ECL’S COMPLAINT WILL BE HEARD ON 3RD OCTOBER, 2024-CONCOURT
Court resumes sitting; 14;00hrs
Justice Munalula-we had given orders for the application to be filed by 13;00hrs today. We have not recieved anything.
Makebi Zulu- My Lord and My Lady, the application to file was not made for the following reasons;
When the order was given to file, it was at 11;40hrs. It takes half an hour to drive to the office. At the office we found that there was no power as Roma was being loadshedded.
My Lady, even assuming that there was no load-shedding, fulfing the condition to file within an hour was impossible. Without even beginning to draft the application, we had lost more than an hour.
My Lady,this court is fully aware of the time that motions take. That we have to file summons, accompanying affidavits and arguements and we may not need emphasise that arguements require research.
It is impossible for an application such as this to be done within an hour, as to prepare, file and serve within an hour, is practically impossible. The nature of the application requires attachment of evidence for example, the first respondent alleges that a close attachment exist between the Vice President of this Court and Republican President, Mr. Hakainde Hichilema.
The allegation of bias or perception thereof will have to be proven as a matter of fact. His proximity to President Hichilema as Secretary or Director of companies associated with President Hichilema or ordinary closeness, requires documentary evidence, through a search at PACRA and relevant bodies.
The allegations against the President of this court,
Lawyer for the petioner, Michael Mwape Moono; Objection My Lady- I’m troubled by the information Counsel is alluding to. It is not before this court. Or to put the facts in the manner he is putting, he is giving evidenciary submission.
It is enough to say there is a fact requiring evidence, what I strongly object is to find this material in courts records. Because of this, there is no room or opportunity to interrogate or examine such allegations as are being put before this court.
These issues Counsel has raised on behalf of the first respondent, must not come from the bar.
I therefore eeuqest that the facts he has alluded to be expunged from the record.
Makebi Zulu- My Lord and my Ladies…
Justice Munalula-just a moment..
Ok..Proceed.
Makebi Zulu- I’m glad that Mr. Moono understands the predicament I’m in too. It’s an exercise in futility to file such an application within an hour.
I would like to believe that it is not the intention of the Court.
Justice Munalula- What’s your answer on the issue raised whether those remarks can be or cannot be expunged from the record.
Makebi Zulu- My Lady, I gave these facts as an example to demonstrate how difficult it is for us to have complied with the Court’s order of filing the application within an hour.
Justice Munalula- thank you Mr. Zulu
Justice Munalula- Ruling- our ruling is that we will not expunge from the records,the examples given so far to illustrate a point.
Makebi Zulu- My lady, my Lord, we wish to make an application that we be allowed to file the application out-of-time. Our proposal is that we be allowed to file by Monday mid-day,30th September,2024. This will enable us to diligently represent our client, and deliver a professional service.
The one hour that was given has proved prejudicial interest.
Response from Second Respondent- we recognise that the first respondent has not complied with the court order. This matter has been active since 2023. We are ready to proceed. We object to the application.
Attorney General, Mulilo Kabesha- When we come to court, we should always be ready. The stand that adjournments will be given willy-nilly should not be our cup of tea. We were last before this court in June 2024. The judges who are being cited today were part of the bench. This is why we say someone has come to court with an aegnda in the armpit.
Hearing from the first respondent in the morning, we thought they were ready. We therefore proceed. We do not agree that the matter should not proceed.
My Lord l, I have been alerted that Solicitor general wishes tonsay something.
Justice Munalula-Solicitor General, Please go ahead.
Solicitor General, Marshal Muchende- much obliged my Lady. In refusing to take umbrage, I wish to refer to the book authored by Dr. Mumba Malila SC; “Delatory tactics, Judicial Leadership and the Quest to Reform the Judiciary” page 86 calls what appears to be on display here, “fabian tactics”. Fabian tactics designed to derail what should otherwise be straightfoward proceedings.
In the book the author states as follows: “What is safe evidence today, is what some lawyers, labouring under erroneus view that they hot stuff, become culptits in the sytematic delay in concluding matter.
They choose to bring intricate mesh, and the substantive issues before court becomes blurred, and turn proceedings to become highly legalistic and costly affairs.
