Patriotic Front (PF) secretary-general Wynter Kabimba has been ordered to pay K6 billion within seven days following his latest court loss.
On Tuesday, a Lusaka High Court dismissed with costs a case in which Kabimba wanted the court to compel the Zambia Revenue Authority (ZRA) to assess and charge duty payable on all MMD campaign materials.
Kabimba also asked the court to order the Drug Enforcement Commission (DEC) to investigate and disclose the MMD’s source of money used to buy campaign materials.
Lusaka High Court Judge Florence Lengalenga dismissed the case on September 13 for irregularity as it was not properly before court. This was when she ruled on an application by the ZRA, MMD and the Attorney General to raise preliminary issues.
ZRA lawyer Arthur Sike submitted that Mr Kabimba’s action was irregularly before court because he did not follow procedure laid down in section 164 of the Customs and Excise Act, Cap 322 of the Laws of Zambia.
Mr Sike told the court that Mr Kabimba’s failure to give ZRA a one-month notice required by law before commencing the action is an irregularity which cannot be cured by the court through exercise of its discretion or by amendment.
He said such failure warrants the dismissal of the writ of summons and subsequent proceedings.
And the MMD argued through its lawyers Eric Silwamba and Professor Patrick Mvunga that Mr Kabimba lacks the requisite locus standi (legal interest) in its tax affairs and any publication or disclosure of any information concerning the ruling party’s taxes is not allowed by provisions of section 21 of the ZRA Act Cap 321 of the Laws of Zambia.
“The originating process filed by the plaintiff (Mr Kabimba) is irregular, misconceived and an abuse of the court process as it is a veiled attempt at instituting criminal proceedings against the third defendant (MMD) contrary to provisions of section 90 of the Criminal Procedure Code…
“The originating process is an abuse of the court process as it is designed to deprive the third defendant of its right to distribute its election literature and campaign freely and in a fair manner, as provided for by Regulation 5 of the Electoral (Code of Conduct) Regulation 2011, Statutory Instrument number 52 of 2011,” the submissions read in part.
Ruling on the defendants’ application on September 13, Ms Justice Lengalenga said she is satisfied that section 164(1) of the Customs and Excise Act is a mandatory provision which Mr Kabimba cannot avoid by alleging that the piece of legislation is discriminatory and offends Article 23 of the Constitution.
“In the absence of proof of requisite notice having been given or served on the first defendant (ZRA) as provided by section 164 (1) of the Act, I am inclined to agree and I do agree with the defendants’ submission that the irregularity cannot be cured by the court exercising its discretion or by way of amendment,” she said.
Ms Justice Lengalenga said she is satisfied that constitutional issues raised by Mr Kabimba’s lawyer Abraham Mwansa have to be brought to court through a petition, as prescribed by law, and this is supported by precedents of decided cases.
She agreed with Prof Mvunga that the court order Mr Kabimba sought for DEC to investigate and disclose the MMD’s source of campaign funds is not tenable is unusual and the court has no jurisdiction to order such an investigation.
Ms Justice Lengalenga said such an order can amount to interference in the functions of the DEC.
“Further, since there is no law in existence which requires a political party to disclose its income and source, I accordingly find that there is no cause of action in relation to this relief. As for the relief relating to the injunction sought against the third defendant, I find it unsustainable on account of section 164 (1) of the Customs and Excise Act whose noncompliance by the plaintiff is fatal to the action and warrants its dismissal for irregularity.
“In the circumstances, therefore, and for the reasons stated, I allow the first preliminary issue raised by the first and third defendants in relation to section 164 (1) of the Customs and Excise Act, Cap 322 of the Laws of Zambia and accordingly dismiss the plaintiff’s action for irregularity as it is not properly before this court,” she said.
On Mr Kabimba’s prayer to the court to interpret section 164(1) of the Customs and Excise Act, Ms Justice Lengalenga said there is no need for such interpretation as the Act is clear in its meaning and intention for anyone wishing to sue the ZRA to give a one-month notice.
On his request for the court to strike down section 164 (1) of the Customs and Excise Act for allegedly being unconstitutional, she said there are certain prerequisites that have to be put in place before the court can entertain constitutional arguments.
Following the dismissal of the case by the high court, the defence lawyers have given Kabimba a bill which he must settle within seven days since he took the case to court in his own capacity.