10 October 2008
THE Lusaka High Court has dismissed an application by Post Newspapers Editor-in Chief, Fred M'membe to appeal to the Supreme Court and stay the contempt proceedings against him.
High Court Judge Charles Kajimanga refused Mr M'membe's application for leave to appeal to the Supreme Court against the court's ruling rendered on October 3 and another one to stay the committal proceedings pending appeal.
The same court has, however, allowed Mr M'membe leave to appeal to the Supreme Court against its decision to refuse the two applications.
This is in a case in which acting President Rupiah Banda was granted an injunction to restrain the Post Newspapers, who are the defendants in the matter, from running editorial opinions defamatory to him, namely that he was a crook, a criminal and unreliable.
But the newspaper last week 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.
When the matter came up for hearing, Mr M'membe, through his lawyers, raised two preliminary issues that it was undesirable and not permissible for Mr Banda's lawyers to swear an affidavit in a matter that was highly contentious.
The court, however, threw out Mr M'membe's application for the preliminary issues and ordered that it would proceed to hear the contempt proceedings.
This prompted Mr M'membe to apply for leave to appeal to the Supreme Court and to stay the contempt proceedings against him.
He stated in his affidavit that he was dissatisfied with the ruling as the court did not consider that the contempt proceedings it directed to proceed were prejudgmental as he could not be held in contempt in the absence of a finding by the court even if the publication was libellous.
In his ruling in chambers, Judge Kajimanga noted that the High Court had discretion to grant or refuse to grant leave to appeal to the Supreme Court against its decision and that the likelihood of the appeal succeeding was a major consideration in exercising such discretion.
He said it was an elementary principle of law that the court could only exercise its discretion in favour of granting leave to appeal if it was satisfied that there was merit in the appeal and that there was a likelihood of it succeeding.
" I am, therefore, of the firm opinion that there are no prospects of the defendant's appeal succeeding in the Supreme Court. The defendant's application for leave to the Supreme Court is accordingly refused," Judge Kajimanga said.
He said the application to stay committal proceedings pending appeal was dependent upon the success of the application for leave to the Supreme Court, which had been dismissed and, therefore, the application was equally refused.
However, the court stated that it was granting the defendant leave to appeal to the Supreme Court against its decision to refuse the two applications and that in the interest of justice it would stay the committal proceedings which were scheduled to be heard yesterday.
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