Court halts hearing of Lungu’s appointment as provisional liquidator, to first hear joinder application

By Staff Reporter

LUSAKA High Court judge Anessie Banda Bobo has halted the inter-parte hearing of the appointment of Milingo Lungu as provisional liquidator in a case where ZCCM-IH has asked the court to wind up Konkola Copper Mines (KCM) which has since been placed under liquidation.

Judge Banda-Bobo said the application by ZCCM-IH which was originally scheduled to be heard on Friday would pend until the application of joinder by Vedanta  Resources Holdings Limited, the second intended respondent, is disposed of.

She adjourned the matter to June 4, 2019 to enable all parties involved to be served with pertinent documents so as to enable them appreciate the case.

In this petition, ZCCM-IH has asked the court to wind up KCM on grounds that it was insolvent and had failed to pay outstanding invoices to suppliers and contractors as and when they fall due, among other allegations.

On Tuesday, Judge Banda-Bobo granted ZCCM-IH an ex-parte order appointing Lungu as provisional liquidator which the intended 2nd respondent, Vedanta, wants to challenge.

Earlier when the case came up in chambers Thursday, several lawyers placed themselves on record for all the parties involved so far.

ZCCM-IH is represented by Messrs Shamwana and company led by Abyundi Shonga as well as Y. Mkandawire the general counsel for ZCCM-IH.

KCM who are the respondents are represented by Messrs Ellis and Company led by Bonaventure Mutale State Counsel, Jonas Zimba from Makebi Zulu, Andrew Musukwa and Company and D.H Kemp and Company, among others.

On the other hand, Mulenga Mundashi Kasonde Legal Practitioners and Corpus Legal Practitioners are representing Vedanta.

And addressing the court, Mutale S.C informed the court that they had filed a notice for an adjournment as they had not been served with pertinent documents.

He also submitted that on behalf of KCM that they have not had sight of the application for joinder by Vedanta because they had just been engaged as counsel.

Mutale said it was for this reason that he was applying for an adjournment so that they could get instructions from their client in relation to the intended joinder by Vedanta.

“The interest of justice dictates that in the circumstances, we be accorded an adjournment,” Mutale said.

Shonga added that the matter was originally scheduled for inter-partes hearing on the appointment of the provisional liquidator and while they were ready to proceed, they observed that there was an application for joinder on the record.

In response, Mundashi S.C asked the court to grant Vedanta ex-parte order joining the proceedings and then set separate inter-parte dates for hearing the appointment of provisional liquidator and another date for hearing the application for joinder.

Mutale S.C in reply reiterated that they sought an adjournment because they were not served with pertinent documents for them to peruse them so as to take a position.

He said the submissions by Mundashi that KCM has no issues by the application raised by Vedanta was clearly misconceived.

Mutale said KCM does not know what issues are raised by Vedanta as they would only know once served.

“I equally find the application got ex parte order to be made joining Vedanta as being totally misconceived as well. The record will show that there is no such application on ex parte basis and it is equally highly irregular to purport to launch such an ex parte application in the cause of the respondent to an application for an adjournment,”  he said.

Mutale urged the court to adjourn the case.

In her ruling, judge Banda-Bobo said when the application for joinder was made ex-parte, she declined to grant it and ordered that it should be heard inter partes.

She said as of now, there was no ex parte application before her for it to be granted as such.

Judge Banda-Bobo said each party to the proceedings has the right to have sight of all documents filed by any party so that they appreciate themselves on which issues were been raised.

She said this was irrespective of whether they intended to oppose or not to oppose, adding that it was in the interest of justice that each party be served.

Judge Banda-Bobo said even the intended respondent should be served as well and that it would be up to them to respond or not.

She adjourned the case to June 4, 2019 for inter parte hearing of the application for joinder.