JUDICIAL NOTICE
Not all facts need to be proved through the calling of
evidence by the parties. There are certain facts which
the court may be able to accept as established even
though no evidence proving them has been led. This is
called “judicial notice”. It means the judge has
accepted a certain fact as established when no
evidence proving it has been led.
Whether or not a court should take judicial notice of a
certain fact is an issue of law. The court should inform
the parties that it intends to take judicial notice of that
fact before it actually takes judicial notice of it.
What is it that the court may take judicial notice of?
Section 24 of the Civil Evidence Act provides that:
“(1) A court shall take judicial notice of the following—
(a) the law of Zimbabwe; and
(b) decisions of the High Court or the Supreme Court, if
reported or recorded in citable form; and
(c) any enactment published in or as a supplement to
the Gazette; and
(d) any other matter whatsoever which, in terms of
rules of court or any other enactment, the court is
required to accept as correct or of which it is required
to take judicial notice.
(2) Subsection (1) shall apply without prejudice to Part
VII of the Interpretation Act [Chapter 1:01].
(3) A court may and, if the necessary information is
supplied, shall take judicial notice of any fact which is
not subject to reasonable dispute in that it is—
(a) generally known among reasonably informed
people in Zimbabwe or within the area of jurisdiction of
the court; or
(b) capable of accurate and ready determination by
resort to sources whose accuracy can not reasonably
be questioned.”
(i) Notorious facts
A court may take judicial notice of notorious facts, ie
facts that are well-known and well-established.
Notorious facts are of two kinds (i) general knowledge
and (ii) specific facts which are notorious within a
specific locality.
In R v African Canning Co SWA Ltd 1954 (1) SA 197
(SWA) at 199E it was stated that notorious facts
include elemental experience in human nature,
commercial affairs and everyday life.
Facts of general knowledge would include, for
example, the fact that Christmas Day falls on 25
December of every year, that there is a national road
network in Zimbabwe and that these roads are public
roads (R v Bikitsha 1960 (4) SA 181 (E)), that chess,
billiards and table-tennis are games of skill (Ex parte
Minister van Justice: In re S v Conclaves 1976 (3) SA
629 (A)) and the fact that there are seven days in a
week.
(ii) Facts of local notoriety
The court may take judicial notice of facts which are
not of general knowledge, ie facts which are only
common within a specific area and not generally across
the entire country or community.
These facts however, must be notorious amongst all
reasonably well-informed people in that area. For
example, in S v Van dern Berg 1996 (1) SACR 19 (Nm)
the court took judicial notice of the fact that a mining
company conducting its operations within that locality
was mining rough and uncut diamonds. In R v Levitt
1933 CPD 411 the court took judicial notice of the fact
that Franschoek is not a small place and that it
contains a number of streets.
(iii) Facts easily ascertainable
The court may also take judicial notice of facts which
are not generally known but are readily and easily
ascertainable. However, the facts should be easily
ascertainable from sources of indisputable authority,
eg maps and surveys issued under government
authority.
(iv) Examples
There are some of examples of when courts have taken
judicial notice of facts and why they did so.
Animals: the court takes judicial notice of the
instinctive behaviour of domesticated animals (Parker
v Reed 1904 SC 496).
Racial characteristics: during apartheid South Africa,
courts racially rook judicial notice of facts that cannot
reasonably be taken judicial notice of. They took
judicial notice of the “fact” that (i) “natives” are able
to see in the dark (R v Tusini 1953 (4) SA 406 (A)) (ii)
“Bantu” women submit to rape without protest (R v A
1952 (3) SA 212 (A), S v M 1965 (4) SA 577 (N)) (iii)
“Bantu” women are unlikely to support the evidence of
their husbands against a lover (S v Sihlani 1966 (3) SA
148 (E)) (iv) “native” witnesses who give evidence in
support of an alibi may be judicially assumed to be
liars (Mcunu v R 1938 NPD 229). In S v Augustine 1980
(1) SA 503 (A) Rumpff CJ mad ethe startling assertion
that “coloured” and “black” men sometimes stab
others without reason.
Political and constitutional matters: a court may take
judicial notice of the sovereignty of states and the
existence of a state of war in those states. In
proceedings against a foreign government, the court
may take judicial notice of that such government is the
recognized government of that foreign state – Inter-
Science Research v Republica de Mocambique 1980 (2)
SA 111 (T).
Matters of science and scientific instruments: a court
may not take judicial notice of matters of science
unless they have permeated into the background
knowledge of non-specialists, ie they are only taken
judicial notice of when they have become generally
notorious. For example, a court has taken judicial
notice of the fact that no two fingerprints are exactly
the same (R v Morela 1947 (3) SA 147 (N)). A court has
take judicial notice of the normal period of human
gestation.
Financial matters and commercial practices: judicial
notice has been taken of (i) the fact that the value of
money has declined over the years (Bryant v Foot 1868
LR 3 QB 497), (ii) the fact that most public companies
are incorporated for the purpose of making a profit
from income (iii) the practice of furnishing bank
guarantees in sales of land (iv) the practice of making
payment by cheque.
Law: a court must take judicial notice of the law of
Zimbabwe, but may not take judicial notice of foreign law
(see section 25 of the Civil Evidence Act). Foreign law must
be proved through actual evidence of experts – Skilya
Property Investments (Pty) Ltd v Loyds of London
Underwriting 2002 (3) SA 765 (T).
