The People v Ronald Kaoma Chitotela SSPD/034/2022

In a recent decision, Magistrate Jennipher Bwalya sitting in Zambia\u27s Economic and Financial Crimes Court (EFCC) discharged former tourism minister Ronald Chitotela in a case he was arrested for, on two counts of possessing property reasonably suspected to be proceeds of crime. Chitotela\u27s arrest had been at the hands of the Anti-Corruption Commission (ACC). In 2019, the ACC had signed a consent settlement with Chitotela which, apparently, gave the EFCC a basis for discharging Chitotela. Chitotela raised a preliminary issue before the EFCC, asking Lusaka magistrate Jennipher Bwalya to dismiss the matter he was recently arrested for, arguing that, under Article 18 of the Constitution, he cannot be tried for the same offence twice. He also alluded to the principle of ‘double jeopardy’. The magistrate agreed. It is our opinion that her decision was wrong in law. It is especially important to point out that Chitotela’s request was made at a preliminary stage and, therefore, as the magistrate herself pointed out, ‘the view I have taken does not in any way amount to an acquittal but a discharge of the accused.’ Since she did not elaborate on the distinction she was making in this context between ‘acquittal and discharge’, it is not clear what she intended the effect of her judgment to be

Toyota Motors South Africa (Pty) Ltd v NUMSA obo Njini and Others (D 692/19 [2022] ZALCD 12 (14 July 2022)

This was an application in terms of s 145 of the Labour Relations Act 66 of 1966. Toyota sought to have the decision of the CCMA, ordering the re-instatement of Mr Lungile Njini - then an employee of Toyota for 17 years – be set aside, and that his dismissal be declared fair. The case represents an interesting interplay between the quest for discipline and productivity in the workplace and the right to exercise one’s constitutional right to culture as provided for in s 30 of the Constitution of the Republic of South Africa Act. This note is divided into four parts: (1) the facts of the case; (2) the award of CCMA arbitrator; (3) the legal question; (4) the judgment of the Labour Court; (5) the discussion, and (6) the conclusion

Finance Bank and Rajan Mahtani v Simataa Simataa SCZ Appeal No. 11/2017

The employer settled an employment dispute with its former employee out of court. They bound their former employee to a settlement agreement that he would not speak badly of the employer or testify against them in future. He subsequently testified against his former employer and the employer sued for a refund of the settlement amount. The court was of the view that only nominal damages (equivalent to K500) would be awarded merely to show that there had been a breach of the agreement not to testify. However, the amount was limited to a small sum of nominal damages as loss or damage was not proved. As the court put it, pecuniary compensation intended to put the innocent party in the position he would have been in had the contract not been breached could not be awarded, as there was no loss financially or otherwise proved to have been suffered by the appellants because of the respondent\u27s breach of the settlement agreement. This case will prove to be one of, if not the leading case on the award of damages under the law of contract. The case brilliantly outlines the purpose of damages, the interests protected and the way damages should be measured and calculated

Torn between Two Pandemics: Poverty Pandemic and Coronavirus Pandemic in Nigeria

The wave of coronavirus pandemic that hit the world coincides with Nigeria’s struggles with her newly attained position as the poverty capital of the world. This paper argues that prevalent poverty is a pandemic that the world has learnt to live with, and that Nigeria is struggling to overcome. The agony of poverty in the country coupled with the coronavirus pandemic subjects the country to a quandary of a dual-pandemic scourge. The paper relies on secondary data and adopts a descriptive and analytic approach. It concludes that multidimensional poverty in Nigeria is pervasive and has become deepened by the pandemic which led to a shutdown of economic activities in various countries of the world. The paper recommends that the government should commit to schemes, policies and projects that aim at reducing [multidimensional] poverty to avoid the rise of new poor as well as be proactive in treating poverty as a pandemic capable of plunging the country into an abyss of underdevelopment

Emporium Fresh Foods Limited t/a Food Lovers Market and Gourment Market Limited v. Kapya Chisanga CAZ Appeal No. 44/2021

The Respondent, Mr. Kapya Chisanga was alleged to have disclosed information to people, without authority. Following this, he was summarily dismissed. The Respondent challenged his dismissal in the High Court alleging that his dismissal was wrongful, unlawful, and unfair. The High Court held that the Respondent’s dismissal was wrongful, unlawful, and unfair, and granted 24 months salary as damages. The employer subsequently appealed the matter to the Court of Appeal for determination. The Court of Appeal held that before an employer summarily dismisses an employee, the employee must be subject to a due process. According to the Court of Appeal, because of section 52(3) of the Employment Code Act which imposes an obligation on all employers to afford employees charged with misconduct or poor performance with an opportunity to be heard, an employer can no longer summarily dismiss an employee without affording them a chance to be respond

Zambia Revenue Authority v Matalloy Company Limited SCZ/08/016/2020

Justice Mumba Malila supplements the jurisprudence on tax law in this judgment that deals with the obligation of a taxpayer in tax cases. The case focused on the responsibility of taxpayers to prove their eligibility for a tax credit from the Zambia Revenue Authority. Briefly, the case also discusses the concept of tax credits, and their use by taxpayers

Livingstone Motor Assemblers Limited (In Receivership) v Indeco Estates Development Company and Others (Supreme Court Judgment No. 1 of 2013)

The appeal stems from a winding-up petition filed in the High Court by the respondents seeking an order to commence winding-up proceedings as well as the appointment of a liquidator in respect of the appellant, Livingstone Motor Assemblers Limited. The latter was heavily indebted to several creditors, including the respondents and the Zambia National Commercial Bank (ZANACO) which had commenced receivership proceedings and appointed a receiver/manager extra judiciously, prior to the High Court granting the winding-up order. Disgruntled by the grant of the order, the receiver/manager made an application to vary it so that only he would retain possession of the appellant’s assets for purposes of discharging his functions as receiver/manager in favour of the bank. That application thus culminated in an appeal lodged in the Supreme Court to review a ruling passed by the High Court sometime in October 1995, to the effect that the making of a winding-up order in respect of a company already undergoing receivership, “does not vest the company’s assets under his custody and control to the exclusion of the liquidator who is in fact the legally authorized person to administer the affairs of a wound up company.” The Supreme Court in this case had an opportunity to review the High Court’s order which was at the heart of contention in this matter. Simply put, who between the two external managers superintending over two varying insolvency proceedings, should have preferential custody and control of the company’s assets? The court thus held that where a company is undergoing receivership and liquidation simultaneously, the receiver shall have primary custody and control of all the charged assets, deal with the same to the satisfaction of the debt owed to his secured creditor and surrender the residue of the assets (if any) to the liquidator for the benefit of the unsecured creditors

Chapter One Foundation Limited and 2 Others v The Attorney General 2020/CCZ/0013 [2021]

If Zambia is to achieve gender parity and the representation of youth and persons with disabilities in politics, the Constitutional Court must be committed to: a) interpreting the Constitution in a manner which aligns with the principles and values set out in the Constitution, and b) Constitutional Court needs to offer extensive well-reasoned analysis of the Constitution within context of the laws’ purpose