CIVIL AND CRIMINAL MATTERS CAN RUN PARALLEL- MAKEBI ZULU
Lusaka-Wednseday, 6th December 2023
Lawyers for the Patriotic Front have dismissed assertions by Miles Sampa’s lawyers that civil and criminal court matters may not run parallel.
The lawyers have cited various authorities to present the justification and purpose of the criminal proceedings before Lusaka Magistrate Litiya.
MAKEBI ZULU ADVOCATES
Plot No_4470/House No
Corner ot Zambezs and Mugott Road, Roma
PO Box 38200. Lusaka, Zambia
Tel+260 211 295 799
Fax +260211 295 797
Mobile: +260 977 257 038/+260 763 954 140
6th December, 2023
Messrs Iven Levy Legal Practitioners
Plot No. 28
Msuzi Road, woodlands
REF: ALLEGED CRIMINAL PROCEEDINGS BEFORE HON.LITIA AGAINST HON. MILES SAMPA AND MORGAN NGONA WITHOUT APPROCAL/FIAT
FROM THE DIRECTOR OF PUBLIC PROSECUTIONS
The above caption matter refers and further reference is made to your letter of the 6th instant.
We wish to point out firstly that we are disappointed with the tone of the letter wherein you make allegations against ourselves that present a very discourteous state of communication/ language.
Our understanding of the practice is that in our dealings we ought to be courteous to each other.
Your allegations of professional misconduct does not sit well with us.
Rule 38 of the legal practitioners rules contained in SI. No. 51 of 2002 speaks to this issue.
It provides as follows:
“A practitioner shall treat professional colleagues e with the the utmost courtesy and fairness in relation to court matters or any other professional business or dealings.”
Your allegation has no substance and it ought not to have been made in the first place.
You have alleged that there are civil proceedings therefore, we cannot have criminal proceedings going on.
This averment is erroneous at law. As you may well know criminal proceedings and civil proceedings run in parallel and can ran at the same time.
You may wish to look at and familiarise yourselves with the case of Shoprite Holdings Limited and Shoprite checkers (PTY) Limited V Lewis Chisanga Mosho SCZ NO.40 of 214 which speaks to the subject of criminal and civil matters running in parallel and at the same time.
The Court in that case confirmed that position and held that criminal and civil matters can run in parallel and at the same time.
The constitutional Court of Zambia has also guided on matters that have to do with institution of a private prosecution.
In the case of Wang Shunxue v Attorney General and Wang Quinghai 2021/CCZ/003, the Constitutional court was very clear.
It was the position of the Court that once a private prosecution is commenced you cannot proceed to have proceedings such as plea and evidence given until consent from the Director of Public Prosecutions is obtained. Nowhere in the Judgment does the Court say you first obtain consent before filing the complaint relating to the matter that should be prosecuted privately.
In fact the history to the above matter is that, this matter had been commenced before the Magistrate Court and to be precise before Hon. J Bwalya as she was then.
Upon an application and subsequently a petition being filed into the Constitutional Court, which led to the decision now which is binding on parties, the Court stayed the matter pending obtaining of consent from the Director of Public Prosecutions following guidance from the Constitutional Court.
This was the same even in the case of The People v Graphael Musamba commenced by way of private prosecution by Dr. Fred Meembe.
The examples are numerous on the subject.
Simply put, a criminal matter and a civil matter can run in parallel.