Maravi

Malila defends Sata on Zamtel

Malila defends Sata on Zamtel
By Maluba Jere
Fri 03 Feb. 2012, 14:01 CAT

ATTORNEY General Mumba Malila has submitted that the decision taken by President Michael Sata to compulsorily acquire 75 per cent shareholding in Zamtel does not fall within the parameters of unreasonableness and cannot be challenged.

He has asked the Lusaka High Court to dismiss with costs an action by Lap Green Networks, the former owners of Zamtel, in which they have asked the court to order for the reversal of the government's compulsory acquisition of 75 per cent shareholding saying the action is prematurely before the court.

Libyan-owned Lap GreenN has sued the Zambian government seeking an order of mandamus to compel the government to reverse its action of unilaterally taking away 75 percent shares in Zamtel which it said belonged to it.

This is in a case where Lap Green had asked the court for an order of certiorari to remove into High Court for Zambia to quash the decision by the government to unilaterally and unlawful reverse the sale of 75 per cent share in Zamtel to Lap Green.

Lap Green contends that the move by government was unfair, illegal and that the investigation committee set up to investigate the sale of share in Zamtel which government based its decision to reverse the shareholding was not binding and was unlawful because the said committee did not operate in accordance with the inquiries Act.

But Malila in his skeleton arguments in opposition to summons for leave to apply for Judicial Review pursuant to Order 53 of the Rules of the Supreme Court (White Book) 1999 edition, argued that the decision by the government to compulsorily acquire 75 per cent shareholding in Zamtel should be set aside because it was legal and correctly done within the law.

He said Lap Green's grounds had no basis at law and that the government decision to acquire the shares was legal, adding that it met all relevant procedural requirements.

He further submitted that the applicant had not placed before the court sufficient grounds upon which the court could inquire into the matter because it had not exhausted administrative processes for compensation under the lands acquisition Act chapter 189 of the Laws of Zambia.

"There is nothing exceptional about this case which would justify the applicant to commence his actions without exhausting the procedure provided for under Section 5 (2) and 11 of the Act," he said.

"Our contention is that this is an attempt by the appellant to disrupt the administrative process. Section 11 of the Act is explicit in that the claim by an interested party to be submitted to the minister is not limited to compensation claims but the other claims as well. It is only after such procedure has been exhausted that the applicant can commence proceedings before this court. In short, this action is prematurely before court and should be dismissed with costs."

Malila further stated that the decision by the government to compulsory acquire 75 percent shareholding in Zamtel falls within a species of actions called ‘Eminent Dormain' as such the court should not entertain the applicant's demands.

"Government followed the right procedure and the applicant has not stated any ground upon which the government can be faulted as regards the procedure laid out in the Act," he said.

"In fact my Lord, it is the applicant that has rushed to court without first exhausting all the procedures laid down in the Act which requires claimants to lodge their claims with the minister and present any claims to court only within six weeks after publication of the notice in the gazette as provided in section 11 of the Act.

And Judge Albert Wood who is presiding over the matter has ordered Lap Green to commence its action before the general registry and not with the commercial saying the matter was not of business nature.

Judge Wood stated that the matter was about the review of the decision making process rather than a review of the merits of a decision and that it could not possibly be commercial nature even though it may affect a commercial transaction.

This was after the state sought the court's guidance on whether LapGreen was correct to commence its action before the commercial registry.

Solicitor General Musa Mwenye submitted that the proceedings before court were for judicial review that emanated entirely from the decision of the government to exercise statutory powers under the Lands Acquisition Act Cap 189 of the Laws of Zambia.

But lawyer for Lap Green Vincent Malambo said what the state were seeking was shares in a commercial entity which shares were procured in all respects in the manner of commerce.

Labels: ATTORNEY GENERAL, LAP GREEN, MUMBA MALILA, ZAMTEL

posted by MrK @ 3:10 PM