THE Livingstone High Court has granted an application by lawyers representing Tandabale Marketeers Co-operative Society to commence contempt of court proceedings against Minister of Local Government and Housing, Sylvia Masebo for allegedly willfully disregarding a court order.
The lawyers had applied for leave to issue an order of committal of contempt of court against Ms Masebo for allegedly willfully disregarding an injunction granted by the court on June 12, 2008.
This is in a case in which the Livingstone High Court granted an injunction against the Livingstone City Council, which had ordered the Tandabale marketeers to vacate their premises within 24 hours.
The court granted the injunction on June 12, 2008 restraining anyone from interfering, disrupting or destroying the Tandabale business premises or any property or properties belonging to them.
However, when Ms Masebo visited the market on July 22, 2008, she ignored the court injunction and gave the marketeers a 24-hour ultimatum in which to vacate the market.
She said she was coming in as minister and had nothing to do with the order of interim injunction which was granted to the marketeers by the court.
In their submission, Mak Partners, who are representing the marketeers argued that there was an attempt by Ms Masebo to use the State Proceedings Act as an excuse to disobey court orders at will.
The lawyers stated that should the court allow the excuses under the cover of the State Proceedings Act, the court would be setting a dangerous precedent where public officers under the cover of the Act, would disobey court orders at will.
They urged the court to grant their application to commence contempt of court proceedings against Ms Masebo.
In response, the Solicitor General, Dominic Sichinga, however, maintained that Ms Masebo was a public officer, and her powers were not tied to those of the council and could not be gagged by the injunction and that the council was merely an agent while she, as minister, was the principal.
Mr Sichinga stated that Ms Masebo was acting for the purpose of good order, for the public good and for purposes of following the law and she did not willfully disregard the court order and asked the court to dismiss the application by the marketeers’ lawyers.
In passing ruling in the Livingstone High Court chambers yesterday, Justice Elizabeth Muyovwe said that the proceedings were outside the State Proceedings Act because the action was against the defendant, which was a local authority.
She argued that the submission by the solicitor general’s office that Ms Masebo, as minister, could not be gagged by the injunction, was misconceived and if acceded to, could cause confusion and allow anarchy.
“The proper position is that an order of the court, such as the one made on June 12, 2008 is to be respected by all including public officers. This is why the order covers the defendant and their agents, servants or whosoever,” Justice Muyovwe said.
“As I have stated, an order of the court must be respected by all and the claim by the minister that the injunction does not apply to her is a misconception.
“It appears the minister, on seeing that the defendant failed to move the plaintiffs from the trading area, following the order made by the court, decided to use her ministerial powers to take the very action which the court had restrained the council, its agents, servants or whosoever not to take.
“This is unacceptable and amounts to interfering with court proceedings and shows a willful disregard of the court injunction,” Justice Muyovwe said.
She explained that if the situation like that would be allowed, it would cause injustice and render any injunction null and void as public officers would disregard court injunctions and court orders under the guise of the State Proceedings Act.
“I do not believe that the State Proceedings Act was meant to protect public officers who decide to willfully disobey or disregard court orders. The minister should have allowed the law to take its course. She knew that the matter was in court hence the reason why she should have exercised restraint and caution in the manner in which she involved herself,” she said.
“I grant the application by the plaintiffs and I grant leave to the plaintiffs to apply for committal proceedings against Hon. Sylvia Masebo. Costs to the plaintiffs to be taxed in default of agreement,” Justice Muyovwe said.
In another ruling on an application by the State for non-joinder of a party, Justice Muyovwe denied the application by the State to be joined as a party in the matter.
The solicitor general’s office had applied to allow the State to be involved in the case as the matter had wide public interest and that it would be in the interest of justice for the State to be joined as a party and that if the State is involved, it will not prejudice the parties.
Lawyers for the plaintiffs urged the court to dismiss the application urging the State to declare its interest in the case as the case was a civil one. The lawyers accused the State of wanting to derail justice.
“The State wants to be joined to these proceedings in order to use the State Proceedings Act to its advantage. The action is against Livingstone City Council, which is capable of defending itself and does not need the help of the State. The State cannot get involved in arguments over the injunction as they are not party to the proceedings,” Justice Muyovwe said.
[Times of Zambia]
