Monthly Archives: October 2016

Organising the Law: Towards a theory of legal presumptions in the common law

By E. Munshya, LLB, LLM, MBA, M.DIV.


Of the Alberta Bar

The law, like life itself, is not an exact science. Or perhaps we could say, the law is both a science and an art, with the art part being much more pronounced. Since time immemorial, the desire for the truth, the whole truth and nothing but the truth has consumed the common law legal tradition throughout the world. However, for the law to arrive at the truth, it must work under some well-founded presumptions. A presumption is a truth assumed by the law, unless it is rebutted by other facts to a requisite standard of proof. Legal presumptions are necessary so that the law is predictable. Without legal presumptions, the common law legal tradition would be much more complex and hazardous than it already is. The law uses presumptions to arrive at truth, for truth is impossible without basic foundations upon which truth could be built. Presumptions are the building blocks of truth. Legal presumptions are the troughs that guide the rivers of justice. Legal presumptions do help organise the law and the society in which it functions. Without legal presumptions, we will be like beasts unguided by the restraints of law. Presumptions are not the truth per se, but a guide towards the truth. There are too many presumptions at law and they would not fit this article today. But let me hasten to mention a few.

The first presumption is the that of innocence. In criminal law, an accused person is presumed innocent until proven guilty by a competent and impartial tribunal. The law here does not state that an accused is innocent, but rather that they are “presumed” innocent. The law creates and imputes upon all people, including the accused, a blanket of innocence. It is from innocence that a case can then be built against the accused until they are convicted. Bizarrely, even when you catch a thief piddling into your house at midnight, the law still presumes that they are innocent until a competent and impartial tribunal rules otherwise.

400px-Coat_of_Arms_of_ZambiaThe second presumption is that a court intends to stay within its jurisdiction. In the Zambian system of justice, we have several courts. Broadly, these courts can be divided into courts with common law powers (courts which are courts because they are courts!), statutory courts (deriving almost all of their powers from statute or the constitution), customary courts (courts under customary laws), and statutory tribunals (such as a tax or revenue tribunal). Navigating through the maze of jurisdiction is one of the finest distinction of legal practice. Recent events in Zambia show us how ambiguous and confusing the question of jurisdiction can get. After the August 11 2016 elections, we learnt a lesson or two about which court has primary jurisdiction over the Bill of Rights. Both Mr. Hichilema and Mr. Mwamba have taken their jurisdictional argument from the Constitutional Court to the High Court. We are watching closely how those matters will be resolved. But for now, as an organisational tool, there is a presumption that a court hearing a matter intends to stay within its jurisdiction. If for example, a tax tribunal entertained a matter it has no jurisdiction over, a higher court reviewing the acts of the tribunal will have to overrule that tribunal on the basis that it had no powers so to act. When a higher court rules on that question it will be effecting this important presumption: a court is presumed to stay within its jurisdiction.

The third presumption is that of gifts and donations. The law presumes that people do not intend to give gifts but to buy a bargain. If someone gives you K10,000.00 and says to you, “here is the money for you to buy a car or to buy a house”, the law presumes that the money you are given is not a gift, but is given to you in exchange for something or a bargain. A person who gives another person something is presumed to be wanting something from that other person in return. The receiver of the gift must in turn rebut that presumption if it is called into question. This theory is far much broader though, and I hope in trying to simplify it, I am not sacrificing the broader complexities of the gifts, the giver, and the given.

A fourth presumption is that of intention and consequences. Here is how it is stated: a person is presumed to intend the consequences of their actions. If you act in a certain way, the law presumes that you intended the consequences of that action. That presumption may be open to a rebuttal, but at least at the very basic and organisational level, you are presumed to intend the consequences deriving from your actions. A few months ago, a Zambian at an airport in South Africa, rather naively and jokingly told a nosy customs agent that he was entering South Africa with a bomb in his luggage. The airport went into lockdown and the Zambian was arrested. If your actions cause panic, the law will presume that you intended to cause panic even if a joke is what is was on your mind!

A fifth presumption is that of family. A child born out of a married couple living together is presumed to be the natural child of the husband. The law does not leave this matter to further proof. This is how bizarre it can get. Let us assume for a very strange reason an African, black married couple have a child that looks biracial, the law presumes that the man married to the mother is the natural father, even if he could as well not factually be the father. Practical facts and legal facts could be at odds sometimes. The law does not ask questions unless that presumption is certainly rebutted by positive evidence. A husband cannot refuse paternity of a child simply because a child looks like the neighbour! Unless rebutted, the law presumes that “you are the father”.

There are many other presumptions: a presumption of death: a person who disappears for specific number of years is presumed dead. There is also the presumption of birth: a child found wandering on Zambian soil without relatives is presumed to have been born in Zambia, even if factually they could as well have been born in Lilongwe or Lubumbashi. There is also the presumption of power: a person with statutory powers is presumed to intend to stay within that power. I will end here for now.

_________________________________________________________________ The Author is a Zambian thought leader and pentecostal minister practicing civil litigation, estate law, and administrative law at West End Legal Centre, in Calgary, Alberta, Canada. In addition to seminary education, Elias holds an LLB from England, an LLM from Northwestern University in Chicago, and an MBA in Law from Wales.