important consideration on which legal privilege was founded and the gravity of the charge
of fraud that was made.

In Lusaka West Limited v Turnkey6 it was an appeal case against a consent order made by the high
court. when the case came before the court it was adjourned with a view to the parties reaching an out
of court statement. Discussions between the parties were marked without prejudice. An agreement was
reached and a consent summons was signed by counsel for the parties. The third appellant then
repented of the agreement and wished to withdraw its consent. The Court refused to allow the
withdrawal of consent and the appellants appealed.
The issue of the case was the production of documents which was without prejudice to show that a
consent order had been agreed. It was argued as a general rule that such correspondence is
inadmissible on ground of public policy to protect genuine negotiations between the parties with a view
to reaching a settlement out of court. The court established that there may be situations such as in the
case of a settlement where the issue for determination demands the production of such without
prejudice correspondence. The main issue is whether counsel for the appellant could withdraw the
consent of his client when it had already been communicated to the other side and when it had already
been signified by their signature on the consent summons.
Held

the ordinary course, take instructions from the client, we are satisfied that in this case counsel did have
the authority of the managing director of the third appellant who equally had ostensible authority on
behalf of the third appellant to give instructions to counsel. In turn, counsel had ostensible authority to
enter into the consent agreement insofar as his dealings affected the litigation with the other side. A
consent agreement reached in circumstances such as in this case could possibly only have been allowed
to be withdrawn if there were proper grounds upon which the validity of any contract could be
impugned such as fraud or mistake. No such factors were present in this case

6
(1990)Z.R 1(S.C)