Maravi

Dora lawyers make submission

Dora lawyers make submission
Written by masa
Thursday, April 16, 2009 2:43:18 PM
From yesterday

THE SECOND ALLEGATION- THAT THE RESPONDENT DID ARBITRARILY CANCEL A DULY AWARDED CONTRACT BY THE ZAMBIA NATIONAL TENDER BOARD (ZNTB) FOR THE SUPPLY, DELIVERY AND INSTALLATION OF A ZAMBIA AIR TRAFFIC MANAGEMENT SURVEILLANCE RADAR SYSTEM AT LUSAKA AND LIVINSTONE IN FAVOUR OF SELEX SISTEMI INTERGRATI COMPANY FROM ITALY. THE SNTB HAD AWARDED THE CONTRACT TO THALES AIR SYSTEMS OF SOUTH AFRICA AS SUCCESSFUL BIDDER.

My Lords, the gist of this allegation is that the Respondent arbitrarily cancelled a Tender that was duly awarded to Thales Air Sysytems of France in favour of Selex Sistemi Integrati. In fact, we wish to submit that this allegation is completely misplaced and was levelled from gross ignorance of the real circumstances of the matter. What is clear however is that there are two separate issues at play; the Tender for the Supply and installation of new radar equipment for the Livingstone and Lusaka International Airports was a matter that was handled completely by the Zambia National Tender Board and the offer by Selex Sistemi Integrati for repair of the Radar head at the Lusaka International Airport was an internal in the Ministry of Communications and Transport.

My Lords, the following facts are worth restating:

The Tender for the Acquistion of the radar equipment was intiated by the Ministry of Communications and Transport in consultation with the National Airport Corporation Limited and the Zambia National Tender Board;

The Tender process for the acquisistion of new radar equipment was superintended by the Zambia National Tender Board until the notification of award I P…;

At all material times, the Respondent received reports within the Ministry that there were underhand methods in the evaluation of the Tender process and this was later communicated in an anonymous letter dated the …produced as p…which revealed that some bidders were actually not manufacturers;

These reports prompted the Respondent to attempt to engage the Zambia National Tender Board to suspend the process pending the investigations of the allegations;

The testimony of CW 9 confirms that he ignored p…as it was informal communications;

The evidence of CW 4, CW 8, CW 9, CW 11 and the Respondent herself confirms that the Tender for the Supply of the Radar equipment still subsists.

My Lords, the evidence on record clearly shows that the Respondent only involved herself in the process after several concerns were raised by the verbal reports and the Anonymous letter produced and marked P 38 Accordingly, the testimony of CW 9, David Kapitolo confirms that there were no compelling reasons to cancel the tender and therefore the Zambia Public Procurement Authority chose not to invoke their Jurisdiction to cancel or suspend the tender process pursuant to the provisions of section 67 of the Public Procurement Act No. 12 of 2008.

My Lords, the evidence on record in particular the handwritten note on P 38 shows that even CW 8, the Permanent Secretary was concerned with the allegations of corrupt practices when he threatened CW 4 that if allegations were proved he would cancel the Tender process.

The Respondent’s evidence marked P 50 clearly shows that Messrs of France are still waiting to proceed to the level of negotiating the terms of the Contract. These Letters are dated 4TH February 2009.

We wish to submit that the Complainant and indeed the Petitioners have lamentably failed to prove this allegation which was traversed by their own Witnesses and accordingly we pray that the Honourable Tribunal recommends that this allegation was vexatious. If indeed the Complainant and the respective Petitioners had taken time to inquire into the circumstances of the allegation, this matter would not have been subjected to the proceedings herein. We submit that the Complainant and the Petitioners have failed to discharge their burden to prove the allegations herein and this allegation must accordingly be dismissed with the contempt it deserves. We are fortified by the case of ANDERSON KAMBELA MAZOKA AND OTHERS v. LEVY PATRICK MWANAWASA AND OTHERS SCZ/EP/01/02/03/2002 the Supreme Court held as follows:

“on burden of proof, we said in Zulu Vs. Avondale Housing Project: {1982} ZR 172

“There is one observation I wish to make before leaving this subject. Mr. Phiri’s general approach has been to allege that the Respondent had not adduced evidence in support of the allegations in the dismissal letter. I have found that the Respondent did in fact adduce such evidence. In the process however I have also pointed the deficiencies in the Appellant’s own evidence.

It appears that the Appellant is of the view that the burden of proof lay upon the Respondents and it is on this that I would like to say a word. I think that it is accepted that where a Plaintiff alleges that he has been wrongful or unfairly dismissed, as indeed in any other case when he makes any allegation, it is generally for him to prove those allegations. A Plaintiff who has failed to prove his case cannot be entitled to Judgment, whatever may be said of the opponent’s case.”

