Friday, December 14, 2012

Court reserves ruling on preliminary issues in Nevers Kachingwe, case

Court reserves ruling on preliminary issues in Nevers Kachingwe, case
By Namatama Mundia
Fri 14 Dec. 2012, 14:00 CAT

LUSAKA High Court judge in-charge Jane Kabuka yesterday reserved ruling on preliminary issues in the matter where expelled MMD national secretary Richard Kachingwe has challenged embattled party president Nevers Mumba's continuation as MMD leader to December 28, 2012.

This is in a case where Maj Kachingwe in his capacity as MMD national secretary sought an injunction to restrain Mumba from performing his duties as MMD president on the ground that he was unqualified.

When the matter came up for hearing of preliminary issues raised by Mumba, through his lawyer Makebi Zulu, the court heard that Maj Kachingwe had not sued in his own behalf but for and on behalf of the MMD, adding that the latter was expelled from the party.

He said there was no authority or indeed a resolution by any member of the National Executive Committee (NEC) for Maj Kachingwe to commence the proceedings.

Zulu added that the proceedings in court were not sanctioned, consented to or approved by NEC and he had been instructed to discontinue the matter by MMD, on whose behalf proceedings had purportedly been brought.
Zulu urged the court to dismiss the matter based on irregularity and asked for costs either from Maj Kachingwe or his advocates.

But Maj Kachingwe's lawyer Hobday Kabwe said the application for preliminary issues was not appropriate for determination of the matter because the affidavit in support as read together with the one in opposition and in reply raised a wide number of very controversial issues.
He said the question whether Maj Kachingwe was no longer a member of the MMD remained unresolved.

Kabwe said it was essential that there should be no dispute of fact on disposal of own action under the provisions of order 14A which the defendant and his advocates wished the court to dispose of the entire case on an alleged point of law.
He said Maj Kachingwe was the chief executive officer of the party who did things on behalf of the NEC as their secretary and made decisions on their behalf.

Kabwe said Maj Kachingwe sued in his capacity as national secretary of the MMD and requested that until the matters that are squarely before the court are determined, he still remained in the same capacity that he had commenced the action.
He said the application must fail with costs because it did not attain the condition precedent for it to succeed.

In reply, Zulu said the insistence by Maj Kachingwe that he was still national secretary did not take away what had been filed to show that there was an expulsion and an instruction to discontinue the matter by the party, on whose behalf he purported to bring this action.
After hearing submissions from both parties, judge Kabuka reserved ruling to December 28, 2012.


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