LUSAKA High Court judge Charles Kajimanga has reserved ruling in a matter where President Rupiah Banda through his lawyer Christopher Mundia instituted contempt proceedings against The Post.
Judge Kajimanga reserved ruling in the matter to July 9 following an application by Post Editor Fred Mmembe’s lawyers for leave to have President Banda come to court to be cross-examined on the contents of his affidavit evidence.
This is in a matter where President Banda instituted contempt proceedings against The Post. On September 26, 2008, President Banda, through his lawyer Mundia filed a writ of summons and a statement of claim in the High Court seeking damages for alleged defamation by The Post.
Simultaneously, with the documents in question, President Banda applied for an ex parte order for interlocutory injunction restraining The Post from publishing libelous words against him in their editorials and reports.
The ex parte order was granted on September 27, 2008 and judge Kajimanga set October 3, 2008 for the determination of the application for an interlocutory injunction inter parte.
On September 28 and 29, 2008, The Post allegedly published articles that President Banda thought were highly defamatory.
The defamatory materials according to President Banda also included an editorial/opinion, which he said was a total disregard of the ex parte order granted by the court earlier on. President Banda then filed summons for leave to commence contempt proceedings pursuant to Order 52 rule 2 of the Supreme Court Rules.
And Judge Kajimanga reserved his ruling.
Defence Lawyer George Chisanga made an application following an observation by the Supreme Court on October 27, 2009 that the defendant’s lawyers would have an opportunity to cross-examine the applicant (President Banda) at the hearing of the contempt proceedings.
“We are asking the court for leave to get Mr Banda to come to court and be cross-examined on whether the court can make a decision on whether or not to commit Fred Mmembe to prison or to punish him in any way,” he said.
Chisanga said his application means that President Banda would have to stand in the witness box to be cross-examined by the defence.
But Mundia objected to the application arguing that President Banda has a right to rely on his affidavit evidence without necessarily coming to court.
He said to try to tell the court that affidavit evidence can not be used is a total misunderstanding of the Supreme Court judgment.
He prayed that the application for leave be rejected because it would delay the due process of law in the matter and if anything, it is the applicant who is prejudiced.
Mundia said the applicant has continued to be prejudiced as if there is no law.
“May the application be dismissed and we proceed with the main matter, justice delayed is justice denied. The case started in 2008 and we pray that the matter continues,” he said.
And Mundia has submitted that since the grant of injunction on September 27, 2008, the defendant has behaved and continues to behave with impunity as if he is above the law.
Mundia stated that in the article of September 28, 2008, the defendant accused the plaintiff of dishing out sugar and mealie meal like a sugar daddy to the electorate and that he would only survive criticism if he conducted clean and honest campaigns.
Mundia submitted that for the purposes of emphasis, the order of interlocutory injunction was distinct, clear in its substances and in the language used.
“It is being violated with impunity and it has continued to be violated by the defendant almost on a daily basis, a situation which is highly frightening as the defendant is using its worldwide coverage to destroy the plaintiff seeking refuge and protection through the injunction issued by this court,” submitted Mundia.