CIVIL Rights activist Brebner Changala has requested the Chief Justice to have the Post Newspaper Liquidation and Savenda versus Stanbic bank judgements re-visited.
In his letter dated July 4, 2018 to “restate public anger and resentment over the two court decisions”, Changala told Chief Justice Irene Mambilima that the injustice creeping into the judicial offices cannot remain unrestrained and can never or ought never to be insulated by judges taking refuge or shelter by invoking contempt of court proceedings against those whose fundamental human rights are violated.
“My Lady, it will be flying in the teeth of my passion, that is fighting for fundamental human rights in my motherland, if I cannot humbly request you to have these two if not more judgments revisited. My Lady, property rights must be given effect and the only way is to revisit Post Newspaper and Savenda decisions if the judiciary has to starve off public anger and resentment. I speak not for myself but for the Zambian citizen that includes your Ladyship,” Changala said.
He further said that the Chief Justice who wore two hats, that of a professional and administrative, had suffered a monumental setback because of the incompetence of majority of the judges.
Changala said as head of the judiciary she was to blame for the setback.
“My Lady, I understand that as a Chief Justice you wear two hats. The first one being that of a professional and the other administrative. It’s undeniable fact that as a professional you have done exceedingly well aided by your excellent academic credentials. I have in mind the quality of your Masters degree. It’s no mean achievement to have a merit from London University. My Lady, on the administrative side, you have suffered a monumental setback because of the incompetence of the majority of your judges, which obviously being head of the judiciary you are blamed for. There has been no time in our motherland’s history when such anger and resentment has been exhibited by the cross-section of our society,” Changala said.
He further noted that in developed societies, matters of such nature could not be insulated by procedural technicalities.
Changala told the Chief Justice that it was her earnest duty to ensure that justice was the only sole currency of trade for the judiciary.
“When you are faced with an extra-ordinary situation like we do now, you employ extra-ordinary measures in order to achieve or attain a just and fair decision. My Lady, Your Brother in Kenya, Chief Justice Maraga has been calling case files whenever he smells injustice or corruption in any matter. And his has the full support of the Law Society. My Lady, it’s your solemn duty to ensure that justice is the only sole currency of trade for the judiciary. My Lady, there ought not be any counterfeit justice or judges,” Changala said.
He also said taking over the company and property without hearing the victims violated the fundamental rights and freedoms of Post Newspaper shareholders.
He said the Chief Justice, as head of the Judiciary, should have recalled the file when the decision regarding the Post Newspaper was made by the High court.
“In the case of the Post Newspapers; My Lady, can you surely take-over a company and property without any semblance of hearing the victims? A pernicious order that violated the fundamental rights and freedom of the stakeholders. Even a school child is heard before he or she is punished. My Lady, when this reckless decision to liquidate The Post was made by the High Court judge (Sunday Nkonde), it was imperative for you as the head of the Judiciary to call for the file and allocate it to an independent judge because the only reasonable conclusion is or was that the High Court Judge had interest in The Post matter. My Lady, It’s undeniable conclusion that The Post closure was animated by political reasons,” Changala said adding; “My Lady, it’s important to take note of how the High Court can liquidate a viable and running concern (Post) on account of 5 (five) aggrieved workers without any known labour dispute. My Lady, that was total abuse of office on the part of the judge. The Post Newspapers was liquidated in the most outrageous and bizarre legal manner bordering on criminality.”
Changala further wondered what happened to the Savenda judgment in the Supreme Court following the reasonable manner in which the High Court determined all issues before it.
“My Lady, the case of Savenda, the High Court determined all issues before it in a reasoned fashion, based on undisputed evidence. My Lady, the questions that not only me as a layman, businessman and a former banker but various citizens, including academics are asking is what happened to Savenda judgment in the Supreme Court? Who owed a higher duty of care; a banker who is a professional and a customer who only has to act in good faith? Obviously, it’s the banker.The Court found that Stanbic Bank broke the law by not complying with the mandatory provision to inform the customer before reporting him to CRB. My Lady, can there be a legal wrong without sanction? Obviously not My Lady. The Court failed to acknowledge the commercial damages suffered by Savenda by its failure to raise money in the financial market and external funders because of the illegal CRB report by Stanbic Bank.”
Changala said it was intellectually and commonsensically wrong to fail to understand that any business rely on the banks to raise capital and if one black-stained them, they lose acknowledged by the High Court and yet inappropriately misunderstood and rejected by both the Court of Appeal and Supreme Court.
“My Lady, Savenda was partially successful in the Court of Appeal and partially in the Supreme Court when these courts ruled that Stanbic Bank was negligent and did not comply with the mandatory provisions to notify Savenda and yet in computing costs Savenda was wholly condemned like the action was frivolous and vexatious. My Lady, It’s authorship of reckless judgments which lead to the conception that money has exchanged hands even if it were not so, especially when a judgment is in favour of the powerful. The judge ought to explain his reasons and the law in very clear language as Dr Hamalengwa writes -(All it needs are men and women of steely character who speak through well reasoned and crafted judgments that are free from bias, incompetence but based on evidence). Dr Hamalengwa goes on farther and states that sometimes the judiciary suffer from self-inflicted wounds. Take the Savenda case for example. Stanbic acknowledged that their system did not capture the installments paid by Savenda and promised to correct that oversight but never did. It was on that basis that the High Court trial judge found in favour of Savenda. One can quarrel with the amounts awarded but not the reasoning. But that important fact disappeared in the Supreme Court of Zambia analysis. And analyses were expected to be silent on this. That judges need not be defended because they defend themselves by the quality of their judgments, rulings and orders,” Changala said.
“My Lady, there have been calls from LAZ and the Judiciary that those not satisfied with judgments can appeal or apply for review or motion. What these calls are oblivious of is who pays the hefty legal fees to perfect a reckless judgment? It’s the appellant or applicant for review or motion. My Lady, money is property, these incompetent judges will be depriving the victim constructively of his property, whose deprivation is a violation of a fundamental human right of which your articulation My Lady in Resident Doctor Association Case is admirable. In this one matter you contributed to the maintenance and sustenance of human rights in Zambia. Personally, as civil rights activists, I have the passion to fight injustice regardless of the victim. It can be the disgraced, the exalted, the rich or poor or indeed the judges. The injustice creeping into the judicial offices cannot remain unrestrained and can never or ought never to be insulated by Judges taking refuge or shelter by invoking contempt of court proceedings against those whose fundamental human rights violated,” said Changala.