As the State we are concerned, the first respondent had all the time, to prepare himself, to form material of his allegation, but opted to sleep on his rights until the very last minute or date of hearing appointed lapsed.
We submit that is a delatory and fabian tactic to do what should be straight-forward matter.
It is our prayer that this court will not entertain this matter and will dismiss the application so that we can proceed with the substantive matter.
It cannot come to be, that after the the first respondent raised serious issues this morning against men and women appointed by meeting qualifications of the Constitution to be judges, that he wouldmake his allegations without evidence worn on his holster.
Counsel for the first respondent stated that some facts require digging. It is clear that the evidence may be notnready.
We therefore request that the court dismiss this application with the contempt it deserves.
Lawyer for Petitioner-Michael Mwape Moono. The petioner joins the second respondent in objecting to this application before court.
Without repeating the same reasons as advanced by the second and third respondent, it is clear that this application is an afterthought.
If indeed these concerns of bias were real, the first respondent would have raised them for the first time when the court sat as a full bench on this matter. But to want to raise these issues as done do, to deliberately delay, until the moment of hearing, suggests that there could be other considerations which he hopes to achieve by delaying the commencement of the hearing of this petition.
My ladies and My Lords, to therefore indulge the first respondent would be to voluntarily give him the reigns to these proceedings tp dictate when do we go and we do we stop. This cannot be allowed. These proceedings are important to the public and national duties and this court must be seen to do its duty without swaying to the caprices of one of the parties.
The records will show that even at commencement of proceedings, the order…
Justice Munalula; Response?
Makebi Zulu- my Lord, our application is very clear. It is for us to apply out of time, outside the time the court had given us. However the arguements emanating from my colleagues now show that counsels are responding to the application for recusal, which matter is not yet before this court.
Lawyer for the Petitioner, Michael Moono- the application is seeking to be made out of the time. The lawyer for first respondent is asking for more time, to delay this case, to file the request for recusal application out of time.
My argument is that he must NOT be given more time as he has demonstrated that he is delatory in his conduct.
Makebi Zulu-my Lord and my Ladies, I object to the language being used here. It is insolent and therefore, it is imperative that we must observe decorum of this court.
Justice Munalula; let me respond and rule on 1st objection- Counsel must give his submission and state that the remarks are focused and to the point.
On the second objection, the language was earlier used by the Solicitor General and it is not obejctionable.
Laywer for the Petitioner, moono-Thank you my Lord. Furthermore, as was argued and emphasised by the Attorney General, we have come to court for the hearing .
The respondent has known about this date of hearing since August 7th 2024. In the interest of time, we must proceed to hear the petioner’s petion while the first respondent remains deciding when and how to file the petion.
Justice Munalula- Reply
Makebi Zulu- My Lady, this court saw it fit to grant leave to hear this application and was doing so in the interest of justice. Nothing has changed since 11;40hrs..
To suggest that the application is not urgent, is not true. My colleagues suggest that threshold issues, that go to the very core of this matter, cannot be ignored.
Its important to state that determination of the concerns must be dealt with before the matter is heard. This being a procedural court, we are obligedbto conform and adhere to the procedures and proceses sitpulated in the rules. We are saying that you have granted us leave and we are grateful but the time was not sufficient, to suggest that because we didn’t comply within an hour, the application must fail, we will be a mockery, and will be unjust.
The reasons we have made now is we expected the application of recusal. This court granted the application already.
On the merits of the main case, we are more than ready to start anytime.
My ladies and my Lords that it is only interest in the Justice that we make this application, especially that the first respondent is only making even a request for adjournment for the first time.
The details of the application will be disclosed in the application itself.
Justice Munalula- thank you Mr. Zulu.
RULING ON APPLICATION FOR RECUSAL TO BE FILED OUT OF TIME
Justice Munalula- Here is the courts ruling
An application by the furst respondent to be made out-of-time is hereby granted. This is because the nature of the allegations against the judges are serious, we are therefore constrained NOT to grant this application.
ORDERS
The first respondent should file an application and skeleton argument by Monday 30th September, 2024 by 14:00hrs. This must be done without fail.
They must serve on the other parties too.
We further order that the petitioners and other respondents file their responses by Wednesday, 2nd October, 2024.
We will hear the application on Thursday, 3rd October 2024.
Court adjourned