Sat, 28 Jan 2017 11:32:15 +0000
By CHIKUMBI KATEBE
A COMPLAINT of gross misconduct has been lodged against Lusaka High Court Judge-in-Charge Mwiinde Siavwapa for allegedly giving legal advice to Fred M’membe, the owner of the Post Newspaper (in liquidation), from the bench in a matter that is before another judge in the same jurisdiction.
Edwin Lifwekelo, the former UPND deputy spokesperson who has since joined the ruling Patriotic Front, has reported Mr Justice Siavwapa to the Judicial Complaints Commission for allegedly giving legal advice to Mr M’membe on the liquidation of the Post Newspaper being presided over by Judge Sunday Nkonde.
Mr Lifwekelo said he has discovered that Mr Justice Siavwapa had entertained and acted on communication from and in favour of Mr M’membe who was seeking to be party to the liquidation proceedings of the Post Newspaper.
Mr Lifwekelo said it was ‘‘absolutely wrong’’ for Judge Siavwapa to render legal advice to an interested party over a matter presided over by another judge without declaring interest.
In a letter dated 27th January, 2017, addressed to the chairman of the Judicial Complaints Commission, Mr Lifwekelo complained that following the appointment of Judge Siavwapa as Judge-in-charge of the High Court, Mr M’membe wrote to the judge seeking legal advice which was duly rendered.
He said Mr M’membe’s letter to Judge Siavwapa was seeking the removal of Mr Justice Nkonde from presiding over the liquidation of the Post Newspaper and that Mr Justice Siavwapa gave legal advice to Mr M’membe to the effect that he should file an application before the court hearing the liquidation of the Post Newspaper.
Mr Lifwekelo said by rendering legal advice from the bench, to a person wishing to be party to the case, and a matter he was not presiding over Mr Justice Siavwapa acted in gross misconduct as the judge-in-charge.
Judge Siavwapa presided over the matter between The Post Newspaper before it was liquidated and the Zambia Revenue Authority (ZRA) and handed down a judgment in favour of Mr M’membe which judgment was eventually overturned by the Supreme Court.
“The judge has entertained and acted on communication from and in favour of a person who seeks to be a party to proceedings before another judge, thereby interfering in a matter which is currently before another judge of the High Court.
“The judge (Siavwapa) has rendered legal advice from the bench in a matter before another judge of the same court and or similar jurisdiction to a person who seeks to join those proceedings.
‘‘In rendering legal advice from the bench, the judge has not copied his advice or communication to the judge before whom the proceedings have been nor any party to those proceedings,” Mr Lifwekelo submitted.
Mr Justice Nkonde has since appointed Lewis Mosho of Lewis Nathan Advocates as provisional liquidator in the winding up process of the newspaper, who has since commenced contempt of court proceedings against Mr M’membe as former managing director of the Post in liquidation for undermining the authority of the court by refusing to hand over a catalogue of assets of the company when requested, which was currently on-going.
“Upon a search on the court record, I did not find a copy of the letter written by Mr M’membe. I however found a letter written by Justice Syavwapa in reply to Mr M’membe and in which the judge has rendered legal advice to Mr M’membe to the effect that Mr M’membe should make an application before Hon Justice Sunday Nkonde, SC, requesting him to recuse himself in the matter. This letter is not copied to Justice Sunday Nkonde, SC, nor to any party to the proceedings in that cause,” he said.
Mr Lifwekelo has charged that Justice Syavwapa should be the one to recuse himself from commenting anything on the matter because he recently rendered a judgment in favour of the Post Newspapers which has since been reversed by the Supreme Court.
“The judge has not declared conflict of interest between himself and the Post Newspapers Ltd (in liquidation). This matter in which Judge Syavwapa has not declared interest is between the same parties as those in which he delivered judgment, namely the Post Newspapers as debtor and ZRA as creditor,” he said.