We humbly submit that it is incompetent to allege that the Honourable Dora Siliya., MP, Minister of Communications and Transport cancelled the Tender awarded to and instead awarded it to Selex Sistemi Integrati as the Zambia National Tender Board which was re-named the Zambia Public Procurement Authority in terms of the provisions of Section 5(1) of THE PUBLIC PROCUREMENT ACT, number 12 of 2008 is a body Corporate which is assigned to the Ministry of Finance and National Planning. The Public Procurement Authority is superintended by the Minister responsible for Finance and National Planning

Article 44(2) (e) of the Constitution of Zambia provides as follows:

“44 (2) Without prejudice to the generality of clause (1), the President may preside over meetings of the Cabinet and shall have the power, subject to this Constitution to-

(e) establish and dissolve such Government Ministries and departments subject to the approval of the National Assembly…”

The National Assembly of Zambia approved a motion for the abolition and the establishment of Government Ministries and Departments established by the President. Your Lordships’ kind attention is invited to the OFFICIAL VERBATIM REPORT OF THE DEBATES OF THE FIRST SESSION OF THE NINTH NATIONAL ASSEMBLY, NO. 120F.

DAILY PARLIAMENTARY DEBATES, Thursday 28th FEBRUARY, 2002 which the Respondent has filed together with these submissions.

Your Lordship’s further attention is invited to the GOVERNMENT GAZETTE number 5312 of the REPUBLIC OF ZAMBIA Published at Lusaka on Thursday the 21st day of September, 2004 as Gazette Notice No. 547 of 2004 governing THE STATUTORY FUNCTIONS, PORTOLIOS AND COMPOSITION OF GOVERNMENT.

Gazette Notice No. 547 of 2004 is filed together with these submissions.

The Honourable Tribunal’s attention is invited to the OFFICIAL VERBATIM REPORT OF THE PARLIAMENTARY DEBATES OF THE FIFTH SESSION OF THE SEVENTH NATIONAL ASSEMBLY – 30th APRIL -22nd MAY, 1996 VOLUME 104

THE THIRD ALLEGATION-THAT HONOURABLE DORA SILIYA., MP IS ALLEGED TO HAVE CLAIMED A 12.5 MILLION KWACHA REFUND FROM THE PETAUKE DISTRICT COUNCIL COMMITTEE FOR TWO (2) HAND PUMPS FOR 2 BOREHOLES IN ONE OF THE WARDS CALLED NYIKA WHEN IN FACR THE HAND PUMPS WERE PROCURED AT 5 MILLION KWACHA.

My Lords, the crux of this allegation is that the Respondent was fraudulently paid the sum of ZMK 12,500,000.00 by the Petauke District Council for the Purchase of and pumps when in actual fact the said pumps only cost the sum of ZMK 5,000,000.00. From the testimony of the witnesses on record it is only the Respondent and RW 2 who assisted the Honourable Tribunal to establish the circumstances that led to the refund of ZMK 12,495,000.00 by the Petauke District Council.

My Lords, RW 2 Mr. Boyd Mboyi stated in his evidence that he proceeded to borrow the sum of ZMK 12,500,000.00 from the Respondent to enable the Petauke District Council to sink two boreholes in Nyika Ward particularly in the showgrounds and Tasala 2 areas. This witness gave an elaborate explanation of how the funds were used and according to his testimony the sum of ZMK 12,500,000.00 was spent as follows:

K 5,964,000.00 on purchase of hand pumps as per exhibit P 27; K 991,025.00 for purchase of fuel for motor vehicles used to collect pumps as per exhibit P 66;

K 4,520,000.00 allowances for drilling crew as per exhibit P 63; K 550,000, allowances for Driver and Handyman as per exhibit P 67; and K470, 000.00 purchase of fuel for Council Secretary as per exhibit P 64.

TOTAL : ZMK 12,495,000.00

My Lords, what is clear is that Respondent’s role in this transaction was merely to advance the Petauke District Council the funds and she did not participate in any way in the manner the funds were applied or even how the Council treated her refund, she did not exert any influence whatsoever. In the circumstances she had no obligation to inquire into the internal procedures of the management of funds by the Council as she was just a lender. We wish to submit that there is no law that imposes a duty to an individual lending a District Council to inquire as to whether resolutions have been passed to approve the borrowing.

