Burden Of Proof In Civil And Criminal Proceedings In Zimbabwe

Burden of proof refers to the threshold of evidence which is required to prove a case in legal proceedings. The burden of proof in criminal proceedings and civil proceedings is different.

The standard of proof required in disciplinary civil cases is called proof on a balance of probabilities. Balance of probabilities means that on the basis of evidence submitted, it is more likely than not that a case has been proved. This does not necessarily mean proof beyond reasonable doubt; rather it is a matter of probabilities. The scales of justice in this case maybe tilted in favour of one party to the proceedings by probabilities

This standard of proof applies in all civil matters which include but not limited to the following; labour disciplinary proceedings where employees are disciplined at the work place, divorce proceedings, maintenance cases, commercial disputes etc.

The standard of proof in criminal proceedings is that the charge must be proved beyond reasonable doubt. In other words you have to establish 100% guilt or something closer to that, to prove that an offence did actually take place. The judge must be able to reach the point where he can say that he has no reasonable doubt as to whether the accused is guilty or not.

The threshold of proof in criminal proceedings is higher than of civil proceedings.

This explains a situation where an employee charged for a criminal offence under a certain set of facts can be found acquitted in criminal proceedings say for theft but is found guilty of a competent charge in subsequent or parallel disciplinary proceedings because the employer can easily discharge its onus by proving an act of misconduct on a balance of probabilities.

That does not however mean that a party proving a case in civil proceedings can easily get away without producing sufficient evidence simply because the burden of proof is on a balance of probabilities. Our courts have stated that the onus to prove lies on the party alleging or seeking a remedy.

This was underscored in Astra industries Limited v Peter Chamburuka SC12/2012 wherein the Court held that;

“The position is now settled in our law that in civil proceedings a party who makes a positive allegation bears the burden to prove such allegation.  This position has been affirmed by this Court.  In Book v Davidson 1988 (1) ZLR 365 (S) at 384 B-F, DUMBUTSHENA CJ quoted with approval the words of Potgieter AJA in Mobil Oil Southern Africa (Pvt) Ltd v Mechin 1965 (2) SA 706 AD at 711 E-G:

“The general principle governing the determination of the incidence of the onus is the one stated in the Corpus luris simper necessitas probandiincumbitilli qui agit. In other words he who seeks a remedy must prove the grounds therefore.”

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