4 October 2008
THE Lusaka High Court has thrown out an application by The Post Newspapers Editor-in Chief, Fred M'membe to dismiss the contempt proceedings against him.
This is in a case in which acting President Rupiah Banda was granted an injunction to restrain The Post Newspapers from running editorial opinions defamatory of him.
The matter comes up on October 9 when the contempt proceedings would commence.
Mr Banda, through his lawyer Christopher Mundia, also wanted the court to restrain the defendants from publishing words that he was not a person who was trustworthy to the electorate as the President of Zambia.
But the newspaper, in its Monday edition published an article under the headline "RB a shameless liar" prompting Mr Banda to apply for leave to commence contempt proceedings against Mr M'membe for his failure to honour the injunction.
High court Judge Charles Kajimanga granted Mr Banda the order for ex-parte summons for leave to commence contempt proceedings against Mr M'membe.
When the matter came up for hearing for leave to commence contempt proceedings, Mr M'membe raised two preliminary issues that it was undesirable and not permissible for Mr Banda's lawyer to swear an affidavit in a matter that was highly contentious.
Mr M'membe's lawyer, Remmy Mainza submitted before the court that there was no justification in the lawyer swearing an affidavit on behalf of his client who was within the country.
He said the contempt proceedings were misconceived and urged the court to dismiss it with costs.
Another lawyer, George Chisanga said at the time the court was granting the order for an injunction and the order for leave to commence contempt proceedings, the defendant had not filed his defence to the main cause.
Mr Chisanga submitted that, at present, there was defence by the defendant whose main thrust was a plea of justification and fair comment.
He said a plea of justification and fair comment ousts the jurisdiction of the court from entertaining an application for an injunction.
He added that since the circumstances were now changed, there was no reason for the court to continue sustaining both the injunction and the order for leave which had resulted from the injunction.
In response, Mr Mundia said the application was misconceived, brought to court improperly and that the purported preliminary issues did not comply with the practice direction.
Mr Mundia said it was not in dispute that the court granted the injunction against the defendant but after that, the defendant had continued with his unprecedented and reckless akin to press terrorism and that the campaigns were matters in the common domain.
He submitted that it was within his competence to swear the affidavit, which contends matters within his knowledge.
Mr Mundia said the preliminary issues raised should be dismissed with costs because they were misconceived and lacked merit.
In his ruling, Mr Justice Kajimanga said there was no merit in the preliminary issues raised by the defendants and he was satisfied that the ex-parte application for leave for an order of committal was properly deposed to by the applicant's lawyer.
He noted from the record that the affidavit was duly deposed and sworn by Mr Banda on September 30 this year and was satisfied that the ex-parte application for leave for an order of committal was properly deposed
The court stated that it saw no impropriety in the arguments as cited by the defence lawyers.
Mr Justice Kajimanga was not satisfied that there was any legal basis for vacating the ex-parte order and that the various authorities cited by the defence did not apply to the circumstances of the application.
He further ordered that he would proceed to hear the ex-parte summons for leave to commence contempt proceedings against Mr M'membe.
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