In fact, the provisions of section 51 of the Local Government Act, Chapter 281 Volume 16 of the Laws of Zambia offers protection to individuals who lend money to local Authorities. The aforementioned provisions stipulate as follows:

From page 17



“51. A person lending money to a Council shall not be bound to inquire whether the borrowing of the money is or was legal or regular, or whether the money raised was properly applied, and shall not be prejudiced by an illegality or irregularity in the matters aforesaid or by the misapplication of any such money.”

My Lords, we wish to submit that the above captioned statutory provisions of the Law is a restatement of the entrenched company law principle known as the TURQUAND RULE which ahs been elucidated in this Jurisdiction by the case of ZAMBIA BATA SHOE COMPANY LIMIED V. VIN –MAS LIMITED JUDGMENT NO. 4 OF 1994 where the Supreme Court held that:

“The rule in Turquand and the argument followed in the Irvine case related to the doctrine of constructive notice. This is discussed in Palmer’s Company Law (22 Edition) Vol. 1, at page 286, where the author comments that the essence of the doctrine was that, since the memorandum and Articles are public documents and open to public inspection, anyone, whether a shareholder or an outsider, who had dealings with the company, had to be taken to have notice of the contents of those documents, whether he had read them or not. On the same page 286 the author states:

“If applied to its logical conclusion, the doctrine would have been unworkable and would have led to patently unjust results. It was therefore, mitigated by the rule in Royal British Bank v Turquand which provided that third parties who had dealings with the company need not inquire into the regularity of the indoor management but could assume that its requirements had been complied with. Even this solution would have been unacceptable in modern circumstances, had the courts not established the principle that a director, or other officer could bind the company if he had ostensible or apparent authority, even though the board of directors had not endowed him with actual authority. By this circuitous route English and Scottish company law developed a pattern of legal rules which were acceptable to modern practice and worked, on the whole, satisfactorily.””

Further in the case of NATIONAL AIRPORTS CORPORATION LIMITED v REGGIS EPHRAIM ZIMBA AND SAVIOR KONIE (SCZ Judgment No. 34 of 2000) it was held that:

“…The upshot of the argument was that the first respondent must have been aware from the interview what package the appellant company was prepared to offer and that accordingly the former Chairman had no authority to offer the different package which he did allegedly after further representations by the Managing Director. There were many submissions about the Chairman’s alleged want of authority and attempts were made to distinguish the case from the principle and the position discussed in cases like Zambia Bata Shoe Company v Vinmas Limited (1) and the famous Royal British Bank v Turquand (2). The principle in those cases is now confirmed by our Companies Act so that an outsider dealing with a company cannot be concerned with any alleged want of authority when dealing with a representative of appropriate authority or standing for the class or type of transaction…”

Therefore, the Respondent was not obliged to inquire from RW 2, the Council Secretary as to whether he had sought the clearance of the Council or whether the provisions regulating the manner of borrowing a Council can engage in were duly satisfied. From the proceedings of the Tribunal, there wasn’t a single Witness who was called and established that the Respondent actually defrauded the Council of its funds, in fact, the Record will clearly show that she has been underpaid and according to RW 2, the underpayment was attributed to the fact that ZMK 5,000.00 could not be accounted from the invoices, Acquittal forms and other receipts that were produced as evidence of the refund.

THE LAW

My Lords, this tribunal was established pursuant to the provisions of the Parliamentary and Ministerial Code of Conduct Act, chapter 16, Volume 12 of the Laws of Zambia. We wish to submit that from the allegations lodged by the Complainant and the Petitioners; this Honourable Tribunal is being asked to investigate as to whether Part II of the Act has been breached by the Respondent. For ease of reference, we wish to quote the said provisions verbatim:

3. (1) The provisions of this Part shall constitute part of the code of conduct for Members for the purposes of the Constitution, a breach of which results in the vacation of the seat of the Member concerned.

(2) The provisions of this Part, in their application to Ministers and Deputy Ministers, shall constitute part of the code of conduct for Ministers for the purposes of the Constitution.

4. A Member shall be considered to have breached the code of conduct if he knowingly acquires any significant pecuniary advantage, or assists in the acquisition of pecuniary advantage by another person, by-

(a) improperly using or benefiting from information which is obtained in the course of his official duties and which is not generally available to the public;

(b) disclosing any official information to unauthorised persons;

(c) exerting any improper influence in the appointment, promotion, or disciplining or removal of a public officer;

(d) directly or indirectly converting Government property for personal or any other unauthorized use; or

(e) soliciting or accepting transfers of economic benefit, other than- Member not to acquire dishonestly or improperly any pecuniary advantage

(i) benefits of nominal value, including customary hospitality and token gifts;

(ii) gifts from close family members; or

(iii) transfers pursuant to an enforceable property right of the Member or pursuant to a contract for which full value is given.

