Constitutional Court of Zambia - 2018 June

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10 judgments

Citation	Judgment date
June 2018
Hakainde Hichilema and Anor v Edgar Chagwa Lungu and Anor (2016/CC/0033) [2018] ZMCC 268 (29 June 2018) An appeal from a single judge must comply with Order 59 RSC; failure to file required documents renders summons incompetent. Constitutional Court procedure – appeals from a single judge to the full Court – Order 1 CCR refers to Order 59 RSC; Order 59 Rule 14(12) – renewed application by summons; required documents (summons, order below, affidavit in support) – necessity of skeleton arguments/heads of argument – late filing/competence – expungement of irregular record; costs.	29 June 2018
People v Patents and Companies Registration Agency and Another (3 of 2017) [2018] ZMCC 250 (28 June 2018) The leave requirement for judicial review is valid; Article 118(2)(e) does not abolish the leave procedure. + Constitutional law — Article 118(2)(e) — ‘‘undue regard to procedural technicalities’’ — does not abolish established procedures + Civil procedure — Judicial review — leave requirement (Order 53 RSC) — both procedural and substantive + Jurisdiction — Article 134 — High Court’s original jurisdiction exercisable subject to law and procedure + Applicability of foreign practice — Order 53 forms part of Zambian law via Article 7(e) and Section 10 High Court Act + Discharge of leave — ex parte leave may be set aside where law permits and substantive failure is shown	28 June 2018
Shakafuswa and Another v Attorney General and Another (5 of 2018) [2018] ZMCC 17 (22 June 2018) A serving ward councillor cannot validly contest a directly elected mayoral seat without triggering Article 157(3)'s bar. Constitutional interpretation — mayoral by-election — eligibility of ward-based councillor — distinction between mayor and ward councillor — Article 157(3) resignation/vacation bar — direct election of mayor — ripeness doctrine.	22 June 2018
Herbert Shabula v Monde (CC/A 32 of 2016) [2018] ZMCC 261 (20 June 2018) Court finds campaign misconduct attributable to the appellant but insufficient proof it prevented the majority, so nullification reversed. Election law – Electoral Process Act s.97(2)(a)(ii) – Electoral Code para.15(1)(a),(c) – attribution by knowledge/consent/approval – defamatory statements and incitement to violence – requirement that misconduct be widespread to have prevented or may have prevented majority of voters – elevated standard of proof in election petitions – costs discretion.	20 June 2018
Shabula v Monde (Appeal 13 of 2016) [2018] ZMCC 16 (20 June 2018) Misconduct proved and attributable to the candidate, but lack of proof it affected the majority; nullification reversed, candidate reinstated. Election law – Electoral Process Act s.97(2)(a) – Electoral Code para 15(1)(a) and (c) – misconduct by third party attributable to candidate by knowledge/consent – defamation allegations – requirement that misconduct be widespread to have prevented majority of voters – elevated standard of proof in election petitions – costs discretionary.	20 June 2018
Subulwa v Mandandi (Appeal 18 of 2016) [2018] ZMCC 15 (14 June 2018) Character assassination can ground nullification, but nullification requires proof it was widespread and altered voters' choice. Electoral law; section 97(2)(a) Electoral Process Act; "other misconduct" includes character assassination; defamatory and inflammatory campaign statements; standard of proof and corroboration in election petitions; requirement that misconduct be widespread to affect majority choice; appellate review of factual findings.	14 June 2018
Zambia National Commercial Bank PLC v Musonda and Others (4 of 2017) [2018] ZMCC 12 (13 June 2018) Transitional provisions preserve Industrial Relations Court Rules until Parliament prescribes procedures for the High Court division. Constitutional law – Article 133(2) – Industrial Relations Court as High Court division – Article 120(3)(a),(b) prescribing processes – transitional provision s6(1) of Constitution of Zambia (Amendment) Act No.1 of 2016 – Interpretation and General Provisions Act s15 – applicability of Industrial Relations Court Rules (SI No.206 of 1974) pending legislation.	13 June 2018
Zambia National Commercial Bank PLC v Musonda and Others (4 of 2017) [2018] ZMCC 13 (13 June 2018) Until Parliament prescribes new rules under Article 120(3), existing Industrial Relations Court Rules govern the division's procedure. Constitutional law – division of High Court – Article 133(2) – processes and procedures of specialised divisions to be prescribed by Act of Parliament under Article 120(3) – transitional application of existing laws under section 6(1) of the Constitution of Zambia (Amendment) Act No.1 of 2016 – statutory instruments preserved by Interpretation and General Provisions Act s.15 – Industrial Relations Court Rules (SI No. 206 of 1974) remain applicable pending legislation.	13 June 2018
Zambia National Commercial Bank PLC v Musonda and Others (4 of 2017) [2018] ZMCC 14 (13 June 2018) Industrial Relations Court Rules remain applicable to the IRC Division until Parliament prescribes new rules. Constitutional law – divisions of the High Court – Industrial Relations Court Division – applicability of Industrial Relations Court Rules (SI No.206 of 1974) – transitional provisions (s6(1) Constitution of Zambia (Amendment) Act No.1 of 2016) – preservation of statutory instruments (Interpretation and General Provisions Act s15) – Article 120(3)(a),(b) requirement for Parliament to prescribe processes and procedures.	13 June 2018
Austin Liato v Sitwala (CC/A 36 of 2016) [2018] ZMCC 258 (8 June 2018)	8 June 2018