5. A Member shall not speak in the National Assembly, or in a committee thereof, on a matter in which he has a direct pecuniary interest unless he has disclosed the nature of that interest to the Assembly or Committee.

6. (1) Where a Member has an interest in a contract that is made, or is proposed to be made, by the Government, and has not made a sufficient declaration under subsection (4) in relation to the contract, the Member shall as soon as practicable make a declaration of his interest in relation to the contract, specifying the nature and extent of his interest.

(2) Where-

(a) immediately before the commencement of this Act, a Member has an interest in a contract that has been made by the Government; and

(b) the contract is not completely performed by all parties within thirty days after the commencement of this Act;

the Member shall, within thirty days after the commencement of this Act, declare the interest in accordance with this section.

(3) A declaration for the purposes of this section shall be made to the Chief Justice in writing.

(4) A declaration by a Member that-

(a) states that he has an interest in a specified body corporate or firm;

(b) specifies the nature and extent of the interest;

(c) where the interest is a shareholding or partnership, specifies the proportion of the ownership of the company or firm represented by the shareholding or partnership;

and (d) states that he is to be regarded as interested in any contract which may, after the date of the notice, be made with the Government by that body corporate or firm;

shall be a sufficient declaration of interest in relation to any contract so made unless, at the time the question of confirming or entering into any contract is first taken into consideration by the Government, the extent of his interest in the body corporate or firm is greater than is stated in the declaration.

(5) For the purposes of this section, a Member has an interest in a contract if-



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From page 19



(a) he will derive any material benefit, whether direct or indirect, from the contract; or

(b) one party to the contract is a firm or body corporate and he has a material interest,

whether direct or indirect, in the firm or body corporate.

(6) For the purposes of paragraph (b) of subsection (5), a Member shall not be considered to have a material interest in a body corporate by reason only that-

(a) he holds debentures of the body corporate; or

(b) he holds shares in the body corporate with a total market value of less than the annual emoluments from office of the Member concerned.

(7) A Member shall be considered to have breached the code of conduct if-

(a) he fails, without reasonable cause, to make a declaration required by this section; or

(b) he knowingly makes a declaration that is false or misleading in a material particular.

7. A Member who is subject to section ten shall be considered to have breached the code of conduct if-

(a) he fails, without reasonable cause, to make a declaration required by this section; or

(b) he knowingly makes a declaration that is false or misleading in a material particular.

From the foregoing, it is clear that for the Tribunal to make a finding that Part II of the Act was breached it must be established that the Respondent: gained pecuniary advantage; or improperly used information not generally available to the public; or disclosed sensitive information; or converted Government property for her personal use; or spoke in the National Assembly in a matter which she has an interest without making a declaration; or and

Generally failed to make a declaration in contracts she has an interest in.

My Lords, the evidence on record does not at all reveal any of the aforementioned incidents. It has not been established that the Respondent had any interest in either RP Capital Partners Cayman Islands Limited when she executed the Memorandum of Understanding and in any event, the record clearly shows that there were several companies that had expressed interest in handling the ZAMTEL sale clearly rendering the information thereof as circulating in the Public domain. Therefore, she was not duty bound to make any form of statutory Declaration. No evidence was led to show that the Respondent gained any material or pecuniary advantage in the transaction. In fact, the manner in which the allegation on the Memorandum of Understanding is couched only raises the question as to whether the Attorney-General’s advice was ignored by the Respondent which is denied as the Solicitor-General gave his approval. We submit that the Complaint actually does fall within the ambit of Part III of the Act and we urge the Tribunal not to be swayed by this misplaced allegation and construe Part II of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16, Volume 2 of the Laws of Zambia accordingly. We are fortified in our submission by the case of THE ATTORNEY-GENERAL AND THE MOVEMENT OFR MULTIPARTY DEMOCRACY vs. LEMWANIKA AND OTHERS (1993-94) ZR 164 the Supreme Court held, inter alia, that:

“…Acts of Parliament ought to be construed according to the intention expressed in the acts themselves. If the words of the statute are precise and unambiguous then no more can be necessary to expand these words in their ordinary and natural sense.”

The same applies to the evidence produced in the second and third allegations which we submit does not reveal any misconduct as envisaged in Part II of the Act and with specific reference to the allegation concerning the cancellation of the Tender for the Supply of the Radar equipment for the Lusaka and Livingstone international Airports, we submit that the same merely questions the exercise of Statutory Functions and is not at all related to the provisions of the parliamentary and Ministerial Code of Conduct Act. No evidence was led to show that the Respondent has an interest in either Thales Air Services SA or indeed Selex Sistemi Integrati or that she gained any pecuniary advantage from any of the transactions involving these companies.

My Lords, the three allegations have not been proved in any way even on a balance of probability and we pray that accordingly the Tribunal must proceed to exonerate the Respondent and make the requisite recommendations pursuant to the provisions of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16, Volume 2 of the Laws of Zambia.In his letter dated the 5th day of January, 2009 (P 2), the Learned Attorney-General laments that his legal advice had not been heed. Our research reveals that this might be the first time that the Zambian Judicial System is being invited to pronounce itself on the provisions of Article 54 (3) of the Constitution of Zambia, Chapter 1, Volume 1 of the Laws of Zambia which provide as follows:

“(3) Subject to the other provisions of this Constitution, an agreement, contract, treaty, convention or document by whatever name called, to which Government is a party or in respect of which the Government has an interest, shall not be concluded without the legal advice of the Attorney-General, except in such cases and subject to such conditions as Parliament may by law prescribe.”

This provision was introduced on the Statute Book for the first time by Constitution of Zambia (Amendment) Act, number 18 of 1996.

Pursuant to the Provisions of Article 54(1)(b) of the Constitution of Zambia, the Attorney-General of the Republic of Zambia is the principal legal adviser to the Government i.e. The Executive, legislative and Judiciary. In terms of Article 33 of the Constitution of Zambia Executive power of the Republic of Zambia vests in the President. Article 54(1) and (5) of the Constitution of Zambia stipulates that the Attorney-General shall, subject to ratification by the National Assembly, be appointed by the President, and may be removed from office by the President. Further Article 54(1) (a) of the Constitution of Zambia provides that the Attorney-General shall be an ex – officio member of the Cabinet. Article 50 of the Constitution of Zambia is responsible for advising the President. Article 50 of the Constitution of Zambia provides as follows:

““50. The Cabinet shall formulate the policy of the government and shall be responsible for advising the President with respect to the policy of the Government and with respect to such other matters as may be referred to it by the President.”

Article 54(3) of the Constitution of Zambia does not prescribe sanctions for failure to comply with these provisions. We submit that where the Client in this case the Ministry of Communications and Transport does not comply with the provisions of the Constitution of Zambia and other Statutory provisions then it is incumbent on the Learned Attorney-General to bring that matter to the attention of the President.

Further unlike under PART III of the constitution of Zambia there are not enforcement of protective provisions.

We submit that even in the event that the Minister of Communications of Transport did not heed the advice of the Attorney-General’s Chambers that non – compliance cannot amount to the breach of Part II of the Act by Hon. Dora Siliya., MP, of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16, Volume 2 of the Laws of Zambia.

THE RESPONDENT THEREFORE PRAYS:

That the Complainants have lamentably failed to discharge their burden and standard of proof on all the allegations in the consolidated complaint and that the same be dismissed;

That the Honourable Tribunal do make a finding of fact that the Respondent has not breached Part II of the Parliamentary and Ministerial Code of Conduct Act, Chapter 16, Volume 2 of The Laws of Zambia;

That the Honourable Tribunal doth recommend that the President of the Republic of Zambia should invoke the provisions of Section 16 of the Parliamentary and Ministerial Code of Conduct Act , Chapter 16, Volume 2 of The Laws of Zambia and promulgate Regulations to provide inter alia a threshold sieving mechanism of frivolous and vexatious complaints akin to the leave stage in Judicial Review proceedings and further provide for security for costs etc;

That the Honourable Tribunal doth recommend that an amendment to the Official Oaths Act , Chapter 5, Volume 2 , of the Laws of Zambia be effected to provide for the criminalization of public officers who communicate official information to unauthorised persons;

That the Honourable Tribunal doth recommend that the Secretary to the Cabinet be directed to issue an administrative circular to govern the preparation of legal opinions to include mode of receipt of instructions, consultative process, execution and retention of signed copies to be archived; and

That the Honourable Tribunal doth recommend that the Attorney General’s be strengthened and streamlined to provide for a policing and monitoring mechanism of legal opinion rendered by modus operandi of constitutional amendment.

We are most obliged;

Dated at Lusaka this --------------------------- day of --------------------------- 2009.

Per: Messrs Eric Silwamba & Company
11 Matandani Close
Off Lubuto Road
Rhodes Park
LUSAKA

Messrs AKM Legal Practitioners
4 Alex Masala Close
Off Chaholi Road
P.O. Box 30134
LUSAKA
ADVOCATES FOR THE RRESPONDENT

Labels: COURTS, DORA SILIYA

posted by MrK @ 1:44 PM